Boundary Fence Modification Approved in Heritage Conservation Area

The Land and Environment Court approved a modification application allowing the retention of a solid brick boundary fence in a heritage conservation area, subject to specific conditions regarding the fence's design and compliance with local regulations.

Land and [ADDRESS] South Wales

Medium Neutral Citation: [COMPANY] v Inner West Council [2017] NSWLEC 1171 Hearing dates: Conciliation conference on 27 & 31 March 2017 Date of orders: 03 April 2017 Decision date: 03 April 2017 Jurisdiction: Class 1 Before: [NAME] C Decision: See (5) below Catchwords: DEVELOPMENT APPEAL under s97(1) against refusal of application for new boundary fence - heritage conservation area - conciliation conference - agreement between the parties- orders Legislation Cited: Land and [ADDRESS] 1979 Environmental Planning and Assessment Act 1979 Category: Principal judgment Parties: [COMPANY] (Applicant) Inner West Council (Respondent) Representation: Solicitor: [redacted] [NAME] (Respondent) File Number(s): 2016/291715 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal, under s97(1) of the Environmental Planning and Assessment Act 1979, against the refusal of an modification application. The application proposes the retention of a solid brick boundary fence, on the [ADDRESS] frontage of [ADDRESS], in lieu of the timber fence originally approved by Council.

2. In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and [ADDRESS] 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to "dispose of the proceedings in accordance with the decision". 3. [ADDRESS] also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

4. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

5. The final orders to give effect to the parties' agreement under s34(3) of the Land and [ADDRESS] 1979 are:

1. The Applicant is given leave to amend the development application by substituting the following plans as the plans relied upon for the purposes of the development application: Architectural Plans and Documents Drawing No. Dated Prepared By DA02 Revision F 29 March 2017 [COMPANY]

1. The appeal is upheld.

2. Section 96 modification application DA10.2013.206.2 is approved to modify Development Consent DA10.2013.206.1 (the development consent) as follows:

1. Amend Condition A(1) to read as follows: A(1) Approved plans stamped by Council The development must be carried out only in accordance with the plans and specifications set out on drawing numbers:- DA00 Rev C 25 October 2013 DA01 Rev B 26 September 2013 DA02 Rev F 27 March 2017 DA03 Rev B 26 September 2013 DA04 Rev B 26 September 2013 and any supporting documentation received with the application, except as amended by the conditions specified hereunder.

1. Insert Condition B(1) as follows: B(1) Fence return The fence return between the [ADDRESS] boundary and the side of the house adjacent to the front fence is to be of the same height and construction as the fence on the [ADDRESS] boundary and is to be in accordance with condition H4.

1. Insert Condition G(2) as follows: G(2) As built survey A survey is to be provided to the satisfaction of Council's [COMPANY] confirming the location of all piers, gates and the timber fence on and near the [ADDRESS] boundary prior to the issue of an occupation certificate. The timber paling fence is not to encroach on Council's road reserve.

1. Insert condition G(3) as follows: G(3) Pool safety fencing The boundary fence is not approved as a pool safety barrier. A pool safety barrier is to be installed and certification as to the adequacy of this pool safety barrier is to be provided to the PCA prior to the issue of an occupation certificate.

1. Insert Condition H(4) as follows: H(4) Boundary fence The fence timbers including all posts, rails, and trim shall not be painted. The fence timbers will either remain untreated natural timber or be stained a mid-to-dark grey to resemble unpainted, weathered hardwood. The existing steel gate posts shall be painted to match the fence timbers. The gates (vehicle gates and side entrance gate) are to be painted in the dark trim colour of the house (dark red, dark green, dark brown or dark grey).

1. As a consequence of Order 2(d) the development consent is now subject to the consolidated modified conditions of development consent set out in Annexure "A" to these orders. ……………. [NAME] Commissioner of the Court 291715.16 [NAME] (C) (244 KB, pdf) 291715.16 [NAME] (229 KB, pdf) 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: 03 April 2017