Porter v Waverley Council

[2009] NSWLEC 1300

Land and Environment Court

of New South Wales

CITATION:	Porter v Waverley Council [2009] NSWLEC 1300
PARTIES:	APPLICANT H Porter RESPONDENT Waverley Council
FILE NUMBER(S):	10387 of 2009
CORAM:	Moore SC
KEY ISSUES:	APPEAL - SECTION 121B ORDER :-
DATES OF HEARING:	8 September 2009
EX TEMPORE JUDGMENT DATE:	8 September 2009
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT Mr S Patterson, solicitor Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC

8 September 2009

09/10387 Porter v Waverley Council

JUDGMENT

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

1 SENIOR COMMISSIONER: This appeal is brought by Mr Porter against an order made by Waverley Council (the council) requiring him to demolish a deck and a spa that have been erected, without development consent from the council, at the rear of his property at Glen Street, Bondi.

2 During the course of the proceedings, I have been invited, after the conciliation phase pursuant to s 34(3) of the Land and Environment Court Act 1979, to proceed to hear and determine the matter – with both the applicant and the council consenting to those matters that were discussed during the conciliation phase being carried forward to and forming evidence in my determination pursuant to s 34(4)(b).

3 It is convenient, at this point, to note that I have inspected not only the rear yard of Mr Porter's property (from within that yard) but also I visited the middle unit of the block of units immediately to the east to inspect the impact of the present structures on the occupant of that unit and, by inference, on those in the units above and below and in the further units in the same block immediately to the south.

4 It is also appropriate, at this stage, to note the dimensions of the spa as approximately 4.3 m long and 2.4 m wide. It stands approximately 1.6 m above natural ground level and is currently located with its long axis parallel to the rear boundary of the property. It is separated some 1.6 m from that rear boundary.

5 The remainder of the rear yard of Mr Porter's property, with the exception of a small vegetated fringe at the rear fence, is either paved or covered by the decking that has been erected without consent. The decking is of substantial planks (these being approximately 8 inches in width) with 1 inch gaps between the planks.

6 To the immediate south of Mr Porter's property, along most of the rear part of the boundary between the two properties, is a rendered masonry wall some 2.4 m high with a small lapped timber fence section at the rear. That timber fence section is approximately 1.2 m in length.

7 The motor of the spa is located immediately adjacent to the masonry wall and would, as a consequence, have a reverberation and echoing effect of sound transmission from that wall and the proximity of the spa to it.

8 During the course of the hearing, I have also had the opportunity to inspect the large fig tree which is located on the property immediately to the north of Mr Porter's property but which has a significant overhang not only over Mr Porter's property but also into the property immediately to the east and somewhat over the boundary of the property to the south. This tree is of considerable significance in the local landscape and I have reports before me prepared over a number of years by two arborists – Mr Bruce McLeod and Mr Danny Draper. These documents deal with the health and vigour of the tree. This has been impacted by pruning (at times in the past) that has not been carried out in accordance with AS 4373 of 2007 or its predecessor. Nonetheless, the tree appears to be in reasonable health and vigour although there are elements of deadwood in the canopy.

9 At the present time, the decking and the spa are located within the critical root zone of the tree. Between them, they comprise approximately 50% or so of the critical root zone of the tree.

10 I am satisfied that it would be appropriate for the long term health of the tree to relocate the spa so as to free up more of the critical root zone of the tree; to remove portion of the deck for a similar purpose and to require (as recommended by one of the council's tree management officers) the light forking of the area that would be so revealed and the covering of it with appropriate mulch to be replaced on an annual basis. I do not consider that there would be any necessity for the installation of a watering system as the opening up of the tree root zone would be likely to be sufficient for those purposes.

11 Taking these steps would, in my view, ensure that there would be a general compliance with what is presently regarded as the appropriate regulatory regime in Australia – namely adoption of the British Standard for construction within the root zones of trees (the Australian standard only currently being in final draft form).

12 To give effect to what I consider to be the appropriate outcome of both protecting the tree and the amenity of the neighbours, it will be necessary for the order, in its present form, to be discharged and a new order be put in its place. It will also be necessary for Mr Porter to lodge a development application for the use of the relocated spa and for a building certificate for the works that will be undertaken.

13 The works that are to be provided for in the revised order are as follows:

• the spa is to be rotated by 90° and moved so that the western edge of the spa is adjacent to the small retaining wall to the garden in the proximity of the stairs to the house with a small gap to the fence to the south;
• to the east, separated from the spa by some 300 mm but commencing generally at the location of the end of the masonry wall on the adjacent property, there is to be a lapped and capped timber fence erected with its top being at the height of the wall immediately to the south;
• this lapped and capped timber fence is to come out from the masonry wall the full width of the spa and slightly beyond, at which point it is to turn 90° to act as a return wall for a length of 2 m along the northern face of the spa;
• construction of the lapped and capped timber fence is to be by it being supported on piers – the footings to which are to be hand excavated with a requirement that no tree root greater in diameter than 10 mm should be severed during such construction;
• the area that is bounded by the return lapped and capped timber fence to the east; the lapped and capped timber fence proper and the rendered masonry wall to the south is to be covered with a glass roof (sloped slightly towards the east for drainage purposes);
• the glass roof is to be appropriate glass roofing that is shatterproof (the terms of specification of which can be deferred to the conditions modified to give effect to this decision);
• the existing decking is to be removed from the point of the decking closest to the eastern boundary of the property back to the first full plank in the existing decking (being at a point approximately 4.3 m from the rear boundary);
• the area that is exposed by the removal of the decking is to be lightly forked and then mulched to a depth of 25 mm with a requirement that this mulch is to be renewed on an annual basis;
• finally, there is to be a restriction imposed on the operation of the spa that it is not to be operated between the hours of 8:30 PM and 7:30 AM – thus, in effect, confining the operation of the spa to daylight hours.

14 To enable this decision to be effected, I will set the matter down for mention before me in approximately a fortnight at a date that will be advised to parties. This will be on the basis that if settled revised orders are provided to me prior to that date to give effect to this decision, I will make those orders in chambers and vacate the further mention before me.

Tim Moore
Senior Commissioner