Comino v Ku-Ring-Gai Council [2007] NSWLEC 145

Comino v Ku-Ring-Gai Council [2007] NSWLEC 145

The combined height of about 3 m for the fence and retaining wall had an unacceptable appearance from 25A Awatea Road and was inconsistent with the relevant planning requirements, but the planter bed condition was not the best compromise. Deleting that condition and limiting the fence to a maximum height of 1.5 m in the north-east area of the site appropriately balanced the visual impact on 25A Awatea Road with an acceptable level of privacy for 25 Awatea Road.

Jurisdiction
Australia
Judgment Date
23 March 2007
Procedural Posture
Development Application Appeal Against Imposition of a Condition on Consent / Final Judgment After on Site Hearing
Outcome
Appeal upheld; development application approved subject to conditions in Annexure A.
Legal Topics
['development Application' 'boundary Fencing' 'residential Amenity' 'privacy' 'bulk and Scale' 'development Control Plan Compliance']
['planning and Environment Law'] ['development Application' 'boundary Fencing' 'residential Amenity' 'privacy' 'bulk and Scale' 'development Control Plan Compliance']

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Procedural Posture

Development Application Appeal Against Imposition of a Condition on Consent / Final Judgment After on Site Hearing

Legal Issues

  1. 1 ['Whether the condition requiring a 450 mm x 7.0 m planter bed on the eastern boundary should be imposed on the development consent for boundary fencing.' 'Whether the combined height and appearance of the fence and retaining wall would unacceptably affect the amenity of 25A Awatea Road and be inconsistent with applicable planning controls.' 'What compromise should be made between reducing the height and bulk of the fence as viewed from 25A Awatea Road and maintaining privacy for 25 Awatea Road.']

Ratio Decidendi

The combined height of about 3 m for the fence and retaining wall had an unacceptable appearance from 25A Awatea Road and was inconsistent with the relevant planning requirements, but the planter bed condition was not the best compromise. Deleting that condition and limiting the fence to a maximum height of 1.5 m in the north-east area of the site appropriately balanced the visual impact on 25A Awatea Road with an acceptable level of privacy for 25 Awatea Road.

Court Disposition

Appeal upheld; development application approved subject to conditions in Annexure A.

Orders

  • ['The appeal is upheld.' 'DA 0660/06 for the construction of a fence along the northern and eastern boundaries of 25 Awatea Road, St Ives is approved subject to the conditions in Annexure A.' 'The exhibits are returned.']