Kelly v Ku-ring-gai Council [2012] NSWLEC 1336

Land and Environment Court New South Wales

Medium Neutral Citation: Kelly v Ku-ring-gai Council [2012] NSWLEC 1336 Hearing dates: 7 December 2012 Decision date: 07 December 2012 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is upheld, in part. 2. The order issued by the Respondent on 10 July 2012 is amended in the following respects: (a) The timber side boundary fence on the boundary common with the public walkway is to be lowered to a maximum height of 1800 mm behind the existing building line. (b) The timber side boundary fence common with the public walkway is to be scaled down from the building line to just above the post on the existing fence at the street frontage. (c) The work at the subject of the order is to be completed within 3 months of the date of these orders. 3. No order as to costs. Catchwords: CONSENT ORDERS: appeal against order requiring amendments to height of side boundary fence Legislation Cited: Environmental Planning and Assessment Act 1979 Ku-ring-gai Residential Design Manual Development Control Plan No. 38 Practice Note Class 1 Development Appeals State Environmental Planning Policy (Exempt and Complying Development Codes) Category: Principal judgment Parties: Brent Kelly and Lisa Kelly (Applicants) Ku-ring-gai Council (Respondent) Representation: Mr K Williams, solicitor (Applicants) Mrs L Finn, solicitor (Respondent) Solicitors A.C.Knibb Kaine & Associates (Applicants) HWL Ebsworth Lawyers (Respondent) File Number(s): 10804 of 2012

Judgment 1COMMISSIONER: This appeal relates to an Order under Item No 13 of the Orders Table of s 121B of the Environmental Planning and Assessment Act 1979. The Order seeks: 1. The timber side boundary fence on the boundary common with the public walkway is to be lowered to a maximum height of 1200 mm within the building line setback. 2. The timber side boundary fence on the boundary common with the public walkway is to be lowered to a maximum height of 1800 mm behind the existing building line. 3. The timber side boundary fence on the boundary common with the public walkway must be constructed on the boundary common and not wholly on the public land. A survey report must be submitted confirming the fences location. 2The site is 1 Sutherland Avenue Wahroonga and the fence, the subject of the appeal, is on the side boundary of the property and adjoins a public walkway. The fence was constructed at a height of 2.1 m for its entire length, including the part within the building line setback. 3The council maintains that the fence, as constructed, does not comply with the 1800 mm standard in cl 2.34 of State Environmental Planning Policy (Exempt and Complying Development Codes). Further, the fence does not comply with cl 4.1.5 for side and rear fences in the Ku-ring-gai Residential Design Manual Development Control Plan No. 38 as fences are to be 1.2 m in height forward of the building line and 1.8 m behind the building line. The effect of the existing 2.1 m fence is that the fence will have an adverse impact on visual character of the area. 4Prior to the hearing the parties decided to enter into Consent Orders. In this regard the Court's Practice Note Class 1 Development Appeals (the Practice Note) relevantly provides [at 36]: 36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: (i) the content of the proposed orders (including the proposed conditions of consent); (ii) the date of the hearing by the Court to consider making the proposed consent orders; and (iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary. 5In summary, the Practice Note requires: * evidence to show that approval is lawful and appropriate including whether any statutory provisions have been complied with; * whether any objection has properly been taken into account; and * whether reasonable notice has been given to all persons who objected to the proposal, the date of the hearing and the opportunity to be heard at the hearing. 6In considering the requirements in the Practice Note, I am satisfied that the approval is lawful and appropriate in the circumstances. I note that no objections were received by the council in relation to the fence so no issues arise regarding notification of objectors or the opportunity be heard at the hearing. 7On this basis, there is no reason why the Consent Orders should not be made. 8The Orders of the Court, by consent, are: 1. The appeal is upheld, in part. 2. The Order issued by the Respondent on 10 July 2012 is amended in the following respects: (a) The timber side boundary fence on the boundary common with the public walkway is to be lowered to a maximum height of 1800 mm behind the existing building line. (b) The timber side boundary fence common with the public walkway is to be scaled down from the building line to just above the post on the existing fence at the street frontage. (c) The work at the subject of the order is to be completed within 3 months of the date of these orders. 3. No order as to costs. __________ G T Brown Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 December 2012