Farrid Farahbakht and Mrs Minoo Amini v Ku-ring-gai Council [2006] NSWLEC 137

Farrid Farahbakht and Mrs Minoo Amini v Ku-ring-gai Council [2006] NSWLEC 137

While the fence was not exempt from development application requirements and the council order was properly issued, the lychgate should be removed as it would not be likely approved in an area where front fences are discouraged; the replacement of the original fence is allowed to remain as it is similar in character to the original, provided it is painted in Brunswick Green and maintained.

Parties
Applicant: Farrid Farahbakht; Applicant: Minoo Amini; Respondent: Ku-ring-gai Council
Jurisdiction
Australia
Judgment Date
24 March 2006
Procedural Posture
Appeal / Final Judgment
Outcome
appeal dismissed; council order modified
Legal Topics
Development Application, Unauthorised Works, Front Fences, Local Planning Controls, Maintenance Vs New Work
Planning and Environment Law Development Application Unauthorised Works Front Fences Local Planning Controls Maintenance Vs New Work

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 3 Authorities cited 4 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Farrid Farahbakht

Applicant

Minoo Amini

Applicant

Ku-ring-gai Council

Respondent

Procedural Posture

Appeal / Final Judgment

Legal Issues

  1. 1 Whether the allegedly unauthorised front fence should be removed
  2. 2 Whether the works constituted necessary repairs and maintenance not requiring development application

Ratio Decidendi

While the fence was not exempt from development application requirements and the council order was properly issued, the lychgate should be removed as it would not be likely approved in an area where front fences are discouraged; the replacement of the original fence is allowed to remain as it is similar in character to the original, provided it is painted in Brunswick Green and maintained.

Court Disposition

appeal dismissed; council order modified

Orders

  • The appeal under s 121ZK of the Environmental Planning and Assessment Act 1979 is dismissed.
  • The council order No 2006/003 is modified under s 121ZK 4(c); the appellant is ordered to remove the lychgate to the Yarrara Road frontage; the existing front fence on Yarrara and Yanko Road frontages is allowed to remain but must be painted in Brunswick Green within 30 days and maintained.