Land and Environment Court of New South Wales CITATION : William Thomas Matthews v Baulkham Hills Shire Council [2006] NSWLEC 385 APPLICANT: PARTIES : William Thomas Matthews RESPONDENT: Baulkham Hills Shire Council FILE NUMBER(S) : 10230 of 2006 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Baulkham Hills Local Environmental Plan 2005, (BHLEP) LEGISLATION CITED: Development Control Plan No 3, (DCP3) Environmental Planning and Assessment Act 1979 (NSW), ss 79C and 97 DATES OF HEARING: 29/06/2006 EX TEMPORE JUDGMENT DATE : 06/29/2006 APPLICANT: Mr W T Matthews, applicant in person SOLICITORS: LEGAL REPRESENTATIVES: N/A RESPONDENT: Mr P Vergotis, solicitor SOLICITORS: MatthewsFolbigg Solicitors JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Watts C 29 June 2006 10230 of 2006 - William Thomas Matthews v Baulkham Hills Shire Council JUDGMENT Introduction 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Baulkham Hills Shire Council (the council) to refuse a development application to erect a freestanding feature wall at Lot 82, DP 239239, known as No 5 Gabrielle Avenue, Baulkham Hills. 2 I visited the land in company with the parties on the morning of the on-site hearing. I heard from the owners of No 3 Gabrielle Avenue. 3 I have concluded that despite the wall having been erected, the parties are agreed that modifications to the design are required and I am satisfied that under s 79C of the Environmental Planning and Assessment Act 1979, consent orders may be granted in respect of these modifications. The land 4 The land is situated on the northern side of Gabrielle Avenue and is trapezoidal in plan with a frontage of 25.3m, a depth on the western side of 42.040m and on the eastern side of 35.355m and to the north of 27.0m and an area of 999.1m2. Erected on the land is a dwelling and swimming pool. A freestanding Mediterranean feature wall measuring around 9.6m long, and 3.0m high has been erected without consent, 1m off the eastern boundary of the land. 5 The character of the surrounding area consists of detached residential dwellings within a residential locality. Relevant planning controls Baulkham Hills Local Environmental Plan 2005, (BHLEP) 6 Under the provisions of the BHLEP the land is zoned Residential 2(b) and the proposal is permissible with consent. The key objectives of the zone are to: (a) to create residential areas of predominantly single dwelling, low density character and to maintain that character, and (b) to permit the subdivision of land into residential lots of a minimum area of 700m2, and (c) to allow people to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours, and (d) to allow a range of developments, ancillary to residential uses, that: (i) are visually integrated with development carried out on the land and in the surrounding area, and (ii) serve the needs of the surrounding population without conflicting with the residential intent of the zone, and (iii) do not place excessive demand on services. Development Control Plan No 3, (DCP3) 7 Applies to the land. The proposal and its history 8 Development application No 1591/2005/MA was lodged with the respondent council on 7 January 2005 to erect a wall on the eastern side of the land towards the rear to screen from view the in-ground swimming pool in the rear garden. The wall has been erected. Notification 9 The application was notified to nearby owners and occupants on 11 January 2005 and the council received an objection on 27 January 2005 from an adjoining owner. The council's decision 10 On 24 March 2005 the council's development assessment unit considered an assessment report in relation to the proposal and the development application was refused under delegated authority for the following reasons: 1. The proposal is contrary to objective (d)(1) of the Residential 2(b) zone, pursuant to the Baulkham Hills Local Environmental Plan 1991 in regard to the freestanding feature wall as built and yet to be completed will not be visually integrated with the locality and may interfere with the amenity of neighbouring properties. (Section 79C(1)(a)(i)(ii)). 2. The wall as built and the remainder of the proposed works do not comply with the objectives and standards of Development Control Plan No.3 - Residential in respect of: Clause 3.22 (streetscape)-objective (a), which states: a) To ensure that the appearance of new development is of a high visual quality enhances the streetscape and compliments surrounding development. In this regard the wall as built and the proposed works to complete the development are and will not be of a high visual quality, does not complement the surrounding development and has not had regard to the amenity of adjoining and surrounding properties. 3. The development as built and the proposed works to complete the wall will adversely impact on the amenity of adjoining properties. In this regard the overall height, bulk and scale of the wall is visually intrusive and dominates the outlook from the neighbours property along their eastern elevation of their dwelling. (Section 79C(1)(b)). 4. The wall as built and the proposed works have attracted a submission from a neighbouring property in regard to height, bulk and scale when viewed from their property. The concerns raised are considered valid and warrant refusal of the application. (Section 79C(1)(d)). 5. The wall as built and the proposed work to complete the wall are not in the public interest with regards to the impact on the neighbour and the precedent set in the locality. (Section 79C(1)(e)). The hearing 11 The appeal was filed on 23 March 2006. 12 At the hearing the court heard evidence on behalf of the respondent council from Mr B Linton, building control officer of Baulkham Hills Shire Council, and from Mr and Mrs Yu the residents of the neighbouring property to the east of the subject. 13 The applicant also gave evidence. 14 Mr P A Osbourne, town planner of Baulkham Hills Shire Council, prepared the statement of basic facts. The issues 15 On 25 May 2006 the council filed a statement of issues. 1. The proposal is contrary to objective (d)(1) of the Residential 2(b) zone, pursuant to the Baulkham Hills Local Environmental Plans 1991 & 2005 in regard to the freestanding feature wall as built and yet to be completed will not be visually integrated with the locality and may interfere with the amenity of neighbouring properties. 2. The wall as built and the remainder of the proposed works do not comply with the objectives and standards of Development Control Plan No.3 - Residential in respect of: Clause 3.22 (streetscape) -objective (a), which states: a) To ensure that the appearance of new development is of a high visual quality enhances the streetscape and compliments surrounding development. In this regard the wall as built and the proposed works to complete the development are and will not be of a high visual quality, does not complement the surrounding development and has not had regard to the amenity of adjoining and surrounding properties. 3. The development as built and the proposed works to complete the wall will adversely impact on the amenity of adjoining properties. In this regard the overall height, bulk and scale of the wall is visually intrusive and dominates the outlook from the neighbours property along their eastern elevation of their dwelling. 4. The wall as built and the proposed works have attracted a submission from a neighbouring property in regard to height, bulk and scale when viewed from their property. The concerns raised are considered valid and warrant refusal of the application. 5. The wall as built and the proposed work to complete the wall are not in the public interest with regards to the impact on the neighbour and the precedence set in the locality. Particulars 5.1 At the time of refusal, the partially completed structure presented an appearance, which is considered to be out of character within the local area by way of height, bulk scale and finish. 5.2 The partially completed structure is considered to be not of a high visual quality, and does not complement the surrounding development in that the materials and finish detract from the existing quality of development found in the locality. 5.3 The structure, as constructed, is located in close proximity to the common boundary with No 3 Gabrielle Avenue Baulkham Hills. The structure is unsightly in appearance when viewed from the windows and landing on the adjoining premises and the height of the structure results in a diminished outlook from the premises. 5.4 The adjoining owners raised genuine concerns regarding the impact on their premises during the notification period and these concerns were taken into consideration during the assessment and determination of the application. 5.5 The type of construction, being of timber frame and fibre cement cladding detract from the locality. 6. The height bulk and scale of the structure, as constructed, have a detrimental impact on the amenity of the residents of the adjoining property. Particulars 6.1 The partially constructed privacy screen is out of character with the area, is of unsightly construction and has an unsightly appearance when viewed from the windows and landing on the adjoining premises. The Applicant has proceeded with the construction of the privacy screen since the refusal of the application, has added additional measures by way of shelving, upon which has been placed a number of plastic pots containing shrubs, further exacerbating the obstruction in outlook and loss of view from the adjoining premises. 16 The salient issues were that the freestanding feature wall would not be of a high visual quality to enhance the streetscape and complements surrounding development. The evidence and findings Visual quality 17 The council considers the wall as built and the proposed works yet to be completed, are and will not be of a high visual quality, and would not complement the surrounding development and has downgraded the amenity of adjoining and surrounding properties. 18 During the course of the on-site hearing the applicant agreed to amend the existing freestanding feature wall by demolishing the planter box that is supported on the top of the wall and sheeting the eastern side with 6mm Hardie's 'Panelclad' with stucco finish to match the western side of the wall. 19 The parties agreed that with the modifications to the structure the proposal would be satisfactory. I endorsed this outcome. 20 For the above reasons, the appeal is upheld by consent. Conditions 21 The conditions are those in Exhibit 4 as amended during the hearing. Condition 1 now reads: Development in accordance submitted plans (as amended): The development being carried out in accordance with the approved plans 'Titled 'Proposed Mediterranean Feature at 5 Gabrielle Avenue, Baulkham Hills, NSW, 2153, for Mr W and Mrs R Matthews', dated January 2005, in Exhibit B, and details submitted to Council, as amended in red, dated 29 June 2006, stamped and returned with this consent. No works (including excavation) shall be undertaken prior to the release of the construction certificate. No fee is required for the issue of the construction certificate. The works are to be completed within six weeks of the issue of the construction certificate. The amendments in red include: The Mediterranean feature wall, as built, is to be lowered in height to a maximum of 2.4m being measured from the concrete plinth. The planter box and timber support structure to the planter box is to be demolished and the rear of the screen is to be sheeted in 6mm Hardie's 'Panelclad' with stucco finish to match the western side. The top of the screen is to be capped with a metal capping no higher than 2.4m above the concrete plinth. The eastern side of the screen as modified is to be painted in a colour agreed with the neighbours and finished in 'Mulga' Dulux Weathershield exterior colour paint. Eight (8) advanced 75-litres sized Lilli Pillis are to be planted in a line at around 1.5m centres, midway between the common boundary with No 3 Gabrielle Avenue and the rear of the screen. Wiring to be concealed between the sheeting panels. Consent orders 22 The consent orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. 2. Development application No 1591/2005/MA lodged with the respondent council on 7 January 2005 to erect a freestanding feature wall on the eastern side of the rear garden to screen from view the in-ground swimming pool at Lot 82, DP 239239, known as No 5 Gabrielle Avenue, Baulkham Hills is approved subject to Conditions 1 to 8 in Annexure A. 3. The exhibits except for Exhibits B, D, 1, 4 and 7 are returned. S J Watts Commissioner of the Court sw The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 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.