Gray v Pittwater Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Gray & anor v Pittwater Council [2016] NSWLEC 1176

Hearing dates:

2-4 March 2016

Date of orders:

13 May 2016

Decision date:

13 May 2016

Jurisdiction:

Class 1

Before:

Tuor C

Decision:

(1)   The appeal is upheld in part.
(2)   The Council is directed to issue Building Certificate (BC0080/14) for the deck, ramp, pontoon, piles and wave baffle constructed below MHWM at 5 Sturdee Lane, Elvina Bay in respect of the Works the subject of these proceedings, within 14 days of the Applicant providing a survey by a Registered Surveyor and confirming, to council’s satisfaction, that the following works have been done:
a. demolish, alter or rebuild the 3 free-standing berthing piles so that there are no more than 2 free-standing berthing piles not greater than 2.67m AHD in height and paint the top 1m of the resultant free-standing piles white;
b. remove one handrail from the ramp;
c. if the south east free-standing pile is removed, paint the top 1m of the southern most end pile of the wave baffle white.
(3)   The exhibits, except Exhibits 1 and J, are returned.

Catchwords:

BUILDING CERTIFICATE APPLICATION: jetty, pontoon and piles. Visual impact and navigational safety.

Legislation Cited:

Environmental Planning and Assessment Act 1979;
Land and Environment Court Act;
Crown Lands Act 1989;
Fisheries Management Act 1994;
Pittwater Local Environmental Plan 2014

Cases Cited:

Ireland v Cessnock [1999] NSWLEC 250, (1999) LGERA 311
Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276

Category:

Principal judgment

Parties:

Dr Bruce Gray and Ms Julie-Anne Gray (Applicant)

  Pittwater Council (Respondent)

Representation:

Counsel:
Dr J Smith (Applicant)

 

Ms H Irish (Respondent)

 

Solicitors:
ERA Legal (Applicant)

  King & Wood Mallesons (Respondent)

File Number(s):

10681 of 2015

Judgment

1. Dr and Ms Gray (applicant) are appealing under s 149F(1)(a) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of a Building Certificate Application (BC0080/14) by Pittwater Council (council) for works constructed without development consent on Crown Land below mean high water mark (MHWM) adjoining 5 Sturdee Lane, Elvina Bay (site).

2. The key contentions are whether:

1. the size, scale and extent of works is uncharacteristic of the residential waterfront setting resulting in an adverse visual impact when viewed from the waterway; and

2. the works reduce public access to the water, principally for the ferry.

Site and locality

3. 5 Sturdee Lane is irregular in shape with an area of about 3512sqm and a 58m wide frontage to Elvina Bay, which forms part of the Pittwater Waterway. It is developed with a house that is located towards the centre of the Land within significant vegetation. A timber boathouse adjoins the south west corner of the Land, below MHWM on Crown Land that is leased by the applicant. The house and the boathouse are accessed from the water via other structures below MHWM.

4. The Building Certificate Application relates to the structures below MHWM, which include a timber deck, timber ramp, timber pontoon, two stabilising piles,…