Trajcevski and Anor v Hurstville City Council
[2007] NSWLEC 360
•25 May 2007
Land and Environment Court
of New South Wales
CITATION: Trajcevski and Anor v Hurstville City Council [2007] NSWLEC 360 PARTIES: APPLICANT
RESPONDENT
Zvonco Trajcevski and Violetta Trajcevski
Hurstville City CouncilFILE NUMBER(S): 11113 OF 2006 and 10309 of 2007 CORAM: Hoffman C KEY ISSUES: Section 121B Order - Section 96 Application :- remove unauthorised works, application to amend existing development consent, landscaped area, absorption area, overland water flow path, boundary retaining walls, height and materials of side fence, front fence and planter troughs, terraced decks, overlooking and drive ramp to rear yard. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Hurstville Local Environmental Plan
Hurstville Single Dwelling House Code
Dividing Fences ActDATES OF HEARING: 24/05/2007 and 25/05/2007 EX TEMPORE JUDGMENT DATE: 25 May 2007 LEGAL REPRESENTATIVES: APPLICANT
Mr J. Burrell, solicitor
of Burrell SolicitorsRESPONDENT
Ms J. Hewitt, solicitor
of Home wilkinson Lowry
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHoffman C
25 May 2007
JUDGMENT10309 of 2007 Zvonco Trajcevski and Violetta Trajcevski
11113 of 2006 v Hurstville City Council
1 This is two appeals heard concurrently. Appeal No. 11113 of 2006 is between Zvonco and Violetta Trajcevski v Hurstville City Council regarding a s 121B order under the Environmental Planning and Assessment Act 1979 to remove unauthorised works at No 5 Baltimore Road, Hurstville. The property contains a new two-storey house above a garage.
2 The works the subject of the order and the reasons are:
- 1. The front and side return rendered brick fencing has been constructed without the prior consent of council in the case where prior consent of council is required.
2. The planter boxes have been constructed without the prior consent of council in the case where prior consent of council is required.
3. The additional parapet provided to the southern side of the front façade has been constructed without prior consent of the council in the case where prior consent of council is required.
4. The retaining wall to the southern side boundary has been constructed without the prior consent of council in the case where prior consent is required.
5. The concrete patio terracing and associated concrete works located at the rear of the building and the northern portion of the rear yard have been constructed without the prior consent of council.
6. The footings for the front and side fencing and southern side retaining wall have not been inspected by council and council has not been afforded the opportunity to assess their structural adequacy.
7. The additional parapet adds unacceptable bulk to the building and creates further overshadowing of the southern side neighbour. The additional height is considered unacceptable in the streetscape.
8. The concrete patio terracing and associated concrete works have resulted in a reduction of the pervious landscaping area for vegetation, water absorption and also provides for the over-viewing of the southern side neighbour.
3 The applicants’ issues regarding the s 121B order are:
1. The order is unreasonable and ought to be set aside because the works required by council to be removed:
- (i) generally comply with all relevant planning controls;
(ii) do not present any adverse environmental effect;
(iii) are reasonable and beneficial improvements to the property;
(iv) could be approved by the consent authority as lawful development; and
(v) were recommended for approval by council’s assessing officer to remain as unauthorised works.
- (i) to date there has been no response from council concerning the application;
(ii) council should be given a reasonable opportunity to assess this application before these proceedings are set down for hearing;
(iii) if the s 96 application is approved there will be no substantive issue in these proceedings; and
4 In Appeal No. 10309 of 2007 the parties are the same as in the first appeal, and it is in regard to a deemed refusal of the s 96 application referred to in the issues in the s 121B matter. The issues in Appeal No. 10309 of 2007 are:
1. Whether the elevated pedestrian pathway within the northern and southern boundary setbacks, the elevated rear hard paved terraces and the sloping hard paved ramp, collectively called the unauthorised hard paved impervious areas, are inappropriate, excessive and result in unacceptable negative impacts.
- Particulars:
(a) The unauthorised hard paved impervious areas result in excessive excavation and filling of land in breach of cl 22 of the Hurstville Local Environmental Plan.
(b) The unauthorised hard paved impervious areas do not reflect the topography of the land.
(c) The unauthorised hard paved impervious areas result in breach of the landscaped open space requirement in the Hurstville Single Dwelling House Code of 55 per cent of the site to be landscaped open space. The unauthorised hard paved impervious areas results in a total excess of 65.5 sq m of impervious area.
(d) The unauthorised hard paved impervious areas result in unacceptable impacts on the neighbouring properties such as loss of privacy and overlooking.
- Particulars:
(a) Absorption pits 1 and 2 located in the rear yard are too close, (1.5 m) to the rear and southern side boundaries, and do not minimise water infiltration towards the lower neighbouring sites.
(b) The increased drainage discharge will result in unacceptable impacts to neighbouring properties.
- (a) Side boundary fence will impede driver’s visibility.
(b) Side boundary wall undermining the footpath of No. 7 Baltimore Road.
(c) Masonry retaining wall on the southern side boundary.
(d) Excessive fill.
(e) Increased stormwater and discharge from concrete paving.
(f) Inaccurate plans.
(g) Overshadowing.
(h) Flashing to parapet.
(i) Planning principles of:
- (i) visual privacy;
(ii) overshadowing.
5 The objections came from the next door neighbours on the southern downhill side of the new house, a Mr and Mrs Vassalo at No. 7 Baltimore Road, and they gave evidence on site in addition to their letters of objection.
6 Prior to the hearing and during it, negotiations between the parties were held. The Court heard evidence on site from the applicants, Mr and Mrs Trajcevski, and from the respondent’s engineer, Mr Babister, who had consulted with the applicants’ engineer, Mr Hristovski. The engineers had agreed on drainage catchment and absorption systems to prevent any overland flow of stormwater onto No. 7 up to the 1 in 20 year storm event. This is acceptable engineering practice and amended plans tendered at the hearing overcame this council concern.
7 Another concern is privacy of No. 7 in regard to the elevated concrete terrace intended as an outdoor entertainment area in No. 5. It is on the opposite uphill side of the subject land to No. 7 and is immediately adjoining the boundary with No. 3 Baltimore Road, but there is an angle of view down into the only part of the Vassalos’ yard that has some privacy.
8 Mr Layman, the Court-appointed expert town planner was happy that a one metre high fence on top of the southern boundary retaining wall would prevent overlooking. However the Vassalos and the council had concerns about the elevated ramp out of the garage into the back yard of No. 5. It is one of the unauthorised works and is beside the boundary with No. 7. The one metre high fence would not prevent overlooking from that position. Mr Layman did not see the ramp as a frequently-used area and did not see a need for screening, however the council and the Vassalos sought a 1.8 m high lattice screen along the edge of the ramp from the house to the foot of the ramp.
9 The applicant opposed the lattice screen, but made a without prejudice offer to put obscure glass in garage windows that the Vassalos had concerns about. The respondent indicated it and the Vassalos saw the overlooking from the ramp as a more important issue and the offer was not taken up.
10 In observing the overlooking from the ramp, I can appreciate the Vassalos’ concern and I conclude that the screen should go in. Other overlooking is not sufficient for further action due to the fact, as seen on site, that there is quite a deal of mutual overlooking from house to house along Baltimore Street due to the elevation of the houses and the sloping nature of the ground.
11 In regard to the retaining wall on the side boundary the respondent was satisfied to leave it in place so long as an engineer certified its stability. As the land slopes up to the street from the back of the allotment, the retaining wall steps up and in some places exceeds one metre in height measured from the ground level in No. 7. Within No. 5 the wall had been back-filled and a concrete path covered the narrow side setback from the front of the house to the end of the ramp in the back yard. The engineers favoured the wall remaining to ensure stormwater overland flow is carried down to the revised drainage system and does not enter the Vassalo property. Some small changes to the top of the wall are needed to ensure this.
12 The Vassalos are concerned about the height of any fence above the wall and the materials. In the latter case they prefer a low paling fence not exceeding 1.8 m high measured from ground level on the Vassalo property and not measured on the uphill side of the wall within No. 5. This is due to the feeling of enclosure that would occur from windows in the Vassalo house if a 1.8 m high fence is erected as measured above the top of the retaining wall, instead of from the concrete pathway within No. 7. The side path in No. 5 is not likely to be frequently used, so the Vassalos are not overly concerned about privacy from it. They prefer a low fence in order to overcome the sense of enclosure a higher fence would create.
13 During the hearing the parties negotiated and a series of conditions were devised that satisfied most concerns of both. The remaining points of dispute are about the position of the fence above the retaining wall. The retaining wall is about 40 mm inside the southern boundary of No. 5. The applicant wants the position of the fence panels to be on the centre line of the boundary by fixing the fence posts down the side of the retaining wall. The respondent wants, for appearance sake, for the fence posts to be fixed to the top of the wall, as the fence posts fixed on the Vassalo side would be unsightly.
14 In the end the applicant agreed to fix the posts to the top of the wall, but resisted the method of fixing being conditioned as “core hole drilled” because the wall is of honeycomb core bricks that are unsuitable for that method. In any case, the applicant submitted, the Vassalos and the Trajcevskis have a Dividing Fences Act neighbours dispute over the fence yet to be resolved and the applicants said the material of the fence and the final construction et cetera is best left for that determination.
15 The respondent did not oppose that position, provided the conditions on the height of the fence on top of the retaining wall are imposed, therefore I delete the request for core hole drilling; otherwise the draft conditions in Exhibit 10 as hand annotated are accepted.
16 The respondent did not press demolition of the brick fences and planter boxes in the front yard, as the applicant tendered the council’s controls on front boundary and front setback structures showing that they comply. The additional parapet also is accepted by the respondent as being below the height limit and lower than other parapets approved on the house and as causing minimal increased shadow on the roof of the Vassalos’ garage.
17 In regard to the back yard entertainment terrace, given the privacy screen and the drainage works the respondent does not press for its demolition. There is a large back yard with lawn, trees and garden beds that provide ample landscaped area, even though there is some small deficiency in the calculated landscaped areas.
18 The respondent submitted that in view of the satisfactory negotiations in Appeal No. 10309 of 2007 it did not oppose the Court setting aside the s 121B order.
19 Therefore the Orders of the Court are:
1. In appeal 11113 of 2006, the appeal is upheld and the s 121B Order is set aside.
3. The exhibits are returned to the parties except Exhibits 2, 3, 8, 9, 10 and A.2. In appeal 10309 of 2007 the s 96 application is upheld to amend Development Consent No 20030626 dated 30 September 2003 subject to conditions in Annexure A hereto.
___________________
- K G Hoffman
Commissioner of the Court
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