Goodenough v Ku-ring-gai Council

JUDGMENT 1 Commissioner: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against a number of conditions imposed by Ku-ring-gai Council (the council) on the landscaping for and location of a proposed retaining wall at premises at 138 Tryon Road, East Lindfield (the site).

2 Although the appeal related to four of conditions of consent, as a consequence of the appeal I am seized by the entirety of matters relating to the development application.

3 I dealt, at the commencement of the hearing, with purported imposition by the council of condition of consent 42 requiring the lodgement by the applicants of a cash bond or a bank guarantee for the maintenance of landscaping on their private property.

4 Mr Graham, solicitor for the council, promptly and correctly acknowledged the want of jurisdiction to impose such a condition.

5 It is quite clear from the decision of Pearlman CJ in Datum Pty Ltd v Botany Bay City Council [2003] NSWLEC 62 at para 51 that s 80A(6) of the Act does not authorise the imposition of such a condition. I have, therefore, struck out that condition. Mr Graham has undertaken to draw the attention of the council's corporate legal officer, again, to the fact that it is not appropriate for such conditions to be inserted by council as there is no statutory basis for their incorporation in conditions attaching to consents.

6 In addition, as a consequence of me being seized by the totality of the matter, I am able to deal with matters raised by the objectors who represent residents of the adjacent properties on what might be called the eastern face of the property, in one instance, as to the security of access to a swimming pool area of the property and ,in the other instance, the adequacy of the site's stormwater drainage system. The latter objection will be satisfied if the location of the wall is moved as proposed by the council.

7 I have had the advantage of reading the s 88B instrument creating the drainage easement over the Arblaster property (to the immediate east). I have concluded that there is no inhibition contained within the easement document which would preclude me from dealing with the application. 8 However, the matters raised on behalf of the residents of the Arblaster property did require me, in company with concerns raised by the council's engineering assessment unit as to the possible increase stormwater discharge through the stormwater drainage lines, to raise with Mr Hones, solicitor for the applicants, whether or not the applicants would agree to a condition requiring certification of the adequacy of the drainage system and recommendation of any augmentation works, if necessary, prior to the release of construction certificate.

9 He obtained those instructions and such a condition will be incorporated in the revised conditions of consent.

10 In addition, I raised with the parties the issue of what I considered to be the inflexibility of the precise wording of condition 18 which related to the retention of existing ground levels and a proposal that all excavated material be removed from the site.

11 As a consequence of a discussion with those instructing him, Mr Graham received instructions to agree to a revised condition which permits, subject to engineering certification, the retention of some fill from the site behind the retaining wall.

12 Mr Hones then received instructions to agree to that revised condition.

13 As a consequence, there remain only three matters of substance for my determination.

14 The first is whether or not I should require the proposed retaining wall along the eastern boundary to be moved 1 m further away from that boundary.

15 Second, whether the planting which is proposed for the garden bed along the eastern face of the swimming pool should be required to achieve a 3 m height rather than it being appropriate to require it to reach the height of the swimming pool coping.

16 The final of the matters in contention is not raised by council but is raised on behalf of those residing in the Arblaster property. It questions whether or not the location of the proposed reed screen should be altered by requiring it to be moved closer towards the swimming pool rather than being located at the top of the retaining wall

17 To some extent, it is unfortunate that the retaining wall footings at the proposed location have already been constructed - having been constructed without the benefit of a development consent.

18 No matter what I determine as to the location of the walls, a building certificate will need to be obtained for all or part of those footings prior to the granting of a construction certificate for the present structures. A condition will be inserted requiring that - that being a condition, I understand, not contested by the applicants.

19 I have considered the question of whether or I should require the retaining wall be moved back an additional 1 m and I have concluded that it would be appropriate to do so.

20 I have reached this conclusion for the following reason (and, in doing so, I have not had any regard to the fact that the footings have been constructed the present location without development consent).

21 The provisions of the council's Development Control Plan 38 (the DCP) provide, in cl 5.3.7 that there should be an avoidance of cut or fill within 2 m of the boundary line.

22 It is well settled by the decision of the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373 that the provisions of a development control plan, although not immutable, should be the primary focus of my consideration and the fundamental starting point for my consideration.

23 However, departure from its provisions may be appropriate in some circumstances and is permitted provided there is general satisfaction of s 79 C matters.

24 A more analysis of the role of development control plans in the deliberations of the court recently summarised by McCllelan in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 - further reinforcing of the DCP s the primary focus.

25 This does not mean that there is a shifting of the onus to the applicants to demonstrate why the DCP should be departed from. However, the DCP provides an indication of the community's acceptance of a standard through its elected council.

26 The principal matter put to me in support of the DCP's 2 m requirement is that it is necessary to ensure that there is a viable basis for the sustaining of the 3 m high plantings that are to be achieved along the boundary - it being agreed between the parties that this height of planting along the boundary is appropriate.

27 On the other hand, it is put to me on behalf of the applicants that the distance of 1 m is considered acceptable by council along the northern and southern boundaries of the property.

28 I am not persuaded that should set aside and create a presumption in favour of the adequacy of such setback to support planting in all areas.

29 It is it is clear from an examination of the site that the predominant risk of overlooking and domination of neighbouring properties is that which happens primarily towards the Arblaster property to the east of the site and there is an acceptable risk of failure of plantings along the northern and southern boundaries which would not be acceptable with respect to overlooking of the Arblaster site.

30 In that regard, I should note that in the position paper that was tendered on behalf of the council (of which Mr Swanepoel, a town planner from the council was the author), he records on the concluding page that screen planting which is more transparent may be appropriate along the side of the pool wall. I consider it is also possible that the screen planting along the eastern boundary may not be dense but it will make an important contribution to protection of the Arblaster property from overlooking. As consequence, it is appropriate to ensure its viability. On balance, I satisfied that the 2 m setback is appropriate.

31 Therefore, I turn to the subsidiary issue associated with that - namely whether the applicants' contention that, if it be setback a further 1 m, it should be constructed to 900 mm above the ground level at that further setback.

32 This is in contrast with council's position that, if the wall is to be setback an additional 1 m, then the top of the wall should remain consistent with RL of the proposed location with the footings in situ.

33 I am satisfied that would be appropriate to prefer council's position.

34 To do otherwise would require additional fill behind the retaining wall which would have the effect of raising the height of the private open space by possibly up to 150 mm or so and therefore increase the risks of overlooking of the Arblaster property and the domination of the screen proposed to be erected on the retaining wall along this boundary. This would be unacceptable.

35 In that context, I turn to the objection from Mr Arblaster as the location of the proposed screen.

36 I am satisfied that I should not sustain this objection. I have concluded that the screen to be located in the position proposed to be permitted by the council is appropriate given the distance of the setback now required to the boundary and the degree of screen planting that should sustainably be achieved behind it. That will soften the presentation of the screen and will reinforce the privacy afforded by it.

37 To require the screen to be set back further from the rear boundary would have an unacceptable adverse impact, in my view, on the utility of the private open space of the applicants and certainly limit any ability to monitor that area of private space from the house.

38 The final condition in contention is that which requires screen planting to the side of the exposed face of the swimming pool. It would seem to me that, with the erection of the reed screen and 3 m planting along the eastern boundary, the utility of additional screen planting along that edge of the swimming pool, particularly if it is, as Mr Swanpoel postulates, of a more transparent nature, will impose an unnecessary and inappropriate level of insecurity for the applicants in terms of monitoring their backyard and having a sense of continuity between it and the house.

39 However, I accept that it is appropriate in aesthetic terms that the face of swimming pool should be shielded and planting which is the height of the coping would be appropriate in this regard.

40 I do not consider that planting that achieved 3 m along the portion will have any necessary role in increasing privacy to the Arblaster property compared to that which is afforded by the screen wall and the perimeter planting.

41 In this regard, I note that the separation between the swimming pool and the fence of the Arblaster property is ~ 10 m, at its closest ,and that is what would normally be considered a reasonable separation distance for the purposes of AMCORD between elements of private open space.

42 As a consequence, the appeal is upheld in extremely limited part.

43 It follows that there will be a significant revision to the conditions in order to give effective to the agreements of the parties and to my decision.

44 As a further consequence, the matter is set down for callover on 16 November before the Registrar. In the event that the parties electronically file agreed revised conditions giving effect to agreed matters and to my decision, I will issue orders in Chambers and vacate the callover date.

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