Land and Environment Court of New South Wales CITATION : Nizik v Ku-ring-gai Council [2005] NSWLEC 256 APPLICANT Mark Nizik PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 11274 of 2005 CORAM: Hussey C KEY ISSUES: Development Application :- Front fence - swimming pool - streetscape impact - flooding risk - safety - pollution Environmental Planning and Assessment Act LEGISLATION CITED: Ku-ring-gai Planning Scheme Ordinance Protection of the Environment Operations Act 1997 CASES CITED: Gray v Fairfield CC, NSWLEC - Appeal No. 10539 of 1986 (Unreported) DATES OF HEARING: 01/03/2005 and 09/05/2005 DATE OF JUDGMENT: 05/20/2005 APPLICANT Mr G McKee, solicitor SOLICITORS McKees Legal Solutions LEGAL REPRESENTATIVES: RESPONDENT Mr J Cole, solicitor SOLICITORS Abbott Tout JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 20 May 2005 11274 of 2004 Mark Nizik v Ku-ring-gai Council JUDGMENT Background 1 This appeal arises out of council's refusal of a development application for a front fence and swimming pool, associated with the construction of a new two-storey residence at 19 Carlotta Avenue, Gordon. 2 These components were initially included in the overall development application, which involved the demolition of an existing dwelling and replacement with the new two-storey dwelling and ancillary works. However the property contains a natural watercourse, which results in considerable overland flows during storm events and creates flood hazards. 3 Consequently, council conditionally approved the dwelling and required the deletion of the pool and was dissatisfied with any proposed fence design. The applicant has subsequently lodged an amended application with the relocation of the swimming pool and a less intrusive front fence. However, council is still dissatisfied with these amended proposals. Front fence 4 The amended fencing proposal is shown in exhibit F. it basically comprises the following 4 sections: Section A North of the central front pedestrian gateway. This section utilises the existing low-level brick wall and introduces a further 1200 mm high metal grille fence. It includes 3 additional 420 mm piers x 1500 mm high adjacent to the two-storey dwelling façade. It is proposed to maintain the existing mature vegetation behind the fence and augment it with complementary planting. Section B Contains the pedestrian entry/pathway, which aligns with the front portico of the new dwelling. The gate way has a curved opening terminating at 420 mm piers x 1800 mm high. Section C Contains the 4500 mm wide vehicle gate to the approved garages in the dwelling and also three panels of metal grilles between piers. This section is 1200 mm high. Section D This is the lower-level section of the fence, between the southern boundary and the vehicle gate post. This comprises sections of 1200 mm metal grilles and includes a hinged section 3500 mm wide to allow a major floods to pass unimpeded. 5 Mr Cox, council's development assessment officer, says that this fence is unacceptable because it is not in accordance with cl 5.1.5 of the Ku-ring-gai Residential Design Manual. This DCP requires notes that front fences or their absence, are a critical aspect in determining the appearance of the street and should be designed so as to: - maintain the streetscape character; - be consistent with the established pattern of fences; - allow private gardens to merge with their neighbours and support the landscape character of the area; - … 6 This should be achieved by: - restricting visually solid forms (such as masonry, lapped and capped timber brushwood) to 900 mm in height; - restricting the height of visually transparent fences (such as metal grille or timber picket) to 1.2 m. 7 Mr Cox's assessment is based on the site and surrounding environment being identified as having a visual character within the period of 1920 – 45, where a distinguishing feature of this era is front fences comprising of "low brick, timber or herbaceous front boundary fences". From his survey of the surrounding environment, he says that low front fences are a common characteristic of this area and the proposed fence will be inconsistent with the established front fencing style of the area. 8 Furthermore he expresses concern that the construction of piers will likely harm the existing soft landscaping in the northern section. Also that the extensive, curved alignment of the new fence is unsatisfactory, considering the prominence of the site. 9 After consideration of these concerns, the applicant agreed to amend the fence design by the retention of the existing dwarf wall in Section A. This avoids interference with the root system of the existing vegetation and allows its maintenance and contributory screening effect. 10 Having considered the competing positions, it is apparent to me that on a broader assessment of the streetscape impacts, due consideration has to include the contribution made by the dwellings to the overall visual impacts. In this case the approved and completed new dwelling is of a large, imposing design, which is rendered and painted and noticeable in the streetscape, considering its relatively long street frontage. 11 Accordingly, the streetscape impact in this immediate neighbourhood is dominated by the new building, which is uncharacteristic of the size, colour and style of the other predominantly "1920 - 45" dwellings, some of which do have lower fences. 12 Under these circumstances, I am satisfied that the amended fence design is consistent with the approved dwelling style and it is predominantly within the allowable 1200 mm height for visually transparent fences, as stated in the DCP. Insofar as the piers are slightly higher than the fence panels, they are substantially located in front of the solid building facade and as they are to be painted the same colour as the building, I consider they will blend with the building, because they are very much a secondary element, compared to the primary visual element of the two-storey dwelling. 13 With regard to the front entry section, I note that it includes a 1 m setback, as allowed in the DCP for higher fences, and I consider it is satisfactory in the context of the approved dwelling and the surrounding neighbourhood. 14 For these reasons then, I am satisfied that the amended fence design generally satisfies the DCP controls, which allows 1200 mm metal grille, transparent fences, and that it is complimentary to the new dwelling, so that it will maintain an acceptable streetscape character, considering the context which results from new building styles. Swimming pool 15 The other outstanding issue concerns the swimming pool. This arises because the pool is located at the rear of the property, adjacent to the back terrace and will be subject to flood inundation during major flood events, from flows along the natural watercourse. 16 The amended plans show that the pool has been shifted marginally away from the edge of the watercourse and the pool coping level has been reduced to approximately ground level to avoid diversion of flood flows. This results in the pool being clear of the 20 yr ARI, but subject to inundation in storm events greater than this. Consequently the concerns are for safety and pollution from the over-topping and flushing of the pool waters into the watercourse in these major storm events. 17 This issue has been addressed by Mr R Howard, council's development engineer, on the basis of council's Residential DCP and its recently adopted DCP 47 - Water Management Development Control Plan (DCP 47). 18 DCP 47 includes the following objectives: A Water management that is appropriate to the site and its surroundings and that is integrated into the overall design of the development. B Sustainable management and use of water in Ku-ring-gai. C Management and conservation of natural and built waterways and natural asset in the catchments … D … 19 Of relevance, cl 7.4 deals with and restrictions on development adjacent to a natural water bodies. Section 7.10 deals with swimming pools and provides that: (a) … (b) … (c) … (d) … (e) No swimming pool or spa shall be established where it will be subject to inundation from the calculated design flood standard. Note 1: The presence of silt, debris and other pollutants in overland flows can severely compromise thelif3e of the pool, spa and associated equipment where they are inundated. In this respect, covenants or similar which place the onus for maintenance of the swimming pool or spa on the property owner where it is known that they will be inundated will not be considered by council. Note 2: Council will not permit the discharge of pool chemicals and the like into downstream drainage systems. 20 In response to these restrictions, Mr P Kozarovski undertook a drainage study to show that safety aspects and pollution impacts are acceptable. This study was based on council's 100 year ARI design storm event and resulted in his estimation of the following flood levels in Table 1: Table 1 - Design Flood Levels, Depth & Velocity at the Proposed Pool ARI : I:y Water Level (m AHD) Depth (m) Veolcity @ the pool (m/s) V x D Provisional flood hazard 10 94.62 - - - - 20 94.84 0.19 0.64 0.12 Low 50 94.99 0.34 0.89 0.30 Low 100 95.12 0.47 1.02 0.48 Moderately high 21 From this, first Mr Kozarovski concludes that the provisional flood hazard for the new pool location is low for all flood events, except 100 year flood event. The provisional flood hazard is only moderately high for the 100 year flood event. Mr Kozarovski says that the moderately high flood hazard can be re-assessed as a lower risk because: - there is a safe evacuation route towards the house; - the pool is fenced and children can enter into the pool only under our supervision; - it is reasonable to assume that children will not be allowed to enter the pool area during flood events; - 100 year event would be caused by heavy rainfall and is reasonable to expect that children will be asked to leave the pool in such an event. 22 With regard to the pool safety aspects, I note that the velocity (V) x depth (D) ratio is commonly used as a safety indicator, where the ratio should not exceed 0.4 sq. m/s, in order to prevent pedestrians being swept away and endeavour to maintain reasonable stability levels for children caught in storm flows. In the subject case, the pool is located adjacent to the rear of the house and somewhat separated from the major storm water flows. 23 In the event of any extraordinary circumstances where children/persons are in the rear yard or the pool area during major storm occurrences, it seems to me that they would have a marginally higher degree of safety in the pool area, because the pool fencing would likely reduce the chances of them being swept away, as compared to being swept a greater distance along the major drainage flow path. Accordingly, I do not consider that the proposed pool location creates unreasonable safety risks, providing reasonable standards of supervision are maintained. 24 Another aspect of safety and security concerns the location of the pool equipment, which Mr Howard says is not satisfactory to indemnify council. However Mr Kozarovski has confirmed that this pool equipment is secured in the basement under the kitchen area and is not at risk. As the property owner and his consulting engineer are aware of the potential flooding problem and have taken the necessary action to flood proof this basement area where the pool equipment is located, I accept this location on the basis that the property owner accepts this level of risk and the conditions of consent can confirm this requirement. 25 With regard to the possible pollution effects, this concern arises due to the likelihood of the pool being inundated and flushed out during storm events greater than the 20 year ARI. According to Mr Howard, the Protection of the Environment Operations Act 1997 (POEO) and its Regulations, does not allow overland flows, which transport chemicals (or other pollutants) into receiving waterways, as this contravenes the Act. 26 In particular he refers to the following POEO definitions of water pollution or pollution of waters: Water pollution or pollution of waters means: (a) Placing in or on, or otherwise introducing into or onto, waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, so that the physical, chemical or biological condition of the waters is changed, or (b) placing in or on, or otherwise introducing into or onto, the waters (whether through an act or omission) any refuse, litter, debris or other matter, whether solid or liquid or gaseous, so that the change in the condition of the waters or the refuse, litter, debris or other matter, either alone or together with any other refuse, litter, debris or matter present in the waters makes, or is likely to make, the waters unclean, noxious, poisonous or impure, detrimental to the health, safety, welfare or property of persons, undrinkable for farm animals, poisonous or harmful to aquatic life, animals, birds or fish in or around the waters or unsuitable for use in irrigation, or obstructs or interferes with, or is likely to obstruct or interfere with persons in the exercise or enjoyment of any right in relation to the waters, or (c) placing in or on, or otherwise introducing into or onto, the waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, that is of a prescribed nature, description or class or that does not comply with any standard prescribed in respect of that matter, and, without affecting the generality of the foregoing, includes: (d) placing any matter (whether solid, liquid or gaseous) in a position where: (i) it falls, descends, is washed, is blown or percolates, or (ii) it is likely to fall, descend, be washed, be blown or percolate, into any waters, onto the dry bed of any waters, or into any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted, or (e) placing any such matter on the dry bed of any waters, or in any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted, if the matter would, had it been placed in any waters, have polluted or have been likely to pollute those waters. waters means the whole or any part of: (a) any river, stream, lake, lagoon, swamp, wetlands, unconfined surface water, natural or artificial watercourse, dam or tidal waters (including the sea), or (b) any water stored in artificial works, any water in water mains, water pipes or water channels, or any underground or artesian water. 27 Mr Howard's position is that locating the pool in an area which will likely result in flushing pollutants into the waterway, breaches the requirements of the POEO Act, because this Act implies zero tolerance. 28 In response to this, Mr Kozarovski has calculated potential pollution impacts. This is on the basis of the pool volume being in the order of 45 cubic metres and being fitted with salt chlorination. Assuming it would take some 80 seconds to displace the pool water, he estimates the exporting rate would be 3.94 kg/sec, which will be quickly diluted, to acceptable limits, within the flood flows. Accordingly he concludes that any displacement of the pool's contents during flood events will not cause discernible pollution and is insignificant, in the context of the major flood flows in this watercourse. 29 Insofar as Mr Howard opposes the proposed pool location, he has not undertaken any quantitative analysis of pollution risks. Furthermore, he concedes that he does not have particular expertise in this area, but agrees that the risk of pollution from the pool in the major flood event is likely to be insignificant. Nevertheless he maintains his opinion that there should be zero tolerance for flushing chemicals into the watercourse. 30 In my assessment of this aspect of potential pollution from the flushing of the swimming pool, I consider that a reasonable starting point is that the pool water is treated to a standard acceptable for safe human use. I note that in response to questions, Mr Howard was unable to identify any significant pollution-control devices or flood mitigation initiatives in this substantial drainage catchment. It therefore appears to me that any contribution of flushing this treated pool water into the major storm flows, is likely to be insignificant as calculated by Mr Kozarovski and agreed by Mr Howard. Nevertheless, this does not appear to satisfy the provisions of the Protection of Environment Operations Act 1997. Conclusions 31 Having considered the evidence, the submissions and undertaken a view, I now consider this amended application for the front fence element demonstrates reasonable compliance to merit conditional consent. 32 It is apparent from the view, that the impact of the dwelling should be factored into the visual impact and streetscape assessment. Whilst the majority of surrounding dwellings in this neighbourhood can be classified as 1925 - 40 style dwellings, with low or herbaceous fences, this new dwelling, together with other recent developments, introduces more modern designs into the neighbourhood. Accordingly, I accept the applicant's submissions that the proposed fence compliments the approved dwelling style, and furthermore I accept that it generally demonstrates reasonable compliance the DCP controls, which allow 1200 mm high metal fences, that are visually transparent. Notwithstanding this, I consider it reasonable that the conditions of consent require complimentary landscaping, within the property to assist in screening the dwelling. 33 With regard to the swimming pool element there are number of factors requiring consideration in the determination of its acceptability. Initially I note that the Floodplain Development Manual does not seek to sterlise flood liable land, providing the risks to persons and property are reasonable. In this case, I consider the pool location and fencing does result in a reasonable level of safety risk, considering the adjacent overland flows along the watercourse. 34 However, it is a fact that in storm events greater than 20 yr ARI, the pool will be overtopped and the pool contents likely flushed into the waterway, with the flood water. This will certainly occur in the nominated design flood event of 100 yr ARI. 35 Accordingly, it is likely that this flushing effect could result in water pollution, albeit to an insignificant effect as agreed by the engineers. Nevertheless, I consider that the calculations undertaken by Mr Kozarovski are of a preliminary nature only and Mr Howard was unable to provide expertise in this area. Under these circumstances, the calculations are challenged and cannot be accepted on the basis that the known pool flushing will not contribute to water pollution. 36 Whilst I do not necessarily accept Mr Howard's opinion that the POEO Act requires zero tolerance, nevertheless I do not consider there is sufficient technical evidence before the Court to exercise whatever discretion the POEO Act allows. It is likely that any consent authority would be assisted by the evidence of an environment impact assessment expert, who has particular expertise in assessing allowable impacts on waterways. But that is not the case in this appeal. 37 In the ultimate, I am not inclined to exercise any allowable discretions under the POEO Act, in view of the uncertainty of water pollution impacts in this case. In this regard I follow the general line of authority established by Cripps C J in the matter of Gray v Fairfield City Council, Appeal No. 10539 of 1986 (Unreported). His Honour dealt with questions of law concerning aspects of a brothel which could have resulted in the approval of a proposed use amounting to a common law misdemeanour. The Chief Judge stated: The case was conducted upon the basis that if the proposed use amounted to a common law misdemeanour, it was not appropriate for the Court to grant development consent. In the present case, a decision to grant development consent for the use of the subject premises for the keeping of a brothel would, upon the assumption that it is open to the Court to consider the application, be an erroneous exercise of the Court's discretion. Notwithstanding the absence of "planning detriment", any other conclusion would not have been open. It is one thing to grant development consent subject to the removal of a planning restriction in a residential district proclamation or the lifting of a regulatory prohibition. It is quite another, in my opinion, to grant development consent to use premises for a purpose which, if carried out, would render the user liable to be punished for a common law offence and to become liable to an indeterminate period of imprisonment. 38 Depending on the facts and circumstances, it is likely that the pool would result in some form of pollution in the designated storm event (100 yr ARI), which breaches the POEO Act based on the details before this Court. This could then render the owner/user liable to punishment for a common law offence and therefore it is not appropriate to grant consent. Furthermore this conclusion to refuse consent to the swimming pool component is consistent with the provisions of DCP 47, which does not allow discharge of pool chemicals into downstream drainage systems. 39 Accordingly, the Court intends to grant consent to the front fences subject to appropriate conditions to be finalised by the parties, but to refuse the swimming pool element. __________________ 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.