Chen v Ku-ring-gai Municipal Council [2007] NSWLEC 867

Chen v Ku-ring-gai Municipal Council [2007] NSWLEC 867

The existing 2.25 m vehicular gate was not acceptable in the present streetscape setting, but because the gate was set back significantly from the street and the surrounding fencing and gating arrangements were varied, a reduction to 1.8 m was unnecessarily severe; a maximum height of 1.95 m was appropriate and a longer compliance period should be allowed.

Jurisdiction
Australia
Judgment Date
26 September 2007
Procedural Posture
Appeal Pursuant to S 101 ZK of the Environmental Planning and Assessment Act 1979 Against an Order Issued Under S 121 B of the Act / Extempore Judgment
Outcome
The order issued on 18 June 2007 was set aside and substituted with a modified order.
Legal Topics
['s 121 B Order' 'gate Height' 'streetscape Impact' 'development Control Plan']
['planning and Environment' 'local Government'] ['s 121 B Order' 'gate Height' 'streetscape Impact' 'development Control Plan']

Case Brief

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Procedural Posture

Appeal Pursuant to S 101 ZK of the Environmental Planning and Assessment Act 1979 Against an Order Issued Under S 121 B of the Act / Extempore Judgment

Legal Issues

  1. 1 ["Whether the Council's order requiring removal of portions of metal grille gates above a specified height should be upheld or varied." 'What height was appropriate for the metal vehicular gate and associated post in the streetscape context of the premises.']

Ratio Decidendi

The existing 2.25 m vehicular gate was not acceptable in the present streetscape setting, but because the gate was set back significantly from the street and the surrounding fencing and gating arrangements were varied, a reduction to 1.8 m was unnecessarily severe; a maximum height of 1.95 m was appropriate and a longer compliance period should be allowed.

Court Disposition

The order issued on 18 June 2007 was set aside and substituted with a modified order.

Orders

  • ['Reduce the height of the metal vehicular gate and associated post on the southern end of the existing gate to no more than 1.95 metres above ground level at its present location.' 'The period for compliance with the order is amended to 120 days from the date of the formal orders being issued by the Court.']