Land and Environment Court of New South Wales CITATION : Murtough v Randwick City Council [2004] NSWLEC 505 APPLICATION Christopher George Murtough PARTIES : RESPONDENT Randwick City Council FILE NUMBER(S) : 10521 of 2004 CORAM: Murrell C KEY ISSUES: Appeal :- s 121(b) order issued by Randwick City Council on 8 April 2004. Erection of retaining wall without approval. Impact on adjoining properties. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Randwick LEP 2000 CASES CITED: DATES OF HEARING: 6/09/04 EX TEMPORE 09/06/2004 JUDGMENT DATE : APPLICANT Mr C G Murtough, litigant in person LEGAL REPRESENTATIVES: RESPONDENT Mr A. Pickles, barrister instructed by Bowen & Gerathy Solicitors JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 6 September 2004 10521 of 2004 Murtough C. G. –v- Randwick City Council JUDGMENT 1 This verbal judgment is for an appeal against a s 121(b) order issued by the Randwick City Council on the 8 April 2004 in respect of the property known as 91 St Marks Road, Randwick. 2 The issue in these proceedings is whether the impact of the retaining wall as constructed is excessive in terms of the amenity on the adjoining neighbours and whether in fact the impact of the retaining wall in particular where it adjoins 11A Farnham Avenue, is unreasonable. The Court had the benefit of a view and a site inspection and the parties also provided the Court with material to assist in its decision. 3 At the end of the day the applicant, Mr Murtough, who represented himself in these proceedings has agreed to the final order being issued by the Court today without further inquiry or court hearing as to the validity of the order or any further challenge to the way in which the order was issued by the Council in terms of the procedures set out in the Act. 4 I am satisfied that it is appropriate for the Court to make a merit decision on this matter and this is agreed to between Mr Murtough and Mr Pickles acting for the Council. The Court's determination and final order today is to provide some certainty and to provide finality to these proceedings. As such both parties also agree it would be inappropriate for either side to seek costs. 5 The Court has also heard from the nearby residents and also inspected the retaining wall from the adjoining properties. At the end of the day it is the impacts that the Court is most concerned with in terms of the ultimate outcome of these proceedings, which I have outlined to the parties in terms of works to be carried out and these have generally been agreed. 6 Therefore on the basis of my assessment and findings in this matter the formal Orders of the Court in these proceedings are: 1. The order issued under s 121(b) of the Environmental Planning and Assessment Act on the 8th April, by Randwick City Council for the property known as 91 St Marks Road, Randwick is amended and in its place the following order is made: a. the retaining wall where it adjoins No. 11A Farnham Avenue is to be reduced in height by four rows of blocks, plus the capping, such that the maximum height above ground at the south eastern corner of the property shall be 2 m and may increase in height by stepping up towards the north to allow for an additional two blocks in height at the point where the wall commences as shown on figure 1. b. where the retaining wall adjoins No. 10 Oswald Street, it shall be a maximum of 2 m at the corner and may step up and back to its current height but must provide a 1.5 m landscaped setback from the rear retaining wall. c. where it adjoins No. 12 Oswald no reduction is required in the retaining wall and the fence may be erected to a height of 1 m above the retaining wall. d. a landscaping area of 1.5 m is to be provided between the retaining wall near the rear eastern boundary and a 1 m fence may be erected on the western side of the landscaped area where the maximum height of plants at maturity shall be 1.5 m.. 2. The works to reduce the height of the retaining walls shall be completed within three months from the date of this Order. 3. The landscaping and other fencing is to be completed within a period of six months from the date of this Order. 4. There is no order as to costs. 5. The exhibits are returned. ________________________ J S Murrell Commissioner of the Court ljr 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.