Land and Environment Court New South Wales Medium Neutral Citation: Gosling v Penrith City Council [2016] NSWLEC 1288 Hearing dates: 13 May, 8 July 2016 Date of orders: 12 July 2016 Decision date: 12 July 2016 Jurisdiction: Class 1 Before: Dixon C Decision: See paragraph [48] Catchwords: APPEAL – Building Certificate application – unauthorised fence Legislation Cited: Environmental Planning and Assessment Act 1979 Penrith Development Control Plan 2014 Penrith Local Environmental Plan 2010 State Environmental Planning Policy (Exempt and Complying Development) 2008 Cases Cited: First Australasian Holdings Pty Ltd v Poulos [2000] NSWCA 200; Mineral Wealth Ltd v Gosford City Council [2003] NSWLEC 153 Category: Principal judgment Parties: Ty Gosling (Applicant) Penrith City Council (Respondent) Representation: Counsel: Mr Mark Seymour (Applicant) Mr Christopher Drury (solicitor) (Respondent) Solicitors: Coode & Corry (Applicant) Sparke Helmore Lawyers (Respondent) File Number(s): 159731 of 2016 (Formerly 2015/10684) Judgment 1. These proceedings concern an appeal against the Penrith City Council's decision, notified by letter dated 20 July 2015, to refuse the applicant, Ty Gosling's Building Certificate Application BC15/0048, ("Building Certificate Application"). 2. Under the Building Certificate Application, approval is sought to retain the metal panel colourbond fence erected on 41-47 Jolly Street, Castlereagh from the house to the eastern and western sides of the boundaries (the "Site"). 3. The appeal is made by the landowner pursuant to s149F of the Environmental Planning and Assessment Act 1979 (EPA Act). The section provides: 149F Appeals with respect to building certificates (1) An applicant: (a) who is aggrieved by a council's refusal to issue a building certificate, or (b) who is aggrieved by a council's refusal to issue a building certificate within 40 days after: (i) the date of application for the certificate, or (ii) if the applicant receives a notice under section 149C to supply information, the date on which the information is supplied, whichever is the later, or (iii) who receives a notice under section 149C to supply information, may appeal to the Court. (2) The appeal must be made within 12 months after the date on which the refusal is communicated to the person, the date on which the 40-day period expires or the date of the notice under section 149C, as the case requires. (3) On hearing the appeal, the Court may do any one or more of the following: (a) it may direct the council to issue a building certificate in such terms and on such conditions as the Court thinks fit, (b) it may revoke, alter or confirm a notice under section 149C, (c) it may make any other order that it considers appropriate. 1. This appeal was the subject of a joint conciliation conference under s34 of The Land and Environment Court Act 1979 (the Court Act) involving the applicant's modification appeal in respect of the Site (Proceedings 15/10683). As it happened, the modification appeal was resolved by a s34 agreement. That said, the parities' agreed to allow the evidence in the s34 conference to be evidence where relevant for the purpose of this appeal: s34 (4) (b) of the Court Act. In that regard, the Overland Flooding Report prepared for the s34 conference by Glenn Jameson of Baker Ryan Stewart Pty Ltd was tendered in these proceedings as (Exhibit B). 2. The only other expert evidence filed at the hearing was a report by the Council's Acting Coordinator; Certification and Fire Safety, Craig Squires (Exhibit 3). 3. This appeal commenced onsite when the Council's expert, Mr Squires, gave short oral evidence followed by a view of the fencing on some properties within the immediate area. The enlarged extracts from the street directory showed the properties the Court was taken past in the course of that view (Exhibit D). The Court also received several photographs of these properties. The Site 1. The Site is legally described as Lot 122 DP 709303 and is located within the E4 Environmental Living zone under Penrith Local Environmental Plan 2010 ("LEP 2010"). The Site is classified as bushfire prone land. 2. The Site is rectangular in shape, having dimensions of approximately 265m x 88m. The Site has a total area of 23,320m2 (i.e. 2.3320 hectares). 3. The Site is relatively flat with a slight fall towards the rear of the block. There are shrubs and trees scattered throughout the Site. 4. The frontage of the Site has a southerly orientation. It is located on a straight section of Jolly Street, approximately 500 metres south of its intersection with Sheredan Road. 5. The Site is currently occupied by a two storey dwelling, awning, shed, and swimming pool and fencing. The locality 1. The area is dominated by low density semi-rural residential development with a mixture of single and two storey residential dwellings and associated ancillary developments to the side and rear of the dwellings. 2. As was apparent from the view of the area, there are other colour bond metal fences adjoining dwellings and erected across properties in the surrounding streets. However, it was noted that the front fences in the immediate area of the Site were more generally open post and rail style fencing. The statutory controls 1. The Council contends that the following statutory controls are relevant in this appeal. * State Environmental Planning Policy (Exempt and Complying Development) 2008 ("SEPP (Exempt and Complying Development") Subdivision 18 - Fences (rural and environment protection zones Zone R5) * LEP 2010 Clause 2.3 - Zone Objectives and Land Use Table Zone E4 - Environmental Living * Penrith Development Control Plan 2014 ("DCP 2014") Part D1.1 - Rural Character Part D1.2 - Rural Dwellings and Outbuildings Part D1.2.1 - Siting and Orientation of Dwellings and Outbuildings Part D1.2.4- Height, scale and Design Part D1.2.7 - Materials and Colours The complaint 1. On 12 October 2014 a complaint was received by Council regarding a colourbond fence erected at the Site. 2. An inspection was conducted by Council officers on 15 October 2014 to investigate the complaint. The inspection revealed that a metal panel fence had been erected from the house to the eastern and western sides of the boundaries respectively. 3. The metal panel fence is 2.2 meters in height when measured above the natural ground level. The fence is cream in colour with burgundy framework. The latticework on top of the fence is burgundy in colour. 4. The land is in an environment protection zone and as such Division 18 of SEPP (Exempt and Complying Development) is applicable. For a fence located on rural land, it would need to comply with Clause 2.36 of SEPP (Exempt and Complying Development) which provides as follows: "2.36 Development Standards (1) The standards specified for that development are that thedevelopment must: (a) not be higher than 1.8m above natural ground (existing), and (b) not include any masonry construction that extends more than 3m from either side of the entrance to the property from the primary road, and (c) be constructed using post and wire or post and rail, and (d) if it includes an entrance gate - not have a gate that opens outwards, and (e) if it is located in a core koala habitat or potential koala habitat within the meaning of State Environmental Planning Policy No 44 - Koala Habitat Protection or in a movement corridor used by koalas - be constructed or installed in accordance with any relevant council policy or guideline under that Policy, and (f) if it is located on bush fire prone land - be constructed of non-combustible materials or hardwood, and (g) if it is constructed of metal components - be of low reflective, factory pre-coloured materials, and (h) if it is electrical fencing - be constructed in accordance with AS/NZS 3014:2003 Electrical installations - electrical fences, and (i) if it is constructed or installed on a flood control lot - not redirect or interrupt the flow of surface or ground water on that lot. (2) Despite subclause (1), if the fence is erected on a sloping site and stepped to accommodate the fall in the land the fence may not be more than 2.2m above ground level (existing) at each step." 1. The metal panel fence is not exempt development as it fails to satisfy clause 2.36(1)(a) and (c) of the SEPP (Exempt and Complying Development). 2. On 17 October 2014, Council served a Notice of Intention to give an Order under No. 2 in the Table to Section 121B of the Environmental Planning and Assessment Act 1979 ("EPA Act") on the owners of the Site directing them to remove the metal panel fence. 3. On 17 November 2014, Council carried out an inspection of the Site revealed that the metal panel fence had not been removed. 4. On 19 November 2014, Council served an Order under No. 2 in the Table to Section 121B of the EPA Act on the owners of the Site directing them to remove the metal panel fence. The order required that the fence be removed by 19 February 2015. The Building Certificate Application 1. The Building Certificate Application was received by Council on 12 June 2015. 2. On 26 June 2015, Council officers carried out an inspection of the Site and of the fence the subject of the Building Certificate Application. 3. On 29 June 2015, Council's Certification Supervisor advised that a Development Application for a metal panel fence in a rural area would not be supported because it would not satisfy the following requirements of LEP 2010 and DCP 2014: * "Zone Objectives and Land Use Table" under Clause 2.3 of LEP 2010; * Zone E4 Environmental Living under the Land Use Table of LEP 2010; * "General Objectives" under Part D1.1 "Rural Character" of Part D1.1 of DCP 2014; * "General Objectives" under Part D1.1.2 of DCP 2014; * "Objective" and "Controls" under Part D1.2.1 of DCP 2014; * "Background" and "Objectives" under Part 1.2.4 of DCP 2014; * "Background", "Objectives" and "Controls" under Part D1.2.7 of DCP 2014. 1. On 20 July 2015, the Building Certificate Application was refused by Council under delegated authority. Contentions Rural Character 1. The first contention raised by the Council is that the existing metal panel fence is not compatible with the existing rural residential character of the area. That contention is particularised in the Council's Statement of Facts and Contentions (SOFC) as follows: Particulars The existing rural residential character of the area predominately consists of rural dwellings, associated outbuildings and open style rural fencing. The existing metal panel fence will detract from the established pattern of the built form in the area. The existing metal panel fence will have an adverse impact on the rural character of the City of Penrith and is therefore not in the public interest. Instruments and controls relevant to this issue The proposal does not comply with the following controls: (a) Clause 2.3 of LEP 2010 "Land Use Table"; (b) Zone E4 Environmental Living LEP 2010 "Objectives"; (c) Part D1.1 of DCP 2014 "General Objectives"; (d) Part D1.2 DCP 2014 "General Objectives"; (e) Part D1.2.1 DCP 2014 "Objectives" and "Controls"; (f) Part D1.2.4 DCP 2014 "Background" and "Objectives"; (g) Part D1.2.7 DCP 2014 "Background", "Objectives" and "Controls". Amenity 1. The second Contention raised by the Council is that the existing metal panel fence is not compatible with the existing amenity of the area. In that regard the Council contends that: Particulars The existing metal panel fence does not reflect or harmonise with the existing rural character of the area. The style of the fence will have a visual impact on the rural character of the area. The existing metal panel fence is not of an open rural nature consistent in style with that normally found in rural residential areas. Instruments and controls relevant to this issue The proposal does not comply with the following controls: Part D1.2 of DCP 2014; Part D1.2.4 of DCP 2014 "Controls"; Part D1.2.7 of DCP 2014 "Background", "Objectives" and "Controls". Scale and Design 1. The third contention raised by the Council is that the existing metal panel fence is not consistent with the scale and design of fencing that is normally found in rural areas. Particulars: (a) The metal panel fence is 2.2 metres high and solid in nature. This is not the open rural style predominately found in a rural area. Instruments and controls relevant to this issue The proposal does not comply with the following controls: (a) Part 1.2.4 of DCP 2014 "Background" and "Controls" Clause 2(b) which provides: "Fencing is to be of an open rural nature consistent in style with that normally found in rural areas. Internal courtyard fencing or entry fencing should be sensitive to the rural environment". Materials 1. The bulk and scale of the building materials used in the existing metal panel fence are not compatible with the requirements of DCP 2014. Particulars: (a) The materials in the existing metal panel fence are not sympathetic to the character of the rural area as fencing in the surrounding area is predominately open style. Instruments and controls relevant to this issue The proposal does not comply with the following controls: (a) Part 1.2.7 of DCP 2014 "Background", "Objectives" and "Controls". Conditions 1. While the Council maintains that the metal panel fence should not receive a building certification, if the Court decides otherwise the parties have agreed as to the conditions to be imposed on any such certificate. They are outlined in Mr Squires' report at para 22 and after further discussion at the hearing I was told that the Council only presses draft conditions lettered (a), (b) and (c) and (d) – (see para 46). Consideration 1. The Council's principle position is that the fence erected on the Site does not comply with the Council's DCP Control, cl 1.2.4 (2) (b), and therefore a building certificate should not issue. There is no LEP control for fencing on a site located within the E4 Environmental Living zone. Therefore, the DCP provision is the only referable fencing control for the Site. 2. The Control states: (b) Fencing is to be an open rural nature consistent in style with that normally found in rural areas. Internal Courtyard fencing or entry fencing should be sensitive to the rural environment. 1. Although, the words in the Control are not defined I must agree with the Council that an ordinary reading of the provision confirms that the Control does not distinguish between a front fence and internal courtyard fence. Each sentence informs the style of fencing for rural land. All fencing is to be of "…an open rural nature consistent in style with that normally found in rural areas …sensitive to the rural environment". 2. In response to a question from the applicant's Counsel, Mr Squires said that he did not consider the applicant's fence to be an internal courtyard fence. And, even if it were so characterized, he believed that it would not comply with the fencing outlined in the DCP control. 3. Mr Squires' oral evidence initially focused upon the first sentence of the Control. He said that after a consideration of the site and other properties in the rural area he had formed the opinion that the fence was not of "an open rural nature consistent in style with that normally found in rural areas" and therefore at odds with the Control. Later, Mr Squires added that he also considered the fence to be insensitive to the rural environment. 4. The applicant provided to the Council a list of properties in the vicinity of the Site that have solid metal panel fences adjoining dwellings. Mr Squires refers to them in his report at [12]-19]. After inspection of each property and a search of Council's records he told the Court that these fences, as erected, were unauthorized. Some of these fences were erected in the 70s', other in more recent years. 5. When asked in cross examination about the existing character of the rural area having regard to the identified 33 properties with similar fences, Mr Squires said that he did not accept that these properties containing unauthorized fences represented the dominate character in the rural area. Rather, he said that these properties represented a "very small part of the area". 6. At para 21 of his report, Mr Squires explains in some detail why he considers the fences identified by the applicant and discussed at para 14 - 17 of his report as being unsuitable or insensitive to the surrounding rural environment. He states: * the fencing is reflective of that found in urban areas and is not typically seen in zoned rural areas; * the sold fencing is the dominant visual element within the streetscape and detracts from the rural landscape setting in which it is situated; * more appropriate security and privacy measures could be pursued such as screen shrub planting or a combination of rural style fencing materials such as post and rails fencing or chain wire fencing. 1. Mr Squires does not hold himself out to be a town planner (despite having undertaken some study of development and planning during his academic studies). For that reason he did not consider the desired future character of the area in his assessment of this matter. He has simply applied his understanding of the DCP control to the facts of this case and formed the view outlined. 2. Mr Squires' expertise clearly lies in BCA matters and fire safety. Given his temporary appointment as manager in the area of certification, it is not surprising that Mr Squires said he was not in a position to make recommendations about action in respect of the identified unauthorized fences. Although, he did say that he would pass the information onto the incoming permanent officer in due course. 3. The determination of this application under s149 F (3) of the EPA Act allows for a direction that the Council issue a building certificate to the applicant subject to conditions. One of the proposed conditions in this case provides for screening of the fence by planting in pots. The exact terms of the condition have been agreed between the parties if the Court so directs. 4. The Court is not making a s79C assessment of the fence erected. In fact the DCP Control is of no particular relevance in this case. The Court's discretion to direct the issue of the building certificate is broad under s 149F (3). The certificate is, as the applicant submits, a certificate of inaction and based on the particular circumstances of this case. There is no general principle that as part of the assessment as to whether a building certificate should be issued the Court should consider a notional development application for the structure, assuming the structure had not been built: Mineral Wealth Ltd v Gosford City Council [2003] NSWLEC 153. There is no s79C assessment in this case. Accordingly, the DCP Control referred to by the parties is of no significant weight in my determination of this application apart from perhaps being a reference point in the factual background provided to the Court. 5. The applicant is a truck driver who stores his work vehicles on this property. The truck area is accessed via a driveway access from Jolly Street to an approved parking area at the rear of the premises. This access is separate to the family driveway and garage area attached to the dwelling. The applicant submits that the metal fence is necessary because it provides a privacy screen to his backyard and approved truck parking area/shed. Importantly, it also provides a safe play area for his young children. He submits that an open post and rail fence (landscaped or otherwise) as suggested by Mr Squires will not achieve the security and safety that the metal fence currently provides and therefore the fence should be retained by the issue of a building certificate. 6. The metal fence is without question new, secure, landscaped and presently well maintained. And, given the size of the property and its setback from the existing post and rail fence at the front boundary I do not consider that it is any more dominating in the existing rural landscape than the other 33 identified internal fences identified in this case. For that reason I consider it to be generally consistent with the existing rural area. 7. It is not a front fence or in my opinion an internal courtyard fence as referred to in the DCP. Nonetheless it is a fence within the property which serves an identified purpose. I accept the submission that the fence provides both privacy and security for the landowner and his young family. Importantly, the applicant agrees to ensure that the fence does not impede natural drainage of his land particularly in the vicinity of the newly constructed swales. The Council appears to be satisfied about this, subject to the imposition of its draft conditions. For those reasons I am satisfied in this case that the building certificate should be issued by the Council, subject to the imposition of the proposed draft conditions as outlined at para 22 of (Exhibit 3) namely; condition (a) (as modified by the parties during the hearing) and (b), (c) and (d) as agreed between the parties during the hearing. 8. As the applicant's Counsel rightly submits, the mere fact that the fence is non-compliant is why we are here – but not the answer to this appeal. It is not my role in these proceedings to punish the applicant for carrying out unauthorized works but to determine whether the certificate should issue or not in the particular facts of this case. Needless to say, my decision provides no security to the applicant against the Council taking any further action in respect of the unauthorized works. At its highest a building certificate is akin to a certificate of non-action in respect of its contents: First Australasian Holdings Pty Ltd v Poulos [2000] NSWCA 200 at [63]. Orders 1. Accordingly, the Court orders: 1. The appeal is upheld. 2. The Council is directed to issue a building certificate pursuant to s149F(3)(a) of the Environmental Planning and Assessment Act 1979 for the metal fence on 41 - 47 Jolly Street, Castlereagh subject to the draft conditions proposed by the Council in Exhibit 3 is reflected in my reasons for judgment at [46] . 3. The Exhibits 2, 3 and B are returned. Susan Dixon Commissioner ********** 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. Decision last updated: 13 July 2016