Foster v North Sydney Council [2016] NSWLEC 1008

Land and Environment Court New South Wales

Medium Neutral Citation: Foster v North Sydney Council [2016] NSWLEC 1008 Hearing dates: 14 December 2015 Date of orders: 08 January 2016 Decision date: 08 January 2016 Jurisdiction: Class 1 Before: Maston AC Decision: See paragraph [18] below Catchwords: ORDER TO REMOVE UNAUTHORISED BUILDING: Courts discretion to make an order with respect to compliance; Council Order confirmed subject to compliance within 3 months. Legislation Cited: Environmental Planning and Assessment Act 1979; North Sydney Local Environmental Plan 2013 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Category: Principal judgment Parties: Basilika Tatiana Foster (Applicant) North Sydney Council (Respondent) Representation: Mrs B.T. Foster (Applicant in person) Mr M. Pearce, solicitor (Respondent) File Number(s): 10540 of 2015 Publication restriction: No

Judgment 1. This is an appeal under s.121 ZK of the Environmental Planning and Assessment Act, 1979, (EPA Act) by Mrs B. T. Foster against an Order dated 29/5/2015 issued by the North Sydney Council to her under s. 121B of the EPA Act. 2. Specifically, the Order given by the Council is "to demolish or remove a building", which is Order No.2 in the table to s.121B. The circumstance relied upon by the Council is that a portion of lattice fencing on top of the boundary wall between Mrs Foster's property at 15 Military Road, Neutral Bay, and 13 Military Road, Neutral Bay "was erected without prior approval of Council, in a case where prior development consent is required". 3. The particular section of lattice affected by the Order is the higher of the two sections of lattice work on top of the dividing wall. The lower section was formerly agreed between the neighbour at No. 13 Military Road to be unobjectionable. The precise area of the lattice work affected by the Order is clearly identified by photographs marked by the Council officers. The height of the lattice in question is stated to be in excess of 2.7m and extends from the back wall of the dwellings to the rear boundary. 4. The hearing of the appeal was conducted on site at Mrs Foster's dwelling following a view of the fencing from both No.13 and No.15 Military Road. 5. Mrs Foster appeared for herself and Mr. M. Pearce appeared for the Council. Oral evidence was given by Mrs. Foster and she relied upon her Statements of Facts and Contentions which had been filed in the Court on 3rd and 4th of November, 2015. 6. The Council relied on the statement of expert evidence dated 8/12/2015 of its Compliance Officer Ms Katrina Moore who holds qualifications in Law and Environmental Engineering Management. Ms Moore also gave oral evidence. 7. Mrs Foster accepted and Ms Moore's evidence of her searches and enquiries demonstrate that Mrs Foster has never sought or obtained development consent under the EPA Act for the erection of the lattice fencing on the boundary in question. At the date of the Order, 15 Military Road was zoned R4 High Density Residential under North Sydney Environmental Plan 2013. The only works permitted without development consent are environmental protection works and lattice fencing does not fall into that category as it is defined. 8. Ms Moore referred to State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the Code) which allows certain types of development without the need for development consent provided certain standards are met. Subdivision 17 of the Code contains the required development standards that must be complied with in order that a fence in an R4 Residential Zone may be erected without development consent. Relevantly clause 2.34 within Subdivision 17 of the Code specifies the standard that the fence is not to be higher than 1.8m above ground level (existing). 9. Ms Moore concluded, and I accept, that the construction of the lattice on top of the boundary fence is in excess of 2.75m above ground level is unauthorized work for which there is no Council approval. Neither party suggested that existing use rights with respect to the existing fencing existed.