Zhou v Hurstville City Council

[2007] NSWLEC 502

Land and Environment Court

of New South Wales

CITATION:

Zhou v Hurstville City Council [2007] NSWLEC 502
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICANT
Li Zhou

RESPONDENT
Hurstville City Council

FILE NUMBER(S):

11129 of 2006 and 10296 of 2007

CORAM:

Bly C

KEY ISSUES:

Development Consent :- unlawful retaining walls and associated fill, amended plans, consent orders

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Hurstville Local Environmental Plan 1994
Building Code of Australia

DATES OF HEARING:

12-13/06/2007, 28/06/2007, 04/07/2007

EX TEMPORE JUDGMENT DATE:

4 July 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr T. Atkinson, solicitor
of Paul C Fabian & Co

RESPONDENT
Mr P. Rigg, solicitor
of Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

4 July 2007

11129 of 2006 Li Zhou v Hurstville City Council
10296 of 2007

This decision was given extemporaneously. It has been revised and edited prior to publication.
JUDGMENT

1 On 11 January 2005, the Hurstville City Council granted development consent No. 2004/672 for the construction of a two-storey dwelling house at 4 McLeod Street, Hurstville. The house has now been constructed. Included in the completed works are retaining walls along the rear and part of the side boundaries of the site, together with associated fill that has raised the ground level of the rear yard. The council submits that these retaining walls and associated fill are not included in the original development consent and, as a consequence, these works are unlawful.

2 On 30 October 2006, the council issued orders under s 121B of the Environmental Planning and Assessment Act 1989, requiring the demolition of the retaining walls and the removal of the fill.

3 On 26 February 2007, the applicant in these proceedings lodged a modification application for these works as they presently exist. The modification application was advertised and a number of objections were received from the site’s immediate neighbours expressing concerns such as loss of privacy, the appearance of the retaining wall, possible drainage problems and reduced property values.

4 The modification application was refused by the council on 4 April 2007 for reasons comprising unacceptable loss of privacy for neighbouring properties, the unacceptable appearance of the retaining wall and inconsistency with the objectives of the applicable residential zone under Hurstville Local Environmental Plan 1994. The applicant has now appealed against the refusal of the modification application and against the orders.

5 When the hearings began on site, an inspection of the retaining walls and the fill was carried out to enable an understanding of the extent of the works and its relationship to the neighbouring properties. The retaining wall in its presentation to the three neighbouring properties varies in height between 1.5 and 1.9 metres. Taking into account the fill behind the retaining wall and notwithstanding the provision of vegetation in a planter box, persons standing in the backyard of 4 McLeod Street, will be able to overlook neighbouring properties. Four of the resident objectors gave evidence on site elaborating these concerns.

6 Following on from onsite discussions and a number of observations made by myself as to possible means of mitigating the impacts on the neighbours and satisfying the objective of the residential zone as to the character of the area, the appeals were adjourned to allow the applicant to prepare amended plans. Since that time a number of amended plans have been prepared and considered. When the hearing resumed today, the applicant provided a further amended plan that retains the retaining walls but lowers the backyard to a significant extent by the removal of fill and the provision of steps to provide access from the house to the lowered backyard.

7 Resident objectors, Mr J Chen of 38 Romani Avenue, and Mr J Zahara of 36 Romani Avenue, gave evidence as to their continuing concerns about loss of privacy and the unsatisfactory appearance of the wall, especially if there is to be a privacy screen on top of it. Mr Chen accepted that if I were to approve the wall in its present form, he would agree to it being cement rendered to improve its appearance.

8 The applicant’s structural engineer, Mr M Xu, provided a structural engineer’s certification that the structural elements of the retaining walls comply with the relevant provisions of the Building Code of Australia and the applicable Australian standards. The work had been inspected by him and found to be structurally adequate. He also gave evidence that he had inspected the work while the walls were being built and that appropriate subsoil drainage had been provided. I do now note that these matters are of less concern now that a significant quantity of fill has been removed.

9 During the hearing, the council’s town planner, Ms L Loch, and the applicant’s town planner, Mr M Buckley, gave evidence to the effect that the present arrangement as exists did result in the overlooking of neighbouring properties and agreed that changes were required to mitigate this problem. Their evidence resulted in amendments to the original proposal and the production of a concept plan which has progressively been amended during adjournments of the hearing, resulting in the revised plan (Exhibit H).

10 This plan has now formed the basis of consent orders and, having considered this plan in the light of the applicable planning controls and the concerns of the neighbours, I am satisfied that in the circumstances it now warrants approval.

11 The Orders of the Court will be that both appeals are upheld in the manner of the consent orders provided which are Exhibit 9.

___________________

T. Bly
Commissioner of the Court

DK

05/09/2007 - Wrong judgment loaded into Caselaw - Paragraph(s) whole document