Land and Environment Court of New South Wales CITATION : Steger v Ku-ring-gai Council [2008] NSWLEC 1219 APPLICANT Alois Steger PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 11284 of 2007 CORAM: Hoffman C KEY ISSUES: Deemed Refusal - Section 96 Modification :- streetscape, visual and acoustic privacy, boundary wall, Land and Environment Court Act 1979 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Ku-ring-gai Planning Scheme Ordnance DATES OF HEARING: 27/03/2008 03/06/2008 EX TEMPORE JUDGMENT DATE : 3 June 2008 APPLICANT Ms J. Reid, solicitor, Instructed by Mr J. Palmer, solicitor, LEGAL REPRESENTATIVES: of Pike Pike & Fenwick RESPONDENT Ms L. Finn, solicitor, of Home Wilkinson Lowry, Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 3 June 2008 11284 of 2007 Alois Steger v Ku-ring-gai Council JUDGMENT 1 This is a Class 1 Appeal No 11284 of 2007 between Steger and Ku-ring-gai Council in regard to works at No. 31 Murdoch Street, Turramurra, a detached residential house, in a suburban street. The Appeal was subject to a s.34 conciliation conference on-site along with two other appeals, those two have been settled between the parties under s.34 (3)(a) of the Land and Environment Court Act 1979 and deal with matters related to this appeal. The Appeal was in regard to Council's refusal of a s.96 modification No. MOD0022/07 of DA 237/04 for alterations and additions to an existing house. 2 The parties did not reach agreement under s 34 on this appeal but sought that the Commissioner hearing the s 34 terminate the conciliation conference and proceed to a further hearing on the matter. 3 At that hearing the applicant was represented by Ms Reid and the respondent was represented by Ms Finn. Also attending were objectors Mr and Mrs Dingley of No. 29 Murdoch Street, the neighbour on the western side of the subject property. Along that boundary but on the subject property is a masonry base course with brush fencing on top for part of its length, and a picket fence top near the street boundary. It is entirely on the subject property so it is not a boundary fence in the normal sense. 4 From the street frontage at Murdoch Street the picket fence extends down on top of this wall, to about the front building setback line. From thereon there is on top of the wall the brush fence. Part of the application is to remove the brush fence and erect on top of that a masonry wall which tapers in height due to the slope of the ground line from being almost zero up near the street to 1.8 m high at the furthest end adjoining an existing carport on the objectors' property. The objectors' driveway runs down the slope from the street to the carport beside the boundary. 5 Another matter the subject of the application is treatment of an existing balcony erected during the alterations and additions at the front of the subject house that is on the same side of No. 29 Murdoch Street. Due to that balcony there are concerns by the neighbour about acoustic and visual privacy for their bedroom and living room at the front of No. 29. Also from the end of the balcony there is vision down the driveway to the rear of No. 29 and its yard area. 6 There are also works in the front garden in regard to entry paths, gates and garden walls. These are no longer disputed. 7 The locality is a suburban area in east Ku-ring-gai with houses predominantly of the 1920s to 1945 construction period and the area is zoned residential 2(c) Ku-ring-gai Planning Scheme Ordinance. There are one and two-storey dwellings in the locality, most with deep front setbacks and traditional gardens and mature trees. Most properties in close proximity to the site either have low front fences or no front fence at all, or where there is a front fence, there are deep front setbacks that give the impression of space and vegetation between the street and the dwelling. 8 In addition to the statutory control the Ku-ring-gai Residential Design Manual Development Control Plan No. 38 applies. Whilst there are other controls having application, the parties agreed that they are not relevant to this hearing. 9 There had been some negotiation between the parties both during s 34 process and during this hearing and they came to the Court with consent orders and conditions. The issues that had been separating them were in summary: 1. The new pathway for the front area to the road reserve, as well as the proposed solid rendered fences would increase the built on area at the site to greater than 60% in breach of cl 60C(2) of the Planning Scheme Ordinance . 2. The solid masonry fences along the eastern and western boundary are considered to be uncharacteristic of the streetscape and 3. The extension to the first floor front balcony is unacceptable because it is likely to cause a loss of privacy to No. 29 Murdoch Street and for the solid balustrade also adds unnecessary bulk and scale to the front façade that is also considered to be unsatisfactory. 10 The parties had agreed that the Court could take into account from the s.34 conciliation, the observations made on-site as part of this hearing. It was noted that the original plans did not accurately reflect some of the garden walls that had been constructed and amended plans had been prepared. Also the amended plans showed the erection of a privacy screen at the western and southern end of the first floor balcony in order to prevent direct visual viewing to the neighbouring property. There are also proposed to be vegetation planted in planter boxes at the end of the balcony to give additional screening and reduce the area of the balcony that would be useable. 11 In regard to the western boundary fence to be extended in masonry as previously described, the reasons according to the applicant are to avoid water running down hill and over the boundary into the subject property from No. 29, and also to give some acoustic noise reduction from cars using driveway and the carport along that side boundary of No. 29. 12 Mr and Mrs Dingley had been advised of the proposed consent orders and came to the hearing to give evidence. Two concerns are: 1. that the privacy screen should be retained for the life of the development and they hoped that might be added as a s 88B instrument on the title of the subject property; and also 2. that the screens and plantings on the balcony should be erected within six weeks from the date of making the order. 13 The applicant said that test cases had shown that it was unlikely or unreasonable for the Court to impose a s 88B instrument simply to police the condition of consent when there is action open to the Council to enforce any condition of consent. I agree with this submission, the applicant however did agree to an amendment to the consent orders to require that the works be done in a six week timeframe. 14 In regard to the planter boxes, the applicant proposed to buy three planter boxes; each a half a metre by half a metre by half a metre in size, and install them at the end of the balcony. Mr and Mrs Dingley were concerned that these would not be big enough to provide sufficient soil for substantial plantings. 15 It occurred to me that the privacy screen would provide the visual privacy and the vegetation was simply an enhancement to make the treatment more attractive. 16 Mrs Dingley said that in addition she had thought the planter boxes would be much bigger, so that the section of the balcony which had previously been constructed not in accordance with the original approval (but now had been approved by the parties), would not be trafficable. It was said that the children of the subject property tend to use it for sunbathing and talking on mobile phones and this becomes a nuisance to the Dingleys. 17 The applicant said in regard to this that as can be seen from the visit to the subject site, the applicants are keen gardeners. They believe the three planter boxes they have proposed would support lily pillies with proper care and maintenance. These would provide the necessary softening of the built form and the view from the Dingleys. 18 In regard to acoustic privacy the applicant noted that the distance of separation to the Dingleys' front living room which projects from the main building forward towards the street with French doors looking back towards the subject balcony, is a minimum of 15 m. In a suburban area where there must be a certain amount of proximity and overlooking that separation is usually considered to be sufficient for privacy. 19 I noted also that the area the Dingleys are speaking about is virtually the front yard of their property, and can be seen going along the street. In most cases the front yards in this locality are fairly open to observation from the street, so absolute privacy is obviously not an expectation in that location. It can only be the frequency of use of the balcony that might give rise to some nuisance. I formed the opinion that the privacy screen which will give positive visual privacy to the Dingleys plus the vegetation is sufficient to give reasonable suburban amenity and privacy to both of these houses from rooms and balcony that must be regarded as semi-public facing the street. 20 In regard to the side boundary wall on the subject property Mrs Dingley was concerned that a similar wall erected on the opposite side boundary of the subject site had been left as rough concrete block work facing its neighbour in a most unattractive finish. She hoped it would not be repeated on her side of the property. The applicant indicated that he was prepared to accept a condition that the wall would be rendered and painted to a colour acceptable to the Dingleys provided access is granted to do the work. 21 The fence being entirely on the subject property is not a boundary fence and the Dingleys had planted some vegetation along the side boundary which would need to be somehow protected from the building works, particularly from the rendering work and the painting, and the applicant indicated that he was also prepared to require the replanting of any vegetation which might be damaged to a point where it would not recover during the process. 22 Also Mrs Dingley was concerned about the appearance of the fence from her side. She preferred that it be simply be a foundation masonry wall with a picket fence or brush fence on top of it for the length of the proposed fence line. 23 The applicant said that is not the proposal and it would not agree to such modification. However it is prepared to agree to replace the existing picket fence, which extends from the front boundary to a point about 14 m along the side boundary, with a new matching picket fence. Mrs Dingley was concerned that would be a little short of the location where she often stops her car to unload her children and the drop over the masonry wall to the subject property might be a safety hazard. Because of the change in ground level, the top of the masonry at that point would be only a little above the ground level in No. 29. 24 The applicant indicated that it is prepared to extend the picket fence along the top of the masonry wall to ensure that given the shape of the ground, the wall would be high enough so that a child could not clamber over it. It was agreed that the picket fence would extend from the front boundary 18 m along the side boundary, in order to achieve that objective. 25 Having heard the evidence and recalling the view of the site, it seems to me that the fence being on the subject property, it is not the same as a common fence, where both neighbours have to agree to the materials and height, and of course the costs which will not be visited upon the Dingleys in this case. 26 It seems to me that the applicant has, if not a substantial reason then an adequate reason to require a masonry wall. It would then mean that the inclined section of the driveway and the section where cars are started or stopped on No. 29 would have the higher masonry wall to give some acoustic protection to the subject property from that particular nuisance. 27 The Dingleys were also concerned that the masonry wall may be unsightly and inappropriate to the streetscape and the landscape setting of the houses. I noted in walking up and down the street, and it can be seen from photos that were on file at the time, that the major part of the fence seen from this street is the picket fence. Because of the slope downhill, the portion of the fence where the masonry wall commences is largely obscured on the Dingleys' side by their boundary vegetation and on the subject property's side by its front garden landscaping and the house. The wall plays no great role in the streetscape presentation and the local streetscape of houses in landscaped settings will be maintained as a character of the street. 28 Overall I find no reason sufficient to refuse the Consent Orders sought by the parties. Therefore the orders of the Court are by consent: 1. The appeal is upheld. 2. Modification application No. MOD0022/07 is approved, subject to the conditions which are annexed hereto and marked 'A'. 3. The Court notes that the parties have agreed no order as to costs. 4. The exhibits are returned to the parties, except Exhibit 2. ___________________ K.G. Hoffman Commissioner of the Court kb 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.