Hakim v Hunters Hill Council [2009] NSWLEC 1439

Hakim v Hunters Hill Council [2009] NSWLEC 1439

The proposed brushwood and acrylic screens were within the cl 18(5)(iii) height limit when measured from the public/street side, so the proposal was not prohibited and a SEPP 1 objection was not needed. However, assessed under the SREP, cl 18A of the LEP and the DCP, the brushwood screen significantly obscured...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
31 December 2009
Procedural Posture
Appeal From Refusal of Development Application Da09/11008 / Judgment After Hearing
Outcome
Appeal dismissed; development application refused.
Legal Topics
['fence Development Application' 'foreshore Building Line' 'foreshore Scenic Protection Area' 'public Domain Views to Lane Cove River' 'sydney Harbour Catchment Planning Controls' 'state Environmental Planning Policy No 1 Objection']
['environmental and Planning Law' 'development Consent' 'local Government Planning Controls'] ['fence Development Application' 'foreshore Building Line' 'foreshore Scenic Protection Area' 'public Domain Views to Lane Cove River' 'sydney Harbour Catchment Planning Controls' 'state Environmental Planning Policy No 1 Objection']

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Procedural Posture

Appeal From Refusal of Development Application Da09/11008 / Judgment After Hearing

Legal Issues

  1. 1 ['Whether consent could be granted for the approximately 18 m of brushwood fence already constructed' 'Whether the fence was located on council land and the consent of the Council as owner was required' 'Whether the existing brushwood fence and proposed acrylic screen were within the 10 m foreshore building line so that the proposal was prohibited unless a variation could be granted under State Environmental Planning Policy No 1' 'Whether the proposal would have an acceptable impact on views of Lane Cove River from the public domain including Angelo Street and the public reserve']

Ratio Decidendi

The proposed brushwood and acrylic screens were within the cl 18(5)(iii) height limit when measured from the public/street side, so the proposal was not prohibited and a SEPP 1 objection was not needed. However, assessed under the SREP, cl 18A of the LEP and the DCP, the brushwood screen significantly obscured public views of Lane Cove River and the acrylic screen did not protect or enhance the visual quality of the waterway or minimise impacts on views. The proposal therefore had unacceptable impacts on public domain views and should not be approved.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'Development application DA09/11008 for the use of an existing brush screen fence and installation of an acrylic screen on part of a palisade fence at Lot 102 DP 1067610, 1 Angelo Street Woolwich, is refused.' 'The exhibits, other than Exhibit C, are returned.']