Noun v Sutherland Shire Council [2011] NSWLEC 1243 | Case summary

Land and Environment Court (NSW)|2010-08-24|Before: Dr J, Ms J

Mr T Robertson SC (Respondent) Solicitors MCW Lawyers (Applicant) Mr B Phillips (lawyer)

Sutherland Shire Council (Respondent) Ms J Amy (lawyer) File Number(s): 10391 of 2010

Background 1Dr and Mrs Noun seek development consent to make modifications to their home at 75 Baliga Avenue, Caringbah. The modifications include: installation of glazing to enclose the rear ground floor balcony, construction of a vergola roof over a first floor balcony, construction of a landing outside the laundry, plus alteration to the garage and addition to the front fence. 2The property is on the foreshore of Yowie Bay and comprises land owned by the applicant and land occupied by the applicant with permission from the Crown. Erected on the property are a two-storey dwelling house, detached garage and a swimming pool. According to the survey plan of S J Dixon Associates, part of the pool is located beyond the mean high water mark and like the boatshed, ramp, slip rails, jetty and floating pontoon is on Crown land. 3Prior to the applicant's purchase of the property, Sutherland Shire Council issued development consent (DA99/1793) for renovations to the dwelling house and pool. Condition 18 of that consent required the demolition of the boatshed within 10 years of the date of the approval. 4While the renovations were completed, the boatshed has not yet been removed . 5It is against this background that the applicant lodged the development application, which is the subject of this appeal (DA 09/0685). The applicant told the Court that the modifications proposed in this application are to insulate the property from exposure to the elements, particularly from the southern side, where during heavy rains and winds, water gets in through the windows and doors. 6While the council has approved the application (and upheld the applicant's SEPP1 objection in relation to the minimum landscaped area calculation pursuant to cl 36 of Sutherland Shire Local Environment Plan 2006 (SSLEP 2006)) the applicant is dissatisfied. This is because the council has imposed a deferred commencement consent requiring demolition of the boatshed. 7This appeal is against the imposition of deferred commencement condition 1 which states: "Removal of the boatshed located below the Mean High Water Mark within six (6) months of the date of the issue of this Consent. Written notification of the completion of the aforementioned works shall be provided to Council." 8Council contends the condition is reasonable and necessary in the circumstances of this case because: (i)The provisions of clause 18(3) (b) of SSLEP 2006 requires the consent authority to be satisfied that the boatshed, located below the MHWM will be removed before, or within a reasonable time after the development is carried out. (ii)The proposed works to enclose the ground floor balcony, which creates an additional room within the dwelling, triggers the requirements of Clause 18(3). (iii)Council cannot be satisfied that these structures will be removed before or within a reasonable time after the development is carried out, in the absence of a deferred commencement condition, because of the non compliance with condition 18 of the previous development consent (IDA No 99/1793). (iv)The boatshed is an illegal structure, its removal having been required by the previous development consent (IDA No 99/1793), which has been activated. (v)The development application includes additions to that part of the dwelling located below the Foreshore Building Line, at the ground floor and first floor levels. (vi)The deferred commencement condition ensures that no further addition of built form occurs below the foreshore building line until the boatshed is removed, which is consistent with the objectives (b) and (c) of clause 18(2)." 9In addition to the removal of the boatshed, the Council also requires the removal of the two fender piles located at the end of the pontoon installed between 1998 and 2003. This issue (raised after the commencement of the hearing with the Court's leave) turns on whether the piles form part of the jetty or are freestanding but ancillary to the watercraft facilities. The former is acceptable the latter is not. 10To appreciate the evidence, the Court took a view of the site by foot and by boat from Yowie Bay. It also had the benefit of extensive written submissions from the parties' legal representatives and expert evidence from Mr Winnicot (town planning) and Mr Henstock (engineering) for the applicant; and, Ms Pinfold (town planner) and Mr Fielder (consultant engineer) for the council. 11After a consideration of the evidence, the written submissions and the law, I have decided to uphold the appeal but issue the consent subject to deferred commencement condition 1 imposed by the council. I accept the evidence of Ms Pinfold that the proposed works to enclose the ground floor balcony, roof the first floor balcony and add two columns at the northern and southern ends adds unacceptable visible built form to the development. The result is that the building will be brought forward towards the water. I reject the applicant's submission that the works are de minimis . I find that the development triggers the requirements of cl 18(3) in the circumstances of the case. I also find that the presence of the boatshed adversely impacts on the waterway in that it adds to the visual clutter of the foreshore and prevents (as far as practicable) the restoration of that land to a natural state. The view confirmed the evidence that its presence impedes public access to the intertidal zone below the mean high water mark. The removal of the boatshed is not inconsistent with, and necessary to achieve the zone objectives in cl18 (2)(b), (c) and (d) of the SSLEP. The deferred commencement condition 1 in my opinion achieves the objectives of the clause and ensures that no further addition of built form occurs below the foreshore building line until the boatshed is removed. It is, on the facts, a reasonable and necessary condition. 12However, I am not satisfied that the second deferred commencement condition (in respect of the fender piles) should be imposed. While they may not technically fall within the definition of watercraft facility under the SSLEP, and thereby the exclusion in cl18 (3) (b), I am not prepared to require their removal based on the evidence before me. This is because I accept the evidence of Mr Henstock and Dr Noun that the piles assist in the safe boarding and disembarking from a vessel. I accept Mr Henstock's assessment that the retention of the existing fender piles, either as fender or stabilizing piles, significantly improves the safety for the movement of persons and materials between a vessel moored (temporarily or otherwise) to the piles, pontoon particularly in extended wind duration strong winds and wave conditions. 13I accept his evidence that the site is exposed to substantial wind fetch to the south and has the potential to be exposed to sustained strong winds from the south and associated wind generated wave climate in extended storm events. The piles reinforce the structural integrity of the ramp and pontoon structures by absorbing berthing energy and mooring loads of vessels using the berth consistent with sub- clause 6 of Part 6.b.2 of the Sutherland Shire Development Control Plan 2006. 14I do not require, on the evidence before me, that the slip rails be removed in these proceedings. I am unclear of the cost of such work and the environmental impact.

Locality 15The Statement of Facts and Contentions filed by the council on 18 June 2010 describes the site as Lot B DP 387225 75 Baliga Avenue, Caringbah. The property is located on the corner of Burraneer Bay Road (South) and Baliga Avenue (East), Caringbah. It is located next to single and two-storey houses, which enjoy direct waterfront access to Yowie Bay. 16The site is generally a rectangular shaped block of land, with an irregular western boundary to Yowie Bay. It has an area of 1,024 sq m and slopes by approximately 7.5 m from the northeastern corner to the southwestern corners. The eastern boundary of the site is 15.342 m in length and the northern boundary length is 63.703 m and southern boundary has a length of 50.902 m.

Statutory Controls 17The site is located within the Zone 2-Environmental Housing (Scenic Quality) under Clause 11 of the SSLEP 2006. The adjoining area below the MHWM on which the boatshed is situated is within Zone 16 - Environment Protection (Waterline). Boatsheds are prohibited in the zone 16 zone. The site is also subject to a 10 m foreshore building line. 18The proposed alterations and additions are permissible development within the zone, however the works located below the foreshore building line are also subject to controls in cl 17 of the SSLEP 2006 (Buildings or works located below the foreshore building line). 19Clause 18(3) requires Council to consider the removal of any building or work (other than a watercraft facility) that is located below the mean high water mark, when granting consent to development affected by a foreshore building line. 20Chapter 9.6 -- Specific Land Uses Waterfront Development of the Sutherland Shire Development Control Plan 2006 also applies.

Does cl 18 apply in the circumstances of this case? 21Clause 18 provides:

18 Development in or adjacent to waterways (1) This clause applies to any of the following land: (a) Land in Zone 16-Environmental Protection (Waterways), (b) land traversed by a foreshore building line, (c) land below the mean high water mark. Note. The mean high water mark referred to here is the mean high water mark as it currently exists. (2) The objectives of this clause are as follows: (a) to ensure that any development does not result in the obstruction or interference with navigation in waterways, (b) to ensure restoration of land below any foreshore building line, to a natural state (so far as is 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 a site, (d) to promote the public use of intertidal areas below the mean high water mark or high water mark, where appropriate. (3) The consent authority must not consent to development on land to which this clause applies unless the consent authority is satisfied that the following building or work will be removed before, or within a reasonable time after, the development is carried out: (a) any building or work, other than an excluded building or work, that is: (i) on the lot concerned or an adjoining lot owned by the person carrying out the development, or on adjacent land that person occupies under a lease or a licence, and (ii) between a foreshore building line and any waterway or waterfront reserve in respect of which the line is fixed, (b) any building or work (other than a watercraft facility) that is: (i) on the lot concerned or on an adjoining lot that is owned by a person carrying out the development, or on adjacent land that person occupies under a lease or a licence, and (ii) below the mean high water mark. (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, (ii) a garage or carport adjacent to a dwelling or located between a dwelling and the street on which the dwelling is located, (iii) a deck or verandah, (iv) an awning or canopy, or (b) the consent authority is satisfied that the use of the building or work is lawful, or (c) the 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. (5) In this clause: excluded building or work has the same meaning as it has in clause 17. 22The view confirmed the written evidence that the foreshore development around Yowie Bay is cluttered with many older structures erected below the foreshore building line and adjacent or near the water. Clause 18 of the SSLEP seeks to address this fact by requiring the removal of unauthorized structures. 23A clear purpose of cl 18 is to restore the waterfront to its natural state by removing (as far as practicable) non conforming structures below the high water mark which interfere with this objective: Hooler v Sutherland Shire Council [2008] NSWLEC 189 at [25]. 24The boatshed in this case is an illegal structure, which was required to be demolished by condition 18 of the 1999 consent. The evidence is clear that the boatshed is prohibited development within the Zone 16 and is in breach of condition 18 of the 1999 consent. The applicant does not contend that the boatshed is lawful: cl 18 (3)(b). To date council has taken no action to enforce compliance with that condition. As I have said it is irrelevant whether or not the applicant was aware of the requirement to demolish the boatshed at the time of purchase. 25Despite that fact, more relevant for the purposes of this appeal is whether the proposed development triggers the imposition of the condition to require removal of the boatshed. Essentially, the council's case is that the benefit of this consent to improve the dwelling is not to be taken without compliance with the requirement to remove the boatshed. The justification for its imposition is that the works to the veranda will change it from a verandah to a room and this will be read from the water, according to Ms Pinfold, as part of the bulk of the house. I agree with her assessment (for the reasons set out in her written evidence) that the proposed development engages cl 18(3). 26The planners agree that all of council's controls since SSLEP1992 have contained various provisions requiring the removal of non-conforming structures below the MHWM when a site is subject to a development application. I accept Ms Pinfold's assessment that cl 18(4) specifies the forms of development excluded from the operation of the controls. I accept her assessment that the subject development does not fall within the exceptions. Read with cl 17, the controls do place significant restrictions on development forward of the foreshore building line. 27Ms Pinfold's study of the area (exhibit 10), which was requested by the Court, supports her evidence that council's long-term policy is to require (with each development application) the removal of non-conforming foreshore and waterway structures. The commencement of the Waterfront DCP in 2002 has also added support to this long-term objective. I accept her evidence that no new boatsheds have been approved below the MHWM since 1993 and only about a quarter of the properties retain an existing boatshed and /or dwelling partly or wholly below the MHWM. 28In my opinion, the council has only applied the planning controls to the facts. The imposition of the deferred commencement condition is triggered by cl 18(3)(b) and is consistent with achieving the objectives in cl 18(2)(b) (c) and (d). For that reason, it cannot be said that the removal of the boatshed would be inconsistent with, or is not necessary to achieve, any objectives of this clause. I accept as the council submits that the removal of the man - made structures plainly promotes the demolition of intrusive man -made structures. The objective to reduce the number of structures is promoted by removing this boatshed. The objective to promote the use of intertidal areas is promoted by removing impediments to that use - such as this boatshed. The consequence of fulfilling these objectives is to promote a material public interest by decluttering the waterways and increasing the visual amenity of the bay. 29The court view confirmed the fact that the adjoining storm water channel/ utility is inappropriate development but it is an expected and necessary intrusion in an urban environment. Relevantly, the utility installation is an excluded building under cl17 (10) and is permissible with consent in the waterway Zone 16. However, the presence of the boatshed does not promote the public use of intertidal areas below the MHWM. Based on the evidence it is appropriate that the boatshed be removed to promote this objective (cl18 (2) (d). If removed it could be an access point for water activities such as canoeing.

Is the removal of the boatshed unreasonable or unnecessary in the circumstances of the case and therefore justified under cl 18(4)(ii)? 30I accept that the boatshed has not been removed under the1999 consent and it may be open to council to pursue compliance with that condition. Irrespective of that, I do not accept the applicant's submission that it would be unreasonable or unnecessary to require the applicant to remove the boatshed because:

The applicant was unaware that the boatshed was unlawful when she purchased the property. This is a class 1 appeal and her knowledge of the 1999 consent condition at that time is irrelevant in this merit appeal. Although it may be relevant in the exercise of the discretion in s 124 in enforcement proceedings.
It is a financial burden to the applicant. There is no objective evidence of the cost of the demolition of the boatshed and therefore there is no evidence to support this submission. In any event it must be weighed against the planning evidence and the fact that the retention of the boatshed is inconsistent with the objectives of the cl 18(2). In the circumstances I attach little weight to this submission in this class 1 merit appeal.
The condition requiring removal of the boatshed was not noted on the s 149 certificate - there is not requirement for such a notation;
Other unlawful boatsheds exist - the existence of other unlawful boatshed does not justify the retention of this boatshed on the facts of this case;
The proposed development is unrelated to the boatshed - this is irrelevant because cl 18 triggers provides a nexus for the removal of the boatshed;
There is adjoining property with approved boatsheds - Ms Pinfold's evidence does not support this.
This applicant is being singled out - there is no evidence before me that this applicant is being treated any differently to other applicants. To the contrary, the evidence suggests that council has when opportune consistently applied cl18 to require the removal of unauthorized structures caught by the plan. 31The applicant also raises the issue of ESD. She contends that removal of the boatshed and other structures would waste valuable building materials and such action would "release embodied energy before the life of the structure had been exhausted". I do not accept this submission because it ignores the environmental impact of allowing the structure to remain, which on the evidence is a more serious intrusion into the natural environment of the waterfront. In my opinion the principles of ESD support removal of the boatshed in the circumstances of this case because the land will be restored to a more natural state so far as practicable, with minimum intrusion of man made structures and provide for the public now and in the future a better environmental outcome. I accept the adjoining storm water utility makes the waterway less attractive and access to the foreshore more difficult but that "...does not mean that attempts to bring the foreshore nearer to its natural state are futile" J&R Cox planning and design Services Pty Ltd v Sutherland Shire Council (Appeal No: 11170 of 2000) Roseth SC 25 July 2001. 32Based on the evidence before me there can be no expectation under the current planning controls that further boatsheds will be developed or unauthorized boatsheds will remain within the Zone 16. Boatsheds are prohibited development under the zone so they cannot be approved. The planning controls require removal of an unauthorized structure before development is approved. 33The applicant has a swing mooring in the bay and therefore opportunity to continue to enjoy the bay and her boat. The removal of the boatshed does not deprive the applicant and her family of access to recreational boating or use of the waterway. Nor does it preclude the applicant from making application in the future for a boatshed, which complies with council's controls. I accept Ms Pinfold's evidence that council has consistently implemented cl 18 to declutter the waterfront when appropriate. Mindful of the incremental nature of the implementation of cl18 and the circumstances of this case, it is both fair and reasonable to impose the condition under s80A (1) (c) of the Act for the reasons outlined. Accordingly, after a consideration of the relevant matters in s79C (1) of the Act the Court makes the following orders: (1)The appeal is upheld. (2)Development consent is granted to DA 09/0685 subject to deferred commencement condition 1 and the other conditions originally imposed by the council. (3)An electronic version of the conditions is to be forwarded to the Court within 7 days of this judgment. (4)The exhibits are returned Susan Dixon Commissioner of the Court 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: 17 August 2011

Noun v Sutherland Shire Council

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