Land and Environment Court of New South Wales CITATION : Bazley v Holroyd City Council [2009] NSWLEC 1131 APPLICANT Bazley Patricia Ann PARTIES : RESPONDENT Holroyd City Council FILE NUMBER(S) : 10047 of 2009 CORAM: Hussey C KEY ISSUES: SECTION 121B ORDER :- Demolish retaining wall and remove filling; overlooking; privacy; drainage LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 28 April 2009 EX TEMPORE JUDGMENT DATE : 28 April 2009 APPLICANT Mr G Newport, Barrister LEGAL REPRESENTATIVES: RESPONDENT Mr G McKee, Solicitor of McKees Legal Solutions JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 28 April 2009 10047 of 2009 Patricia Ann Bazley v Holroyd City Council JUDGMENT Background. 1 This appeal is against a s121 B Order issued in respect of the construction of a retaining wall and associated filling at 6 Kookaburra Street, Greystanes. The Order No 2 required: ( 1) Remove all fill and associated retaining wall from within the property and reinstate natural ground levels (NGL) to those that existed prior to the unauthorised work occurring. (2) Remove large barrels and timber frame work placed across the overland stormwater flow path along the north-western boundary to ensure proper flow of overland stormwater. 2 The required removal works were undertaken to satisfy item (2) and this was not pursued by council. The evidence 3 The property was inspected today, together with the neighbouring properties where the neighbours expressed their concerns about: o loss of privacy due to overlooking from the increased ground levels, o increased drainage run-off nuisances due to the diversion of the natural flows by the filling. 4 The retaining wall that has been constructed is generally set back 900 mm inside the subject property. It has a predominant height of 340 mm. I understand that retaining walls of this height are classed as exempt development and do not require consent, unless there are particular adverse amenity impacts. 5 The area behind the retaining wall has been filled creating a western section, which has been planted with native vegetation. This includes 2x row of Pittosporums that is approximately 2m high. The eastern section has also been filled to about the retaining wall height and is raised approximately 300mm above NGL for a vegetable garden. 6 The neighbours from No 8 Kookaburra Street said that their privacy was compromised due to past overlooking from the vegetable garden area. However they agreed that if the existing levels were to be maintained, then this would be acceptable. 7 The neighbour at the rear of the subject property (16A Hackney Street) also expressed concerns about overlooking, loss of privacy and increased drainage nuisance. Findings 8 Having considered the submissions and undertaken a view, it seems to me that the Pittosporum screen along the western garden has matured and provides an effective screen, reducing overlooking. Taking into account also the intensive native plantings in this area, pedestrian access will be restricted, thereby reducing any privacy impacts. 9 I also note that reference was made to a development consent applying to the dwelling which requires the erection of a 10.5m long x 2.6m high privacy screen in this area. It seems that the mature plantings in this area achieve reasonable privacy. 10 There is however an overlooking problem from the tank location area where the ground level has been built up. Following discussions between the parties, I note the applicant's agreement to erect a 1.8m high privacy fence atop the retaining wall to prevent overlooking. I am satisfied this represents a reasonable level of privacy in the context of this neighbourhood. 11 With regard to overlooking from the vegetable garden, it seems reasonable to allow some filling and containment for the garden but reduce (and maintain) the existing height by 100mm below the retaining wall height. This prevents direct overlooking into No 16A to a reasonable, although at times some persons may be seen. But that is also consistent with the neighbourhood. 12 The drainage concern has to a large extent been addressed by the removal of rubbish and other items along the overland flow path within the 900 mm setback. However, nuisance seepage from the retaining wall could be reduced by the installation of a shallow dish drain to convey water along the overland flow path, initially identified by council. The applicant agrees to this. 13 This accommodate normal overland flows, including any increased run-off from No 8's extensive paved areas, allowing flows into Hackney Street, providing the downstream outlet flow path is also maintained. Conclusions 14 Having considered the evidence, I am satisfied that other orders should be made, which incorporate the afore-mentioned details. This allows the retention of the retaining walls and compliance with the new order should result in reasonable levels of internal and external amenity. Court orders 15 The Court orders pursuant to s 121 B – Order No 2 of the EPA & Act that: 1 The applicant is to construct a shallow dish drain below the base of the sleeper retaining wall extending along the complete length of the northern retaining wall to the western boundary together with a layer of blue metal between the drain and the fence. 2 The existing vegetative screen, or any replacement vegetation, along the northern boundary is to be maintained at a minimum height of 2.4 m. 3 The applicant is to construct a new 1.8 m high screen fence above the existing brick landing located adjacent to the water tank, having a minimum length of 3 m extending from the edge of the step to the west. The top 900 mm panel is to be timber horizontal louvre screen sloping towards the south. 4 The level of the garden bed to the north of the dwelling abutting the dining room is to be maintained to a minimum level of 100 mm below the top of the existing retaining wall which is at 280 mm above the existing ground level. 5 The period for compliance with these orders is 60 days. 6 The exhibits may be returned. R Hussey Commissioner of the Court 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.