Chi-Hsiung Hung and anor v Ku-ring-gai Council [2010] NSWLEC 1050

Chi-Hsiung Hung and anor v Ku-ring-gai Council [2010] NSWLEC 1050

The palisade style front fence and solid panelling, constructed significantly before the relevant planning controls, may remain due to their longevity and lack of prior council action, whereas later-constructed elements (lapped and capped fence, secondary gates, and portions exceeding 1.8m in height) conflict with current planning controls (DCP 38) and must be modified to comply, balancing regulatory requirements with fairness and streetscape impact.

Jurisdiction
Australia
Judgment Date
16 March 2010
Procedural Posture
Appeals Against Orders and Refusal of Building Certificate / Judgment
Outcome
Appeals upheld in part
Legal Topics
['modification of Unauthorised Construction' 'building Certificates' 'development Control Plans' 'streetscape Character' 'front Fence Compliance']
['environmental Law' 'planning Law' 'local Government Law'] ['modification of Unauthorised Construction' 'building Certificates' 'development Control Plans' 'streetscape Character' 'front Fence Compliance']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeals Against Orders and Refusal of Building Certificate / Judgment

Legal Issues

  1. 1 ['Whether the unauthorised front fence and associated works should be modified or removed pursuant to Council order' 'Whether a building certificate should be issued for the front fence and associated works']

Ratio Decidendi

The palisade style front fence and solid panelling, constructed significantly before the relevant planning controls, may remain due to their longevity and lack of prior council action, whereas later-constructed elements (lapped and capped fence, secondary gates, and portions exceeding 1.8m in height) conflict with current planning controls (DCP 38) and must be modified to comply, balancing regulatory requirements with fairness and streetscape impact.

Court Disposition

Appeals upheld in part

Orders

  • ['The appeal against the order is allowed in part; the order is modified so fence and structures above 1.8m must be reduced within 8 weeks, but the palisade style fence and panelling may remain.' 'The appeal against refusal of building certificate is allowed in part; council is directed to issue a building...