Land and Environment Court of New South Wales CITATION : Wyarra Properties Pty Limited v Parramatta City Council (No 2) [2007] NSWLEC 455 APPLICANT Wyarra Properties Pty Limited PARTIES : RESPONDENT Parramatta City Council FILE NUMBER(S) : 10340 of 2007 CORAM: Moore C KEY ISSUES: Development Application :- Contested condition of consent CASES CITED: Wyarra Properties Pty Limited v Parramatta City Council [2007] NSWLEC 403 DATES OF HEARING: N/A DATE OF JUDGMENT: 26 July 2007 LEGAL REPRESENTATIVES: On the papers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE C 26 July 2007 07/10340 Wyarra Properties Pty Limited v Parramatta City Council JUDGMENT The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 1 COMMISSIONER: On 3 July, I gave a decision concerning general issues for a proposed townhouse development at 155 Carlingford Road, Epping (the site) [see Wyarra Properties Pty Limited v Parramatta City Council [2007] NSWLEC 403]. 2 As a consequence of those merit findings, the applicant has provided revised plans to reflect that determination and Parramatta City Council (the Council) has provided revised conditions of consent. 3 One matter remains to be determined – that is a single, contested condition in the conditions of consent. 4 This condition relates to the nature of the construction phase fencing which is to be erected on the boundary of site adjacent to the Wyber residence at 26 Orchard St. 5 The relationship between this residence and the site gave rise to a number of issues during the view and resulted in several matters of agreement for amelioration of long-term possible impacts concerning overlooking, noise and other matters. 6 One of the agreed matters related to the planting of screening vegetation along the common boundary for privacy purposes – both to provide privacy to the existing Orchard Street residence from the proposed development and to provide it to residents of the proposed development from that residence. 7 The "without prejudice conditions of consent" originally provided for a construction phase site fence along this boundary, in Condition 41 of the conditions of consent, in the following terms: The site must be enclosed with a suitable security fence to prohibit unauthorised access, to be approved by the Principal Certifying Authority. No building work is to commence until the fence is erected. Reason: To ensure public safety. 8 The standard of height of a construction security and dust barrier that would ordinarily be expected to be installed as a consequence of such a condition would be 1.8 to 2 m in height. 9 The Council now proposes, as a new version of Condition 41, that the site barrier to be erected along this boundary, during the construction process, is to be 3.5 m high and covered in hessian. 10 The covering letter from the Council's solicitors read, relevantly: 3. The conditions are agreed between the parties except condition 41. 4. The wording on condition 41 is based on a request from Mr and Mrs Wyber, the occupiers of 26 Orchard Street, Epping. 5. A copy of an email from the Wybers to Council dated 8 July 2007 is enclosed. 6. The applicant's solicitors may wish to write to you to explain the applicant's objection to the condition. 11 The Council's revised, proposed Condition 41 is in the following terms: The site must be enclosed with a suitable security fence to prohibit unauthorised access, to be approved by the Principal Certifying Authority. In this regard the fence at the rear of the site shall be 3.5m high and constructed of chain wire mesh covered with hessian. No demolition, earthworks or building work shall commence until the fence is erected. Reason: To ensure public safety and reduce opportunities for overlooking into the property at the rear. 12 The sole reason advanced by the Council's solicitors for requiring the barrier of these unusual dimensions was that the owners of the existing Orchard Street residence have requested this barrier be at a height equal to the height which is to be achieved by the landscaping along that boundary. The exact terms of the request are set out in the e-mail cited in (10) – the e-mail is in the following terms: Re 155 Carlingford Road Epping - screening barrier The height for privacy purposes and dust elimination needs to be 3.5 metres above ground level for the entire length of our side boundry, which is the same height as the screening plants SYZYGIUM AUSTRA.LE as shown on the landscape plan. This is approximately 2 metres about the existing fence. 13 I requested the Council's solicitors to advise if this was, in fact, the sole basis for requiring this condition. I did so, relevantly, in the following terms: If I am to determine the form of this condition, I seek clarification that the submission on behalf of the Council on this condition comprises, solely, the letter from Mr Marincowitz of 11 July and the attached copy of an e-mail from Mr and Mrs Wyber. 14 The Council's solicitors advised: 1 We refer to your letter dated 20 July 2007. The only other material that Council relies upon in relation to Condition 41 is: (a) The letter to Council from Mr and Mrs Wyber dated 3 December 2006 (last paragraph); and (b) A further email from Mr and Mrs Wyber to Council dated 5 July 2007. 2 Copies of those two documents are attached. 15 The paragraph referred to in (a) immediately above is in the following terms: Construction phase Should construction occur we would like safe guards to be in place and strictly complied to, they should cover:­ Excessive noise from radios Swearing from workers Dust protection for our house and our pool Screening us from the building site Strict adherence to work hours with signs on the front fence indicating those hours A 24 hour hotline to the building supervisor and Council compliance officer to report any breeches - 7 days per week No construction vehicles should be left overnight in Orchard Street No movements should take place with such vehicles in Orchard Street prior to or after the designated work hours. 16 The e-mail referred to in (b) above is in the following terms: Re: DA /1014/2006 - 155 Carlingford Road Epping We have emailed councillor Esber and informed him of the surprise roll out plan for 16 townhouses as well as detailling him on the unresolved objections of residents and ask him to follow up accordingly on our behalf. We would, however, like you to ensure that we have substantial screening (mesh, hessian etc.) on the fence line of our property to ensure our privacy as well as reducing noise and dust, from the commencement of the construction phase, as per our letter of objection. Please advise accordingly. 17 The Council has made no independent assessment, as I understand the material provided to me [as set out above], of the reasonableness or otherwise of this request. Contrary to what I understand to be the responsibility of the Council to have some proper planning or other basis for the imposition of any condition, it appears, from the material provided to me, the Council has merely acted as a passive recipient and adopter of this proposal. 18 I have not being provided with any independent assessment by a Council officer of the utility or otherwise; reasonableness of cost or otherwise; or, indeed, feasibility or otherwise of the erection and maintenance of such a barrier. 19 On the other hand, I have been provided with a concise written submission on behalf of the applicant as to why it is unnecessary and unreasonable to require the erection of anything other than the standard security and dust suppression barrier. The terms of this submission are: 1. Condition 41 The Applicant objects to this condition on the basis that it is unnecessarily onerous, oppressive, and unreasonable. In particular the Applicant notes that: (a) the standard height utilised for site fencing is 1.8 meters and the requirement of a 3.5 meter high fence would result in the need to construct a custom made fence for the site at considerable expense. (b) the condition is required by Council at the request of the owners of 26 Orchard Street. No other particulars are provided by Council and the request does not demonstrate why a fence of 3.5 meters is required. A 1.8 meter high fence is sufficient to meet any privacy and dust concerns (together with Council's Conditions 36, 54 and 4 with respect to dust and the topography of the site such that the owners of 26 Orchard street overlook the site and not vice versa). (c) we understand that Council usually requires fencing of this type only to a height of 1.8 meters. There are no exceptional circumstances established by Council that would require a deviation from the standard Council requirements in the present case. (d) we are instructed that a fence of 3.5 meters in height increases the structural engineering and design requirements due to the resulting wind load and as such a fence of this height may be structurally unsafe. The costs associated with the necessity to construct the fence to withstand a significant wind load are not justified where the fence is temporary. Whilst the Applicant appreciates the neighbour's wish to preserve amenity during the construction phase, it contends that the neighbour's concerns regarding privacy and dust elimination are adequately addressed by the Conditions of Consent proposed by Council and Condition 41 as proposed by the applicant. The Applicant therefore seeks that Condition 41 be altered to state: ... In this regard the fence at the rear of the site shall be 1.8 meters high and constructed of chain wire mesh covered with hessian ... 20 In the face of the material provided by the applicant and the absence of any independent assessment, apparently, by the Council of the request by the neighbours, it is difficult to treat the Council's proposal for this unusually high security and dust suppression barrier with any seriousness. 21 However, I propose to assess the condition on the basis that, despite the absence of material in support of the proposed condition, there may possibly be some valid purpose (other than a mere uncritical adoption of the neighbours' proposal) for requiring the proposed fence during the construction phase of development. I have, therefore, considered whether anything might be said in its favour and assess that against the submissions that were made by the applicant in opposition to the condition. 22 In doing so, necessarily, given the complete absence of any supporting submissions of any technical nature provided by the Council, I must consider whether there would be some particular and valid reasons, specific to this site, which support the Council's now position for a security fence and dust barrier of the height proposed. 23 I am satisfied that there are not and that the condition should be for a standard height security and dust suppression barrier as proposed by the applicant. 24 I have reached this conclusion for the reasons described in the following paragraphs. 25 First, I am satisfied that the reasons advanced by the applicant as to the difficulty and additional cost of the erection of such a barrier render it unreasonable under the circumstances (absent some significant detriment requiring to be cured – which detriment would be capable being inferred from either the nature of the proposed construction or from the topography of the site). I am satisfied that there is nothing idiosyncratic arising from the nature of the proposed construction or from the topography of the site which would give rise to such a requirement. 26 Second, the conditions of consent already contain a number of provisions designed to deal with matters of environmental amenity during the demolition and construction stages of the project. 27 These other relevant provisions are uncontroversially included in the agreed conditions of consent and are set out in the following paragraphs. 28 Condition 36(d), a condition applying "Prior to Work Commencing", reads: Dust control – Dust emission must be minimised for the full height of the building. A minimum requirement is that perimeter scaffolding, combined with chain wire and shade cloth must be used, together with continuous water spray during the demolition process. Compressed air must not be used to blow dust from the building site; 29 Condition 55 deals with hours of work and reads: Building work may only be carried out six (6) days a week, Monday to Friday between the hours of 7.00am to 8.00pm and Saturday 8.00am to 8.00pm. No work is permitted to be carried out on Sundays or Public Holidays. 30 Condition 66, which is operative during construction, reads: Dust control measures shall be implemented during all periods of earth works, demolition, excavation and construction in accordance with the requirements of the NSW DEC. Dust nuisance to surrounding properties should be minimised. Reason: To protect the amenity of the area. 31 It is long settled that, as a matter of law, I am obliged to presume (as is any consent authority, including the Council which proposes this condition), that any person or entity given the benefit of a development consent subject to conditions will abide by those conditions. 32 If, perchance, for some reason or another, such conditions are not met, that is a matter to be dealt with in another Class of the Court's jurisdiction and not in a merit assessment such as this. 33 It therefore follows that, unless these conditions are manifestly deficient in some relevant respect which is capable of being cured by the proposed barrier, there is no basis arising out of the other conditions of consent upon which to found such a requirement. I can see no such deficiencies. 34 The issues of privacy which are to be addressed by the landscaping screening measures agreed to by the applicant (and now incorporated in the plans for the development) provide a reasonable response to the privacy matters involved between residential neighbours (particularly the protection of privacy of bedrooms and private open spaces) – a matter of greater sensitivity when the development is on a zone boundary with a lesser density zone [as is the present case]. 35 Indeed, it is fair to say that, as the existing Orchard Street residence is higher than the proposed development's relevant private open space areas and bedroom 2 of the townhouse to the immediate north of the Wyber residence, the agreed vegetation screening is needed more for the protection of the privacy of future residents of the development than for any protection of that of inhabitants of the existing Orchard Street residence. 36 The Council's relevant conditions of consent for the demolition and construction phases, as set out earlier, do not contain any exceptions which would indicate that construction is likely to occur under circumstances when privacy sensitivity might be greater. 37 As a consequence of the foregoing, I am unable to establish any possible valid reason for requiring a security and dust suppression fence of the height proposed by the Council. The fence will be as proposed by the applicant and the wording (including the explanatory "Reason") of Condition 41 altered to reflect this. 38 Indeed, absent the Council providing any technical evaluation or argument to justify the imposition of such a condition, it might be considered entirely unfair and unreasonable that the applicant has been required to go to the trouble and expense involved in providing justification of what it would ordinarily expect to be the standard nature of such a security and dust protection barrier. 39 However, whether or not that additional work which was needed to be undertaken to do so [with its attendant cost] was unfair and unreasonable under all the circumstances is not a matter with which I can deal in these proceedings. Tim Moore 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.