Lu, Jin Han and May Wai Yin Chan v Kogarah Council [2007] NSWLEC 75

Land and Environment Court of New South Wales

CITATION : Lu, Jin Han and May Wai Yin Chan v Kogarah Council [2007] NSWLEC 75

PARTIES : APPLICANT: Jin Han Lu and May Wai Yin Chan Lu

FILE NUMBER(S) : 11086 of 2006

CORAM: Watts C at 1

KEY ISSUES: Development Application :- Whether translucent panels should be placed within the fence on the common boundary

LEGISLATION CITED: Kogarah Local Environmental Plan 1998, (KLEP 1998) Environmental Planning and Assessment Act 1979, ss79C and 97

DATES OF HEARING: 14/02/2007

EX TEMPORE JUDGMENT DATE : 14 February 2007

APPLICANT: Mr G Kinsey, solicitor SOLICITORS: LEGAL REPRESENTATIVES: G A Kinsey, solicitors RESPONDENT: Ms C Schofield, solicitor SOLICITORS: Pike Pike and Fenwick

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

14 February 2007

11086 of 2006 - Jin Han Lu and May Wai Yin Chan Lu v Kogarah Council

JUDGMENT

1 This is an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979, against the decision of the Kogarah Council (the council) to refuse a modification application in respect of Condition 35 of Development Consent DA 478/01 concerning the proposal to alter and add to a dwelling house at Lot 201, DP 606855, No. 8 Algernon Street, Oatley. 2 The council approved DA 478/01 to alter and add to No 8 Algernon Street, Oatley that included originally two fire-rated glass block windows in the eastern basement wall that is built 100mm off the common boundary and driveway of No 6A Algernon Street Oatley. The proposal is to amend Condition 35 of the consent, which currently reads: 35. A new colourbond fence is to be erected on the common boundary with 6A Algernon Street adjacent to the dwelling at 8 Algernon Street, Oatley in accordance with the provisions of the Dividing Fences Act, 1991, to a maximum height of 1.8 metres. The fence is to be constructed with panels to match the existing to where there are no panels at present. The fence is to consist of solid panels with no openings. This work is to be carried out at the applicants expense and the details are to be submitted prior to construction. 3 To read: 35. A new colourbond fence is to be erected on the common boundary with 6A Algernon Street adjacent to the dwelling at 8 Algernon Street, Oatley in accordance with the provisions of the Dividing Fences Act, 1991, to a maximum height of 1.8 metres. The fence is to be constructed with panels to match the existing to where there are no panels at present. The fence is to consist of solid panels except the Applicant will be permitted to install transparent panels adjacent to the glass block windows in the eastern basement wall, such panels to be of a similar type and construction as the sample fence rail and clip channel submitted to Council. This work is to be carried out at the applicants expense and the details are to be submitted prior to construction. 4 The effect of the modification is to provide translucent panels within a new dividing fence adjacent to the three glass block windows. 5 I visited the land in company with the parties on the morning of the hearing. I heard from the parties. 6 I have concluded that the condition may be modified and the orders amended and varied. The land 7 The land is situated on the southern side of Algernon Street, Oatley with the main part of the land fronting the street and an access handle fronting the Georges River. 8 A driveway is located on the eastern side of the subject land that gives access to the waterfront property at No 6A Algernon Street. 9 Erected on the land is a part single-storey and part two-storey dwelling, which is nearing the end of renovations with an above ground swimming pool. As part of the alterations a basement wall is built to within 100mm of the common boundary with No 6A Algernon Street. Three glass block windows largely below the fence line have been installed in this wall. At the moment the Colourbond fence that was erected on the common boundary near this new wall has been removed. Under the Dividing Fences Act, 1991, an order was issued by the Sutherland Local Court requiring this fence is to be replaced and for translucent panels to be placed in the fence opposite the glass block windows. 10 Algernon Street is listed as a 'local road' in the council's road hierarchy. The built character of the area is generally made up of medium to large brick residences in a range of architectural styles. Relevant planning controls Kogarah Local Environmental Plan 1998, (KLEP 1998) 11 Under the provisions of the KLEP the land is zoned residential and the proposal is permissible with consent under cl 7 - Zoning Control Table. The proposal and its history 12 Modification of development application No 478/01 was lodged with the respondent council on 5 May 2006 seeking approval for clear panels to be installed in the fence. 13 The history of the application is set out below: · 30 October 2001 - the council, under delegated authority, approved DA 478/01 for alterations and additions at No 8 Algernon Street, Oatley that included the extension of the basement floor level to the side boundary fronting the driveway access handle of 6A Algernon Street, Oatley. · 10 December 2002 - A complaint was received by the council that a section of the dividing fence between Nos 6A and 8 Algernon Street was taken down by the owner/ builder. The council's building inspector was advised at that time by the owner/builder that the fence would be replaced after construction. · 15 July 2003 - the council received a complaint that an additional window was placed in the basement level facing the driveway of No 6A Algernon Street. · An inspection confirmed that an additional glass block window was placed in the basement wall facing the driveway, making a total of three at that level, where only two were indicated on the approved plans. · 15 August 2003 - Meetings were held between the council's employees and the owners of both Nos 6A and 8 Algernon Street to try to mediate a solution to this dispute. · The owner/ builder of the dwelling at No 8 Algernon Street was directed to show cause why the council should not proceed with action to have the unauthorised window removed. · 27 August 2003 - An application for a Building Certificate was submitted to the council for the unauthorised window. · 24 October 2003 - A notice was served on the owner/ builder to carry out the required works to remove the unauthorised window. · 3 November 2003 - A representation was made to the council from the owner / builder in response to the council's notice. · 27 January 2004 - A report was put before the council in relation to the representation and the council resolved to proceed with action to have the unauthorised window removed and bricked up. · The applicant appealed the Order to demolish in the Land and Environment Court and at the callover on the 16 April 2004, the registrar directed the applicant to lodge a Section 96 modification application with the council to have the modification further assessed, which was lodged on 21 April 2004. · 15 June 2004 - A report was put before the council to consider the Section 96 application and the council resolved to allow the unauthorised glass block window to remain and to add a new Condition 35. · 5 July 2004 - The Land and Environment Court Appeal was discontinued. · 23 July 2004 - The applicant requested a review of Condition 35 pursuant to Section 82A of the Environmental Planning and Assessment Act 1979. · 16 August 2004 - A report relating to the Section 82A review was placed on the agenda for the August 23 the council meeting. · 7 August 2004 – The council received advice from the objector's solicitor that questioned the validity of a Section 82A review for Section 96 Consent. · 19 August 2004 - The Section 82A review was then withdrawn from the August 23 council meeting. · 19 September 2005 - A sample of the type of clear panel and fixing channels that the applicant wanted to install in the dividing fence was submitted to Council. The applicant was advised again that Condition 35 required solid panels and that a Section 96 application would be required to alter this condition. · 5 May 2006 - A Section 96 application was submitted to the council to modify Condition 35 of DA478/01 to allow clear panels to be installed. · 26 June 2006 – The council at its meeting refused the section 96 application. · 21 July 2006 - A letter was received from the applicant's solicitor stating that the notification of the council meeting was not received until after the meeting took place. They were advised that no review process was available to them and that if they wished the matter to be put before the council again, a new Section 96 application would be required. · 24 August 2006 - A notice was served on the applicant to comply with condition 35 of the consent, as they had not complied with the council's resolution within 60 days. · 6 September 2006 - A Section 96 application was submitted to the council to modify Condition 35 of DA478/01 to allow clear panels to be installed as previously lodged. · 23 October 2006 – The council at its meeting refused the Section 96 application. · 27 October 2006 - An order was served on the applicant to comply with Condition 35 of the consent. The on-site hearing 14 The appeal was filed on 14 November 2006. 15 At the on-site hearing the court heard evidence on behalf of the respondent council from: · Mr George Andonoski, town planner of Kogarah Council; · Mr Stuart Johnson, owner of No 6A Algernon Street, Oatley, objector; and · Ms Shirley Johnson, owner of No 6A Algernon Street, Oatley, objector. 16 On behalf of the applicant evidence was given by: · Mr Jin Han Lu, owner of No 8 Algernon Street, Oatley; · Ms May Wai Yin Chan Lu, Owner of No 8 Algernon Street, Oatley; The issues 17 The issue is whether Condition 35 should be maintained and whether translucent panels should be placed within the fence. The evidence and findings 18 Both parties agreed that the Colourbond fence on the common boundary between Nos 6A and 8 Algernon Street, Oatley, should be replaced to continue the line of the fence along the driveway to No 6A Algernon Street. 19 The question was if the fence were re-erected along the common boundary, how would daylight be provided to the three glass block windows in that section of the side wall of No 8 Algernon Street setback around 100mm. 20 Mr and Mrs Johnson were agreeable to pay half the costs of installing skytubes in the three rooms in the basement provided the fence were re-erected. They were also agreeable to include in the fence sections of full height Colourbond lattice. They did not agree to translucent panels or clear plexiglass panels in the fence, as these might be difficult to maintain, given the limited space for cleaning between the fence and the wall of the dwelling. 21 After some discussion and after testing the light penetration through a section of lattice held in front of the hallway glass block window, the parties were agreed that the best resolution of the matter would be Colourbond lattice panels painted on the driveway side to match the Colourbond fence panels and on the inside facing the glass block windows painted white to enhance reflectivity. I endorsed this outcome and for the above reasons, the appeal was upheld. 22 The applicant also appealed against the terms of an order under s 121B of the Environmental Planning and Assessment Act 1979, which required the Colourbond fence to comprise solid panels with no openings. I am satisfied that the order issued by the council on 27 October 2006 under s 121B may be varied so that the terms of that order are consistent with the orders made in the appeal under s 96(6) of the Act. Conditions 23 The conditions are those that were originally imposed by the council and as amended during the course of the hearing. Orders 24 My orders are: 1. The appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 is upheld. 2. Development application No 478/01 to alter and add to the dwelling house at Lot 201, DP 606855, No. 8 Algernon Street, Oatley, is modified to allow for lattice panels to be included in the boundary fence with No 6A Algernon Street. Amended Conditions 35 and 35A read: 35. A new Colourbond fence is to be erected on the common boundary with No 6A Algernon Street adjacent to the dwelling at No 8 Algernon Street, Oatley in accordance with the provisions of the Dividing Fences Act, 1991 , to a maximum height of 1.8 metres. The fence is to be a solid Colourbond fence with the inclusion of three full height Colourbond lattice panels directly in front of each window in No 8 Algernon Street. The fence and lattice panels are to be similar in colour to the existing fence with the inside of the lattice panels (facing No 8 Algernon Street) being painted white. This work is to be carried out at the applicant's expense and the details are to be submitted to the owners of No 6A Algernon Street before construction commences. 35A. The existing wall of No 8 Algernon Street with the glass block windows, facing No 6A Algernon Street, is to be rendered and painted to match the existing dwelling. 3. The owners of No 8 Algernon Street are to comply with Order No 2 above within three months of the date of this order. 4. The Order issued by the council on 27 October 2006 under s 121B of the Environmental Planning and Assessment Act 1979, is varied so that the terms of the order read: Erect a new Colourbond fence on the common boundary with No 6A Algernon Street, adjacent to the dwelling at No 8 Algernon Street, Oatley, to a maximum height of 1.8 metres. The fence is to be constructed to match the existing where there are no panels at present. The fence is to consist of solid panels with the inclusion of three full height Colourbond lattice panels directly in front of each window in No 8 Algernon Street. The fence and lattice panels are to be similar in colour to the existing fence with the inside of the lattice panels (facing No 8 Algernon Street) being painted white. This work is to be carried out at the applicant's expense and the details are to be submitted to the owners of No 6A Algernon Street before construction commences. The time for compliance is extended to three months. 5. Liberty to restore on 48 hours notice. 6. No order as to costs. 7. The exhibits are retained.