Poche and Anor v Manly Council

The evidence

The Court visited the site and surrounding area including a nearby property, 19A Oyama Avenue, where council granted deferred commencement consent, with the concurrence of DECCW, for the replacement and augmentation of existing foreshore stairs on 15 February 2011.
Mr N Skelton, for the applicant, and Mr N Carlile, for the council, provided ecological evidence on the potential impacts on the Little Penguin endangered population and critical habitat. Mr G Boston, for the applicant and Mr S Layman, for the council, prepared a joint planning report on the impact on the visual amenity of the Foreshore Scenic Protection Area, but were not required for cross examination. Mr D Logan, heritage consultant, for the applicant, prepared a Heritage Impact Statement and a Statement of Evidence but was not required for cross examination and the heritage issue was not pressed by council. Visual Impact
Mr Boston and Mr Layman disagree on whether the new stairs is "compatible, sympathetic and contextually appropriate, in terms of siting, materials and form to the surrounding area when viewed from the harbour and its immediate environs, including the adjoining foreshore and views of it from nearby public and private land". In forming their respective opinions, the experts viewed the stairs from various vantage points.
Mr Boston considered that the new stairs would not detrimentally impact on the visual amenity of the foreshore of the harbour. The stairs have not removed significant vegetation, preserve rock outcrops and are constructed of materials and finishes that blend into the vegetated rock escarpment. Most of the foreshore properties on both sides of Addison Road have structures and the new stairs are consistent with this established character and are anticipated within the foreshore area under MLEP 2013 and MDCP 2013.
Mr Layman considered the foreshore in the area to be in "a predominantly natural state" and that the stair "interrupts the visual continuity of the rock shelfs and the vegetation of the cliff face". The stairs are elevated in part due to the steepness of the cliff and are therefore difficult to conceal. The stair "adversely affects the view of the foreshore from Sydney Harbour because of its intrusive design" and does not meet the requirements of LEP 2013 or DCP 2013.
The planning experts did not address Sydney Harbour DCP but it was considered by Mr Logan who concluded that "the staircase is difficult to discern within the wide visual catchment of the western foreshore which includes large dwellings and an array of man made features. Given the varied characteristics of the backdrop when viewed from these parts of the public domain and the open, transparent, nature of the stair balustrade …. the staircase has no adverse visual impact." Impact on Little Penguin critical habitat
Mr Skelton and Mr Carlile agree that they do not know how penguins think but based on their experience in observing penguin behaviour they consider the main ecological issue is the impact on the Little Penguin Critical Habitat of the built structure and the on going use of the stairs by people and the potential use by animals. They agree that a temporary impact was caused during the construction of the new stairs but that the extent is unknown and not included in the assessment of the Application.
The experts agree that there is a penguin nest (Nest 310) on the site under about the mid point of the new stairs. The nest is known to have been used for nesting for three breeding seasons (2010/2011, 2011/2012 and early 2012/2013) in the 15 years that this part of the foreshore has been monitored. Mr Carlile considers that the nest could have been used before 2010, as the location of the nest above the rock platform would not easily be found. Also, in the three years of monitoring the nest the penguin pair produced two chicks, which suggests that they were experienced and may have used the nest earlier as new breeding pairs are seldom this successful in their early attempts.
Mr Carlile considers that the removal of vegetation and construction of the new stairs may have prevented the penguins using the nest in the later part of the 2012 season. He noted that signs of activity were present in September 2012 but had ceased by 16 October 2012, shortly after the works. There has been no activity in the 2013/2014 breeding season, which may be due to the loss of overhanging vegetation and the use of the stairs.
Mr Carlile's key concern is that if the stairs were used during the breeding season, people would be within five metres of the penguin nest. He acknowledged that, if inside the nest, the penguins may not be disturbed, but that juvenile penguins stand at the opening of the nest and could easily be disturbed and venture away from the nest. He was also concerned that the stairs would enable foxes to gain access from the upper part of the site to the foreshore. He noted that there are already other stairs, which facilitate this but that an additional stair would increase the risk.
Mr Carlile acknowledged that the Office of Environment and Heritage (OEH) had an informal policy which would generally permit the replacement of an existing stair provided there was no increase in intensity of use and the status quo was maintained. The previous applications for 10 and 10A Addison Road and 19A Oyama Avenue were examples of the implementation of this policy. However, in Mr Carlile's opinion, the existing stairs on the site had been in disrepair and disused for a number of years and consequently the new stairs would result in an intensification of use and a potential increase in impact on the critical habitat.
Mr Skelton considered the nest to be "low suitable nesting habitat" due to its location away from the foreshore, difficulty of access and shape, being long and narrow. He was unsure when the stairs fell into disrepair but considered it was around 2011. He did not accept that there was a connection between the nest not being used and the construction of the stairs and vegetation removal. Nor did he accept that contact with people would necessarily adversely impact on the Little Penguins and cited the example of Manly Wharf where people and Little Penguins interact on a regular basis. Nevertheless, he suggested mitigation measures that would reduce the potential for contact between the Little Penguin and people or animals using the stairs. These measures include restricting access at night, providing vegetation to overhang both sides of the steps to enable sheltered access from the foreshore to the nest, signage and no cats and dogs.
Mr Carlile considered access should also be restricted during the breeding season, unless a licence is obtained from OEH. He accepted, in principle, that the potential impacts from people using the stairs could largely be mitigated. Dogs and cats could be restricted, but the experts agree that there is nothing that can be done to restrict foxes from using the stairs. While there is no evidence of fox kills in the area, the stairs would provide an additional point of access and, in Mr Carlile's opinion, increase the risk to the Little Penguins.
The experts agreed that if the Application were to be refused, the Order should be amended to require a Construction Management Plan to address the timing and method of removing the stairs to minimise impact on the critical habitat. Submissions
Mr Staunton, for the applicant, submits that s149 of the EPA Act establishes a "remedial" regime which enables the new stairs to be regularised through approval of the Application. The powers of the Court in dealing with an appeal against the Application under s 149(f) are broad. He submits that the correct approach to dealing with the Application is for it to be assessed as a "notional development application" and that the relevant matters under s79C of the EPA Act should be considered, including the planning controls that would have applied to such an development application. Mr Seton, for the council, agrees with this approach.
Mr Staunton and Mr Seton agree that if the new stairs are found to have an acceptable impact, details of the mitigation measures should be prepared in consultation with the experts and the Order should then be amended to include the agreed/approved mitigation measures. Council should be directed to issue the Building Certificate in relation to the stairs shown in Exhibits B and C once the applicant complies with the Order. If the stairs are found to have an unacceptable impact, the Order should be amended to require a Construction Management Plan and revegetation and the Building Certificate should not be issued. Applicant's submissions
Mr Staunton submits that under Sydney Harbour DCP, the site is within Character Type 8 which identifies the area as having a "high level of built form" whereas the opposite side of Little Manly Cove is Character Type 1 which identifies the foreshores as being "subject to minimal development pressure and generally the shoreline and vegetation are well conserved." LEP 2013 and DCP 2013 also anticipate this form of development. The new stairs are similar to the existing stairs and will have an acceptable visual impact.
Approval of a development application for the stairs would have required the concurrence of OEH. The "policy" of the OEH and its predecessors, is to approve applications, which do not result in intensification in use. The proposal replaces existing stairs, which provided access to a single dwelling at 10 Addison Road. The new stairs will provide access to the new dwelling, which has amalgamated 10 and 10A Addison Road into a single lot. Consequently there is no intensification of use.
The council policy includes the objective that the harbour foreshore "be available to the public as of right either as foreshore reserve or public right of way over the privately owned land with frontage to the harbour foreshores". The Plan of Management for Manly Peace Park (Peace Park PoM) also includes an objective to provide open space linkage connecting harbour foreshores. Title information for a number of nearby properties, including the site, include a right of way in favour of council. LEP 2013 and SREP also include objectives to promote public access to the foreshore. These policies and their implementation by Council through obtaining rights of ways indicate that public access to the foreshore is encouraged. Furthermore, the foreshore is accessed by pedestrians, fishermen, sea crafts, which is facilitated by signage and access from Peace Park. In this context, it would be unreasonable to prevent the owners to be able to gain access to the foreshore from their site when such access is available to other people. Especially considering that most nearby properties have stair access to the foreshore and that on the site the new stairs are replacing an existing stair that has provided access to the foreshore since the 1930s.
The declaration of the site as part of Little Penguin Critical Habitat does not prohibit but regulates access to ensure impacts are minimised. The main impacts are people and animals using the stairs during the breeding season within five metres of a nest. Management measures would mitigate these impacts to an acceptable level. The measures would be beyond those required for other stairs, including the recent approval for 19A Oyama Avenue, which has no restriction on the use of the stair. Furthermore, the new stair at 19A Oyama Avenue replaced a dilapidated stair and the approval included a stair lift, which is an intensification of the use of a stair that is within five metres of known nests. Council's submissions
Mr Seton submits the new stairs will have a greater visual impact than the existing stairs as it is located in front of and obscures the rock face and therefore does not meet the requirements in cl 5.14 of Sydney Harbour DCP and the requirements of cl 6.9 of LEP 2013 and cl 5.4.1.1 of DCP 2013.
The removal of the existing stairs and construction of the new stairs has resulted in disturbance of the critical habitat and will continue to do so by enabling people and animals to access the foreshore within five metres of a known nest. Human activity may be able to be controlled through management measures but the new stairs will provide an additional access point for predators, particularly foxes, which cannot be controlled.
The concurrence of DEC (DA 342 of 2005) indicates that the existing stairs on the site fell into disrepair in about 2006. The stairs were not in use when the development application (DA 264 of 2010) for the house was approved in 2011. The development application did not seek to replace or re build the existing stairs and the later deferred commencement (DA 100 of 2012) for the retaining wall restricted access to the existing stairs. The Application is not for the repair of the existing stairs but for new stairs and would result in an intensification of use of the critical habitat. The Application can be distinguished from 19A Oyama Avenue where the existing stair was in use when the application was approved and generally maintained the same level of activity.
The known use of the nest on the site from 2009 correlates with when the existing stairs were not used and there was vegetation cover for the penguins to access to the nest. The removal of the vegetation and disruption during construction of the new stairs has resulted in the nest not being used since 2012. Although, if revegetated the nest may be used again as a suitable breeding site.
LEP 2013, SREP, council policy and Peace Park PoM promote public access to the foreshore but only in appropriate circumstances. The title information does not indicate that council has given authority for the right of ways to be used by people other than council and its officers and TSC Act regulates the use of land within the critical habitat.
If a development application for new stairs on the site were submitted either at the time the stairs were constructed or now, a consideration of the merits of the application and potential impacts on the critical habitat would result in refusal. Consequently, no benefit (and no penalty) should be gained from the construction of the stairs without approval. Findings
Based on the framework agreed to by the parties, in determining the "notional development application" under s79C, the Court is to take into consideration relevant matters, which include the environmental planning instruments and development control plans. Visual Impact
The stairs is within the Foreshore Scenic Protection Area and cl 6.9 relevantly provides: (1) The objective of this clause is to protect visual aesthetic amenity and views to and from Sydney Harbour, the Pacific Ocean and the foreshore in Manly. (2) This clause applies to land that is shown as "Foreshore Scenic Protection Area" on the Foreshore Scenic Protection Area Map. (3) Development consent must not be granted to development on land to which this clause applies unless the consent authority has considered the following matters: (a) impacts that are of detriment to the visual amenity of harbour or coastal foreshore, including overshadowing of the foreshore and any loss of views from a public place to the foreshore, (b) measures to protect and improve scenic qualities of the coastline, (c) suitability of development given its type, location and design and its relationship with and impact on the foreshore, (d) measures to reduce the potential for conflict between land-based and water-based coastal activities.
Clause 6.10 of LEP 2013 limits the type of development that can occur in the foreshore area. Waterway access stairs are permissible but consent must not be granted unless satisfied of matters that include "the appearance of any proposed structure, from both the waterway and adjacent foreshore area, will be compatible with the surrounding area". Clause 5.4.1.1 of DCP 2013 provides additional matters for consideration, which include that development must "not cause any change, visually, structurally or otherwise, to the existing natural rocky harbour foreshore".
Sydney Harbour DCP identifies the character of this part of the foreshore as "high level of built form" and stairs providing access to the foreshore which cross the rock face have existed on the site since the 1930s. The new stairs have a marginally greater visual impact as previously part of the stair was incorporated into the rock face. However, this impact of itself would not warrant refusal of the Application and can be addressed by further vegetation to soften and partially screen the stairs. With this measure, the new stairs would be compatible with the surrounding area, and, given that they replaced an existing stair, would not change the natural rocky foreshore or offend the requirements of cl 6.9 of LEP 2013 or cl 5.4.1.1 of DCP 2013. Impact on Little Penguin critical habitat
The site is identified as "Biodiversity" on the Terrestrial Biodiversity Map and cl 6.5 of LEP 2013 provides: 6.5 Terrestrial biodiversity (1) The objective of this clause is to maintain terrestrial biodiversity by: (a) protecting native fauna and flora, and (b) protecting the ecological processes necessary for their continued existence, and (c) encouraging the conservation and recovery of native fauna and flora and their habitats. (2) This clause applies to land identified as "Biodiversity" on the Terrestrial Biodiversity Map. (3) Before determining a development application for development on land to which this clause applies, the consent authority must consider: (a) whether the development is likely to have: (i) any adverse impact on the condition, ecological value and significance of the fauna and flora on the land, and (ii) any adverse impact on the importance of the vegetation on the land to the habitat and survival of native fauna, and (iii) any potential to fragment, disturb or diminish the biodiversity structure, function and composition of the land, and (iv) any adverse impact on the habitat elements providing connectivity on the land, and (b) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development. (4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that: (a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or (b) if that impact cannot be reasonably avoided by adopting feasible alternatives - the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised - the development will be managed to mitigate that impact.
Clause 6.10 of LEP 2013 provides that consent must not be granted if the development will cause an adverse effect on fauna habitats. Clause 5.4.2 of DCP 2013 requires that development within a critical habitat must consider the likely impacts and whether a Species Impact Statement is required (SIS). Mr Skelton prepared a SIS to accompany the Application.
Mr Carlile has accepted for this application, previous applications for the site and the development application for 19A Oyama Avenue, that if the development does not increase the intensity of use within the critical habitat, then the impact may be acceptable. Furthermore, he accepts, in principle, that mitigation measures, if implemented, could address the potential impacts from the use of the stairs by people but maintains his concern that the stairs will provide an additional access point for foxes.
The previous applications for the site for a residential flat building clearly would have resulted in an intensification of the use of the site and the concurrence of DEC/DECCW did not permit use of the existing stairs, which were to be removed. The application for 19A Oyama, although it included a stair lift, did not involve a marked intensification of the use of the stairs and concurrence of DECCW was granted on this basis.
The existing stairs are likely to have not been used for a significant period due to their dilapidated condition, the period during which the dwelling at 10 Addison Road was vacant and then demolished and when the new house was under construction. The parties disagree on the date 10 Addison Road became vacant but the aerial photos (Exhibit 2) show that by 2007, it and 10A Addison Road had been demolished and consequently the existing stairs would not have been used. The new stairs will result in intensification of use since at least 2007, but there has been a stair on the site since the 1930s to provide access to the foreshore from a single dwelling, which would continue to be the situation if the new stairs are approved. I accept that there is not a material intensification of use, but nonetheless, the stairs are not repair of existing stairs but are new stairs and their use must be managed to mitigate potential impacts on the critical habitat.
LEP 2013, SREP and council policies encourage public access to the foreshore. However, such access needs to be limited by the constraints posed by the Critical Habitat. People are able to access the rock shelfs from the water, but without the stairs would not be able to access the nest on this site. While people are able to access the foreshore from Addison Road and Peace Park, there are no stairs or paths that facilitate this access, other than a makeshift ladder that is not, as I understand, provided by council. However, the declaration of the area as a Little Penguin Critical Habitat does not prohibit access but rather regulates it to minimise impacts.
The question before the Court is whether the use of the new stairs by people and animals will impact on the Little Penguin Endangered Community and its critical habitat and whether potential impacts can be mitigated to an acceptable level through management measures.
I accept Mr Carlile's evidence that the nest is suitable nesting habitat as it is known to have been used by successful breeding pairs for at least three years out of the 15 years that this part of the foreshore has been monitored. The use of the nest appears to have coincided with the period that the stairs were not used and the vegetation was established to provide access to the nest. There is no reason to consider that the nest would not be used again if the vegetation were re-established and the breeding penguins not disturbed.
The new stairs are within five metres of the nest. To knowingly be within five metres of a Little Penguin is an offence under the TSC Regulation. If the stair is used during the breeding season it is likely to disturb the penguins, which in this area, unlike Manly Wharf, are unaccustomed to human activity. This would adversely impact on the Little Penguin Community.
During the hearing, the applicant has proposed mitigation measures that include a requirement that the stairs not be used at night and during part of the breeding season, which could lesson the likelihood that people would be near the nest. The mitigation measures were briefly discussed by the experts but details of the mitigation measures have not been provided and would need to be finalised, prior to the Order being amended and the Application approved.
Reliance on a management regime to prevent adverse impacts on the Little Penguins is less certain than removal of the stairs as it relies on implementation by current and future owners of the site. Furthermore, while vegetation can be established to cover the stairs and provide sheltered access for the penguins to the nest, there may be an inherent conflict in having vegetation on stairs where people are to pass, albeit only at certain times of the year. The management measures do not prevent access for foxes, however, there are other stairs in the area, no evidence of fox attacks and the new stairs would present a similar risk to that of the existing stairs, which were not required to be demolished by the either the development consent for the dwelling (DA 264 of 2010) or the deferred commencement consent (DA 100 of 2012).
For these reasons, I am not satisfied that a "notional development application", without detailed mitigation measures, would meet the objectives of cl 6.5 of LEP 2013. In particular, the new stairs, without a management regime, will not encourage the conservation and recovery of the Little Penguin Endangered Community and its habitat. The new stairs will result in an adverse impact on the condition, ecological value and significance of the Little Penguins, unless managed to minimise such impact. Further information would need to be provided before I can be satisfied that the impacts can be so managed to an acceptable degree. Given, the agreement of the experts that measures to mitigate the impact of humans are, in principle, feasible and the relatively low risk posed by foxes. I will allow the Applicant to provide details of the mitigation measures and landscaping to screen the stairs and the manner in which the Order is to be amended. The mitigation measures are to be discussed between the experts and, if not agreed, the reasons for disagreement are to be provided. A suitable arrangement for cost to council should be agreed between the parties.
The mitigation measures are to include: i. no access to the stairs at night or during the breeding season, unless a licence from OEH is obtained; ii. a management plan to reinstate vegetation to cover the base of the stairs to provide sheltered access for the penguins to Nest 310; iii. signage; iv. no cats and dogs on the site; v. gates to restrict access.
If the applicant chooses to provide the information and it is found to be satisfactory, the Order will be amended to require compliance with the mitigation measures and council directed to issue the Building Certificate in relation to the stairs shown in Exhibits B and C.
If the applicant chooses not to provide the information, or if I remain unsatisfied, the Order will be amended to require demolition of the stairs subject to a Construction Management Plan and revegetation and the Application will be refused. Precedent and public interest
The parties held different opinions on whether approval of the Application would be a precedent for other stairs in the foreshore and be in the public interest. The new stairs provide access to the foreshore for a single dwelling and are replacing existing stairs that have, in the past, also provided access to the foreshore for a single dwelling. Given these circumstances, approval would not be a precedent for other applications, particularly if a new stair were proposed where none currently existed or if the proposal were to increase the intensity of use. If the matters, outlined above, can be satisfactorily addressed, the public interest would be addressed.

Planning controls

Clause 11(1) of the Threatened Species Conservation Act 1995 (TSC Act) provides: (1) A population is eligible to be listed as an endangered population if, in the opinion of the Scientific Committee, it is facing a very high risk of extinction in New South Wales in the near future, as determined in accordance with criteria prescribed by the regulations.
Clause 37(1) of the TSC Act provides: (1) The whole or any part or parts of the area or areas of land comprising the habitat of an endangered species, population or ecological community or critically endangered species or ecological community that is critical to the survival of the species, population or ecological community is eligible to be declared under this Part to be the critical habitat of the species, population or ecological community.
On September 2002, the site was declared to be within 'Habitat B' of the Critical Habitat for the Endangered Population of Little Penguins (Eudyptula minor) at Manly. On the site, the listing is from the cliff top to the mean high water mark.
Part 3 of the Threatened Species Conservation Regulation 2010 (TSC Regulation) refers to the Little Penguin Critical Habitat. It includes the following definitions in cl 26: Little Penguin breeding season means the period from 1 July in any year until 28 February in the following year (both dates inclusive). Little Penguin critical habitat means the area of land declared to be the critical habitat of the endangered population of Little Penguin at North Sydney Harbour, as described in the notification published in the Gazette under section 47 of the Act (as amended from time to time under section 49 of the Act).
Part 3 of the TSC Regulation includes restrictions within the Little Penguin Critical Habitat, including not bringing companion animals (cl 27), not fishing during the breeding season (cl 29), no interference with burrows or nesting boxes (cl 30), and that "a person must not knowingly be within 5 metres of a Little Penguin while the Little Penguin is on land in the Little Penguin critical habitat" (cl 31).
Section 121ZK (4) of the EPA Act provides the following powers to the Court on hearing an appeal against the Order: On hearing an appeal, the Court may: (a) revoke the order, or (b) modify the order, or (c) substitute for the order any other order that the person who gave the order could have made, or (d) find that the order is sufficiently complied with, or (e) make such order with respect to compliance with the order as the Court thinks fit, or (f) make any other order with respect to the order as the Court thinks fit.
Similarly, Section 149F(3) provides the following discretion to the Court in dealing with the Application appeal: On hearing the appeal, the Court may do any one or more of the following: (a) it may direct the council to issue a building certificate in such terms and on such conditions as the Court thinks fit, (b) it may revoke, alter or confirm a notice under section 149C, (c) it may make any other order that it considers appropriate.
Council accepted the survey (Exhibit C), structural engineer's certificate (Exhibit D) and geotechnical report (Exhibit E) submitted to support the Application. The parties agreed that a development application was not required for the use of the stairs, that the Application should be assessed as a "notional development application" (see Ireland v Cessnock [1999] NSWLEC 250, (1999) LGERA 311 and Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276) and that the relevant matters under s79C of the EPA Act should be considered, including the planning controls that would have applied to such a development application.
If a development application were lodged prior to the new stairs being constructed in 2012, Manly Local Environmental Plan 1988 (LEP 1988) would have been the relevant instrument. Manly Local Environmental Plan 2013 (LEP 2013) is the instrument that now applies to the site. In substance, there is little difference between the controls that would apply to this application. Given that the Application was lodged at a time when LEP 2013 had commenced, it is the relevant instrument under which the "notional development application" should be assessed.
Under LEP 2013, the site is within the E4 Environmental Living Zone and the development is permissible with consent.
Clause 2.3(2) of LEP 2013 requires that the consent authority must have regard to the objectives of the zone in determining a development application. The objectives of the E4 Environmental Living Zone are: • To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values. • To ensure that residential development does not have an adverse effect on those values. • To protect tree canopies and ensure that new development does not dominate the natural scenic qualities of the foreshore. • To ensure that development does not negatively impact on nearby foreshores, significant geological features and bushland, including loss of natural vegetation. • To encourage revegetation and rehabilitation of the immediate foreshore, where appropriate, and minimise the impact of hard surfaces and associated pollutants in stormwater runoff on the ecological characteristics of the locality, including water quality. • To ensure that the height and bulk of any proposed buildings or structures have regard to existing vegetation, topography and surrounding land uses.
The Harbour Foreshore is identified as a heritage item (cl 5.10) and the site is identified as "Biodiversity" in the Terrestrial Biodiversity Map (cl 6.5) and is within the Foreshore Scenic Protection Area (cl 6.9) under LEP 2013.
Manly Development Control Plan 2013 (DCP 2013) includes provisions that would be relevant to the assessment of a development application for the new stairs and the issues in dispute between the parties. These include Threatened Flora and Fauna Assessment of Significance Report (cl 2.1.15) and Environmentally Sensitive Lands (cl 5.4) as the development is in a Foreshore Scenic Protection Area (cl 5.4.1) and a Threatened Species Critical Habitat (cl 5.4.2).
Clause 20 of Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP) requires that a number of matters must be taken into account, which include: Biodiversity, ecology and environment protection (cl 21); Public access to foreshores and waterways (cl 22); and Foreshore and waterway scenic quality (cl 25).
Sydney Harbour Foreshore Development Control Plan (Sydney Harbour DCP) applies to development proposals within the foreshore and waterways area identified in the SREP. Section 3 provides performance criteria for development within Landscape Character Type 8 and s5.14 provides guidelines for stairs.

At a glance

Court

Decision date

Source

Judgment (4 paragraphs)

Parties

Cases Cited (3)

Cited By (2)