Land and Environment Court of New South Wales CITATION : Farrid Farahbakht and Mrs Minoo Amini v Ku-ring-gai Council [2006] NSWLEC 137 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT: PARTIES : Farrid Farahbakht and Mrs Minoo Amini RESPONDENT: Ku-ring-gai Council FILE NUMBER(S) : 10048 of 2006 CORAM: Watts C at 1 KEY ISSUES: Appeal :- Whether the allegedly unauthorised front fence should be removed Ku-ring-gai Planning Scheme Ordinance, (KPSO) LEGISLATION CITED: Ku-ring-gai Development Control Plan No 38 (Residential Design Manual), (DCP38) Environmental Planning and Assessment Act 1979, s121ZK CASES CITED: Stockland Development Pty Limited v Manly Council [2004] NSWLEC 472 DATES OF HEARING: 24/03/2006 EX TEMPORE JUDGMENT DATE : 03/24/2006 APPLICANT: Mrs M Amini, LIP, assisted by Mr T Insley, neighbour and resident of No 51 Yanko Road, Gordon LEGAL REPRESENTATIVES: RESPONDENT: Mr R K Graham, solicitor SOLICITORS: Abbott Tout JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Watts C March 2006 10048 of 2006 - Mr Farrid Farahbakht and Mrs Minoo Amini v Ku-ring-gai Council JUDGMENT 1 This is an appeal under s 121ZK, subs 4(a), of the Environmental Planning and Assessment Act 1979 that Order No 2006/003, issued by Ku-ring-gai Council, be revoked, on the grounds that as the works, being a new front fence, were necessary repairs and maintenance of an existing structure and did not require the lodgement of a (new) development application at Lot 1, DP21789, No 88 Yarrara Road, Gordon. 2 I visited the land in company with the parties on the morning of the hearing, which was held on-site. 3 I have concluded that the appeal should be dismissed and the order modified. The land 4 The land is situated on the corner of Yarrara and Yanko Roads and has an area of 920m2. The land has a frontage to Yarrara Road of about 12.7m and a frontage to Yanko Road of about 43m. There is also a dedicated corner splay. 5 Erected on the land, which is relatively flat, is a single-storey brick dwelling house with fibro garage at the rear. 6 The nearby low-density residential area is typical of suburbs established in Ku-ring-gai after 1945. Houses are of mainly brick and/or timber construction, simple and understated in design, and set back from the street at distances of 12m or greater. 7 Yarrara Road is characterised by a mixture of single-storey and two-storey dwelling houses with established front gardens. 8 Yanko Road is a busy sub-arterial road, whilst Yarrara Road is a typical residential local street. Despite their difference in function both road reserves are 20m in width. 9 Most nearby properties in Yarrara Road have front fences, but there is no predominant style. The mix of fencing types is eclectic, as is the mix of housing styles. 10 The subject land is within an area identified in the Council's Visual Character Study as an area within which homes were generally constructed after 1945. Relevant planning controls Ku-ring-gai Planning Scheme Ordinance, (KPSO) 11 Under the provisions of the KPSO the land is zoned Residential 2C and the proposal for a front fence is permissible with consent as ancillary to a dwelling house. 12 No development application has been lodged in respect of the front fence. The council argues that the allegedly unauthorised front fence, does not meet the criteria for either exempt or complying development, as referred to in the KPSO. Ku-ring-gai Development Control Plan No 38 (Residential Design Manual), (DCP38) 13 Under DCP38, adopted 4 February 2003, in areas where the Ku-ring-gai Visual Character Study discourages front fences, require a development application for such works. The subject locality was established after 1945 and falls into this category where front fences are discouraged. The council's notice 14 The allegedly unauthorised front fence was built around August, September 2005 and is the subject of the council's notice under s 121 of the Act. 15 The new fence is of timber post and single rail construction about 700mm in height, with a timber capping. This fence has been erected across the full width of the Yarrara Road frontage and part of the Yanko Road frontage. A decorative timber lych gate (arbour) has also been erected at the front boundary in Yarrara Road. Planting has been established in front of the fence on the council's nature strip. 16 Under the KPSO, as classified by the council, the erection of a front fence is not exempt and complying development, and thus a development application would be required for the new works. The council's actions 17 Following a complaint made to the council, the matter was investigated by Council's Department of Development and Regulation following a 15 August 2005 site inspection by the Council's Compliance Officer, Mr Harry Konsti. By letter dated 5 September 2005, the owner was notified of the council's intention to serve an order under the Act. In this correspondence, the owner was requested to make a submission if he/she felt the order should not be made, or if dissatisfied with the proposed terms or period of compliance. 18 A 30-day extension to the council's notice to remove the front fence was granted on 21 September 2005. A further extension of 39 days was granted on 12 October 2005. 19 The council issued an order by notice dated 13 January 2006, to remove the front fence. The hearing 20 The appeal was filed on 24 January 2006. 21 At the hearing the court heard evidence on behalf of the respondent council from Ms Ursula Lang, (Bachelor of Applied Science-Environmental Planning), Executive Planner, Ku-ring-gai Council. 22 On behalf of the appellant evidence was given by Mrs Minoo Amini, part-owner. 23 Ms Ursula Lang, (Bachelor of Applied Science-Environmental Planning), Executive Planner, Ku-ring-gai Council prepared the statement of basic facts. The issue 24 The issue is whether or not the order issued by the council in respect of the allegedly unauthorised front fence should be revoked on the grounds that the works are necessary repairs and maintenance of an existing structure and do not require the lodgement of a (new) development application. The evidence and findings 25 The applicant suggests that fences on the front boundaries of the subject land have been in existence since at least 15 August 1985, as shown in the survey sketch from Hill & Blume, Registered Surveyors. 26 In late 2005, the applicant resolved to 'tidy-up' the frontage and, with the help of a family friend, removed a large quantity of vegetation which exposed dilapidated fences. The family friend renovated the fences using rot-resistant materials to replace decayed posts and rails in the same style as the existing fence. At this point the first council notice was received. The council officers and the appellant met and corresponded in order to seek a resolution of the issues between the parties without success. The present order was then issued by the council. 27 The applicant supplied statements from long-standing residents and neighbours in support of the new fence and as to the existence of the front fences. 28 Mr Insley, on behalf of the appellant, submitted, "It was never the intention of the owner to circumvent the regulations and had she been advised she would have [carefully] replaced [only the rotted parts of] the old front fence. She had been dragged into the issue when the council insisted on a DA for the works. It is expensive to lodge a DA and was considered not practical when compared with the cost of the fence. The fence as erected is remarkably similar to the original. In comparison to the fences in the area it is unobtrusive and would cause no harm if left and the owner asks that the order be revoked." 29 Mr Graham submitted that the; "Underlying theme of the applicant's submissions appears to revolve around the cost of the application and that never has been an issue in the case. The principle issue is whether the order need be complied with. A development application is required for the fence and provisions applying to exempt and complying development do not exclude the proposal [from that requirement of a development application]. There is no issue that it is either exempt or complying development. By reference to the visual character study in DCP38, [Note: Exhibit 4, Appendix A, p 78-9], which commenced in 2002, the objective to discourage front fences in that area. The former chief judge confirmed that DCPs are to be given full weight, [Note: Stockland Development Pty Limited v Manly Council [2004] NSWLEC 472. 30 He further submitted, "The provisions of DCP38 since its adoption have been applied regularly, and vigorously." 31 He submitted that the council would not cavil with repairs to existing fence but new fence has been erected. The Court should apply the requirements of DCP38 and in those circumstances the Court would uphold the order as imposed. 32 I consider that the order issued by the council, should be modified and the lychgate to the Yarrara Road frontage should be removed. The reason for this is that the construction of the lychgate is crude and would have required a development application. It would have been unlikely to receive approval were it the subject of a development application as it is in an area where front fences are discouraged. 33 The front fence on the Yarrara and Yanko Road frontages is in a slightly different category, as it might be argued, as does the appellant, that it replaces the previously dilapidated fence shown in Exhibit A, p 3. Whether or not it is a reasonable replacement is open to conjecture and must depend on the latitude given to the person erecting the fence. I have decided that it should be allowed to remain as a replacement of the original fence. 34 The recently erected front fence comprises a single rail and capping, and is around the same visual weight as the original fence despite being of slightly different design. The original front fence comprised two rails without a cap, and the recently erected front fence comprises a slightly wider single rail with cap. Both the old and new front fences were constructed of timber. The form of the new fence is slightly cruder than the original and in order to subdue its visual impact, I propose that it be painted in Brunswick Green. This painting should be completed within 30 days. 35 The parties have also asked me to comment on what should happen along the remainder of Yanko Road frontage. The appellant seeks to maintain a fence for security reasons. This is particularly necessary as the land is on the corner. I suggest, in obiter, that the single panel of three-rail front fence to the Yanko Road frontage to the east of the existing side gate should be renovated by replacing the posts and painting the reconstructed fence in Brunswick Green to match the above fence. 36 The paling fence to Yanko Road may be replaced with a similar existing paling fence of the same height and tapering down to the renovated three rail front fence. This paling fence is also to be painted in Brunswick Green to match the other fences. 37 For the above reasons, the appeal is dismissed. Orders 38 My orders are: 1. The appeal under s 121ZK of the Environmental Planning and Assessment Act 1979 is dismissed. 2. The order No 2006/003 issued by the council, in respect of the allegedly unauthorised front fence at Lot 1, DP21789, No 88 Yarrara Road, Gordon, is modified under s 121ZK 4(c) and the appellant is ordered to remove the lychgate to the Yarrara Road frontage, and the existing front fence comprising a single rail and capping is allowed to remain, on the Yarrara and Yanko Road frontages and is to be painted in Brunswick Green, within 30 days of the date of this order and the paint work is to be maintained at all times. 3. The exhibits are returned except for Exhibits A, B, 1 and 2. S J Watts Commissioner of the Court sw 22/06/2006 - Deleted 'Mr" from the title - Paragraph(s) Title 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.