Boyd Properties Melbourne Pty Ltd v Bega Valley Shire Council

CASES CITED: Mark Makhoul v Parramatta City Council [2006] NSWLEC 386 Australand Holdings Limited v Parramatta City Council [2003] NSWLEC 229

APPLICANT Mr P Boyd (litigant in person)

LEGAL REPRESENTATIVES: RESPONDENT Mr A Warren (solicitor) SOLICITOR Andrew Warren Associates

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10445 of 2009 Boyd Properties Melbourne Pty Ltd v Bega Valley Shire Council

JUDGMENT 1 COMMISSIONER: This is an application pursuant to s121N Environmental Planning and Assessment Act 1979 (the Act) against an order made under s121B of the Act relating to a fence on the south western boundary of a property at 10 Main Street, Merimbula adjacent to 12 Main Street.

2 The applicant was represented by Mr Peter Boyd, Director of Boyd Properties Melbourne Pty Ltd. The respondent was represented by Mr Andrew Warren, Solicitor Director of Andrew Warren Associates and Mr Jeff Tipping, Manager, Building Services, Bega Valley Shire Council (the council). The issue 3 On 3rd June 2009, the applicant, Boyd Properties Melbourne Pty Ltd, received an order made by the council to "demolish and remove that portion of the timber fence that has lattice screening attached ("the Fence") located on the south western boundary of the Premises". The applicant is disputing the validity of that order and seeks orders from the Court for the order from the council to be set aside.

4 The council made the order as it contends that the fence was erected without development consent (which consent is required pursuant to the provisions of s76A of the Act) and no such consent was granted. Specifically, side and rear fences fall within the council's Exempt and Complying Development Control Plan No: 4 (DCP 4) when constructed of timber and they are a maximum height of 1.8 m measured above natural ground level.

5 In its statement of Facts and Contentions, the council contends that natural ground level is at least 1 m below the bottom of the fence at the property boundary and that the fence varies in height from 2.35 m at the southern end and 1.8 m at the northern end. As a section of the fence is above 1.8 m, the council contends that it requires development consent.

6 The council also contends that the applicant has variously referred to the fence as a screening structure and a 'trellis'. DCP 4 provides that a trellis " must not contravene council's adopted building line" which has been adopted by the council as the setback in DCP 1 - Residential Development. This setback reflects the Building Code of Australia requirement of a 900 mm minimum side setback. Therefore, the council contends that if the applicant's structure is a 'trellis', it contravenes the adopted building line and as such requires development consent for which no application has been made.

7 In his written Statement of Facts and Contentions, the applicant contends that 'natural ground level' is the level of the ground at commencement of development, in this case the construction of the fence or screening. When measured from the applicant's property, the fence is at 1.8 m above ground level. He contends that development consent is not required. It is noted that, during the proceedings, Mr Boyd stated that "natural ground level" was the level at the completion of approved development.

8 The fence consists of three panels. The panel to the north, closest to the house, consists of lengths of timber attached in a horizontal pattern. The remaining two panels are similar except that the top 600 mm of the fence is timber lattice.

The hearing process 9 This matter commenced as a conciliation conference pursuant to s34 of the Land and Environment Court Act 1979 (the Court Act). The conciliation conference started with an on-site conference where the fence was viewed from both 10 and 12 Main Street Merimbula and from jetties attached to those properties. However, as no agreement satisfactory to both parties was reached, the conciliation conference was terminated. The parties then agreed to me hearing and disposing of the matter pursuant to s 34(4)(b) of the Court Act. Evidence was heard on-site from Mr Ron Douglas, owner of 12 Main Street Merimbula. The remainder of the hearing was conducted in a room booked for the purpose at the Merimbula Bowling Club.

10 Mr Douglas outlined his concerns about the height of the fence at the southern end and the obstruction of his view to the ocean from his living room. Other dividing fences between nearby properties were noted including one that followed the fall of the land towards the retained edge of the lake - that is, the top of the fence sloped downwards.

The site and relevant history 11 The fence in question runs parallel to the rear side boundary between 10 and 12 Main Street Merimbula. At the rear of these properties is Merimbula Lake. The effective rear boundary of these properties is defined by a rock retaining wall.

12 The rear garden of the applicant's property is mostly lawn with some low shrubs and ground covers at the top of the rock wall. The lawn and the soil in which it is growing, is retained above the sea wall by timber edging some 400 mm in height. The lawn is relatively level.

13 In 1997, Mr Ron Douglas and the previous owner of 10 Main Street applied for, and were granted, development approval to build a rock retaining wall. A photograph taken in 1998 by Mr Douglas and tendered by council (and not contested by the applicant), shows the previous retaining structure and the extent of erosion occurring to the front of the properties. The previous structure was a low timber fence in a state of disrepair and it is clear from the photograph that the land behind was considerably eroded. 14 It is the top of the retaining wall that the Council contends is 'natural ground level' as the retaining wall is an approved structure.

15 On 18th December 1998, development consent was granted to Mr Boyd for a Residential Dual Occupancy Development (Development Application DA98/1136). The approved plans, dated 18.12.1998 state that "all existing landscape to be retained where possible". The plan marks the "existing lawn area" at the rear of the property adjacent to the "existing rock sea wall along boundary". The plans do not show any new landscaping or any fence.

16 The applicant tendered photographs of the rear of his property, known as 'Tarooki', taken in July 1999 (before commencement of the development), September 1999 (during construction of the approved duel occupancy) and in December 1999 (at the completion of the project). The July and September photographs show the lawn sloping down to the top of the rock retaining wall. The December photograph shows a light coloured band at the top of the sea wall and the lawn beyond. The distance at which the photograph was taken and the size of the photograph make it difficult to discern to detail of the light coloured band - however, the applicant contends that this was timber edging placed above the sea wall to retain soil. He stated that soil is constantly washed between the large rocks that make up the sea wall and that dangerous holes appear in the lawn. For that reason he retained the soil with the timber. The light coloured band is uneven and extends up along the eastern side of the dividing fence between the duel occupancy development. It is more consistent with dead grass or a light coloured mulch such as straw.

17 The applicant contends that, as the council approved the development and apparently 'signed-off' on it on completion, that "natural ground level" must be the level of the lawn at the completion of the development, that is the with the timber edging. Neither party tendered a construction certificate or equivalent certification.

18 The council tendered photographs dated 2002 that show the south-western corner of the applicant's property. These clearly show the lawn sloping down to the top of the rock sea wall. Bare patches of soil are evident. There is no timber edging on top of the rock wall. There is no dividing fence between the applicant's property and Mr Douglas' property (apart from a small timber structure approximately 1 m high and 1 m long on top of the rock wall. This small structure remains. A copy of the 2002 photograph is reproduced as Annexure A:

19 At some stage after 2002, the applicant erected a fence along the boundary. The council removed this entire fence except the panel closest to the house (the most northerly panel).

19 The Council contends that in or about December 2008, the applicant erected the fence that is the subject of this dispute. The panel closest to the house is not in contention (being the northerly panel) but the sections to the south of that panel are at issue.

Natural ground level 20 The applicant submitted, as an attachment to his Statement of Facts and Contentions, a copy of the decision of Cowdroy J in Australand Holdings Limited v Parramatta City Council [2003] NSWLEC 229. In that matter, Cowdroy J said: 2 The parties have formulated the question of law as follows:- What is the meaning of the phrase "natural ground level" when used in the definition of "multi unit housing" in the Dictionary in the Parramatta Local Environment Plan 2001?

21 The context of the Australand case related to the provision of "private open space at natural ground level" as a requirement of multi-unit housing and the Parramatta City Council planning instruments. Cowdroy J concluded: 23 For the above reasons, the Court concludes that the question of law should be answered as follows:- "Natural ground level" in the definition of "multi unit housing" in the dictionary of the [Parramatta] LEP operates to require the provision of private open space at the level of natural ground of the completed development. 22 In Mark Makhoul v Parramatta City Council [2006] NSWLEC 386, Jagot J dealt with another application of the Parramatta LEP 2001 that required clarification of the meaning of "natural ground level" in the definitions of 'residential flat building', 'high density housing' and 'storey'. In paragraph 38 Jagot J said: It is true that if land is cut or filled at some time that altered level may become the "natural ground level" in the future. That type of issue is not uncommon with respect to the operation of planning instruments. That potential does not lead me to the view that, in the specific context with which I am presently dealing, I should depart from the ordinary English meaning of "natural ground level" as a level before the subject development is carried out. 23 In paragraph 41 Jagot J concluded, with respect to the context of the proposed development and the meaning of 'ground level' and natural ground level' in the specific LEP that: 1. "Ground level" in cl39 of the Parramatta Local Environment Plan 2001 means the finished or post-development ground level. 2. "Natural ground level" in the definition of "storey" in the Parramatta Local Environment Plan 2001 means the pre-development ground level. 24 In his written Statement of Facts and Contentions, the applicant stated: The Court decisions attached [ Australand Holdings Limited v Parramatta City Council [2003] NSWLEC 229] apply the only practical decision that can be consistently implemented. "Natural Ground Level" is the land level at the time of the commencement of development. 25 This statement indicates a misreading of the conclusion of Cowdroy J in Australand. However, during the hearing, Mr Boyd did state that he thought "natural ground level" should apply to the level after development.

26 What becomes evident in both of the cited cases is summed up by Jagot J in para 27 of Makhoul - where she said that: 27 The provisions of the LEP must be construed in context. That having been said, it is well recognised that planning instruments not infrequently exhibit internal inconsistency and apparent lack of logic. 27 The Dictionary in the Bega Valley Local Environmental Plan 2002 (BVLEP) does not define the term "natural ground level". The term is not defined in either of the Development Control Plans relevant to this matter -DCP 1 or DCP 4. 'Multi unit housing' in the BVLEP means "two or more dwellings (whether attached or detached) on a single allotment of land. It includes dual occupancies, townhouses, villa houses and residential flat buildings". There is no mention of "natural ground level" in this definition. The term "natural ground level" is found only in the definitions of "height" and "storey". "Height" in the BVLEP - "in relation to a building, means the distance measured vertically from any point on the ridge of the building to the natural ground level".

28 Thus, the relevant planning instruments and the case law are of little assistance in determining the actual meaning of "natural ground level" in this matter and the determination of the issue at hand must rely on the evidence tendered by both parties and the site characteristics observed during the on-site inspection.

The evidence 29 At the time of the on-site inspection, the height of the fence when measured from the applicant's property was 1.8 m along its length. When measured from 12 Main Street, the height varied from 2.35 m at the southern end, to 2.25 m at the support post between the middle and southern panels. As mentioned above at (12), the applicant's lawn is relatively level as it is retained along the top of the rock retaining wall by two timber planks to a depth of about 400 mm above that rock wall. The neighbouring property slopes down to the top of the rock wall. A set of stairs in the wall leading down to the water is close to the fence. The support post at the southern end of the wall rests on the top of the rock retaining wall. There are pieces of timber at the base of the southern panel placed there by the applicant to prevent soil from washing away.

30 The applicant claims that the lawn area was levelled at the completion of the approved development; that the Council approved the finished product; and that the soil level has been like that for ten years and, therefore, that level is "natural ground level" for the purpose of the construction of the fence and is therefore compliant with DCP 4.

31 Whether the applicant contends that "natural ground level" is the level at the commencement or at the completion of the development, the photographic evidence tendered does not support either contention. The 2002 photographs clearly show the applicant's lawn sloping down to the rock wall; there is no timber edging and there is no fence. This is at least two years after the completion of the "development", that is, the approved duel occupancy development.

32 Absent any formal definition of "natural ground level" in any of the Bega Valley Shire Council environmental planning instruments, it seems reasonable to accept the Council's determination of "natural ground level" in this situation to be the top of the approved rock sea wall. The applicant writes in his Statement of Facts and Contentions: "A coastal environment subject to 150 years of development leads to large shifts in the location and height of the land." To argue a level before the rock wall would do his case no favours as the photograph of the levels before the construction of the rock wall are well below the height of that rock wall.

Finding 33 The top of the rock wall varies in height due to its construction from large rocks of varying sizes. However, it would seem reasonable that the mean height of the rocks for a specified distance on either side of the boundary line should be taken as " natural ground level" in this specific instance because this is the only conclusion that could be reached which has a logical and consistent outcome under the factual circumstances earlier described. To this end the fence in question does not comply with DCP 4. Orders 34 Given the evidence before the Court and the observations made at the site, the Orders of the Court are that: 1. The appeal is dismissed; and 2. The Order made by the Bega Valley Shire Council under s121B of the Environmental Planning and Assessment Act 1979 on 3rd June 2009 is confirmed but the time for compliance is extended until 31 January 2010. 3. The exhibits are returned.

      J Fakes
      Commissioner of the Court

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