Taylor v Ku - ring - gai Council [2012] NSWLEC 1303

Land and Environment Court New South Wales

Medium Neutral Citation: Taylor v Ku - ring - gai Council [2012] NSWLEC 1303 Hearing dates: 24 October 2012 Decision date: 02 November 2012 Jurisdiction: Class 1 Before: Hussey C Decision: Appeal upheld. Conditions varied Catchwords: Development application; Conditions of consent restricting height of boundary fencing around heritage item. Legislation Cited: EP & A Act 1979 Ku - ring - gai PSO, as amended 31 October 2008 Draft LEP No 218 DCP 38. Category: Principal judgment Parties: Phillip Taylor (Applicant) Ku - ring - gai Council (Respondent) Representation: Mr M Luitingh (Applicant) Mr A Hudson (Respondent) Wilshire Webb Staunton Beattie

Uther Webster and Evans (Applicant) File Number(s): 10909 of 2012

Judgment

Background 1This appeal was lodged against conditions of consent imposed on a development application for sections of boundary fencing at 12 Kings Street, Turramurra. The proposed fencing comprises: (i)A northern boundary (A - B), which forms the side boundary with 9 King Street. (ii)An eastern boundary section (B - C), which is adjoins a "battle - axe" handle with 9 King Street. 2The full details of the appeal are contained in the Statement of Facts and Contention, on which I rely. Accordingly, the proposal was for the erection of a lapped and capped paling fence 1800 mm -2200 mm high, which was initially proposed to be stepped to follow the slope of the ground but this was changed with the fence profile to follow the land contour. 3The council subsequently granted consent limiting the height and specification as stated in the following Condition 4: 4.Fencing materials and design Fencing shall be located as indicated in yellow on the plan prepared by North Western Surveys. Lapped and capped timber fencing shall have a maximum height of 1500mm. The fencing shall be erected to follow the grade of the land (no steps) and the fence rails shall be within the 12 King Street property. Fencing forward (to the south) of a line 9 metres to the north and parallel with the northern boundary of King Street shall not exceed 1.2 metres in height. A transition shall be provided between the 1.2 metres high fence and the 1500mm high fence Alternatively An 1800mm high open style palisade fence consisting of metal pickets, slats, pipes or the like panels with an aperture of 50mm to 100mm may be erected