Chappelow & Anor v Sutherland Shire Council

9 Consequently, the resulting contentions raised by council are summarised as follows: - Prohibition; whether the outbuilding and works other than the barbeque are prohibited under the provisions of the SSLEP. - Adverse visual impact, particularly from the waterway. - Landscape area impact. - Public interest. The site 10 The property is described as Lot 2 DP 1099695. It has a total area of 1340sq m. It comprises a rectangular shaped block of land with an access handle to Bayview Road. The western boundary of the site is 50.595m and the eastern boundary is 50.37m. The southern area of the site is irregular in shape with additional boundary length of 8.26m and 7.665m on the western boundary and 8.05m and 5.95m on the eastern boundary. A 1.8m wide Right of Way burdens the allotment at the southern end of the site along the eastern boundary. 11 The site is generally flat and contains the existing single storey dwelling house and swimming pool retained from the original lot. There are no canopy trees that are affected by the works completed. The structure has been erected on part of the site, which was required to be landscaped and planted with various designated species. Planning controls 12 The site is subject to the provisions of the Sutherland Shire Local Environmental Plan 2006 (SSLEP) under which it is in the within Zone 2 - Environmental Housing (Scenic Quality). The site is also subject to a 10m Foreshore Building Line (FBL). The adjoining area below the MHWM is located within the Zone 16 - Environmental Protection (Waterways) zone. 13 Clause 17(7) prohibits all buildings or works other than excluded buildings or works (as defined in clause 17(10)), below the FBL. The buildings and works, which were the subject of the original BC application do not fall within the definition of "excluded building or work", with the exception of the barbeque area and open garden. However the applicant's proposed works are so that the main storage structure is categorised as a "boat shed". 14 The SSLEP dictionary defines a "boatshed" as: "means a single storey building or structure, associated with a dwelling and used for the storage of small boats and boating equipment, and includes sliprails used to facilitate access for boats to and from the building or structure to the water". 15 Subject to the characterisation, cl 18 aims to ensure the progressive restoration of land below any FBL and MHWM to a natural state and to reduce the number of man - made structures below the FBL and MHWM as development occurs on the site. 16 Clause 18(3) relevantly states: (3) The consent authority must not consent to development on land to which this clause applies unless the consent authority is satisfied that the following building or work will be removed before, or within a reasonable time after, the development is carried out: (a) any building or work, other than an excluded building or work, that is: (i) on the lot concerned or an adjoining lot owned by the person carrying out the development, or on adjacent land that person occupies under a lease or a licence, and (ii) between a foreshore building line and any waterway or waterfront reserve in respect of which the line is fixed, (b) any building or work (other than a watercraft facility) that is: (i) on the lot concerned or on an adjoining lot that is owned by a person carrying out the development, or on adjacent land that person occupies under a lease or a licence, and (ii) below the mean high water mark.

17 State Environmental Planning Policy No 71 - Coastal Protection applies and the site is identified as being located within the NSW Coastal Zone in accordance with the NSW Coastal Policy 1997. The provisions of Clauses 7 & 8 of State Environmental Planning Policy No. 71 - Coastal Protection are matters to be taken into account by a consent authority when it determines a development application to carry out development on land to which this policy applies. 18 The relevant development controls are contained in Sutherland DCP 2006. Chapter 9.6 deals with the specific land use - waterfront development. Clause 6.a.1 contains the objectives for waterfront development and the associated controls in 6.b.5 state: a. The use of boatshed shall be limited to the storage of small boats and boating equipment. b. Regardless of subclause 1.a, a shower facility is acceptable . 19 As this appeal concerns council's refusal to issue a Building Certificate, the relevant provisions of the EP&A Act apply, particularly the following s149D: Obligations of council to issue building certificate 149D Obligations of council to issue building certificate (1) The council must issue a building certificate if it appears that: (a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993 :

(i) to order the building to be demolished, altered, added to or rebuilt, or (ii) to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or (iii) to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or

(b) there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings. (2) If the council refuses to issue a building certificate, it must inform the applicant, by notice, of its decision and of the reasons for it. (3) The reasons must be sufficiently detailed to inform the applicant of the work that needs to be done to enable the council to issue a building certificate. (4) The council must not refuse to issue or delay the issue of a building certificate by virtue of the existence of a matter that would not entitle the council to make any order or take any proceedings of the kind referred to in subsection (1) (a). (5) Nothing in this section prevents the council from informing the applicant of the work that would need to be done before the council could issue a building certificate or from deferring its determination of the application until the applicant has had an opportunity to do that work. 20 The process for dealing with appeals in stated in cl 149F. The evidence 21 Evidence in the form of a joint planning report was prepared by: * Ms D Pinfold; Council' town planner. * Mr L Winnacott; Applicant's consulting planner. 22 According the SoFC a s121B Order has been issued for the demolition of the works, except the BBQ and some landscaping. Consequently, the planners undertook an assessment of the issues to assess the likelihood of a notional development application gaining consent, along the lines expressed by His Honour Bignold J in Ireland v Cessnock City Council [1999] NSWLEC 250. 23 On this basis, the primary matter concerns the characterisation of the unauthorised outbuilding in determining whether the Building Certificate should be issued. Insofar as this application was initially made in respect of a storage shed, the applicant's proposed alterations to render the building a "boatshed" that is acceptable in the context now include: i. Demolish the south wall and install new doors for boat access and install a new ramp. ii. Install a 350 - 400mm high brown lattice screen on top of existing fence for the entire length of the shed. iii. Partly demolish internal shelves and install kayak supports. iv. Paint the western sidewall and the roof of the shed a recessive colour approved by council. v. Relocate the television aerial to the house. 24 If the outbuilding is then characterised as a "boatshed", it falls within the definition of excluded building or work as defined in cl 17(10) of the SSLEP and is permissible with consent. 25 If however the outbuilding is not characterised as a boatshed, it is not an excluded building or work as defined in cl 17(10) of the SSLEP and is prohibited below the FBL under cl 17(7). Apart from this, the experts agree that the BBQ falls within the definition of excluded building or works and it is permissible below the FBL. 26 In response to the prohibition issue, Mr Winnacott asserts that it is proposed to use the amended shed as a "boatshed" as well as for the storage of pool equipment and ancillary toilet and shower. But Ms Pinfold is not satisfied the predominant use would be characterised as a boatshed because: - The area dedicated for boats is quite small, being about the same size of the WC area, which is considerably less than the area proposed for pool filter and heater that takes about half the floor space; - If the current shelving is removed to allow the hanging of canoes above the pool filter, nevertheless the remaining space is restricted by the limited height and width. - The utility of the proposed layout is significantly compromised because the pool filter and heater cannot be conveniently accessed while the boating equipment is stored within. - Insofar as it is theoretically possible to store small vessels, the design and layout is not characteristic of a boatshed or suitable for the storage of boats. 27 Consequently, she concludes that any proposed use of the structure to store boats or boating equipment still seems impractical and ancillary to its primary use as a pool filter and general storage shed. 28 In response to the characterisation issue, the parties have referred to the general approach to characterisation for planning purposes as set out by Preston CJ in Chamwell Pty Limited v Strathfield Council [2007] NSWLEC 114 where His Honour relevantly states (at 27 and 28): 27 In planning law, use must be for a purpose: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534-535 and Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 80 LGRA 173 at 188 . The purpose is the end to which land is seen to serve. It describes the character which is imparted to the land at which the use is pursued : Shire of Perth v O ' Keefe (1964) 110 CLR 529 at 534. 28 In determining whether land is used for a particular purpose, an enquiry into how that purpose can be achieved is necessary: Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493 at 499-500 . The use of land involves no more than the " physical acts by which the land is made to serve some purpose " : at 508 . 29 His Honour further relevantly states (at 33 to 36 and 45): 33 The fact that the nature of the uses of different components or parts of the development may vary is not necessarily of importance. Obviously, the only part of the proposed development that will have a use of the specific nature of supermarket is that part of the building which incorporates the supermarket. The nature of the uses of other parts of the building , such as the car park , driveways , access ways , and landscaped forecourt , is different. 34 However, the nature of the use needs to be distinguished from the purpose of the use. Uses of different natures can still be seen to serve the same purpose: see Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534 , 535 and Warringah Shire Council v Raffles (1978) 38 LGRA 306 at 308 . 35 In this case , the use of the car park , driveways , access ways and landscaped forecourt are each designed to serve the end of enabling the supermarket to be carried on. That is their purpose and that purpose imparts to the land on which those uses are pursued the character of shop, including the supermarket. The end to which the parts of the land in Lot 0 is to serve is not roads . 36 The characterisation of the purpose of a use of land should be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on , not in terms of the detailed activities , transactions or processes: Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 at 310 45 The characterisation of the purpose of development must also be done in a common sense and practical way .. . 30 The general thrust of the findings in Chamwell is that the characterisation must focus on the purpose of the land. This must be done at a level of generality and in a commonsense and practical way that is sufficient to include the individual uses that make up the purpose. While there may be a number of different uses, these different uses may still serve the same purpose.

31 Applying this line of authority, it is apparent to me that: 1 Within the overall dimensions of the shed, the WC/shower and change room is about 2.4m long, therefore occupying about 30% of the length. The adjoining pool heater, pump and filter then occupies about 2.3m, being another 30% of the length and it also occupies most of the floor area in this section. This leaves about 2.9m (40%) to house the designated 'row boat' on a cradle, which scales at about 2.2m. This indicates to me that the boat shed use component is about 30 - 40% of the total floor space. 2. Insofar as it is proposed to also store the surf skis and kayaks on the walls, it also seems to me that this is a relatively small component of the overall shed, as depicted on the plan. 32 Considering the proposed shed layout, including ancillary pool equipment and associated toilet, shower and change room areas, it indicates to me that there would be a low level of access and convenience if the boat storage is to be the primary use. Also, taking into account the proximity of the existing pool and BBQ area, it appears to me that the primary purpose of this land use is as a general storage shed, which includes partial use for storage of a boat and ancillary storage and facilities for the nearby pool and entertaining area. Accordingly, I think it appropriate to rely on Ms Pinfold's opinion that its primary purpose is not as a "boatshed". 33 In terms then of assessing this appeal for issue of the BC, as noted, the parties have referred the findings of Bignold J in both Ireland v Cessnock City Council [1999] NSWLEC 153 and Ireland v Cessnock City Council [1999] NSWLEC 250 wherein he said: 37. In my judgment, the Council's argument should not prevail in view of my findings entirely favourable to the Applicants concerning (i) the structural adequacy of the subject building and (ii) the probability of the requisite consent and/or approval being granted for the erection of the building had such consent and/or approval been sought either before the building was erected or at the present time (assuming that the building had not already been erected but was proposed to be erected at the present time). 38. I am fortified in my conclusion to reject the Council's argument by three other considerations all of which are relevant to the question presently under consideration - (i.) As I have held in my earlier judgment, the provisions of the EP&A Act s 149A-G expressly enable a building certificate to be issued in a case such as the present so as to regularise a breach of the planning law. (ii.) The proper approach to be taken to the available discretion will generally be that outlined in the judgment of King CJ of the South Australian Supreme Court in Kouflidis v City of Salisbury (1982) 29 SASR 321, namely to leave to the criminal law, the punishment of the unlawful conduct involved in the erection of the building and to determine the present application on the merits, but taking care not to allow the wrongdoer to benefit from his wrongdoing; and (iii.) The Applicants have in fact already been punished for their wrongdoing, Mr Ireland, having been convicted in the Local Court and fined $300 for his breach of the law. Allied to this fact is the Applicants' responsibility for the costs of the proceedings before Sheahan J where his Honour ordered the Applicants to pay the Council's costs. 39. In the light of the foregoing factors, allied with the fact of the effort and expense incurred by the Applicants in seeking to regularise the planning law position during the stay of the mandatory injunction granted by Sheahan J, it cannot seriously be contended that the Applicants have benefited from their original wrongdoing. 34 Notwithstanding that the shed has been certified as structurally sound, and setting aside any considerations of penalties, my primary finding is that the amended shed is not characterised as a "boatshed" according to my application of the Chamwell approach. Therefore it is a prohibited development, which is unlikely to gain development consent, therefore precluding the issue of the Building Certificate. 35 If however the shed is otherwise characterised, I have considered the evidence and undertaken the following merit assessment to assess the probability of it gaining consent. In this regard the parties have also referred Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276 where His Honour Bignold J considered an appeal dealing with the issue of a BC. Whilst the circumstances were different because of 'existing rights' considerations, nevertheless he outlined the following approach for the Court to exercise its discretion: 60. In my judgment, the approach to the exercise of the statutory discretion conferred by s 149F(3) of the Court determining a notional or hypothetical development application for consent to rebuild the old boatshed so as to bring into existence the rebuilt boatshed, is an appropriate exercise for the Court to undertake in the discharge of its statutory discretion under s 149F(3) . Visual impacts 36 The planners have assessed this merit issue relative to the planning controls. As the building is below the FBL, the controls in cl 17 and 18 of the SSLEP seek to eliminate non-conforming structures. Also, the DCP seeks to "ensure restoration of the land below the foreshore building line, so far as practicable, to a natural state, with a minimum of man-made structures" and to minimise any adverse impact from development on water quality. However both planners agree that the building is of small size and relatively unobtrusive when viewed in the current context. 37 But there is a disagreement between the planners as to what is the appropriate test for visual impact assessment. Mr Winnacott says that it involves an assessment when viewed in the current context. Alternatively, Ms Pinfold says that the test should involve an assessment relative to the relevant planning objectives, particularly the FBL provisions. 38 In support of his position, Mr Winnacott relies partly on the following compliance table, which compares the cl 6.5 DCP provisions for allowable boatsheds, to demonstrate that the existing building is substantially compliant with the numeric controls. DCP COMPLIANCE TABLE - BOATSHEDS Standard Proposal Compliance Single storey 1 storey Yes 7m Maximum length 7.6m No but minor departure 4m Maximum width 1.8m Yes 3m Maximum height 2.6m Yes Pitched roof Flat roof No but matches house Tone & Colour appropriate to natural landscape Matches house Yes 1.5m Side setback setback 270-600m No but satisfies DCP criteria for variation

39 Considering that the development consent required the removal of the original and larger boatshed and that this is the only feasible location for a boatshed, he considers it acceptable because: It does not extend beyond the seaward boundary of the adjoining property to the west and when viewed from adjacent properties, is substantially screened with only the upper portion visible. It is significantly smaller than the original boatshed and that which would be allowed under cl 6.5 of the DCP. The design includes a flat roof, which matches the house style and minimises visual impacts from neighbouring properties and the waterway. The design is consistent with that of other boatsheds on the nearby waterfront. Insofar as it does not satisfy the 1.5m side setback, the existing setback lessens any visual impacts and presents in a less dominant and conspicuous manner. In this regard, Mr Winnacott's opinion is that the building satisfies the following DCP variation provisions: a. No detrimental impact on the view from the waterway by virtue of excessive bulk of the building. b. No loss of an existing view to the water to the water from adjoining lands to the waterway. c. An acceptable relationship between buildings along the waterfront. 40 Whilst Ms Pinfold acknowledges that the building is relatively unobtrusive, she says that it is not consistent with the FBL objectives that require the preservation and enhancement of natural vegetation below the FBL. Also, it is not consistent with zone objectives: (c) to allow development that is of a scale and nature that is consistent with the urban surroundings of the zone, while retaining or restoring natural features, (d) to protect existing vegetation and other natural features of the zone and encourage appropriate bushland restoration . 41 Accordingly, she says that conditions of development consent that allowed the dwelling and required the removal of the original boatshed also required the implementation of the landscaping strip along the western boundary and below the FBL where the shed has been erected, therefore the dominant visual element should be landscaping and not built form. 42 Other reasons why the shed is not supported by Ms Pinfold include the reduced setback of approximately 600 - 700mm instead of 1.5m, which she considers unsatisfactory because it restricts the required tree and shrub planting. Whilst she acknowledges that a larger boatshed may be permissible, it would be subject to merit assessment including consideration of the relative balancing in the original consent. 43 My assessment of this issue is that the proposed shed is of relatively small scale within the existing context. But it seems to me that a more appropriate response to the planning controls would be achieved by a smaller boatshed to accommodate the designated small row boat, possibly incorporating a shower facility located below the FBL, together with the BBQ and landscaping but not including the pool equipment and other facilities that should be outside the FBL. Therefore I am inclined to accept Ms Pinfold's opinion that the visual impact is unacceptable in the circumstances. Landscaped area 44 This issue arises because the retention of the shed and ancillary works decreases the amount of landscaped area on Lot 2 from that required under the development consent. This includes the deletion of some of the landscaping below the FBL and along the western boundary of the lot. However both planners agree that the existing development is capable of being altered so as to comply with the development standard in cl 36 of the SSLEP. 45 There are however 2 points of disagreement. Firstly, Ms Pinfold questions whether compliance with numerical standard adequately addresses the objectives of the landscaped area development standards and cl 17 of the SSLEP. She produced comparative plans (exhibits 9, 10 11) to shown where the existing development has reduced the areas of approved landscaping. Whilst the loss is in the vicinity of 3%, she is concerned about the critical loss within the FBL. 46 By reference to cl 36 and cl 37 objectives, she that if a notional development application deleting the subject landscaping was to be considered, she would not support it because of the loss of important side boundary and foreground plantings required under the development consent. 47 My assessment of this issue is that while the deficiency in landscaped area is relatively small, nevertheless a critical part is within the FBL area that is important from public interest considerations. But it seems to me that this matter is capable of resolution/conditions and I do not consider it is an issue that results in the refusal of the BC. There are other procedures to deal with non - compliance with the conditions of consent. Public interest 48 This issue basically concerns the competing private and public interests. Mr Winnacott says that the (altered) building and works the subject of the building certificate application will not have any unreasonable adverse impact on views from neighbouring properties or create an adverse visual impact when viewed from those properties. The buildings do not conflict with the zone objectives or with the foreshore objectives contained in Clause 17 of the LEP. This is so as the visual impact has been minimised by the scale, location and design of the development and the use of building materials. The development has been integrated into the site taking into account existing side boundary fencing and the location and design of the dwelling house. In the circumstances the development is not contrary with the public interest. 49 However Ms Pinfold disagrees on the following basis. The BC as lodged is for an outbuilding, which she considers is prohibited below the Foreshore Building Line. In an effort to overcome the prohibition, the applicant now seeks to change the characterisation of the building to a 'boatshed' and conduct further alterations to the building. As outlined in contention 1, this does not in DP's opinion result in a building for which the predominant use is as a boatshed and as such still does not overcome the prohibition.

50 Furthermore, there is no development consent for the use of the building as a boatshed, even if it can be so characterised. Such development consent is required by SSLEP 2006. In Ms Pinfold's experience a building certificate application usually involves unauthorised works to a structure, the use of which is already approved; or alternatively the building certificate application occurs concurrently with a development application for the use of that structure. 51 Ms Pinfold says that the failure to obtain development consent for the use of the building also circumvents the Landscaped Area and foreshore/waterway controls in clauses 36, 17 and 18 of SSLEP 2006. Further, it circumvents the provisions of SEPP 1 in relation to the breach in to the Landscaped Area development standard. 52 Additionally, she says that the approval of the building certificate application results in a non-compliance with condition 27 of the development consent for the existing dwelling. This condition required the establishment of substantial landscaping along the western boundary of the site, in the area occupied by the outbuilding, masonry wall and barbeque area. A section 96 modification application to the above mentioned development application has not been submitted. 53 Another public interest consideration involves the objection from the neighbouring property owner. This objection concerns the excessive size of the shed within the FBL and the inclusions of facilities that don't comply with the boatshed controls and render it an ancillary facility for the pool. Also the reduced setback does not comply with the DCP controls, which prevents the planting of screening vegetation as conditioned in the original consent.

Conclusions 54 Having undertaken a view and carefully considered the evidence and submissions, I do not consider this appeal should be upheld. Insofar as the property has the benefit of a development consent, the unauthorised works have been subsequently constructed or altered. But I accept that s149 allows circumstances for the regularisation of such works. 55 Following the authority in Ireland, I have noted that the council has issued a demolition order in respect the works. Therefore I have considered the evidence regarding a notional development application to consider the likelihood of such consent. But the first hurdle in this regard concerns the characterisation of the use of the land. 56 As previously discussed, it appears to me that the existing shed would facilitate a numbers of uses. This includes the storage of pool equipment, ancillary toilet and shower, small boat/equipment facilities storage. But on the basis of the designated areas for the various uses, I do not consider the defining purpose of the shed is for a boatshed, as prescribed in the SSLEP. Instead, I consider the building should be characterised as a general storage/amenities shed and accordingly it is therefore a prohibited development below the FBL. 57 Apart from this, I have otherwise considered the merits of the shed on the basis that it would not be prohibited and do not think it warrants consent in the present form. Considering the waterfront location of the shed, where the controls are endeavouring to remove structures below the FBL and include substantive side boundary setbacks to accommodate screening and natural plantings, I consider other options for the ancillary pool and convenience facilities should be considered outside the FBL. 58 It is apparent to me from the applicant's sketch of the rowboat area, that a much smaller boatshed could be appropriate, which would reasonably satisfy the intent of the controls leading to an acceptable environmental outcome. Insofar as reference was made to another nearby boatshed, I give it minimal precedential weight because the background details appear different and the development of the site does not appear to be the subject of an overall assessment as occurred in the recent grant of development consent for the subject property, where the relative merits of the demolition of the boatshed and requirement for landscaping were determined for this prominent waterfront site. 59 In this regard, I have also given consideration to the findings of Lloyd J in Hooler & Anor v Sutherland Shire Council [2008] NSWLEC 189, where in dealing older structures below the foreshore building line 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. 60 Insofar as there was some discussion about the removal of parts of the boat port slab to comply with the consent, I do not consider the BC application covers this item. It seems to me that if it is considered that there is a non-compliance with elements of the conditions of consent, this should now be dealt with separately. Court orders 61 For these reasons, the Court orders: 1 The appeal is dismissed. 2 The application for a Building Certificate to regularise unauthorised works comprising a storage shed and ancillary works at 2B Bayview Road, Burraneer is refused. 3 The exhibits be returned except 2, 3, 5, A and B.

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