Dealings with Hornsby Council with respect to DA 94/2020
We lodged our objectors letter with council against DA 94/2010 (See below), what an ordeal under the circumstances with the death of Mrs Helm and our impending trip to the UK. After submission, noticed that council had placed our document on their MasterView - Application Enquiry internet site (file accessed on Tuesday 16 Feb 2010) in the public domain -
The file was accessed by the link -

http://hsconline.hornsby.nsw.gov.au/appenquiry/modules/DocumentMaster/ViewDocument1.aspx?key=uHK2wrQdAbM%3d&size=4029816

After a few days it was no longer accessable with a message "You do not have access to this document!" appearing each time access was attempted. Took screen shot of internet acces to council file 24Feb2010 showing file no longer accessable
Robyn phoned Hornsby council and spoke to the Assessment Officer at the Planning Division and was assured that it was a mistake and our letter of objection to DA94/2010 should never had been posted in the public domain.
However, it appeared that each time we communicated with council, our correspondence was placed in the public domain for a day or two before being withdrawn from public view.
I have included a few examples below. One or perhaps two mistakes maybe, but why put each of our letters or emails on public display for a day or two. Especially concerning to us when private information regarding the death in the family and the fact we were out of the country. Any one reading this would assume our house was empty and easy pickings for burglary let alone the disrespect to our privacy regarding family misfortune.
25 March 2010 Our email is no longer accessable and no longer in the public domain
24 March 2010 Showing one of our emails on public display
29 March 2010 Showing another one of our emails on public display
8 April 2010 Showing yet another one of our emails on public display with the previous email depicted in 29 March screen shot removed
8 June 2010 Showing our emails now removed from the public domain
© 2014
The first we knew about DA 94/2010 was when we received the notification letter from council.even though at the Aust day BBQ, 2 weeks earlier, we had participated in lots of discussion regarding solar collectors and development in general.(Also lots of sympathy regarding the loss of my mother)
Despite the fact that my mother had just passed away and we were making preperations to return to the UK for last respects we managed to put the following submission together to send to council. (The last thing you want to cope with under such difficult family circumstances)

Cover letter sent to council with our objections to DA 94/2010 -
The General Manager,
Hornsby Shire Council,
296 Pacific Highway,
Hornsby NSW 2077.

Dear Sir/ Madam,

Regarding Application for Development Reference No. DA  94/2010


We are writing to lodge our objections to the proposed development at 22 Albion Street Pennant Hills, DA 94/2010.

In particular our concerns relate to privacy, views, overshadowing, drainage and environmental sustainability, as described in the attached submission.

We believe that the proposed development will adversely affect the way of life that we have established over the past 27 years. The magnitude of the proposed structure which imposes a 9 to 10m high wall, 5m from our front boundary will have a significant impact on our privacy, our well-being and our property value. The height ratio between the front vertical wall of our house compared to the opposing rear vertical wall of the proposed addition is approximately 4:1, at approximately 12m, and is totally inappropriate and unsympathetic to the surroundings.

We believe that the proposed development will adversely impact on our right to solar access. You will note in our submission our carbon footprint will be significantly increased should this development be allowed to proceed.

We have concerns regarding our future ability to further reduce our carbon footprint, an activity that we are actively pursuing.

Finally, in our dwelling, we have attempted to create a sustainable micro environment with significant reliance on solar collection, rain water harvesting and composting of vegetation.

We are therefore very concerned about the apparent negative environmental, privacy and visual impact, which this development will have on our quality of life.

Thank you for the opportunity to comment on this Development Application.



Yours Faithfully,
Application DA/94/2010

Please find below our objections and comments on the Development Application No. 94/2010 and accompanying Statement of Environmental Effects (SEE) and other issues that impact our way of life.

·In relation to clause 1 regarding Site Suitability, the statement is made “The site is located on the Southern side of Albion Street. The subject site is a rectangular shaped block with an area of 721.4 sq m and a frontage of approx 26.98mtrs. The site slopes from front to back. Erected on the property is a single dwelling house.
We believe the alterations and additions have been designed to be compatible with the surrounding development and street scape.”

We question the validity of this statement with respect to the building height, the loss of privacy and in respect to overshadowing of our property. In response we believe that the magnitude of the proposed structure which imposes a 9 - 10 m high wall, 5m from our front boundary will have a
significant impact on the use of our front garden (gardening, outdoor activities) our right to solar access and our property value. The proposed development will restrict our ability to use our front garden as we have done for the past 27 years. The height ratio between the front vertical wall of our house compared to the opposing rear vertical wall of the proposed addition is approx 4:1 at approx 12 m and is inappropriate and unsympathetic to the surroundings.

·In relation to clause 2 regarding Present and Previous Uses, the statement is made “The subject site and adjoining properties are currently used as residential dwellings. This will remain unchanged for the subject site. We are not aware of any previous potentially contaminating activity within the subject site. No testing has been completed for contamination on the subject site”.

It should be noted that a common practice in the past when constructing underground drainage and stormwater channels was to utilize asbestos off-cuts to form sub-terrain water channels. Whilst digging in our garden at 22A, which is a sub-division of the original block. We have commonly come across pieces of buried asbestos sheet. We understand that while these remain buried in the ground, no health risk exists, but a strategy needs to be identified, in line with any applicable work-cover provisions, should pieces of asbestos be unearthed during construction.

·In relation to clause 3 regarding Development Compliance, the statement is made “The proposed alterations and additions have been designed to generally comply with councils building height planes, setbacks and building envelope controls”.  We would request that the applicant for the development of number 22 please specify the meaning of “generally” compliant. We take this statement to imply that the application is non compliant and wish to be advised of all areas of non compliance in relation to proposed building work. We would ask council to please request the applicant for development to provide full disclosure with regard to this matter.
The plan as submitted fails to indicate the height at the Southern most point of the proposed roofline, which is the point of most significance in terms of overshadowing of our property. I have attempted to scale from the included heights on the supplied drawing and conclude that the max height is between 9 and 10 m at approx 5m from our front boundary. I noted, however that the drawing states in the notes “do not scale” and so the figure is only guidance.

Another confusing point on the drawings is that the West elevation shows a 9m reference line well above the proposed additions and alterations, giving the impression that the design fits easily within the building limitation envelope. On the other hand the East elevation shows the gable peaks exceeding the planning envelope.  Please would council ask the developer to advise the exact figure for the heights applicable to the additions and alteration building envelope, so that the degree of impact may be assessed?

·In relation to clause 4 regarding Access and Traffic, the statement is made “Pedestrian amenity, bicycle facilities, public transport facilities and general traffic flow will not be affected by the development”. This statement clearly does not address the fact that this is a Right of Carriage Way with shared use.  General traffic flow will be affected. In order to satisfy our own curiosity and understanding of this statement, we would like to request a copy of the report and its accompanying supporting documentation used to substantiate this claim.


·In relation to clause 5 regarding privacy, views and overshadowing, the statement is made
oVisual Privacy. “The proposed development has been designed to have minimal effect on the private open space of subject property and adjoining property”.  The SEE goes on to say “Placement of windows has also been considered in the design to reduce loss of privacy to adjoining properties.” We request that the applicant for the development of number 22 identify what measures were taken to reduce loss of privacy. We are not clear on this interpretation as the plans show a 9 to 10m wall containing 9 windows along with a deck directly overlooking our front garden with views into most rooms of our house including bedrooms and living areas. The drawing DA01 even shows views looking directly into our house. We regard this as a major impact on our privacy and on the use of our private open space, namely our front garden. The supplied plan even highlights the compromise to our privacy by showing it as a feature of the design, thus demonstrating that no attempt has been made to address the privacy issue. We wish to ask what justification has been used to support the statements made in the SEE as neither we nor other members of our family were consulted during this process. Again we would like to request a copy of the report and its accompanying supporting documentation used in order to substantiate this claim as we believe we are severely impacted by the proposed Development Application.

We are already significantly overlooked by the original house but with the co-operation of the original owners, Jack and Rosalie Bruce (both deceased) we managed to achieve sufficient screening to maintain an adequate level of privacy. The technique adopted was to create a row of screening plants on either side of the boundary. That is, one row on the North boundary of number 22A and another complementary row on the South boundary of number 22.  In this way if a plant on one side died or was destroyed a complementary plant maintained the privacy.  Unfortunately in December 2007 we lost a significant part of that privacy screen that we had worked so hard to develop. We will, we believe, lose all privacy if the proposal is allowed to proceed, and wish to lodge an objection in this regard.

We have enclosed photos that demonstrate the vulnerability of privacy screens which are based on shrubs bushes and trees, these screens take years to grow and unfortunately may be lost in a matter of hours. Please refer to Annex A1, Photos demonstrating the vulnerability of privacy screens.

In relation to these bushes and trees, we note that some branches of the existing screening trees extend into the zone of the proposed building work (based on site estimates 7th February 2010) and wish to be advised on the intended treatment of these trees should the building proceed. We would anticipate that as this area represents the remaining space for service functions such as clothes drying, the presence of the trees which will take up a substantial part of the area will be an issue.

The presence of these branches so close to buildings, with some touching windows etc, will present privacy / view conflict.  The development will also result in the removal of 4 more trees from the block near the South East corner of the existing dwelling, which currently add to the visual amenity of the area,. The trees being removed, referenced as 11, 12, 13, and 14 on drawing DA01, are understood, with reference to schedule of significant trees, to be the most significant on the block. As a ratio to the remaining trees this is a significant reduction to the natural vegetation on the property.

oAcoustic Privacy. Please see the comment at clause 6 below relating to building proximity, proposed garage access and air-conditioner location.

oViews. “The impact of the proposed development on views from adjoining and nearby properties have been considered”. While we understand that they may have been considered, the negative impact on these views has clearly not been addressed. The views looking North from our property have been significantly compromised by the proposed erection of a 9 to 10m high wall approx 5m from our boundary. We suspect that the views from the deck of number 20 (the property to the west on Albion street) have also been negatively impacted. The residents in this dwelling may not appreciate the level of impact as the wording used in the developers submission (views from adjoining and nearby properties have been considered) could be construed to imply minimal impact. We request that such matters are taken into consideration and the design changed accordingly.


oOvershadowing - The SEE states “Please see shadow diagrams for the effect of overshadowing on the subject site and adjoining properties. We believe the effect of additional shadow cast from the proposed additions will not have any adverse effect on adjoining properties” Our house was Architect designed to feature Passive Solar principles, with a low North Facing front Veranda allowing the heating benefits of the winter sun where the sun elevation angle is less than 45°. The relative position and envelope of the existing dwelling currently blocks the very low angle winter sun. In a passive solar design the low angles of sunlight at less than 22.5° are regarded as having little effect and so the impact of the existing dwelling may be ignored. In our design we make full use of the critical sun angles between 22.5° and 45°. We estimate that the positioning of the proposed addition to number 22 Albion will approximately halve the benefits obtained by our current design. See Figure 1 22A Albion Street, scale drawing showing passive solar design and the scaled sketch, Figure 2, 22A Albion, passive solar design showing impact from proposed additions. As a result of the loss of our passive solar heating, we will have to increase our carbon footprint by using other heating to achieve the same level of comfort within the house.

oAs part of the Hornsby council push towards a Sustainable Future (Sustainable Energy Strategy 2006 - 2010), I (Peter Helm) attended the solar electricity and solar hot water workshops organised by councils Sustainability Officer, Angie Marlow. These workshops enhanced my commitment to creating a sustainable environment and led to my application to the Federal Governments’ Solar electricity Grid Connect program. I have applied, and been pre-approved, for an $8000 grant to install solar electricity panels on our North facing Garage roof.

The Government approval reference is AGO255105 dated 6 October 2009, contact Warren Hughes, Director, Solar Homes Communities Plan. This together with our own investment of around $2000-$3000 will provide us with approx 20% to 25% of our power needs from Green sustainable energy. It is our aim in the future to increase our solar panel coverage to achieve as close to 100% self sufficiency as possible. The shadowing will significantly impact our ability to generate clean sustainable energy during the winter months and thus negate our ability to reduce our carbon footprint.

oWe are also intending to invest in a Solar hot water system, as shown in the attached quotation from Enviro Solar, assessment number 42420 dated 21 July 2009. Please refer, Attachment 1 - Solar Hot water quotation 21/7/09. The proposed installation, on the main North facing roof adjacent to the garage roof, would we believe, be significantly compromised by the shadow effects of the proposed building alterations. Again our attempts to reduce our carbon footprint will be compromised.


o In relation to Solar Sustainability, our main North facing roof area is almost entirely covered in a Solar collector for the swimming pool. This system has been in service for approximately 20 years and provides a greatly extended swimming season. The shadow effects of the proposed addition will directly impact our ability to comfortably swim during the cooler months. Should we have to switch over to electric or gas heating to achieve the same heating capability our carbon footprint would be significantly increased.
oFinally in relation to shadow effects, our front lawn, being a battleaxe, provides us with a private entertaining area which in winter will lose the warming benefit of the sun. The existing house shadows approx 50% of our winter entertaining area to the front west side of the block. The proposed additions will impose 100% shade almost completely removing our access to winter sun. Instead the area will remain cold and damp and uninviting for use as an entertaining area. Even at mid day, our optimum time of use during winter, a major shadow will cover our front lawn.

oWe have a herb and flower garden which provides our family with herbs and flowers for the house.


oIn summary the development application states “the effect of additional shadow cast from the proposed additions will not have any adverse effect on adjoining properties”. We fail to understand how such a claim may be made in light of the high level of impact described above.

·In relation to clause 6 regarding Air and Noise, the statement is made “Air quality and noise projected from the site shall not change as the proposed use of the site will remain as a single dwelling house”. The proposed development places living areas much closer to our house clearly changing the noise impact on our living environment. We wish to be advised as to what noise abatement controls have been put in place to ensure our continued lifestyle quality. Of particular concern is the re-location of the air-conditioner presently located on the South wall of the dwelling number 22. At present we hear this unit running during the summer months particularly at night when we have all our windows open. This unit will have to be re-located and if moved closer to our boundary will impact us with an increased acoustic signature. At present we use fans and open windows to achieve cooling in our dwelling. Should we be required to close windows at night, due to unacceptable noise levels, we would be forced to use air-conditioning to achieve cooling. This again would impact our carbon footprint.
Another issue of concern is the relocation of the garage and driveway, which in the proposal is now positioned much closer to our main living area and provides an increased negative visual impact of hard paved areas. The increased level of noise generated by the tyres while turning into the garage and the opening closing of car and garage doors will adversely also affect our quality of life. The location of the proposed deck will be both a privacy and noise issue adversely affecting the amenity of our property.

·In relation to clause 7 regarding Soil and Water, the statement is made “The proposal will have minimal impact on soil and water management issues as the proposed use of the property remains unchanged.” In relation to storm water, in heavy rain the water from the storm drain in the easement on the West side of our block floods around our swimming pool, the additional load on the drain from the significantly increased roof capture area may be enough to cause water to flow over the coping and into our swimming pool. We are very concerned that, even with the benefit of rainwater tanks acting as a buffer, under conditions of maintained heavy rain, our swimming pool will take in stormwater creating a health and safety issue. Our understanding of the design of this easement is that it terminates at our boundary and relies on absorption of all stormwater within our property. We understand that when our house was built the roof water from our dwelling had to be directed into a separate stormwater trench dug in our back yard as the easement was deemed unsuitable for any additional stormwater load. Probably of more concern is flooding of our front garden in periods of prolonged heavy rain. We have included photographs taken on the night of 6th February 2010 showing the significant water build up and resultant threat to our house and garage. The photograph taken the next morning shows the tide marks of the various water levels during that night. All this water drains via the easement and flooding occurs due to the resulting water backup. A clear risk exists that stormwater inundation of habitable areas will occur if changes are made to the load on the already precarious stormwater dispersion system. Please refer Annex A2, Photos demonstrating the risk of stormwater inundation of habitable areas.

·In relation to clause 8 regarding Energy Efficiency, the statement is made “Orientation of the proposed development is currently North South and has been considered in the design in terms of window placement and sun/shade control”. We note that the SEE omits to mention that the proposed design, of the alterations and additions, includes the placement of 9 windows as well as glass sections in each gable peak on the SSW wall. This design, with its significant areas of glass, will be significantly impacted by the thermal disadvantages of the afternoon summer sun. In order to compensate for the effects of the westerly sun, the air-conditioning load, will be significantly increased compared to the existing dwelling. The resultant carbon footprint impact will be severe.


·In relation to clause 9 regarding Existing council waste collection, the statement is made “Existing council waste collection will remain in place for the subject site. We note that the plan as submitted shows the placement of waste bins adjacent to our front entrance. We wish to request that an alternate location is adopted to avoid the visual and smell pollution that would result.

We believe that the proposed development will have an adverse effect on the natural and built environment in which we live.

We believe that this Statement of Environmental Effects does not adequately address all of the issues associated with this development. The applicant for development has neglected to research basic information in regards to the site of the proposed development and we believe, failed to undertake a genuine investigation. We believe that this report is of extremely poor quality and of a generic nature.

Finally we would like to raise a concern relating to Health and Safety during construction. Our driveway is likely to form part of a building site during any construction phase. We would ask what measures are proposed to protect visitors to our home including older relatives and friends who regularly walk down our steep drive when visiting our house. For example the plans show that a sediment control barrier is proposed at the entrance to our property, which would be very difficult for an elderly person to negotiate.

If any soil gravel or other slippery material is left on the drive way, it would represent a significant fall hazard for those people entering or exiting our home.

In addition the use of any vehicles, plant, or other machinery in the right of carriage way access road to our house, would pose an unacceptable risk to the safety of the occupants and visitors alike.

We request that should any building work be allowed to proceed, the additional risk is noted on the builder’s insurance contract and the issue is discussed with Workcover to ensure that the safety of all visitors to our house is maintained.

Finally the driveway concrete slab is only designed for light duty residential use and is not suitable for use as a building site access road. We therefore request that alternate access arrangements are made where a risk exists for damage to the existing driveway. With regards to trees, all of the trees are listed as ‘fair’. We would like to know how this classification was determined.

We would like to enquire as to how waste will be taken off the site?

The shadow diagram does not distinguish between original and additional shadow at the 12pm 22 June reference. Please would the applicant for development clarify?
Figure 1 22A Albion Street, scale drawing showing passive solar design
Figure 2, 22A Albion, passive solar design showing impact from proposed additions
© Copyright 2011
© Copyright 2016
With regard to the objections sent to council, by far the biggest concern was the impact on the passive solar design features of our house, the loss of sunlight to our private open space for winter entertaining and loss of privacy. (We thought we still had protection afforded under the provisions of AMCORD in relation to sunlight on North facing windows and sunlight to private open space). It should be noted also that the NSW planning regulations mandate a maximum height of 8.5 meters. These regulations also stipulate that a building of this height (8.5m) must be set back 8m from the rear boundary.
Our house was built 30 years ago and was an architect design passive solar construction with a large North facing profile with windows extending to floor level in order to capture low elevation sun angles for winter heating. At the time of construction the building regulations prohibited the construction of any dwelling in front of our house. We now find that the construal of planning laws have changed to such a degree that even in an area such as ours classified as residential zone A, a building the height of an apartment block can be built 5m from our front fence. Clearly we do not have an option to rebuild our house to suit each change in the interpretation of building regulations. We also have an existing solar collector, installed 20 years ago, that covers the majority of our main roof area that will likely be impacted by the new development. Again the building regulations at the time of installation of this collector protected us from the possibility an adjacent construction blocking our solar access. We do not, from a cost point of view, have the option of increasing our roof height in line with the trends towards higher density living.

In our case the neighbours extension at 9.3 meters in height is non compliant with the current building regulations, a fact that was clearly recognised in councils report on the DA.
(Council stated "The proposed 9.3m height of the addition does not comply with the prescriptive measures of the Height element" Refer Hornsby council report D01352004 {ref2} - http://hsconline.hornsby.nsw.gov.au/appenquiry/modules/applicationmaster/default.aspx?page=wrapper&key=345686 )

We had an expectation that we would be protected as we understood that AMCORD states that "Overshadowing arising out of poor design is not acceptable, even if it satisfies numerical guidelines. The poor quality of a proposal’s design may be demonstrated by a more sensitive design that achieves the same amenity without substantial additional cost, while reducing the impact on neighbours." A simple change in roofline from Gable to hipped roof as per the original house would have solved the problem. In the case of solar access to our private open space, council went against our clear advise that our house being a battleaxe block was architect designed such that the front garden was our entertaining area and principal private open space. This tactic by council allowed them to side step the obligations to asses sunlight access and privacy issues (This year winter sunlight will be a dream only). The statement in the council report that "The rear of .............. is considered as the principal private open space" is blatantly incorrect and we are still at a loss to understand why council would employ such tactics. Also in councils report the statement was made "The shadow diagrams submitted with the application indicate that the shadows cast from the proposal would allow at least 4 hours of sunshine to the private open space required for adjacent dwelling-houses on 22 June (the winter solstice)". This is rubbish as our rear garden (to the South, 3.5m below house floor level, sloping and unusable for entertaining) is totally in shadow in the winter months. How can council state that we will receive 4 hours of sunshine to an area that is already in shadow!! Refer Hornsby council report D01352004 {ref2}
Hornsby council has a clear definition of a dwellings principal private open space in their dwelling house development control plan {Ref 5). That is – an extension of the function of the dwelling house for relaxation, dining, entertainment, recreation and children’s play and to be accessible from the dwelling house. Orientation of private open space should provide for maximum year round use of sunlight. Our house design clearly utilizes our front garden area to our North (the only outside area to receive winter sun) with two large sliding glass doors opening out to the garden as our principal private open space. It is our only garden area that satisfies these council guidelines - how could council suggest otherwise!!!!!
Again - WHY would council place all our correspondence in the public domain for a day or two prior to its removal from their web site. Is this common practice - Do all objectors letters / emails go on public display????
YouTube Video - The Fence "Dispute Resolution by Chainsaw
The end result after building completion showing significant impact on our passive solar design
HSCONLINE
hsconline.hornsby.nsw.gov.au/
http://hsconline.hornsby.nsw.gov.au/appenquiry/modules/applicationmaster/default.aspx?page=disclaimer
DA - 94 / 2010 - Development Application Submitted: 02/02/2010
http://hsconline.hornsby.nsw.gov.au/appenquiry/modules/applicationmaster/default.aspx?page=wrapper&key=345686
DA/94/2010 (02/02/2010) DA/94/2010 - 22 Albion Street, PENNANT HILLS ...
      D01342766 (02/02/2010) DA/94/2010 - Notification Map
      D01332743 (02/02/2010) DA/94/2010 - Waste Management Plan - 22 Albion Street Pennant Hills 2120
      D01332744 (02/02/2010) DA/94/2010 - Plans Architectural - 22 Albion Street Pennant Hills 2120
      D01332746 (02/02/2010) DA/94/2010 - Application Form - 22 Albion Street Pennant Hills 2120
      D01332749 (02/02/2010) DA/94/2010 - Statement Of Environmental Effects
      D01332750 (02/02/2010) DA/94/2010 - Basix Certificate - 22 Albion Street Pennant Hills 2120
      D01332751 (02/02/2010) DA/94/2010 - Notification Plans - 22 Albion Street Pennant Hills 2120
      D01337599 (10/02/2010) DA/94/2010 - Acknowledgement - NSW Rural Fire
      D01352004 (03/03/2010) DA - Delegated Report Alterations & Additions
      D01354187 (07/03/2010) Notice of Determination - DA/94/2010 - 22 Albion Street Pennant Hills 2120
      D01354259 (07/03/2010) DA - Objector's letter notifying consent - DA
      D01362408 (18/03/2010) DA/94/2010 - Approved Plans Architectural - 22 Albion Street Pennant Hills 2120
      D01404036 (10/05/2010) DA/94/2010 - Alterations and additions - 22 Albion Street Pennant Hills 2120
CCP - 511 / 2010 - Construction Certificate - Private Submitted: 05/08/2010
http://hsconline.hornsby.nsw.gov.au/appenquiry/modules/ApplicationMaster/default.aspx?page=wrapper&key=353460
CC/511/2010 (05/08/2010) CC/511/2010 - 22 Albion Street, PENNANT HILLS...
     D01466294 (05/08/2010) CC/511/2010 - Construction Certificate - 22 Albion Street Pennant Hills 2120
     D01466295 (05/08/2010) CC/511/2010 - Certificate of Insurance - 22 Albion Street Pennant Hills 2120
     D01466296 (05/08/2010) CC/511/2010 - Basix Certificate - 22 Albion Street Pennant Hills 2120
     D01466297 (05/08/2010) CC/511/2010 - Plans Engineers Details - 22 Albion Street Pennant Hills 2120
     D01466298 (05/08/2010) CC/511/2010 - Plans Architectural - 22 Albion Street Pennant Hills 2120
     D01802871 (07/11/2011) CC/511/2010 - Final Occupation Certificate - 22 Albion Street Pennant Hills 2120
YouTube Video - The Fence "Dispute Resolution by Chainsaw
Looks like no intended access
Certainly not contemplated by the parties at the time of the grant
Reference:- http://www.fig.net/pub/fig2012/papers/ts02j/TS02J_rendel_5711.pdf
"No alteration can be made in the use or purpose of the easement that goes beyond that contemplated by the parties at the time of the grant; see generally the 1994 judgment of the High Court of Australia Gallagher v Rainbow and in particular the judgment of McHugh J Westfield / perpetual".
How could you walk or drive on this steep retaining wall - clearly not possible when the easement was drawn up
It was understood that building regulations in place at the time the easement was created limited the ability to build any closer to the boundry with 22a
…use of an easement cannot be extended, beyond the scope of the grant, to impose a burden greater than that which the servient owner [that is, the owner of the burdened land] agreed to accept.
Reference (Harris v Flower) -http://www.stewartau.com/PUBLIC/multimedia/EasementsCovenantsCLESeminarPaper.pdf
. See also Westfield V Perpetual trustee
(Postscript - With respect to the building height, I have since performed my own assessment, based on a trigonometric calculation, of the finished building and note a height of 10 meters which I suggest is a gross exceedance of the planning regulations. My understanding of the NSW planning legislation, is that the maximum building height allowable in these circumstances is 8.5 metres. (See Ref 26 “State Environmental Planning Policy [Exempt and Complying Development Codes] 2008 at paragraph 3:13 clause 1, and Ref 27 “Complying-Development-Customer-Guide-issued-APRIL-2011” at section 4.5).
More significantly, this high point at 8.5 meters must be set back 8 meters from the rear boundary (See Ref 26 paragraph 3:17 clause 2a and Ref 23 section 4.6 clause 3:17). What a difference it would make to our solar access if these, what I understand to be mandatory legislated requirements, were imposed by council on this development application. We articulated this point very clearly in our submission to council in response to the DA, clearly stating that the building appeared to be close to 10 meters high with sections of the extension 5 to 6 meters from our boundary. How is it that Hornsby Council can allegedly so blatantly disregard the NSW state planning legislation especially in light of our detailed submission in response to DA94/2010 noting the significant impacts that such a tall structure would have on our property.)
No alteration can be made in the use or purpose of the easement that goes beyond that contemplated by the parties at the time of the grant!!!! See Ref 25 on main page