Bogardus v Ku-ring-gai Council

JUDGMENT

1. This appeal arises from the actual refusal of Development Application DA0496/24 through which Elissa Bogardus seeks consent to demolish an existing dilapidated boundary fence, and to construct a 2.7m high noise attenuation wall along the boundary of her property at 8 Yalunga Place, St Ives, Lot 53 of DP 246138.

2. The proposed fence runs for 21 metres along the eastern rear edge of Ms Bogardus’ property to the southeastern corner, and then for 8 metres along the southern boundary. The noise attenuation properties are intended to improve the acoustics to the ground level living space and bedroom, and to the outdoor grassed area between the dwelling and boundary by reducing the noise from nearby Horace Street.

3. The existing fence is a timber paling fence that is approximately 1.8m high. It has collapsed in part and has fallen onto the adjacent Council land in some places. The Council land to the east of the fence line is Mashmans Quarry Reserve, owned by Ku-ring-gai Council, the respondent in these proceedings. Beyond the reserve lies Horace Street, part of a busy road running north-south through Sydney’s north shore. Along the southern boundary is a public pathway connecting Yalunga Place to the reserve, and beyond that is a neighbouring residence at 7 Yalunga Place.

4. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 11-12 September 2025. As the parties did not reach agreement in conciliation, the matter proceeded forthwith to a hearing before me on 12 September.

5. In the course of these proceedings, the Court granted Ms Bogardus leave to amend her development application. The original application included tree removal and replacement within the Reserve, as well as the construction of two timber paling fences 1.8m high extending off either end of the acoustic fence. To address the Council’s concerns and respond to current site conditions, the application as amended does not seek consent for any tree removal, nor the 1.8m high fences, and changes the material of the proposed fence. The amended application now before the Court seeks consent solely for the construction of the 2.7m high acoustic fence, constructed using a modular system that is clad on the Reserve side with timber palings. The proposed fence, which replaces the existing 1.8m high timber fence, will be positioned 50mm from the existing fence line to allow for the additional thickness of the new fence, and in order to be positioned entirely within the subject site.

6. Following this amendment, the Council pressed contentions relating to owner’s consent, visual impacts, uncertainty of the application, contamination, and biodiversity impacts.

7. For the following reasons, I find that the application is lacking in detail to the extent that the proposed development is uncertain, and subsequently, the appeal must be dismissed.

The application is deficient

8. In the Amended Statement of Facts and Contentions (Exhibit 1) (ASOFAC), the Council contended that owner’s consent was required but had not been obtained. The particulars of this contention in Ex 1 relate to the tree works originally proposed within Mashman’s Quarry Reserve. Following amendment of the application to remove these tree works, in oral submissions, the Council continued to press owner’s consent but on new grounds. These grounds are that the survey filed with the Class 1 application, by Richards & Loftus Surveying Services dated 29 January 2024, demonstrates that the existing fence is not located on the subject site, but is instead located within the adjacent Council Reserve. Noting that this was not squarely raised as a written contention to which Ms Bogardus could have responded with a further detailed survey, the Council pressed that this issue was nonetheless jurisdictional and one I must consider.

9. I note that in oral submissions, the Council states that because of the disclaimer in the title block, the survey in question cannot be relied upon to accurately assess the details of the fence. On this basis, the survey also cannot be relied upon to confirm the precise location of the existing or proposed fence in relation to the boundary of Ms Bogardus’ property.

10. In response, Ms Bogardus suggested in oral submission that the survey was illustrating the location of the top of the collapsed fence, not the alignment of an intact, upright fence, and that the base of the fence is indeed within her land. I note that the fence line as drawn on the survey is more or less straight and does not illustrate the deflections of the collapsed fence as I observed at the site view. There are also no annotations on the survey to clarify the fence alignment or condition in this location. In my considered opinion it would be highly irregular for a survey to denote only the top of a collapsed fence line, rather than its intact alignment at the base.

11. Irrespective of the potential merits of the application, I consider that an application to construct a fence must be based on an accurate survey from which the consent authority, or the Court in this instance, can assess the proposed development. From the parties’ submissions, if I can rely on the filed survey, it demonstrates that the existing and proposed fence would be located wholly within the Council’s land for the 21m length along the eastern boundary. If, alternatively, I cannot rely on this survey for these purposes, then the application does not contain adequate information for me to confirm the location of the fence relative to the site boundary, and the application is therefore insufficient. The survey before the Court is judged to be unreliable for these purposes on both party’s case, and each submits that I should ignore it.

12. Accordingly, in the absence of crucial survey detail of the site boundary an approval of the application is, in my opinion, premature. The applicant is refused consent on the present evidence.

Orders

13. The Court orders:

14. The appeal is dismissed.

15. Development application DA0496/24 for the demolition of an existing fence and construction of a modular acoustic fence at 8 Yalunga Place St Ives is refused.

16. All exhibits are returned except exhibits A, F, G, J, H, 1, 3, 4 & 5.

E Washington

Commissioner of the Court

**********