Land and Environment Court of New South Wales CITATION : 8 Magill Street Pty Limited v Randwick City Council [2009] NSWLEC 1138 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT 8 Magill Street Pty Limited PARTIES : RESPONDENT Randwick City Council FILE NUMBER(S) : 11052 of 2008 CORAM: Hoffman C KEY ISSUES: DEVELOPMENT APPLICATION :- demolish wall built on top of council retaining wall, not built as approved, existing council wall encroaches on subject property, existing council wall trip hazard on public footpath, structural stability, streetscape if new wall demolished, public risk, ownership of wall. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Building Code of Australia Randwick Local Environmental Plan 1998 DATES OF HEARING: 19/02/2009 EX TEMPORE JUDGMENT DATE : 19 February 2009 APPLICANT Mr I. Hemmings, barrister Instructed by Hones La Hood LEGAL REPRESENTATIVES: RESPONDENT Mr C. McFadzean, solicitor of Shaw, Reynolds Bowen & Gerathy JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 19 February 2009 11052 of 2008 8 Magill Street Pty Limited v Randwick Council JUDGMENT 1 This is appeal 11052 of 2008 between 8 Magill Street Pty Limited and Randwick Council in regard to an order to demolish rear and side masonry walls at 8 and 8A Magill Street, Randwick. 2 The site is in a group of houses and semi-detached dwellings between the University of New South Wales and the Prince of Wales Hospital. The rear wall is at the dead end of Eurimbla Street which the subject site backs on to. There is a pedestrian lane from the dead end up to Botany Street at the university. There is a public footpath past the rear of the site but no access to the subject site due to the site being at a lower level than Eurimbla Avenue. 3 Apparently a council sandstone retaining wall was built just on and partly inside the subject site when Eurimbla was constructed. It caters for the change in level and it projects about 300 millimetres above the public footpath level in Eurimbla Avenue apparently to divert stormwater overflow that occurs in that street. 4 The site has two new semi-detached dwellings on it. The development consent showed on the plans a new retaining wall within the site just inside the council wall. On top of the new wall at the Eurimbla Street footpath level was to be a paling or Colorbond fence about 1.8 metres high. What was built is a 250 millimetre masonry wall on top of the council wall rendered and painted with the return side walls on the two side boundaries of numbers 8 and 8A. 5 The council order in effect requires that they be demolished and the rear and side walls be built as approved. At the hearing under s 121ZK of the Environmental Planning and Assessment Act 1979, the respondent changed its position saying it would not want the new rear wall as approved. The reason being it could interfere with the existing council stone retaining wall due to the latter's partial encroachment on the subject site including its footings. Also the respondent said the side walls are now acceptable as certified structurally stable. 6 The issues were reduced to four in my opinion. One, is the rear wall structurally stable including the council wall and the new one on top? Two, is the appearance in Eurimbla Avenue streetscape acceptable or not? Three, does the wall create an impediment to the public footway? Four, does it create a public risk? 7 There was reference also to the situation if the new wall remains, it would become subject to a lease or an easement or a purchase between the council and the applicant in order to overcome future maintenance and other matters that the parties said need not concern me. 8 I heard evidence on site and in Court from Mr B N Jameson, Director of Kneebone and Beretta, consulting structural and civil engineers, Mr J Inganerie, Co-ordinator Engineering Services, Randwick Council and onsite from Mr K Gray, Senior Planning and Compliance Officer for Randwick Council and Mr J Lovell, Consultant Town Planner. They had prepared joint reports which were in evidence. 9 The town planners agreed that the streetscape appearance of the wall from Eurimbla is not sufficient to justify removal. The engineers agreed the council wall with the new wall on top is structurally stable. 10 Mr Inganerie agreed that the council existing wallas it is projecting into the public footpath and being about 300 millimetres high represents a greater public risk of injury than its extension up to eye height. Obviously this is because down at the 300 millimetre height level at night, it is less likely to be seen by a pedestrian than it is now being rendered, painted a light colour and raised up to eye level. 11 He noted also a telegraph pole is in the middle of the concrete footpath about three metres away and I would think creates an obstruction that dominates the attention of a pedestrian and forces a diversion around it. If a person diverts towards the old council wall, it would have been a trip hazard. It is not a trip hazard now and the likelihood of a person walking into it is very small. 12 It seems to me all the merit issues do not justify removal of the new wall. It appears to be an improvement to the previous situation except for the fact that it is an encroachment outside the site and onto the public land. The council policy on encroachment allows some flexibility up to 200 millimetres or two square metres in area. Mr Inganerie said that above those limits there would need to be a separate council decision or perhaps a decision under delegation to the appropriate officer of council. The new wall is at one location 390 millimetres into the footpath at the dead end of Eurimbla Avenue but that is on top of the council wall not as any additional encroachment. 13 The council policy is not an adopted development control plan and perhaps it has less weight because of that. Nevertheless it is a proper and appropriate council policy to prevent encroachments into the public realm. In this case, however, I have formed the opinion that the outcome "as built" does not offend the public interest or the council policy sufficient to require the removal of the new wall. I am told if the new wall stays on top of the council wall that appropriate arrangements can be made between the parties to guard the council and the public interests but that is a separate matter to these proceedings. 14 The orders of the Court are: 1. The order issued by Randwick Council on 8 Magill Street, Randwick on 24 September 2008 under s 121B of the Environmental Planning and Assessment Act 1979 is hereby revoked. 2. The exhibits are returned to the parties except Exhibit 1. ___________________ K G Hoffman Commissioner of the Court ljr 06/05/2009 - the word Acting has been deleted from signature - Paragraph(s) Commissioners signature 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.