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. ____________________________ J Fakes Commissioner of the Court ANNEXURE A CONSENT ORDERS 1 The Applicant is to remove the existing western retaining wall and relocate and construct a new retaining wall 3.5 metres from the western property boundary as illustrated on Appendix "A" to a height of RL 96.5 (approximately 800mm below the top of the existing wall of the adjacent tennis court). The wall is to be constructed of timber material, certified by a structural certified practising engineer and submitted to Council within 180 days. 2 The Applicant is to remove the fill material between the western boundary of the property and the newly constructed retaining wall (Order 1 above) regraded to natural ground level (consistent with the Plan described as 'Stormwater drainage and detention Job No. 02/038 Drawing No. SWI' dated August 2002 prepared by Ian Neilly P/L and referred to in Construction Certificate 2002/1012) and place 50mm of leaf mulch as illustrated on Appendix "A" within 180 days. 3 The Applicant is to plant six (6) trees along the western property boundary consistent with approved Landscape Plan Drawing No. 7 dated 14 August 2002 with species to consist of two (2) Angophora floribunda (Rough-Barked Apple) trees and four (4) Elaeocarpus reticulatus (Blueberry Ash) trees as illustrated on Appendix "A" within 210 days. No cultivar varieties are to be used in planting and all plants are to be of local provenance sourced from within a 5km locality of the site. 4 The Applicant is to remove the southern property boundary fence to the extent of 11.2 metres measured from the western property boundary as illustrated on Appendix "A" within 180 days. 5 The Applicant is to remove the southern property boundary retaining wall to a length of 11.2 metres (measured from the western boundary) as illustrated on Appendix "A" within 180 days. 6 The Applicant is to reconstruct the southern property boundary retaining wall at a distance of 900mm from the southern boundary for a length of 7.7 metres (commencing 3.5 metres from the western property boundary) as illustrated on Appendix "A" and to a height not greater than 1.3 metres at the western most point. The wall is to be constructed of timber material, certified by a structural certified practising engineer and submitted to Council within 180 days. 7 The Applicant is to remove the fill material between the southern property boundary and the newly constructed retaining wall (Order 6 above), regrade to natural ground level (consistent with the Plan described as 'Stormwater drainage and detention Job No. 02/038 Drawing No. SWI' dated August 2002 prepared by Ian Neilly P/L and referred to in Construction Certificate 2002/1012), place 50mm of leaf mulch and plant screen plantings Pittosporum revolutum that can obtain and be maintained at a height of 3 metres (see Appendix "A") within 180 days. No cultivar varieties are to be used in planting and all plants are to be of local provenance sourced from within a 5km locality of the site. 8 The Applicant is to provide to Council's satisfaction (prior to commencing any works the subject of Orders No. 2 and 7 above) a tree protection plan prepared by an AQF5 arborist that demonstrates how the fill can be removed without further impacting the Tree Protection Zone (TPZ) of Trees No. 1, 2 and 3. All works are to be done in accordance with AS4970/2009 in relation to the protection of existing trees. 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.