Buckley and Love v Lake Macquarie City Council

Land and Environment Court (NSW)|2012-06-25

Mr G Long (Respondent) Corporate Lawyer File Number(s): 10245 of 2012 and 11233 of 2011

Background 1These proceedings relate to an unauthorised BBQ/pergola structure (structure) that was erected at 52 Macquarie Road, Fennell Bay and comprise the following 2 matters:

Appeal No 10245 of 2012; which is an appeal against council's refusal to issue a Building Certificate (BC) for the pergola structure and attached garage/boatshed, and
Appeal No 11233 of 2011; which is an appeal against a s 121B Order requiring the demolition of the pergola structure. 2The site is described as Lot 1 DP 349284, 52 Macquarie Road, Fennell Bay. It is generally rectangular in shape and has an area of approximately 987 m2, with a road frontage of 15.24 m and side boundaries of 60.96 m and 68.58 m. The site has a north easterly aspect with a main dwelling house fronting Macquarie Road. The rear boundary is L T Creek, a tributary of Lake Macquarie. 3In 1998/9, approval was granted for the replacement of an existing boatshed/garage on the site. During 2008 the applicants engaged a builder to proceed with building works on the site and this apparently included the pergola structure with an area of approximately 32.2 sq m, which was to replace a temporary pole and fabric structure that had apparently been used since 2002. The pergola is attached to the existing metal boat shed/garage, which has an area of approximately 100 sq m. 4The rear of the site that fronts L T Creek is subject to a 14 m Foreshore Building Line (FBL) and a significant part of the shed is located within the FBL area. 5The applicant has sought to regularise the situation by way of the BC application. However, Council refused this and subsequently the s 121B Order issued for removal of the pergola. 6Council's main contention concerns the encroachment of the pergola into the FBL area. It is prepared to allow the encroachment of the boat shed/garage to remain.

Planning controls 7The property is zoned 2(1) Residential under the provisions of Lake Macquarie Local Environmental Plan 2004 (LMLEP 2004). The objectives of the 2(1) zone are: (a)permit development of neighbourhoods of low-density housing, and (b)provide for general stores, community service activities or development that includes home businesses whilst maintaining and enhancing the residential amenity of the surrounding area, and (c)ensure that housing development respects the character of surrounding development and is of good quality design, and (d)provide for sustainable water cycle management. 8The site is subject to a foreshore building line (FBL) of 14m under the provisions of cl.22 of the LMLEP 2004. The objectives of this clause are: (a)preservation and enhancement of the natural features and vegetation near where land meets the high water mark, and (b)restoration of the land below any foreshore building line, so far as practicable, to a natural state, with a minimum intrusion of man-made structures, and (c)removal of structures and works below any foreshore building line (particularly on redevelopment of land), other than those excepted by clause 23, and (d)conservation and enhancement of waterfront structures of heritage value, and (e)avoidance of adverse ecological effects on the waterways, and (f)enhancement of the visual amenity of Lake Macquarie 9The associated definitions are: foreshore area means the land between the foreshore building line and the mean high water mark of the nearest natural waterbody. foreshore building line means a foreshore building line fixed under clause 7 of the Environmental Planning and Assessment Model Provisions 1980, as adopted by clause 22. foreshore development means a boatshed, jetty, slipway, boat ramp, in-ground swimming pool, inclinator, landscaping, barbeques or other similar structures. 10Other relevant planning controls include:

State Environmental Planning Policy 71 - Coastal Protection
Lake Macquarie DCP No 1 - Principles of Development 11Section 3.1 of the DCP deals with foreshore development on the basis that: Lake Macquarie's foreshore is a dynamic part of the landscape and forms the boundary between the lake and its catchment. A healthy foreshore has many values, providing important habitat for wildlife and a pleasant place for recreation as well as stabilising soil and filtering stormwater runoff. In many areas around the lake these values have been threatened by misuse of foreshore land and a balance in our use of the lake's foreshore must be found so that all of its values can be maintained and enhanced 12The particular DCP controls provide for: Foreshore Development as defined in the Lake Macquarie LEP 2004 is divided into two sections known as Lakefront Area Development and Foreshore Area Development. In these areas development is limited to that which protects and enhances the value of the foreshore. These two areas consist of: 1 An area 6 metres landward of the DHWM. In this area, development is limited to Lakefront Area Development such as a jetty that may extend over or under the water and may also include foreshore vegetation/stabilisation treatments. 2 An area between the 6 metres landward of the DHWM to the foreshore building line. In this area, development is limited to that defined as Foreshore Area Development such as a boatshed. Development for the purposes of dwellings, garages, or other major structures are not permitted in this area. (They are only permitted between the foreshore building line and front street setback.) 13The stated intent of the controls is "to ensure that development maintains and enhances the ecological, community and scenic values of the Lake and its tributaries". The performance criteria in P1 states:
Development or redevelopment on foreshore areas promotes the restoration of the FORESHORE BUILDING LINE and public access. 14Also relevant in the subject matter are the following acceptable solutions in A1.6 (2.) Variation to the foreshore building line will only be considered:
Where the land is identified in a Plan of Management or Contributions Plan prepared and exhibited by Council, or
On the merit of the proposal and in conjunction with the dedication or management or foreshore land for ecological, community, water quality or visual reasons

The evidence 15Detailed evidence was presented by:

Mr K Blackmore: Applicant's consulting planner, and
Mr C Dwyer; Council's Principal development planner. 16Mr Blackmore assessed the application in terms of the performance criteria and says:
The leading edge of the shade structure (pergola) is located approximately 4.7 metres back from the waters edge of LT Creek, which is a narrow estuary with no significant or prominent view lines or corridors available. There are no distant views to the site, and the shade structure cannot be viewed from any public place, with the exception of the immediate waterway at the rear boundary of the property. Therefore the location does not have high scenic quality.
Along the foreshore area of the creek there is an existing assortment of detracting features including, fences extending to the waterline, numerous moored boats (large and small, new and old) and other miscellaneous structures, some well constructed and others in various states of disrepair.
These numerous structures of various scale, location and nature, significantly restrict any views of the structure. As such, the shade structure would not adversely impact on the visual amenity of the locality, as the visual catchment is limited to the immediate waterway and close views.
Insofar as there a number of existing boat ramps, slipways and small mooring jetties on both sides of LT Creek, there are additional structures and features that exist along both sides of the creek that also contribute to the character of the locality. These relatively ad hoc structures and features, many of which are within the foreshore building line setback, are constructed of various materials and serve a range of purposes from reclaimed land, entertainment areas, storage facilities and foreshore restoration works. Development along the creek edge is currently uncoordinated and there is no clear evidence of a consistently applied foreshore building line.
The shade structure (pergola) is low scale and mostly hidden by the approved boat shed. It is not constructed of materials, or of a colour, that detracts from the location and it is not a prominent structure, nor is it out of character with other development in its vicinity. As such, it does not have any significant adverse impact on the scenic quality of the location or the visual amenity of the area. 17From this assessment, Mr Blackmore supports the proposal on the basis of the SEPP 1 Objection to the development standard contained in cl 22(3) of LEP 2004. By reference to Objectives (a) to (f) in cl 22, the objection is that the strict compliance with the FBL development standard is unreasonable and unnecessary in the circumstances because: a)The shade structure will not adversely impact on the visual amenity or character of the locality; and, b)The objectives of the Foreshore Building Line (FBL), as applied to the locality, have not and will not be achieved, as the FBL's have not been consistently applied and enforced to the extent that it is considered that the intended strategy has been abandoned in this location. 18The SEPP 1 Objection states that, in the particular circumstances, the underlying objectives of the Foreshore Building Line has not and will not be achieved in this location and as a consequence is not relevant to the development. As such, this confirms that compliance with standard is unnecessary and unreasonable. 19According to Mr Dwyer' assessment, a BBQ structure does not meet the LEP foreshore development definition. However he acknowledges that under the DCP such BBQ/pergola structure would satisfy the shade structure definition for Foreshore Area Development. He considers that there is a conflict between the two planning controls, which should be determined on the basis that the LEP provisions prevail. 20Mr Dwyer's conclusions are:
SEPP 71 LMLEP and DCP 1 together seek to protect the coast and foreshore of Lake Macquarie from development that is not foreshore development.
LMLEP encourages the removal of development below the foreshore building line that is not foreshore development.
A development application for a BBQ pergola structure erected below the foreshore building line on the land is not foreshore development that would not meet the objectives of LMLEP and he would not support it.

Conclusion 21Having considered the evidence, the submissions and undertaken a view, I firstly accept the applicant's submissions that the consideration of the Building Certificate application as a "notional development application" is consistent with the findings in Ireland v Cessnock City Council [1999] LGERA 285. 22Proceeding on this basis, I accept that dwellings are permitted in this 2(1) Residential zone and that the structure is classified as an outbuilding associated with or ancillary to the main dwelling. 23Consequently, the main issue for this application concerns the FBL restriction contained in cl 22 of the LEP. In this regard, I also note the associated controls in the DCP, which differentiate various types of development restrictions in the Lakefront Area Development and Foreshore Area Development locations. There were disparate opinions on how these two sets of controls apply. 24However, the applicant relies firstly on a SEPP1 Objection to the 14 m development standard in cl 22. According to Mr Blackmore's aforementioned assessment, many structures have been erected within this foreshore area and he does not consider there has been any commitment to remove these structures. Consequently there is a poor quality visual environment whereby he considers that the retention of the structure will not have any adverse visual impacts. 25The justification for the SEPP 1 Objection that strict compliance is unnecessary and unreasonable is stated in paras 17 and 18, resulting in the conclusion that the retention of the structure will not cause adverse visual impacts and that the abandonment of the development standard means that it is not relevant to the subject property. In this regard, I note that it has been long held that the absence of environmental harm is not justification for not applying the control. 26Accordingly, I have considered Mr Nash's submission that the principles of 'abandonment' in Wehbe v Pittwater Council [2007] 150 LGERA 440 should apply. This is primarily because the council appears to have effectively abandoned the policy by approving other non-complying developments and also not taken any initiative to remove these non-complying structures. Acceptance of this submission would then allow the BC to be issued. 27However, the circumstances for the existence of most of these nonconforming structures was not fully established and it appears that some are quite old and likely to precede the current controls. In this regard, Mr Long submits that prior to 1994, there were no actual controls on foreshore development. Notwithstanding this, the Court was able to undertake a limited view of the environs surrounding the subject land and it does appear that the neighbouring properties are not subject to extensive encroachments into the FBL area, to anywhere near the scale of the current structure. 28This situation is confirmed by reference to the aerial photo contained in Figure 1 of Mr Dwyer's statement. It shows that this section of the foreshore area is relatively free of structures. The exception to this is the subject property, which contains the garage/boatshed and BBQ structure that extends across most of the width of the lot. 29In the circumstances then, I am not satisfied to rely on the abandonment argument or that the structure will not cause adverse visual impacts, It seems to me that the objectives for cl 22 are explicit and the seek to preserve and enhance the natural features and vegetation, together with restoration of the land below the foreshore. The SEPP 1 does not adequately address these objectives, in my assessment. 30I also consider Objective (c), which seeks to remove structures and works below the FBL, subject to cl 23, is relevant. It is apparent to me that the effect of allowing the BBQ structure, which is attached to the garage/boat shed to remain, is that practically the entire width of the subject lot has encroaching structures built upon. I do not consider this is the outcome intended by the objectives and I consider the cumulative effect of this combined structure is unacceptable. 31Accordingly, I am not minded to allow the SEPP1 Objection. But I have also considered the submissions regarding the provisions of the DCP, which allows limited development within the Foreshore Area Development. This allowance applies to the subject structure because it is built within this area. The DCP allows 'shade structures', which generally includes the BBQ/pergola structure. Any such approval would presumably be subject to merit consideration and general satisfaction of the qualification that such structures should 'protect and enhance the value of the foreshore'. 32Insofar as Mr Buckley was challenged on his opinions that there was an apparent inconsistency between the LEP and DCP provisions, nevertheless he agreed that the subject structure fits into this classification for approval but did not support it on merit. 33For my merit assessment, I think it reasonable to consider the overall impact of the combined structure. Such structure substantially extends across the width of the lot adjacent to the foreshore area. I understand that the council previously approved the garage/boatshed within the foreshore area development, but that was partly on the basis of replacing an existing building. 34It seems to me that some discretion has been exercised with that determination in balancing the competing personal interest of greater utility of the land with the public interest in compliance with the controls to achieve an environmentally acceptable foreshore area presentation. I therefore consider it realistic to assess the merits of any such application under the DCP by taking into account the overall size and scale of the proposal, in terms of how it will "protect and enhance the value of the foreshore". 35From my observations at the view, where I noted the absence of similarly large structures in this section of the foreshore, I consider the overall structure is of excessive size, which does not satisfy the qualitative "protection and enhancement" requirements of the DCP. In this regard, I have some reservations about whether the degree of satisfaction of the garage/boat, but accept council's agreement to this component. 36I have considered submissions on the following the line of authority in the matter of Hooler & Anor v Sutherland Shire Council [2008] NSWLEC 189, where Lloyd J said: 25 Moreover, the removal of the existing dwelling would not be unreasonable or unnecessary in the circumstances of this case, contrary to sub-cl (c)(ii). I am confirmed in this view on taking a view of the site and of other foreshore development around Burraneer Bay which was taken in the presence of the representatives of the parties. The foreshore is presently cluttered with many older structures erected below the foreshore building line and, in many cases, either adjacent to or over the waterway. The council is fully justified in attempting to rectify this undesirable situation whenever an application for consent dealing with waterfront land is made. It is for this reason that cl 18 exists, and to do otherwise would be clearly contrary to the objectives of the clause to ensure the restoration of land below the foreshore building line to a natural state and to reduce the number of structures below any foreshore building line. No reason has been advanced on behalf of the applicants to the effect that removal of the original dwelling is unreasonable or unnecessary in the circumstances of the case, other than pointing out the many other waterfront structures around the bay. As I have said, the existence of such structures is a sound reason for enforcing the policy objective of cl 18. The council should take every opportunity to secure their removal whenever that opportunity arises 37With respect then to the submissions concerning the Draft LEP, which indicates that the FBL may be reduced to 10m and probably makes the retention of the structure more acceptable, I rely on Mr Long's submission that this Draft LEP has not been exhibited and is not imminent and certain. Therefore I do not consider it should not be given any determinative weight. 38In the ultimate then, the approval of the BBQ/pergola structure is dependent on a well-founded SEPP 1 Objection, which I do not consider has been made out. I do not accept that the stated lack of environmental harm is adequate because the other objectives concerning enhancement of the natural features, minimal intrusion of man made structures and removal of structures below the FBL are not satisfied. 39Apart from this, I have considered the merits of the application in terms of the DCP allowance for 'shade structures' but do not consider the subject BBQ/pergola merits approval considering its excessive bulk and scale with the adjoining shed, in a foreshore development area where any development is required the protect and enhance the value of the foreshore. I do not consider the pergola structure satisfies these requirements.

Court orders 40The Court orders that: 11233 of 2011

The appeal is dismissed.
The s 121B order 260/2011 for the demolition of the BBQ/pergola structure (excluding pavers) at 52 Macquarie Road, Fennell Bay is confirmed with a time period for compliance with the Order of 90 days from the date of these orders. 10245 of 2012
The appeal is upheld in part.
The Council is directed to issue a Building Certificate in respect of the garage extension to the existing boatshed at 52 Macquarie Road, Fennell Bay within 14 days.
The exhibits may be returned except Exhibit 1 (Tabs 8, 9, 10, 11, 12 and 13). R Hussey 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: 30 July 2012

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