Mason v Blue Mountains City Council

[2005] NSWLEC 313

Land and Environment Court

of New South Wales

CITATION:

Mason v Blue Mountains City Council [2005] NSWLEC 313

PARTIES:

APPLICANT
J & E Mason

RESPONDENT
Blue Mountains City Council

FILE NUMBER(S):

10556 of 2004

CORAM:

Moore C

KEY ISSUES:

Appeal :-
Order to demolish an existing brushwood fence
.

LEGISLATION CITED:

Land and Environment Court Act 1979
Environmental Planning and Assessment Act 1979
Blue Mountains Development Control Plan No. 26
Blue Mountains City Council Residential Policy
Better Living Development Control Plan
Blue Mountains City Council Local Environmental Plan 1991
.

CASES CITED:

Zhang v Canterbury City Council [2001] 115 LGERA 373;
Jones v Dunkel [1959] 101 CLR 298;
.

DATES OF HEARING:

11 October 2004 and 26 May 2005

EX TEMPORE JUDGMENT DATE:

05/26/2005

LEGAL REPRESENTATIVES:

APPLICANT
Ms L Byrne, barrister
INSTRUCTED BY
Lorraine Spooner & Associates

RESPONDENT
Mr D Baird, solicitor
Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

26 May 2005

10556 of 2004 J & E Mason v Blue Mountains City Council

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

JUDGMENT

1 These proceedings commenced as a binding on site conference pursuant to s 34 of the Land and Environment Court Act 1979 concerning an appeal pursuant to s 121K of the Environmental Planning and Assessment Act 1979 against at order served, by Blue Mountains City Council (the council), on Mr and Mrs Mason (the applicants) requiring them to demolish, within 90 days of the order, an existing brushwood fence which had been erected on approximately one-third of the frontage (at its northern end) of their property at 63 Sublime Point Road, Leura (the property).

2 The applicants had ceased the work on the fence but it had originally been intended to cover a further some 45 m further to the south and west so that there would be an entire brushwood fence of approximately 1.5 m to 1.8 m in height addressing the property’s frontage to Sublime Point Road and round the corner into Willoughby Street.

3 The proceedings were adjourned by me during the course of the s 34 conference on 11 October 2004, on the basis that I considered it appropriate to provide an opportunity for the applicants to obtain further supporting material concerning the products with which they proposed to treat the brushwood fencing, which treatment was said would act as a significant fire retardant and thus avoid issues of bushfire exposure.

4 The matter of bushfire exposure arises in these proceedings as the property is diagonally opposite a portion of Blue Mountains National Park (or vacant Crown land), which rises above the escarpment and fronts Sublime Point Road, at that point, for some hundreds of metres.

5 It is not contested in the proceedings that that bushland will remain in that state and subject to affectation by wildfire and the like. It is the consequences for the property at 63 Sublime Point Road and, potentially, for neighbours (if there be such consequences) of combustion of the brushwood fencing that is the prime issue in these proceedings.

6 As the proceedings have evolved, including the proceedings today, the matter that is before the Court, following amendment to the application made on behalf of Mr and Mrs Mason, is in two elements.

7 The first is for the setting aside of the order and, in effect, my indicating to the council that it would be appropriate for the council to permit the issuing of a building certificate for the existing brushwood fence north of the gate – subject to whatever conditions I considered were appropriate for the purposes of fire retardant treatment, on a regular basis, to that fence.

8 The second is that I should grant consent for the erection of a masonry wall varying between 1.5 m and 1.8 m in height for the remainder of the front boundary. That wall would be at some 1 m setback from the boundary and would generally be in accordance with a plan provided to me this morning and noted as having been drawn by the proposed block/bricklayer.

9 The consequence of all of that is that the most advantageous outcome for the applicants would be the provision of a building certificate and the retention of the existing brushwood fence coupled with a consent for Mr and Mrs Mason to construct a block wall over the remainder of the boundary with the wall to be bagged. Prior to the issuing of orders giving effect to such a decision, there would need to be conditions settled between the parties and the provision of revised plans to take account of the lack of detail in the necessary stepping of the reinforcing and footings.

10 The least advantageous outcome for the applicants is that they will be required to demolish the existing portion of brushwood fencing but will be given, subject to the same qualifications as apply to the masonry block wall to the south of the gate, a consent that would permit them to replace the existing brushwood fence with a masonry block wall to the north of the gate subject, as earlier noted, to settlement of conditions and detail of footings and heights.

11 It is within that more limited context that I turn to address the merits of the matters before me.

12 The general context is that the statutory planning framework for the Blue Mountains City Council area contains, in a Development Control Plan (DCP), an absolute prohibition on the erection of brushwood fencing.

13 It is appropriate in the present context not merely to set out the history of that provision but to set out the history of knowledge of that provision on behalf of a Mr Allan Binns who trades as Blue Mountains Brushwood Fencing and who erected the portion of brushwood fencing which is the subject of these proceedings as it seems to me to be a reasonable inference to draw from the way these proceedings have unfolded that Mr and Mrs Mason are innocent victims of what could only be deliberate misrepresentations by Mr Binns.

14 The chronology that has been provided to me in a statement of evidence from Mr Sheehan, a senior environmental health and building surveyor of the council, is that in September 1996, in a document known as the “Blue Mountains City Council Residential Policy” (which I infer is a predecessor document to the DCP that currently applies), that policy prohibited brush fencing in any location within the City of the Blue Mountains due to the bushfire risk believed to be associated with such fencing.

15 On 21 August 1997, Mr Binns submitted documentation to the council supporting the use of treated brush fencing within the Blue Mountains City Council area. This submission was not supported by the council and the material in the chronology (which has not been contradicted on behalf of the applicants) notes that Mr Binns was verbally advised that, prior to the council considering any relaxation of the then existing ban, Mr Binns would be required to demonstrate the durability and life expectancy of the flame retardant chemical treatment that he proposed should be applied to brushwood fencing.

16 It is within this context that I note that Mr John Mason, one of the applicants in these proceedings, has deposed, in an affidavit read in these proceedings (and contrary to which no evidence or submissions is put on behalf of the council), that Mr Binns had warranted to him at some time prior to commencing the erection of the fence, that development approval from the council was not necessary for their front fence.

17 This is quite clearly not the case either with respect to brushwood fencing generally or more specifically with respect to a fence of the height which is proposed no matter what is the nature of the materials of which it is proposed to be constructed.

18 It was also obvious to me from the conduct of the proceedings on the site, although I do not have formal documentation in support of it (again there being no evidence on behalf of the council or any submission to the contrary), that Mr Binns had warranted to Mr and Mrs Mason not only that development approval was not required for the dimensions of the structure but that no such approval was required for the material that was proposed to be used in the structure.

19 It is in this context that I am obliged to consider the various matters concerning the combustibility or protection from combustibility of the brushwood fence and the risks that might be applicable to it.

20 The first document that is prayed in aid by the council is a document entitled “Planning for Bushfire Protection”, which is a document provided for councils, fire authorities, developers, home owners and the like, dealing with the protection of development from bushfires.

21 At page 13 of that document dealing with desirable development standards that enable the control of combustible materials and inappropriate developments in bushfire prone areas, when dealing with the issue of landscaping controls, the document says, “landscaping controls may also be appropriate at times”.

22 It then continues to say:

“In the past brushwood fences and extensive areas of mulch have assisted in the spread of bushfires within properties. The requirement for fencing to be of masonry, steel or Colourbond construction is an important element in reducing the heat intensity of a bushfire upon the dwelling.

23 There is no contest between the parties that the property is located in an area, which, although not in the highest bushfire hazard area, is within the second highest bushfire hazard area.

24 The council had provided at some time in a DCP known as Building in Bushfire Prone Areas, Development Control Plan No. 26, that fences play a significant role in keeping fire away from buildings, but, however, they can also have the opposite effect and provide fuel for bushfires. For this reason brushwood fencing is not suitable as it is highly flammable.

25 Although that document is undated there is a successor or supplementary - it not being necessary for me to determine which is the case - element forming part of the Better Living DCP dated 18 June 2003. It is in a number of parts, the relevant one for these purposes is the single dwelling portion of the DCP which provides, inter alia, at E1.7.5, that brushwood fencing is prohibited in the Blue Mountains.

26 As was put to me on site, that element of the DCP comes into being pursuant to objective E of the Residential Bushland Conservation Zone which is the zone. pursuant to the Blue Mountains City Council Local Environment Plan 1991 (the LEP) as at 26 October 2001. within which the property is located. Clause 6.3(e) of the LEP contains the relevant zone objective and provides that the zone should act to ensure bushfire protection measures are adequate to protect proposed development and are able to be implemented without unacceptable adverse environmental impacts.

27 It is in that context of these statutory planning controls that I come to address the merits of the appeal.

28 The council filed, on 17 September 2004, a formal Statement of Issues in the proceedings pleading a range of matters.

29 However, the sole matter that requires my determination with respect to the brushwood fencing is, in effect, whether it can be treated so as to be sufficiently flame retardant as not to constitute or present an unacceptable risk either to Mr and Mrs Mason or to the citizenry of that area of the Blue Mountains generally.

30 On the other side of the coin, in consideration of whether or not I should exercise the Court’s discretion to permit the fence to remain, is the evidence, in an affidavit by Mrs Mason read in these proceedings, concerning a number of other already existing brushwood fences in the general vicinity of 63 Sublime Point Road.

31 I turn to the two matters in detail.

32 In his affidavit of September 2004, Mr Mason, in addition to setting out his dealings with Mr Binns and the council, provides a deal of material concerning two possibilities for fire retardant treatment of the fence. The first is for what might be described as a home grown recipe using boric acid, boric and water. No further material apart from a single letter has been provided concerning that application and I do not take it further nor do I understand that that treatment is advocated on behalf of the applicants as being an appropriate treatment.

33 The applicants put further, through Mr Mason’s affidavit, a deal of other material concerning fire retardant coatings manufactured in North America and used or approved to be used in a variety of circumstances in the United States and Canada. That material is manufactured in a variety of forms by a company known as Magna Coating Technology Incorporated and is provided under the generic brand name of Safe Coat Fire Retardant Coatings.

34 I have been provided with what might be described as a promotional brochure for that suite of products together with a technical data sheet and explanatory material in support of those technical data matters.

35 I have also been provided with a number of general information statements which, amongst other things, gives the numerical and title citation for the relevant Canadian Standard which is CAN4-S12 Test for Surface Burning Characteristics of Building Materials and Assemblies.

36 I am asked to assume, and I am, for the purposes of this decision, prepared to assume, that Safe Coat Fire Retardant treatment meets that Canadian Standard.

37 I have not been provided in evidence with a copy of the standard. I was informed by Ms Byrne, counsel for the applicants, that the cost of such document was $242, whether Canadian or Australian being irrelevant, and that the applicants had determined that it was not their wish to expend that sum for the obtaining of the document.

38 It is also clear from the bundle of documents provided to me this morning that the applicants have attempted, I accept genuinely and extensively through their legal advisors, to obtain information from the CSIRO that would enable them to put documentation to me that would found an argument that material which satisfied the Canadian Standard would be appropriate for use in Australia.

39 I was informed, and there is no submission that I ought not to accept this, that the final position on behalf of the CSIRO is that such testing would cost a minimum of $9000 and that Mr and Mrs Mason had determined on a cost benefit basis that they were not prepared to undertake the cost of such testing which would in effect provide, if satisfactory to this Court, perhaps a general and generally applicable piece of information not merely for Blue Mountains City Council but for other local authorities that might be faced with the same issues.

40 That decision is, perhaps, under the circumstances, entirely understandable, but is, nonetheless, one which does not assist the applicants case.

41 However, Mr Baird, solicitor for the council, does not ask me to draw any form of inference (see Jones v Dunkel [1959] 101 CLR 298) with respect to the non-provision of such report from the CSIRO, the preparation of such report having commenced to be explored by the applicants.

42 Ms Byrne took me to email from a person at Magna Coatings to her instructing solicitor indicating that further details concerning the products was available on Magna Coatings website. Again, Mr Baird has not asked me to draw any Jones v Dunkel inference against the interests of the applicant with respect to the fact that no further information has been extracted and provided from that website.

43 It is appropriate at this time to briefly describe the nature of the brushwood fencing, which is proposed to be retained on the site. I have been provided with a helpful reminder photograph attached to Mrs Mason’s affidavit in these proceedings which makes it clear that the body of the fence comprises vertically aligned bound bundles of brushwood that appears to be bound at four or five points with wire which is to be capped with a smaller roughly circular horizontally laid bundle of brushwood which is similarly to be wire bound at what would appear, from the photograph, to be approximately thirty centimetre intervals – that being a slightly narrower interval than the intervals on the vertical panels of the fence.

44 The brushwood, however, comprises, as is the case with all such traditional brushwood fencing, bundles of stems and twigs from the plants from which these fences are traditionally made. They are bound but they are not a solid and gapless mass as would be the case with a metal, solid timber or masonry block wall.

45 There is, I am satisfied both from first principle knowledge of such fences and from my observation of this fence, considerable scope for oxygenation for combustion of the fence from the fact that there are gaps from within the fence that necessarily arise as part of its construction.

46 Similarly, because of the nature of the bundling of the fence there are gaps within the material because of which, absent any specific technical evidence as to the efficacy of spray-painting equipment application of a fire retardant coating, I am unable to conclude in an entirely certain fashion that every surface, not merely of the external aspects of the fence but of the internal individual elements comprising the fence, would be coated with the material.

47 However, even if I were prepared to so conclude, I have difficulties in the acceptance of the Magna Coatings technology material is acceptable for this purpose. I say this for two reasons.

48 The first is that I have no information reasonably available to me of any nature whatsoever that would enable me to ascertain what would be, even if I were satisfied that the coating was effective on this type of material, the appropriate recoating interval in order to ensure the long term effective nature of the coating of the material. There is nothing in the material from Magna Coatings Technology that holds out to the world that the coating is a permanent and indestructible one. The reasonable inference is that repeated coating at some interval would be required in order to maintain the efficacy of the coating. I have no information of that nature and it is not possible for me, absent such information, to draw any inference as to what would be an appropriate recoating interval to require of the applicants by way of condition.

49 The second difficulty I have with respect to the Magna Coatings Technology material is that the product description contained in the material attached to Mr Mason’s affidavit describes it expressly as being applicable for plywood, wood trusses and rough stud construction where particular flame spread ratings apply.

50 I have no information before me in evidence in these proceedings that would enable me to conclude that a material that satisfied whatever the technical dimensions are of that flame spread rating and whatever its acceptability or otherwise that such a rating would apply to the sort of brushwood fencing presently erected on the property.

51 I am, therefore, left with no information as to the life of the material, no information as to what the technical meaning of the flame spread ratings nor any information as to whether or not, even if I had that material, it would be applicable to brushwood fencing.

52 On the other side of the coin comes the material put to me attached to Mrs Mason’s affidavit where examples are given of brushwood fencing at 8 West Street, Leura, a property which from the extract of the Blue Mountains bushfire prone land mapping information contained at page 23 of the council’s bundle, it is reasonable for me to assume that the exposure to bushfire of that fencing is at least of a similar nature to that for the site at 63 Sublime Point Road, and from the photograph that the setback from the house to that fence is, in broad terms, of similar dimensions.

53 I am also provided with photographs of brushwood fencing at 28 Sublime Point Road, Leura; 106 Sublime Point Road, Leura; 52 Sublime Point Road. Leura and 61 Sublime Point Road, Leura – all being within reasonable proximity of the site and all of which fences would appear to be subject to the same, in general terms, degree of risk exposure to attack by airborne ember transfer during a severe bushfire.

54 I am invited by Ms Byrne to conclude that consistency of decision making (at least on the concession by Mr Baird that only one of the other brushwood fences had been erected prior to the coming into effect of the prohibition of such material) would have me exercise my discretion in favour of Mr and Mrs Mason as there being no enforcement action taken against the proprietors of the other brushwood fencing.

55 Contrary to that, Mr Baird has put to me the proposition that the council awaits my decision in these proceedings before determining how its discretion ought be exercised with respect to each of the other brushwood fences. He is unable to provide me with any information, on proper instructions, as to how that discretion might be exercised if I were to require the demolition of the existing portion of brushwood fencing.

56 The foregoing has set out a somewhat lengthy preamble to my consideration of the matters contained in the DCP and the factual matrix within which I must determine this matter.

57 As to the emphasis I should give to the development control plan, Zhang v Canterbury City Council (2001) 115 LGERA 373 deals inter alia with the issue of the consideration of relevant provisions of a DCP in determining whether to grant development consent – relevantly to this case, as to whether or not I ought to sustain the council’s order.

58 From what was said in Zhang by Spigelman CJ at paragraph 75 on pages 396 and 387, three propositions emerge.

59 First, although the Court has a wide ranging discretion, the discretion is not at large and is not unfettered.

60 Second, the provisions of a development control plan are to be considered as a fundamental element in or focal point to the decision making process particularly if there are no issues relating to compliance with the local environmental plan that being the case in these proceedings.

61 Third, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decision making process but it is not in itself determinative.

62 However, if a proposal does not meet the DCP’s requirements, the Court may still grant consent or in this case decline to sustain the order in appropriate cases given a proper and genuine consideration of the DCP and having considered all other matters that are relevant under s 79C of the Environmental Planning and Assessment Act 1979.

63 In this case, I am satisfied that the general public protection measures contained in the DCP with respect to all brushwood fencing within high risk bushfire areas are appropriate absent any satisfactory evidence to a consent authority, in this case the Court but in other cases the council, that an appropriate and acceptable fire retardant treatment exists when applied to brushwood fencing and if appropriately maintained by recoating at specified intervals would continue to provide such protection.

64 In these proceedings I am not provided with material that enables me to be satisfied, for the reasons I earlier outlined, that the material from Magna Coatings Technologies would be such material. It may be such material but I am not satisfied that in the public interest on the evidence that is presently before me either I or any other consent authority could be satisfied that it in fact meets those tests.

65 As a consequence of that I am satisfied that, in this case, the discretion that I have ought be exercised in favour not merely of the protection of Mr and Mrs Mason but for the protection that would be afforded to members of the general public in the vicinity of the Mason’s premises. It follows that the brushwood fence should be demolished.

66 It has been a difficult matter to determine because, in many respects Mr and Mrs Mason would be entitled to a genuine sense of injustice at that conclusion.

67 However, it is not an injustice that they have suffered at the hands of this Court or indeed, in my view, at the hands of the council. It is an injustice that they have suffered at the hands of Mr Binns, their fencing contractor, who has made serious, and in the context of fire protection, in my view, unforgivable misrepresentations to them.

68 The consequence of my conclusions therefore is that the order of the council to demolish the existing brushwood fencing ought to be sustained. Ms Byrne conceded that the original period for compliance that had been specified in the council’s order of 90 days was a reasonable time within which such compliance should take place.

69 Therefore, the formal orders of the Court will be that the appeal pursuant to s 121ZK of the Environmental Planning and Assessment Act 1979 against the order of Blue Mountains City Council requiring the demolition of the existing brushwood fencing at 63 Sublime Point Road, Leura, is dismissed and that the order is confirmed subject to the requirement that the applicants will have 90 days from the date of issue of the orders in these proceedings to remove that fence.

70 However, given the way the proceedings have been carried on that is not the conclusion of the matter.

71 There is still the question of ensuring that Mr and Mrs Mason end up with an effective consent (if they wish to take it up) for the construction of a masonry block wall across the whole of the front of their premises. To that effect, should Mr and Mrs Mason wish such a consent, I give the following directions:

1. A revised plan of the proposed fence incorporating details of the dimensions of the fence that will replace the existing brushwood fence (particularly as to height) be incorporated together with details both in elevation and in section of how the footings are to be stepped for that fence with such revised plan to be filed and served by the applicants by the close of business on 10 June.
2. The respondent is to file and serve conditions for such fence by 24 June.
3. If an agreed plan and agreed conditions are filed and served pursuant to that timetable I will make orders in chambers giving effect to that outcome. These orders will be orders in addition to the orders that I will issue next week with respect to the s 121ZK appeal.
4. In order that the Court retains control over the process, I will set the matter down for Callover on 5 July.
5. In the unlikely event that the parties were unable to settle matters between them, I will grant liberty to re-list before me on 9am on two days notice.

Commissioner of the Court