Raphael Glaser v Silvana Slaveva Smithwick

Land and Environment Court (NSW)|2018-12-13|Before: Robson J

Solicitors: PJ Donnellan & Co (Applicant) Apex Law (Respondent) File Number(s): 2018/00381730

Judgment

Before the Court are Class 4 proceedings brought by Raphael Glaser ('applicant') against Silvana Slaveva Smithwick ('respondent') in relation to a timber fence constructed on or near the boundary between the properties identified as Lot 21 in DP 848059, known as 52A Coral Crescent, Pearl Beach, owned by the respondent, and Lot 20 in DP 848059, known as 52B Coral Crescent, Pearl Beach, owned by the applicant.

Background and legislative context

The allegedly non-compliant fence the subject of these proceedings is constructed of timber with concrete and metal footings. Both lots and the fence are on the beachfront of Pearl Beach. Each lot contains a semi-detached dwelling.
Clause 2.33 in Div 17 of the Codes SEPP relevantly provides: 2.33 Specified development The construction or installation of a fence on land within Zone R1, R2, R3, R4 or RU5 is development specified for this code if it is not constructed or installed: (a) on a lot, or along a common boundary of a lot, that contains a heritage item or a draft heritage item, or (b) along the boundary of, or within the setback area of, a primary or secondary road within a heritage conservation area or draft heritage conservation area, or (c) on a flood control lot, or (d) on land that is identified as being in a foreshore area.
In cl 1.5 of the Codes SEPP, the following relevant terms are defined: foreshore area means the land between a foreshore building line and the mean high water mark of an adjacent waterbody (natural). foreshore building line means the foreshore building line identified by: (a) a development control plan adopted before 12 December 2008, or (b) an environmental planning instrument.
The applicant says that, properly understood, the Gosford Development Control Plan No. 125 - Coastal Frontage, which came into force on 27 January 2000 ('DCP 125') established a foreshore building line for Pearl Beach which is behind the location of the fence. Accordingly, the applicant says that the fence is not exempt development within the meaning of the Codes SEPP because it is on land that is identified as being in a foreshore area (cl 2.33(d)). Further and additionally, the applicant says that a plan styled "Foreshore Building Line Coral Crescent Pearl Beach" was, in fact, adopted under an earlier environmental planning instrument ('EPI').
The applicant also draws attention to the restrictive covenant applying to the land, being an instrument prepared pursuant to s 88B of the Conveyancing Act 1919 (NSW) ('restrictive covenant') which relevantly provides the following requirements in relation to the owners of each of lots 20 and 21: 3. Terms of restriction on use thirdly referred to in the abovementioned plans: Not to do, permit or suffer or allow to continue any of the following: (a) Appearance of the lot A proprietor or occupier of a lot must not maintain within the lot anything which is visible from outside the lot that, when viewed from outside the lot, is not in keeping with the general appearance of the rest of the buildings which are constructed on both Lots 20 and 21 or on either of those lots. … (c) Aid to interpretation The objective of these restrictions on use is to preserve the external appearance of all buildings constructed on both Lots 20 and 21 so that appearance remains consistent for both lots and a situation does not arise, for example, where one part of a building is painted in one colour and the other in a different one.
Assuming that the restrictive covenant would otherwise preclude the erection of the fence, which is not entirely self-evident and not agreed, it is relevant to note that cl 1.20 of the Codes SEPP relevantly provides: 1.20 Suspension of covenants, agreements and instruments (1) For the purpose of enabling development on land in any zone to be carried out in accordance with this Policy, or with a consent granted under the Act, any agreement, covenant or other similar instrument that restricts the carrying out of that development does not apply to the extent necessary to serve that purpose. …
Clause 1.20 provides a number of exemptions, none of which are relevant in the present case. The authority to create provisions which suspend the operation of covenants is contained within s 3.16 of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act'), which is reflective of the former s 28 of that Act. Its effect is well understood. As Talbot J said in Challister Ltd v Blacktown City Council (1992) 76 LGRA 10 at 124: The opportunity to make such a provision in an environmental planning instrument is intended to achieve a result whereby development which satisfies the criteria laid down by the planning legislation may proceed notwithstanding any constraint imposed by other regulatory instruments. The Parliament recognised the significance of the extent of this power by subjecting its exercise to the approval of the Governor and in some cases to the concurrences of the relevant Minister.
This understanding of what is now s 3.16 of the Act was endorsed by the Court of Appeal in Coshott v Ludwig (1997) 8 BPR 15,519; (1997) NSW ConvR 55-810 and has been followed in Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd [2010] NSWCA 214; (2010) 175 LGERA 433 (overturned on a different basis in Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd (2011) 243 CLR 492; [2011] HCA 27) and Harrington v Greenwood Grove Estate Pty Ltd [2011] NSWSC 833; (2011) 184 LGERA 248. The position may not therefore be doubted that cl 1.20 removes any impediment on development under the Codes SEPP which the restrictive covenant might otherwise have provided.
If the fence is not exempt development under the Codes SEPP, then development consent is required to be obtained under the Gosford Local Environmental Plan 2014 ('LEP'). Clause 1.9A of the LEP relevantly provides: 1.9A Suspension of covenants, agreements and instruments (1) For the purpose of enabling development on land in any zone to be carried out in accordance with this Plan or with a consent granted under the Act, any agreement, covenant or other similar instrument that restricts the carrying out of that development does not apply to the extent necessary to serve that purpose. …
This means that the existence of the restrictive covenant does not present a jurisdictional bar to the approval of a development application for the fence in any event, although I note that the existence of a covenant is a matter which the consent authority may take into account in assessing a development application: Wenli Wang v North Sydney Council [2018] NSWLEC 122 at [32]. However, that is not a matter which can become relevant in these Class 4 proceedings.
The effect of this is that the restrictive covenant is not a matter which is relevant to my consideration. Accordingly, the sole question to be resolved in the proceedings is whether the fence is exempt development as provided for by the Codes SEPP.

Evidence

The applicant reads the affidavit of Pauline Jennifer Wright, sworn 11 December 2018 and further relies upon a bundle of documents comprising expert correspondence in relation to the fence and extracts from DCP 125, the Broken Bay Beaches Coastal Management Plan 1999 ('BBBCMP'), a recommendation from the review committee of Gosford City Council ('Council') recommending that Council adopt a foreshore building line and the minutes of the meeting where Council adopted the foreshore building line.
The respondent relies upon plans for the fence prepared by Willana Urban; a report prepared by Willana Urban which states the fence complies with the development standards in the Codes SEPP; a planning certificate for 52A Coral Crescent, extracts from the Gosford Development Control Plan 2013 ('DCP 2013'); and a printout of a research of the NSW legislation website showing a list of local environmental plans which contain foreshore building lines.

Whether the fence is exempt development

The applicant's position, that cl 2.33(d) prevents the fence from being exempt development, depends upon the fence being in a foreshore area. It is common ground that the LEP does not contain a foreshore line. The applicant relies upon a foreshore building line identified in an earlier EPI which it says is identified in "a development control plan adopted before 12 December 2008", namely DCP 125, which has since been superseded.

Applicant's submissions

The applicant notes the following provisions in DCP 125: 1 Name of Plan This plan is called Development Control Plan No. 125 - Coastal Frontage. This plan applies to all land within the City of Gosford which is affected by the coastal processes of beach and/or cliff erosion, namely, the section of coastline from Forresters Beach to Patonga. Reference shall be made in dealing with coastal frontage development to the Coastal Process Investigations, Coastal Management Studies and Coastal Management Plans for the Gosford City Open Coast Beaches (ie Forresters Beach to MacMasters Beach inclusive) and Broken Bay Beaches (ie Little Beach to Patonga inclusive). … 3 Purpose of Plan The purpose of this plan is to provide more detailed guidelines for the development of the land having regard to minimising the risks associated with building on land which has frontage to a coastal beach or cliff. This plan has been prepared to take account of Coastal Management Plans that Council has prepared and adopted. The Coastal Management Plans were prepared following Coastal Management Studies and Coastal Process Investigations that were carried out by Council between 1993 and 1999. The preparation of the Coastal Management Plans were carried out in accordance with the principles of the Coastline Management Manual issued by the NSW Government. The Coastline Management Manual was gazetted on 16 February 1996.
The applicant also notes that in August 1999, the BBBCMP was adopted by Council. At p 24, it provides: The beachfront residences along Coral Crescent are not at immediate risk to coastal hazards and in the event of a design storm and in fact most are outside the 50 year coastal hazard zone. Nonetheless, the residences need to be appropriately located in the longer term. It would be preferable to have all residences located outside the 100 year hazard zone. However, there are substantial numbers of relatively new residences in this zone. The practical responses for all residences when redeveloped to be: • located as far landward as possible; • located landward of Council's adopted building line or 50 year hazard line, whichever is most landward; • piled below the extent of coastal hazards; • indemnify Council against damage or loss, where seaward of 100 year hazard line. For the purposes of Precinct 4, a Coastal Hazard/Building Line has been established landward of which residences should be located... (emphasis added)
The applicant further notes that on 31 August 1999 (prior to the adoption of DCP 125), Council resolved as follows: A Council, under the provisions of Clause 37 of the Gosford Planning Scheme Ordinance adopt the Building Line identified on Plan "Foreshore Building Line Coral Crescent Pearl Beach". B Draft DCP 114 be amended to identify building lines identified in various Coastal Management Plans as Council's ocean beachfront building lines.
The applicant submits that the foreshore building line was adopted pursuant to the Gosford Planning Scheme Ordinance ('Ordinance') and was thereby made under an EPI such that par (b) of the definition of "foreshore building line" in the Codes SEPP is met. The applicant submits that the fact that the Ordinance has been repealed does not alter this conclusion.
The applicant also submits that DCP 125 identifies a foreshore building line such that par (a) of the "foreshore building line" definition is also met. The applicant submits that the "need to take into account" the BBBCMP provided for in DCP 125 (see cl 1 of DCP 125, extracted above at [21]) and the fact that the BBBCMP refers to "Council's adopted building line" means that DCP 125 identifies the foreshore building line adopted by Council under the Ordinance. The applicant says that the phrase "Council's adopted building line" in the BBBCMP is a reference to the line identified on the plan styled "Foreshore Building Line Coral Crescent Pearl Beach".
The applicant submits that it does not matter that DCP 125 has been repealed because the effect of the definition of "foreshore building line" provided in the Codes SEPP is to create a snapshot of the foreshore building lines that were in DCPs at the time the Codes SEPP came into force.
The applicant says that it is clear from the evidence before the Court that the fence has been built seaward of the foreshore building line with the consequence that the fence is in a foreshore area and that it is not exempt development within the meaning of the Codes SEPP.
The applicant also submits that the footings of the fence do not satisfy the development standards provided for in cl 2.30 of the Codes SEPP (relating to "earthworks, retaining walls and structural support") such that the respondent is unable to take advantage of the Codes SEPP to construct the fence.

Respondent's submissions

The respondent submits that the reference to an EPI in the definition of "foreshore building line" means an EPI that is in force and refers to the definition of "environmental planning instrument" in s 1.4 of the the EPA Act, under which the Codes SEPP was made, which provides: environmental planning instrument means an environmental planning instrument (including a SEPP or LEP but not including a DCP) made, or taken to have been made, under Part 3 and in force (emphasis added).
The respondent notes that the Ordinance contained a clause (cl 37) which empowered Council to adopt a foreshore building line by resolution. The respondent submits that because the Ordinance has been repealed (as have DCP 125 and DCP 114) any foreshore building line made pursuant to cl 37 of the Ordinance cannot survive beyond the repeal of the instrument under which it was made unless it was saved by a savings or transitional provision in a later EPI. The respondent says there is no relevant savings provision in the LEP.
Similarly, the respondent submits that the reference in cl 1.5 of the Codes SEPP to a "development control plan adopted before 12 December 2008" does not include a development control plan that has been repealed. The respondent notes that "development control plan" is not defined in the Codes SEPP but submits that the definition in the EPA Act should be taken to apply. Section 1.4 of the EPA Act defines "development control plan" as follows: development control plan (or DCP) means a development control plan made, or taken to have been made, under Division 3.6 and in force (emphasis added).
The respondent submits that, because DCP 125 is no longer in force, having been repealed by DCP 2013, any foreshore line referred to in DCP 125 is irrelevant because cl 1.5 of the Codes SEPP can only be referring to a DCP which is still in force because a DCP which is no longer in force is no longer a development control plan.
The respondent submits that this construction is consistent with practical considerations because the applicant's approach has the unusual consequence that a foreshore building line fixed under an EPI would only apply if the EPI remained in force, whereas a line fixed under a repealed DCP would continue to exist. The respondent says this would also give rise to a serious inconvenience in that those who wished to carry out exempt development would be required to search for repealed DCPs that predate 2008.
Further, the respondent submits that, even if DCP 125 does apply, it contains no reference to a "foreshore building line". The respondent submits that the term is a composite phrase not only as a defined term but within the definition itself and that therefore it is necessary to find the same composite phrase in DCP 125. The respondent says there is no warrant for reading the term to be anything other than as it is described.
The respondent submits that the applicant has failed to identify either of the two lines necessary to enliven the definition of foreshore area in the Codes SEPP: the foreshore building line and the mean high water mark.
The respondent also submits that a purposive reading of DCP 125 does not assist the applicant because the erosion line and building/hazard line which he identifies serve a different purpose to a foreshore building line.

Consideration

There is no general rule that delegated legislation is to be interpreted more flexibly than statutes: 4nature Incorporated v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191 ('4nature') at [45]. In 4nature at [107], Leeming JA observed: It is a general proposition that if legal language has been used less than carefully, it may be appropriate to give rather less weight to precise textual considerations. That was the point intended to be conveyed by what I said in Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 at [54]-[55], which commenced with an observation that "the drafter has been less than fastidiously precise in his or her choice of language" and concluded with reference to the "somewhat casually drafted internal definition". There are reasons to think that delegated legislation, or, at least, some classes of delegated legislation, may be less carefully drafted than primary legislation.
The present case concerns the Codes SEPP, a delegated instrument with State-wide application which was drafted by parliamentary counsel. I do not consider that it can be said to use legal language less than carefully in the sense referred to by Leeming JA in 4nature.
With that in mind, it is convenient to make some preliminary observations about the structure of the Codes SEPP. Its aims are stated in cl 1.3, which provides: 1.3 Aims of Policy This Policy aims to provide streamlined assessment processes for development that complies with specified development standards by: (a) providing exempt and complying development codes that have State-wide application, and (b) identifying, in the exempt development codes, types of development that are of minimal environmental impact that may be carried out without the need for development consent, and (c) identifying, in the complying development codes, types of complying development that may be carried out in accordance with a complying development certificate as defined in the Act, and (d) enabling the progressive extension of the types of development in this Policy, and (e) providing transitional arrangements for the introduction of the State-wide codes, including the amendment of other environmental planning instruments.
The rest of Div 1 of the Codes SEPP identifies the land to which the Codes SEPP applies; provides definitions and savings measures; and explains how the Codes SEPP interacts with other State environmental planning policies, local environmental plans, and development control plans.
Division 2 of the Codes SEPP relevantly provides information about what exempt development is, general requirements that must be satisfied for exempt development and includes cl 1.20, extracted at [12]. The Codes SEPP then relevantly contains Pt 2 and a series of subdivisions each of which specifies a kind of development which is exempt and development standards which must apply to that development in order to take advantage of the exemption.
Clause 2.33 of the Codes SEPP appears in Pt 2 Subdiv 17, which is entitled "Fences (certain residential zones and Zone RU5)". As noted at [8] it provides that the installation of a fence is development specified for the code if it is not constructed or installed (relevantly) on land identified as being in a foreshore area.
The primary question in these proceedings is what "foreshore area" means in the context of cl 2.33 of the Codes SEPP. For convenience, I extract again the relevant definitions from cl 1.5 extracted above at [9]: foreshore area means the land between a foreshore building line and the mean high water mark of an adjacent waterbody (natural). foreshore building line means the foreshore building line identified by: (a) a development control plan adopted before 12 December 2008, or (b) an environmental planning instrument.
I consider that the effect of the definition of "foreshore building line" is relatively clear. Limb (a) of the definition provides that a foreshore building line identified by a development control plan at the time the Codes SEPP came into force is preserved but limb (b) provides that, in the future, a new foreshore building line for the purposes of the Codes SEPP may only be provided, or an existing one adjusted, by an EPI.
The justification for this operation appears to be a desire to regularise the formation of foreshore building lines across the State. This can be seen by the fact that Div 3.4 of the EPA Act, which provides the mechanism by which an EPI is made, is relevantly more rigorous than the mechanism for the creation of DCPs provided by Div 3.6 of the EPA Act. It is also a justification which is reflective of the aim provided in cl 1.3(e) of the Codes SEPP, to provide "transitional arrangements for the introduction of the State-wide codes, including the amendment of other environmental planning instruments".
The question which then arises is whether the references to an "environmental planning instrument" and "development control plan" provided in the definition of "foreshore building line" can refer to such instruments despite the fact that they have been repealed.
I deal first with the position under limb (b) of the definition. Leaving aside the difficulty about whether a foreshore building line that was made pursuant to an EPI, such as the foreshore building line referred to in these proceedings and which was created pursuant to cl 37 of the Ordinance, can be said to be "identified by" the EPI, I consider the fact that the Ordinance has been repealed is determinative and that it cannot assist the applicant in these proceedings. My reasons may be shortly stated.
First, I consider that the definition of "environmental planning instrument" contained in s 1.4 of the EPA Act (which relevantly provides that an EPI must be "in force") applies to the definition in the Codes SEPP absent any contrary intention. No contrary intention appears on the face of limb (b) of the "foreshore building line" definition.
Secondly, such an interpretation would give rise to significant difficulties in the operation of the Codes SEPP. It would mean that the creation of a foreshore building line would continue to be picked up by, inter alia, cl 2.33 even once the EPI in which it was identified was repealed and replaced by another EPI which might introduce a new foreshore building line. Presumably on the applicant's case, if an EPI created a new foreshore building line the new line would apply but such a difficulty only arises if the definition is strained to include repealed EPIs.
Thirdly, the aim of providing a State-wide code would not be assisted and would rather be hindered by allowing all EPIs, including repealed ones, to apply to the application of the Codes SEPP.
Fourthly, although the applicant referred to s 8 of the Interpretation Act 1987 (NSW) for the proposition that a reference to a singular EPI should be read as a plural, I do not consider that this assists. The point may be accepted that the reference to an EPI in the definition of foreshore building line refers to EPIs in the plural sense (indeed, it refers to every EPI currently in force in the State) but it does not follow from this that the definition extends to repealed EPIs.
The status of the foreshore building line adopted under the Ordinance is therefore not presently of significance although it may be assumed that its effect lapsed upon the Ordinance's repeal. In any event, it is not a foreshore building line identified by an EPI within the terms of the Codes SEPP because it is not identified by an EPI which is in force. Relevantly, it is not identified by the LEP.
Accordingly, I consider that the applicant cannot rely upon limb (b) of the definition of foreshore building line and proceed to consider limb (a) of the definition.
The first thing to note about limb (a) is that it does not refer to a development control plan simpliciter but rather a "development control plan adopted before 12 December 2008". I consider that this is a contrary indication on the face of the text such that the definition of DCPs provided in the EPA Act does not apply.
I consider that the effect of the clear words of limb (a) is to create a transitional arrangement whereby any foreshore building line appearing in a DCP which predated the introduction of the Codes SEPP is preserved and may only be removed or altered by an EPI under limb (b). It is, in other words, a "snapshot" of all of the DCPs in force as at 12 December 2008.
A question of nicety arises as to whether a subsequent EPI which is silent as to the existence of a foreshore building line, such as the LEP in these proceedings, dislodges a foreshore building line created by a DCP prior to 12 December 2008. I consider that the better view is that it does not.
However, a lacuna in the applicant's case is that it has not demonstrated that DCP 125 was in force as at 12 December 2008. He has established that DCP 125 was created prior to that date but it is unclear from the evidence before me whether there was an intervening DCP prior to the "snapshot" created when the Codes SEPP came into force.
Even leaving aside that difficulty, I do not consider that DCP 125 identifies a foreshore building line. As noted above at [21], the applicant relies on cll 1 and 3 of DCP 125 which provide that "reference shall be made in dealing with coastal frontage development to the… Coastal Management Plans for the… Broken Bay Beaches (i.e. Little Beach to Patonga inclusive)" and that the "plan has been prepared to take account of the Coastal Management Plans that Council has prepared and adopted". I do not consider that these references to the BBBCMP are sufficient to incorporate BBBCMP into DCP 125 or that they are sufficient to show that a foreshore line is identified in DCP 125 within the meaning of the Codes SEPP.
Moreover, even if I were to assume that the BBBCMP had been incorporated into DCP 125, it is far from clear that the BBBCMP refers to a "foreshore building line". Whilst it notes that development should be "located landward of Council's adopted building line or 50 year hazard line, whichever is most landward", I am unable to determine with certainty what is called up by the expression "Council's adopted building line".
I accept on the evidence before the Court that the BBBCMP and the foreshore building line were each adopted on 31 August 1999 but I do not consider that it necessarily follows that the line referred to as "Council's adopted building line" means the foreshore building line adopted on that date.
The BBBCMP continues on p 24: For the purposes of Precinct 4, a Coastal Hazard/Building Line has been established landward of which residences should be located… … The Coastal Hazard/Building Line has been defined for this Plan by separate resolution of Council.
As noted at [23] above, the relevant Council resolution on 31 August 1999 resolved to "adopt the Building Line identified on Plan 'Foreshore Building Line Coral Crescent Pearl Beach'" and that "Draft DCP 114 be amended to identify building lines identified in various Coastal Management Plans as Council's ocean beachfront building lines".
It is also important to note that these two resolutions, though adopted simultaneously, refer to different things. The first refers to the adoption of the foreshore building line and the second refers to an amendment to be made to a draft DCP to identify various lines identified in coastal management plans. The resolution does not refer to the foreshore building line being adopted for or "defined for" the purpose of the BBBCMP.
Whilst it was not relied upon by the applicant in submissions, I note that cl 9 of DCP 125 makes reference to a "building/hazard line". Clause 9 relevantly provides: 9 Areas subject to the Coastal Management Plan for Broken Bay Beaches (Little Beach to Patonga inclusive) - Refer Maps 3 and 4 9.1 Development Exceptions Council will not permit buildings to be constructed on land which has been identified by the Broken Bay Beaches Management Plan as subject to designated coastal hazards except where permitted below. … 9.1.2 The designated coastal hazard areas are seaward of the 2098 erosion line, except at Pearl Beach where Council has determined a building/hazard line adjacent to Coral Crescent. … 9.1.4 On Pearl Beach, building will be permitted seaward of the 2098 erosion line but landward of the building/hazard line for Coral Crescent, subject to the following: (a) The building shall be founded on deep pile foundations which extent below the locally unstable foundation zone which relates to the 2098 erosion prediction; (b) An indemnity being provided as detailed below. …
The respondent submits that the erosion line and building/hazard line referred to in cl 9 of DCP 125 serve a different purpose to a foreshore building line because by virtue of cl 9.1.4, construction is allowed between those lines provided that certain steps are taken to ensure that the building can withstand erosion. She says that this creation of an "erosion zone" serves a different purpose to the creation of a foreshore building line as understood in the Codes SEPP the object of which she submits is "to prevent exempt structures or buildings forward of the line within a foreshore building area".
It might be thought that a foreshore building line serves several purposes, not just the purpose of restricting certain development from the operation of the Codes SEPP, but I accept the respondent's submission in a general sense. However, I do note that the effect of cl 9.1.4 is that development will only be permitted "landward of the building/hazard line" which gives that line, if not the erosion zone as a whole, a similar operation to a foreshore building line. On the other hand, having regard to the number of EPIs which use the expression "foreshore building line" as a composite phrase to which I was referred by the respondent, I consider that there is some force in the respondent's position that a foreshore building line must be so identified rather than by a like description.
In any event, it was not contended by the applicant that the building/hazard line referred to in cl 9 of DCP 125 was the foreshore building line adopted by Council pursuant to cl 37 of the Ordinance. When one has regard to Map 3 and Map 4 referred to by cl 9 of DCP 125, the building/hazard line does not appear to be in the same location as the line depicted in the plan entitled "Foreshore Building Line Coral Crescent Pearl Beach". Rather, the building/hazard line appears to run along the seaward boundary of the existing lots on Coral Crescent. This would mean the fence is behind the building/hazard line. This also gives rise to the possibility that this building/hazard line is the line referred to as "Council's adopted building line" in the BBBCMP.
In those circumstances, I consider that the applicant has not discharged his onus to show that the fence is not exempt development.
I should note for completeness that whilst the applicant in oral argument somewhat retreated from the submission noted above at [28] by saying that it was largely relevant to the Court's discretion, I do not consider that the fence's footings can comprise "earthworks, retaining walls and structural support" such that the development standards provided in cl 2.30 apply. I consider that footings are part of a fence and that it would be an artificially narrow reading of cl 2.33 to consider that "a fence" refers only to fence posts or palings. My view in this regard is strengthened by the fact that the development standard requiring "earthworks, retaining walls and structural support" not to be within a metre of a lot boundary cannot sensibly be applied to fence footings.

Conclusion

I have concluded that the fence is exempt development such that the applicant's summons must be dismissed. I note that I am not without some discomfort at the result as there is a clear risk that views will be affected by the erection of fences on beachfront properties. However it is for Council to provide a foreshore building line and the LEP does not contain one.
The usual order in Class 4 proceedings is that costs follow the event. As I have not heard the parties on costs, I shall delay the making of that order for 28 days should they wish to make an alternative application.

Orders

The Court orders that: 1. The applicant's summons is dismissed. 2. The applicant is to pay the respondent's costs unless an alternative order is sought within 28 days.

Addendum made 28 March 2019

I gave judgment in these Class 4 proceedings on 19 December 2018 dismissing the applicant's summons and delaying any cost order for 28 days noting that the usual order in Class 4 proceedings is that costs follow the event. Prior to the expiration of 28 days, the applicant filed a notice of motion seeking an order that each party pay its own costs of the proceedings. The parties have now reached agreement in relation to costs and in accordance with that agreement, I make the following orders:

Further Orders

The Court orders that: 1. The applicant is granted leave to withdraw the notice of motion filed 16 January 2019 ('applicant's motion'). 2. The applicant is to pay the respondent's costs of the proceedings as assessed or agreed including the costs incurred up to the withdrawal of the applicant's motion.

Amendments 28 March 2019 - Addendum added to finalise orders 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: 28 March 2019

(2010) 175 LGERA 433

(2011) 184 LGERA 248

At a glance

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