Csont v Sutherland Shire Council

Issues

1. Despite the amendments and provision of additional information, the Respondent maintains the modification application warrants refusal on the basis that: 1. That the development as amended, is a form of development which is prohibited within the foreshore area pursuant to cl 6.9 of the Sutherland Shire Local Environmental Plan 2015 (LEP 2015) and further the modification does not meet the preconditions contained in cl 6.9 of LEP 2015; 2. That the proposed boatshed and the boatshed terrace are incompatible and out of character with the existing and desired future character of the locality; 3. That the approval of the modification will result in an undesirable precedent for development forward of the foreshore building line (FBL); and 4. The modification application will detrimentally impact on the heritage significance of Gunnamatta Park. (Exhibit 2)

The site and locality

1. A site inspection of the subject property and the locality was conducted by the Court and the parties on 22 October 2021.
2. The site is located on the western side of Taloombi Street with Gunnamatta Park adjoining the site to the north. The site is a tidal waterfront/ beach front lot adjoining Gunnamatta Bay to the west.
3. Gunnamatta Park is an item of local heritage significance under LEP 2015.
4. Notwithstanding that the site has a current development consent for redevelopment, demolition under that consent has not occurred. The site remains occupied by a two-storey residential dwelling, an attached open form carport and a detached double storey boat shed at the rear of the site. (Exhibit B)
5. The site is affected by Class 5 Acid sulfate soils. (Exhibit B) There is minimal existing vegetation and the land falls approximately 8m from the street verge to the western foreshore boundary.
6. The surrounding area is characterised by detached residential housing of a range of eras. More recent developments in Taloombi Street are characterised by rendered finishes and skillion roof forms. Many of the dwellings in the surrounding have views of Gunnamatta Bay. (Exhibit B)
7. With the benefit of the site view and a review of the submitted evidence I make the observation that, of the properties that are within the same view cone as the subject property, seven have existing boatsheds or the like on or immediately adjacent the boundary with the Gunnamatta Foreshore.

Public Submissions

1. The original form of the modification application was advertised and notified to surrounding properties in November 2020. Two submissions were received. These objections raise concerns with the modification application including: 1. That the proposed boat shed terrace will result in adverse noise impacts on adjoining properties. 2. That the extent of development proposed forward of the foreshore building line is inconsistent with the intent of the planning controls, in particular LEP 2015. 3. That the Applicant's planner and architect demonstrate bias in supporting the application. 4. That approval of the boat shed terrace will create a precedent and motivate adjoining properties to seek the same development.
2. In addition to the preceding submissions a number of residents provided written submissions to the Court outlining their concerns with the modification application. The additional concerns raised can be summarised as: 1. Concern about the visual impact of the elevated swimming pool on Gunnamatta Park as well as the impact of noise generated by the pool and terraces on the public enjoyment of the park. 2. Whether the development, as modified, complies with the requirement for landscape area.
3. In determining the modification application, I have read and considered the submissions received from members of the public: s 4.55(2)(d) of the EPA Act.

Planning Controls

1. Prior to considering the contentions raised by the Respondent in support of the refusal of the modification application, and undertaking a consideration of the merit of the Modification Application, it is necessary to address any relevant preconditions to the grant of consent.
2. The modification application is made pursuant to s 4.55(2) of the EPA Act. In order to grant consent to the modification application, at subcl (a), the Court is required to be satisfied 'that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all)', at subcl (b) that any concurrence or approval bodies who provided input into the development application have been consulted; subcl (c) that the modification application has been notified, and at subcl (d) any submissions have been considered.
3. The Respondent does not contend that the precondition at s 4.55(2) (a) of the EPA Act is not met. In these proceedings the Court was assisted by planning evidence from Ms Lyndall Wynne, town planner for the Applicant and Mr Glenn Apps, town planner for the Respondent. Both of the planning experts gave oral evidence that, in their assessment, the modification application is substantially the same development as that development for which consent was granted.
4. In order to grant consent to the modification application the consent authority must be satisfied that the proposed development 'is substantially the same development' as the originally approved development: s 4.55(2)(a) of the EPA Act. As described by Preston CJ in Arrage v Inner West Council [2019] NSW LEC 85 ('Arrage') at [18] the process of assessing such satisfaction is focussed on the language of the statute, which is extracted below: (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if - (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and
5. In undertaking the comparison between the development that was the subject of the original grant of consent (DA/19/0194) and the development as proposed to be modified by the modification application I am satisfied that the test at s 4.55(2)(a) of the EPA Act is met. My reasoning is as follows: 1. I accept the agreed evidence of the planning experts that the development remains quantitatively and qualitatively the same development and that the changes sought in the modification are minor in the context of the overall development. (Exhibit 3): Arrage [27] - [28] 2. I am satisfied that the material and essential features of the originally approved development remain in the modified development, namely that the development involves the demolition of existing structures, erection of a new dwelling house, renewal of the boat house, a swimming pool and landscaping.
6. Further, I note that the remaining conditions on the grant of consent to the modification application, as relevant, are met. I find that the provisions of s 4.55(2) of the EPA Act are satisfied. 1. As detailed in this judgment, in determining the modification application I have taken into consideration such of the matters referred to in section 4.15(1) of the EPA Act as are of relevance to the development the subject of the application. 2. The development application was not required to be referred to an external consent authority, as such no referral of the modification application was required, s 4.55(2) (b) is met. 3. Further, the modification application was notified by the Respondent in a manner consistent with the requirements of s 4.55(2)(c) of the EPA Act. In determining the modification application, I have given consideration to the submissions received from members of the public. The precondition contained in s 4.55(2) of the EPA Act is met.
7. The modification application does not incorporate amendments that require reconsideration of the assessment made by the consent authority under either cl 7 of State Environmental Planning Policy 55 - Remediation of Land, or cl 13 and cl 14 of State Environmental Planning Policy (Coastal Management) 2018.
8. The modification application does not affect any components of the development that are matters to be considered under State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.
9. The land is zoned E4 Environmental Living under LEP 2015. The objectives of the zone are: • To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values. • To ensure that residential development does not have an adverse effect on those values. • To allow for development that preserves and enhances the natural landscape setting of the locality. • To protect and restore trees, bushland and scenic values particularly along ridgelines and in other areas of high visual significance. • To ensure the character of the locality is not diminished by the cumulative impacts of development. • To minimise the risk to life, property and the environment by restricting the type or level and intensity of development on land that is subject to natural or man-made hazards. • To allow the subdivision of land only if the size of the resulting lots makes them capable of development that retains or restores natural features while allowing a sufficient area for development. • To share views between new and existing development and also from public space.
10. In determining the modification application, I have taken into consideration the objectives of the E4 Environmental Living zone.
11. The following definitions within LEP 2015 are relevant to the appeal: boat shed means a building or other structure used for the storage and routine maintenance of a boat or boats and that is associated with a private dwelling or non-profit organisation, and includes any skid used in connection with the building or other structure. dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile. dwelling house means a building containing only one dwelling. foreshore area means the land between the foreshore building line and the mean high water mark of the nearest bay or river. foreshore building line means the line shown as the foreshore building line on the Foreshore Building Line Map.
12. The Respondent argues that the works proposed by the modification do not fit within the definition of 'boat shed' in LEP 2015. This contention is discussed later in the judgment commencing at [34].
13. The modification application complies with the development standards for height (cl 4.3 of LEP 2015), floor space ratio (cl 4.4 of LEP 2015) and landscaped area (cl 6.14 of LEP 2015).
14. A number of provisions of LEP 2015 require the consent authority to consider, or be satisfied of particular matters, prior to the grant of consent. For example, cl 6.1(3) of LEP 2015 commences with the words 'Development consent must not be granted under this clause for the carrying out of works unless …' and follows with a number of requirements to be met. Given the application is a application seeking to modify a development consent, rather than seeking the grant of development consent, these provisions are not applicable, for example cl 6.1: Acid sulphate soils and cl 6.2: Earthworks: see [46].
15. The Respondent contends that the proposed modification does not meet the requirements of cl 6.9 of LEP 2015, in particular the satisfaction of the preconditions contained at subcll (2) and (3). This contention is discussed later in the judgment at [34]. Clause 6.9 of LEP 2015 states: (1) The objectives of this clause are as follows - (a) to ensure that development on the foreshore area will not adversely impact on natural foreshore processes or affect the significance and amenity of the area, (b) to maintain and improve public access to the intertidal area of waterfronts if that access will cause minimal adverse environmental impact, (c) to avoid adverse ecological effects on waterways by minimising any adverse impact from development on water quality and, so far as is practicable, to improve the quality of urban run-off entering waterways, (d) to protect and enhance significant natural features and vegetation on the foreshore area, (e) to retain endemic vegetation along foreshore areas, (f) to restore and revegetate foreshore areas to improve estuarine flora and fauna habitat, (g) to minimise any adverse visual impact of development when viewed from adjacent land and waterways by using a design and materials that complement the natural landscape of the foreshore area, (h) to minimise any adverse impact of development on the natural landform of the foreshore area and waterways by integrating the development with minimal change to the natural topography of the foreshore area, (i) to achieve a balance between private development and the public use of waterways, (j) to minimise the obstruction of water views from public land. (2) Development consent must not be granted for development on the foreshore area except for the following - (a) the alteration, extension or rebuilding of an existing dwelling wholly or partly on the foreshore area if the footprint of the extension or alteration will not extend any further forward of the foreshore building line than the footprint of the existing dwelling, (b) the erection of a new dwelling on the foreshore area if there is no reasonable alternative that would allow a new dwelling to be located outside of the foreshore area, (c) development for the following purposes that does not significantly alter the shape, natural form or drainage of the foreshore area - (i) boat sheds, (ii) jetties, (iii) landscaped areas, (iv) sea retaining walls, (v) slipways, (vi) swimming pools (that are no higher than 300 millimetres above ground level), (vii) water recreation structures, (viii) waterway access stairs, (ix) inclinators, (d) the erection of a building on the foreshore area (other than a building referred to in paragraph (a), (b) or (c)), if the levels, depth or other exceptional features of the site make it appropriate to do so. (3) Development consent must not be granted under this clause, unless the consent authority is satisfied that - (a) the appearance of the development, from both the foreshore area and the adjacent waterway, will be compatible with the surrounding area, and (b) the development will not cause environmental harm such as - (i) pollution or siltation of the waterway, or (ii) an adverse effect on surrounding uses, marine habitat, wetland areas or fauna and flora habitats, or (iii) an adverse effect on drainage patterns, and (c) the natural qualities of the foreshore area are retained or restored as far as practicable through the retention or reinstatement of natural levels and endemic vegetation, and (d) the development will not cause congestion or generate conflict between people using open space areas or the waterway, and (e) opportunities to provide continuous public access along the foreshore area and to the waterway will not be compromised, and (f) any heritage significance of the foreshore area on which the development is to be carried out and of surrounding land will be maintained, and (g) in the case of development for the alteration, extension or rebuilding of an existing building (or the erection of a new building) wholly or partly in the foreshore area, the alteration, rebuilding or new building will not have an adverse impact on the amenity or aesthetic appearance of the foreshore, and (h) in the case of the erection of a new dwelling, the dwelling will not be erected further forward of the foreshore building line than any existing dwelling on the land, and (i) it has considered sea level rise or change of flooding patterns as a result of climate change. (4) In deciding whether to grant development consent for development on the foreshore area, the consent authority must consider whether and to what extent the development would facilitate the following - (a) continuous public access to and along the foreshore area through or adjacent to the proposed development, (b) public access to link with existing or proposed open space, (c) public access to be secured by appropriate covenants, agreements or other instruments registered on the title to land, (d) public access to be located above the mean high water mark, (e) reinforcement of the foreshore character and respect for existing environmental conditions, (f) management of any rise in sea level or change of flooding patterns as a result of climate change.
16. Sutherland Shire Council Development Control Plan 2015 (DCP 2015) applies to the modification application, in particular Chapter 11: Foreshores and W2 Recreational Waterways. The Respondent argues the following provisions of Chapter 11, DCP 2015 are relevant: "Objectives 1. Ensure that development visible from the foreshore, waterways and public domain makes a positive contribution to the foreshore and natural setting of the area. 2. Ensure development is compatible with the scale, character and landscape setting of the foreshore, natural setting and scenic quality and that the environment's natural qualities dominate. 3. Retain and enhance existing mature trees and indigenous vegetation within the foreshore area. 4. Integrate structures into the site with minimal change to the natural landform and topography. 5. Integrate developments in the foreshore and waterfront environment by using design and materials which complement the natural landscape. … 7. Minimise the visual impact of foreshore and waterway structures when viewed from adjacent land, foreshores and waterways. 8. Achieve an appropriate balance between private development and the public use of waterways. … Controls for Boat Sheds … 2. Boatsheds must not be the visually dominant element of the foreshore area of any property. The remainder of the foreshore area should: a. retain its natural landform, b. be landscaped with indigenous species chosen from Council's Native Plant Selector available on Council's website. 3. The use of boat sheds must be limited to the storage of boats and boating equipment. 4. Boatsheds must have a direct relationship with the water, with openings and main boat access facing the water. Side elevations are not to include large areas of glazing and/or large sliding doors. … 7. Boat sheds must be single storey. 8. Boat sheds can have a maximum length of 7m, a maximum width of 4m, and a maximum of 3m to the eaves or ceiling of the elevation/s facing the water and a maximum height of 5m to the highest part of the roof. The use of lofts or similar design concepts shall not be permitted. … 10. Boat sheds should incorporate a pitched roof that reflects the traditional character of boat sheds in the waterway. The roof pitch should not exceed 35 degrees and should be gabled. The use of roofs as sundecks, patios or the like is not permitted. … 14 Boatsheds above MHWM must be set back a minimum 1.5 m from the side boundary. A variation may be considered where there is: 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 from adjoining lands to the waterway, c. An acceptable relationship between buildings along the waterfront, and d. A need to accommodate any significant vegetation or site features."

Is the satisfaction of clause 6.9 of LEP 2015 a precondition to the grant of consent to the modification application?

1. In the Statement of Facts and Contentions filed by the Respondent they argue that: "The proposed development in the amended form proposed, specifically the additional roof top terrace and roof over this terrace results in a development form prohibited within the foreshore area. This clause is specifically included in the SSLEP 2015 to limit they (sic) types of development and uses within the foreshore area". (Exhibit 2)
2. The extent of the works proposed forward of the FBL is shown in the following extract of the architectural plans:
3. The text of cl 6.9: Limited development on the foreshore area in LEP 2015 is reproduced at [32].
4. In relation to cl 6.9 of LEP 2015 the Respondent argues: 1. That consent cannot be granted as the modification contains works that are not for the purpose that is permitted under cl 6.9(2)(c) of LEP 2015, i.e. that the proposed boatshed terrace and proposed shade structure cannot be characterised as being for the purpose of a boat shed as defined under LEP 2015 and therefore the precondition at cl 6.9(2) is not met. 2. That the Applicant has not established that the site has either levels, depth or exceptional features which would mean that the exception allowing other forms of development to be permitted at cl 6.9(2)(d) applies. 3. That the Court could not be satisfied, as required, as required by cl 6.9(3) of LEP 2015 that:

• The proposed works will not have an adverse impact on the amenity or aesthetic appearance of the foreshore;
• The appearance of the development from both the foreshore area and adjacent waterway, will be compatible with the surrounding area; and
• The natural qualities of the foreshore are retained and restored as far as practicable through the retention or reinstatement of natural levels and endemic vegetation. 1. That in deciding whether to grant consent the Court would conclude that the proposed development does not reinforce the foreshore character or respect existing environmental conditions, as required by cl 6.9(4)(e) of LEP 2015.

1. The Respondent also raises that the modification application is inconsistent with a number of the objectives of cl 6.9 of LEP 2015, but I note the drafting of the clause does not require development to be consistent with its objectives.
2. In the Respondent's written and oral submissions Ms Amy does not directly address or counter the primary submission of the Applicant that cl 6.9 of LEP 2015 does not, on its terms, apply to a Modification Application. However, Ms Amy argues that the Court should, in determining the modification application, give significant weight to the provisions of s 4.55(3) of the EPA Act which requires: (3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.
3. In the context of the current modification application Ms Amy argues that the reasoning for the grant of the development consent included the deletion of the previously proposed trafficable roof. In particular she emphasises the following comments from the development assessment report supporting the grant of development consent: "- Firstly, (at folio 23) the use of the boat shed is not supported and is to be non-trafficable. Further down the page, the amended plans delete the boat shed roof terrace, - Secondly, (at folio 24), 'The proposal has been amended to delete the boat shed roof top terrace, spa and pergola. The existing first floor will be demolished and a single storey boat shed will remain. The now proposed flat roof is shown to be nontrafficable.' - Thirdly, the town planner specifically considered the form of the proposed flat roof boat shed and commented that 'there are numerous boat sheds within the immediate vicinity with similar flat roofs. The boatshed will not be out of character for the area and will not set an undesirable precedent.' (folio 34), and - Finally at folio 36, there is specific consideration of clause 6.9(2) of SSLEP. In this regard, the opinion was reported that the alterations to the existing boat shed and landscaping works within the FBL were permissible forms of development." (Respondent's written submissions dated 6 September 2021)
4. Ms Amy argues that "the reasons for the grant of approval and the deletion of the use of the boatshed roof terrace and structures on it were fundamental in the applicant obtaining development consent for the construction of a new dwelling and swimming pool on the land." (Respondent's written submissions dated 6 September 2021) She concludes that the Court should give determinative weight to this reasoning in the assessment of the modification application.
5. In the alternative Mr Galasso, Counsel for the Applicant, submits that the boatshed terrace and shade structure are permissible in the context of the current appeal. Firstly, he argues that cl 6.9 in LEP 2015 does not apply to a modification application. Applying North Sydney Council v Michael Standley and Associates (1998) 43 NSWLR 468 at 475 D-E (Michael Standley) Mr Galasso argues that in the determination of a modification application any proscription or condition on the grant of development consent are not applicable. Michael Standley firstly held that s 96 of the EPA Act (now s 4.55) is a free standing provision and secondly that 'a modification application may be approved notwithstanding the development would be in breach of an applicable development standard were it the subject of an original development application'. Therefore, as a modification application the satisfaction of cl 6.9 (2) and (3) of LEP 2015 is not a precondition to consent, but rather the terms of cl 6.9 of LEP 2015 are relevant to the extent that they are embraced by the assessment under s 4.55(3) of the EPA Act. Namely: 'such of the matters referred to in s 4.15(1) of the EPA Act as are of relevant to the development the subject of the application'.
6. Relevant to Mr Galasso's submissions, I note that the decision of the Court of Appeal in Lido Estate Pty Ltd v Woollahra Municipal Council (1997) 99 LGERA 1 at [4] similarly confirmed that an application for modification could be approved for a development that exceeded a development standard concluding that whilst such development standards were a matter for the consent authority to take into consideration an absolute prohibition on the grant of consent that exceeds a development standard does not apply. A similar conclusion was held by the Court in SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65 at [34].
7. Further, Mr Galasso concludes that "… even if there be thought to be a limitation upon the grant of consent in the circumstances of this case, via the mechanism of the modification to an existing consent, that limitation upon the grant of consent, that limitation does not exist and clause 6.9(2) is simply not engaged." (Applicant's written submissions 19 July 2021) Whilst not included in his submissions, presumably on the basis that cl 6.9(2) is not operative the precondition of satisfaction required by cl 6.9(3) of LEP 2015 is similarly not engaged.
8. As an alternative if the Court was not to embrace the Applicant's primary submission and the Court holds cl 6.9 of LEP 2015 does apply the proposal, Mr Galasso submits that it is nonetheless permissible on each of the alternate bases detailed in the following:

• Firstly, that the ground floor of the proposed boat shed is the component of the building which is for the purpose of boat shed as defined in LEP 2015, in contrast the boat terrace is "… in the form of a room associated with the existing dwelling". Further, he argues "… although the upper room to the boat shed is physically separated from the primary dwelling house on the subject land, it can nevertheless comprise part of the dwelling on the subject land because it is a component of room or suite of rooms which is capable of being occupied as a separate domicile." On this basis Mr Galasso argues that the boathouse terrace and the proposed shade structure fall within the category of works permitted under cl 6.9(2)(a), namely "the alteration, extension or rebuilding of an existing dwelling…". (Applicant's written submissions, 19 July 2021)
• Secondly, that the boat shed having a trafficable roof (the boat shed terrace) is, as a matter of characterisation, a boat shed as defined by LEP 2015. Mr Galasso, applying Hunters Hill Council v Fraser [2006] NSWLEC 744 17-22, argues that "(t)he fact that the roof may be trafficable does not serve to re-characterise the boat shed, and the trafficable part of the roof is not, on any proper construction, to be regarded as anything other than part of the boatshed." (Applicant's written submissions, 19 July 2021)
• Thirdly, that as cl 6.9(2)(d) in LEP 2015 permits 'the erection of a building on the foreshore area (other than one identified in (a), (b) or (c)), if the levels, depth or other exceptional features of the site make it appropriate to do so' it provides power to approve a structure for any purpose if the conditions of the power are met. Mr Galasso argues that "… the fact that the boatshed already exists is self-evidently a component that makes it appropriate for the erection of the building to occur in that area…(t)his is compounded when it is observed that the proposal in fact is for the reduction in volume of the existing two-storey boat house which to use the words of clause 6.9(2)(d), would represent an "exceptional feature of the site …[and] make it appropriate to do so". (Applicant's written submissions, 19 July 2021)
• Finally, Mr Galasso argues that if the preceding bases of permissibility are not accepted, the boat shed terrace and proposed shade structure have an alternative source of permissibility as a component of an existing use. Mr Galasso argues that if the Court accepts the Respondent's contention then the upper level of the boat house would be regarded as being prohibited pursuant to cl 6.9 of LEP 2015. He submits that as prohibited development, that room and that component of the volume of the existing boat house would have the benefit of existing use rights. Therefore, pursuant to cl 43 of the Regulation "development consent can be granted for the alteration of the upper level of the boat house as a component of existing use". (Applicant's written submissions, 19 July 2021)

Findings

1. I accept the primary submission of Mr Galasso that, on its terms, cl 6.9 of LEP 2015 does not apply to the Modification Application. This finding is consistent with the findings of the Pepper J in SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65 at [33]-[35]. The precondition requiring satisfaction for a modification application is that detailed at cl 4.55 of the EPA Act discussed at [21] -[23], which I find to be satisfied.
2. Nothing in LEP 2015 obliges, in mandatory terms, the consideration of cl 6.9 in LEP 2015 in the context of a modification application, beyond its consideration as a relevant matter under s 4.55(3) of the EPA Act.
3. When cl 6.9 of LEP 2015 is given weight as a relevant matter under s 4.55(3) of the EPA Act I am satisfied that cl 6.9 of LEP 2015 does not support refusal of the application. My reasoning is as follows:

• I am satisfied that the modification application does not offend the objectives of the clause. In particular I am satisfied that: the development as modified will not adversely impact the significance or amenity of the foreshore; that any adverse amenity impacts have been minimised by the amendments undertaken by the Applicant (as summarised at [4]), the choice of materials and the lightweight design of the shade structure. Finally, I am persuaded, on the agreed evidence of the experts, see [55], that the development as modified satisfies the objective of minimising the obstruction of water views from public land.
• I am satisfied that on the evidence the requirements of sub cl (3), whilst not a precondition, are met by the development as modified by the modification application. My findings at [59]-[65] regarding compatibility with character and at [79] regarding heritage significance are relevant.
• The boatshed, as modified, is materially smaller in footprint and bulk than the existing boat shed or the approved development.

1. Having given consideration to the reasons given for the grant of development consent by the Council I am not persuaded that they form the basis for the refusal of the Modification Application.
2. I am not persuaded that the Respondent's contention that the development as amended is a form of development either prohibited by cl 6.9 of LEP 2015 nor that the preconditions at subcll (2) or (3) are required to be met. However, on merit as part of the assessment required by cl 4.55(3) of the EPA Act, I find that the provisions of cl 6.9 of LEP 2015 would not support the refusal of the modification application.

Is the boatshed and the boatshed terrace incompatible and out of character with the existing and desired future character of the locality?

1. Mr Apps defines the existing character of structures in the foreshore area as comprised of single storey boat house buildings, open space areas and swimming pools. He concludes that the proposed shade structure on the terrace of the boat house is not compatible with this character for the following reasons:

• That the proposed shade structure of the boat shed terrace, whilst reduced in the amended plans, remains a two-storey element which is visually intrusive and uncommon in the locality.
• That many other examples of development within the foreshore were approved prior to the controls in LEP 2015 which seek to reduce impacts of development on the character of the foreshore. Whilst these developments are the existing character, LEP 2015 is relevant to an assessment of desired future character.
• That development of the subject site needs to consider the interface with Gunnamatta Park and the impact of the proposed development on public views.
• That shade structures on terraces are not characteristic of the foreshore in this locality.

1. Mr Apps concludes that ".. the roof top structure reintroduces a 2 storey form, albeit a lightweight one, that interfaces with the public park at a sensitive location. There are no other buildings forward of the FBL that have a roof top structure such as this." (Exhibit 3) His view is further stated in the supplementary joint report where he concludes that "(t)he provision of a rooftop structure is foreign within the foreshore area and may result in others wanting to do similar. This will start to privatise the foreshore area and detract from the use of the sand/water interface as public space". (Exhibit 5)
2. In the alternative Ms Wynne argues that the use of the proposed terrace and the proposed shade structure itself are compatible with the existing and desired future character of the locality. She argues that a limited range of uses are likely to occur on the terrace, such as entertaining, gardening and exercise and that these commonly occur in the foreshore area. In terms of the appearance she argues that the modification application provides improved compatibility of the boat shed, terrace and shade structure with the main dwelling and that the introduction of increased landscaping provides an opportunity for softening of the structures at the interface with Gunnamatta Park and the foreshore.
3. Influencing Ms Wynn's conclusion of compatibility is her assessment of the existing character of the locality. Ms Wynne characterises the locality as being a "very urban setting with most properties along Taloombi Street hugging or forward of the FBL, most providing boat sheds in similar locations to the subject site." (Exhibit 3) Ms Wynne disagrees with Mr Apps' assertion that a boatshed with rooftop terrace and shade structure is uncharacteristic and in the joint report provides photographs of a number of examples in neighbouring properties.
4. In response to Mr Apps' concerns with the proposed shade structure on the boat shed terrace, Ms Wynne emphasises that it is proposed to be open, lightweight and recessive in colour. (Exhibit 3)
5. Further, Ms Wynne identifies the following benefits of the reduction in the boat shed footprint proposed in the Modification Application: "Notably, the boatshed footprint shown on the plans and condition in Appendix D, E and F [the Modification Application] is 27.01m² less than the existing development on the site, the approved stamped plans and the originally submitted modification plans. This reduction in footprint will allow the overall form of the building to be set back from the side boundary and the waterway. The effect of this will be to provide opportunity for additional screen planting at ground level and an additional view through the north- western corner of the site [to Gunnamatta Park]. The environmental effects on the adjoining park are limited by the scale and design of the structure. LW also notes that due to that area being removed from the dwelling, it is likely to be used less frequently than other outdoor entertaining areas. The structure is not considered to unreasonably impact on views between Gunnamatta Park and Gunnamatta Bay." (Exhibit 3)
6. Mr Galasso for Applicant submits that, on the basis of the evidence of Ms Wynne, the Court would conclude that the proposed development will improve the compatibility of buildings on the subject site with the surrounding area. Further, the Applicant submits that the development, as proposed to be modified by the Modification Application, represents an improvement for the following reasons:

• It provides for a smaller volume and footprint for the boatshed.
• The amendment sought to replace rather than alter the boatshed allows it to be constructed in a manner that is more sympathetic to the design of the proposed new dwelling.

1. Finally, Mr Galasso notes that in cross examination Mr Apps accepted the amended plans provide for a better visual outcome when viewed from public land than both the existing boat shed and the approved plans. (Applicant's written submissions 24 August 2021)
2. Relying on the evidence of Mr Apps, Ms Amy argues that the element of the modification application that is inconsistent with the existing character of the locality is the proposed shade structure on the roof of the boat shed. Further, she submits that applying the principle at [5] of Super Studio v Waverley Council (2004) 133 LGERA 363; [2004] NSWLEC 91 (Super Studio) the assessment of the appropriateness of the boat shed terrace should be influenced by two factors: firstly, that such development is not present in surrounding properties and secondly, that the property already has a number of outdoor entertaining spaces. Applying Super Studio Ms Amy concludes that "(o)ne has to question the reasonableness and necessity for this fourth terrace with shade a [sic] privacy structures on it, being foreign elements in the locality in a highly sensitive location very visible to users of the park and the waterway". (Respondent's written submissions 6 September 2021)
3. Ms Amy also makes submissions on the compatibility of the modification application on the desired future character of the locality. She notes that cl 6.16(1)(b) of LEP 2015 requires the consent authority to consider whether the proposed roof top terrace contributes to the desired future character of the locality. Ms Amy argues that the Court should prefer and accept the following evidence of Mr Apps and conclude that the terrace and proposed shade structure on the roof of the boat shed is incompatible with the desired future character of the locality: "20. GA accepts that the structure (as proposed by Issue G) has minimised the visual impact through its setbacks and reduction in scale, however the structure does not allow the boat shed to integrate into the character of this distinctive location. 21. GA considered the rooftop structure to not contribute to the character, but detracts from the character." (Exhibit 5)

Findings

1. Following a review of the evidence and with the benefit of a site view, I prefer and accept the evidence of Ms Wynne as to the existing character of the locality. Further, I accept and adopt her conclusion that a boatshed, of the form proposed by the modification application is not uncharacteristic in the locality. I am not persuaded by Mr Apps' conclusion that the proposed shade structure will be visually intrusive or be read as a two storey element. In my view the design, setback and materiality of the shade structure will result in it being recessive and compatible with the existing foreshore structures in the locality. Finally, as noted at [14] in the context of the view of the subject site from the foreshore of Gunnamatta, boat shed structures and the like are not uncharacteristic.
2. For these reasons, and referencing the Macquarie Dictionary definition of 'compatible' as being "capable of existing in harmony", I find that the proposed development, as modified by the modification application, will be compatible with the existing character of the locality.
3. Further, I accept the submission of Mr Galasso, summarised at [55] that the modification application provides for a structure firstly of a smaller scale and footprint and secondly of an improved architectural compatibility with the approved dwelling.
4. I note that in oral evidence Mr Apps agreed that the proposal before the Court was an improvement on the structure approved under the original development application. This included, in his opinion, the improved view to the foreshore from Gunnamatta park, and a reduction in the footprint and height of the boat shed. Mr Apps also agreed the increased setbacks to Gunnamatta Park and the foreshore were an improvement. I accept and adopt these conclusions.
5. The second aspect of compatibility is that of the proposed development, as modified, with the desired future character of the locality. I accept that cl 6.9 of LEP 2015 in its terms and in the mapping of the FBL detail a strategic intent to reduce development forward of the FBL. I am satisfied that the development as modified is consistent with a strategy to ameliorate the impacts of foreshore development and the cumulative impact of such structures on the quality of the foreshore. Further, given my findings at [62] I am satisfied that the approval of the modification application will allow improved views between the public lands of Gunnamatta Park and the Gunnamatta foreshore.
6. The evidence of Mr Apps centres on the compatibility of the shade structure element of the boatshed terrace. In my view the proposed pergola as a shade structure provides an ordered and considered provision of shade in contrast to the potential proliferation of temporary umbrellas and shade structures that could be utilised on the terrace without consent. I accept Mr Galasso's submission in this regard.
7. For these reasons, in the circumstances of the case, I am satisfied that the modification application will result in development which is compatible with the desired future character of the locality.
8. In these proceedings there is no evidence of adverse amenity impacts on adjoining neighbours such as view loss, overshadowing or the like. In my view this absence of amenity impacts distinguishes the development from Super Studio where the Commissioner held that the roof terrace, in the circumstances of that case, was unacceptable due to noise and overshadowing impacts. The question of reasonableness of the provision of external terrace areas in Super Studio arises in the context of adverse impacts. In my view that is not the case in this matter.
9. At the conclusion of my assessment of the modification application I am satisfied that there are a number of positive attributes of the application including: a reduction in volume and footprint; an increase in setback to the foreshore boundary; an increase in setback to Gunnamatta Park; and a reduction in height in comparison to the existing boatshed and the approved development. The benefit of these amendments to the public domain is an improved public domain interface and the opening of views between the foreshore and Gunnamatta Park.
10. The compatibility of the proposed development, as modified by the Modification Application, does not support the refusal of the application.

Will the approval of the modification result in an undesirable precedent for development forward of the foreshore building line?

1. I note that in their written and oral submissions a number of residents indicate their understanding of the planning controls is that construction of new works below the FBL is not permitted, see for example folio 52 of Exhibit 1. Further, a number of submissions indicate a desire to replicate the development on the subject site if the modification application is approved by the Court, see for example folio 56 and 57 of Exhibit 1.
2. In the context of these public objections Ms Amy submits that the Court must have regard to the "general expectation of the community in this matter, that entertaining areas when proposed in a DA, are not permissible below the FBL". (Respondent's written submissions 6 September 2021)
3. Further, Ms Amy notes the agreement of the experts that there are other flat roofed boat sheds within the locality, in her submission, increasing the likelihood of further applications for such terrace and shade structures.
4. For these reasons the Respondent argues that the Modification Application is an undesirable precedent for development forward of the FBL in the locality and that the Modification Application should be refused on this basis.

Findings

1. In Goldin v Minister for Transport Administering the Ports Corporation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75 ('Goldin'), Lloyd J gave guidance in relation to precedent and where it may properly be taken into consideration. Justice Lloyd found at [28]: "As I understand the decision, if the Court is entertained with an application for a proposed development which is both objectionable in itself and where there is sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration."
2. Applying Goldin the initial test is therefore whether the development, in this case as proposed to be modified by the Modification Application, is objectionable. As can be surmised by the remainder of this judgment it is my view that in the circumstances of this matter, I am not persuaded that the development is objectionable. In my view a number of factors lead to this conclusion. Firstly, I am satisfied that the proposed development is compatible with the objectives and the scale of development enunciated in the E4 Environmental Living zone. Secondly, my earlier findings in this judgment conclude that in my assessment the proposed development does not have any unreasonable impact on adjoining properties, the character of the locality or the heritage significance of Gunnamatta Park. I accept the evidence of Ms Wynne (summarised at [56]) and the submissions of Mr Galasso (summarised at [57]) that the demolition of the existing boat shed and the implementation of the development consent will result in a net positive outcome arising from the proposed development.
3. Given I do not find that the proposed development, as modified by the Modification Application is objectionable, the second part of Goldin does not arise and the effect of the Modification Application as a precedent is not, in my view, of significant weight in the determination of the merits of the application.
4. However, in relation to the concerns of the Respondent that other applications may/will follow the grant of consent, I note that the subject of this appeal is a modification application to which I have found (at [46]) cl 6.9 of LEP 2015 does not apply as a mandatory provision on its terms. Further, any such future application would be subject to merit assessment by the relevant consent authority at that time.
5. For these reasons I conclude that in these proceedings precedent is not an issue that would support the refusal of the Modification Application.

Will the modification application detrimentally impact on the heritage significance of Gunnamatta Park?

1. Consistent with cl 5.10 (5) of LEP 2015 the Respondent requested the Applicant provide a heritage assessment to consider the extent to which the carrying out of the proposed development will affect the heritage significance of Gunnamatta Park.
2. The statement of significance for 'Gunnamatta Park including Dressing Pavilion' states: "Evidences the original subdivision of the Cronulla Peninsula 1900 which included foreshore reserve. The place has ability to demonstrate the Shire as a recreational destination in the late 19th Century. The structure evidences the development of the area as a resort in the early 20th Century. The place evidences the development of mass tourism in the Sutherland Shire from 1929. The place evidences the development of leisure based activities in the Sutherland Shire. The place demonstrates the development of organised sport in Sutherland. The site has scenic qualities. The site retains its naturally evolved environment." (Exhibit E)
3. The Applicant's heritage assessment prepared by NBRS Architecture. Heritage, was tendered in the proceedings as Exhibit E and J. The heritage assessment makes the following relevant comments in relation to any impact on Gunnamatta Park arising from the modification application: "The proposed s4.55 amendments to the approved DA are acceptable from a heritage perspective. The subject development is located adjacent the park and does not include development on the park site. The character of the park as a place of rest and recreation, with significant naturally evolved plantings, will be retained. The aesthetic qualities of the park, including its vegetation and waterfront location will be retained, as will its significant structures." (Exhibit E)
4. Further, the heritage assessment identifies a number of positive outcomes that arise from the modification application. It notes that firstly, the modification includes the removal of the existing two storey boatshed and replacement with a single storey structure reducing the extent of built form directly adjacent Gunnamatta Park. Secondly, that the reduction in height of the proposed boatshed and the increased setback from the boundary with Gunnamatta Bay will increase the visibility of Gunnamatta Park from the public domain.
5. However, in the alternative, the Respondent's review of the NBRS Architecture. Heritage assessment concludes that the proposed modifications will have a detrimental impact on the heritage significance of Gunnamatta Park. The reasoning for this conclusion is summarised in the following extract: "The proposed works to add a pergola and a new use to the boatshed (which was required to be one storey to ameliorate the impacts) creates a cumulative effect of negative impacts that is not acceptable. The bulk and scale of the proposed pergola and the parapets dominate the northern views along the beach to Gunnamatta Park. Conserving the natural features of the foreshore that is the setting of the heritage item should be sought in order to allow the public to fully appreciate the significance of the item as a landmark and scenic landscape. The shared boundary should be a transition between development and nature which is not achieved because of the introduction of further development. I found that the proposed works have a negative impact onto the significance of the heritage item which is not acceptable for the following reasons: - The proposed works dominate the views along the beach and from the street to the beach through the Park. The pergola will be visible through Gunnamatta Park's filtered views to the beach. - Do not (sic) provide a proper curtilage to the heritage item. - Revert the balance achieved on negative effects caused by the approved development (DA). - Clutter the setting of the item which is the natural features of the foreshore by introducing further structures to the boatshed. Therefore, the proposed pergola is not supported on heritage grounds." (Internal memorandum, Sutherland Shire Council, Filed 24 August 2021)
6. Having considered the evidence, I am satisfied that there is no impact on the heritage significance of Gunnamatta Park arising from the modification application that warrants its refusal. My reasoning is as follows:

• The development, as a whole, will remove an unsympathetic existing structure (the boat shed) which both the Respondent and Applicant's heritage experts acknowledge detrimentally impacts on the heritage significance of Gunnamatta Park. This existing impact arises from the structure blocking public views to the water from the park and by being of an overbearing scale.
• The modification application involves a number of attributes that I am satisfied are of benefit to the maintenance of the heritage significance of Gunnamatta Park. Firstly, the modification application proposes the full demolition of the existing structure. Secondly, the modification results in a reduction in the footprint and height of the boat shed structure. Thirdly, the modification increases the setback of the new boatshed structure to the common boundary with Gunnamatta Park and provides for boundary planting.
• I am satisfied that detrimental impacts on the heritage significance of Gunnamatta Park do not arise from the proposed modification as the open pergola will allow filtered views across the site to the Park from the beach/ foreshore and in reverse. I accept and adopt the conclusion of the heritage assessment prepared by NBRS Architecture. Heritage that: "The proposed amendments will alter close-range views towards Gunnamatta Park from the waterfront through the removal of the large boathouse structure and its replacement with a lower structure. There is likely to be increased visibility of Gunnamatta Park trees when viewed from the south-west (facing north-east). These trees will be viewed through the outdoor pergola proposed to be located on the concrete roof of the new boathouse. This aspect of the proposal is positive from a heritage point of view as it will improve the visibility and public appreciation of Gunnamatta Park." (Exhibit E)

1. Following an assessment of the modification application against the relevant planning provisions, I find that it warrants approval.

Orders

1. The Court orders that: 1. The appeal is upheld, 2. Modification Application MA20/0372 is approved and development consent DA/19/0194 is modified by the terrace at the upper level of the boathouse and amending the approved swimming pool, spa and pool enclosure as detailed in the terms set out in Annexure A, 3. As a consequence of order (2) above, development consent DA/19/0194 for the demolition of the existing residence, construction of a dwelling and swimming pool and alterations and additions to an existing boat house at 1 Taloombi Street Cronulla is now subject to the consolidated modified conditions of development consent set out in Annexure B.

Commissioner of the Court Annexure A (133217, pdf) Annexure B (224364, pdf)

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