Evenden v Pittwater Council [2009] NSWLEC 1174

Evenden v Pittwater Council [2009] NSWLEC 1174

The proposed 1.8m high fence did not reasonably satisfy the Tenacity view sharing principle or the desired future character controls because it would severely affect valued oblique views toward Careel Bay moorings from No 88 and would be visually prominent in a predominantly open foreshore area. However, a modified open fence of reduced height and length would provide a reasonable compromise between privacy and view sharing and could be approved subject to conditions.

Jurisdiction
Australia
Judgment Date
04 June 2009
Procedural Posture
Appeal Against Council's Refusal of a Development Application / Final Judgment After Hearing
Outcome
Appeal upheld; development consent granted subject to conditions requiring a modified fence specification.
Legal Topics
['height of Fence in Foreshore Scenic Protection Area' 'view Impact' 'view Sharing' 'desired Future Character' 'coastal Protection']
['environmental Planning and Assessment' 'land and Environment' 'development Consent'] ['height of Fence in Foreshore Scenic Protection Area' 'view Impact' 'view Sharing' 'desired Future Character' 'coastal Protection']

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Procedural Posture

Appeal Against Council's Refusal of a Development Application / Final Judgment After Hearing

Legal Issues

  1. 1 ['Whether consent should be granted for a 1.8m high by 6.2m long fence adjacent to the rear portion of 90 George Street, Avalon.' 'Whether the proposed fence would unreasonably restrict views from neighbouring properties, particularly No 88 George Street.' 'Whether the proposed fence was consistent with the character of the waterfront area and applicable development controls.']

Ratio Decidendi

The proposed 1.8m high fence did not reasonably satisfy the Tenacity view sharing principle or the desired future character controls because it would severely affect valued oblique views toward Careel Bay moorings from No 88 and would be visually prominent in a predominantly open foreshore area. However, a modified open fence of reduced height and length would provide a reasonable compromise between privacy and view sharing and could be approved subject to conditions.

Court Disposition

Appeal upheld; development consent granted subject to conditions requiring a modified fence specification.

Orders

  • ['The appeal is upheld.' 'Consent is granted to DA No NO557/08 for the construction of a timber fence adjacent to the Pittwater Waterway at 90 George Street, Avalon in accordance with conditions in Annexure A.' 'The exhibits may be returned except for 1, 3, A and C.']