COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application DA22/1054 for the construction of a fixed jetty with large timber deck and sea steps attached at the seaward end of the jetty (the Proposed Development) at 23 Immarna Avenue, Lilli Pilli legally described as Lot C DP 396608 (the Site).
The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, over which I presided on 10, 24 October, 3 and 8 November 2023 and on 14 November 2023 I reserved judgment after the parties filed an agreement pursuant to s34 of the LEC Act.
At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.
The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of various clauses of the Sutherland Shire Local Environmental Plan 2015 (SSLEP) relating to environmentally sensitive land. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional note and I have referred to the amended plans and documents listed at [23(1)].
Homann v Sutherland Shire Council [2023] NSWLEC 1723 | Case summary | Zoe
The development application was made with the consent in writing of the owners of the Site in accordance with the requirements of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).
Owner's consent has also been granted on 22 August 2022 by the Minister administering the Crown Land Management Act 2016, NSW Department of Planning and Environment - Crown Lands for the land below mean high water mark (MHWM) fronting Lot C DP 396608 filed with the Class 1 Application. Regardless of the amendment to the development application, that owner's consent remains valid (see Rose Bay Afloat Pty Ltd (Formerly Known As Titanic Floating Restaurant Pty Ltd) v Woollahra Council & Anor. (2002) 126 LGERA 36; [2002] NSWLEC 208 at [89]).
The Proposed Development is for a water recreation structure for the purpose of a dwelling house. A water recreation structure is defined in the Dictionary to SSLEP as follows:
water recreation structure means a structure used primarily for recreational purposes that has a direct structural connection between the shore and the waterway, and may include a pier, wharf, jetty or boat launching ramp.
The land to which the development application relates above the MHWM is in Zone C3 Environmental Management pursuant to the provisions of the SSLEP. Development for the purposes of a "dwelling house" is permissible with consent. The land to which the development application relates below the MHWM is in Zone W1 Natural Waterway pursuant to the provisions of the SSLEP. Development for the purposes of "water recreation structures" is permissible with consent.
Under cl 6.1 (Acid Sulfate soils) of the SSLEP, the Site is Class 5, however it is unlikely that the watertable will be lowered below 1 metre Australian Height Datum on adjacent Class 1, 2, 3, or 4 land.
The Court has documents before it from which it can be satisfied pursuant to cl 6.4(3) of the SSLEP that the Proposed Development is:
1. designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and
2. includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and
3. avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact.
Under cl 6.5 (Environmentally sensitive land - terrestrial biodiversity) of the SSLEP, the parties have considered the matters in subcl (3) and are satisfied of the relevant matters in subcl (4).
Under cl 6.7(Environmentally sensitive land - riparian land and watercourses) of the SSLEP, the parties have considered the relevant matters under subcl (3) and are satisfied of the relevant matters in subcl (4).
Under cl 6.8 (Environmentally sensitive land - environmental and scenic qualities of natural landforms) of SSLEP, the parties have considered the relevant matter under subcl (3) and are satisfied of the relevant matters under subcl (4).
Under cl 6.9 (Limited development on foreshore area) of SSLEP, the parties are satisfied of the relevant matters under subcl (3) and have considered the relevant matters under subcl (4).
The Proposed Development complies with the development standard for landscaped area pursuant to cl 6.14(3) of SSLEP.
Consideration has been given to whether the Site is contaminated in accordance with s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards). Based on Council's planning records, which show a long and continuous history of residential uses of the land, there is no evidence to suggest the land is contaminated. The Site is therefore considered suitable for the proposed use given that contamination is unlikely, and no remediation measures have been identified as being necessary.
The land is identified as coastal environment area and coastal use area and the terms of Ch 2 of SEPP Resilience and Hazards are relevant as follows:
1. The parties have considered the relevant matters under s 2.10(1) and are satisfied of the relevant matters under subs (2).
2. The parties have considered the relevant matters under s 2.11(1)(a) and are satisfied of the relevant matters under subs (b) and have taken into account the relevant matter under subs (c).
The development application was notified from 22 November and 9 December 2022 in accordance with the Respondent's Community Engagement Strategy and 6 submissions were received. The parties are of the view that the amended plans and proposed conditions represent an appropriate response to the submissions, controls and site circumstances.
I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I adopt the reasons given by the parties as set out in this judgment.
As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision.
[2]
Notations
The Court notes that:
1. Sutherland Shire Council as the relevant consent authority for the purposes of s 38(1) of the Environmental Planning and Assessment Regulation 2021 approves the Applicant's amendment to Development Application DA 22/1054 to rely on the following amended plans:
Plan number Reference Prepared by Date
Drawing 01 Revision D Site Plan Sydney Town Planning October 2023
Drawing 02 Revision D Section & Elevation Plan Sydney Town Planning October 2023
Drawing 01 Revision D Plan of Management Sydney Town Planning October 2023
Drawing LA01 Landscape Plan Designs for Living October 2023
Engineers Report on Pier Installation / Construction Methodology CPM Engineering 23 October 2023
[3]
The amended plans were filed with the Court on 14 November 2023.
[4]
Orders
The Court orders:
1. The appeal is upheld.
2. Development application 22/1054 for the construction of a fixed jetty with timber deck and sea steps at 23 Immarna Avenue, Lilli Pilli is determined by the grant of consent subject to the conditions set out in Annexure "A".
[5]
Commissioner of the Court
Annexure A (637968, pdf)
Access Plan (265029, pdf)
Engineer's Methodology Statement and Construction Detail (1387806, pdf)
Landscape Plan (1631966, pdf)
Management Plan (261818, pdf)
Section and Elevation Plan (210238, pdf)
[6]
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: 30 November 2023