Newton and anor v Great Lakes Council [2013] NSWLEC 1248

Land and Environment Court New South Wales

Medium Neutral Citation: Newton and anor v Great Lakes Council [2013] NSWLEC 1248 Hearing dates: 24 and 25 October 2013 with written submissions by 15 November 2013 Decision date: 20 December 2013 Before: Moore SC Decision: See para (58) Catchwords: DEVELOPMENT CONSENT: Reasonableness of conditions of consent: climate change; coastal hazards; beach erosion Legislation Cited: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy 71 - Coastal Protection Great Lakes Local Environmental Plan 1996 Cases Cited: Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 Category: Principal judgment Parties: G & L Newton (Applicants) Great Lakes Council (Respondent) Representation: Mr M McMahon, solicitor (Applicants) Mr T Pickup, solicitor (Respondent) M. E. McMahon & Associates (Applicant) Local Government Legal (Respondent) File Number(s): 10605 of 2013

Judgment

Introduction 1SENIOR COMMISSIONER: Winda Woppa is a narrow settled peninsula on the northern shores of Port Stephens and on the eastern side of the mouth of the Myall River. The peninsula is accessed by driving through Hawks Nest, a more major settlement to Winda Woppa's north-east. Jimmy's Beach runs along the shoreline of Winda Woppa in a crescent shape with a generally southerly aspect. 2The likelihood of sea level rise and the potential of consequential risk of damage to buildings in the vicinity of the foreshore is at the heart of this dispute concerning the conditions attached to an approval given by the Great Lakes Council (the Council) for the construction of a new dwelling at Winda Woppa. 3The site of the proposed new dwelling has its frontage to The Boulevarde, the road that runs along the frontal dunes of Jimmy's Beach. 4Jimmy's Beach, particularly the portion immediately opposite the site across The Boulevarde, because it has its aspect toward the mouth of Port Stephens, has suffered severe storm erosion in past. Jimmy's Beach has required extensive sand replenishment as a consequence of storm surges in the recent past. The Boulevarde itself has been undermined in part by past storm surges. 5During the course of the site inspection, a photograph was taken (and subsequently became Exhibit J) that shows much of the section of Jimmy's Beach in the vicinity of the site - portion that has been extensively sand replenished in the recent past. This photo is reproduced below: