Anderson v Lake Macquarie City Council [2013] NSWLEC 1038

Land and Environment Court New South Wales

Medium Neutral Citation: Anderson v Lake Macquarie City Council [2013] NSWLEC 1038 Hearing dates: 25-26 February 2013 Decision date: 06 March 2013 Jurisdiction: Class 2 Before: Morris C Decision: Appeal upheld Catchwords: Orders: remove structure from public place; whether damage to public place is being caused; whether applicant is a person entitled to the benefit of the structure, whether within power of the Court to issue Order Legislation Cited: Local Government Act 1993; Crown Lands Act 1989; Land and Environment Court Act 1979 Texts Cited: Foreshore Stabilisation and Rehabilitation Guidelines Category: Principal judgment Parties: Peter Douglas Anderson (Applicant)

Lake Macquarie City Council (Respondent) Representation: Robin Mallik Mallik Rees Lawyers (Applicant)

Grant Long Lake Macquarie City Council (Respondent) File Number(s): 21012 of 2012

Judgment 1Lake Macquarie City Council issued an Order under Section 124 of the Local Government Act 1993 (LGA) requiring Mr Anderson to demolish and remove a concrete seawall that it alleges he had constructed on a public place adjoining his residence and to restore that public place in accordance with plans prepared by the council. 2Mr Anderson is appealing the Order and is seeking its revocation.

The site 3The seawall that is the subject of this appeal has been constructed on Lots 7335 and 7336 in Deposited Plan 1156260 adjacent to Swan Bay. Part of the wall is within Swan Bay. No admissions have been made in relation to its construction. 4Lots 7335 and 7336 are Crown Land and were, in accordance with a notice published in the NSW Government Gazette on 14 April, 1978, reserved from sale for the public purpose of public recreation. The notice and the plans referred to in that notice show that Lot 7335 comprises reclaimed land and that at the time there was a brick retaining wall under construction in the vicinity of the subject wall. 5Lot 7335 is accessed through Lot 7336 and links to Marks Parade providing pedestrian access to the foreshore reserve along Swan Bay. It is also possible to gain boat access to the lake from Lot 7336 across Lot 7335 and a boat ramp has been provided to facilitate that access. 6Mr Anderson is the owner of Lot 32 DP 17142 known as 21 Marks Parade Marks Point. His land is to the immediate east of Lot 7335 and the immediate south of Lot 7336. A private timber jetty runs from the foreshore of Lot 7335 into Swan Bay on an alignment consistent with the southern boundary of Lot 32. From the evidence provided, Mr Anderson is the owner of that jetty.