Land and Environment Court of New South Wales CITATION : Fisk v Ku-ring-gai Council [2007] NSWLEC 12 APPLICANT Graeme Fisk PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 10852 of 2006 CORAM: Hussey C KEY ISSUES: Development Application :- Time of consent, conditions relating to fencing works adjacent to council property Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No. 19 - Bushland in Urban Areas State Environmental Planning Policy No. 55 - Remediation of Land LEGISLATION CITED: Regional Environmental Plan - Hawkesbury- Nepean River No.20 - 1997 Ku-ring-gai Planning Scheme Ordinance - incorporating LEP's 182, 194, 197, 200, 201, 202 & 204 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Riparian Policy Development Control Plan 38 - Residential Design Manual DATES OF HEARING: 13 December 2006 DATE OF JUDGMENT: 12 January 2007 APPLICANT Mr G McKee, solicitor SOLICITORS McKees Legal Solution LEGAL REPRESENTATIVES: RESPONDENT Ms C Bracks, solicitor SOLICITORS Abbott Tout JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 12 January 2007 10852 of 2006 Graeme Fisk v Ku-ring-gai Council JUDGMENT Background 1 This appeal arose out of council's deemed refusal of development application for a new dwelling, entry cover, landscaping works including a small bridge over an existing watercourse and new boundary fencing at 4 Allard Ave, Roseville. 2 The application was subsequently granted conditional consent by Council and the appeal then related to objections to a number of conditions consent. Subsequent conferencing between the parties resolved the majority of the disputed conditions. Apart from this, I note that the nature of these works involves Integrated Development and that the Department of Natural Resources has agreed to imposition of its conditions of consent, which are maintained. 3 The remaining issues at the appeal concern: + The time period for the consent, whereby Council imposed a 2 year period, in accordance with its policies. Against this, the applicant submits the time period should be 5 years as provided for in the EP & A Act; + Conditions involving external works on council property involving tree removal and drainage infrastructure alterations; + Dissatisfaction with the following condition requiring the deletion of solid fencing along the common boundary with the council reserve – + 75 To ensure minimal environmental impact to the local creek ecosystem and flow of the creek the colour bond fence along the eastern boundary must be deleted. Details of which must be submitted to the Certifying Authority prior to the release of the Construction Certificate. 4 The parties agreed to the matter being determined by way of a binding s 34 Conference. The site 5 The subject site is located on the inside corner of Allard Ave between Babbage Road and Normac Street, Roseville. The site is irregular in shape having a curved street boundary and has an area of 1777 sq m. Dissecting the northern section of the subject site is an open drainage pipe into a creek system. The northern area is made up of rock outcrops and heavy vegetation, mostly of weed and exotic varieties. 6 Adjoining the subject site to the south east is a single dwelling house and to the east are open space recreation areas, mostly consisting of large trees and vegetation/bushland area. To the north, south and west are mostly single dwelling houses varying between single and two storeys, built from a variety of materials. The proposal 7 The description of the overall proposal is: The proposal is for alterations and additions to the existing dwelling, which comprises the following: + Construction of a covered entry, + Construction of a bridge over watercourse and retaining walls to the creek embankment, + Construction of a 1.8m chain wire boundary fence along the northern boundary, Extension to the existing eastern boundary fence over the riparian zone with a 1.8m high colour bond fence + Internal alterations- re-configuration of rooms, + Landscaping works focussed along the watercourse, Upgrade of existing drainage infrastructure. 8 However the conditions subject of this appeal, relate to the extent and specification for site fencing, landscaping and works adjacent to the creek and on the adjacent public roads. Planning controls + State Environmental Planning Policy No. 19 - Bushland in Urban Areas. + State Environmental Planning Policy No. 55 - Remediation of Land. + Regional Environmental Plan - Hawkesbury- Nepean River No.20 - 1997. + Ku-ring-gai Planning Scheme Ordinance - incorporating LEP's 182, 194, 197, 200, 201, 202 & 204. + Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 + Riparian Policy. + Development Control Plan 38 - Residential Design Manual. + Development Control Plan 40 - Construction and Demolition Waste Management. + Development Control Plan 47 - Water Management. + Development Control Plan 56 - Notification. Conclusions 9 The detailed evidence submitted in this matter is contained in council's bundle of documents (Exhibit 1). It contains a delegated officer's report, which provides a detailed assessment of the proposal. Photographs of the site were also presented. 10 Having considered the evidence and the submissions, my findings are: 10.1.1 Time of consent; no extraordinary circumstances were presented that would warrant a reduction in the 5 year period of consent allowed under the provisions of the Environmental Planning & Assessment Act . Whilst councils position is that it is reviewing its current policies and that the 2 year period is preferred to accommodate and allow for any changes, it seems to me reasonable that the applicant be able to proceed with this consent on the basis of some certainty, considering the public interest benefits in maintaining and controlling the weed infestation associated with the adjoining public reserve area. 10.2.1 External works; these objections concern the designation on the plan for removal of Coral trees on the footpath. Also the applicant's requirement for the imposition of condition 79A requiring Council to modify its existing drainage pit with an open grate on the road shoulder and also remove the existing safety bollard. 10.2.2 Following discussions at the appeal, this matter is resolved by the deletion of plan notes concerning removal of street trees and works on council footpath by the applicant. 10.2.3 The applicant's preference for imposition of a condition of consent requiring Council to modify its drainage pit and infrastructure appears to be outside the Courts authority in this appeal. Therefore the request for imposition of this draft condition requiring Council to undertake certain works in the public domain is declined. 10.3.1 Condition 75; this condition deals with the specification for the boundary fence between the subject property and Council public reserve. The applicant prefers this fence to be of a solid, colourbond nature so as to prevent the ingress of weed infestation from the public reserve, which is apparently not subject to any regular maintenance program. The fence is also required to contain property owner's animals. 10.3.2 Against this, the Council contends that an open style fence is required to enable the passage of identified fauna in this creek ecosystem. 10.3.3 Having considered these competing positions, it seems to me that a reasonable balance is to allow an open specification fence, such as a pool fence, which allows the fauna passage, contains the property owners animals and also represents a better public interest outcome in terms of the visual impact of the fencing structure in this local context. 10.3.4 Accordingly, this condition should be modified to reflect the requirement for the "open style/ pool" fence. Court orders 1. The appeal is allowed. 2. The conditions of consent for DA 446/06 are varied to allow for a 5 year period and Conditions 75 and 108 amended as follows: 75. To ensure minimal environmental impact to the flow of the creek and to the local creek ecosystem, the proposed fence along the Eastern boundary of the site shall be reduced in length to 7.5m between A and B as shown on drawing no. S00112406 dated 9 March 2006 and filed with the Court on 13 December 2006. The proposed fence shall be constructed of an open grill metal fence material, details of which shall be submitted to the PCA prior to the issue of the Construction Certificate. 108. Amended plans are to be prepared and submitted with the Construction Certificate, deleting all references to the removal of trees on Council land. 3. The exhibits may be returned except for A, B and 1. ___________________ R Hussey Commissioner of the Court rjs DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.