Zounis v City of Sydney Council

[2008] NSWLEC 1489

Land and Environment Court

of New South Wales

CITATION:

Zounis v City of Sydney Council [2008] NSWLEC 1489

PARTIES:

APPLICANT
Michael Zounis

RESPONDENT
City of Sydney Council

FILE NUMBER(S):

10848 of 2008

CORAM:

Taylor C

KEY ISSUES:

Building Certificate :- for a masonry fence

LEGISLATION CITED:

Land and Environment Court Act 1979
Leichhardt Local Environmental Plan 2000
Leichhardt Development Control Plan
City of Sydney Heritage Development Control Plan

DATES OF HEARING:

5/12/08, 12/12/08, 15/12/08

 
DATE OF JUDGMENT: 

15 December 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr Zounis (litigant in person)

RESPONDENT
Mr Kondilios, Solicitor
of Maddocks Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Taylor C

15 December 2008

10848 of 2007 Michael Zounis v City of Sydney Council

JUDGMENT

This decision arose following the termination of the conciliation phase of a s 34 conference held on site on December 5 2008.

1 Commissioner: This is an appeal against a refusal by the City of Sydney Council (the Council) of Building Certificate BC/2007/99 for a masonry fence at the dwelling of 38 Junction Street, Forest Lodge, Sydney. The matter before the Court on December 5, 2008 commenced initially as an on-site s34 conciliation conference with Mr Zounis (applicant) and Mr Kondilios (respondent) present. The parties could not come to agreement so the conciliation phase of the conference was terminated.

2 The parties agreed for the Commissioner to proceed to a binding decision under s 34 (4b) of the Land and Environment Court Act 1979. This judgment is under s 34 (5) of the Act.

The Proposal

3 The applicant has appealed against the actual refusal of the council to provide a building certificate (BC/2007/99) for the 1750 mm solid street front masonry fence/wall that has already been constructed by the applicant without development consent. The fence is a brick and masonry structure with three solid recessed rectangles approximately 1.2 m x 0.6 m in size.

Site location and Background

4 I had the benefit of visiting the site on December 5 2008. Both parties had the opportunity to explain various structures, items and features of the dwelling, the immediate area around the site and as well in the neighbouring locality that they considered pertinent to the matter.

5 The site is located within the City of Sydney boundary and is on land zoned residential (2a). The majority of the street contains land zoned for residential purposes and is dominated by Victorian cottages or two storey dwellings. There is also vacant residential land to the south of the site that is used currently as a car park area. Junction Street immediately to the north of number 38 is accessible only to traffic travelling south from Pyrmont Bridge Road. Cars travelling north towards Pyrmont Bridge Road are forced to stop and undertake a three point turn using the access points to Horseshoe Lane and Lock Lane in front of and immediately adjacent to 38 Junction Street.

6 The original application for a Building Certificate raised a number of issues/contentions that can be summarised as follows:

a The front fence does not comply with the requirements of section B1.7 of the Leichhardt 2000 DCP.
b The council contends the fence should be constructed as per the development controls and that its height and design are unsuitable for the location and would result in an adverse impact on the immediate streetscape.
c The front fence detracts from the design and appearance of the dwelling and surrounding buildings and its design does not complement the architectural styles of the local area, which falls within the Glebe and Forest Lodge Conservation area.

7 The relevant statutory planning framework and controls with respect to the appeal are as follows:

a The Leichhardt Local Environmental Plan 2000 (the LEP)
b Leichhardt Development Control Plan (the DCP)
c City of Sydney Heritage Development Control Plan (the Heritage DCP)

8 The jurisdiction for the area changed in approximately May 2003 from the Leichhardt City Council to the City of Sydney Council, however the City of Sydney has adopted both the Leichhardt DCP and the City of Sydney Heritage DCP.

9 It is worth noting that the controls in the DCP and the Heritage DCP with respect to fences (clause 8.6) are broadly similar, particularly in regard to the maximum height of front fences to be no more than 1200 mm. Original fences should be repaired or retained or that replacement fences should complement the original fencing and relate to the architectural style of the dwelling. Supporting posts and piers are excluded from this requirement and in the Heritage DCP, but they may be no higher than 1500 mm.

10 In both the DCP documents it states that fences should be open or partially transparent in style. The Heritage DCP states that solid masonry fences should not exceed 900 mm in height while the DCP states the following at clause B1.7 (page B20):

Fencing should not block views from the dwelling out towards the street. Where the main private open space of the dwelling is orientated to the street frontage screening higher than 1.2 metres is permissible. However, a minimum of the 50% of the screen is to be transparent, and some surveillance of the street should be maintained from the dwelling.

11 The dwelling and the locality are not heritage items per se but they are located within LEP 2000 Heritage and Conservation Map Issued January 2000. In addition, the City of Sydney’s Glebe and Forest Lodge Building Contribution Map (exhibit 5) shows that the dwelling at 38 Junction Street is listed as a contributory item as is much of adjacent locality. The Building Contribution Map lists some detracting elements on the western side of the street to the south of the site. These are associated with the vacant residential zoned area currently used as car park.

12 The council contended that the fence should not be retained because it is non-compliant with the controls of the DCP. The council contended how the streetscape of Junction Street was dominated with a range of picket or cast iron palisade style fences traditional of the Victorian or Federation period. It was noted that B1.7 (page B20) of the DCP identifies four principle reasons for these controls on fences:

• to maintain the character of the existing streetscape;
• to ensure that fencing heights and material types are similar to existing fences in the street;
• to ensure that fencing heights allow for privacy between dwellings and public accessible paths, while not obstructing the view of the building façade and street surveillance; and
• to encourage sympathetic restoration and removal of unsympathetic fencing.

13 In particular, the council brought the court’s attention to point four of the controls and the need to not obstruct the view of the building façade as well as the ability of residents to be able to view the street.

14 The council contended that the proposed fence was unnecessary as the primary private open space was at the rear of the dwelling. It was argued that the council had already deviated from DCP control B1.7 in the extant development approval D/2006/2330 part (2) (a) for 38 Junction Street. This consent required (Exhibit 2, pp. 105):

The wall must be demolished within 3 months of the date of this determination [4 may 2007] and may be replaced with a traditional style iron palisade fence with a masonry base to a maximum height of 1200mm with posts and piers no higher than 1500mm.

15 The council contended the front courtyard was not primary open space and fences needed to enable the public to be able to read the house and to not isolate it. It was argued further that the fences along the street were mainly picket and wrought iron fences and that the council has already relaxed significantly its building controls compared to the requirements of the DCP in the approval of the applicant’s May 4th 2007 development application.

16 The applicant explained the history of the development application process and the principle reasons why the fence should be approved. In essence these can be summarised as follows:

• The front wall is compatible and complements the streetscape.
• The front wall provides efficient use of the front court yard area.
• The front wall provides enhanced security and privacy.
• The front wall mitigates traffic movement in the adjoining laneway.

17 The applicant contended that the various architectural components present in the streetscape have changed and in many cases have not been preserved in Junction Street. In particular, attention was drawn to 36 Junction Street where there exists a masonry fence of approximately the same height as that applied for here. The exact construction date of this fence is not known, but its construction occurred before either the DCP or the Heritage DCP was initiated in 2000 and 2006, respectively.

18 Other fences and walls were shown during the site visit and referred to during proceedings to provide examples as to why the applicant contended his fence would not set a precedent. At 14 Short Street some 200 m distant from the site, the parties viewed a fence of very similar style, form and structure to that prosed in the Building Certificate application. The applicant stated that this was the inspiration for his fence design.

19 It was further contended by the applicant that the character of the street is what is present currently in Junction Street and that these modern elements should form part of the conservation aspects of the area.

20 The applicant agreed the fence did not meet the fourth point in the DCP guidelines (B1.7) (paragraph 12). However, the applicant contended that the first three objectives were achieved and that the fence will allow for views of the street while meeting privacy needs of users of the front room of the dwelling, which is used as a bedroom.

21 The applicant also noted that there was a need to enhance the provision of private space at the front of the dwelling because the rear court yard space was occupied as a result of its use for off street parking.

22 The applicant explained during the site visit and in court of how the house was affected by traffic movements. While at the site, the court had the benefit of having a car undertake a reversing manoeuvre opposite his dwelling and down Lock Lane. The applicant explained how the fence as designed and requested in the Building Certificate application would mitigate car noise, fumes and lights of street vehicles.

23 The applicant explained and provided supporting letters from several neighbouring properties of Junction Street in support of his proposal. Some, but not all of these were pro-forma letters prepared by the applicant. Amongst other matters the residents contended that the fence was in keeping with the current streetscape.

Assessment and findings

24 In my assessment of the competing needs of the applicant’s private requirements and the broader public interests associated with the controls, conservation matters and DCP objectives, I consider the proposal for a 1750 mm fence is excessive in these circumstances.

25 The height and non-permeability of the fence does not allow for sufficient viewing of the building façade, particularly given the low elevation of the dwelling relative to some of the neighbouring buildings with relatively high fences.

26 Notwithstanding the immediate neighbouring fence, which was constructed well before the current controls came into force, the retention of the structure as it is would amount to a sub-optimal outcome as far as the streetscape is concerned, since it would detract from the architectural aesthetics of the property.

27 However, bearing in mind the discretion that is available in the DCP and the court as the consent authority, I think that a 1500 mm fence represents a reasonable balance between streetscape considerations and privacy requirements. Such a fence will be more compatible with the other nearby building elements.

28 Clause B1.7 of the DCP notes that notes that fences should be at least 50 % transparent. I do not consider the proposed solid 1750 mm fence will not allow sufficient opportunity to view the building façade and street surveillance and nor does it reflect the other objective of encouraging sympathetic restoration.

29 A reasonable balance can be achieved if the three recessed panels on the existing solid fence are made open and the openings are replaced with iron palisades that are similar to those on the current windows at the front of the dwelling.

30 This discretion is reasonable because a fence of 1500 mm will provide an acceptable transition with the existing pre-DCP fence in the adjoining property. The alterations will provide an element of openness to the fence and complement the façade of the building, its age, style, architecture and will be in keeping with the majority of the current street.

31 The retention of fences that are complementary to Victorian style picket fences and Federation style cast iron palisade railings will help achieve architectural uniformity and cohesion in a conservation area that contains numerous contributing buildings.

32 Taking into consideration the DCP controls and objectives, I am satisfied that that the modified 1500 mm fence and the modified recessed panels ordered here will reasonably achieve the DCP objectives and simultaneously meet the needs and proposed usage of the front court yard.

33 This outcome, in my assessment, represents a reasonable balance between the owner’s need and desire for privacy and security as well as his concerns with respect to safety arising from the possible danger associated with vehicles reversing towards his property. It will also reach a balance since it will help maintain a satisfactory streetscape in the conservation area as identified in the LEP, DCP and Heritage DCP.

34 The orders of the Court are therefore:

1. The appeal is allowed in part.
2. Council is directed to issue a Building Certificate at 38 Junction Street, Forest Lodge, Sydney subject to the following:
a. The fence is to be reduced so as to have a maximum height of 1500 mm above natural ground level at street side both the Junction and Lock Lane sides of the property.
b. The provision of 3 wrought iron palisades of the same design as those on the front windows of the dwelling in place of the three recessed forms in the present fence.
c. Such work shall be completed within three months of this date.
3. The exhibits except Exhibit A, folio 16 (the plans for the building certificate) and Exhibit 2, folio 4, page 22 (the building certificate application) are to be returned.
_______________________
Dr Mark Patrick Taylor
Commissioner of the Court
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