Turner v Ku-ring-gai Council

[2016] NSWLEC 1418

Land and Environment Court

New South Wales

Medium Neutral Citation:	Turner v Ku-ring-gai Council [2016] NSWLEC 1418
Hearing dates:	19 September 2016
Date of orders:	19 September 2016
Decision date:	19 September 2016
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	Appeal upheld
Catchwords:	CONSENT ORDERS: Modification application; retaining walls, landscaping, tree replacement, boundary fencing
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Ku-ring-gai Local Environmental Plan 2015
Category:	Principal judgment
Parties:	Rachel Turner (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Applicant: Mr S Kondilios (Solicitor) Respondent: Ms L Finn (Solicitor)   Solicitors: Applicant: Hall & Wilcox Lawyers Respondent: Hones Lawyers
File Number(s):	187367 of 2016

Judgment

1. COMMISSIONER: In 2008, Ku-ring-gai Council approved Development Application DA0531/08 for the construction of a two storey dwelling and associated site works including landscaping, retaining walls and stormwater works. The approved landscape plan included boundary fencing. The site is 42 Saddington Street, South Turramurra.

2. The approved works have been substantially completed and an Interim Occupation Certificate was issued bu a Private Certifier on 26 March 2016.

3. In May 2016 the applicant applied to council under s 96(1A) of the Environmental Planning and Assessment Act 1979 (EPA Act) seeking to modify the development consent in the following terms:

• Modify approved retaining walls and construct new retaining walls within the site;

• Modify ground levels within the rear of the site to suit the modified retaining walls;

• Modify the approved landscape scheme; and

• Modify the height of boundary fencing between the site and 42A Saddington Street.

4. Pursuant to s 96(6) of the EPA Act, the applicant appeals council’s deemed refusal of the modification application,.

5. Apart from the landscaping, the majority of the works have been completed.

6. The matter was initially listed for mandatory conciliation under s 34AA of the Land and Environment Court Act 1979. With the agreement of the parties, the Registrar granted leave for the matter to be heard as consent orders. In accordance with the Court’s Practice Notes – Class 1 Development Appeals, the council’s solicitor notified the owners of 42A Saddington Street who had made a written submission raising concerns about the proposal. Exhibit 3 includes the letter, proposed orders, and proposed conditions. The date, time and location of the consent orders hearing is provided. Although the objectors did not attend the on-site inspection, I am satisfied that the Practice Note has been followed and that reasonable notice was provided to them.

The site

7. The site is zoned R2 Low Density Residential under Ku-ring-gai Local Environmental Plan 2015 (KLEP). It is located at the south-western end of Saddington Street, in close proximity to a bushland reserve which forms part of Lane Cove National Park. The site is mapped under KLEP as bushfire prone land as well as containing vegetation of high biodiversity significance.

8. The site is rectangular in shape with a pronounced fall to the southern (rear) boundary. The dwelling and the mostly completed landscape works step down the site; the landscape steps down in a series of retained terraces constructed of sandstone boulders. The boundary fence between the site and 42A is a 1.8m dark grey Colorbond fence.

9. There are a number of established and mature trees on the site. Relevantly, an Angophora costata (Sydney Red Gum) identified as Tree 18 is in decline and is to be removed and replaced with another Angophora.

10. Adjoining the western boundary of the site is a driveway to a large battle-axe allotment, 42A Saddington Street, on which there is a two storey dwelling.

Relevant background and issues

11. The modification application was notified to surrounding properties. Two letters of objection were received from the owners of 42A Saddington Street, including a report prepared on their behalf by KN Planning (Exhibit 2). The submissions raised the following issues:

• The structural integrity of the constructed retaining walls;

• The absence of stormwater drainage and overland flow details;

• The source of fill used on the site;

• The adverse visual impact of the fence;

• Restriction of solar access to 42A as a consequence of the excessive height of the fence;

• Excessive fill;

• Inadequate setback of the fence from 42A; and

• Unsightly gaps beneath the fence which collect debris.

12. At some stage the NSW Civil and Administrative Tribunal (NCAT) made a direction in regards to the construction of the Colorbond fence.

13. As requested by council, the applicant provided additional information including:

• An elevation of the fence;

• A survey and report;

• Engineering certification for the constructed retaining walls;

• An amended landscape plan;

• An arboricultural assessment of Tree 18; and

• Bushfire Certification for the amended landscape plan.

14. The Class 1 application bundle also includes a Statement of Environmental Effects and copies of the relevant plans.

15. In its Statement of Facts and Contentions, council’s single remaining issue is that the landscape plan be amended to require the planting of an Angophora costata to replace Tree 18. This is not opposed by the applicant.

Consideration

16. I am required to consider relevant matters under s 79C of the EPA Act. Amongst other things, these matters include any submissions made.

17. I have read the material provided by both parties. The matter was heard on site. Neither party required any expert evidence although the parties’ planners were present if required.

18. The survey and report dated 5 May 2016 (Exhibit 1) prove that the retaining wall and metal fence is wholly on the applicant’s land and does not encroach onto 42A Saddington Street. Given this fact, there is no contest between the parties that the proposal, as modified, is not substantially the same as the approved development. The modification is minor with minor environmental impact.

19. A letter from Building Code and Bushfire Hazard Solutions dated 16 June 2016 certifies that the amended landscape design complies with condition of consent 58 – Rural Fire Service.

20. A letter from ACOR Consultants dated 2 June 2016, certifies the structural adequacy of the sandstone retaining walls.

21. The council has not raised any issue with the adequacy of the drainage system or of the source of the fill. During the site inspection it was mentioned that the terraced lawn area at the rear also accommodates the on-site detention system.

22. In regards to visual amenity, although it was not possible to enter 42A Saddington Street, it appeared to me that dwelling at 42A has been sited to take advantage of the view of the National Park and the Colorbond fence is to the side and would be a small element of that view. It was also clear that vegetation shown in photographs attached to the objectors’ submissions, which is growing on 42A, has grown and provides some screening of the fence. It would also seem to me that the colour of the fence is quite recessive and blends with the surrounding bushland. There is no evidence of any adverse impact on solar access to 42A.

Findings and orders

23. With the benefit of the site inspection, and the material provided by the parties, I am satisfied that the orders agreed to by the parties can be made.

24. Therefore, by consent, the Orders of the Court are:

1. The Class 1 appeal is upheld.

2. Development Consent No. 0531/08 is modified in the following ways:

1. To construct a boulder stone retaining wall to the southern and western boundaries of the subject site;

2. To level the rear yard to provide useable open space with clean fill; and

3. To erect a colour bond metal boundary fence to the southern and western boundaries in accordance with the directions of NCAT,

4. Subject to the conditions of consent set out in Annexure ‘A’ hereto.

3. The exhibits except A are returned.

________________________

Judy Fakes

Commissioner of the Court

187367.16 Annexure A - Conditions (64.4 KB, docx)

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Decision last updated: 19 September 2016