Taylor v Ku - ring - gai Council

[2012] NSWLEC 1303

Land and Environment Court

New South Wales

Medium Neutral Citation:	Taylor v Ku - ring - gai Council [2012] NSWLEC 1303
Hearing dates:	24 October 2012
Decision date:	02 November 2012
Jurisdiction:	Class 1
Before:	Hussey C
Decision:	Appeal upheld. Conditions varied
Catchwords:	Development application; Conditions of consent restricting height of boundary fencing around heritage item.
Legislation Cited:	EP & A Act 1979 Ku - ring - gai PSO, as amended 31 October 2008 Draft LEP No 218 DCP 38.
Category:	Principal judgment
Parties:	Phillip Taylor (Applicant) Ku - ring - gai Council (Respondent)
Representation:	Mr M Luitingh (Applicant) Mr A Hudson (Respondent) Wilshire Webb Staunton Beattie Uther Webster and Evans (Applicant)
File Number(s):	10909 of 2012

Judgment

Background

1. This appeal was lodged against conditions of consent imposed on a development application for sections of boundary fencing at 12 Kings Street, Turramurra. The proposed fencing comprises:

(i)   A northern boundary (A - B), which forms the side boundary with 9 King Street.

(ii)   An eastern boundary section (B - C), which is adjoins a "battle - axe" handle with 9 King Street.

1. The full details of the appeal are contained in the Statement of Facts and Contention, on which I rely. Accordingly, the proposal was for the erection of a lapped and capped paling fence 1800 mm -2200 mm high, which was initially proposed to be stepped to follow the slope of the ground but this was changed with the fence profile to follow the land contour.

1. The council subsequently granted consent limiting the height and specification as stated in the following Condition 4:

4.Fencing materials and design

Fencing shall be located as indicated in yellow on the plan prepared by North Western Surveys.

Lapped and capped timber fencing shall have a maximum height of 1500mm. The fencing shall be erected to follow the grade of the land (no steps) and the fence rails shall be within the 12 King Street property.

Fencing forward (to the south) of a line 9 metres to the north and parallel with the northern boundary of King Street shall not exceed 1.2 metres in height. A transition shall be provided between the 1.2 metres high fence and the 1500mm high fence

Alternatively

An 1800mm high open style palisade fence consisting of metal pickets, slats, pipes or the like panels with an aperture of 50mm to 100mm may be erected

The site

1. The subject site is known as Lot 2 in DP 581006 located at 12 King Street, Turramurra. It is listed as a heritage item under KPSO. The visual character study category is identified in the Ku-Ring-Gai Heritage Study as 1890-1920 period. The subject site also contains endangered species known as Blue Gum High Forest.

1. The subject site is located on at the end of a cul-de-sac on King St, Turramurra. It has an irregular shape with an area of 3618 m2 and has a fall over the site from south to north.

1. A 3 m wide pathway adjoins the site on the southern boundary and there is also access to the site via Laurel Avenue in addition to King Street. There is an existing two storey residential dwelling with carport located towards the south western boundary. A brick garage adjoins the pathway south of the site. A tennis court and adjoining swimming pool are located to the east of the site. There is also dense vegetation to the Laurel Ave frontage. An approval to subdivide the site into two lots has been granted. The second lot will have frontage to Laurel Avenue.

1. The surrounding development is characterised by one and two storey residential dwellings. Located at 5 King Street is St James Anglican Church. There is also restricted parking located on the northern side of King Street.

Planning controls

1. The following controls apply:

• Ku-ring-gai Planning Scheme Ordinance - as amended 31 October, 2008 in particular Clause 61D(1)(a) and Schedule 7. Under this control, the site is zoned Residential 2(c).
• Draft Local Environmental Plan No. 218
• Heritage Conservation Area C-5
• Development Control Plan 38 in particular Clause 4.1.5 (Side and rear fences

1. The proposal requires development consent as the site is heritage listed under the Ku-ring-gai Planning Scheme Ordinance.

The evidence

1. This matter was determined by way of a Section 34AA Conference. This involved hearing objections from residents, inspecting the site and surrounds and discussing various options to resolve the matter. However there was no agreement and the matter proceeded for the determination.

1. Following notification to the neighbours of the proposal a number of objections were received and they involve:

• excessive height of proposed fence
• visually intrusive
• adverse impact on ventilation and site drainage
• loss of natural light
• loss of visual amenity from the Church and public domain in King Street.

1. The owners of 9 Kings Street expressed particular concern about the loss of amenity to the kitchen/family living area if a paling fence was to be erected. They prefer that a palisade style fence be erected and offered to pay the cost of such fence.

Findings

1. Insofar as of the subject property is listed as a heritage item and therefore the fencing proposal is subject to development application assessment, no substantive heritage issues were raised in the subject matter.

1. DCP No 38 is the council design manual and it contains a number of design elements. Section 4.1 contains the following Streetscape objectives:

a)To ensure that the development is sensitive to the landscape setting, environmental conditions and established character of the street and locality.

b)To ensure that the appearance of new development is of a high visual quality enhances the streetscape and complements good quality surrounding development.

c)To conserve the natural, built and cultural significance of streetscapes of heritage value.

1. Section 4.1.1 deals with visual character on the following basis:

4.1.1 Visual Character

Development should conserve and enhance the visual character of the street with particular reference to the integrating of:

Architectural themes;

Building scale and setbacks;

Landscape themes; and

Fencing styles.

1. Section 4.1.5 deals with front fences, side and rear fences and notes that:

Note:Side (between the building line and the rear boundary) and rear boundary fences with a maximum height of 1.8 metres are permissible without approval provided they satisfy the requirements of Council's DCP 46 -Exempt and Complying Development

1. From my observations, there are other existing 1.8 m fences along side boundaries, which provide a relatively high level of privacy in this neighbourhood and the controls generally indicate that the 1.8 m height is acceptable. I have taken into account the irregular shape of the large subject lot and its limited direct street frontage to King Street as shown in the attached plan Attachment 'B'.

1. Consequently, I am satisfied that the proposed fencing can reasonably be classified as side boundaries. In this regard I particularly note that there is to be no fencing between the existing driveway and the brick fence pier (point C). This will substantially maintain the existing streetscape amenity.

1. With reference to the subject application then, there are two distinct sections for the fencing:

(iii)   The northern boundary, which the applicant maintains should be 1.8 m to provide adequate privacy to the pool users in the nearby vicinity.

(iv)   The eastern section, where the applicant says the 1.8 m fence is required to enable better use of the attractive open space area adjacent to the tennis court.

1. In considering the competing positions, I note initially that the applicant rejects the palisade style fencing option specified by Council and also the offer by the owners of 9 King St. This is on the basis that this style fencing does not provide adequate privacy. The applicant maintains that the 1.8 m fence is reasonable and consistent with the DCP provisions and existing neighbourhood amenity.

1. Mr Stewart, council's town planner, consequently admitted that the incremental change from the approved 1.5 m fence to a 1.8 m lapped and capped timber fence (i.e. an additional 300 mm), along the northern boundary would not have any material effect on the amenity of the occupants of 9 King Street, in respect of the aforementioned objections.

1. Along the eastern boundary, I consider the privacy of the private open space area is a less critical area because of the location of the tennis court and the existing mature vegetation. Consequently, the access way to 9 King St is relatively open, which allows views of the subject heritage item from the Church and King Street public domain.

1. Accordingly, I consider that a reasonable balance between the privacy the applicant seeks and the visual amenity of the area can be achieved by maintaining the approved 1.5 m high fence, together with a 300 mm lattice panel atop (i.e. a total height of 1.8 m) along with its boundary. The specification is similar to the adjacent fence along the Church property and I therefore consider there would be a degree of consistency with this design specification. This fence can extend from the existing brick gate pier to the boundary curvature point near the end Church post (Point B). This outcome is consistent with the DCP controls, in my assessment.

Court orders

1. The court orders that:

1. The appeal is upheld.

2. The conditions in the development for proposed fencing at well King Street, Turramurra is varied as shown in Annexure "A".

R Hussey

Commissioner of the Court

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Decision last updated: 02 November 2012