Bizon S v Lake Macquarie City Council

[2004] NSWLEC 129

Land and Environment Court

of New South Wales

CITATION:	Bizon S v Lake Macquarie City Council [2004] NSWLEC 129
PARTIES:	APPLICANT Stan Bizon & Associates RESPONDENT Lake Macquarie City Council
FILE NUMBER(S):	10881 of 2003
CORAM:	Hussey C
KEY ISSUES:	Development Application :- Seawall and boat ramp - principles for location - SEPP 1 objection to foreshore building line
LEGISLATION CITED:	Hunter Regional Environmental Plan 1989 Lake Macquarie Local Environment Plan 1984
CASES CITED:
DATES OF HEARING:	22 - 23/03/04
DATE OF JUDGMENT:	03/23/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr S Brockwell, barrister SOLICITORS Sparke Helmore RESPONDENT Mr G Long, solicitor

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10881 of 2003 Hussey C 23 March 2004

Stan Bizon and Associates
Applicant

v Lake Macquarie City Council
Respondent Judgment


Background

1. This appeal is against council’s refusal of a development application for a seawall along the lake frontage to Lots 4 and 5, Nos. 108A and 110 Sky Point Road, Coal Point.

Proposal
2. The proposed development involves the construction of the seawall approximately 47 m long from the northern boundary of Lot 5, where it is to be connected to an existing stormwater pipeline headwall, and extending to the southern boundary of Lot 4 where it has a 3 m return wing.

3. The sea wall is to be located along the Mean High Water Mark and it ranges in height from approximately 770 mm to 900 mm at the natural level along this Mean High Water Mark.

4. The proposed design of the seawall is mass concrete with a vertical face, and backfilling extending some 4 – 5 m inland and incorporating a 2 m concrete footpath at the rear of the wall.

5. It is also proposed to remove part of the existing boat ramp and incorporate a new one into the seawall. This is proposed to be approximately 5 m long.

Planning Controls.
6. There are a number of relevant planning controls that apply and they include the Hunter Regional Environmental Plan 1989 and the Lake Macquarie Local Environmental Plan 1984.

7. Under this LEP, both properties are in the Residential 2 (A) Zone and the seawall is permissible with consent. Pursuant to this LEP, council has adopted a Foreshore Building Line, which is 36 m. This Foreshore Building Line, (FSBL) was adopted by resolution 1988 and LEP Plan No. 29.

Lake Macquarie Local Environment Plan 2004
8. This was gazetted on 19 March 2004, and it maintains the residential zoning, which again would permit this subject development. It also maintains the FSBL.

Development Control Plan No. 3 – Lake and Foreshore Development including Jetties, Boat Ramps and Slipways.

9. This DCP contains a number of aims and objectives and key element concerns visual character and natural landscape, where the stated objective is;


to protect and enhance the visual character and natural landscape of Lake Macquarie and its foreshores.


10 . There are associated development policies that council is required to consider and that includes the cumulative impact of such developments along the foreshore.

11 . Also, there are the draft Foreshore Stabilisation and Rehabilitation Guidelines , which were shown in Exhibit 14. They distinguish between soft and hard engineering approaches to development along the waterfront.

The evidence.
12 . For the respondent, detailed evidence was presented by:
Mr A Randall; principal development planner for the council (Exhibit 5)
Mr C Lorimer; consulting landscape architect (Exhibit 3)
Dr D Roberts; consulting marine ecologist
Mr D Drayton; neighbour
Mr M Geary; environmental engineer (Exhibit 2).

13 . For the applicant evidence was presented by:
Mr G Warne; Consulting Town Planner (Exhibit E)
Dr P Treloar; Coastal Engineer (Exhibit B)
Mr P Anik; Consulting Ecologist (Exhibit D)


Consideration of Evidence
14 . The evidence presented in this case shows that there is a comprehensive framework within which the development of foreshore land is to be considered.

15 . Firstly the residential 2(A) zoning does allow development with consent, but that is subject to the Foreshore Building Line Controls and I am satisfied that the 36 m Foreshore Building Line has been adopted in accordance with the LEP and that is a development standard as agreed by the planners.

16 . In so far as there is some disagreement about the status of the seawall, I am satisfied that it is classified as a structure and therefore it is appropriate to deal with it via the SEPP 1 objection, as referred to in cl 29 of the DCP 3. I note that the applicant adopted this course and has submitted this SEPP 1 objection for consideration.

17 . Whilst the determination of this SEPP 1 is a threshold issue, I have also considered the merits of this case.

18 . It seems to me that the thrust of the controls in the framework is to protect and enhance the visual character and natural landscape character of Lake Macquarie. These objectives are clearly stated in DCP 3. It places significant emphasis on the protection of natural environment so that the natural systems are not unduly upset by increasing urbanisation.

19 . In this respect, the DCP recognises that there could be hydrological circumstances where the foreshore protection is warranted. This can then be achieved by the construction of seawalls, which dissipate energy from waves so as to prevent erosion.

20 . Nevertheless this is qualified in cl 14 of the DCP 3, which states;

Any water front development, which is likely to reflect incident wave energy and acerbate shoreline erosion, will not be approved. Sea walls will generally only be approved where existing shore line erosion is active . The proposed sea wall is of an acceptable hydrological design, which confirms with the natural ground level of the foreshore and the position of the sea wall is within freehold land.


21 . There are also other complementary references in the DCP indicating that seawalls are only considered appropriate where there is active erosion of the foreshore, otherwise cl 24 excludes them.

22 . Cl 24 (d) provides for exclusions for domestic reclamation/sea walls where the Council and statutory authorities are satisfied that protection is necessary to control land slip, active erosion of the foreshore at assisted or continually inundated areas.

23 . It is apparent then that the sea walls are permitted for protection and not for encouraged for visual enhancement. In this regard I have taken into the account the sloping faced/rip-rap type of seawalls, which were seen at Warners Bay that council has installed. This confirms that the seawalls are accepted in particular circumstances.

24 . Therefore the primary question that arises is “whether a sea wall in this location is necessary for protection?”.

25 . In answering that question I have adopted the following principles :
- review site foreshore observations,
- review hydrological details,
- consider type of assets to be protected,
- consider environmental/ecological impact is relative to shoreline sediments and seagrass.
Initially the applicant in the Statement of Environmental Effects said, “the beach is stable and generally unaffected by erosion”.

26 . This is confirmed by Mr Geary’s evidence, who presented a map showing shoreline changes according to aerial photographs from 1954. From this I accept his interpretation that there is little shoreline recession and a seawall structure is not necessary to protect assets or control the shoreline.

27 . While Dr Treloar has undertaken extensive investigations, this does not seem to have been focused within the prevailing planning parameters. Instead it is primarily based on the fact that an engineering solution will not cause further environmental impact.

28 . Nevertheless his reference to aerial photographs also confirms that there is no significant shoreline changes at this site. With regard to any shoreline changes, he says that in an assessment of likely storm wave and water level impacts on shoreline sediments, these can occur in two ways.

1. Long shore transport in which the waves transport sediment along the foreshore, and:
2. Storm bite in which sediment in transported off shore during a storm to form a small bar. In open coast swell which follows storm abatement may transport this sediment back on shore, however in the lake situation this process may not occur.

29 . But his conclusions are that there is virtually no long shore transport at the site and there is little likely risk of storm bite damage. Because of these limited existing environmental impacts and the facts that he says that the sea wall will have further little environmental impacts, he then supports its construction.

30 . In summary then I am satisfied that there are no exceptional foreshore erosion or hydrological circumstances on this site which warrant the construction of the seawall to protect the shore line or property assets.

31 . It seems then that the main reason for the seawall is to improve the appearance of the foreshore by concealing the manhole and the water pipe line head walls. But this construction would interfere to some extent with the natural wrack washing process, which comes on to the foreshore to undergo its natural decomposition cycle.

32 . Whilst there are different opinions on the effects of this and I note that the ecologists agree that there is insignificant effect on the overall lake system, nevertheless Dr Roberts has concerns about localised negative ecological effects.

33 . When I apply the guidelines in the DCP, it appears that more weight would be given to the preference for the retention of the natural shoreline, rather than considering whether an individual application causes much change. The DCP in my assessment positively discourages sea walls and is concerned about the cumulative effect that would occur with the progressive removal of natural foreshore. Therefore I do not consider that this application is consistent with that objective for the retention of natural systems and in this regard I rely on the evidence of Dr Roberts, that there will be likely adverse local ecological impacts.

34 . For these reasons then, I do not consider that this proposal, when assessed on the basis of the aforementioned principles, demonstrates reasonable need for a protective sea wall.

35 . Another aspect then concerns the visual impact of this proposal and the relevant controls and guidelines classify this proposal as a hard engineering approach, which is not preferred.

36 . Considering that this proposal involves the variable height of the concrete wall about 0.7 – 0.9 m in height, together with an adjacent 2 m wide concrete footpath, I do not accept that this design and amount of hard material is necessary to protect this foreshore or that it leads to the visual enhancement as required by cl 9 of the DCP 3. In this regard I rely on Mr Lorimer’s evidence, who is a qualified landscape architect, and his conclusion that the proposal is not consistent with the semi natural environment existing.

37 . He also says that the existing character and amenity of the locality are elements that the LMSMP notes as critical and should be retained. The foreshore naturalistic character of a gently sloping curved edge, meeting a series of small beaches will significantly adversely impact upon by this proposal.

38 . So on merit then, I do not consider this application adequately satisfies the relevant visual amenity considerations.

39 . With respect to the SEPP1 objection, I accept the planner’s evidence that this foreshore building line (FSBL) is a development standard and it has stated objectives, which include orderly development of the foreshore area. Such orderly development is separately described as preventing the cumulative effects of seawalls. So that when the tests are applied for a SEPP 1 objection, a relevant question is, whether a complying development would tend to hinder the obtainment of the planning objectives in s 5 of the Act. In the subject circumstances, a complying development only allows a structure in the foreshore area, in exceptional erosion conditions. As I do not consider that was demonstrated in this case, therefore I do not consider the proposal is consistent with orderly development.

Conclusion
40 . My conclusion then, is that taking into account all the evidence, and the observations on the view, the application does not merit consent. It does not comply with the main thrust of the planning intent in DCP 3 which is to avoid the sea walls along this foreshore and retain natural settings. There are no exceptional circumstances regarding erosion along the fore shore to warrant this substantial seawall on hydrological grounds and I consider its appearance will not protect and enhance the amenity of the foreshore areas as required by the DCP.

41 . Whilst I note that the existing manhole and headwall are unsightly, I accept Mr Lorimer’s evidence that there are other more sympathetic design solutions to improve this.

42 . Court orders :

1. The appeal is dismissed.
2. The SEPP1 objection to the Foreshore Building Line in the Lake Macquarie LEP is disallowed.
3. The development application for the construction of a sea wall and boat ramp at No. 108A and 110 Skye Point Road, Coal Point, is refused.
4. The exhibits may be returned, other than Exhibits A, and 5.
___________
R R Hussey
Commissioner of the Court
nm/rjs /mp

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