Frith v Ku-ring-gai Council [2020] NSWLEC 1588

Land and Environment Court New South Wales

Medium Neutral Citation: Frith v Ku-ring-gai Council [2020] NSWLEC 1588 Hearing dates: 18 November 2020 Date of orders: 26 November 2020 Decision date: 26 November 2020 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The appeal is dismissed. (2) Consent to modify development consent DA0433/18 seeking to enclose the timber inlays for the approved front fence and widen the existing sandstone wall on the land being Lot C in DP 414544 and being the land known as No 28A Water Street, Wahroonga, is refused. Catchwords: DEVELOPMENT APPLICATION – Wahroonga heritage conservation area – modification application – whether minimal environmental impacts – front fence and gates Legislation Cited: Environmental Planning and Assessment Act 1979 Ku-ring-gai Local Environmental Plan 2015 Texts Cited: Ku-ring-gai Development Control Plan Category: Principal judgment Parties: Adam Frith (First Applicant) Lucy Frith (Second Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: D Baird (Solicitor) (Applicant) J Ede (Solicitor) (Respondent)

Solicitors: Baird Lawyers (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2019/247525 Publication restriction: No

Judgment 1. COMMISSIONER: Mr Adam Frith and Ms Lucy Frith (the Applicants) are the owners of the property at 28A Water Street, Wahroonga (the site). The Applicants wish to modify development consent DA0433/18 granted by Ku-ring-gai Council (the Respondent), and now bring an appeal under s 4.55(1A) of the Environmental Planning and Assessment Act 1979 (EPA Act) in respect of the refusal by the Respondent for changes to the approved front fence and existing sandstone wall (the modification application). 2. In particular, the modification application seeks to: 1. Enclose the approved vehicular gates, pedestrian gate and fence by deleting the requirement in Condition 8 for 30mm gaps between the 1.6m high vertical slats. 2. Delete the requirement in Condition 8 for the timber inlay at the top of the vehicular gates to be painted black. 3. Widen the driveway opening in the existing sandstone wall from 3.45m to 4.3m by demolishing parts of the sandstone wall. 1. The background facts and contentions as set out by the Respondent are contained in the Statement of Facts and Contentions marked Exhibit 1. 2. The conditions sought to be modified by the appeal are in the following terms: 1. Condition 7 is in the following terms: "7. Existing front low sandstone wall The existing front low sandstone wall on either side of the driveway is to be retained. Reason: To protect the historic and aesthetic significance of the heritage conservation area." 1. Condition 8 is in the following terms: "8. 1.8m high fence and gates The proposed vehicular gates, pedestrian gate and fence are to be modified to remove the solid elements and replace them with transparent elements, as details: A 1.6m high timber framed section with open slats (70x22mm) with 30mm gaps between and painted black; 1 200mm open timber framed inlay above, painted black; and The gates are to be hinged opening into the property. Reason: To protect the historic and aesthetic significance of the heritage conservation area."