Taylor v Ku - ring - gai Council [2012] NSWLEC 1303

Taylor v Ku - ring - gai Council [2012] NSWLEC 1303

The proposed fencing was reasonably classified as side boundary fencing, and existing neighbourhood conditions and the controls indicated that 1.8 m fencing was generally acceptable. Along the northern boundary, the Council's town planner accepted that increasing the approved lapped and capped fence from 1.5 m to 1.8 m would not materially affect the amenity of 9 King Street. Along the eastern boundary, privacy was less critical and a 1.5 m fence with a 300 mm lattice panel would reasonably balance the applicant's privacy concerns with visual amenity. The appeal was therefore upheld and the conditions varied.

Jurisdiction
Australia
Judgment Date
02 November 2012
Procedural Posture
Class 1 Appeal Against Conditions of Development Consent for Boundary Fencing / Determination Following a Section 34 AA Conference With No Agreement
Outcome
Appeal upheld. Conditions varied.
Legal Topics
['development Consent Conditions' 'boundary Fencing Height and Design' 'heritage Item' 'streetscape Amenity' 'privacy and Visual Amenity']
['planning and Environment' 'heritage Conservation'] ['development Consent Conditions' 'boundary Fencing Height and Design' 'heritage Item' 'streetscape Amenity' 'privacy and Visual Amenity']

Case Brief

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Procedural Posture

Class 1 Appeal Against Conditions of Development Consent for Boundary Fencing / Determination Following a Section 34 AA Conference With No Agreement

Legal Issues

  1. 1 ['Whether the conditions of consent restricting the height and specification of boundary fencing at 12 King Street, Turramurra should be varied.' 'Whether the proposed fencing could reasonably be classified as side boundary fencing and assessed consistently with the applicable DCP controls.' "How to balance the applicant's privacy concerns against visual amenity, streetscape and heritage-related considerations."]

Ratio Decidendi

The proposed fencing was reasonably classified as side boundary fencing, and existing neighbourhood conditions and the controls indicated that 1.8 m fencing was generally acceptable. Along the northern boundary, the Council's town planner accepted that increasing the approved lapped and capped fence from 1.5 m to 1.8 m would not materially affect the amenity of 9 King Street. Along the eastern boundary, privacy was less critical and a 1.5 m fence with a 300 mm lattice panel would reasonably balance the applicant's privacy concerns with visual amenity. The appeal was therefore upheld and the conditions varied.

Court Disposition

Appeal upheld. Conditions varied.

Orders

  • ['The appeal is upheld.' 'The conditions in the development for proposed fencing at well King Street, Turramurra is varied as shown in Annexure "A".']