Salama v Northern Beaches Council [2020] NSWLEC 143 | Case summary

Salama v Northern Beaches Council [2020] NSWLEC 143 | Case summary | Zoe

[3]

Environmental Planning and Assessment Act 1979 (NSW)

Relevant sections of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) provide: Part 4 Development assessment and consent … Division 4.3 Development that needs consent (except complying development) … 4.15 Evaluation (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application - (a) the provisions of - (i) any environmental planning instrument, and … that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. … 4.16 Determination (1) General A consent authority is to determine a development application by - (4) Total or partial consent A development consent may be granted - (a) for the development for which the consent is sought, or (b) for that development, except for a specified part or aspect of that development, or (c) for a specified part or aspect of that development. … 4.17 Imposition of conditions (1) Conditions - generally A condition of development consent may be imposed if - … (d) it limits the period during which development may be carried out in accordance with the consent so granted, or … … Division 4.9 Post-consent provisions … 4.55 Modification of consents - generally … (1A) Modifications involving minimal environmental impact A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if - s (1), (2) and (5) do not apply to such a modification. (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if - (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and (c) it has notified the application in accordance with - (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1) and (1A) do not apply to such a modification. (3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. (4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified. (5) (Repealed) … (6A), (7) (Repealed) …

[4]

Coastal Management Act 2016 (NSW)

Relevant sections of the Coastal Management Act 2016 (NSW) (CM Act) provide: Part 1 Preliminary … 3 Objects of this Act The objects of this Act are to manage the coastal environment of New South Wales in a manner consistent with the principles of ecologically sustainable development for the social, cultural and economic well-being of the people of the State, and in particular - … (e) to facilitate ecologically sustainable development in the coastal zone and promote sustainable land use planning decision-making, and (f) to mitigate current and future risks from coastal hazards, taking into account the effects of climate change, and (g) to recognise that the local and regional scale effects of coastal processes, and the inherently ambulatory and dynamic nature of the shoreline, may result in the loss of coastal land to the sea (including estuaries and other arms of the sea), and to manage coastal use and development accordingly, and (h) to promote integrated and co-ordinated coastal planning, management and reporting, and (i) to encourage and promote plans and strategies to improve the resilience of coastal assets to the impacts of an uncertain climate future including impacts of extreme storm events, and (j) to ensure co-ordination of the policies and activities of government and public authorities relating to the coastal zone and to facilitate the proper integration of their management activities, and … 4 Definitions (1) In this Act - … coastal protection works means - (a) beach nourishment activities or works, and (b) activities or works to reduce the impact of coastal hazards on land adjacent to tidal waters, including (but not limited to) seawalls, revetments and groynes. Part 2 Coastal zone and management objectives for coastal management areas 5 Coastal zone In this Act, the coastal zone means the area of land comprised of the following coastal management areas - (a) the coastal wetlands and littoral rainforests area, (b) the coastal vulnerability area, (c) the coastal environment area, (d) the coastal use area. … Part 3 Coastal management programs and manual … Division 2 Coastal management programs … 13 Requirement for coastal management programs (1) A local council may, and must, if directed to do so by the Minister, prepare a coastal management program in accordance with this Part. … 18 Review, amendment and replacement of coastal management programs (1) A local council is to ensure that its coastal management program is reviewed at least once every 10 years. The review is to be undertaken in accordance with the coastal management manual. (2) A coastal management program may, at any time, be amended (in whole or in part) by another coastal management program. (3) A coastal management program may, at any time, be replaced by another coastal management program. (4) Following a review, a local council may, by notice published in the Gazette, repeal a coastal management program. … Part 5 Miscellaneous 27 Granting of development consent relating to coastal protection works (1) Development 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, (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. …

[10]

Applicant's bundle of documents

A number of documents in the Applicant's bundle marked Ex 4 are not relevant to the remaining issue still in dispute. Only relevant documents will be referred to. These are: 1. The Applicant's Class 1 application and annexures; 2. Amended Statement of Facts and Contentions (Ex 1); 3. Coastal engineering advice prepared by International Coastal Management (ICM) (ICM Report 2018) dated 4 September 2018; 4. Seawall Maintenance Management Plan (MMP) prepared by ICM dated 24 February 2020; 5. Applicant's DA 2018/1878 assessment report; 6. Applicant's DA 2018/1878 application form; 7. Plan of the Property prepared by DP Surveying Services; 8. Statement of Environmental Effects (SEE) prepared by Barker Ryan Stewart dated November 2018; 9. Letter from ICM to the Applicant regarding the design life of seawalls dated 23 May 2018; 10. Notice of determination of Applicant's Mod 2019/0208; 11. Letter from Peter Horton engineer, Haskoning Australia providing coastal engineering advice for 1 Frazer Street dated 21 November 2014; 12. Notice of determination for Mod 2018/0604 (1184-1186 Pittwater Road) (nearby block of units); 13. Assessment report for Mod 2018/0604 (1184-1186 Pittwater Road) (nearby block of units); 14. Natural environment referral response for Mod 2018/0604 (1184-1186 Pittwater Road) (nearby block of units); 15. Review of Environmental Factors dated 4 June 2019; 16. CZMP and appendices dated December 2016; 17. Collaroy-Narrabeen Beach Coastal Protection Works Design Specifications (Specifications) dated 2016; and 18. Northern Beaches Coastal Erosion Policy dated 13 December 2016 (the Policy).
The Applicant also tendered an article titled "Defining Beachfront Setbacks Based on 'Acceptable Risk' - Is It the New Approach?" by Peter Horton and Greg Britton (Ex B). This was referred to in footnote 2 of the Specifications (see [28] below).
Documents of particular relevance from the Applicant's bundle are summarised in more detail in the following paragraphs.

[12]

Coastal Zone Management Plan for Collaroy-Narrabeen Beach and Fishermans Beach

The CZMP prepared in December 2016 establishes the framework by which Collaroy-Narrabeen Beach will be managed for current and future generations. Coastal hazards south of Devitt Street (where the Property is located) are identified as follows: South of Devitt Street there is limited dunal vegetation and extensive lengths of (usually buried) protection works. It is this section of Collaroy-Narrabeen Beach where public and private assets adjacent to the beach are most exposed to the impacts of coastal storms.
Sea level rise caused by climate change is identified as a coastal process relevant to Collaroy-Narrabeen Beach as follows: The possibility of global climate change accelerated by increasing concentrations of greenhouse gases, the so-called Greenhouse Effect, is widely accepted by the scientific and engineering communities. This is predicted to cause globally averaged surface air temperatures and sea levels to rise. The NSW Sea Level Rise Policy Statement (DECCW, 2009b) was released in October 2009. It included sea level rise planning benchmarks of 0.4m at 2050 and 0.9m at 2100 (both relative to 1990), with the two benchmarks allowing for consideration of sea level rise over different timeframes. The sea level rise planning benchmarks can be used for purposes such as incorporating the projected impacts of sea level rise on predicted flood risks and coastline hazards. However, note that DECCW (2009b) is no longer NSW government policy. In considering the impacts of sea level rise on acceptable risk to new beachfront development at Collaroy-Narrabeen Beach and Fishermans Beach three sea level rise scenarios were applied. These scenarios were a 95% probability of exceedance, 50% probability of exceedance and a 5% probability of exceedance based on the sea level rise projections outlined in the 5th IPCC Assessment Report with an allowance for regional variation. A detailed discussion of their application is provided in Section 5 and Appendix L. This approach is considered to be consistent with the advice provided by the NSW Government in April 2014 that Councils are to obtain expert advice in using a range of sea level rise projections as well as document the methodology and approach applied.
Actions to manage current and projected future risks from coastal hazards are outlined as follows: 6.2.1 Existing development located adjacent to Collaroy-Narrabeen Beach and Fishermans Beach The actions and controls outlined below are intended to apply to all new development on land adjacent to Collaroy-Narrabeen Beach and Fishermans Beach. Existing unmodified lawful development under the Environmental Planning and Assessment Act 1979 and the Coastal Protection Act 1979 is not controlled by the CZMP. 6.2.2 Erosion/Recession Hazards Council seeks to allow private landowners to carry out new development on beachfront and near beachfront land where the risk of damage to development from coastal processes can be demonstrated to be acceptably low. This can be achieved through stipulating the following controls for new development. • minimum setbacks • piled foundations where required • new or upgraded protection works where required south of Devitt Street at Collaroy-Narrabeen Beach (where environmental impacts of such works can be demonstrated to be acceptable) • sufficiently raised ground floor levels • piling of access to new development where seaward of the minimum setback for development on conventional foundations.
The CZMP outlines requirements for upgrading or constructing new protection works. The only location where coastal protection works by property owners are considered to be generally suitable is south of Devitt Street at Collaroy-Narrabeen Beach (where the Property is located). Property owners are responsible for protecting their property from coastal erosion and inundation hazards and the maintenance of any upgraded or new protection works is the responsibility of the owner of the property protected by those works. New works are to be built entirely on private property unless this is not appropriate due to site constraints or amenity impacts inter alia.
Appendix I (Coastal Processes and Coastline Hazards) describes the coastal processes and coastline hazards that apply to Collaroy-Narrabeen Beach. Potential coastline hazards listed include beach erosion, beach rotation, shoreline recession, stormwater erosion, slope instability and coastal inundation.
Appendix K (Private Property Risk and Response Categories as per OEH) categorises risks and risk responses for private properties on Collaroy-Narrabeen Beach. The Property is in risk category 1 (immediate hazard area covers at least 25% of lot) and response category B (coastal protection works considered technically feasible but not cost-effective for public funding).
Appendix L (Risk Assessment to Define Appropriate Development Setbacks and Controls) defines coastal setbacks for the Collaroy-Narrabeen Beach.
Appendix M (Identification and Evaluation of CZMP Management Options) identifies and evaluates management options, namely structural works, sand transport, dune management, environmental planning and development control provisions.

[13]

Collaroy-Narrabeen Beach Coastal Protection Works Design Specifications

The Specifications was prepared by the Council in 2016. The Introduction states that all protection works on Collaroy-Narrabeen beach are to be a "consistent design standard that provides an appropriate level of protection". The introduction lists the applicable specifications as follows: 1. Coastal Protection Works Concept Design and Concept Alignment Drawings 2. Seawall Design Criteria for Collaroy-Narrabeen Beach (November 2016) 3. Definitions All coastal protection works should be constructed and maintained in accordance with these specifications, the Northern Beaches Coastal Erosion Policy and The CZMP for Collaroy-Narrabeen Beach and Fishermans Beach. Such works must also be, whenever possible, contained on private property.
Under the Seawall Design Criteria for Collaroy-Narrabeen Beach (November 2016), design criteria are stipulated for several items including minimum average recurrence interval (ARI), minimum design life, criteria for addressing sea level rise, and rock durability. Igneous rocks must have a minimum dry density of 2,650kg/m3, a saturated point load strength index greater than 5.0MPa, sodium soundness weight loss less than 12%, no more than 15% olivine and no zones of secondary alteration such as chloritisation, and no signs of stress relief. The following sea level rise projections may be adopted, measured relative to 1990: Year Sea Level Rise 2050 0.4m 2150 0.9m
The Court was taken to footnote 2 on p 11 of the Specifications, which states: A minimum design life of 60 years is based on considerations included in Horton, P and Britton, G (2015), "Defining beachfront setbacks based on "acceptable risk" - is it the new approach?" 22nd Australasian Coastal & Ocean Engineering Conference and the 15th Australasian Port and Harbour Conference. This design life recognises, among other things, that redevelopment of beachfront properties typically occurs within such a period. In practice, rock incorporated within seawall structures would have a considerably greater life than 60 years based on the durability criteria specified (refer Table above). This enables reuse of rocks in the event a rock seawall needs to be modified as part of a redevelopment.

[14]

Northern Beaches Coastal Erosion Policy

The Policy guides the Council's approach to "the protection of public and private property from coastal hazards". It provides as follows: 1 Purpose This policy guides Northern Beaches Council's approach to the protection of public and private property from coastal hazards identified in the certified Coastal Zone Management Plan for Collaroy-Narrabeen Beach and Fishermans Beach dated (December 2016) (the CZMP). It constitutes the Coastal Erosion Policy referred to in the CZMP. As other Coastal Zone Management Plans on the Northern Beaches are certified, this policy will be reviewed and may be revised. … 4 Designing and siting protection works a) Private protection works should be built on private property unless it can be demonstrated that this is not appropriate due to site constraints, adverse impact on adjoining private and public properties, or adverse impact on the long-term amenity of the beach and surf zone. … c) All protection works shall be designed and constructed: i. To ensure the long-term coastal processes of the Collaroy-Narrabeen Beach embayment are maintained; ii. To ensure that the presence of the works will not adversely impact on adjoining private and public properties, or adversely affect the long-term amenity of the adjoining beach and surf zone; iii. Such that the works are only visible temporarily during and after significant erosion events; iv. To be contiguous, similar and integrated with adjoining protection works constructed in the embayment; v. To a consistent design standard that provides an appropriate level of protection from coastal erosion for affected properties; vi. To ensure public access is not adversely impacted by any new protection works; vii. To ensure access for ongoing maintenance of the works; and viii. In accordance with the minimum criteria outlined in the Collaroy-Narrabeen Beach Coastal Protection Works Design Specifications. … 10 Maintenance of beach amenity and access … f) Sea level rise may result in a progressive loss of beach width over coming decades. Council will work with the State Government and other coastal councils in NSW to facilitate the importation of sufficient quantities of sand to enable beach width and surf quality to be maintained. 11 Maintenance of protection works a) It is the responsibility of the Principal Asset Owner to ensure the coastal protection works are maintained in a manner that ensures the ongoing level of design performance. This includes but is not limited to: i. Undertaking a routine series of inspections; ii. Undertaking condition inspections following a significant erosion event; iii. Ensuring works are renewed in a timely manner such that the design level of protection is not threatened; iv. Ensuring works are upgraded as required in response to changes in impacts associated with frequency or intensity of storm events or sea level rise associated with climate change; v. Ensuring suitable access is retained to the works so that ongoing maintenance can be implemented by private and/or public owners; and …

[19]

Coastal engineering advice prepared by ICM

According to the coastal engineering advice in the ICM Report 2018, the works proposed in DA 2018/1878 aimed to upgrade the section of the seawall at the Property to a "consistent design standard that provides an appropriate level of protection as per the objective of the certified CZMP".
The proposed works described in the ICM Report 2018 are based on the previously accepted design outlined in the "Final Report on Upgrading of Sea Wall at Nos 1104 and 1106 Pittwater Road, Collaroy", dated February 2017, prepared by Water Technology (Water Technology Report 2017) (Appendix A to the ICM Report 2018) (development consent was previously obtained jointly for 1104 Pittwater Road and the Property).
Several plans were prepared by ICM to be read in conjunction with DA 2018/1878. The plan below depicts the proposed seawall at the Property.
A further plan identifies possible climate change adaptation methods ("Sheet 5" (1106 PW-05)). The three methods identified are: (i) install concrete wall/wave return at rear edge of seawall; (ii) install additional row of larger primary armour on crest; and (iii) install additional layer of larger primary armour. Sheet 5 identifies that "[d]esign review to be undertaken at the end of the structure's design life or in the event of sea level rise >0.55 metres".
The ICM Report 2018 lists the following design conditions, selected in accordance with the Water Technology Report 2017 and the CZMP: • Design event: 1% AEP • Design life: 60 years • Storm Tide (offshore): RL +2.06m AHD (incl. 0.55m for SLR in 2078) (DECCW 2010) • Storm Tide (at seawall): RL +3.5m AHD (incl. 1.44m wave setup) (SBeach) (Assumed scour depth - 1m AHD) • Peak wave period: Tp = 12 sec
The ICM Report 2018 comments on future adaptation options as follows: While the nominal design life of the structure is 60 years, it is also considered that this design life can be effectively extended provided that adequate maintenance and adaptation is undertaken. Future adaptation of the design would require modification of some elements to withstand future climate conditions. Final adaptation requirements would be subject to detailed design considering actual (and forecast) climate changes but would be expected to include the following: • Additional layer or larger armour rock to ensure hydraulic instability • Overtopping failure Raised crest level or wave return to reduce overtopping This adaptation strategy has been considered when developing the current design.
The Water Technology Report 2017 addressed coastal engineering issues associated with the design of the proposed upgrading of the existing rock-armoured seawall at both 1104 Pittwater Road and the Property. By way of background, the Water Technology Report 2017 states: • The proposed structural upgrading of the existing seawall is such that the entire structure is located within the property boundaries of both Nos. 1104 and 1106 Pittwater Road. • Rock armour for the seawall upgrading works has been designed so as to afford protection during a 100-year Average Recurrence Interval storm event that could occur within the sixty-year service life of the structure. • The design is such that should it be necessary at some time in the future to undertake further upgrading works to extend the service life of the seawall beyond the next sixty years (so as to accommodate emerging climate change influences), then this can also be done within the property boundaries. • The alignment of the upgraded structure is along the alignment of the existing seawall, and in alignment with the existing seawall at 1 Fraser Street, immediately to the north. • The crest level of the seawall upgrading works is such that there will be minimal overtopping by waves during the 100-year Average Recurrence Interval storm event. • Rocks currently within the existing seawall can be reused for the upgrading works, however additional rocks will be required to construct the proposed works.
Under the heading, Selection of the Design Event, the report explains that when considering how seawalls may be damaged or fail, it is necessary to select a particular storm "event" which the structure must accommodate (called a "design event"). Selection of the appropriate design event is based on the probability of that event occurring within the length of time the structure is expected to serve its purpose, which for coastal protection works along the Collaroy foreshore is 60 years. Deep water waves taken into account in the design of the seawall included predicted wave height statistics for 50, 100, 200 and 500-year ARIs.
The Water Technology Report 2017 refers to the NSW Coastal Risk Management Guide produced in 2010 by the Department of Environment, Climate Change and Water (DECCW) (2010 DECCW Guide). (I note that the projected sea level rise figures contained in the 2010 DECCW Guide of 0.4 metres by 2050 and 0.9 metres by 2100 relative to the 1990 mean sea level are figures taken from the NSW Sea Level Rise Policy Statement (2009 DECCW Policy), which is referenced in the CZMP extracted above at [19]).
In discussing the accommodation of future climate change influences, the Water Technology Report 2017 describes the implications of potential change to the climatology of eastern Australia and possible sea level rise as necessary considerations in the structural design of foreshore protection works. Any increase in offshore wave characteristics are alone unlikely to result in significant practical changes to the required size of armouring foreshores. The greater threat is posed by a rise in sea level. The fundamental design philosophy adopted for addressing the potential effects of future climate change in the design of seawall upgrading works has included adopting a service life of 60 years, considering implications to storm tide levels of future climate change, implications of a 10% increase in offshore wave heights and a 5% increase in the peak spectral period to the year 2076, and addressing issues relating to the erosion of the armour layer and the potential overtopping of the seawall.

[20]

Council's development assessment report for DA 2018/1878

The Council's development assessment report dated 10 April 2019 for DA 2018/1878 stated: Comment: Background In order for Section 27 to be satisfied, the consent authority must form the opinion that the above matters are achieved over the life of the works. Information provided by the applicant To assist Council, the applicant has submitted coastal engineering advice (prepared by a suitably qualified coastal engineer) that states that the structure has a design life of 60 years. This advice has been reviewed and agreed with by Council's internal and external coastal experts. What is "design life"? A design life of 60 years does not mean that the structure will fail in year 61. Instead, it means that, given the amount of information currently available, coastal hazards and processes (including the effects of sea level rise and climate change) beyond 60 years from now are too unknown to make accurate predictions at the time of granting consent (i.e. April 2019). It is possible that the works, as approved, will exist indefinitely. However, this unknown state of the coast beyond 2079 raises the question of how a consent authority can be satisfied that the works will meet the requirements of section 27 over the life of the works. Satisfying Clause 1(a)(i) The works are entirely on private land and set back 1.74m from the eastern boundary (i.e. the boundary/ adjoining the public beach). A Council maintained road reserve exists to the north of the site. This road reserve will include coastal protection works that have been budgeted for. Therefore, for the purpose of this assessment, it can be assumed that the coastal protection works to the road reserve will be built. The Council works will include provision for public access to the beach, even in the event of a storm or severe coastal erosion. The above factors demonstrate that the proposed works will have no unreasonable impact on public access to the beach in their current form and with current knowledge of coastal processes. Based on this, Council can be satisfied that the works will not limit or be likely to unreasonably limit public access to or the use of Collaroy Beach for the period of the design life. Satisfying Clause 1(a)(ii) As discussed above, beyond 60 years, the state of coastal hazards (incorporating sea level rise and other impacts of climate change) is too uncertain to be able to make accurate predictions as to whether the works will afford the appropriate level of protection to the property behind and not adversely impact public safety in the event that they are damaged beyond repair. If the works are damaged beyond repair at some stage in the future, new coastal protection works that are designed and constructed in accordance with the prevailing coastal hazard forecasts of the time would be required. Such works would vary so significantly from those approved as part of this consent that a new Development Application would be required. The key point is that, at the time of granting any consent, the coastal experts (and therefore Council) cannot be certain of the future coastal hazards. This uncertainty means that Council cannot be satisfied that the works will not, over the life of the works, pose a risk to public safety, which is the test to be met. If this test is not met, Section 27 states that development consent must not be granted. Given it is effectively impossible to forecast the state of the coast for the life of the works, a method needs to be found of being able to grant consent for the time period that Council can be certain that the works will not pose a risk to public safety. The solution is to grant a time limited consent, via a condition that specifies the consent only operates for 60 years, in accordance with the design life as articulated in the Coastal Engineering Report accompanying the Development Application. The condition includes a mechanism whereby the owners of the wall can obtain a report by a suitably qualified coastal engineer that can recommend an extension to the design life. If the findings of this report acceptable to Council, Council can extend the operation of the consent for a reasonable time period. This process can be repeated in perpetuity. In this way, each review will be conducted based on the best and most current knowledge of coastal processes available at that time, and, as such, any extension granted will be based on updated information. Consent can therefore be granted by Council, as the consent authority, being satisfied that, for 60 years, the proposed works will not pose a risk to public safety. As such, a 60 year time limited consent condition will allow Clause 1(a)(ii) to be satisfied and allow development consent to be granted.

[21]

Conditions of Development consent DA 2018/1878

When originally commenced, this appeal sought the deletion of a number of conditions, including Condition 6 requiring the preparation of a Maintenance Management Plan (MMP) for the works. That issue was agreed in the s 34 conciliation process and the Applicant has now prepared the MMP as required by Condition 6. Condition 6 addresses s 27(1)(b) of the CM Act.
Condition 6 states: 6. Maintenance Management Plan for Coastal Protection Works A Maintenance Management Plan (MMP) is to be prepared for the maintenance of the coastal protection works for their intended design life. The MMP is to be prepared by a suitably qualified coastal engineer and is to be approved by Council in writing prior to issue of the construction certificate. The MMP must be complied with at all times. The MMP may be modified from time to time with the approval of Council. These modifications to the MMP must also be made (if necessary) each time the design life is extended in accordance with condition 41. This is to ensure the MMP continues to be suitable in perpetuity. Reason: To ensure a plan is in place for the on-going maintenance of the works prior to the star of construction and at each extension of the design life.
Condition 7 states: 7. Maintenance Obligations and Public Safety The owners of 1106 (Lot 8 DP 5234) Pittwater Road, Collaroy must provide an irrevocable bank guarantee (or other suitable legally binding obligation) to Council prior to the issue of any construction certificate in the amount of $1000 per lineal metre of work (based on the length of the seaward property boundary) to undertake maintenance of the coastal protection works in the event that they are damaged as a result of coastal storm, including to undertake any works required to remove any threat to public safety arising from the coastal protection works including the removal of rocks or debris, that have become dislodged from the works, from the public beach and adjacent public land and implement the Maintenance Management Plan (MMP). In this condition "maintenance" means the restoration of the works to a standard in accordance with the approved plans and specifications following any damage caused by a coastal storm and implementation of the MMP. The bank guarantee (or other suitable legally binding obligation) is to be replenished if drawn
Condition 7 addresses s 27(2) of the CM Act.
Condition 41, deletion of which is sought, states: 41. Time limited consent The consent operates for 60 calendar years from the date of the issue of the occupation certificate and such other period as may be extended with the written approval of Council in accordance with the following. A minimum of three (3) years prior to the date of 60 years after the issue of the occupation certificate for the works, the owner/s shall procure, at no cost to Council, a Review Report, by a suitably qualified independent coastal engineer. The report must review the performance of the works using the evidence and coastal hazard predictions known at that time. The report must consider whether: ○ The works are satisfactory in their current state (i.e. with no upgrades required) and recommend an extension to the design life for an extra period of time consistent with evidence and coastal hazard predictions known at that time, or ○ Upgrades to the works are required so that they can provide the necessary level of protection, or ○ Removal and replacement of the structure with an alternative design is required, or ○ Demolition and removal of the coastal protection works in the interest of public safety is recommended. ○ The Review Report shall be submitted to the Council for consideration not later than twelve (12) months prior to the end of the design life (i.e. the date of 60 years after the issue of the occupation certificate in the first instance, or the extended design life once the first review has been completed). If the Review report concludes that the structure is satisfactory without any upgrades that would require further planning approvals, Council may, in writing, approve an extension of the term of the development consent for the period recommended in the report, or such lesser time as the Council considers appropriate. The development consent cannot be considered to be extended without written approval from Council. If the Review Report recommends any upgrades to the works, these upgrades must be dealt with under the planning laws at that time. If planning laws at the time allow the recommended upgrades to be undertaken without formal approval, Council will still need to approve any extension to the development consent. If the Review Report recommends removal and replacement of the structure with an alternative design, the replacement structure will be the subject of a further development application for consent to Council. If the Review Report recommends demolition and removal of the coastal protection works in the interest of public safety, such removal will be undertaken by the owners at their expense. Any written approval from the Council extending the design life is to be recorded on the 10.7 Certificate for the land and Council's register of development consents. A further Review Report will be provided to Council a minimum of twelve (12) months prior to the end of the extended design life, on each extension, with the above process repeated. In the event that Council does not accept the findings of the Review Report (including an amended or replacement report) that may be provided in accordance with this condition, the consent will not lapse until an application to modify this condition, or an appeal against the refusal of Council to accept the findings, has been formally determined by Council, the Land and Environment Court or its successor. Any application or appeal must be lodged within 6 months of Council's decision to not accept the findings. Reason: To allow a mechanism to prevent the works from ever unreasonably limiting public access to or the use of the beach, and from posing a threat to public safety. This is in line with Section 27 of the Coastal Management Act 2016.

[25]

Joint report of coastal engineers

Experts Mr Greg Britton (Council's expert) and Mr Angus Jackson (Applicant's expert) prepared a joint report dated 3 August 2020. It provides: EXECUTIVE SUMMARY The Experts agree the following: • Section 27 of the Coastal Management Act 2016 requires the consent authority to be satisfied that the works will not, over the life of the works, pose or be likely to pose a threat to public safety; • it is effectively impossible to accurately forecast the state of the coast for the life of the Works; • a 60 year period is a reasonable period to adopt for design purposes; • the rock and geotextile will have effective lives longer than the nominal 60 year design life of the Works and that the life and use of the Works may extend beyond the 60 year period, • inspections and a report by a suitably qualified coastal engineer after any storm event that damages the support or performance of the works will best determine any issues with structural performance, public safety and the need for modifications. Mr Jackson further states: As detailed in the report, it is my opinion that: • The uncertainty re the future state of the coast is adequately accommodated by the low risk design approach combined with ongoing maintenance and the Works will not, over the life of the works, pose or be likely to pose a threat to public safety. • The works have been designed in accordance with the relevant guidelines with factors of safety and, with maintenance, the effective life of the works is likely to be much longer than the nominal design life of 60 years. • Rather than use the nominal design life of 60 years for technical review, the need for and timing of any modifications will be best determined by the ongoing inspections and reports for the maintenance of the Works by a suitable qualified Coastal Engineer after storm events as required in the approved Maintenance Management Plan (MMP). • The approved MMP can be easily amended to better address uncertainty and safety than the proposed Cl 41, by adding that the Coastal Engineers report after the storm events must also review the performance of the works using the evidence and coastal hazards known at that time and consider whether the works are satisfactory or if modifications to the works are required with any further planning approval applicable.
Whilst the joint report reflects agreement between the experts regarding the impossibility of forecasting the state of the coast for the life of the works with respect to climate change, it records disagreement as to the impact of this uncertainty on the works and consequent impact upon public safety.
Mr Jackson (Applicant's expert) describes the works as having been designed for uncertainty, with conservative design parameters to ensure that the works can accommodate the uncertainty of climate change without adverse effects on public safety. The works are required to be maintained in a safe condition in accordance with the MMP. Should the climate change conditions contemplated by the design be exceeded, it is reasonable to expect the frequency and extent of maintenance to maintain the structure as approved would increase. Based on the low risk design approach, combined with ongoing maintenance and the possibility of coastal management works to help offset climate change, the life of the works is likely to exceed the design life of 60 years, and public safety will not be impacted upon by the uncertainty of climate change.
Further, on the necessity of a time limited consent, Mr Jackson says the rock and geotextile structural components specified for construction of the seawall will have effective lives considerably longer than the nominal 60-year design life of the wall. As such, the life and use of the works may extend considerably beyond the stipulated 60-year period. To ensure that the works are maintained and will pose no threat to public safety, the Council's Specifications (see [27] above) include provision for maintenance and "topping up". The works have been designed so as to be able to be modified for conditions beyond those expected in 60 years. It is generally accepted that adequate maintenance with any necessary modifications would extend the life and safe use of the works.
In contrast, Mr Britton (Council's expert) says the stability of the works could be impacted by climate change which in turn could impact upon public safety. The uncertainty around forecasting the state of the coast into the future, having regard to climate change and the linkage between climate change, structural stability and public safety, is such that it is considered prudent to review the adequacy of the structure leading up to the period of 60 years. The review may lead to a number of outcomes as noted in Condition 41.
Mr Britton agrees that the rock and geotextile components specified for construction will have effective lives longer than the nominal 60-year design life of the works and that the life and use of the works may extend beyond the 60-year period. These factors, coupled with the uncertainty of climate change, are the reason why review of the adequacy of the structure after a period of 60 years is considered prudent. It is agreed that the concept of "topping up" outlined in the Specifications could be potentially employed as an engineering measure as a consequence of a review carried out in accordance with Condition 41. However, strictly speaking, the two metre tolerance referred to under the definition of "topping up" relates to the position of the "existing seaward-most rock protection" as visible when measured on 8 June 2016, not the position 60 years into the future.

[26]

Oral evidence of coastal engineers

Mr Britton and Mr Jackson gave concurrent oral evidence. In cross-examination of Mr Jackson, concerning the design of the coastal protection works attached to DA 2018/1878 and also the MMP, Mr Jackson agreed the specified rock of dimensions between three and five tonnes had the capacity to exist for longer than 60 years. The same was true of the man-made geotextile layer, a man-made substance. Mr Jackson said this had capacity to exist as a functioning geotextile layer for over 100 years. Mr Jackson said these components can be arranged with flexibility in order to perform a coastal protection function. He agreed that the geotextile layer could not be arranged outside the large boulders for the seawall to function properly, as the geotextile layer is designed to prevent erosion of the sand that sits landward of a storm event. Mr Jackson agreed that the design life of a seawall is the period for which the design will serve its function. Rocks must meet certain specifications of length, durability, width and weight. Mr Jackson said he expected that the works would last much longer than 60 years, however he conceded that what was in the approved plan may not be appropriate for the environment in 60 years. The service life is different to the design life. The predictions for the design include several safety factors, so that even if these were to be exceeded the wall is likely to remain acceptable. The flexible structure needs to be maintained at times during its service life when subject to storm impacts.
When asked whether the extent of changes due to climate change are materially different to what they were 40-50 years ago, Mr Jackson said that the numbers are more precise now but that the understanding was also pretty good 40-50 years ago. Mr Jackson said that when he talks about a "flexible structure" he means the seawall will be able to change shape. It is designed so that boulders can slump to accommodate erosion, and an additional rock can be added to the top. When asked whether adding rocks to the top would be changing the design of the plan, Mr Jackson disagreed and said this is a form of maintenance.
Mr Jackson was taken to Sheet 5 (1106 PW-05) from the ICM Report 2018, which he prepared. Mr Jackson included on Sheet 5 three possible additional works which could be implemented. It states "[d]esign review to be undertaken at the end of the structure's design life or in the event of sea level rise >0.55 metres." Sheet 5 is an example of adaptation work that could be undertaken if required in 60 years or if a sea level rise greater than 0.55m occurs. Mr Jackson prepared Sheet 5 at the request of the Council during the assessment process to show how the works could be adapted for sea level rise. He proposed three options and agreed that he could include more if asked. He agreed his proposed options are modifications which would require approval. They were not approved as part of the development application (DA). He agreed that it was not possible to know if these or any other alternatives would be appropriate in 60 years' time.
When asked why he said these adaptation measures should be addressed in the MMP, Mr Jackson explained that he meant there is some uncertainty given sea level rise and that although the seawall is designed well, it will need ongoing maintenance assessment by an engineer. If the seawall becomes inadequate, the engineers will need to identify that.
Turning to the Water Technology Report 2017, Mr Jackson agreed that in preparing the coastal engineering advice in the ICM Report 2018 he did not redo the assessments of sea level rise undertaken by Water Technology as these were adequately done. He changed the design to increase its resistance to overtopping, yet a year earlier Water Technology had prepared a different design. The crest was amended to be longer and additional rocks were added. Mr Jackson used a 2016 guideline from Europe which is more conservative than the usual Australian approach. He did not agree he had created a different design but rather had added a different detail. His design moves the wall closer to the ocean by 1.5m and aligns with coastal protection work to be done by the Council on Frazer Street. Mr Jackson considered he refined the original design. Mr Jackson did not agree that the addition of 2.4m of rock was not an insignificant amount.
In re-examination of Mr Jackson, when asked to clarify what he meant by "factors of safety" involved in determining the design and service life of the works, he stated that the safety factors concern the size of boulders needed for the wave forces, prevention of overtopping, and larger geotextile fabric. All the components have a much longer life than 60 years. In stating that the works had been designed with the worst case scenario in mind, being in 60 years with up to 0.55m sea level rise and a one in 100 storm event, if such events were to occur the damage to the works would likely be minor, say 5%, requiring relatively minor maintenance. Mr Jackson said the seawall was designed so that it will protect the Property in 60 years. Even in a badly damaged state, the seawall will still provide protection.
Mr Britton in chief stated that the Water Technology design was for sea level rise as currently predicted for 60 years (being until 2076, 60 years from 2016), in order to respond to wave height. The wave height, cubed, determines the mass of the rocks required in the seawall. The expectation is that the seawall would satisfy the original design criteria until 60 years into the future. Sea level rise is very important for determining design wave heights, as the wave height increases. Mr Britton said that although he was quite comfortable with the design up until the period of 60 years, it is his opinion that a point will come where maintenance activities to reinstate the existing approved structure will go from being maintenance into something that must be done by way of adaptation.
While Mr Jackson referred to seawalls at Wamberal and North Entrance which have recently failed continuing to provide protection, their failure caused rocks to slump onto the public beach. That is a potential consequence 60 years into the future if sea level rise continues and if wave heights at the back of the beach get bigger and more damage than the nominal 5% included in the current design criteria occurs. Some of those rocks may end up on the public beach. Maintenance can respond adequately up to a point, but at some point, upgrade or adaptation will be necessary.
Mr Britton explained that when it comes to modelling for sea level rise, engineers and local governments refer to the Intergovernmental Panel on Climate Change (IPCC) which reasonably regularly updates climate change predictions, particularly relating to sea level rise. The Water Technology Report 2017 was based on figures from 2010. Mr Britton said he was comfortable with the figures used in the Water Technology assessment.
In cross-examination of Mr Britton he agreed the 60-year period of design life comes from Council documents such as the CZMP. The Council identified actions to manage current and projected future risks from coastal hazards. All upgrading works and new coastal protection works have to conform to the Specifications. The area south of Devitt Street requires the implementation of works which are co-ordinated across various properties. Specifications have been provided in the Policy and the Specifications. The Council considered it necessary that protection works south of Devitt Street be upgraded on both public and private land. A design criteria includes the potential for a storm event of a minimum of 50 years. The subject works have been designed for a 100-year storm event, exceeding the minimum requirement.
Mr Britton agreed that the 60-year design life was chosen in recognition that property owners often seek to redevelop beachfront properties within that period of time, in the order of 50, 60, or 70 years. Mr Britton stated that the period of 60 years takes into account that factor, because when people are redeveloping, they will often change or alter their seawall design.
When asked about what is meant by the "durability criteria" of rocks, Mr Britton explained that rock durability requirements are density, strength and sodium sulphate soundness. Mr Britton did not agree that a seawall structure could well have a considerably greater life than 60 years, as that confuses the longer life of individual rocks with the arrangement of those rocks in the rock revetment to withstand certain hydraulic loads, namely wave action.
Mr Britton wrote the Council's design specifications in the CZMP and related documents. Footnote 2 states that the minimum design life in reference to the coastal protection structure is based on considerations including a paper co-authored by Mr Britton titled "Defining beachfront setbacks based on acceptable risk" (the Horton-Britton paper). The acceptable risk approach outlined in the Horton-Britton paper is essentially a line on a map to assist a planning authority as opposed to looking solely at hazard lines. The design life of a minimum of 60 years was on the basis of a typical design life of a residential structure. Mr Britton's company, Haskoning, has sought to develop a methodology for defining setbacks for residential beachfront development based on acceptable risk methodology. The design life was a minimum 60 years, being the typical design life of a residential structure. Mr Britton did not take the design life of a dwelling and apply that to protection works, but the two are interrelated in that consideration of a minimum design life for a coastal structure has to have regard to the structure it is protecting.
He agreed that the southern section of Collaroy-Narrabeen Beach would require coastal protection works in front of properties for the foreseeable future 60 years and beyond. Protection will be needed on public and private land to ensure that flanking effects are not experienced whereby an unprotected property adjacent to a property that is protected will experience an exacerbation of erosion on the adjacent unprotected property.
Mr Britton explained that the Council has constructed coastal protection works in front of the public carpark to the south of the Property which do not have a 60-year time limited condition. Mr Britton understood that there is a maintenance requirement in relation to those works to ensure they are fit for purpose. Frazer Street to the north and Frazer Reserve to the south of the Property are to have coastal protection works built under the Pt 5 determination which are also not time limited. These works are subject to the Policy. Mr Britton agreed there was no time limit specified in the Policy. He said there is a need to ensure that works are maintained to be fit for purpose going forward which can be done by a MMP, until such time as it no longer becomes maintenance of the original structure. A DA would then need to be submitted.
In re-examination Mr Britton agreed that the redevelopment of the residential property at 1 Frazer Street is an example with which his firm was involved in of a redevelopment which included seawall augmentation.
Returning to the Horton-Britton paper referred to in footnote 2 of the Specifications, the 50 to 100-year period is a typical design life for coastal structures. Sixty years is the minimum. It is also a common projection for sea level rise, as time periods beyond this become more difficult to project sea level rise for.
By reference to footnote 2, Mr Britton agreed that the reuse of rocks may be possible after the 60-year design life of the works. The rocks could be reincorporated back into a new structure. When asked about wave height and wave climate, he explained that currently the design of the works has a suitable rise component within it to determine the wave climate until 2076. Beyond 2076, sea level is expected to rise further. The design wave climate at the back of the beach for 2076 is a little over 3m. After another 20, 40, or 50 years, another 10% or so increase in wave height is likely. That 10% increase in wave height increases to about a 30% increase in the mass of the individual rocks required, because the hydraulic stability of the seawall is a function of wave height cubed. Because sea level rise may change over time beyond predicted levels beyond 2076, a review needs to be undertaken to see whether the existing structure is fit for purpose or requires modification which would require a further DA. It is difficult to predict beyond 60 years at present. For this reason, beyond 2076 a review will need to be done to determine if the works are fit for purpose.
The IPCC releases reports every two to three years about sea level rise predictions. On the current state of knowledge, regardless of IPCC reports, 60 years is an accepted period for which to predict risk.
Commenting on Mr Britton's evidence, Mr Jackson said he considers seawalls are very robust and differences in design parameters can be accommodated with maintenance. The MMP requires that the engineer undertaking the inspection apply their knowledge of design and sea level rise and can accommodate sea level rise.
Mr Britton considered that towards the end of the design life of 60 years, consideration should be given to whether the works continue to be fit for purpose without any modification, or if it requires adaptation.

[27]

History of the imposition of time-limited condition by the Council

The parties tendered two additional bundles of documents relevant to the history of the imposition of a time-limited condition by the Council: Applicant's Addendum Bundle (Ex C) and Council's Addendum Bundle (Ex 4).
The Council's Addendum Bundle (Ex 4) contains: (i) a notice of orders made by the Court approving DA 2017/0825 for 1104-1106 Pittwater Road subject to conditions; (ii) the Council's notice of determination approving DA 2018/1878 for the Property subject to conditions (the DA the subject of these proceedings); (iii) the Council's notice of determination approving DA 2018/1289 for 1150-1186 Pittwater Road subject to conditions; (iv) the Council's notice of determination approving DA 2017/0947 for 1114 Pittwater Road ("Flightdeck") subject to conditions; (v) the Council's notice of determination approving DA 2017/0591 for 1126-1144 Pittwater Road subject to conditions; (vi) the Council's notice of determination approving DA 2019/1138 for 1122 Pittwater Road ("Shipmates") subject to conditions; and (vii) the Council's notice of determination approving DA 2020/0301 for 1174-1182 Pittwater Road subject to conditions. The Court or the Council imposed a "time limited consent" condition in each of these DA determinations, namely in and from 2018.
The Applicant's Addendum Bundle (Ex C) contains: (i) the DA form and SEE for DA 2020/0595 for 1104 Pittwater Road (the property next door) lodged 9 June 2020 and (ii) modification application form and statement of modification for Mod 2020/0369 for 1122 Pittwater Road ("Shipmates"). Mod 2020/0369 seeks deletion of Condition 46 "time limited consent" inter alia.
The Applicant also relied on Council's approval of DA 2014/1250 for coastal protection works approved at 1 Frazer Street, immediately to the north of the Property, without the imposition of a time limiting condition, and the Council's approval of Mod 2014/0068 relating to DA 2008/1216 at 1184-1186 Pittwater Road (nearby block of units) which was also not subject to a time limiting condition. The Applicant submitted that the Council had not been consistent in imposing a time limited condition on coastal protection works.

[28]

Applicant's submissions

There is no doubt that the works the subject of this case are essential for the indefinite protection of the improvements on the Property. The Council's assessment report identifies that the Property is on the foredune and suffered significant erosion during storms in June 2016. To protect the most vulnerable stretch of Collaroy-Narrabeen Beach, which includes this Property, a series of connected coastal protection works will need to be constructed. The approved works are entirely located on the Property and are intended to be contiguous with proposed coastal protection work on adjoining properties. The works have been designed as required by the Specifications.
Rock armour for the protection works has been designed so as to afford protection during a 100-year ARI storm event that could occur within the life of the seawall. The height of the crest wall is such that there will be minimal overtopping by waves during the 100-year ARI storm event, per the coastal engineering advice provided by the ICM Report 2018.
In accordance with the Council's published design specifications, the protection works will be constructed to have a minimum design life of 60 years. That does not mean, however, that after 60 years the rock wall with its primary and secondary armour will fail or will no longer be fit for purpose. As footnote 2 to the Specifications advises: This design life recognizes, among other things, that redevelopment of beachfront properties typically occurs within [60 years]. In practice, rock incorporated within seawall structures would have a considerably greater life than 60 years based on tire durability criteria specified ... [emphasis added]
The wall is designed to retain structural integrity. With appropriate maintenance, its lifetime will stretch well beyond the nominal design life of 60 years. As Mr Jackson, the Applicant's coastal engineer, confirmed in correspondence dated 23 May 2018: I confirm that seawalls are generally designed for a nominal 50 year life with a 1 in 100 ARI erosion event including seal level rise impacts and with any long term erosion trends. Well designed and constructed seawalls can last "indefinitely" with ongoing maintenance, as required, plus long term adaptation measures such as raising tire crest for sea level rise. [emphasis added]
It is also agreed between the experts that "topping up", as defined in the Specifications, could be used as an engineering method to upgrade the protection works. The concept of "topping up" inherently relies on the retention of existing rock, and either repositioning the existing rock and/or placement of new imported rock against existing rock. This is also the method considered most appropriate for Frazer Reserve. "Topping up" has occurred at 1 Frazer Street (disputed by the Council).
In determining the DA the Council was required to assess the protection works, having regard to the jurisdictional requirements of the CM SEPP, the Warringah LEP and s 27(1) of the CM Act. The Council was satisfied that the preconditions to the grant of development consent had been met. This is confirmed by the Council's assessment report. In any event, the presumption of regularity in the granting of the development consent requires the Court, acting as consent authority, to assume that the Council considered and, in reaching the decision to grant the development consent, was satisfied about the matters mandated for consideration in the CM SEPP, the Warringah LEP and s 27(1) of the CM Act: Newton v Great Lakes Council [2013] NSWLEC 1248 (Newton). The Council granted development consent to DA 2018/1878 on 10 April 2019 subject to conditions, including the condition headed "Time limited consent", limiting the life of the development consent to 60 years.
Whilst the pre-conditions in s 27 are not jurisdictional in relation to modification applications given the grant of a consent to a modification application does not involve the grant of development consent (s 4.55(4)), the Applicant nevertheless acknowledges the importance of this section when considering a modification application to a development that had to satisfy this section when initially consented to.
The pre-conditions in s 27 are jurisdictional in relation to the grant of development consent. The Court, exercising the functions of the consent authority, must form the requisite opinions of satisfaction about the matters in s 27(1) in order to enliven the power in s 4.16 of the EPA Act to grant development consent for the purpose of coastal protection works: 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 (2018) 235 LGERA 345; [2018] NSWLEC 207 (Ralph Lauren) at [59] per Preston CJ.
Even though the development consent has already been granted, the removal of the time limited condition does not in any way undermine what the consent authority needed to have been satisfied of under s 27. It is difficult to see how a time limited consent assists the consent authority being satisfied of the matters in s 27. Specifically, how is it that without the time limited condition the works might over their life unreasonably limit public access of the beach, or pose a threat to safety? The works are entirely on the Applicant's land and need to be maintained in accordance with a stringent plan. It is equally unclear how the time limit constitutes a satisfactory arrangement for the restoration of the beach if increased erosion is caused by the works, and for maintenance. These are addressed by the security condition (Condition 7) and maintenance plan condition (Condition 6).
The MMP requirement in Condition 6 binds all future land owners. These obligations, together with the design of the rock revetment wall, will ensure that the works remain safe throughout their life. That life extends well beyond 60 years. Public safety will be maintained throughout that life. Condition 7 requires an irrevocable bank guarantee be provided to the Council to ensure maintenance of the works is undertaken if damaged as a result of a storm. That condition was imposed to satisfy the requirement of s 27 of the CM Act.

[30]

The condition is unnecessary

Relevantly, whilst the coastal engineers agree in the joint report that a 60-year period is a reasonable period to adopt for design purposes, they also specifically agree as follows: • the rock and geotextile will have effective lives longer than the nominal 60 year design life of the Works and that the life and use of the works may extend beyond the 60 year period; • inspections and a report by a suitably qualified coastal engineer after any storm event that damages the support or performance of the works will best determine any issues with structural performance, public safety and the need for modifications.
This agreement is consistent with the design specifications published by the Council identifying that in practice, rock incorporated within seawall structures would have a considerably greater life than 60 years. The nominal "design life" of the rockwall is not equivalent to "the life of the works" within s 27(1) of the CM Act.
Further, Mr Jackson states as follows in the joint report: Rather than use the nominal design life of 60 years for technical review, the need for and timing of any modifications will be best determined by the ongoing inspections and reports for the maintenance of the works by a suitable qualified coastal engineer after storm events as required in the approved Maintenance Management Plan.
In those circumstances, the alternative mechanism in the condition which requires the landowner to submit a further DA for upgrade works at the end of 60 years if the wall is not in a satisfactory state at that time is superfluous and unnecessary. The adoption of the ongoing maintenance obligations in the MMP ensures that the assessment of the state of the seawall is carried out throughout the operation of the consent, and not merely at the end of 60 years.
Whilst the protection works have a "design life" of a minimum of 60 years, there is no engineering reason why the protection works should be removed after 60 years. The evidence demonstrates that, with ongoing maintenance, they could continue to be structurally stable well beyond 60 years and serve the purpose of protecting the Applicant's property.
The MMP is important. The seawall structure is not static. The works will be maintained and repaired to reflect any damage caused by storms on an ongoing basis. The necessary review takes place every time there is a storm. According to Mr Jackson, the life of the works is likely to exceed the design life conditions of 60 years and public safety will not be affected by uncertainty caused by climate change.

[38]

Consideration - Appeal dismissed

I am determining a modification application as provided for by s 4.55 of the EPA Act. The parties did not expressly address the requirements of s 4.55 which identify when a development consent can be modified. It does not matter in the circumstances of this case whether I consider the application under subs (1A) or subs (2). Under subs (1A), modifications of a development consent may be approved if a council (or the Court) is satisfied the development as modified is of minimal environmental impact and the consent as modified relates to substantially the same development as the development for which the consent was originally granted inter alia. Under subs (2), modification of a consent can be granted if the development is substantially the same development as originally granted consent inter alia. Section 4.55(3) requires the consideration of relevant matters in s 4.15(1) and the reasons given by the consent authority for the grant of development consent.
The imposition of a time limited condition as part of a development consent is lawful. There is no dispute that the Court can impose Condition 41 given s 4.17(1)(d) of the EPA Act. Section 4.16(4) enables a council to approve part of a DA. The Council and the Court are not required to approve the DA submitted as a whole. Accordingly there is no lawful reason why Condition 41 cannot be imposed in terms of the EPA Act.
The Applicant's submissions concern the operation of s 27 of the CM Act and otherwise identify merit reasons for why the condition is unjustified, unnecessary and unreasonable. According to the Applicant, as identified above in [92], compliance with s 27 is not required for a modification application, unlike the granting of a development consent. He accepts that s 27 is important in informing the Council's decision to approve DA 2018/1878 and should be considered in relation to this modification appeal. I agree. Given the importance of Condition 41 to the operation of the consent and that it was clearly imposed by the Council in order to satisfy the matters identified in s 27, I will consider it.

[39]

Strategic planning context

The merits assessment process and the application of s 27 of the CM Act are informed by the Council's strategic planning context. Collaroy-Narrabeen Beach was subject to major storms in 2016 when a lot of the beach and adjoining public and private land was badly eroded. As emphasised by the Council's submission above in [116]-[117], the Council has undertaken extensive coastal management planning since then, resulting in the CZMP in 2016 and related documents which include the Specifications and the Policy. The CZMP extracted above in [18]-[25] identifies that the area of coast where the Applicant's property is located is the part of Collaroy-Narrabeen Beach most exposed to the impacts of coastal storms. Sea level rise caused by climate change is an ongoing threat to the area (in [19] above) and the 2009 DECCW Policy planning benchmarks, which specify increases in sea level over a 60 year period based on 1990, is referred to. Current and projected risks from coastal hazards which require response by private landowners are outlined in [20] above. Responsibility for coastal protection works by private landowners on their land is identified in [21] above. The Property is identified in Appendix K of the CZMP as being in the most at risk category, category 1 (immediate hazard area covers at least 25% of the lot) and response category B (coastal protection works considered technically feasible but not cost-effective for public funding) (in [23] above).
The Specifications and Policy are extracted above in [26]-[29]. The Specifications contain design criteria to be applied for consistent and appropriate coastal protection works. A design life of 60 years for coastal protection works is identified in the Specifications, extracted above in [26]-[28], referring to the Seawall Design Criteria for Collaroy-Narrabeen Beach which includes sea level rise projections of 60 years relative to 1990 as identified in the 2009 DECCW Policy. The Specifications refer to the Horton-Britton paper in footnote 2 extracted in [28] above which states that a design life of 60 years recognises, among other things, that redevelopment of beachfront properties typically occurs within such a period, that rock incorporated in seawall structures is likely to have a far greater durability than 60 years and that such rock can probably be reused if there is redevelopment.
The Policy is referred to in the CZMP and identifies design considerations for protection works. The Policy guides the Council's approach to the protection of public and private property from various coastal hazards, including sea level rise which the Policy identifies "may result in a progressive loss of beach width over coming decades".
These documents prepared by the Council collectively identify the coherent and comprehensive framework being applied to coastal protection works in vulnerable parts of the coast, particularly where the Property is located. These documents further identify that a 60-year timeframe for considering sea level rise has been adopted by the Council for strategic planning purposes.
The Review of Environmental Factors for the public works to be undertaken under Pt 5 of the EPA Act by the Council considered the Council's strategic planning policies for the coast and identifies that the works have a minimum structural design life of 60 years for the area of the coast which includes the Property (see [32] above). The Council is responsible for undertaking coastal protection works at Frazer Street, next door to the Property, as part of the Pt 5 project.
The 2009 DECCW Policy, which identifies sea level rise planning benchmarks of 0.4m at 2050 and 0.9m at 2100 relative to 1990 is referred to in the CZMP as already noted above in [125]. The CZMP also states that the 2009 DECCW Policy is no longer NSW Government policy. I note that Mr Britton's understanding of current NSW Government policy is that each local council with responsibility for the coastal zone along the NSW coast is now required to develop its own benchmarks for the assessment of risk from sea level rise. The source of relevant guidance is the IPCC which issues guidance on sea level rise every two to three years (see above in [69]). I infer given the continued application of the 2009 DECCW Policy and the 2010 DECCW Guide that these provide useful guidance, as the coastal engineers agreed in this matter.

[41]

Condition 41 not unjustified

The Applicant submitted that the Council was prevented by its approval of the DA pursuant to s 27 of the CM Act from imposing Condition 41 because the development sought was not time limited. According to the Applicant, the Council therefore had to be satisfied the works were acceptable for an indefinite period for the purposes of s 27 before granting development consent. Section 27 required the Council to be satisfied of certain matters before development consent could be granted, namely that over the life of the works they would not unreasonably limit public access or use of the beach or pose a threat to public safety.
The first difficulty in accepting that submission is that that was not the approach taken by the Council, as clearly found in the Council's assessment report. It is clear that the Council understood it must be satisfied of the matters in s 27(1)(a)(i) and (ii) of the CM Act, a precondition to the grant of consent as identified in Ralph Lauren at [152]. The Council's assessment report is extracted above in [45] and considers s 27 of the CM Act at length in relation to subs (1)(a)(i) and (ii). The Council identifies that the proposed works submitted as prepared by a qualified coastal engineer have a design life of 60 years. That conclusion is confirmed by the Water Technology Report 2017 provided by ICM to the Council and is consistent with the coastal engineering evidence of Mr Jackson and Mr Britton before the Court. The Council identifies that the proposed works satisfy subs (1)(a)(i) in that they will not unreasonably impede public access or use of Collaroy-Narrabeen Beach.
The uncertainty of predicting the impact of sea level rise in relation to s 27(1)(a)(ii) is discussed next in the Council's development assessment report, requiring assessment of a likelihood of threat to public safety before consent can be granted. The manner for being able to approve the works in order to comply with the requirements in s 27(1)(a)(ii) is found to be a time-limited condition of 60 years in accordance with the design life identified in the coastal engineering report accompanying the DA. This was the basis on which the Council could be satisfied, as it was required to be for the purposes of s 27(1)(a)(ii). That is expressly stated in the assessment report above in [45]. Had the Council not approached the DA in this manner, on the Applicant's case, it would have had to refuse development consent if not otherwise satisfied of the integrity of the proposed works as required by s 27(1)(a)(ii) for an indefinite period. It is important to note that the Council assessed substantively what the Applicant sought development consent for.
"Life of the works" is not defined in any of the statutory instruments before the Court. The Applicant submits the "life of the works" in s 27(1) is not the design life but the service life, meaning how long the components can last together with an active maintenance program such as is required by the MMP prepared pursuant to Condition 6. In Mr Jackson's opinion, with appropriate maintenance the works can last longer than 60 years and the components such as rock and geotextile well beyond that period. I agree with Mr Britton that Condition 41 responds directly to the requirements of s 27(1)(a)(ii), prudently focussing on the design life of the works. There is no statutory construction reason to construe "the life of the works" in the manner contended for by the Applicant.
A related issue arising from the coastal engineers' evidence is distinguishing between maintenance and adaptation which much of the cross-examination of the coastal engineers considered. As Mr Britton submitted, at some point the maintenance of the approved design is different to a need to adapt the design if there is a change in the environment, such as sea level rise being greater than the current predictions relied on by Water Technology and the Specifications prepared in 2016 by the Council. That adaptation may be necessary and achieved in several possible ways is clear from Sheet 5 prepared by Mr Jackson at the Council's request, which identified different ways the works could be adapted to ameliorate sea level rise impacts in the future (Sheet 5 is described above in [38] and referred to in cross-examination above in [63]). Options could be "topping up", as considered in the expert evidence.
That part of the reason for selecting 60 years is also that that is the period around when beachfront property is generally redeveloped, as extracted from the Specifications in [27] above including footnote 2 in [28] above (about which Mr Britton was cross-examined, see [68], [73], [77] above), does not undermine the Council's approach. Footnote 2 recognises that components of a seawall may last well beyond 60 years.
Ralph Lauren had quite different circumstances which means that the obiter observations of Preston CJ stating a time-limiting condition in that case was not appropriate in light of the now repealed s 55M of the Coastal Protection Act 1979 (NSW) (CP Act) (precursor to s 27 of the CM Act) have little relevance to the circumstances of this case. In Ralph Lauren, Preston CJ was determining an appeal from the deemed refusal of the NSW Transitional Coastal Panel (the Panel) of DAs to repair failing seawalls at Belongil Beach near Byron Bay constructed on public land without development consent. The Panel's primary contention was that it would not be in the public interest for the Court to approve the proposed works for several reasons, including that they would limit public access to the beach. Preston CJ at [132] held that he was not satisfied that the proposed works by each land owner would not, over the life of the works, unreasonably limit or be likely to unreasonably limit public access to or the use of the beach or impede or diminish, where practicable, the physical, land-based right of access of the public to or along the coastal foreshore.
In the alternative, if the Court had determined that the works were not contrary to public interest, the Panel argued that the duration of the consents should be time-limited to five years, inter alia. The Panel submitted that to permit the works to remain longer would provide for the continued occupation of public land, a lesser availability of the public beach and continued public safety issues, contrary to s 55M(1)(a) of the now repealed CP Act. Having already held that development consent could not be granted to the proposed works, Preston CJ did not need to finally determine the issue of limiting the duration of any consent. He did express some preliminary views at [151]-[155] to the effect that a Council must be satisfied about s 55M(1)(b) before consent can be granted and, in that context, a time limited consent was not appropriate as a means of reaching that state of satisfaction.
Condition 41 is not unjustified.

[43]

Condition 41 not unreasonable

The Applicant submits and the experts agree that there will need to be coastal protection works in front of the property for the foreseeable future. Condition 41 is reasonably lengthy but does not warrant a description of convoluted and onerous. Its effect is as described by the Council summarised in [112]-[114] above. Importantly, the operation of the condition alone does not result in the owner of the Property having to remove the works. That only occurs if certain events take place. If the then owner fails to do what the condition requires, the works will not be authorised after 60 years. There is a clear mechanism to avoid that happening. I therefore do not accept the Applicant's submission that Condition 41 undermines the purpose and utility of the development consent.
The condition does not prevent protection of the Applicant's property in perpetuity. It is designed to put in place a mechanism for regular reviews to ensure that whatever is in place achieves that objective.
The history of the Council's imposition of time-limited conditions for Pt 4 EPA Act development consents is not accurately reflected in the Applicant's submissions. The Council's additional bundle summarised above in [83] contains a number of development consents granted since 2018 which include a similar condition. That a modification application (in the Applicant's additional bundle in [84] above) has been made to the Council to delete such a condition is immaterial. That the Pt 5 EPA Act determinations by the Council for coastal protection works it is undertaking on public land do not have time limited conditions is immaterial. Condition 41 is not unreasonable.
A trite but necessary observation is that each case must be considered on its own facts. The facts in Newton were substantially different to this matter and can therefore provide little assistance.
While not a matter particularly relevant to my consideration, I note the Council's submission that the value of the works is estimated by the Applicant at $95,000 on the DA form submitted to the Council. This averages over 60 years to about $1,500 per year as the cost for the protection of valuable improvements. That is not a huge capital cost imposition given the obvious benefits of the works to the Applicant in preserving valuable improvements.
The deletion of Condition 41 is significant for the overall operation of the consent given the Property is in a high risk coastal zone area. Condition 41 should remain as part of DA 2018/1878.
As the parties have agreed matters other than in relation to Condition 41, they will have the opportunity to consider these reasons and if appropriate file agreed conditions of development consent or other orders to finalise the appeal within one week of this judgment.

Salama v Northern Beaches Council

At a glance

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Judgment (45 paragraphs)

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Legislation Cited (4)

Cases Cited (3)