Carvouni v Kiama Council [2008] NSWLEC 1262

Carvouni v Kiama Council [2008] NSWLEC 1262

The structure was within the front setback area, was for privacy, and was more akin to a privacy screen. Even if characterised as a fence, it was not exempt development because DCP 20, sensibly construed, requires consent for structures in the front of properties other than boundary fences less than 1m in height. As no approval had been granted, Order No. 2 requiring demolition and removal had to be upheld.

Jurisdiction
Australia
Judgment Date
16 June 2008
Procedural Posture
Appeal Against Order No. 2 Under Part 6 of the Environmental Planning and Assessment Act 1979 Requiring Demolition of Timber Screen Fencing / Ex Tempore Judgment After Hearing
Outcome
Appeal dismissed; Order No. 2 upheld with compliance by 1 September 2008.
Legal Topics
['exempt Development' 'demolition Order' 'fences and Privacy Screens' 'development Control Plans']
['planning and Environment Law' 'development Control' 'local Government Enforcement'] ['exempt Development' 'demolition Order' 'fences and Privacy Screens' 'development Control Plans']

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

Appeal Against Order No. 2 Under Part 6 of the Environmental Planning and Assessment Act 1979 Requiring Demolition of Timber Screen Fencing / Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ['Whether the timber screen fencing was a fence or a privacy screen.' 'Whether the structure was exempt development under s 2.3 of Kiama Development Control Plan No. 20.' 'Whether Order No. 2 requiring demolition and removal of the timber screen fencing should be upheld.']

Ratio Decidendi

The structure was within the front setback area, was for privacy, and was more akin to a privacy screen. Even if characterised as a fence, it was not exempt development because DCP 20, sensibly construed, requires consent for structures in the front of properties other than boundary fences less than 1m in height. As no approval had been granted, Order No. 2 requiring demolition and removal had to be upheld.

Court Disposition

Appeal dismissed; Order No. 2 upheld with compliance by 1 September 2008.

Orders

  • ['The appeal is dismissed.' 'The applicant comply by 1 September 2008 with the Order No. 2 under Part 6 Division 2A of the Environmental Planning and Assessment Act 1979 issued by Council on 7 February 2008 to demolish and remove the timber screen fencing located between the existing dwelling and the Pacific Avenue...