Demlakian Consulting Engineers v Ku-ring-gai Council [2010] NSWLEC 1035

Land and Environment Court of New South Wales

CITATION : Demlakian Consulting Engineers v Ku-ring-gai Council [2010] NSWLEC 1035

APPLICANT Demlakian Consulting Engineers PARTIES : RESPONDENT Ku-ring-gai Council

FILE NUMBER(S) : 10909 of 2009

CORAM: Dixon C

KEY ISSUES: HERITAGE :- Fence

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

DATES OF HEARING: 19 February 2010

DATE OF JUDGMENT: 23 February 2010

APPLICANT Mr T Howard (barrister) SOLICITOR Wilshire Webb LEGAL REPRESENTATIVES:

RESPONDENT Ms M-L Taylor (soliticitor) SOLICITOR Bartier Perry

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Dixon C

23 February 2010

10909 of 2009 Demlakian Consulting Engineers v Ku-ring-gai Council This determination was given extemporaneously and has been edited prior to publication

JUDGMENT

1 This development appeal pursuant to section 96 of the Environmental Planning and Assessment Act 1979 (EPA Act) concerns consent for the modification and (retrospective approval) of the front fence erected on the applicant's heritage listed site at 26 and 26A Wattle Street Killara. 2 The appeal-commenced onsite as a section 34-conciliation conference and this facilitated the resolution of all of the issues raised by council accept whether the sandstone piers as built should remain. The parties have asked me to terminate the conference and finally determine this issue. 3 Having had an opportunity to view the site and surrounding area and consider the written and oral evidence of the parties together with the relevant matters in section 79C of the EPA Act I have determined that the sandstone piers as constructed are to remain subject to the agreed modification. I set out the reasons for my decision below. Background 4 The site is rectangular in shape and is predominately flat but has a gentle cross fall sloping from east to west. The block has a 40.2 m frontage to Wattle Street and setback from that street frontage is a large federation house with a U shaped driveway with dual access. The frontage also contains a fountain with landscaping and a partly constructed sandstone and cement pier fence that flows the slope of the land. 5 The original sandstone front fence of the property is identified as a Heritage Item within Schedule 7 of the Ku-ring-gai Planning Scheme Ordinance (KPSO). However, all that remains of that fence is the sandstones and the rail. The applicant has adapted and reused the original sandstones to face the new cement and pier fence. According to the evidence he also intends to restore (and where necessary replicate) the original wrought iron rails and secure them between the newly erected piers. 6 Council has not approved the fence as erected by the applicant and says it has been built in contravention of condition 83 of consent DA/1025/00. The applicant has lodged this application to obtain retrospective approval for those works to the fence (although I note the evidence discloses that there has been a succession of modification applications to the original council approval).