Willis v Hornsby Shire Council

[2008] NSWLEC 1378

Land and Environment Court

of New South Wales

CITATION:

Willis v Hornsby Shire Council [2008] NSWLEC 1378

PARTIES:

APPLICANT
Ken Willis

RESPONDENT
Hornsby Shire Council

FILE NUMBER(S):

10567 of 2008

CORAM:

Hussey C

KEY ISSUES:

Building Certificate :- completed stone wall, adverse amenity impacts on neighbouring property.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Hornsby Local Environmental Plan 1994

DATES OF HEARING:

27/08/2008 and 16/09/2008

EX TEMPORE JUDGMENT DATE:

16 September 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr D. Williams, solicitor
of Whitehead Cooper Williams
with Mr K. Willis, litigant in person

RESPONDENT
Mr T. Pickup, solicitor
of Storey & Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

16 September 2008

10567 of 2008 Ken Willis v Hornsby Shire Council

JUDGMENT

Background

1 This appeal was lodged against council’s refusal of a Building Certificate for a dry stacked stone retaining wall at 68A Eastcote Road, North Epping.

2 This site is zoned Residential A (Low Density) under Hornsby LEP 1994. Clause 9 of the LEP requires consent to carry out a work or any other development on land for any purpose where the work or other development has, in the opinion of the Council, the effect of significantly affecting the natural environment, through either filling or excavation.

3 The wall was constructed as part of the development of this property for a dwelling house and swimming pool. The conditions of consent referred generally to retaining walls and the applicant proceeded to construct the wall along the eastern boundary of the property and return it towards the swimming pool located further to the west. The stone wall varied in height from approximately 900mm at the rear house alignment to approximately 3m adjacent to the rear boundary of No 70A Eastcote Road.

4 Following objections from the owners of No 70A that the wall was not specifically approved and it was too high causing loss of privacy and solar access, the applicant made the building certificate application to regularise the wall. This is not withstanding that the applicant considered consent had been granted as part of the dwelling and pool approvals.

5 At the s34 conference the neighbours explained their concerns about the adverse impacts of the existing wall. This lead to further discussions between the parties ant the applicant lodging amended detailing for the wall.

6 These amendments are contained in exhibit G. The proposal is to substantially reduce the height of the wall along the common boundary and provide 3 terraces to transition to the existing paved terrace. The terraces comprise ‘Garden areas 1, 2 and 3’. It is proposed to landscape these gardens with appropriate native species to screen the terrace, minimise visual disamenity with the reduced, stepped wall and prevent overlooking.

7 Mr N Kennan, council’s consulting planner is satisfied that the amended proposal represents a reasonable balance between the applicants use of their property, relative to the impacts on the neighbouring property. The owners of No 70A have reviewed the amendments and are basically satisfied.

8 Having considered the amendments and associated impacts at the site, I am satisfied to separate consent would be required for a retaining wall of this magnitude. I then accept Mr Kennan’s opinion that they are now satisfactory for approval to enable conditional issue of the building certificate.

1 The appeal is allowed.
2 The Council is directed to issue the Building Certificate subject to:
.1 The stone wall to be modified in accordance with Plan BH 035 dated 16/9/08 (Sheets 1/2).
.2 Certification from a practicing structural engineer that the wall is structurally adequate and built in accordance with the approved plan.
.3 Landscaping of ‘Garden beds 1, 2 and 3 to comprise fire resistant native species in accordance with details submitted to and approved by council. Garden beds 1 and 2 to contain screening species to a minimum height of 1.5m. Such landscaping to be maintained on an on-going basis.
.4 Any surplus material from the retaining wall to be disposed of in a manner satisfactory to council.
.5 These works to be completed by 31 March 2009.
3 The exhibits be returned except 5 and G.

___________________

R Hussey
Commissioner of the Court
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