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. The structure 7A vertical concrete seawall has been constructed along the boundary of Lot 7335 with Swan Bay in a north/south orientation that reflects the water's edge. That wall returns in an easterly direction to and partly onto Lot 7336, adjacent to the boat ramp. 8According to the council's Statement of Facts and Contentions (SoFC), the seawall is of variable width, generally 1200mm adjacent to the lake and 500mm adjacent to the boat ramp. The wall varies in height up to 890mm above the bed of the lake. Background 9On two previous occasions, the council had issued similar orders to that the subject of this appeal, however had revoked them as, from the evidence provided, it had decided they were invalid. 10The council, on 20 August 2012, issued a Notice of Intent to Serve an Order on Mr Anderson requiring the removal of the seawall and restoration of the public place pursuant to item 28 of Section 124 of the LGA. That notice was forwarded to Mr Anderson's post office address and provided a period of 14 days in which he could make representations. The person nominated in the notice to whom those representations were to be made was the council's Senior Building Surveyor. 11It is common ground that no contact was made between Mr Anderson and the council during the 14 day period defined in the Notice of Order. 12On 4 September 2012, the council served an Order, referenced as ORD/347/2012, on Mr Anderson, again to his post office box address. The Order requires the following: a. Within 28 days of the date of this Order, you must demolish and remove the concrete seawall that is constructed on the public place, being part of Lots 7334 and 7336 DP 1156260 and Crown Land being Swan Bay in Lake Macquarie which is identified on the Plan annexed hereto and Marked "A". b. Within 56 days of the date of this Order, you must restore the public place upon which the concrete seawall was constructed and which is foreshore of Lake Macquarie, in accordance with the Plan annexed hereto and marked "B" 13The plan referenced "A" is a sketch plan that identifies the location of the seawall in relation to Swan Bay and Lots 7335 and 7336. Annexure "B" is a diagram that provides for the construction of a sloped rock rubble revetment and is an extract from the council's Foreshore Stabilisation and Rehabilitation Guidelines (Guidelines). The contentions 14The council contends that Mr Anderson, as owner of the adjacent allotment, is entitled to the benefit of the structure and that the structure is causing actual damage or is likely to cause damage to the public place because of the effect it could or is having on the natural ecosystem and processes of the foreshore of Lake Macquarie. Specific details of the alleged damage are included in the SoFC. The council does not contend any damage has been, or is likely to be caused to the public reserve, its case is in relation to the lake and its foreshores. 15Mr Anderson contends that the Order is invalid, that he is not a person to whom the notice can be given, there is no evidence of any actual damage to a public place, there is no power to make an order requiring construction of the works detailed in Annexure "B", the terms of the Order are unreasonable and for those reasons, the Court, in the exercise of its discretion, would not make the Order. The legal framework 16Orders provisions are part of a council's regulatory function and, in this case are contained within Chapter 7, Part 2 of the LGA. In accordance with s124, A council may order a person to do or to refrain from doing a thing specified in Column 1 of the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table.... The order is one of the Orders requiring the protection or repair of public places, in particular, Order 26 reads as follows: Column 1 Column 2 Column 3 To do what? In what circumstances? To whom? 28 To take whatever steps are necessary to prevent damage to a public place and to repair damage to a public place There is actual or likely damage: (a) by excavation or removal of material from or adjacent to the public place, or Person responsible for the excavation or the removal of the material (b) by a work or structure, or Owner or person entitled to the benefit of the work or structure (c) by surface drainage or irrigation Owner or occupier of land from which surface drainage flows or from which spray emanates 17Section 126 states: 126 Giving orders to public authorities (1) An order under this Division may not be given in respect of the following land without the prior written consent of the Minister: · vacant Crown land · a reserve within the meaning of Part 5 of the Crown Lands Act 1989 · a common. (2) The Minister must not give consent in respect of vacant Crown lands or a reserve within the meaning of Part 5 of the Crown Lands Act 1989 until after the Minister has consulted the Minister administering the Crown Lands Act 1989. 18It is common ground that the council did not seek the consent of the Minister prior to issuing the Order. 19Chapter 7, Part 2, Division 2 of the LGA prescribes procedures to be observed before orders are given. Section 132 requires notice to be given of proposed order and states: (1) Before giving an order, a council must give notice to the person to whom the order is proposed to be given of its intention to give the order, the terms of the proposed order and the period proposed to be specified as the period within which the order is to be complied with. (2) The council's notice must also indicate that the person to whom the order is proposed to be given may make representations to the council as to why the order should not be given or as to the terms of or period for compliance with the order. (3) The notice may provide that the representations are to be made to the council or a specified committee of the council on a specified meeting date or to a specified councillor or employee of the council on or before a specified date being, in either case, a date that is reasonable in the circumstances of the case. 20The Dictionary to the LGA includes the following definitions: public place means: (a) a public reserve, public bathing reserve, public baths or public swimming pool, or (b) a public road, public bridge, public wharf or public road-ferry, or (c) a Crown reserve comprising land reserved for future public requirements, or (d) public land or Crown land that is not: (i) a Crown reserve (other than a Crown reserve that is a public place because of paragraph (a), (b) or (c)), or (ii) a common, or (iii) land subject to the Trustees of Schools of Arts Enabling Act 1902, or (iv) land that has been sold or leased or lawfully contracted to be sold or leased, or (e) land that is declared by the regulations to be a public place for the purposes of this definition. public land means any land (including a public reserve) vested in or under the control of the council, but does not include: (a) a public road, or (b) land to which the Crown Lands Act 1989 applies, or (c) a common, or (d) land subject to the Trustees of Schools of Arts Enabling Act 1902, or (e) a regional park under the National Parks and Wildlife Act 1974. public reserve means: (a) a public park, or (b) any land conveyed or transferred to the council under section 340A of the Local Government Act 1919, or (c) any land dedicated or taken to be dedicated as a public reserve under section 340C or 340D of the Local Government Act 1919, or (d) any land dedicated or taken to be dedicated under section 49 or 50, or (e) any land vested in the council, and declared to be a public reserve, under section 37AAA of the Crown Lands Consolidation Act 1913, or (f) any land vested in the council, and declared to be a public reserve, under section 76 of the Crown Lands Act 1989, or (g) a Crown reserve that is dedicated or reserved: (i) for public recreation or for a public cemetery, or (ii) for a purpose that is declared to be a purpose that falls within the scope of this definition by means of an order published in the Gazette by the Minister administering the Crown Lands Act 1989, being a Crown reserve in respect of which a council has been appointed as manager of a reserve trust for the reserve or for which no reserve trust has been established, or (h) land declared to be a public reserve and placed under the control of a council under section 52 of the State Roads Act 1986, or (i) land dedicated as a public reserve and placed under the control of a council under section 159 of the Roads Act 1993, and includes a public reserve of which a council has the control under section 344 of the Local Government Act 1919 or section 48, but does not include a common. 21A reserve within the meaning of Part 5 of the Crown Lands Act 1989 is defined as: reserve means land which is dedicated or reserved under this Act or which immediately before the commencement of this section was a reserve within the meaning of Part 3B of the Crown Lands Consolidation Act 1913, not in either case being: (a) a common within the meaning of the Commons Management Act 1989, (b) land within the meaning of the Trustees of Schools of Arts Enabling Act 1902, or (c) land, or land of a class, in respect of which an order under section 79 is in force. The evidence 22The hearing commenced on site, with a view of the seawall and that section of foreshore of Lake Macquarie known as Swan Bay in the vicinity of the site, undertaken in the company of the parties and council's expert. 23Expert evidence was heard from Mr S Walpole, the council's Ecosystem Enhancement Coordinator. Mr Walpole holds qualifications in Applied Science (Environmental Assessment and Management). The applicant did not put on any expert evidence. 24Mr Walpole says that the seawall structure is causing, or is likely to cause, damage to the public place, by way of impacting upon the natural ecosystem and foreshore processes of the lake. These impacts were listed as being: reduction of inter-tidal habitat; * prevention of the natural breakdown of seagrass wrack; * increased impacts of an altered wave environment; 25His expert report had been prepared without the benefit of knowing the condition or construction of the seawall that was in place prior to its demolition and reconstruction. He stated that, from observing photographs, there was some wall there and, that unless it was the same as had been reconstructed, he was confident that it would have less impact on the public place than the wall the subject of the proceedings. That is because the vertical wall reduces the area for intertidal species to inhabit, does not provide for seagrass wrack to wash ashore and has limited ability to dissipate wave energy with much of that energy being reflected increasing scour of sediments and turbidity within the near-shore zone. 26In acknowledging the foreshore area comprised a highly modified environment with a range of seawalls constructed, Mr Walpole stated that the vertical seawall that had been constructed was inappropriate for the above reasons and stated that a more appropriate solution would be in accordance with the construction details contained within the council's Guidelines. One of the options for foreshore treatment is detailed in Diagram 5 of those Guidelines, a revetment for low to moderate wave action and it is that diagram that is used as Annexure B to the Order. 27Mr Walpole was asked what would happen if the seawall was removed and nothing else done to retain the foreshore reserve. He said that the area would erode over time but could not estimate the extent or effect and said that the removal of the wall would not accelerate the process as inundation, not recession is the biggest impact in Marks Point. He also said that if the previous wall was a brick vertical wall, his concerns regarding the seagrass wracks may have existed however, he did not know the height of the wall and maintains that such a structure had other advantages, particularly in relation to habitat. 28In acknowledging that there are a number of other similar structures and other seawalls of varying construction in the vicinity of the site, Mr Walpole, in response to cross-examination on the need to remove the seawall said that it is the cumulative impact of the works that must be considered and did not support the retention of the seawall in its current form, saying he could not imagine a design that would have a worse impact, however could not quantify that impact. 29Mr Walpole was shown a plan prepared for the applicant (Exhibit A) said to reflect the requirements of the Order and prepared in accordance with Annexure B. Mr Walpole said that he considered the length of the pebble beach would be less than shown on the plan however did agree that there are no specified dimensions. He prepared an alternate diagram (Exhibit B), which he says, better reflected the council's requirements and located the revetment wall in the location of the subject seawall rather than further into the reserve as indicated on the plans in exhibit A. Mr Walpole agreed that if the works were reconstructed in accordance with the exhibit A plans that the grassed reserve would be removed and the revetment wall and a pebble beach ramped from the boundary of Mr Anderson's property to the water's edge. Conclusions and findings 30The powers of the Court are conferred by s180(4) of the LGA:- On hearing an appeal, the Court may: (a) revoke the order, or (b) modify the order, or (c) substitute for the order any other order that the council could have made, or (d) find that the order is sufficiently complied with, or (e) make such order with respect to compliance with the order as the Court thinks fit, or (f) make any other order with respect to the order as the Court thinks fit. 31Mr Anderson seeks the revocation of the Order. The council says that the order should be confirmed and the appeal dismissed. Both parties made detailed submissions in relation to the Order as made and provided reasons why their contentions should be upheld. This is not an appeal that is challenging the validity of the Order, however, much of Mr Mallik's submissions for the applicant went to that matter. 32In this case, I must be satisfied that it is within the power of the Court in proceedings brought under Class 2 of the Land and Environment Court Act 1979 (LEC Act), to take any of those actions included in s180(4) of the LGA as detailed in [30]. This requires an examination of the table to s124 and a determination, firstly, if the circumstances said to exist, do exist. 33In this regard, I am satisfied from the uncontested evidence of Mr Walpole, that there is actual or likely damage to a public place due to the construction of the seawall, in particular, the natural ecosystem and foreshore processes of Swan Bay and Lake Macquarie. The fact that the damage may not be extensive is not a matter that I need to have regard to. Mr Walpole has demonstrated to the satisfaction of the Court that the seawall, as constructed has or is likely to cause damage to the lake and its foreshore however was unable to quantify the extent of that damage. It is not necessary to quantify the extent of that damage, suffice to say, any environmental damage will have a cumulative impact on any natural system, regardless of the extent of modifications that have occurred to that system. 34The next step is to determine what is required and in this case, Order 28 provides for a person on whom the Order is served to take whatever steps are necessary to prevent damage to a public place and to repair damage to a public place. The council is seeking the demolition and removal of the vertical concrete seawall and to restore the public place upon which the seawall was constructed, being the foreshore of Lake Macquarie, in accordance with the plan Annexure B. 35I consider the powers of the Court are broad in its determination of the matter. The Order provides for a person to take whatever steps are necessary (emphasis added) to prevent or repair damage. Having found that the damage has or is likely to occur, it is open to the Court to require whatever work is deemed necessary to prevent or repair that damage. I do not accept Mr Mallik's submission that it is beyond the power of the Court to require works of a different standard to that which may have existed prior to the works being undertaken. 36Firstly, there is no evidence that allows a proper conclusion as to the construction and condition of the seawall immediately prior to the works being undertaken. Secondly, because the damage has been caused and will continue to be caused as a result of the type of wall constructed, I consider that it is within power to require the construction of an appropriate seawall so as to prevent any further and continued damage. Consideration of the public place in this instance would also include the public reserve and the desire to maintain it in its current form. For that reason, the construction of a seawall, as detailed in the sketch prepared by Mr Walpole (exhibit B) would be appropriate. It is apparent, from the evidence in these proceedings, that, the Order does not clearly convey the precise works that are required. This is not fatal as it is within the power of the Court to modify the Order to ensure it is formulated in precise terms. 37The third step is to determine whether Mr Anderson is a person to whom the Order can be issued. There is no dispute that he is not the owner of the public place. He does own land that immediately adjoins that public place and, through the construction of the seawall, has the benefit of a direct and level access across a public place to his jetty. He also has the benefit of a pseudo extension to his backyard and whilst the land is Crown land, there is no differentiation of the boundary between private and public space. For these reasons, I find that Mr Anderson benefits from the work. 38Whilst I have found that the preconditions to the Order have been met, I am not satisfied that I have the power to confirm the Order by deciding to exercise any of the powers conferred by s180(4). That is because the precondition of Section 126 of the LGA has not been met. Mr Long, for the council, concedes that it did not obtain the written consent from the Minister prior to issuing the Order. As the Court is exercising the functions and discretions of the council (s39(2) of the LEC Act), such consent must have been obtained and that is not the case. Accordingly, I cannot confirm the Orders made and the Order must be revoked. 39The Orders of the Court are: (1)The appeal is upheld. (2)Order reference ORD/347/2012 issued by Lake Macquarie City Council on 4 September 2012 is revoked. (3)The exhibits, other than exhibits 1 and B, are returned. Sue Morris Commissioner of the Court ********** 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. Decision last updated: 07 March 2013