Dunford v Gosford City Council (No.2) [2014] NSWLEC 1275

Land and Environment Court New South Wales

Medium Neutral Citation: Dunford v Gosford City Council (No.2) [2014] NSWLEC 1275 Hearing dates: 3 December 2014 Decision date: 03 December 2014 Jurisdiction: Class 1 Before: Brown C Decision: Notice of Motion dismissed Catchwords: NOTICE OF MOTION: motion to alter the statement of facts and contentions relating to the erection of a dwelling house at Wamberal Beach Legislation Cited: Environmental Planning and Assessment Act 1979 Cases Cited: Gales Kingscliff Pty Ltd v Tweed Shire Council (No 2) [2007] NSWLEC 817 Category: Principal judgment Parties: Esther Dunford (Applicant) Gosford City Council (Respondent) Representation: Counsel: Ms A Hemmings, barrister (Applicant) Mr M Fraser, barrister (Respondent) Solicitors: Hicksons (Applicant) Gosford City Council (Respondent) File Number(s): 10636 of 2014 Publication restriction: No

Judgment 1. COMMISSIONER: Appeal No. 10643 of 2014 is an appeal against the refusal of DA 4125/2014 by Gosford City Council for the demolition of an existing dwelling and the construction of a new dwelling and basement car parking at 23B Ocean View Drive, Wamberal. The appeal was set down for hearing on 9,10,11 December 2014. 2. A summary of the council contentions maintains that the application should be refused because: * the construction of the dwelling does not sufficiently avoid or minimise the potential risk of coastal erosion, and * the construction of the dwelling is not in the public interest as it will be impacted by coastal hazard processes resulting in property damage and loss. 1. The site is Lot 2 in DP 8854. It has a western frontage to Ocean View Road of 16.48 m, a northern side boundary of 49.91 m and a southern side boundary of 55.66 m. The eastern beachfront boundary of 16.71m adjoins Wamberal Beach. 2. On 3 December 2014, Mr Fraser, for the council, by way of Notice of Motion sought to amend the contentions on which the council's case was founded. Mr Fraser sought to include the following additional contentions: Contention The proposal is not in the public interests Particulars (1) Beach amenity and access a) While the proposed dwelling house may be able to withstand wave impacts during storms, the erosion of sand beneath the structure will see the dwelling progressively move into the beach and surf zone, presenting a hazard to beach users. b) The exposed piled foundations of the proposed dwelling house would present unattractively to the beach, compromising the beach amenity and diminishing its natural scenic quality. c) Further approvals with similar engineering solutions would exacerbate a) and b). d) The proposed development's exposed piled foundations following beach erosion will not serve to protect and improve public access to and along the foreshore in a manner compatible with the foreshore's natural attributes. (2) DCP 125 e) The council's and the community's knowledge of beach erosion and of likely ZWI and ZRFC at the subject land and Wamberal Beach has changed materially since DCP 125 was drawn f) The underpinning consideration which gave rise to the control, the revetment wall, has not been built in 20 years since it was proposed, there are no plans to build it. g) Consequently it is not in the public interest to approve this dwelling when it relies upon that false underpinning. (3) PRECEDENT h) The respondent has hitherto approved dwellings on Wamberal beach in reliance on DCP 125 and the revetment wall. Until the new planning controls are developed from the draft Coastal Zone Management Study in reliance upon the Open Coast and Broken Bay Beaches - Coastal Processes and Hazard Definition Study (Worley Parsons 2014), approval of the proposal is not in the public interest. i) Approval of this proposal will create an adverse precedent for coastal development. 1. The additional contentions were opposed by Ms Hemmings for the applicant. 2. In balancing the competing submissions, I propose to draw heavily on the judgment of the Chief Judge in Gales‑Kingscliff Pty Ltd v Tweed Shire Council (No 2) [2007] NSWLEC 817. The matters that are set out in that judgment for altering a statement of facts and contentions are, in my view, relevant to the subject notice of motion. The Chief Judge in this judgment sets out a number of reasons why leave was not granted to raise new contentions in that case. Not all are relevant in this case, but a number of them are relevant. These are (at [50], [51] and [54]): [50] First, I accept the council failed to raise the issue as it should have done if it wanted to raise it in its statement of facts and contentions. [51] Secondly, no adequate explanation has been provided to the Court as to why the issue was not raised in the council's statement of facts and contentions. [54] Fourthly, the council raises the issue late in the proceedings. 1. While the lateness, in this case, is not as late as in Gales‑Kingscliff, but certainly late, being after all the reports, the individual reports and joint reports had been prepared. 2. I also accept that additional evidence would be required if the additional contentions sought by Mr Fraser are addressed in full. I note that proposed contention (1), titled, "Beach Amenity and Access" is addressed in some detail, but not to the extent required by the proposed contention in the expert evidence. 3. I also note that DCP 125 is addressed by the experts in their evidence, and, again, not necessarily to the extent set out in the proposed contention. 4. The contention relating to precedent, is a matter that I am satisfied can be adequately addressed by the experts in their oral evidence on site, and given the positions taken by the planning experts, it could reasonably be anticipated what their evidence would be. 5. Finally, and in support of Ms Hemmings submissions, I quote the Chief Judge in Gales‑Kingscliff (at [65]) where he states: The Court has an overriding obligation under pt 1, r 5A of the Land and Environment Court Rules 1996 to ensure that just, quick and cheap resolution of the real issues in the proceedings. 1. Consequently, the notice of motion is dismissed, and the question of costs is reserved on the notice of motion. __________________ G T Brown Commissioner of the Court