Ghaderi-Araghi v Ku-ring-gai Council [2005] NSWLEC 39

Ghaderi-Araghi v Ku-ring-gai Council [2005] NSWLEC 39

The visible portions of the colorbond fence adversely affected the leafy residential streetscape and should be removed or replaced with brushwood fencing, but a fence was justified along the right-of-way and a limited front brushwood fence was appropriate because of the site's circumstances and the applicant's need to store garbage bins; the remaining side colorbond fencing did not require demolition, and the building certificate appeal should succeed subject to engineering verification of structural stability.

Jurisdiction
Australia
Judgment Date
09 February 2005
Procedural Posture
Appeals Concerning a Development Application for a Fence, a S 121 Demolition Order, and a S 149 Building Certificate Under the Environmental Planning and Assessment Act / Ex Tempore Judgment Following on Site Hearing; Final Orders to Be Issued in Chambers After Receipt of Amended Plan and Engineer's Certificate
Outcome
Appeals upheld in part: the s 121 demolition order was upheld in part, the development application was approved in part subject to an amended plan, and the building certificate appeal was upheld subject to engineer's advice.
Legal Topics
['development Application for Fences' 'section 121 Order to Demolish' 'section 149 Building Certificate' 'residential Amenity' 'impact on Streetscape' 'structural Stability of Retaining Wall Foundation']
['planning and Environment Law' 'development Control' 'building Certification'] ['development Application for Fences' 'section 121 Order to Demolish' 'section 149 Building Certificate' 'residential Amenity' 'impact on Streetscape' 'structural Stability of Retaining Wall Foundation']

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

Appeals Concerning a Development Application for a Fence, a S 121 Demolition Order, and a S 149 Building Certificate Under the Environmental Planning and Assessment Act / Ex Tempore Judgment Following on Site Hearing; Final Orders to Be Issued in Chambers After Receipt of Amended Plan and Engineer's Certificate

Legal Issues

  1. 1 ['Whether the existing colorbond fence should be demolished because of its impact on residential amenity and the streetscape.' 'Whether replacement or altered fencing should be approved for the front and side boundaries of 7 Camden Gardens, North Turramurra.' 'Whether the council should issue a building certificate under s 149 subject to evidence of structural stability of the retaining wall foundation.']

Ratio Decidendi

The visible portions of the colorbond fence adversely affected the leafy residential streetscape and should be removed or replaced with brushwood fencing, but a fence was justified along the right-of-way and a limited front brushwood fence was appropriate because of the site's circumstances and the applicant's need to store garbage bins; the remaining side colorbond fencing did not require demolition, and the building certificate appeal should succeed subject to engineering verification of structural stability.

Court Disposition

Appeals upheld in part: the s 121 demolition order was upheld in part, the development application was approved in part subject to an amended plan, and the building certificate appeal was upheld subject to engineer's advice.

Orders

  • ['The appeal in respect of the s 121 Order to demolish the fence is upheld in part.' 'The appeal in respect of the development application for front and side fences to the property known as 7 Camden Gardens, North Turramurra, is approved in part, subject to the receipt of an amended plan.' "The appeal in respect of...