Council Ordered to Issue Front Fence Certificate with Landscaping Conditions

The Land and Environment Court ordered the council to issue a building certificate for a front fence, subject to landscaping conditions, after determining the fence was structurally sound and met the requirements of the council's development control plan.

Land and [ADDRESS] of New South Wales

CITATION : [NAME] v Ku-ring-gai Council [2005] NSWLEC 751

APPLICANT [NAME] PARTIES : RESPONDENT Ku-ring-gai Council

FILE NUMBER(S) : 11096 of 2005

CORAM: [NAME] C

Costs :- Unapproved structure KEY ISSUES: Building certificate application .

LEGISLATION CITED: Land and [ADDRESS] 1979 s34

CASES CITED: Ireland v Cessnock (1999) 110 LGERA 311

DATES OF HEARING: 1 and 14 December 2005 EX TEMPORE JUDGMENT DATE : 12/14/2005

APPLICANT [NAME], solicitor [NAME] LEGAL REPRESENTATIVES: RESPONDENT [NAME], solicitor [NAME]

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

[NAME] C

14 December 2005

05/11096 [NAME] v Ku-ring-gai Council

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

JUDGMENT

1 COMMISSIONER: The merits of this matter were dealt with on 1 December 2005 by way of a binding conference pursuant to s 34 of the Land and [ADDRESS] 1979 (the Court Act) on site at [ADDRESS], Wahroonga. 2 The application that was the subject of the appeal was the refusal by Ku-ring-gai Municipal Council (the council) of an application for a building certificate for a front fence which had been constructed on the site without development consent. 3 During the course of those proceedings, which are, perhaps unfortunately in the context of this decision, not the subject of a recorded and transcribed decision, I reached the conclusion (after applying the first of the tests set out by Bignold J in Ireland v Cessnock (1999) 110 LGERA 311) that the proposed fence was structurally sound – there being in evidence an engineer's certificate attesting as to the structural soundness of the fence, and in particular of the large concrete rendered brick posts that supported the substantial metal gates to the driveway. 4 Secondly, the issues that were agitated in these proceedings related to streetscape in [ADDRESS] and a number of matters contained in the council's development control plan. They were matters that were germane to the second of the tests posed by Bignold J in Ireland, namely whether the structure as constructed should be permitted to be used and was appropriate to be used for the purposes for which it had been constructed. 5 I concluded, under all the circumstances, that it was and I determined that the council would be instructed, by order of the Court, to provide a building certificate to the applicant. 6 However, I did so subject to a condition to be settled between the parties which related to the landscaping at the rear of the fence in order to soften the appearance of the fence to the street. 7 I also raised with [NAME], solicitor for the applicant, during the course of the hearing, the status of two very large and prominent ornamental urns which had been placed on top of the gate posts and invited him to seek instructions as to whether his client was seeking leave to amend the application to include the urns. His client instructed him not to seek such leave. 8 I note in the context of these hearings that it is fortunate that he did not get instructions to seek leave to amend because leave would not have been granted and those would have subsequently been required to be deleted as being entirely alien in the streetscape. 9 I canvassed, during the course of the proceedings, a variety of options and I indicated that had there been any structural evidence that would have permitted me so to determine, I would have required a lowering of the height of the rendered brick structures of the gate posts. 10 As a result, it could not be said, on any consideration of the ultimate outcome, that the applicant had succeeded entirely and unconditionally in that which she sought. 11 I do not consider it appropriate on the application for costs to have any regard to what might be described as a clean hands doctrine, that is the element of not seeking consent being a matter which had been pressed by the council in its statement of issues. 12 However, it is relevant given the quite stark and absolutely correct position put by [NAME], in his written submissions at approximately the middle of the second page, that the council's attitude was that if the applicant had wanted a front fence to her property, she would have to come to the Court either appealing the refusal of this building certificate, which is what in fact occurred, or the refusal of a development application on similar terms. 13 I think it is fair to say that, during the course of the decision I gave on site, I indicated that the fence as constructed, subject to the requirement for the additional landscaping, was just acceptable. 14 I also thought it was obvious, from the enquiries I made as to possible alterations to the fence, that had the matter come to the Court for determination on the basis of a refusal of a development application, I would have required further significant modification to the fence, certainly as to the lowering of the height of the fence posts; in all probability, as to a further setback from the street to permit landscaping in front of the fence (rather than behind it); and also probably as to the height of the metal elements of the fence. 15 Under all those circumstances, I do not consider that it would be fair and reasonable for the applicant to be awarded costs in these proceedings. The application is therefore refused.

A submissions was then made for costs of the costs application 16 Further to my determination of the costs application with which I have just dealt, there is an application by the council for its costs in dealing with the costs application. That application is put for $500. 17 I do not propose to seek the concurrence of the Chief Judge to the making of such a costs order for two reasons. 18 The first is that the parties would already have been obliged to be in attendance before the Court, if not before me, this morning as I had in fact set the matter down for call-over before the Registrar today as an insurance against the non-finalisation of the condition to permit orders of the Court to be made. When I had become aware, on Monday evening of this week, that the condition had not been settled and filed electronically, I asked the Registry to convert the call-over to a mention before me, so the matter was to come before me entirely independently of [NAME] having lodged a submission on costs. Under these circumstances, I do not consider that that element of [NAME]'s attendance this morning would warrant the applicant meeting those costs. 19 With respect to the matters for preparation, I do not think that the conduct of the applicant in seeking costs was so unreasonable as not to require the council to have expended some time on a modest defence to it –particularly in the context of a costs order being sought with respect to a binding conference under s 34 of the Court Act where there is no transcribed, written decision. 20 Under those circumstances, I am satisfied that there is sufficient elasticity in understanding of the matters that were precisely determinative of my decision on site as not to warrant an order for costs. 21 Therefore the result of the proceedings in their entirety will be that there will be an order directing the council to issue the building certificate subject to the condition that has been handed up as the agreed position this morning, but that the applications for costs of the proceedings and in the hearing of the application for costs are both dismissed.

[NAME] Commissioner of the Court

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.