Tolson & anor 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 1COMMISSIONER: 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. 2The 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. 3The 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). 4The 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. 5Council 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. 6As 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. 7The 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.