Land and Environment Court of New South Wales CITATION : Aberasturi v Woollahra Municipal Council [2005] NSWLEC 733 APPLICANT Ignacio Aberasturi PARTIES : RESPONDENT Woollahra Municipal Council FILE NUMBER(S) : 10670 of 2005 CORAM: Hoffman C KEY ISSUES: Development Application :- Accuracy of the plans showing the maritime boundary of Sydney Harbour - the ambulatory nature of a boundary defined by Mean High Water Mark - the need for owner's consent to the development application - the acceptability of the proposed fence along the foreshore of Sydney Harbour Sydney Regional Environment Plan No. 23 Draft Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2004 (Now Sydney Regional Environmental Plan 2005) LEGISLATION CITED: Woollahra Local Environmental Plan 1995 Environmental Planning and Assessment Act 1979 DATES OF HEARING: 14/12/2005 EX TEMPORE JUDGMENT DATE : 12/14/2005 APPLICANT Mr R Graham, solicitor SOLICITORS Abbott Tout LEGAL REPRESENTATIVES: RESPONDENT Mr M Connell, solicitor SOLICITORS Home Wilkinson Lowry JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 14 December 2005 10670 of 2005 Ignacio Aberasturi v Woollahra Municipal Council JUDGMENT 1 This is judgment in appeal No. 10670 of 2005 between Ignacio Aberasturi and Woollahra Municipal Council in regard to a proposal to erect a fence on the harbour side of No. 5A Wharf Road, Vaucluse. 2 The hearing was attended for the applicant by: + Mr R Graham, solicitor Abbott Tout + Ms H Aberasturi, + Mr I Aberasturi and + Mr P Zaverdinos, architect 3 The following persons attended on behalf of the respondent: + Mr M Connell, solicitor of Home Wilkinson Lowry, + Mr D Waghorn of Woollahra Municipal Council + Mr A Foxton of Vaucluse Amateur 12 Ft. Sailing Club + Ms S Curtis of 53 Coolawin Road, Northbridge representing Mr F Collins of No. 7 Wharf Road, Vaucluse. + Ms K King, representing Mr F Collins of No. 7 Wharf Road, Vaucluse + Mr M Rolfe, Secretary of the Sydney Harbour and Foreshores Committee and + Mr J Ireland, surveyor of NSW Maritime. 4 The issues in the appeal became condensed at the commencement of the hearing due to disagreement between the parties on the property boundary along the harbour front. This was put as a preliminary question of fact to be answered in the judgment prior to consideration of the merit proceedings. 5 Mr Ireland gave evidence particularly in Exhibit 4 and Exhibit 16 which were the NSW Maritime Map No. WO2007 showing the maritime boundary and the surveyor's notes in the original identification to establish mean high water mark dating from the years 1903 and 1913. After detailed examination and cross-examination it became apparent that the boundary of the property shown in the plans of application in Exhibit A, did not accurately reflect mean high water mark. 6 The deposited plan (DP) of the site, a copy of which is in folio 34 of Exhibit 3 was created in 1944. It showed a relatively straight harbour front boundary along which the applicant had proposed to erect the fence. The DP was marked in writing along that boundary as being mean high water mark. The Court was assured by Mr Ireland, that nomination was the normal surveyor's practice to identify the maritime boundary; but the boundary is ambulatory due to the nature of mean high water mark. 7 The rock shelf over which the boundary passed, even in 1903 and 1913 had various depressions or channels in the rock that allowed the water to intrude past the straight boundary line shown on the DP. Since 1903 and 1913 there had been erosion to the rock that considerably enlarged the areas covered by water at mean high water level. 8 The applicant's surveyor had prepared a document in Exhibit 15 illustrating the straight line as shown on the deposited plan, and then a survey of 0.555 AHD which is acknowledged by both parties as the current mean high water level. It was obvious in the plan in Exhibit 15, by overlay, that a considerable amount of the land ostensibly within the applicant's property is actually within the domain of Sydney harbour and therefore owned by NSW Maritime. 9 In an application of this kind, the provisions of Sydney Regional Environment Plan No. 23 and the draft Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2004 that are now superseded by Sydney Regional Environmental Plan 2005 and the Woollahra Local Environmental Plan 1995 apply, and certainly under the Environmental Planning and Assessment Act 1979, owner's consent to a development application is required otherwise such application is deemed a nullity. 10 In this particular case it will mean that to erect the subject fence both NSW Maritime and the applicant would need to have signed the development application to Woollahra Municipal Council. This had not occurred, and in fact documents in the council's file indicated that such consent had not been granted by NSW Maritime, nor was it likely to be granted. Therefore the inevitable conclusion is that development application is a nullity and the appeal must be dismissed. 11 Therefore the orders of the Court are: 1. That the appeal is dismissed. 2. That the exhibits are returned to the parties except for Exhibits A, 1, 2, 4 and 15. 3. There is no order as to costs. ___________________ K G Hoffman Commissioner of the Court rjs 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.