Tolson & anor v Lake Macquarie City Council [2012] NSWLEC 1353

Tolson & anor v Lake Macquarie City Council [2012] NSWLEC 1353

The proposed fence extending to the DHWM was foreshore development within the foreshore building line and the lakefront area. The applicants did not provide planning grounds justifying departure from the LMDCP controls applying a minimum 6 metre setback, and the proposal did not satisfy the relevant LMLEP objectives or DCP performance criteria concerning preservation of the foreshore, minimisation of man-made structures and visual amenity. However, a 5.6 metre setback from the DHWM was acceptable because it provided consistency with adjoining properties, maintained lakefront visual amenity and allowed retention of most existing side boundary fencing.

Jurisdiction
Australia
Judgment Date
20 December 2012
Procedural Posture
Class 1 Development Application Appeal / Hearing Following Unsuccessful S 34 Conciliation Conference
Outcome
Appeal upheld subject to conditions
Legal Topics
['development Consent' 'foreshore Development' 'foreshore Building Line' 'development Control Plan' 'fencing' 'visual Amenity' 'public Interest']
['planning and Environment Law'] ['development Consent' 'foreshore Development' 'foreshore Building Line' 'development Control Plan' 'fencing' 'visual Amenity' 'public Interest']

Case Brief

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Procedural Posture

Class 1 Development Application Appeal / Hearing Following Unsuccessful S 34 Conciliation Conference

Legal Issues

  1. 1 ['Whether consent should be granted for a 1.2 metre high side boundary fence extending to the DP or deed high water mark.' 'Whether the proposed fencing complied with or justified departure from the Lake Macquarie Local Environmental Plan 2004 and Lake Macquarie Development Control Plan No 1 controls for foreshore and lakefront development.' 'Whether safety, security and private property considerations outweighed foreshore planning controls and visual amenity considerations.']

Ratio Decidendi

The proposed fence extending to the DHWM was foreshore development within the foreshore building line and the lakefront area. The applicants did not provide planning grounds justifying departure from the LMDCP controls applying a minimum 6 metre setback, and the proposal did not satisfy the relevant LMLEP objectives or DCP performance criteria concerning preservation of the foreshore, minimisation of man-made structures and visual amenity. However, a 5.6 metre setback from the DHWM was acceptable because it provided consistency with adjoining properties, maintained lakefront visual amenity and allowed retention of most existing side boundary fencing.

Court Disposition

Appeal upheld subject to conditions

Orders

  • ['The appeal is upheld subject to conditions.' 'Consent is granted to Development Application DA/573/2012 for the construction of a 1.2 metre high fence along the side boundaries of Lot 7 DP 22998, 4 Government Road, Nords Wharf, in accordance with the Conditions of Consent attached as Annexure A to the final...