Harbour Port Construction Pty Ltd v Sutherland Shire Council

CASES CITED: Kilpatrick v Sutherland Council ; Appeal No 11003 of 1995 (7 August 1996)

APPLICANT Mr S. Kondilios, solicitor of Maddocks Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Mr J. Cole, solicitor of Home Wilkinson Lowry, Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10566 of 2007 Harbour Port Construction Pty Ltd v Sutherland Shire Council

JUDGMENT Background. 1 This appeal is against council's refusal of a development application for the construction of a watercraft facility consisting of a jetty, ramp and pontoon, attached to a reclamation located below MHWM adjoining a residential property at No 22B Naranganah Avenue, Gymea Bay.

2 The land comprising this application is the residential Lot 37 DP 13581 (No 22B) Naranganah Avenue, Gymea Bay, together with the adjacent waterfront area - part of which is reclamation area. The reclamation has an area of 94.2 sq m and is the subject of a licence from the Department of Lands.

3 The residential property has an area of 638.6 sq m and its southern boundary forms the MHWM. It is accessed via an unmade road (Sylvania Road), although it does not have physical road access, mainly due to its steep topography.

4 There is a 2- storey dwelling erected on the land, which has a 15m (approx.) foreshore building line. Within the foreshore building line there is a fibro/timber cottage situated towards the south-eastern side of the site, and which is partly on the reclamation located below Mean High Water Mark.

5 The threshold issue in the appeal concerns the cumulative visual impact of the waterfront facility if the waterfront cottage is retained, in the context of the current planning controls.

The Proposal. 6 The waterfront facility is to be located just off centre of the site towards the north-western side and comprises: o Stub jetty; 1m long x 1.5m wide, o Timber ramp; 6m long x 1.5m wide, o Pontoon; 3.6m x 2.4m, o Timber piles; 250mm dia. Turpentine piles to solid rock.

Planning Controls. 7 Sutherland Shire Local Environmental Plan 2006 (SLEP). Under which the site is in the Zone 1 Environmental Housing (Environmentally Sensitive Land). A 30m Foreshore Building Line applies to the site. The area below the MHWM is located within Zone 16 Environmental Protection (Waterways).

(a) to allow development of a scale and nature that: (i) complements the natural landscape of the zone, and (ii) protects and conserves existing vegetation and other natural features of the zone, (b) to limit development in the vicinity of the waterfront so that the environment's natural qualities can dominate, (c) … 10 The relevant objectives of zone 16 are: (a) to recognise the importance of the waterways of Sutherland Shire as an environmental and recreational asset, (b) to ensure development is carried out in a way that protects the ecology, scenic value or navigability of the waterways,

11 Clause 17 makes provision for buildings or works on land traversed by the foreshore building line and contains the following objectives: (a) to avoid adverse ecological effects on waterways (b) to protect and enhance significant natural features and vegetation on riparian land, (c) to retain endemic vegetation along the foreshore areas, (d) to restore and revegetate foreshore areas to improve estuarine flora and fauna habitat, (e) to minimise any adverse impact from development on water quality and, so far as is practicable, to improve the quality of urban run-off entering waterways, (f) 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 land to which this clause applies, (g) to minimise any adverse impact of development on the natural landfall of foreshore areas and waterways by integrating structures into the site with minimal change to the natural topography of the land to which this clause applies, (h) to achieve an appropriate balance between private development and the public use of waterways, (i) …

12 Clause 18 makes provision for development in or adjacent to waterways and applies to the subject land as follows: (1) … (2) The objectives of this clause are as follows: (a) to ensure that any development does not result in the construction or interference with navigation in waterways, (b) to ensure restoration of land below any foreshore building line, to a natural state (so far as practicable), with a minimum intrusion of man-made structures, (c) to reduce the number of structures below any foreshore building line, particularly following the redevelopment of the site, (d) to promote the public use of intertidal areas below the knee high watermark or high water mark, where appropriate. (3) The consent authority must not consent to development of 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 all 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, 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 watercraft facility) that is: (i) on the lot concerned or on an adjoining lot that is owned by a person carrying out the development, and (ii) below the mean high water mark. (4) Subclause (3) does not require the removal of any building or work if: (a) the proposed development is the erection or installation of any of the following: (i) a fence or retaining wall between a dwelling and the street on which the dwelling is located, (j) a garage or carport adjacent to a dwelling or located between a dwelling and the street on which the dwelling is located, (k) a deck or verandah, (l) an awning or canopy, or (b) that consent authority is satisfied that the use of the building or work is lawful, or (c) consent authority is satisfied that the removal of the building or work: (i) would be inconsistent with, or is not necessary to achieve, any of the objectives of this clause, or (ii) is unreasonable or unnecessary in the circumstances of the case.

13 Clause 40 contains provisions, which prohibits the construction of dual occupancy on an internal allotment. The dictionary defines internal allotment as: "a lot to which there is no practical means of vehicular access or to which the only practical means of vehicular access is by way of: (a) an access corridor (in the case of a hatchet-shaped lot), or (b) a right of way that traverses another lot."

14 Sutherland Shire Development Control Plan 2006 (SDCP).

15 Section 6 in chapter 9 of the DCP contains provisions for foreshore and waterfront development. Relevantly clause 6.a.1 establishes the objectives for all foreshore and waterfront development and includes: a . protect and enhance natural features and vegetation within the riparian zone, b. minimise the visual impact of development when viewed from adjacent land and waterways by integrating developments in the foreshore and waterfront environment by using design and materials which complement the natural landscape, c. retain endemic native vegetation along the foreshore, d. restore and revegetate foreshore areas to improve estuarine flora and fauna habitat,… g. achieve an appropriate balance between private development and the public use of waterways, l. ensure restoration of the land below the foreshore building line, so far as practicable, to a natural state, with a minimum intrusion of man-made structures.

The Evidence. 16 Detailed evidence was presented by: o Ms D Pinfold, town planner with Sutherland Shire Council, and o Mr D Crane, consulting town planner for the applicant.

17 Mr G Murphy, who resides at 22B Naranganah Avenue, gave evidence in support of the proposal. He wishes to retain the cottage and in response to the planning control objectives seeking removal of structures on the waterfront, offers to demolish the existing toilet structure, remove the concrete slab below the toilet building and revegetate this area. Also, he said that the watercraft structure could be relocated from the seawall to a position in front of the cottage to minimise any visual impact concerns.

18 As I noted initially, the threshold issue concerns the cumulative visual impact of the new waterfront structures, when assessed with the retention of the waterfront cottage. The submission on behalf of Council is that the waterfront structures alone are acceptable for conditional consent, subject to removal of the cottage, as required under the provisions of cl 18 (3) of SLEP 2006. Ms Pinford supports this position.

19 Against this, Mr Crane says that the proposal with the retention of the cottage satisfies the relevant Zone 16 objectives and that the combination of the stub jetty, ramp, pontoon and cottage: "are not of a scale that will dominate the foreshore as viewed from the waterway and will contribute to the visual interest of the waterway".

20 In assessing these disparate positions, it seems to me that the set of controls in SLEP 2006 is generally directed so as to minimise structures on the foreshores, facilitate revegetation of these areas and particularly remove structures in accordance with the provisions of cl. 18. Insofar as the applicant made reference to the existing character of the waterfront areas, which obviously includes a significant number of jetties and boatsheds, my assessment of the controls is that diminished weight would be given to these submissions because the controls are seeking to now avoid more of this form of development by requiring removal of buildings or works between the foreshore building line and waterways.

21 The planners undertook a joint conference and agreed that some of the cl. 17 (2) objectives are relevant. Mr Crane considers that even though the cottage has existed for about 50 years, some complementary revegetation of the foreshore could take place, without removal of the building. However Ms Pinfold does not consider this practical because it would unduly restrict access to and the utility of the cottage and its curtilage.

22 However, the planners agree that the most relevant controls are those in clause 18, particularly the following objectives: (c) to ensure restoration of land below any foreshore building line, to a natural state (so far as practicable), with a minimum intrusion of man-made structures, (d) to reduce the number of structures below any foreshore building line, particularly following the redevelopment of a site.

23 In response to these objectives, Mr Crane says there are a number of similar structures (at least 12) along this waterfront in this immediate locality and in this context, the jetty, ramp and pontoon structure should not be considered to be visually intrusive. Furthermore, the retention of the cottage with the watercraft facilities is the sort of functional development associated with this recreational resource.

24 Contrary to this, Ms Pinford says that while there are a number of similar jetty, ramp and pontoon structures along the waterfront in the immediate locality, the majority of these structures adjoin natural vegetation or small-scale recreational facility such as boatsheds which are permissible below the foreshore building line, rather than the more substantive and prominent cottage in the proposal. She says that: "Cumulatively, the jetty ramp and pontoon structure, and the existing nonconforming structures located below the Foreshore Building Line and MHWM are visually intrusive in the context of the site - in which the immediate locality and the waters edge of the northern foreshore in general is dominated by natural features; and where the recently introduced zone objectives which seek to limit development in the vicinity of the foreshore to protect and enhance natural qualities of foreshore."

25 Furthermore, Ms Pinfold says that none of the relevant objectives in cls 17 (2) and 18 (2) seek to add interest to the foreshore through the addition of built form within this area, as suggested by Mr Crane. On the contrary, she says that while watercraft facilities are permissible in the zone,, the provisions of clause 18 seek to balance the addition of such man-made structures to natural environment, by seeking the removal of nonconforming structures (such as the waterfront cottage whose removal is already required to be activated by the original development consent), which are not permitted below the foreshore building.

Conclusions. 26 Having considered the evidence, the submissions and undertaken a view I do not consider this application merits consent on the basis proposed, which is for the construction of the watercraft facilities and the retention of waterfront cottage. In this regard, I have given consideration to councils' submissions that the watercraft facilities can be granted conditional consent, subject to the removal of the waterfront cottage.

27 Clause 18 of SLEP 2006 restricts the consent authority from granting consent to this type of development, unless building located between the foreshore building line and any waterway or waterfront reserve is removed. Exclusions are allowed in cl 18 (4) (b) and (c) (i) or (c) (ii).

28 As I understand the applicant's submissions, it relies predominantly on the (c) (ii) provisions, that the removal of the cottage is unreasonable or unnecessary in the circumstances of the case. In response to council's evidence that the building is required to be removed pursuant to a previous consent, Mr Kondilios says it is unreasonable to now require the cottage removal because the initial consent has not been completed. If there were compelling reasons to remove the cottage in advance of the completion of the original development, then council could issue appropriate orders. 29 The particular circumstances that Mr Cole refers to is that in May 1984 council granted development consent (No 5464/84) for the dwelling located 15m from the MHWM are subject to the condition requiring: Compliance with the conditions of building approval no. 4197/83. 30 Building Approval No 4197/83 contains the following conditions relevant to the waterfront dwelling: 3. Compliance with the conditions of development consent no.5464/85. 4. Forty-eight (48) hours notice in writing being given to council to enable inspection of the following works: (e) Completion of the building work before occupation or use. 5. The building not being occupied or used until the approval of the Council has been obtained. 26. The demolition and removal of the dwelling at the waters edge to Councils satisfaction within three (3) months of the date of the final inspection. 31 Then in August 1984, Council approved amendments to Building Approval No 4197/83, which allowed the construction of the new dwelling in two stages: Stage 1 - A two-storey dwelling containing; o Ground floor; lounge/dining room, kitchen, laundry and bathroom, o First floor; bedroom 1 & 2 and study. Stage 2 - A two-storey extension to the stage one dwelling with modifications to the internal layout as follows: o Ground floor; laundry, bathroom, separate shower & WC, rumpus room and bedrooms 2, 3 and 4. o First floor; bedroom1, lounge, bathroom, kitchen, study and sunroom. 32 This approval retained the above-mentioned conditions, together with the additional condition 27. 27. Stage 1 of the proposal is to be finished off to council's satisfaction prior to occupation . 33 Subsequently, other amendments and building approvals were granted, which still maintained the requirement for the waterfront cottage to be demolished. 34 Accordingly, I am satisfied that the approval of the original dwelling granted a benefit to the property owner but also imposed a burden that the waterfront cottage be removed. Insofar as Stage 2 of the amended consent has not been completed, nevertheless Stage 1 has been completed and occupied, without final approval by Council. This breaches condition 5 on the building approval.

35 Under these circumstances, I am satisfied that the clear intent of the approvals required the future removal of the waterfront cottage prior to occupation of the dwelling. As that has not occurred, I do not consider the applicant's submissions that the cottage should be allowed to remain, pending completion of a Stage 2, is reasonable, particularly considering that it has not being enacted in over 20 years.

36 It therefore seems reasonable to apply the current SLEP 2006 provisions, whereby cl 18 (3) requires the removal of the cottage and that the non-completion of Stage 2 is not a circumstance, which would set aside this requirement. 37 An associated objective of cl 18 is reduce the number of structures below the foreshore building line, to enable restoration of the foreshore to a natural state. I accept Ms Pinfold's opinion that the subject land, located on the northern side of North West Arm is characterised by waterfront structures against a predominantly natural background. There are no other similar scale structures, particularly waterfront cottages, as in the subject case and I therefore agree with Ms Pinfold that the cumulative impact of the waterfront structures and the waterfront cottage is contrary to cl 18 (2) (b) and (c) objectives.

38 Furthermore, I do not consider the proposal achieves a reasonable balance between private development and the public interest, whereby the DCP aims for a minimum intrusion of man-made structures. 39 Another circumstance raised by the parties concerns the classification of Lot 37, in terms of whether it is an 'internal lot'. According to Mr Coles submissions, this arises because the retention of the waterfront cottage results in 2 dwellings existing on the lot, which is not permissible.

40 Initially, the Sutherland PSO in 1980 did not allow two dwellings on the site and this was the relevant planning instrument in place in 1984 when the initial building approval was granted. Then LEP 1993 prohibited two dwellings on the one lot; dual occupancies where the lot was an "internal allotment".

41 The subsequent amendments to the LEPs have maintained a similar restrictions for two dwellings on an internal allotment, as is specified in the current cl 40 of LEP 2006. By reference to the dictionary, whilst Lot 37 has frontage to the unmade section of Sylvania Road, currently there is no practical means of vehicular access due to the steep topography and vegetation. No compelling evidence was presented to the Court to demonstrate Lot 37 can achieve practical vehicular access and therefore I consider it should be classified as and "internal lot". This is consistent with the determination of His Honour Justice Bannon in Kilpatrick v Sutherland Council in Appeal No 11003 of 1995 (7 August 1996). 42 Consequently, the two residential buildings are not permitted on this one allotment according to cl 40 of the LEP, and therefore removal of the cottage is a reasonable condition of consent in my opinion.

43 Another circumstance of the case concerns the favourable concession granted by Council in the 1984 approval, to allow the main dwelling to have a significant reduction in its foreshore building to 15m, against the 30m control. Whilst this is accepted, it nevertheless concentrates more structures closer to the waterway, something that the current controls seek to redress. I accept councils submission that this was a reasonable concession at the time, however the allowance now of both the waterfront facilities and cottage would result in excessive non-complying development in the foreshore building line, contrary to the current planning controls. 44 In my assessment, the applicant has not demonstrated that the exclusions allowed in cl 18 (4) ( c ) should be applied in this case.

45 Insofar as some references were made to the provisions of cl 18 (4) (b) regarding the use of the building or work being lawful (i.e. the cottage), this was not a primary argument from the applicant and limited evidence was presented. Based on the afore-mentioned evidence concerning the various building approvals, I do not consider any other substantive evidence of any consent for the cottage was presented, which would enable me to conclude that the use of the cottage was lawful.

46 In the ultimate however, I give determining weight to the provisions of Cl 18(4)(c) that the removal of the building is not unreasonable or unnecessary to achieve the relevant objectives of reducing the number of man-made structures below the foreshore building line, so as to ensure the restoration of waterfront land to a natural state. 47 Furthermore, I consider this should also apply to the dis-used toilet building identified by Mr Murphy. As I noted previously, the council accepts the watercraft facility can be approved, subject to the removal of the cottage and I am satisfied this a reasonable outcome to be covered by a deferred commencement condition. Court Orders 1. The appeal is allowed in part. 2. Development consent is granted for DA 07/0158 for the construction of watercraft structures adjacent to No 22 B Naranganah Avenue, Gymea Bay, subject to the conditions in Annexure A. 3. The exhibits may be returned except for 6, 7, A and D.

      R Hussey
      Commissioner of the Court
      ljr

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