The applicant's position that any impact is insignificant
Harbour Port's position is instead that the existing public access is limited, with no access in high tide and access impeded by slip rails and a boat shed at mid and low tide. Harbour Port submits that the jetties, by their very nature, will affect public access in some way, but that any additional limitation on access is minimal, especially with the addition of the steps over the jetties. In circumstances where jetties are anticipated development in the zone, Harbour Port submits that they cannot be considered inappropriate in and of themselves, and there must be something about their design that make them inappropriate.
In support of the latter proposition, Harbour Port relies on the decision of the Court in BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 (BGP Properties), in which McClellan CJ of the LEC found that development that is permissible in the zone ought to be considered suitable, provided that the environmental impacts are acceptable. His Honour stated:
"117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.
118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts."
Harbour Port submits that, in circumstances where the W1 zone has a very confined range of permissible uses, additional weight should be given to the permissibility of the jetties and that there is nothing about the design of the jetties that make the impact of the jetties unacceptable. Harbour Port therefore submits that a "water front owner would expect to be able to achieve approval [for] a jetty for themselves" (Written submissions, p 6).
Further, Harbour Port submits that the provisions of the SLEP in cll 6.5, 6.8 and 6.9, and those in the SEPP RH in ss 2.10 and 2.11, do not require that there be no impact, but allow the impact to be minimised or mitigated. Harbour Port says that a jetty necessarily requires something to traverse the beach perpendicular to the shoreline, such that the impact can't be eliminated, but that the impact is not significant in the circumstances where the existing public area is uninviting, and it is also minimised by the provision of public access stiles.
In support of its position, Harbour Port relies on the evidence of Mr Black, who opines that the public access to the beach area fronting the sites is overstated by the Council and Mr Vescio, and that any use of that area is likely to be ad-hoc. Mr Black opines instead that the area is unsuitable to walk over due to large areas or rock and areas covered in oyster shells, and that public access to the foreshore and along the waterways remains in the open area that is most attractive for recreational users, to the south of 64 Woodlands Road, which can be accessed directly from a public reserve.
[2]
Each of the jetties unacceptably impede public access along the beach and foreshore
I consider that, having regard to the provisions of each of the SEPP RH and the SSDCP, each of the jetties unacceptably impede public access to the beach and foreshore, and this impact is not acceptably minimised or mitigated in the proposed design.
Contrary to the position advanced by Harbour Port, it is not sufficient that a jetty is permissible such that any impacts resulting from the inherent nature of its design are required to be considered acceptable. I do not see BGP Properties as supporting such an approach. Indeed, BGP Properties endorses the fact that permissibility is a neutral factor, citing Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374, in which the Court found that the Council acted appropriately in refusing consent to a permissible use that had adverse amenity impacts. Whilst weight can be given to the zoning and to the permissible uses within the zone, s 4.15(1)(b) of the EPA Act requires consideration of the likely impacts of the development, and s 4.15(1)(a) requires consideration of the applicable planning instruments and development control plan, which also provide a framework for considering the acceptability of impacts. In considering the same, I find the impacts on public access along the beach and foreshore to be unacceptable, for the reasons set out below.
[3]
The existing public open space and access along the beach
As set out earlier, the intertidal area where the proposed access platforms for each jetty are located comprises of sandy beach area exposed at mid to low tide. Photographs of the areas to the north and south of each proposed location at low tide can be seen in Figure 4.
As described above, the beach is connected to the south where a public reserve south of 64A Woodlands Road provides access to the foreshore, which opens to a wide sand flat at low tide.
Public access to the sandy beach areas that become available at mid to low tide is not only achieved from walking along the beach from the public reserve south of 64A Woodlands Road, but also from the water using a recreational craft and from the private properties of residents who have direct frontage to the bay. Whilst there are slip rails at the rear of 50, 52A and 54 Woodlands Road, and a boat shed at the rear of 46A Woodlands Road, at mid to low tide there is traversable sandy beach between and below each slip rail, and between the boat shed and slip rails.
Further, the sandy beach area where the slip rails and boat shed are located can be traversed at mid to low tide, by walking under or over the slip rails at 54 and 52A Woodlands Road, over the slip rails at 50 Woodlands Road, and around the low side of the boat shed at 46A Woodlands Road.
Once a person has accessed the beach at the rear of 46 Woodlands Road, either by walking from the public reserve south of 64A Woodlands Road, by watercraft, or from the rear of a residential property, they then have unobstructed passage along the beach at mid to low tide, up to the rear of 24 Woodlands Road, where additional slip rails are located and where reclamation areas extend into the bay and the foreshore is comprised of rocky outcrop.
I accept the evidence of Mr Vescio that these beach areas, around the slip rails and north of 46 Woodlands Road, are public open space areas used by the public for walking, baiting, and recreational fishing, and are accessed by kayakers. This is supported by the site inspections, during which it was observed that various areas of the foreshore and beach, particularly north of 46 Woodlands Road, were being used for recreational purposes, both in the morning at mid to high-tide and the afternoon at low-tide.
[4]
The impacts of the jetties on public access and open space
I consider that the proposed development at the rear of 36 and 38 Woodlands Road, and that at the rear of 28 and 30 Woodlands Road, each reduce the quality of the public open space of the beach and foreshore that stretches along the rear of the properties between 24 and 46 Woodlands Road. I consider that they impede the use of, and access along, that stretch of beach and foreshore, with structures that are above the ground level of the sand.
At the rear of 36 and 38 Woodlands Road, the decking platform and jetty is at 2.25m above the level of the Zero Fort Denison Tide Gauge (ZFDTG). This is around 30cm above the ground level of the sand immediately adjacent to the boat shed, but increases to 0.75m above the ground level around 3m from the boatshed, and then to 1.5m above the ground level at the water's edge at a low tide of 0.75m. Due to its location and its length across the beach to connect to the private properties and the resulting height above the sand, it obstructs movement of the public along that stretch of beach, and is an obstacle to the use of that area as a whole.
At the rear of 28 and 30 Woodlands Road, the decking platform and jetty is also at 2.25m above the level of the ZFDTG, which means it will range from 0.84m above the ground level of the sand near the brick sea wall, to 1.5m above the ground level at the water's edge at a low tide of 0.75m. It therefore also presents an obstruction to the movement of the public along that stretch of beach at mid to low tide, due to its location and length across the beach to connect to the private properties, and resulting height above the sand.
I accept the evidence of Mr Vescio that this is not adequately resolved through the introduction of stairs, which instead will create a defined track and "forced zig zagging" along the beach as users focus on the one point to cross each jetty, or will require walking in close proximity to the boundary, both of which discourages the free range casual traversing of the beach by recreational users of that area.
With respect to the proposed development at the rear of 52A and 54 Woodlands Road, this is in an area already obstructed by existing boat sheds and slip rails. Nevertheless, I consider that this proposed development creates an additional obstruction that impedes access along the foreshore for walkers seeking to access the beach and foreshore that stretches along the rear of the properties between 24 and 46 Woodlands Road, and in addition, decreases the usable area of beach and public open space between the slip rails at the rear of 52A and the rear of 54 Woodlands Road.
The decking platform and jetty proposed at the rear of 52A and 54 Woodlands Road is also at 2.25m above the level of the ZFDTG, which means it will range from around 30cm above the ground level of the sand immediately adjacent to the shared access platform, but quickly becomes 1m above the ground level of the sand around 2m from that point, and then, of course, becomes 1.5m above the ground level at the water's edge at a low tide of 0.75m. This becomes a significant additional obstruction for anyone wanting to use that area of the public beach, that cannot be easily traversed.
The stairs do not adequately resolve this issue, as they create an additional structure in an area already obstructed by the slip rails and boat sheds, and they also require a walker to take a particular route to cross the jetty rather than the free range traversing of that area. As such, the proposed development at the rear of 52A and 54 Woodlands Road also impedes the movement of the public along that area of the foreshore at mid to low tide, due to its location, its design that traverses the beach and foreshore, and the resulting height at which it traverses the sandy beach.
[5]
The impact when considered in the context of the SEPP RH
The sandy beach area at the rear of the properties along Woodlands Road, between 24 Woodlands Road and the Taren Point Shorebird Reserve, falls within the definition of "beach" and "foreshore" pursuant to the SEPP RH. The "beach" is the sandy area from the line of the lowest astronomical tide (generally considered to be 0.0 ZFDTG) to the line of structure at the rear of each property, which includes the seawall from 26 to 30 Woodlands Road, various edging and retaining walls along the rear of the yards, and the boat sheds to which the slip rails attach. Some of that sandy area only has a very small volume of sand above the rock. The "foreshore" extends from the lowest astronomical tide to the highest astronomical tide, and therefore incorporates the whole of the area that can be accessed at low tide between 24 Woodlands Road and the Taren Point Shorebird Reserve, although some areas of the foreshore are on private property.
The full extent of the proposed developments is on land that is within the coastal environment area, such that s 2.10(1)(e) of the SEPP RH requires the consent authority to consider whether the proposed developments are likely to have an adverse impact on "existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability". As set out above at [82] to [88], the proposed developments will adversely impact the existing public open space by creating an obstruction to the free movement within the beach and foreshore, and will obstruct the safe passage of the public to and along the beach and foreshore, at mid to low tide, between 24 Woodlands Road and the Taren Point Shorebird Reserve. As there is limited access at present for persons with a physical disability, the impact relates to access for members of the public who are able to access the beach and foreshore by walking along the beach from the public reserve, by water using recreational craft or by direct access from their private properties.
Section 2.10(2) provides that development consent must not be granted to the development unless the consent authority is satisfied that it is designed, sited and will be managed to either avoid that adverse impact or minimise that impact, or, if it cannot be minimised, that it will be managed to mitigate the impact. For the reasons that follow, I have not reached the state of satisfaction required by s 2.10(2).
I consider that the proposed developments are not designed, sited or managed to avoid the impact that I have described above at [82] to [88], and [90]. Instead, their design to include access platforms directly from private property with a jetty extending from the private property over the sandy beach to the water, results in a height of the jetty above the sand that makes the jetty an obstruction for public users of the beach and the foreshore at mid to low tide between 24 Woodlands Road and the Taren Point Shorebird Reserve, who are not able to move freely within that space as public open space or walk unobstructed along the beach and foreshore. I accept the evidence of Mr Vescio that each jetty presents as a major and unreasonable obstacle and an intrusive impasse for the walkable area of the foreshore.
I am similarly not satisfied that the developments are designed, sited and will be managed to minimise that impact. There were two reasons advanced as to how the impact was to be minimised: the sharing of the jetties between the two properties; and the inclusion of access stairs or stiles. Neither of these measures, either separately or together, minimise the impact to an acceptable degree.
Firstly, the sharing of the jetties between two properties will limit the number of obstructions, but the two to the north (to the rear of 36 and 38 Woodlands Road, and 28 and 30 Woodlands Road) will nevertheless divide the area of beach and foreshore between 24 and 46 into separate areas of public open space and create the intrusive impasse for the walkable area, and the proposed development at the rear of 52A and 54 Woodlands Road nevertheless creates the additional obstruction described at [86].
Secondly, the impact is not acceptably minimised by the inclusion of access stiles or stairs. As described above at [85] and [88], they create an additional structure within the public open space and a defined track with "forced zig zagging" along the beach, requiring a walker to take a particular route rather than allowing the free range traversing of the beach and foreshore.
For the same reasons, I am not satisfied that the development will be managed to mitigate that impact. The access stairs do not mitigate the impact to an acceptable degree, for the reasons expressed above at [95].
Further, the fact that there are other more attractive areas of beach and foreshore, to the south of 64 Woodlands Road, that would remain available for use by the public following the carrying out of the development is of limited relevance. As set out above at [78] to [81], the foreshore and beach between Taren Point Shorebird Reserve and 24 Woodlands Road are public open space areas used by the public, and the fact that there are other areas that are more attractive does not change the impact that the proposed developments each have on this existing public open space and on safe access to and along this area of the foreshore and beach.
Accordingly, I have not reached the state of satisfaction required by s 2.10(2) of the SEPP RH in relation to the impact of each of the proposed developments on "existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public". The impact is not avoided, and the development will not be managed to minimise or mitigate that impact. In my view, this is a sufficient basis alone upon which the development applications should be refused.
Given my conclusions in relation to s 2.10(2) of the SEPP RH, I need not consider s 2.11, which concerns only that part of the proposed developments located on the area mapped as coastal use area.
[6]
The impact when considered in the context of the SSDCP
Notwithstanding my conclusion that s 2.10(2) of the SEPP RH, of itself, is a sufficient basis upon which the developments applications should be refused, I also consider that the impact of the proposed developments on public access to the beach and foreshore is unacceptable when considered against the provisions of the SSDCP, for the following reasons.
For the reasons expressed above at [82] to [88], the jetties each interfere with publicly accessible areas along the waterfront, contrary to control 21 of Chapter 10 of the SSDCP. In addition, it is common ground that they exceed the control for a maximum length of 20m, with lengths of 27.3m, 22m, and 27.2m. This is because the length required from the private property boundaries to a reasonable depth for use of the jetties exceeds 20m.
Whilst s 4.15(3A)(b) of the EPA Act requires flexibility in applying the standards of a development control plan, and provides that alternative solutions should be allowed that achieve the objects of the standard, no such alternative solution is proffered in the proposed development applications that achieves the objects of the standard. Because of their length across the beach at mid to low tide, and their resulting height, they interfere with publicly accessible areas along the waterfront and similarly do not meet the relevant objective of the controls within that chapter to "maintain and improve public access to the intertidal area of the waterfront". Whilst the access stairs will allow a person to walk over the structures, this is not sufficient to mitigate the interference of those structures with the publicly accessible area or to achieve the objective of maintaining and improving public access, for the reasons expressed above at [85] and [88].
[7]
Visual impact
The Council contends that the proposed developments, individually and collectively, will create change in the currently natural foreshore environment by introducing visual clutter and manmade structures that extend into and dominate the existing natural setting of the waterway foreshore when viewed from various public and private vantage points.
The Council's position is supported by the evidence of Mr Vescio, who opines that the proposed developments will contribute to a significant adverse change in views of the natural waterway, and will extend the visual impact of the land based existing development into the waterway. The Council submits that this is contrary to the objectives of the W1 zone to ensure that the natural scenic qualities of waterways are not diminished, and is contrary to cl 6.8 of the SSLEP, which has as its objective to protect and enhance the environmental and scenic qualities of natural landforms.
Harbour Port's position is instead that jetties, ramps and pontoons are appropriate in the visual context in which they are a permissible form of development. This is support by the evidence of Mr Black, who opines that these structures are a desirable visual feature of the Sutherland Shire waterways where they are associated with residential development. He considers that "the area of the subject site has been heavily modified such that there is limited redeeming natural attributes", and that the jetties across the council area contribute to the visual character of the waterways.
[8]
The visual impact of the proposed developments is unacceptable in the circumstances
I consider that the ability to see a permissible form of development anticipated by the zoning is not sufficient, of itself, to constitute an adverse visual impact. There must be something about its location, design or the surrounding locality that creates an impact that is not appropriate or acceptable in the field of view.
In the circumstances of the proposed developments, considered in the context of cl 6.8(3) of the SSLEP, I consider that the visual impact is not acceptable when viewed from the beach and foreshore at the rear of 24 to 46 Woodlands Road, and when viewed from the beach and foreshore adjacent to the Shorebird Reserve. I reach this conclusion for the following reasons.
Firstly, the area that is waterside of the mean high water mark is mapped as environmentally sensitive land, such that cl 6.8(3) requires that the consent authority consider "whether the development is likely to have an adverse impact on the environmental and scenic qualities of natural landforms". Whilst Mr Black and Mr Vescio agree that the land adjoining Woolooware Bay from 2 to 64 Woodlands Road has been heavily developed such that the natural scenic quality of that shoreline has not been maintained, there remains views from that developed area and from the beach adjacent to Taren Point Shorebird Reserve to the natural landform of Woolooware Bay and the Towra Point Nature Reserve. I accept the evidence of Mr Vescio that these natural attributes make the area unique, and consider that Woolooware Bay and Towra Point Nature Reserve, viewed from this area, are natural landforms that have scenic qualities. As present, consistent with the evidence of Mr Vescio, the scenic quality encompasses the natural foreshore presentation of Woolooware Bay with minimal intrusion of man made structures other than disused or dilapidated structures, with the bay reading as a contiguous natural bay from Captain Cook Bridge through to Shell Rock. This also makes it distinct from the other areas of the Georges River foreshore, where jetties are part of the built form character. Contrary to Mr Black's opinion, there is nothing in the SSDCP or SSLEP that supports his view that jetties are a desirable attribute of the area, and the fact that they form part of the built form character of the foreshore at other points along the Georges River does not make it the desired character of the foreshore that forms part of Woolooware Bay.
Secondly, when viewing Woolooware Bay toward Towra Point Reserve from the beach and foreshore at the rear of the properties between 24 and 46 Woodlands Road, the two proposed jetties in that area will be prominent in the field of view. This view is currently largely unspoilt by man made structures. The existing jetty to the north-western end of the bay cannot be viewed from this location. Each of the two proposed jetties in that area (at the rear of 36 and 38 Woodlands Road, and 28 and 30 Woodlands Road) will protrude into the bay well beyond the length of any existing structure and at a height of 2.5m above the ZFDTG. Each of those two proposed jetties, both individually and collectively, will therefore be prominent in the visual field for anyone viewing Woolooware Bay toward Towra Point Nature Reserve from a vantage point along that area of beach and foreshore. I accept the evidence of Mr Vescio that these structures will contribute to an adverse change in the currently natural foreshore environment with the perspective visual clutter of man-made structures extending out into the existing natural setting.
Thirdly, the jetty at the rear of 52A and 54 Woodlands Road will protrude further into the bay than the existing sliprails, above the water line, such that it will be visible from the beach next to the Shorebird Reserve and present an extension into the bay of the highly developed area to the north. Views over Woolooware Bay from the beach next to the Shorebird Reserve are currently framed to the north by the boat shed and other structures at the rear of 54 Woodlands Road, where slip rails also descend into the water, but are otherwise uninterrupted by manmade structures. The jetty will protrude into the bay beyond the existing structures and above the slip rails, so that, as Mr Vescio opined, it presents as an extension of the visual impact of the land based existing development. Contrary to the position of Harbour Port, the fact that there are existing structures that result in a heavily modified foreshore, does not mean that additional development that further modifies the scenic qualities of the area is acceptable.
Fourthly, the three jetties have a cumulative visual impact when considered together. I accept the evidence of Mr Vescio that the jetties change the scenic quality of the present natural features of the intertidal sand beach and rock shelf, extending the visual impact of existing land based development into the waterway. This is exacerbated by the length of the jetties into the bay, which is currently free of man made structures other than the dilapidated slip rails that descend below the water.
For the above reasons, in circumstances where Woolooware Bay is a natural land form and cl 6.8(3) specifically requires consideration on an impact on its scenic quality, I consider that the visual prominence of the jetties when viewed from the beach and foreshore at the rear of 24 to 46 Woodlands Road, and when viewed from the beach and foreshore adjacent to the Shorebird Reserve, to be unacceptable.
[9]
The creation of an adverse precedent
The Council also contends that the approval of each of the development applications will set an undesirable precedent for future development of a similar nature in the same area as the proposed developments. The Council says that this will cause cumulative effects creating adverse impacts in relation to the erosion of the natural and scenic qualities of the area and to shorebird habitat. The Council relies on the decision of Lloyd J in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75. In this decision, Lloyd J refers to the concept of a consent operating as a precedent and says (at [28]):
"…if the Court is entertained with an application for a proposed development which is both objectionable in itself and where there is a 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."
Harbour Port's position is that any precedent created by the grant of development consent would reflect that the proposed developments are not inconsistent with the controls, and the question of whether future applications are inconsistent, will be a matter for consideration in determining those applications. Harbour Port relies on the evidence of Mr Black, who opines that private water recreation structures are a common development along the waterways of the Sutherland Shire, and are considered acceptable from a policy and public standpoint. He relies on there being a strong history of development approvals and existing jetty structures. This is supported by photographs of various areas of the Georges River foreshore where jetties form part of the built environment of the foreshore.
I accept the Council's position that the approval of the proposed developments will set a precedent for future development of a similar nature at the rear of the properties that have direct access to Woolooware Bay, which will unacceptably continue the erosion of the natural and scenic qualities of the area. This is readily apparent by a comparison of the natural and scenic qualities of Woolooware Bay at present, with the aerial photographs of other areas of the Georges River foreshore, where almost every property with foreshore access has a jetty. I accept the evidence of Mr Vescio that a proliferation of additional jetty development would be anticipated to follow any grant of development consent for the proposed developments, and that the proliferation of similar inappropriate development in the context of this area of Woolooware Bay would unacceptably erode the natural and scenic qualities of the area.
[10]
The final orders
As set out above, I have decided that each of the development applications should be refused on the basis that each of the proposed developments do not avoid, or acceptably minimise or mitigate, their impact on existing public open space and safe access to and along the foreshore and beach for members of the public. As such, I have not reached the state of satisfaction required by s 2.10(2) of the SEPP RH in relation to the impact of each of the proposed developments. In my view, this is a sufficient basis upon which the development applications should be refused.
In addition, I have found that the impact of each of the proposed developments on public access to the beach and foreshore is unacceptable when considered against the provisions of the SSDCP, and that the proposed developments, both individually and collectively, will have an unacceptable visual impact in their locational context within Woolooware Bay and based on the consideration required by cl 6.8(3) of the SSLEP. Further, the approval of the proposed developments would set a precedent which may result in future developments of a similar nature along this area of Woolooware Bay, which will further unacceptably erode the natural and scenic qualities of the area.
The Council also raised an additional contention concerning the impact of the proposed development on the habitat of the shorebird community. However, it is unnecessary for me to consider the acceptability of this impact given my findings that the development applications should be refused for the reasons given above.
In proceedings 2022/353257, the Court orders that:
1. The appeal is dismissed.
2. The development application for the construction of a shared access way, jetty and sea stairs, located at the prolongation of the boundary between 36 and 38 Woodlands Road, Taren Point (DA21/1085) is refused.
In proceedings 2022/353258, the Court orders that:
1. The appeal is dismissed.
2. The development application for the construction of a shared access way, jetty and sea stairs, located at the prolongation of the boundary between 28 and 30 Woodlands Road, Taren Point (DA21/1062) is refused.
The orders of the Court, as amended on 07 December 2023, are as follows:
In proceedings 2022/353256, the Court orders that:
1. The appeal is dismissed.
2. The development application for the construction of a shared access way, jetty and sea stairs, located at the prolongation of the boundary between 52A and 54 Woodlands Road, Taren Point (DA21/1164) is refused.
3. Exhibits D, 1, 4 and 7 are returned, and remaining exhibits are retained.
I certify that this and the preceding 46 pages are a true copy of my reasons for judgment.
……………………….
J Gray
Commissioner of the Court
[11]
Amendments
07 December 2023 - The Court orders that, pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005, the reference to DA21/1062 in order 2 made on 13 November 2023 is deleted and replaced with DA21/1164.
Deletion made at [77] of typographical error.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 07 December 2023
Parties
Applicant/Plaintiff:
Harbour Port East Coast Pty Ltd
Respondent/Defendant:
Sutherland Shire Council
Cases Cited (8)
The parties' position
The parties' agreed position is that the development applications were neither 'made', 'lodged' nor 'submitted' until such time as the final version of the owners' consent of TNSW was provided, which was in March 2023. They say that until that occurred, the development application was incomplete and was therefore not "made" or "lodged".
There are a number of authorities that support the parties' position. In Botany Bay City Council v Remath Investments No. 6 Pty Limited (2000) 111 LGERA 446; [2000] NSWCA 364, the Court of Appeal found that the development applications were not "made" before a given date because they were not accompanied by an environmental impact statement, which was required by cl 77 of the applicable regulations to accompany applications for designated development. The Court found that there has to be "substantial compliance" with the requirements for a development application before it can be considered to be made. Stein JA summarised the principles in the following way (at [13]-[15]):
"13 I see no warrant for splitting the requirements of a development application between it being made in the prescribed form and the documents necessary to accompany it, as well as the payment of the fee. I cannot accept that the latter requirements may be hived off so as not to be requirements for the making of the development application.
14 That is not to say that a development application is invalid or void if it is not accompanied by, for example, an EIS, SIS or the prescribed fee, at the very time of its lodgment with the consent authority. Substantial compliance may be satisfied by the later accompaniment of the required document under subparas (c), (d) or (d1) or the fee under subclause (e) of s 77(3).
15 For the purposes of this case, the construction which I favour means that the EIS has to substantially comply with the requirements of the unamended Act prior to the appointed day (1 July 1998) for it to qualify under cl 11 as a development application made but not determined under the unamended Act."
In Rose Bay Marina Pty Ltd v Minister for Urban Affairs and Planning (2002) 122 LGERA 255; [2002] NSWLEC 123, the Court found that a development application lodged by a person other than the owner of the land, without being accompanied by owners' consent, was "incomplete and ineffective". This conclusion was reached based on the requirement in the regulation for a development application to be "made" either by the owner of the land, "or by any other person, with the consent in writing of the owner of that land".
In Becton Corporation Pty Limited v Minister for Infrastructure, Planning and Natural Resources & Anor [2005] NSWLEC 197 at [7] (Becton), Lloyd J confirmed that "it is settled law that a development application which is not accompanied by the landowner's consent is not made within the meaning of cl 49(1) of the EP&A Regulation". Clause 49(1) of the EPA Regulation 2000, at that time, required a development application to be "made… by any other person, with the consent in writing of the owner of that land".
The parties' agreed position is that, because the development applications were not accompanied by a valid written owners' consent and there was no completed "owners consent" section in the development application forms, they were incomplete and ineffective, not being in the "form approved" and not being made with the consent of the owner of the land.
The provisions of the EPA Regulation 2000
Clause 49(1) of the EPA Regulation 2000, at the time of its repeal, allowed a development application to be made by the owner of the land, or "by any other person, with the consent of the owner of the land". Clause 49(4A) makes it clear that the consent of the owner "is not required to be in writing".
Clause 50 then sets out the manner in which a development application is made, and includes the following:
(1) A development application, other than an application for State significant development, must -
(a) be in the form that is approved by the Planning Secretary and made available on the NSW planning portal, and
(b) contain all of the information that is specified in the approved form or required by the Act and this Regulation, and
(c) be accompanied by the information and documents that are specified in Part 1 of Schedule 1 or required by the Act and this Regulation, and
(d) be lodged on the NSW planning portal.
…
(9) A development application is taken not to have been lodged until the fees notified to the applicant by means of the NSW planning portal have been paid."
As I summarised above, the parties' position is that, prior to March 2023, the development application was not accompanied by a valid written owners' consent and there was no completed signature in an "owners consent" section of the development application form, which means that cl 50(1) was not complied with and the development application could not be considered "made" or "lodged".
I do not accept the parties' position. Firstly, the requirement of cl 49(1) was met when the development applications were lodged on the NSW Planning Portal, as the development applications were accompanied by the consent of the owners of the land. Whilst it is true that the letter of consent from TNSW includes a statement that the "consent is valid for 12 months from the date of this letter", this raises a question about the adequacy or currency of the written consent, but it does not nullify its existence. The statements in Rose Bay and Becton relate to development applications that are not accompanied by owners' consent. In fact, the development applications presently before the Court were accompanied by owners' consent.
I note also that, insofar as the letter of consent purported to withdraw owners' consent after a period of 12 months, it is well established that once given, owners' consent cannot be withdrawn (see Wharf 11 Pry Ltd v Sydney City Council (Land and Environment Court of New South Wales, 15 February 1991, unreported)) and cannot be made conditional upon a particular design being pursued (see Royal Motor Yacht Club v Sutherland Shire Council (Land and Environment Court of New South Wales, 26 June 1987, unreported); Stafford Quarries Pty Ltd v Kempsey Shire Council (1992) 76 LGRA 52 at 55-56).
Secondly, there was substantial compliance with cl 50(1)(a) of the EPA Regulation 2000 as, without any evidence to the contrary, each of the development application forms were completed and in the form "approved by the Planning Secretary and made available on the NSW planning portal". On the date that these proceedings were re-listed on this question of whether the savings provisions apply, the parties provided a development application form that they asserted was that which was "approved by the Planning Secretary and made available on the NSW planning portal". However, the form provided was related to proposals requiring the consent of the Minister for Planning. However, the Minister for Planning is not the consent authority for the proposed developments and that form is not relevant. Instead, having regard to each of the forms submitted through the NSW planning portal (Ex A, B and C) and on the assumption that the form available on the NSW planning portal was that which was submitted, each part of the form is completed and there is no requirement for a signature of owners' consent on the form.
There was no other reason advanced by the parties as to why the development applications could not be considered to have been "lodged" or "made" prior to the relevant dates contained in the two savings provisions. In accordance with cl 50(9) of the EPA Regulation 2000, the development applications were "lodged" on the date that the fee was paid. They were also "made" on the same date: see Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2023] NSWCA 264 at [129]-[130].
Although the dates vary for each development application, this means that each application was "made" and "lodged" prior to the relevant dates in the savings provisions in cl 1.8A(2A) of the SSLEP and s 6.65 of the SEPP B&C. Accordingly, both these savings provisions apply and the applicable wording of cl 6.9 of the SSLEP is that prior to Amendment 23, and the applicable provisions of the SEPP B&C are those contained in the now repealed Ch 11. Although Ch 11 of the SEPP B&C commenced after the development applications were made, the provisions in Ch 11 are transferred provisions within the meaning of s 30A of the Interpretation Act 1987, and apply to the site in the same way as the Greater Metropolitan Regional Environmental Plan No 2 - Georges River Catchment applied to the site, and the provisions are "to be construed as if it had not been so transferred".
For these reasons, s 6.9 of the SEPP B&C does not apply to the assessment of the proposed developments. In reaching this conclusion contrary to the parties' agreed position, I am aware that the parties' have not had the opportunity to address the Court on Ch 11 of the SEPP B&C. This is of little moment as I have reached a decision on the proposed developments by reference to the SEPP RH, the SDCP, and the provisions of the SSLEP that remain unamended by Amendment 23, each of which were before the Court at the hearing and in relation to which each party had the opportunity to address the Court.