Porter v Waverley Council [2009] NSWLEC 1300

Porter v Waverley Council [2009] NSWLEC 1300

Because the spa and decking occupied approximately 50% of the significant fig tree's critical root zone and the spa's location affected neighbouring amenity through sound transmission, the appropriate outcome was not simple confirmation of the existing demolition order but discharge of that order and replacement with a new order requiring relocation of the spa, partial removal of decking, root-zone remediation, screening and roofing works, operating-hour restrictions, and lodgement of a development application and building certificate.

Jurisdiction
Australia
Judgment Date
08 September 2009
Procedural Posture
Appeal Section 121 B Order / Extempore Judgment After Conciliation Phase Under S 34(3) of the Land and Environment Court Act 1979
Outcome
The existing order was to be discharged and replaced with a new order; the matter was set down for mention to settle revised orders, with provision for orders to be made in chambers if agreed orders were provided earlier.
Legal Topics
['development Consent' 'demolition Order' 'unauthorised Deck and Spa' 'tree Root Zone Protection' 'neighbour Amenity' 'conciliation Evidence']
['planning and Environment' 'local Government' 'land and Environment Court Procedure'] ['development Consent' 'demolition Order' 'unauthorised Deck and Spa' 'tree Root Zone Protection' 'neighbour Amenity' 'conciliation Evidence']

Case Brief

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Procedural Posture

Appeal Section 121 B Order / Extempore Judgment After Conciliation Phase Under S 34(3) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the Council order requiring demolition of a deck and spa erected without development consent should be maintained or replaced.' "Whether relocation of the spa and removal of part of the deck were appropriate to protect the significant fig tree's critical root zone." 'Whether additional structures and operating restrictions were required to protect neighbouring amenity.']

Ratio Decidendi

Because the spa and decking occupied approximately 50% of the significant fig tree's critical root zone and the spa's location affected neighbouring amenity through sound transmission, the appropriate outcome was not simple confirmation of the existing demolition order but discharge of that order and replacement with a new order requiring relocation of the spa, partial removal of decking, root-zone remediation, screening and roofing works, operating-hour restrictions, and lodgement of a development application and building certificate.

Court Disposition

The existing order was to be discharged and replaced with a new order; the matter was set down for mention to settle revised orders, with provision for orders to be made in chambers if agreed orders were provided earlier.

Orders

  • ['The spa is to be rotated by 90° and moved so that its western edge is adjacent to the small retaining wall to the garden near the stairs to the house, with a small gap to the southern fence.' 'A lapped and capped timber fence is to be erected to the east of the spa, separated from it by about 300 mm, commencing...