Ralph Lauren Pty Ltd v New South Wales Transitional Coastal Panel; Stewartville Pty Ltd v New South Wales Transitional Coastal Panel; Robert Watson v New South Wales Transitional Coastal Panel

Land and Environment Court (NSW)|2018-10-18|Before: Preston CJ

Coastal land owners propose to repair sea walls

Three owners of coastal land at Byron Bay wish to repair failing sea walls on Belongil Beach in order to protect their properties from coastal hazards. The three land owners are Ralph Lauren Pty Ltd ("Ralph Lauren"), which owns 1 and 1A Don Street, Byron Bay, Stewartville Pty Ltd ("Stewartville"), which owns 6A, 6B and 8 Childe Street, Byron Bay, and Mr Watson ("Watson") who owns 44 and 48 Childe Street, Byron Bay.
The land owners need to obtain development consent in order to carry out the works to repair these sea walls. The land owners lodged development applications with the consent authority, the New South Wales Coastal Panel, on 19 January 2017. Subsequently, there were changes in the legislative and planning provisions, but by reason of savings and transitional provisions, the former legislative and planning provisions continue to apply. The name of the consent authority was changed from the NSW Coastal Panel to the NSW Transitional Coastal Panel ("the Panel"), but the Panel has the same functions.

Works proposed by Ralph Lauren

Ralph Lauren's development application is for the repair of the existing rock and concrete rubble sea wall, located on Ralph Lauren's land at 1 and 1A Don Street and an adjacent road reserve known as "the Esplanade", which is owned by NSW Department of Industry ("Crown Land"). There is no road formed on the Esplanade and it appears as part of the beach. The existing sea wall consists of rock rubble, concrete cubes and demolition concrete slabs. The origin of the sea wall is unknown. It is amongst a series largely unapproved, ad hoc rock/rubble walls along Belongil Beach.
Over time, the existing sea wall has slumped and rock and concrete from the upper sections of the sea wall have been displaced downward, over the lower sections of the sea wall and seaward. The proposed works are to restack any loose armour and to restore the upper sections of the sea wall where the rocks and concrete rubble have been displaced. This will involve excavating below present surface level (approximately 2m Australian Height Datum (AHD)) to approximately -1m AHD and removing any displaced rocks or concrete. The displaced rocks and suitable concrete blocks will be restacked on the mid and upper slope of the sea wall. Any unsuitable sections of concrete will be either resized into smaller useable sizes or removed. Additional rock will also be imported from local quarries.
The repaired sea wall will consists of three layers: a filter layer consisting of smaller rocks; a secondary armour layer of rock fill and concrete and a primary armour layer of larger rocks and concrete. Between -1m AHD and 1m AHD, Ralph Lauren will repair the primary layer of the sea wall. Between 1m AHD and 3m AHD, Ralph Lauren will repair the primary layer and reinstate or reposition rocks in the secondary layer of the sea wall. Above 3m AHD, all three layers are to be reinstated, up to the crest of the sea wall at 6m AHD.
The coastal engineer for the applicants, Mr Jackson, estimates that the total amount of imported rock for the proposed works will not exceed 470t. Of this imported rock, 20% will be used for the filter layer and will consist of road base or clay/shale (with less than 50% clay); 40% will be used for the secondary layer and will consist of sound basalt or graywacke of a suitable quality, sized between 200kg and 500kg; and 40% will be used for the primary layer and will consist of sound basalt or graywacke of a suitable quality, sized between 1.5t and 1t.
The repaired sea wall will extend for the length of the seaward boundary of Ralph Lauren's land, for approximately 41m. The crest of the repaired sea wall (at 6m AHD) will be located on the seaward boundary of Ralph Lauren's land. The repaired sea wall will slope downwards (at a ratio of 1V:1.5H) from the seaward boundary of Ralph Lauren's land to the toe of the existing sea wall on the Esplanade, which is estimated to be below -2m AHD. Ralph Lauren does not propose to undertake any works below -1m AHD. The repair works will be partly on Ralph Lauren's land (approximately 2.5m in width) and will extend for approximately 10m of the width of the sea wall on the Esplanade.
The proposed works will also include the construction of curved "tie ins" from the northernmost and southernmost tips of the repaired sea wall. At the northernmost tip, the tie in will extend for 10m northwest of the repaired sea wall to meet an existing geobag wall on adjacent Crown Land, being Lots 3 and 4 Section 2 DP 1623 (part of the "Old Jetty Site"). At the southernmost tip, the tie in will extend for 10m southeast of the repaired sea wall to meet an existing geobag wall located on the Esplanade and Don Street, a public road owned by Byron Shire Council ("The Council"), which provides pedestrian access between the beach.
The tie ins will create a smooth transition between the crest of the repaired sea wall and the crests of the adjacent geobag walls (at approximately 3.5m AHD). They will be constructed by reinstating displaced rocks from the existing sea wall. Rocks in the tie ins will be generally between 1.5t and 5t and will be well interlocked. Existing geobags will not be damaged by the proposed works. The tie in to the southeast of the repaired sea wall will retain the pedestrian access between the beach and Don Street.

Works proposed by Watson

Watson's development application is for the repair of the existing rock rubble sea wall, located on Watson's land at 44 and 48 Childe St, a 10m wide road reserve owned by the Council and the Esplanade, seaward of the Council's road reserve. There is no road formed on the road reserve owned by the Council and it also appears as part of the beach. The existing sea wall is an ad hoc wall of rocks and boulders. The coastal engineering experts estimated that the sea wall was constructed in around 1977.
Watson proposes to undertake similar works to those proposed by Ralph Lauren to repair the existing sea wall, which has also slumped over time. These works include excavating below sand level (approximately 2m AHD) to approximately -1m AHD and removing any displaced rocks. The repaired sea wall will be constructed by restacking these displaced rocks and some additional imported rock.
The repaired sea wall will consists of the same three layers proposed by Ralph Lauren. Between -1 and 1m AHD, Watson will repair the primary layer of the sea wall. For the part of the sea wall on and seaward of 44 Childe Street, Watson will reinstate all three layers from 1m AHD to 6.5m AHD (the crest of the sea wall). For the part of the sea wall on and seaward of 48 Childe Street, Watson will repair the primary layer and reinstate and reposition rocks on the secondary layer between 1m AHD and 5m AHD, and reinstate all three layers from 5m AHD to 6.5m AHD (the crest of the sea wall).
Mr Jackson estimates that the total amount of imported rock for the proposed works will not exceed 320t. Of this imported rock, 10% will be used for the filter layer and will consist of road base or clay/shale (with less than 50% clay); 40% of will be used for the secondary layer and will consist of sound basalt or graywacke of a suitable quality, sized between 200kg and 500kg; and 50% will be used for the primary layer and will consist of sound basalt or graywacke of a suitable quality, sized between 1.5t to 1t.
The repaired sea wall will extend for the length of the seaward boundary of Watson's land, for approximately 60m. The crest of the repaired sea wall will be on Watson's land. The repaired sea wall will slope downwards (at a ratio of 1V:1.5H) to the toe of the existing sea wall on the Esplanade, which is estimated to be around -2m AHD. Watson does not propose to undertake any works below -1m AHD. At 44 Childe Street, the width of the repair works will extend for approximately 3m on Watson's land, the 10m of the Council's road reserve and 1.5m on the Esplanade. At 48 Childe Street, the width of the repair works will extend for approximately 5m on Watson's land and 9m on the Council's road reserve.
The works will move the repaired sea wall above -1m AHD further landward than the existing sea wall. For the part of the sea wall at 44 Childe Street, the repair works will move the sea wall above -1m AHD further landward by approximately 3.5m. For the part of the sea wall at 48 Childe Street, the repair works will move the sea wall above -1m AHD further landward by approximately 1m.
Watson also proposes to construct curved tie ins from the northernmost and southernmost tips of the repaired sea wall. At the northernmost tip, the tie in will extend for 5m northwest of the repaired sea wall to meet the adjacent rock rubble wall located on the Council's road reserve and the Esplanade, along the seaward boundary of adjacent private land at Lot 2 DP862599. At the southernmost tip, the tie in will extend for 40m southeast of the repaired sea wall to meet the adjacent rock rubble wall located on the Council's road reserve and Crown Land on the Old Jetty Site and the Esplanade.
The tie ins will create a smooth transition between the crest of the repaired sea wall and the crests and toes of the adjacent rock walls. The tie ins will be constructed by replacing displaced rocks located during the repair works. Rocks in the tie ins will be generally between 1.5t and 5t and will be well interlocked.
There is a large Norfolk Island Pine (Araucaria heterophylla) on the Council's road reserve, on the shared boundary of Watson's land at 44 Childe Street and the adjacent private property at Lot 2 DP 862599. The Norfolk Island Pine is within the repair footprint. Watson has agreed to the Court imposing conditions of consent requiring measures to be taken to ensure that the proposed works do not adversely impact the Norfolk Island Pine tree, including for a report to be obtained from an arborist to assess the implications of the proposed works on the Norfolk Island Pine tree and to propose protection measures.

Works proposed by Stewartville

Stewartville's development application is for the repair of the existing rock rubble sea wall, wholly located on the unformed Esplanade, seaward of the boundary of Stewartville's land at 6B Childe Street. The existing sea wall was designed by Mr Jackson in 1999. It consists of a primary armour layer of boulders sized between 0.5t and 5t and a secondary armour layer of rocks sized between 100kg and 500kg, over a geotextile filter layer. Over time the existing sea wall has slumped and rocks have been displaced.
Stewartville proposes to construct the repaired sea wall in a similar manner to Ralph Lauren and Watson, by excavating below sand level, approximately 2m AHD, to approximately -1m AHD, removing any displaced rock, and restacking the displaced rock and some additional imported rock. Between -1m and 3.5m AHD, Stewartville proposes to repair the primary layer of the sea wall. Between 3.5m AHD and 5m AHD (the crest of the sea wall), Stewartville proposes to reinstate all layers of the sea wall.
Mr Jackson estimates that the total amount of imported rock will not exceed 126t. The imported rock will be sound basalt and graywacke of suitable quality, of which 10% will be used for the secondary layer and will be sized between 10kg and 500kg and 90% will be used for the primary layer and will be sized between 1.5t and 5t.
The repaired sea wall will extend for the length of the seaward boundary of Stewartville's land, for approximately 19.7m. The repaired sea wall will slope downwards (at a ratio of 1V:1.5H) to the toe of the existing sea wall, which is estimated to be around -2m AHD. Stewartville does not propose to undertake any works below -1m AHD. The width of the repair works on the sea wall will be approximately 11.5m.
The works will move the repaired sea wall above -1m AHD approximately 1m further landward than the existing sea wall.
Stewartville proposes to construct curved tie ins from the northernmost and southernmost tips of the repaired sea wall. At the northernmost tip, the tie in will extend for 10m northwest of the repaired sea wall to meet the adjacent rock rubble wall located on the Esplanade, seaward of the boundary of adjacent private land at Lot 34 Section 3 DP 1623. At the southernmost tip, the tie in will extend for 10m southeast of the repaired sea wall to meet the adjacent rock rubble wall located on the Esplanade, seaward of the boundary of adjacent private land at Lots 29 to 31 Section 3 DP 1623.
The tie ins will be constructed in the same manner proposed by Watson, outlined in [23] above.

Construction, maintenance and decommissioning works proposed by Ralph Lauren, Watson and Stewartville

The applicant land owners propose to use the existing vehicle track across Lots 10 to 12 and Lots 69 to 72 Section 2 DP 1623 (part of the Old Jetty Site) and the beach on the Esplanade for vehicular access to the sea walls during construction, including for transporting rocks/fill and excavators to the sea walls. The applicants will import sand to construct a short ramp from the Old Jetty Site onto the beach on the Esplanade. The applicants have agreed to the Court imposing a condition of consent that the applicants will not traverse across the Old Jetty Site with vehicles at times when the sand level of the beach is so low that significant works would be required to allow heavy vehicles to safely access and exit the beach.
During construction, the applicants will fence off an area of the existing vehicle track of at least 1.5m wide to maintain safe pedestrian access to the beach. Road safety signage will be placed along Childe Street. The applicants have agreed to the Court imposing a condition of consent that the repair works will be carried out in a coordinated fashion such that the use of the vehicle track is reduced to one period of time rather than prolonged over separate intervals.
The duration of construction will be 10 days for the repair works proposed by Ralph Lauren, 7 days for the repair works proposed by Watson and 3 days for the repair works proposed by Stewartville. The proposed hours for construction are 7am to 5pm Monday to Friday and 8am to 1pm on Saturday, with no construction work to be undertaken on Sundays, public holidays or Saturdays adjacent to certain holidays specified in the conditions of consent.
During construction, the applicants will construct safety fences around the seaward boundaries of the sea walls (including the tie ins). The safety fences will be constructed in an incremental fashion, so as to minimise the area fenced at any point in time. Safe public access along the shore will be retained all times, including during high tides.
Following the construction of the repaired sea walls, the applicants propose to undertake certain maintenance works to maintain the sea walls, to ensure public safety and to recover and reinstate rocks that are dislodged from the sea walls.
The applicants have agreed to the Court imposing conditions of consent providing for decommissioning of the repaired sea walls if certain conditions are met, including if a proposal by a government authority is lawfully approved for the implementation of coastal protection works which provide for the protection of all private property and public land continuously along the coastal zone of Belongil Beach.

The proposed works are development

"Development" for the purposes of the EPA Act includes "the erection of a building" and "the carrying out of a work": s 1.5 of the EPA Act. The "erection of a building" is defined in s 1.4 to include: "(a) the rebuilding of, the making of alterations to, or the enlargement or extension of, a building, or (b) the placing or relocating of a building on land, or (c) enclosing a public place in connection with the construction of a building…" A "building" is defined to include "part of a building" and also "any structure or part of a structure".
The "carrying out of a work" is defined in s 1.4 to include: "(a) the renewal of, the making of alterations to, or the enlargement or extension of, a work, or (b) enclosing a public place in connection with the carrying out of a work."
"Work" is defined to include "any physical activity in relation to land that is specified by a regulation to be a work for the purposes of this Act, but does not include a reference to any activity that is specified by a regulation not to be a work for the purposes of this Act."
The stacking and restacking of rocks and the placement and replacement of earth and other material to form the walls on Belongil Beach may not involve the erection of a building within the meaning of those terms in the EPA Act: see Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd [2018] NSWCA 240 at [97], [98] and [137]. These physical activities would, however, involve the carrying out of a work, as would the enclosure by way of a safety fence of part of the public beach in connection with carrying out the works.

The legal framework for determining the development applications

Section 4.2(1) (formerly s 76A(1)) of the EPA Act provides that: "If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument."
At the time the land owners lodged their development applications in January 2017, three environmental planning instruments applied to the land on which the proposed works are to be carried out, being State Environmental Planning Policy 71 Coastal Protection ("SEPP 71"), State Environmental Planning Policy (Infrastructure) 2007 ("Infrastructure SEPP") and Byron Local Environmental Plan 1988 ("Byron LEP 1988").
SEPP 71 and the Infrastructure SEPP applied until 3 April 2018 when State Environmental Planning Policy (Coastal Management) 2018 commenced. Clause 21(1) of the Coastal Management SEPP provides: "The former planning provisions continue to apply (and this Policy does not apply) to a development application lodged, but not finally determined, immediately before the commencement of this Policy in relation to land to which this Policy applies."
The "former planning provisions" are defined in cl 21(4) of the Coastal Management SEPP to mean: "(a) the provisions of each of the following Policies as in force immediately before the Policy's repeal: (i) State Environmental Planning Policy No 14 - Coastal Wetlands, (ii) State Environmental Planning Policy No 26 - Littoral Rainforests, (iii) State Environmental Planning Policy No 71 - Coastal Protection, and (b) the provisions of State Environmental Planning Policy (Infrastructure) 2007 that would be in force if that Policy had not been amended by this Policy."
The effect is that the provisions of SEPP 71 and the Infrastructure SEPP continue to apply to the land owners' development applications lodged before the repeal date.
Byron LEP 1988 continues to apply, rather than the current Byron Local Environmental Plan 2014 (Byron LEP 2014), because the land zoning map in Byron LEP 2014 indicates that the whole of Belongil Spit, including the land on which the works are proposed to be carried out, is a "deferred matter". As a consequence, Byron LEP 2014 does not apply and Byron LEP 1988 continues to apply.
Both the Infrastructure SEPP and Byron LEP 1988 specify that certain types of coastal protection works require development consent.
Clause 129A(1) and (2) of the Infrastructure SEPP provides that: "(1) Development for the purposes of a sea wall or beach nourishment may be carried out by any person with consent on the open coast or entrance to a coastal lake. (2) If a coastal zone management plan does not apply to the land on which any such development is to be carried out, the Coastal Panel has the function of determining a development application for development to which this clause applies."
The proposed works involve development for the purposes of a "sea wall" on the "open coast". As there is no coastal zone management plan that applies to the land on which the proposed works are to be carried out, the Panel is the consent authority to determine the development application. The Court on appeal exercises the Panel's functions as consent authority.
Byron LEP 1998 zones the land owners' properties 7(f2) Urban Coastal Lands (f2) and the public land of Belongil Beach 7(f1) Coastal Lands (f1). Although most of the proposed works will be carried out on public land in zone 7(f1), some works will be carried out on the private properties of Ralph Lauren and Watson, which are in zone 7(f2).
In zone 7(f1), development for the purpose of "beach and coastal restoration works" is permitted only with development consent. "Beach and coastal restoration works" are defined in the Dictionary to Byron LEP 1988 to mean "structures or works to restore the coastline from the effects of coastal erosion". The land owners' intention in carrying out the proposed works is to protect the land owners' properties on the coastline from the effects of coastal erosion.
In zone 7(f2), development for a purpose other than a purpose specified as permitted without development consent or a purpose that is prohibited is permitted only with development consent. Development for the purpose of "sea walls" or "beach and coastal restoration works" is not specified as being permitted without consent or being prohibited, and is therefore permitted only with development consent.
Various legislative and planning provisions regulate the determination of the development applications made by the land owners. Two legislative and planning provisions specify preconditions that must be satisfied before development consent can be granted.
Section 55M of the Coastal Protection Act 1979 sets out preconditions to the granting of development consent for coastal protection works. Although the Coastal Protection Act was repealed by the Coastal Management Act 2016 on 3 April 2018, cl 5 of Sch 3 of the Coastal Management Act 2016 provides: "Subject to this Schedule and the regulations: (a) anything begun before the repeal date under a provision of the former Act for which there is a corresponding provision in this Act may be continued and completed under the former Act as if this Act had not been enacted, and (b) subject to paragraph (a), anything done under a provision of the former Act for which there is a corresponding provision in this Act (including anything arising under paragraph (a)) is taken to have been done under the corresponding provision of this Act."
This savings and transitional provision has the effect that the land owners' development applications, which were lodged before the repeal date, could be continued and completed under the Coastal Protection Act.
Section 55M of the Coastal Protection Act provides: "(1) Consent must not be granted under the Environmental Planning and Assessment Act 1979 to development for the purpose of coastal protection works, unless the consent authority is satisfied that: (a) the works will not over the life of the works: (i) unreasonably limit or be likely to unreasonably limit public access to or the use of a beach or headland, or (ii) pose or be likely to pose a threat to public safety, and (b) satisfactory arrangements have been made (by conditions imposed on the consent) for the following for the life of the works: (i) the restoration of a beach, or land adjacent to the beach, if any increased erosion of the beach or adjacent land is caused by the presence of the works, (ii) the maintenance of the works. (2) The arrangements referred to in subsection (1) (b) are to secure adequate funding for the carrying out of any such restoration and maintenance, including by either or both of the following: (a) by legally binding obligations (including by way of financial assurance or bond) of all or any of the following: (i) the owner or owners from time to time of the land protected by the works, (ii) if the coastal protection works are constructed by or on behalf of landowners or by landowners jointly with a council or public authority - the council or public authority, Note. Section 80A (6) of the Environmental Planning and Assessment Act 1979 provides that a development consent may be granted subject to a condition, or a consent authority may enter into an agreement with an applicant, that the applicant must provide security for the payment of the cost of making good any damage caused to any property of the consent authority as a consequence of the doing of anything to which the consent relates. (b) by payment to the relevant council of an annual charge for coastal protection services (within the meaning of the Local Government Act 1993). (3) The funding obligations referred to in subsection (2) (a) are to include the percentage share of the total funding of each landowner, council or public authority concerned."
"Coastal protection works" are defined in s 4(1) of the Coastal Protection Act to mean "activities or works to reduce the impact of coastal hazards on land adjacent to tidal waters and includes sea walls, revetments, groynes and beach nourishment."
The preconditions of s 55M are jurisdictional: the Court, exercising the functions of the consent authority, must form the requisite opinions of satisfaction about the matters in s 55M(1) in order to enliven the power in s 4.16 of the EPA Act to grant consent to development for the purpose of coastal protection works.
Clause 88(3) of Byron LEP 1988 sets out similar preconditions: "Development consent must not be granted to development on land that is wholly or partly within the coastal zone unless the consent authority is satisfied that: (a) the proposed development will not impede or diminish, where practicable, the physical, land-based right of access of the public to or along the coastal foreshore, and (b) if effluent from the development is disposed of by a non-reticulated system, it will not have a negative effect on the water quality of the sea, or any beach, estuary, coastal lake, coastal creek or other similar body of water, or a rock platform, and (c) the proposed development will not discharge untreated stormwater into the sea, or any beach, estuary, coastal lake, coastal creek or other similar body of water, or a rock platform, and (d) the proposed development will not: (i) be significantly affected by coastal hazards, or (ii) have a significant impact on coastal hazards, or (iii) increase the risk of coastal hazards in relation to any other land."
Section 4.15 of the EPA Act specifies the relevant matters that must be considered in determining the development applications, including the provisions of any environmental planning instrument (s 4.15(1)(a)), the likely environmental impacts of the development the subject of the development application on the natural and built environments (s 4.15(1)(b)), the suitability of the site for the development (s 4.15(1)(c)), any submissions made in accordance with the EPA Act or Environment Planning and Assessment Regulation 2000 (s 4.15(1)(d)) and the public interest (s 4.15(1)(e)).
Three environmental planning instruments specify relevant matters to be considered in determining the development application.
Clause 7(b) of SEPP 71 (which continues to apply to the development applications) requires a consent authority to take into account the matters for consideration set out in cl 8 of SEPP 71. The matters for consideration set out in cl 8 are: "(a) the aims of this Policy set out in clause 2, (b) existing public access to and along the coastal foreshore for pedestrians or persons with a disability should be retained and, where possible, public access to and along the coastal foreshore for pedestrians or persons with a disability should be improved, (c) opportunities to provide new public access to and along the coastal foreshore for pedestrians or persons with a disability, (d) the suitability of development given its type, location and design and its relationship with the surrounding area, (e) any detrimental impact that development may have on the amenity of the coastal foreshore, including any significant overshadowing of the coastal foreshore and any significant loss of views from a public place to the coastal foreshore, (f) the scenic qualities of the New South Wales coast, and means to protect and improve these qualities, (g) measures to conserve animals (within the meaning of the Threatened Species Conservation Act 1995) and plants (within the meaning of that Act), and their habitats, (h) measures to conserve fish (within the meaning of Part 7A of the Fisheries Management Act 1994) and marine vegetation (within the meaning of that Part), and their habitats (i) existing wildlife corridors and the impact of development on these corridors, (j) the likely impact of coastal processes and coastal hazards on development and any likely impacts of development on coastal processes and coastal hazards, (k) measures to reduce the potential for conflict between land-based and water-based coastal activities, (l) measures to protect the cultural places, values, customs, beliefs and traditional knowledge of Aboriginals, (m) likely impacts of development on the water quality of coastal waterbodies, (n) the conservation and preservation of items of heritage, archaeological or historic significance, (o) only in cases in which a council prepares a draft local environmental plan that applies to land to which this Policy applies, the means to encourage compact towns and cities, (p) only in cases in which a development application in relation to proposed development is determined: (i) the cumulative impacts of the proposed development on the environment, and (ii) measures to ensure that water and energy usage by the proposed development is efficient."
The aims of SEPP 71, referred to in cl 8(a), are set out in cl 2 of SEPP 71. Clause 2(1) provides: "(1) This Policy aims: (a) to protect and manage the natural, cultural, recreational and economic attributes of the New South Wales coast, and (b) to protect and improve existing public access to and along coastal foreshores to the extent that this is compatible with the natural attributes of the coastal foreshore, and (c) to ensure that new opportunities for public access to and along coastal foreshores are identified and realised to the extent that this is compatible with the natural attributes of the coastal foreshore, and (d) to protect and preserve Aboriginal cultural heritage, and Aboriginal places, values, customs, beliefs and traditional knowledge, and (e) to ensure that the visual amenity of the coast is protected, and (f) to protect and preserve beach environments and beach amenity, and (g) to protect and preserve native coastal vegetation, and (h) to protect and preserve the marine environment of New South Wales, and (i) to protect and preserve rock platforms, and (j) to manage the coastal zone in accordance with the principles of ecologically sustainable development (within the meaning of section 6 (2) of the Protection of the Environment Administration Act 1991), and (k) to ensure that the type, bulk, scale and size of development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area, and (l) to encourage a strategic approach to coastal management."
Clause 129A(3) of the Infrastructure SEPP (which continues to apply to the development applications) provides: "Before determining a development application for development to which this clause applies, the consent authority must take the following matters into consideration: (a) the provisions of any coastal zone management plan applying to the land, (b) the matters set out in clause 8 of State Environmental Planning Policy No 71 - Coastal Protection, (c) any guidelines for assessing and managing the impacts of coastal protection works that are issued by the Secretary for the purposes of this clause and published in the Gazette."
Clause 88(2) of Byron LEP 1988 also specifies relevant matters that must be considered before granting consent to development within the coastal zone. Clause 88(2) provides: "(2) Development consent must not be granted to development on land that is wholly or partly within the coastal zone unless the consent authority has considered: (a) existing public access to and along the coastal foreshore for pedestrians (including persons with a disability) with a view to: (i) maintaining existing public access and, where possible, improving that access, and (ii) identifying opportunities for new public access, and (b) the suitability of the proposed development, its relationship with the surrounding area and its impact on the natural scenic quality, taking into account: (i) the type of the proposed development and any associated land uses or activities (including compatibility of any land-based and water-based coastal activities), and (ii) the location, and (iii) the bulk, scale, size and overall built form design of any building or work involved, and (c) the impact of the proposed development on the amenity of the coastal foreshore including: (i) any significant overshadowing of the coastal foreshore, and (ii) any loss of views from a public place to the coastal foreshore, and (d) how the visual amenity and scenic qualities of the coast, including coastal headlands, can be protected, and (e) how biodiversity and ecosystems, including: (i) native coastal vegetation and existing wildlife corridors, and (ii) rock platforms, and (iii) water quality of coastal waterbodies, and (iv) native fauna and native flora, and their habitats, can be conserved, and (f) the cumulative impacts of the proposed development and other development on the coastal catchment."
The Court is also required, by s 39(4) of the Land and Environment Court Act 1979 ("the Court Act"), in making its decision on the appeals, to have regard to "this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest."

The Panel's arguments for refusing consent

The Panel submitted that consent cannot be granted to the land owners' development applications because the Court would not be satisfied of the matters in s 55M(1) of the Coastal Protection Act and cl 88(3) of Byron LEP 1988.
Starting with s 55M(1)(a), the Panel submitted that the Court would not be satisfied that the proposed works will not, over the life of the works, firstly, unreasonably limit or be likely to unreasonably limit public access to or the use of Belongil Beach and, secondly, pose or be likely to pose a threat to public safety.
As to the first matter in s 55M(1)(a)(i), the Panel noted that the works will be carried out on the public land of Belongil Beach. The existing walls are located on the public beach. The proposed works involve retaining the location of the existing walls, except for some trimming of the seaward extent of the wall in front of the Watson property. The tie ins either side of each wall in front of each of the land owner's properties would extend the extent of the existing works on the public beach.
The Panel submitted that the location of the works on the beach necessarily limit public access to and use of the beach - the public cannot walk or sit on the parts of the beach in which the works will be located. The Panel submitted that the Court could not be satisfied that this limitation on public access to or use of the beach is not unreasonable. The Panel gave five reasons.
First, the Panel submitted that the relevant reference point for determining whether the limitation on public access to and use of the beach caused by the proposed works is unreasonable is not the existing works but rather the beach without the existing works. The Panel submitted that the existing works on the beach in front of each land owner's property are unlawful. The carrying out of those works required development consent, but no development consent has been granted for any of the works in front of the land owners' properties.
The Panel submitted that the land owners should gain no advantage from the unlawful works and any argument based on the unlawful works should be rejected: Kouflidis v Salisbury City Corporation (1982) 29 SASR 321 at 324, applied in Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 at [20]. For example, the Panel submitted that the land owners' argument put on these appeals that, as the existing works already limit public access to and use of the beach and the proposed works involve a rebuilding of the existing works in the same location as the existing works, the proposed works would not cause any additional limitation on public access to or use of the beach, should be rejected as an attempt to gain an advantage from the unlawful works by erecting an argument based on those unlawful works. The Panel submitted that, using the appropriate reference point of the erosion scarp assuming the absence of the unlawful existing works, there would be a limitation on public access to and use of the beach; the proposed works will prevent public access to and use of the parts of the beach where the proposed works will be located.
Secondly, the Panel submitted that this limitation on public access to and use of the beach is material. The proposed works, both individually and cumulatively, are of significant size and extent. They are located at places on the beach accessed and used by the public. The public gain access to the beach at Don Street, next door to the Ralph Lauren property, the Old Jetty site, between the Ralph Lauren and Watson properties, and Manfred Street, between the Watson and Stewartville properties. The public use the sections of the beach in front of each of the land owners' properties.
Thirdly, the Panel noted that the land owners proposed that the life of the works will be 30 years. The Panel submitted that this is too long a period to alienate the public beach and will prevent a whole of embayment solution to coastal hazards in the Byron Bay embayment.
Fourthly, the Panel submitted that any assessment of the unreasonableness of the limitation on public access to and use of the beach needs to be undertaken having regard to the objects of the Coastal Protection Act. These objects in s 3 of the Coastal Protection Act include "(a) to protect, enhance, maintain and restore the environment of the coastal region, its associated ecosystems, ecological processes and biological diversity, and its water quality", "(d) to promote public pedestrian access to the coastal region and recognise the public's right to access", and "(i) to promote beach amenity". The Panel submitted that the material limitation on public access to and use of the beach that would be caused by the proposed works is inconsistent with these objects.
Fifthly, the location of the proposed works will mean that, at high tide or during storm events, sea water will come up to the proposed works and impede or diminish public access along and use of the beach seaward of the proposed works. The public will not be able to walk on the landward side of the proposed works to bypass the inundated beach or escape to safety.
As to the second matter in s 55M(1)(a)(ii), the Panel submitted that the Court would not be satisfied that the proposed works, over their proposed life of 30 years, will not pose or be likely to pose a threat to public safety. The Panel gave three reasons.
First, the proposed works involve the repair and the rebuilding of the existing works, primarily using the rocks, concrete and other material in the existing works and staying at the same location as the existing works. The Panel submitted that the existing works have not been designed, located and constructed appropriately.
The existing works were carried out in an uncontrolled fashion, using unspecified materials, in an emergency response to erosion events on the alignment of the erosion scarp at the time of the erosion event.
The coastal engineers agreed that there had been no destructive investigation to ascertain the nature, extent, quality or appropriateness of the materials used in the existing works. Although a design was provided by Mr Jackson before the works in front of the Stewartville property were carried out, there was no design for the works in front of the Ralph Lauren or Watson properties. The manner in which the works were actually carried out is unknown.
The Panel submitted that, in these circumstances, the existing works pose and are likely to pose a threat to public safety. This is evidenced by the fact that the existing works are in a state of disrepair, including having had rocks, concrete and other materials dislodged from the works by coastal hazards.
Secondly, the Panel submitted that the proposed works will not eliminate or reduce the likely threat to public safety. The original proposals were simply for "repair", which would not involve proper design and construction of the proposed works. As the evidence unfurled at the hearing, the coastal engineers recommended the undertaking of more substantial work to demolish and rebuild the existing works in order to achieve structurally sound works.
Nevertheless, Mr Carley the coastal engineer for the Panel, and Mr Jackson the coastal engineer for the land owners in a more guarded way, accepted that this more substantial work would not necessarily result in works that would be the equivalent of works if they were to be designed, located and constructed afresh, freed from the precedent set by the existing works having been already carried out on the beach.
The coastal engineers agreed that if they were to design the works afresh, the works would be designed having regard to considerations such as the extent of risk that is acceptable to endure and the amount of maintenance work that is acceptable to be undertaken over the life of the works and the works would be located as far landward as is reasonably practicable. Mr Jackson accepted that the proposed works could be carried out wholly on the Ralph Lauren and Watson properties and not on the public beach and partly on the Stewartville property and partly on the public beach.
The Panel submitted that the proposed works will still be located on the public beach and will be exposed to and affected by coastal hazards, including coastal erosion and coastal inundation. The coastal hazards will cause rocks and other material to fall or be dislodged onto the beach. The design, location and construction of the proposed works will require more maintenance to prevent the proposed works being affected by coastal hazards than would be required for works that are properly designed and constructed from the outset and located further landward away from the beach.
The Panel submitted that, in these circumstances, the Court could not be satisfied that the proposed works will not pose or be likely to pose a threat to public safety.
Thirdly, the Panel submitted that the location of the proposed works on the beach will prevent the public from being able to escape the beach when inundated during high tides or storm events. The public would not be able to walk on the landward side of the proposed works to a safe access point away from the inundated beach. This poses or is likely to pose a threat to public safety.
Turning to s 55M(1)(b) of the Coastal Protection Act, the Panel submitted that satisfactory arrangements have not been made by the proposed conditions of consent, for the life of the works, for, firstly, the restoration of the beach or land adjacent to the beach if any increased erosion of the beach or adjacent land is caused by the presence of the works or, secondly, the maintenance of the works.
As to the first matter in s 55M(1)(b)(i), the Panel submitted that the proposed works might cause erosion of the beach or land adjacent to the works. There will be land either side of the works that is unprotected by sea walls or other coastal protection works. This land is at risk of coastal erosion. The Panel contended that the land owners have not, as part of their proposed development, provided for the restoration of the beach or adjacent land.
As to the second matter in s 55M(1)(b)(ii), after the further amended draft conditions of consent were provided, the Panel accepted that satisfactory arrangements for the maintenance of the works could be made by the conditions of consent.
The next preconditions are set by cl 88(3) of Byron LEP 1988. Two preconditions are relevant, in cl 88(3)(a) and (d).
The Panel submitted that the Court would not be satisfied that the proposed works will not impede or diminish, where practicable, the physical, land-based right of access of the public to or along the coastal foreshore (the matter in cl 88(3)(a)). The Panel's reasons were those given in relation to the similar precondition in s 55M(1)(a) of the Coastal Protection Act.
The Panel submitted the Court would also not be satisfied that the proposed works would not be significantly affected by coastal hazards or increase the risk of coastal hazards in relation to any other land (two of the matters in cl 88(3)(d)). The Panel submitted that the proposed works, as constructed and located, will be significantly affected by coastal hazards, including coastal erosion and coastal inundation. The coastal hazards are likely to cause rocks and other material to fall or be dislodged onto the beach. The proposed works are likely to increase the risk of the coastal hazard of coastal erosion in relation to other land, particularly land either side of the proposed works that is unprotected by sea walls or other coastal protection works. The Panel's reasons were those given in relation to the precondition in s 55M(1)(a)(ii) and (b)(i) of the Coastal Protection Act.
Next, the Panel submitted that if, contrary to its submissions, the Court is satisfied of the preconditions in s 55M(1) of the Coastal Protection Act and cl 88(3) of Byron LEP 1988, the Court would nevertheless refuse consent to the proposed works having regard to the relevant matters concerning the public interest in protecting the beach and maintaining and improving public access to and along the beach. These matters are those in: 1. Clause 8 of SEPP 71, including (a) which incorporates the aims in cl 2 to protect and improve existing public access and identify and realise new opportunities for public access to and along coastal foreshores, to protect the visual amenity of the coast, to protect and preserve beach environments and beach amenity, and to ensure that the type, bulk, scale and size of development is appropriate; (b) to retain and improve public access to and along the coastal foreshore; (c) to provide new public access to and along the coastal foreshore; (d) the suitability of the proposed works given their type, location and design and relationship to the surrounding area; (j) likely impact of coastal processes and coastal hazards on the proposed works and the likely impacts of the proposed works on the coastal processes and coastal hazards; and (p) the cumulative impacts of the proposed works; 2. Clause 129A(3)(b) of the Infrastructure SEPP, which incorporates the matters in cl 8 of SEPP 71; and 3. Clause 88(2) of Byron LEP 1988, including (a) maintaining and improving existing public access and identifying opportunities for new public access to and along the coastal foreshore; (b) the suitability of the proposed works, its relationship with the surrounding area and its impact on the natural scenic quality; (d) how visual amenity and scenic quality of the coast can be protected; and (f) the cumulative impacts of the proposed works and other development.
The Panel submitted that the Court would find that the proposed works will impact on the public beach and public access in the ways raised in these relevant matters, for the reasons the Panel has given in relation to the preconditions in s 55M(1) of the Coastal Protection Act and cl 88(3) of Byron LEP 1988.
The Panel further submitted that consideration of the cumulative impacts of the proposed works, required by cl 8(p) of SEPP 71 and cl 88(2)(f) of Byron LEP 1988, involves consideration of the impacts of the proposed works in combination with existing works, approved works and likely future works along Belongil Beach, citing Hastings Point Progress Association Inc. v Tweed Shire Council (2008) 160 LGERA 274; [2008] NSWLEC 180 at [77], [78].
The Panel submitted that the Court, in considering the likely future works, should recognise that the grant of consent to the proposed works on the beach in front of these three land owners' properties would set a precedent for approval of similar works in front of other properties along Belongil Beach. The outcome would be a continuous length of sea walls and other coastal protection works along Belongil Beach, which would be an undesirable and objectionable outcome. The Panel submitted that if these land owners' development applications to carry out works on the beach were to be granted, it would prove difficult for the relevant consent authority to refuse other development applications for similar works on the beach. There is more than a mere chance or possibility of later development applications, but rather a distinct probability: Emmott v Ku-ring-gai Municipal Council (1954) 3 LGRA 177 at 182; Shellcove Gardens Pty Ltd v North Sydney Municipal Council (1960) 6 LGRA 93 at 104; Goldin v Minister for Transport (2002) 121 LGERA 101; [2002] NSWLEC 75 at [7], [18], [28], [31] and [34].
The Panel submitted that the distinct probability that other land owners will apply for consent to carry out coastal protection works is evidenced by a number of factors. There is already a demand to carry out such works. Many land owners along Belongil Beach have some form of coastal protection works along the beach, most of which are unlawful. Some land owners have taken legal action against the Council for works to be carried out. The works carried out by the Council at Manfred Street included works to protect one land owner's property. Land owners, including these three land owners, took proceedings against the Council in the Supreme Court of New South Wales. These proceedings were resolved by the Supreme Court making orders by consent, including an order restraining the Council from taking action to remove or have removed various coastal protection works along the beach in front of the land owners' properties: Ralph Lauren 57 Pty Ltd and others v Byron Shire Council, Supreme Court of NSW No 2010/426976, Hoeben J, 12 August 2016. The consent orders anticipated that the land owners would apply for development consent to repair these works. The development applications made by these three land owners implements this anticipation. Another land owner applied to the Panel for development consent to carry out works in front of his land on the beach. At a conciliation conference arranged by the Court, the land owner and the Panel reached agreement for consent to be granted and the Court granted consent to the works: Siddle v NSW Transitional Coastal Panel [2018] NSWLEC 1383. Two other land owners, along with these three land owners, have also applied for development consent to carry out more minor works to repair the sea walls in front of their land on the beach.
In these circumstances, the Panel submitted that approval of these works will set a precedent that will lead to the undesirable outcome of continuous sea walls along Belongil Beach. This will not only significantly alienate public land and impede or diminish public access to and along the beach, it will also preclude a whole of embayment solution to coastal hazards affecting the Byron Bay embayment.

The land owners' arguments for granting consent

The land owners submitted that the Court would be satisfied of the preconditions in s 55M(1) of the Coastal Protection Act and cl 88(3) of Byron LEP 1988.
In relation to the preconditions concerning limitation of public access to or use of the beach (s 55M(1)(a)(i) of the Coastal Protection Act and cl 88(3)(a) of Byron LEP 1988), the land owners submitted that because the proposed works are repairs to existing works, the repair works will have no adverse incremental changes to public access or use of the beach.
In relation to the precondition concerning a threat to public safety (s 55M(1)(a)(ii) of the Coastal Protection Act), the land owners submitted that their current inability to repair the existing works is a public safety issue. The coastal engineers agreed that the existing works need repair and that public safety will be improved if repairs are carried out. The land owners submitted that this issue of public safety is of significant weight. Belongil Beach is a popular beach, particularly in the summer and during school holidays.
The land owners submitted that the proposed works will increase the structural stability of the existing works and improve public safety and access along the beach by restacking loose rocks at a stable slope. The coastal engineers agreed that the proposed works will be structurally stable. Mr Carley accepted that the proposed works are acceptable as an interim measure until a longer term engineered solution can be developed. Mr Jackson considered that the repair works have been designed and will be constructed to conform to contemporary coastal engineering guidelines and provide an effective structure that will provide adequate protection with ongoing maintenance as required. The experts agreed that the repair works will restore a stable slope and make the repaired works more effective than the existing works.
The land owners submitted that the proposed works will protect not only their private properties but also public assets and infrastructure behind the properties, such as the public road of Childe Street, and environmental assets such as Belongil Creek and wetlands.
The land owners submitted that where it is agreed that the proposed works are acceptable from a coastal engineering perspective, the issue of public safety is the key factor which merits approval for the repair to be undertaken as soon as possible.
In relation to the precondition that satisfactory arrangements be made for the maintenance of the works (s 55M(1)(b) and (2) of the Coastal Protection Act), the land owners submitted that the proposed conditions of consent and management plan for maintenance of the works will ensure that satisfactory arrangements have been made for the maintenance of the works over the life of the works.
Each land owner has agreed to the checking of the works regularly and after erosion events by a coastal engineer and the carrying out of any future repairs in such a manner that the walls do not creep seaward. The land owners have agreed to provide a bond to ensure compliance with the maintenance plan, satisfying the requirements of s 55M(1)(b) and (2)(a) of the Coastal Protection Act.
In relation to the precondition that the proposed works not be significantly affected by coastal hazards or not increase the risk of coastal hazards in relation to other land (cl 88(3)(d) of Byron LEP 1988), the land owners submitted that the proposed works will not alter the status quo. The proposed works will be no more affected by coastal hazards than the existing works. The coastal engineering experts agreed that, subject to the proposed works not migrating seaward over time, the proposed works will not alter the status quo with respect to adverse erosion effects on the beach or land adjacent to the existing works.
The land owners submitted that consideration of the relevant matters concerning the public interest supports the grant of consent to the proposed works. The land owners submitted that carrying out the proposed works will protect the public assets and infrastructure and private properties adjoining the beach. The land owners cited Craig J's statement in Positive Change for Marine Life Inc. v Byron Shire Council (No 2) [2015] NSWLEC 157 at [57] that: "The Council must also be taken to represent the public interest. That interest lies in carrying out works intended for the public benefit by arresting further beach erosion along Belongil Beach. Not only is that work intended to retain an important public amenity in use of the beach itself, it is intended also to protect public infrastructure as well as private property adjoining the beach. The proprietary interests of those that may be harmed if beach stabilisation work is not carried out is exemplified by the interests of the second and third respondents" and see [80].
The second and third respondents referred to by Craig J were owners of private properties adjoining the proposed works at Manfred Street. The land owners submitted that the public interest in the present cases is no different than that stated by Craig J.
The land owners emphasised that they are not the only persons seeking to carry out coastal protections works to protect public and private property. Many other persons, both private and public, have carried out such works. The Council in particular has been aggressive in building groynes (at Jonson Street), seawalls (the Council has built a geobag wall at Manfred Street and resolved to build geobag walls at Don Street and Border Street) and other coastal protection works to protect public assets and infrastructure and private property. The land owners' proposed works are of the same nature and for the same purpose as the coastal protection works constructed on the beach by the Council and private land owners.
The land owners submitted that the carrying out of the proposed works will improve visual amenity and scenic quality by the rebuilding of the existing sea walls that are in a state of disrepair. Ralph Lauren proposed a condition that concrete blocks not be visible in the face of the sea wall in front of the Ralph Lauren property.
The land owners submitted that the public interest in this case is best served by the grant of development consent for the proposed work. The works will not unreasonably limit public access to, and use of, Belongil Beach, will protect public access and the wider natural environment, will not pose a threat to public safety but will improve it, and satisfactory arrangements have been made for the maintenance of the works for the life of the works.
The land owners disputed the Panel's contention that granting consent to the land owners' proposed works would inhibit a whole of embayment solution. The land owners submitted that their proposed works to repair the existing walls merely maintains the status quo - the repaired works will no more inhibit a whole of embayment solution than the existing walls. The land owners also submitted that, notwithstanding many studies and proposals over a long period, a whole of embayment solution is no closer to being agreed or realised. The Minister rejected the most recent draft coastal zone management plan and no other coastal management plan has been proposed or accepted for the Belongil Beach area. There is, therefore, no current whole of embayment solution that the proposal works can impede.

Consents should not be granted

I am not satisfied of the preconditions in s 55M(1)(a)(i) of the Coastal Protection Act that the proposed works will not, over the life of the works, unreasonably limit or be likely to unreasonably limit public access to or use of the beach and in cl 88(3)(a) of Byron LEP 1988 that the proposed works will not impede or diminish, where practicable, the physical, land-based right of access of the public to or along the coastal foreshore. Accordingly, development consent cannot be granted to carry out the proposed works by each land owner.
First, as a matter of fact, the proposed works will limit or be likely to limit public access to or the use of the beach (s 55M(1)(a)(i)) or impede or diminish the physical, land-based right of access of the public to or along the coastal foreshore (cl 88(3)(a)). The proposed works are to be built wholly (in the case of Stewartville) or largely (in the case of Ralph Lauren and Watson) on the public land at Belongil Beach. The proposed works necessarily limit public access to and along, and public use of, the parts of the beach on which the works will be physically located. The public cannot walk along, sit on or otherwise use those parts of the beach on which the works will be physically located.
Secondly, the parts of the beach that the public will not be able to access or use because of the works are significant in extent.
The sea wall on the beach in front of the Ralph Lauren property, when repaired by the proposed works, will be 41m in length, with tie ins either side of the sea wall of 10m each, giving a total length of 61m. The sea wall will have a width of 10m from the property boundary to the approved repair footprint at -1m AHD, although the toe of the wall will extend seaward for at least a further 4.5m (the seaward extent of the existing toe was not identified). This toe is mostly buried beneath the sand of the beach, although during coastal erosion events, rocks and other material in the toe may be exposed. The sea wall will extend landward from the property boundary for around 2.5m. The proposed works will therefore be carried out over a width of 12.5m, but the resultant repaired sea wall will have a width of at least 17m. The top of the sea wall would be at 6m AHD. The apparent height of the sea wall might be greater or less, depending on the extent of erosion or accretion of the beach at any time.
The repaired sea wall on the beach in front of the Watson property will be 60m in length, with tie ins of 5m to the north and 40m to the south, giving a total length of 105m. The sea wall will have a variable width depending on the location. At 44 Childe Street, the sea wall will extend 11.5m from the property boundary to the approved repair footprint at -1m AHD, although the toe of the wall will extend seaward for at least 3.5m (the seaward extent of the toe is not identified). The toe is mostly buried beneath the sand of the beach, although it might be exposed during coastal erosion events. The sea wall will extend landward of the property boundary for around 3m, although filling and landscaping on top of the wall may extend further landward. The proposed works at 44 Childe Street will therefore be carried out over a width of 14.5m but the resultant repaired sea wall at 44 Childe Street will have a width of at least 18m. At 48 Childe Street, the sea wall will extend 9m from the property boundary to the approved repair footprint at -1m AHD, although the toe of the wall will extend seaward for at least 1m (the seaward extent of the toe is not identified). The sea wall extends landward of the property boundary for at least 5m, although filling and landscaping above the wall may extend further landward. The proposed works at 48 Childe Street will therefore be carried out over a width of 14m, but the resultant repaired sea wall at 48 Childe Street will have a width of 15m. The top of the sea wall at both 44 and 48 Childe Street will be at 6.5m AHD, and the top of the slope will be 7.77m AHD at 44 Childe Street and above 7m AHD at 48 Childe Street. Again, the apparent height of the sea wall might be greater or less, depending on the extent of erosion or accretion of the beach at any time.
The repaired sea wall on the beach in front of the Stewartville property will be 19.7m in length, with tie ins of 10m either side of the sea wall, giving a total length of 39.7m. The sea wall will have a width of about 11.5m. The top of the sea wall will be at 5m AHD and the top of the slope above the wall will be at 6.5m AHD. The apparent height of the sea wall might be greater or less, depending on erosion or accretion of the beach at any time.
By reason of their size and extent, the resultant repaired sea walls in front of each of the land owners' properties will result in the alienation of significant parts of the public land of the beach and a concomitant limiting, impeding or diminishing of public access to and use of the beach.
Thirdly, these parts of the beach are in sections of Belongil Beach that are currently and are likely in the future to be accessed and used by the public. The public have physical, land-based rights of access to the beach at Don Street, next door to the Ralph Lauren property, the Old Jetty Site, between the Ralph Lauren and Watson properties, and Manfred Street, between the Watson and Stewartville properties. The public use sections of the beach in front of each of the land owners' properties, particularly in the summer and during school holidays.
Fourthly, the resultant repaired sea walls will limit access to and use of the beach for a long time. The coastal engineers agreed that with proper and regular maintenance the proposed works can have a life of at least 30 years. This fixes a minimum period of time in which the works will limit, impede or diminish public access to and use of the beach.
Fifthly, there will be a shorter term limiting, impeding or diminishing of public access to and use of other parts of the beach whilst the repair works are being carried out. Public access to the beach from the Old Jetty Site will be regulated and confined by fences so as to allow trucks and excavators to access the beach to carry out the repair works. Safety fences will be erected outside the footprint of the repair works to exclude the public. These fences will alienate additional parts of the beach from public access and use during the carrying out of the repair works. If the repair works are co-ordinated to be undertaken consecutively and not concurrently in one period of time, the total time period of exclusion will be 20 working days, if work proceeds on schedule and is not delayed by weather or for other reasons.
Sixthly, the repaired sea walls will limit public access to and use of the beach outside of the parts of the beach on which the sea walls are physically located. During large wave conditions, especially with a rising tide, and during storm events, sea water will come up to the repaired sea walls and limit, impede or diminish public access along and the use of the beach seaward of the sea walls. The public will not be able to walk on the landward side of the sea walls to bypass the inundated beach or escape to safety.
Seventhly, such limitation on public access to and use of the beach or impeding or diminishing of the right of access of the public to or along the coastal foreshore, do not cease to be a limitation, impediment or diminishment of public access and use merely because the existing sea walls currently limit, impede or diminish public access to and use of the beach. The assessment of the degree and significance of the limitation, impediment or diminishment of public access to and use of the beach, and of any unreasonableness of such limitation, is to be undertaken without regard to the existing sea walls and the extent to which they limit, impede or diminish public access to or use of the beach. The existing sea walls are not lawful. No development consent has been sought or obtained for the carrying out of the existing sea walls on the beach in front of each of the land owners' properties. By law, the sea walls should not exist on the beach.
The unlawfulness of the existing sea walls does not preclude the land owners applying for development consent under the EPA Act to carry out works to repair the existing sea walls. Development consent can be granted to the future carrying out of a work and the future use of works on land. However, the consideration of such future development is to be done without regard to the past unlawful works and unlawful use. As King CJ said in Kouflidis v City of Salisbury at 324: "The unlawful user of the land should gain no advantage from having established an unlawful use. Any argument based either directly or indirectly upon the unlawful use should be firmly rejected."
In this case, the land owners' argument that the repaired sea walls will not result in any additional limiting, impeding or diminishing of public access to or use of the beach beyond the limitation, impediment or diminishment caused by the existing works, and hence that the limitation caused by the repaired works cannot be considered to be unreasonable, is based on and seeks to take advantage of the unlawful existing works and use. It is to be rejected.
Eighthly, the extent to which and the ways in which the proposed works will limit or are likely to limit public access to or the use of the beach, which I have found above, make the limitation unreasonable for the purposes of s 55M(1)(a)(i) of the Coastal Management Act. The unreasonableness of the limitation on public access to or use of the beach is also shown by the inconsistency with the objects of the Coastal Protection Act. The objects of the Coastal Protection Act include in s 3(d) "to promote public pedestrian access to the coastal region and recognise the public's right to access" and in s 3(i) "to promote beach amenity". The repaired sea walls, by limiting public access to and use of the beach, will not "promote public pedestrian access", "recognise the public's right to access" or "promote beach amenity".
Finally, there are no reasons of practicability that would preclude the land owners designing, locating and constructing coastal protection works so as not to impede or diminish the physical, land-based right of access of the public to or along the coastal foreshore, as required by cl 88(3)(a) of Byron LEP 1988.
For these reasons, I am not satisfied that: 1. the proposed works by each land owner will not, over the life of the works, unreasonably limit or be likely to unreasonably limit public access to or the use of the beach (s 55M(1)(a)(i) of the Coastal Protection Act); or 2. the proposed works by each land owner will not impede or diminish, where practicable, the physical, land-based right of access of the public to or along the coastal foreshore (cl 88(3)(a) of Byron LEP 1988).
My non-satisfaction of these preconditions is sufficient to preclude the grant of consent to the proposed works by each land owner.
It is unnecessary, therefore, to determine the other contentions of the Panel as to why consent should be refused. I will, however, record briefly my findings on the Panel's other contentions, as they were fully argued.
I would be satisfied of the precondition in s 55M(1)(a)(ii) of the Coastal Protection Act that the works will not, over the life of the works, pose or be likely to pose a threat to public safety. The land owners amended the design and construction of the works throughout the hearing of the appeals. The amended works are a significant improvement on the originally proposed works. Although there has been no destructive investigation or design independent of the existing works, the amended design and construction of the works will result in structurally stable works. The amended design and construction essentially involve dismantling the existing sea walls down to the lowest filter layer (whether comprising smaller rocks as in the Ralph Lauren and Watson works or a geo textile filter as in the Stewartville works) and repairing the filter layer, including with imported road base or clay/shale, the secondary layer by reinstating and repositioning existing rocks and placing imported sound basalt or graywacke of suitable quality, and the primary armour layer by reinstating and repositioning existing rocks and imported sound basalt or graywacke of suitable quality. Mr Jackson considered that the repaired works have been designed and will be constructed to conform to coastal engineering guidelines. Both Mr Jackson and Mr Carley agree that the repaired works will be structurally stable and will be more effective than the existing works in protecting the land owners' properties, provided ongoing maintenance is undertaken as required. Mr Carley accepted that the repaired works will be acceptable as an interim solution until a longer term engineered solution can be developed. Neither coastal engineer asserted that the repaired works, in the amended design and construction, will pose or be likely to pose a threat to public safety.
It may be, as the Panel suggested, that at or after coastal erosion events, some rocks or other material might fall or be displaced from the repaired sea walls. But the ongoing maintenance will reinstate any fallen or displaced rocks. The coastal engineers agreed that this process of displacement of rocks by coastal processes and reinstatement of the rocks during maintenance is usual and to be expected even for well designed and constructed coastal protection works. The coastal engineers did not predict that the repaired sea walls would pose any greater risk of rocks falling or being displaced than would be expected for a new sea wall in the locations proposed.
Although the repaired sea walls will limit, impede or diminish public access along the beach during large wave conditions, especially with a rising tide, or storm events, when seawater will come up to the repaired sea walls, this does not necessarily constitute a threat to public safety. Beach users will have warning of high tides and storm events and could avoid walking along the inundated beach adjoining the repaired sea walls. It is most unlikely that they would suddenly and without warning be stranded on the inundated beach without a means of escape. The problem is the limitation on public access to and along the beach and the use of the beach, not a threat to public safety.
I would be satisfied of the precondition in s 55M(1)(b) that satisfactory arrangements can be made, by the conditions that would be imposed on any consent, for the life of the works, for the restoration of the beach or land adjacent to the beach, if any increased erosion of the beach or adjacent land is caused by the presence of the works, and for the maintenance of the works.
As to the first, the coastal engineers did not predict that the repaired works would cause any increased erosion of the beach or land adjacent to the beach. The coastal engineers agreed that, with ongoing maintenance, the repaired works would provide protection of the land owners' properties and would not cause increased erosion of the land either side of the works. The coastal engineers did not suggest that the works would cause erosion of the beach itself. In these circumstances, arrangements would not need to be made for restoration of the beach or land adjacent to the beach.
As to the second, the land owners, through the course of the hearing of the appeals, revised their maintenance plans and proposed conditions of consent (in the last tendered version) that would make satisfactory arrangements for the maintenance of the works, including arrangements to secure adequate funding for the carrying out of maintenance.
I would also be satisfied of the precondition in s 88(3)(d) that the proposed works will not be significantly affected by coastal hazards or increase the risk of coastal hazards in relation to any other land. The repaired works, by their nature and purpose, are intended to and will protect the land owners' properties from coastal hazards. Coastal hazards, such as coastal erosion and coastal inundation, will therefore affect the works, but the works will be designed and constructed to withstand such coastal hazards. The coastal engineers agreed that, with ongoing maintenance, the repaired sea walls will be structurally stable and perform their purpose of protecting the land owners' properties. The works, therefore, will not be "significantly" affected by coastal hazards. The experts also did not suggest that the repaired sea walls will increase the risks of coastal hazards in relation to any other land, including land either side of the works.
In relation to the relevant matters for considerations concerning public access to and use of the beach, including cl 88(2)(a) and (b) of Byron LEP 1988, cl 8 of SEPP 71 and cl 129A(3)(b) of the Infrastructure SEPP, the effect of the proposed works in limiting, impeding or diminishing public access to and along the beach and public use of the beach, in the ways I have found earlier, provides reason for refusal of consent to the proposed works. The proposed works will not improve existing public access to and along the beach, but will reinforce the exclusion of the public by reason of the existing unlawful sea walls. The location of the proposed works on the beach, and the bulk, scale, size and overall built form of the proposed works on the beach, are unsuitable.
The cumulative impacts of the proposed works, required to be considered under cl 8(p) of SEPP 71 and cl 88(2)(f) of Byron LEP 1988, also provide reason to refuse consent to the proposed works. Granting consent to the proposed works will set a precedent for granting consent to carrying out similar coastal protection works in front of other properties along Belongil Beach. For the reasons advanced by the Panel, there is a "distinct probability" that other land owners will apply for consent to carry out coastal protection works on the beach similar to the works proposed by these three land owners (see Shellcove Gardens Pty Ltd v North Sydney Municipal Council at 104). I agree with the Panel that if consent were to be granted by the Court to these land owners' development applications to carry out coastal protection works on the beach, it would prove difficult for the relevant consent authority to refuse other development applications for similar coastal protection works on the beach. The outcome would be a continuous length of coastal protection works built on the public land of the beach, which would limit, impede or diminish public access to and along the beach and public use of the beach. The cumulative impacts of such limitation on public access to and use of the beach would be significant and unacceptable.
Granting development consent to the repair of the existing unlawful works on the beach in front of each of the land owners' properties would also regularise and make permanent the works on the public beach. There is no realistic prospect that the works would ever be removed. The land owners suggested a heavily qualified condition that would require the works to be removed but only if other coastal protection works are implemented which offer equivalent protection and which require the removal of the works. This is unlikely to occur. The likely approval of other coastal protection works in front of properties on Belongil Beach, along with the approval of the proposed works in front of the land owners' properties, will make almost inevitable a coastal protection solution that incorporates the various approved works on the beach. The current unacceptable exclusion of public access to and use of the beach would therefore be perpetuated.

The Panel's argument that any consents should be time limited

The Panel contended that, if the Court determine that the proposed works are not contrary to the public interest, any grant of consent should be subject to conditions limiting the duration of the consent to: 1. five years (or alternatively 30 years) following the grant of consent; 2. when a whole of embayment solution is implemented; or 3. if and when the works suffer a failure event (which is when 30% or more of the primary armour of the works is displaced as a consequence of a storm event or series of storm events), whichever is the earliest.
The Panel submitted that the works should be removed after the occurrence of the earliest of these events.
The Panel submitted that a time limited consent would be appropriate for seven reasons. First, on completion of the work, the sea walls will still not be constructed to an appropriate engineering standard. A short term approval would limit the time in which public safety is affected by their presence. Secondly, the sea walls are located on and alienate public land. A short term approval would limit the time in which public land is occupied for private purposes. Thirdly, in the future, coastal erosion, long term recession and sea level rise are likely to limit the availability of the public beach. A short term approval lessens the risk of such future limitations on the availability of the public beach. Fourthly, if a storm event or series of storm events cause failure of the works, the works cannot be rebuilt under the maintenance plan, but would need to be constructed in accordance with a new development consent. An approval limited to authorising the carrying out of the walls proposed in the development applications, but not to rebuilding the works in the event of failure, would trigger the need for a new development consent to carry out new works. Fifthly, a new whole of embayment solution is being actively considered by government. A short term approval would limit the risk of conflict with and impeding a whole of embayment solution. Sixthly, approval of the proposed works on a permanent basis, instead of a time limited basis, would set an undesirable precedent. Seventhly, a short term approval limits the time period for which the works have the potential to limit public access to and use of the beach and pose a threat to public safety, thereby ensuring that the preconditions in s 55M(1)(a) of the Coastal Protection Act can be met.

The land owners' arguments that any consents should not be time limited

The land owners dispute that the consents for the proposed works should be time limited as suggested by the Panel. First, a time limit of 5 years is arbitrary. It has no basis in the evidence of the coastal engineers. They did not suggest that the life of the works would only be 5 years. Mr Jackson said, with proper maintenance, the works would have a life of at least 30 years. The land owners submitted that the removal of the works after 5 years would jeopardise the protection afforded by the works to the land owners' properties and land either side, both private and public land. The land owners also challenged the Panel's alternative time of 30 years. Although Mr Jackson said the works will have a life of at least 30 years, he did not suggest that the works would need to be removed at the end of 30 years. He said with ongoing maintenance they could continue to be structurally stable and serve the purpose of protecting the land owners' properties.
Secondly, a whole of embayment solution is neither certain nor imminent. Nevertheless, if a whole of embayment solution is adopted, there is no certainty that the solution will not utilise the coastal protection works that have already been built. To require the removal of the approved works on the implementation on the whole of embayment solution may be unnecessary. The land owners therefore submitted that the approved works should only be required to be removed if the whole of embayment solution provides for equivalent protection of the land owners' properties and is inconsistent with the retention of the approved works.
Thirdly, the land owners submitted that there would be no justification for the removal of the works if they are damaged by a storm event or series of storm events. The consents granted by the Court approved plans and specification for the works and are subject to conditions regulating the construction and maintenance of the works. Even if the scale or work required to rebuild the works is not covered by the maintenance plan, the works could be rebuilt in accordance with the approved plans and specifications and conditions of consent. There would be no need to obtain a new development consent.

Time limited consent should not be granted

As I have earlier held, because I am not satisfied of the preconditions in s 55M(1)(a)(i) of the Coastal Protection Act and cl 88(3)(a) of Byron LEP 1988, development consent cannot be granted to the works proposed by the land owners. This issue of limiting the duration of any consent to be granted does not therefore arise. I will, however, express some preliminary views on the issue.
First, imposing a condition of consent limiting the duration of the consent to a particular time (such as 5 years following the grant of consent) or until the happening of a particular event (such as when a whole of embayment solution is implemented or a failure event occurs) does not overcome the need to satisfy the jurisdictional preconditions in s 55M(1) of the Coastal Protection Act or cl 88(3) of Byron LEP 1988. The jurisdictional preconditions must be satisfied in order to enliven the power in s 4.16 of the EPA Act to grant consent subject to conditions. Hence, contrary to the Panel's position, the imposition of a condition limiting the duration of any consent granted to the proposed works will not ensure that the preconditions in s 55M(1) of the Coastal Protection Act or cl 88(3) of Byron LEP 1988 can be met. The consent authority's satisfaction of the preconditions is directed to the development for which consent is sought in the development application. In the development applications made by the land owners, the development is not proposed to be time limited. The land owners propose to carry out the works and to use the works for an unlimited time. The consent authority must be satisfied that this time unlimited development proposed by the land owners will not have any of the effects proscribed by s 55M(1) of the Coastal Protection Act or cl 88(3) of Byron LEP 1988, such as limiting public access to or use of the beach or posing a threat to public safety, before the consent authority can grant consent to that development. If the consent authority were to be satisfied that the time unlimited development would meet the preconditions, consent can be granted to the development but the meeting of the preconditions would lessen or remove the justification to impose a time limit on the duration of the consent. For example, a time limit would not be justified to limit the period in which the development limited public access to or the use of the beach or posed a threat to public safety because the consent authority would have been satisfied under the preconditions that the development would not have these adverse effects.
Secondly, imposing a condition with the Panel's first suggested time limit, 5 years following the grant of consent or alternatively 30 years, would undermine the purpose and utility of the grant of consent. The purpose of the proposed works is to protect the land owners' properties. That purpose will still be relevant and applicable 5 or 30 years following the grant of any consent. To require the land owners to remove the approved works after 5 or 30 years, when no equivalent protection has been provided by other coastal protection works, would expose the land owners' properties to coastal hazards.
Thirdly, imposing a condition with the Panel's second time event, when a whole of embayment solution is implemented, would overcome the problem with the Panel's first suggested time limit, provided the whole of embayment solution provides equivalent protection for the land owners' properties as would be provided by the approved works. As the land owners suggested, the approved works should only be required to be removed if the whole of embayment solution does not incorporate the approved works.
Fourthly, imposing a condition limiting the duration of consent until a failure event occurs may be unnecessary. If a failure event occurs, the works might be able to be rebuilt in accordance with the consent, including the approved plans. If the storm or series of storms that cause the failure event so change the land owners' properties and surrounding land that rebuilding in accordance with the consent would not be possible, the land owners would need to apply to modify their consent or apply for a new consent so as to be able to carry out works that are adapted to the changed conditions and will provide the desired protection for the land owners' properties and adjacent land.

Conclusion and orders

Development consent cannot be granted to the land owners' development applications to carry out the proposed works to repair the existing sea walls. The development applications should therefore be determined by refusal of consent and the appeals should be dismissed.
The Court orders:

Proceedings No: 2017/295277 (Ralph Lauren appeal) 1. The appeal is dismissed. 2. The development application for the repair to the existing sea wall at 1 and 1A Don Street, Byron Bay is determined by refusing consent to the application.

Proceedings No: 2017/295281 (Stewartville appeal) 1. The appeal is dismissed. 2. The development application for the repair to the existing sea wall at 6B Childe Street, Byron Bay is determined by refusing consent to the application.

Proceedings No: 2017/295288 (Watson appeal) 1. The appeal is dismissed. 2. The development application for the repair to the existing sea wall at 44 and 48 Childe Street, Byron Bay is determined by refusing consent to the application.

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: 21 December 2018

(2002) 121 LGERA 101

(2008) 160 LGERA 274

(2006) 144 LGERA 408

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