Tolson v Lake Macquarie City Council

[2012] NSWLEC 1353

Land and Environment Court

New South Wales

Medium Neutral Citation:	Tolson & anor v Lake Macquarie City Council [2012] NSWLEC 1353
Hearing dates:	6 December 2012
Decision date:	20 December 2012
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	Appeal upheld subject to conditions
Catchwords:	DEVELOPMENT APPLICATION: fence to Deed High Water Mark; private v public interest
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Lake Macquarie Local Environmental Plan 2004
Cases Cited:	Zhang v Canterbury City Council [2001] NSWCA 167
Category:	Principal judgment
Parties:	Mr M Tolson and Ms Y Henry (Applicants) Lake Macquarie City Council (Respondent)
Representation:	Applicants: Ms H Irish (Barrister) Respondents: Mr G Long (Solicitor) Applicants: Shane Boesen Solicitor Respondent: Lake Macquarie City Council
File Number(s):	11014 of 2012

Judgment

1. COMMISSIONER: The applicants in these proceedings own a lake front property in Nords Wharf. The title to the land extends to the DP or deed high water mark (DHWM), which effectively corresponds to the grassy edge of the land adjoining the sandy shoreline of Lake Macquarie.

1. The applicants applied to Lake Macquarie City Council for the construction of a 1.2m high fence, for safety and security reasons, along the full extent of the side boundaries of their property to the DHWM.

1. The council refused the development application and the applicants are appealing that refusal under s 97(1) of the Environmental Planning and Assessment Act 1979 (the Act).

1. The matter commenced on site as a s 34 conciliation conference. The hearing included a view from the water of the nearby lakefront. Three council planners attended the hearing including the assessing officer, Ms Rigado. The existing fence on the north-western side boundary extends to a distance of 5.6 metres from the surveyed corner of the applicants' property at the DPHWM. The existing boundary fence on the south-western boundary is some metres closer to the assumed DHWM.

1. Council agreed that it would accept a distance of 5.6m from the DHWM however this was unacceptable to the applicants who wish to extend the fence to the DHWM. They contend that they frequently use their property right to the water line and many small children visit them. The applicants' position is that the fence must be to the DHWM in order to prevent people and their dogs from walking over picnic rugs and the like and to prevent acts of vandalism to their property. They also maintain that a pool type fence to the water line will assist with child safety, particularly as there is a creek/storm water outlet adjoining their north-western side boundary.

1. As there was no agreement between the parties, the matter proceeded immediately to a hearing pursuant to s 34(4)(b) of the Land and Environment Court Act 1979. The experts were not required for cross examination; the parties' legal representatives made submissions.

1. The council contends that the proposed fencing:

• is within the foreshore building line and is contrary to the controls and objectives within clause 22 of Lake Macquarie Local Environmental Plan 2004 (LMLEP).
• is within the lakefront area of the site and is contrary to the planning controls in sections 3.1.1 and 2.7.8 of Lake Macquarie Development Control Plan no 1.
• is inconsistent with the established foreshore fencing character of the locality and would detract from the visual setting and established lakescape (non-compliance with controls in s 2.7.1 and 2.1.3 LMDCP not pressed).
• is not in the public interest as it is forward of established fence lines.

The site and its locality

1. The site is on the north-western side of Government Road between the road and Lake Macquarie. The lot is generally rectangular in shape but narrows towards the Lake. There are two residential lots to the north-east and then a public reserve some 50 metres away. The site adjoins residential lots to the west. There is a reserve at the western end of Nords Wharf Road to the south-west of the site. Most of the residential lots with dwellings near the Lake have a jetty.

1. The shoreline in the vicinity of the site is generally an unformed grassy edge adjoining the sandy edge of the Lake. The shoreline is less natural and more constructed to the west.

1. The site contains a two storey dwelling house and ancillary structures including a garage and in-ground swimming pool. These are located outside the foreshore building line. The lot has a jetty licensed to it.

1. There is boundary fencing from the rear of the dwelling to approximately 6 metres from the shoreline. The fence is a 1.2 m high metal fence with vertical bars. There is no fence across the rear of the lot.

1. The adjoining properties have side boundary and rear fencing set back from the shoreline.

Planning controls

1. The site is zoned 2(1) Residential in LMLEP. The adjoining Lake is zoned 11 lakes and Waterways.

1. Relevant definitions in the LMLEP Dictionary are:

DP high water mark for any land is the mean high water mark shown on the current plan (within the meaning of the Conveyancing Act 1919) for the land. [This is synonymous with Deed High Water Mark in LMDCP]

Foreshore area means the land between the foreshore building line and the mean high water mark of the nearest natural waterbody.

Foreshore building line means a foreshore building line fixed under clause 7 of the Environmental Planning and Assessment Model provisions 1980, as adopted by clause 22.

Foreshore development means a boatshed, jetty, slipway, boat ramp, in-ground swimming pool, inclinator, landscaping, barbeques or other similar structures.

1. The site is subject to a 16 metre foreshore building line (FBL) under cl 22 LMLEP. Clause 22(4) adopts cl 7 of the Environmental Planning and Assessment Model provisions 1980 and the1988 Lake Macquarie Foreshore Building Line Resolution. The objectives of cl 22 - Foreshore buildings lines as stated in cl 22(1) are:

The objectives of this clause are:

(a) preservation and enhancement of the natural features and vegetation near where land meets the high water mark, and

(b) restoration of the land below any foreshore building line, so far as practicable, to a natural state, with a minimum intrusion of man-made structures, and

(c) removal of structures and works below any foreshore building line (particularly on redevelopment of land), other than those excepted by clause 23, and

(d) conservation and enhancement of waterfront structures of heritage value, and

(e) avoidance of adverse ecological effects on the waterways, and

(f) enhancement of the visual amenity of Lake Macquarie

1. Clause 23(1) applies to foreshore development. It states:

(1) Foreshore development and development for the purpose of utility installations may be carried out only with development consent between a foreshore building line that is fixed with respect to a DP high water mark and the DP high water mark.

1. Lake Macquarie DCP No 1 - Revision 8 - adopted by council on 23 July 2012 applies. Part 3.1 - Lake, Waterway and Coastline Development applies. In this part, Foreshore Development is divided into two sections - Lakefront Area Development and Foreshore Area Development. In these areas development is limited to that which protects and enhances the value of the foreshore. These areas are illustrated in Diagram 1 of Part 3.1.

1. The relevant definitions in Part 5 DCP Dictionary are:

Lakefront Area Development means development within 6 metres of the deed high water mark of Lake Macquarie, its tributaries and estuaries and includes a jetty, ramp, slipway, boatramp pontoon, wharf, groyne or similar structure that may extend over or under the water and includes foreshore stabilisation treatments.

Foreshore Area Development means development within the foreshore building line but beyond 6 metres from the deed high water mark and includes boatsheds, in-ground swimming pools (within one metre of natural ground level), inclinators, barbeques, shade structures, children's play equipment, landscaping structures and the like.

1. LMDCP No 1 - 1.0 Introduction and Instructions outlines how the document is to be used. The "intent" statements support the council's desire to maintain the city's lifestyle, scenic amenity, ecological biodiversity, economic opportunities etc. The "Performance Criteria" (P) are the outcomes to be met in order to achieve the Intent; this allows flexibility as no two sites or proposals are the same. The Plan also presents "Acceptable Solutions" (A) to assist in the preparation of Development Applications and in Council's assessment of them. According to the LMDCP, the Acceptable Solutions are based on legislation, adopted management plans, current best practice, accepted standards, and community expectations. In regards to Acceptable Solutions, the DCP states:

In some situations, the Acceptable Solutions listed will not be appropriate for a particular site or proposal. It is essential that the Acceptable Solution chosen achieves the Performance Criteria and the Intent prescribed. Council will not support a proposal that has been prepared or designed using an Acceptable Solution that does not meet the Performance Criteria.

1. The INTENT of council's requirements in Part 3.1.1 - Development adjoining the lake and waterways zone is to ensure that development maintains and enhances the ecological, community and scenic values of the Lake and its tributaries.

1. Performance criteria for this Part (by which the intent may be achieved):

P1 In general and for all Development - whether for lakefront Area or Foreshore Area, or other development -

The physical and ecological integrity of the foreshore is preserved and where possible, restored/ enhanced.

Development does not affect the visual character of the setting.

Development does not result in alteration of the ground level (existing) of the foreshore.

Development provides for management of lands, in private ownership, for its ecological, community or scenic values.

Development or redevelopment on the foreshore areas promotes restoration of the foreshore building line and public access.

A1.2 Where land between a foreshore building line and the DHWM is identifies as:

A critical corridor or link to core habitat.

Necessary to protect water quality.

Required for maintenance access to water quality infrastructure.

Necessary for community use as a public access way or parkland.

An important site due to its scenic values,

Necessary for foreshore stabilisation

The land is to be managed in private ownership to retain its identified functions.

P2.1 For Foreshore Area Development -

Where setbacks are maintained.

A2.1 A minimum setback of 6 metres landward from DHWM applies.

P2.4 Structures such as fences, walls and enclosures are restricted in height, location and materials, to limit any potential for adverse visual impact, environmental impact, scenic quality or accessibility.

A2.4 The height of any fence, wall or enclosure within a foreshore building line does not exceed 1.2 metres.

The fence, wall or enclosure is not constructed masonry.

No part of the fence, wall or enclosure is within 6 metres of DHWM.

No fencing, wall or enclosure extends into the Lakefront Area Development zone.

Fencing, walls and enclosures in the Lakefront Area Development zone are no higher than 1.2 metres.

1. Part 2.7 LMDCP No 1 - Streetscape and the Public Realm also applies. The intent of 2.7.8 - Fences is 'to ensure that fencing is suitable to the development type, complements the existing streetscape and character of the area and promotes safety and security. The relevant Performance Criteria and Acceptable Solutions are:

P4. Fences lakeward of the foreshore building line, or in rural or environmentally sensitive areas, preserve the visual character of the location.

A4.2 Side or rear fences are not located in between the foreshore and the foreshore building line, as defined in the Lake Macquarie LEP 2004.

Notes -

1. Planting may be used to identify rear boundaries 6 metres from the Deed High Water mark, however it is preferred that this area remain undefined.

2. Fencing is contained to necessary private areas, rather than around the perimeter of the entire Lot.

The hearing and submissions

1. Ms Irish for the applicants contends that the proposed fencing is correctly classified as 'landscaping' and is therefore permissible with consent under cl 23(1) of LMLEP. She asserts that cl 22 is not relevant as its intent is to establish a foreshore building line and regard must be had to the objectives only if development is proposed below the DPHWM (cl 23(2)(b)).

1. In her view the proposal is of minor environmental impact. The applicant's position is that there are many other structures within the nearby foreshore area including jettys, boats, fences, habitable rooms, retaining walls, landscaping and so on that make it impossible for pedestrians to have safe pedestrian access the foreshore area in that locality. In this way, the proposal is consistent with the existing character of the development of the locality within the foreshore area.

1. She submits that the area to be fenced does not have any purpose identified in the Acceptable Solution A1.2 in 3.1.1 of LMDCP and meets the performance criteria in P1. In her view, the applicants are the registered proprietors of the freehold title to the DHWM. She contends that council has no power to permit or authorise public access over the applicants' land and that the council has not demonstrated any proposal to acquire the land for public access. Ms Irish maintains that the applicants' rights to the safe and secure use of their land is paramount and supported by the intent of the fencing provisions in Part 2.7.8 of LMDCP - that is, the promotion of safety and security.

1. In regards to the way in which the LMDCP should be used, Ms Irish maintains that the 'intent' statements and the 'performance criteria' are the key elements to guide development and that the 'acceptable solutions' is essentially a menu of possible options.

1. She asserts that in accordance with the Acceptable Solutions in A2.4 - fencing, the proposed fence meets the majority of the possible solutions and is therefore acceptable. She considers that the Acceptable Solutions allow for a fence within the Lakefront Area Development zone to be 1.2m even though this seems to contradict the solution above that states that no fence is to be located within 6m of the DHWM. Ms Irish contends that the fence is metal, no more than 1.2 m high. In this way, it achieves the performance criteria for fences in P2.4 that it will not have any adverse visual or environmental impact, it won't impact on scenic quality and it will still enable pedestrian access to the edge of the lake.

1. Mr Irish also maintains that P3.1 for Lakefront Area Development restricts structures and activities to appropriate locations identified in an accompanying table. As the table does not include fences, she maintains that they are not a regulated development in the Lakefront Development Area.

1. Mr Long for the council submits that the applicants have not put forward any planning arguments to support their application for development within the lakefront development area. He contends that cl 22 of the LMLEP is relevant, in particular objectives (a)(b) and (f) which go to maintaining the natural features of the lake, minimising the intrusion of man-made structures, and enhancing the visual amenity of Lake Macquarie.

1. The council's position is that the proposal cannot be supported as it is contrary to the planning controls and it will have an impact on the visual amenity of the locality. In the circumstances of the matter, the council will accept a consistent setback of 5.6m but maintains that anything else would be a poor planning outcome.

1. Mr Long contends that security is not a matter for consideration in determining the application. In his view, even if the fence is approved, the perpetrators of the vandalism will still have relatively easy access to the property.

Findings

1. The proposed development is 'foreshore development' within the foreshore building line as established by cl 22 LMLEP. It is development that may be carried out with development consent (cl 23(1)).

1. However, Part 3.1 in LMDCP No 1 further defines 'foreshore development' and divides it into 'lakefront area development' and 'foreshore area development'. As the proposed fence is within 6 m of the DHWM, it is within the area designated as Lakefront Area Development. The development defined as 'foreshore development' in the LEP is redefined as 'foreshore area development' in the DCP; while still permitted with consent, foreshore area development is to be beyond 6 metres from the DHWM.

1. In this matter, I consider the LMDCP to be the focal point of my determination. As found in Zhang v Canterbury City Council [2001] NSWCA 167:

The statutory power to "determine a development application" under s80 of the Environmental Planning and Assessment Act 1979 is not unfettered or at large. It is subject to the obligation to "take into consideration" matters required by s79C(1). Relevantly the DCP had to be treated as a fundamental element in, or a focal point of, the decision making process...

1. I agree with Ms Irish that fencing does not appear in the table of structures in P3.1 (part 3.3.1), however, I do not agree with her submission that fencing is therefore not regulated in the lakefront area. P2.4 in Part 3.3.1 specifically refers to fencing and the table for 3.1 covers structures related to the use of or access to a waterway. My interpretation of the Acceptable Solutions in A2.4 is that fences are not permitted within 6 metres of the DHWM (ie in the lakefront area development zone), however, if they already exist, they are not to be higher than 1.2 metres. Clause 22(1)(c) permits the removal of structures and works below the foreshore building line unless otherwise approved under cl 23.

1. I also agree that while the 2004 LMLEP does not define 'Lakefront Development Area', the latest version of DCP No 1 (adopted in 2012) consistently applies a 6 metre setback from the DHWM for all structures except those for access to and use of the adjoining waterway.

1. In regards to meeting the performance criteria which then achieve the council's intent, I agree with Mr Long that the applicant has not provided any planning grounds to justify a deviation from the acceptable solutions; in fact in my reading of the application, there are no alternative acceptable solutions proposed except to say that the fence will have minimal environmental impact. The introduction to the DCP makes it clear that Acceptable Solutions are based on legislation, adopted management plans, current best practice, accepted standards, and community expectations.

1. As stated above, the latest version of the DCP consistently applies a minimum 6 metre setback. While there are already many nearby incursions into the Lakefront Development Area, these do not create a precedent or a reason for permitting additional structures; each matter must be determined on its merits. I agree that the style of fence is relatively visually unobtrusive, however the proposed location is not characteristic of the immediate area as no other fence extends to the water line.

1. In regards to the applicants' argument that a fence to the DHWM will prevent people accessing their property, it would force people to walk around each end of the fence but it would not prevent anyone from then walking onto their land. I agree with Mr Long in that it would do nothing to prevent entry to people intent on vandalising the property (as noted in the security camera photographs tendered in evidence). Similarly, while it might keep small children away from a storm water outlet, it would not prevent them from entering the lake unobserved.

1. Overall, I find the intent of the LMLEP is to control and limit development within the foreshore building line so as to preserve its natural features and the intent of the relevant parts of the DCP is to establish a 6 metre setback from the DHWM to achieve the intent of the LEP. In particular I am not satisfied that the proposal meets objectives (a), (b) and (f) in cl 22(1) LMLEP nor does it achieve the majority of performance criteria P1, and therefore the intent, of Part 3.3.1 of the DCP.

1. However, in saying this, while LMDCP has been the focus of my determination, I am not required to accept it uncritically. While I am not satisfied that the applicants have made a valid case for departing from the adopted planning instrument and controls to the extent they desire, in the circumstances, I am prepared to accept the council's agreed setback of 5.6m from the DHWP. This provides some consistency with the adjoining properties and maintains the visual amenity of the lakefront. It will also enable the applicants to retain the majority of the existing side boundary fences.

1. The parties have prepared marked up conditions of consent. Where there is some disagreement, the parties have agreed that I should determine the final conditions.

Conclusions and orders

1. Therefore after considering the matters under s 79C(1), the Orders of the Court are:

(1)   The appeal is upheld subject to conditions.

(2)   Consent is granted to Development Application DA/573/2012 for the construction of a 1.2 metre high fence along the side boundaries of Lot 7 DP 22998, 4 Government Road, Nords Wharf, in accordance with the Conditions of Consent attached as Annexure A to the final orders.

(3)   Exhibits A, B and 4 are retained, the others are returned.

_________________________

J Fakes

Commissioner of the Court

Decision last updated: 21 December 2012