Vieira v Ku-ring-gai Council [2010] NSWLEC 1279

Land and Environment Court of New South Wales

CITATION : Vieira v Ku-ring-gai Council [2010] NSWLEC 1279

APPLICANT Mr J Vieira PARTIES : RESPONDENT Ku-ring-gai Council

FILE NUMBER(S) : 10387 of 2010

CORAM: Fakes C

KEY ISSUES: CONSENT ORDERS - SECTION 121B ORDER :- unathorised retaining walls, fill and boundary fence; impacts on visual amenity and Blue Gum High Forest species; rectification ordered.

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Threatened Species Conservation Act 1995 Ku-ring-gai Planning Scheme Ordinance

DATES OF HEARING: 30/08/2010, 18/10/2010

DATE OF JUDGMENT: 18 October 2010

EX TEMPORE JUDGMENT DATE : 18 October 2010

APPLICANT Mr J Vieira [litigant in person]

LEGAL REPRESENTATIVES: RESPONDENT Dr J Smith, SOLICITORS Norton Rose

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Fakes C

18 October 2010

10387 of 2010 Vieira v Ku-ring-gai Council This determination was given extemporaneously and has been edited prior to publication

JUDGMENT 1 COMMISSIONER: This is an appeal against an order issued by Ku-ring-gai Council pursuant to s 121B of the Environmental Planning and Assessment Act 1979 (the Act) for the unauthorised construction of timber retaining walls, associated works and southern side boundary fence at 29 Lucinda Avenue Wahroonga. 2 The applicant seeks that the orders be revoked and that the works remain in their current form and those approvals, retrospective or otherwise, are granted. 3 The council seeks the removal of the retaining walls, southern boundary fence, associated works and fill and the re-contouring of the ground levels and planting of vegetation. 4 These orders are sought on the basis that the unauthorised works: - generate an unacceptable visual impact on the area and are not consistent with the aims and objectives for residential zones of the Ku-ring-gai Planning Scheme Ordinance (KPSO) - are contrary to the objectives of Development Control Plan 38 regarding streetscape, open space and landscaping, and - are contrary to the preservation objectives of the Threatened Species Conservation Act 1995 (TSC Act) due to the impact on trees representative of the Critically Endangered Ecological Community – Blue Gum High Forest BGHF). The impacts on BGHF are said to be from soil build up and discharge of stormwater. 5 The contentions between the parties have been resolved and they are seeking Consent Orders from the Court. In accordance with the "Practice Note – Class 1 Development Appeals (cll35 and 36) the "consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account". There were no objectors in this appeal. 6 I am satisfied that I have the power under s 121ZK(4) of the Act to modify an order and that the proposed orders comply with the relevant clauses of the KPSO, DCP 38 and the TSC Act. I therefore accept that the granting of Consent Orders is appropriate in the circumstances. Order 9 is beyond the powers of Commissioners of the Court and is to be referred to the Registrar. 7 The Orders of the Court, by consent are: 1. Appeal No. 10387 of 2010 is dismissed. 2. The s 121B Order No. EPA0121/09 issued by Ku-ring-gai Council to the applicant on 19 April 2010 be substituted with orders 1-8 of Annexure A. 3. The exhibits are retained.