Seljanovski v Sutherland Shire Council

1 This is an appeal under s 97 of Environmental Planning and Assessment Act (the Act) against Sutherland Shire Council's refusal of a development application comprising of jetty, ramp and pontoon for the property known as 55 Holt Road, Taren Point.

2 The site is located on the eastern shore of Gwawley Bay in the suburb of Taren Point - located on the southern foreshore of the Georges River as shown in the locality plan at Fig 1.

3 The site is relatively steeply sloping from the foreshore to the road and there is a retaining wall at approximately the mean high watermark demarking the sandy beach tidal flat from the grassed level area of the subject property.

4 In this portion of the bay the water is relatively shallow with a sandy silt bottom such that at low tide a large flat is exposed. To the south west of the site, some eight blocks removed, there is a public open space area known as the Taren Point Reserve that runs from the foreshore to Holt Road. This reserve provides public access to the tidal flat and beach area in this clearly defined portion of Gwawley Bay that is marked by a rock outcrop at the point to the north. Within this concave portion of the bay to the south-west there is a wharf and boat launching facility adjoining Hawkesbury Reserve. Refer to aerial photograph attached at Fig 2.

5 Currently erected on the site is a two-storey dwelling with balconies and terraces and a swimming pool together with stairs that provide access to the waterfront and the terraced lawn area behind a retaining wall of some 25 m in length and a concrete ramp adjoining the foreshore at the northern boundary.

6 This sweep of Gwawley Bay does not contain private jetties, ramps and pontoons. The backdrop of this part of the bay is characterised by dwellings that display a variety of architectural styles built over many decades but generally of two-storey construction and the open grassed reserve to the road.

7 The proposal is to construct a timber jetty with a ramp and pontoon and two fender piles. Stairs are now shown to provide public access over the jetty about 5 m from the MHWM.

8 The total length of the structures extend approximately 40 m into the waterway from the retaining wall on the subject property. The stated purpose of the jetty, ramp and pontoon is to provide access for the residents of the subject property to a useful water depth for the purpose of embarking and disembarking a recreational boat.

9 The shallow nature of the water in front of the property requires a jetty of the length as proposed in order that a minimum water depth of 600 mm is achievable at low tide. It is not proposed that a boat could be permanently moored at the end of the facility due to the limited water depth.

Sutherland Shire Local Environmental Plan 2000 (LEP 2000)

10 Under this LEP the subject site for the proposed development is zoned 7 (a) Environmental Protection - Waterways

11 The objectives of the zone are: a) To recognise the importance of the waterways at Sutherland Shire, as an environmental and recreational asset for residents of the area and the Sydney Region; b) To ensure development does not adversely affect the ecology, scenic value or navigability of the waterways; c) To ensure aquatic environments are not adversely affected by the recreational use of the waterway; and d) Provide for viable aquaculture in waterway area. 12 Watercraft facilities are permissible in the zone with development consent. Watercraft facility is defined in the LEP to mean "a pontoon, suspended ramp or walkway, jetty, mooring, wharf, slipway, watercraft landing and launching facility or the like but does not include a marina". The proposed development falls within this definition.

13 Clause 20 of the LEP relates for foreshore building lines and waterfront development and an objective of this clause includes "(g) - public use of the inter-tidal areas below the mean high watermark or high watermark, where appropriate".

14 The waterfront development DCP came into effect in November 2002 and it applies to all development below the foreshore building line and/or along the waterfront, above, on, or below mean high watermark and includes land zoned 7(a) Environmental Protection - Waterways.

15 The purpose of the plan includes: To allow development that is in harmony with the natural surrounding, which minimises the impact on the natural environment and acknowledges the importance of the waterways as a natural public resource.

16 The objectives of the DCP include: d) minimise the disruption of the natural shoreline; (f) maintain and improve public access at the inter-tidal area of the waterfront, which is public land; (g) achieve an appropriate balance between private development and the alienation of the waterways, which is a public resource, from public use. 17 Clause 10.1 states that "jetty, ramp and pontoon structures are designed to facilitate access to private recreational vessels where a reasonable depth of water is available. The structures are intended only to be used for short stay embarking and disembarking of passengers and the transfer of personal goods".

18 Relevant provisions in cl 10 include: (a) A fixed jetty is not to exceed a length of 9 m from MHWM; (b) A ramp is not to exceed a length of 6 m; (c) A ramp and pontoon extension to a jetty may be permitted provided the total length does not exceed 15 m; (d) The length of the structure is to be only the minimum needed to reach usable water which is 600 mm depth at low tide; and (e) … (f) …. (g) … (h) Council does not permit solid filled jetties or the construction of jetties, ramps or other structures in areas where they may interfere with public access along the waterfront. In exceptional circumstances where a jetty is allowed across a public waterfront, the design must allow pedestrian access across the structure by providing provision of timber steps on either side of the jetty. 19 When the development application was lodged a code and a draft Waterfront Development DCP were relevant matters in council's assessment of the application. The draft DCP was amended when adopted by the council in November 2002 and a number of the provisions outlined above were an expansion of or new clauses to those that appeared in the draft DCP. In particular objective (g) is a new objective and that part of cl 10.1 "jetty ramp and pontoon structures are designed to facilitate access to private recreational vessels where a reasonable depth of water is available" is an additional provision. Also the provision (h) above has been redrafted with the addition of the first sentence.

20 A statement of issues was provided and in summary the issues are: (1) Conservation of the environmental recreational and scenic value of the foreshore; (2) Visual impact; (3) Public access; (4) Cumulative impact/precedent (5) Suitability of the site; and (6) Public interest. Evidence and submissions

21 On behalf of the applicant, evidence was given to the Court by Mr Daniel Brindle, consultant town planner.

22 For the respondent council, evidence was given to the Court by Ms Deborah Pinfold, an environmental assessment officer with the council. 23 A site inspection was carried out with the parties and this included an inspection of the foreshore by boat.

24 I have had regard to all the evidence before the Court including: that of the expert town planners; the site inspection; as well as the council's planning controls and guidelines; and the provisions of s 79C of the Act.

25 An assessment in terms of s 79C (1)(c) "the suitability of the site for the development" must be carried out. This was also identified as issue No. 5 in the proceedings wherein the council's planner states that:

When viewed from the inter-tidal area, the foreshore reserves and nearby residences, the only visible jetty is located beyond the sweep of this beach, on the small rocky headland separating this beach from the one to the north. This jetty is significantly shorter than the proposed jetty. … Given the shallow nature of the seabed, any such structure located to the south of this jetty is expected to be of a similar length to the jetty proposed. …

The subject beach is the only area on the south-eastern side of Gwawley Bay where the shoreline is not obstructed by jetty, ramp and pontoon structures and the continuity of the natural land form is maintained. Importantly this beach also has two public reserves with frontage to the foreshore area. It is considered important to preserve the unique vista of this area.

26 In response to the issue of 'suitability of the site for the proposed development', the applicants' town planner's comments include:

The nature of the shoreline in the vicinity of the site is such that the beach falls away gradually to deeper water. This requires longer structures to reach water of sufficient depth for use by craft … . The proposed development will only be marginally longer than other structures approved in the area. This indicates that the proposed development is not out of context or character in this area. …

There is nothing to suggest that properties immediately to the south of the small headland are any less suitable for structures of this type proposed than sites to the north. Although there are no such structures to the south of the site, this does not mean that the proposed development is out of character with the landscape and scenic quality of the area and is not in itself a sufficient grounds for refusal of the application. 27 In my consideration of the proposed application, with the benefit of the site inspection, I am persuaded by the council's expert that the site is not suitable for the proposed development. In my assessment the length of the structure of some 40 m to reach the minimum depth requirement is excessive in an area currently where the tidal flat and beach is an extensive area relatively free of man made structures and easily accessed and visible from public reserves in close proximity to the subject site. The proposal is not only excessive in its length but it would be a visual and physical intrusion on the public domain and use of the inter-tidal zone along this sweep of foreshore, south of the rocky headland. This waterfront area is extremely accessible from the open space reserve that gives it a clear visual and direct interface with the inter-tidal zone.

28 Similarly in terms of 79C(1)(e) I have been persuaded that the proposal is not in the public interest. The circumstances of this case, in balancing the public and private interests, it is clear in my assessment that the excessive length of the structure for the short stay of water craft in order for the occupants of No. 55 to embark and disembark and transfer goods is unsatisfactory and cannot be justified for this sweep of beach and tidal flat that is currently clear of such structures and a valuable public resource.

29 All development applications must be assessed on their individual merits and the permissibility of a use or structure within a zone merely provides for neutual consideration of the application. The characteristics of the site adjacent to a shallow water bed in this location does not justify an unreasonable and objectionable jetty length over the public domain area of this extensive inter-tidal zone.

30 In my assessment the proposal is unsatisfactory in terms of the provisions of the Act relating to suitability of the site and the public interest and these are determinative reasons for refusal of the application. However, I will provide a further assessment in terms of council's development control plan and waterfront facilities code. I note that at the time the development application was lodged that the development control plan was not in operation but council relied on its waterfront code that is similar in its terms to the draft DCP. In terms of the weight to be attributed to the DCP and its provisions I was referred to the judgment of his Honour Lloyd J in the Architectural Property Services Pty Ltd v Rockdale City Council 1999 [NSW] LEC 83, wherein his Honour states:

The consent authority must take into consideration the provisions of any development control plan since an appeal to the Court is by way of rehearing, the appeal must be determined by reference to the fact that they exist when the appeal is heard. In the circumstances of the present case, however, where the relevant DCP commenced after the application had been made, it should not be give determinative weight. That is not to say that the standard and controls in the DCP should be ignored. They should be taken into consideration. A failure to comply therewith, however, will not necessarily be fatal to the application provided that it is otherwise satisfactory.

31 During the proceedings there was considerable discussion concerning the changes in the DCP from the draft DCP in exhibit 5 to the adopted DCP at exhibit 2. The purpose stated in the adopted DCP is "to provide a series of standards and objectives that are intended to guide the form of development in the waterfront areas of the Shire". The document provides a number of guidelines for waterfront facilities and the wording of certain clauses was questioned by the applicant. It was not disputed on behalf of the respondent that some of the provisions could be more carefully worded. In particular control (h) pertaining to jetties, ramps and pontoons wherein "council does not permit structures in areas where they may interfere with public access along the waterfront". In my opinion I do not consider that a DCP should, or purport to, prohibit development but rather as stated in the DCP it should guide development.

32 Just as a DCP cannot prohibit development, on the other hand development proposals that are inconsistent with the provisions of a DCP must provide reasons as to why a variation should be considered. A commonsense and holistic interpretation of a DCP should prevail within council's planning regime and "proper, genuine and realistic consideration" must be given to a DCP as a "focal point" in an assessment.

33 From the previous code and draft DCP, the standards of a jetty not to exceed 9 m in length, and with a ramp the total length not to exceed 15 m, has been consistently identified in the relevant documents that preceded the current DCP for waterfront development. The onus is on the applicant to justify a variation from the standards and in the circumstances of this case I have not been persuaded that the exceedance is justified. The fact that the 40 m length is required to achieve the minimum depth of water does not justify the exceedance in the length of the proposed structures. But rather in my assessment of this application underpins the fact that the site is not suitable for the proposed development. The length of the jetty proposed in the subject location is an unreasonable expectation in the context of council's controls. Furthermore, the objective of the waterways zone "to recognise the importance of the waterways as an environmental and recreational asset for residence of the area and the Sydney Region" would be compromised.

34 While it is not necessary for me to address the issue of precedent because the application fails on other grounds as stated above, nonetheless precedent is an important issue and a relevant consideration. Of particular note is the judgment of his Honour Lloyd J in Goldin & Anor. v Minister for Transport Administering the Ports Corporation and Waterways Management Act 1995 [2002] NSWLEC 75 (17 May 2002). In this case his Honour reviews the relevant caselaw and principles established. This was an appeal under s 56A of the Act against a Commissioner's refusal of a development application for waterfront facilities where a reason for refusal was precedential affect and the cumulative impact. One of the grounds of appeal was "that the Senior Commissioner erred in law in that he took into account an irrelevant consideration, namely, whether the approval of the applications would be a precedent, leading inexorably to further applications over time".

35 At par 31 and 32 in Goldin his Honour states: The authorities relied upon … show clearly that the precedent affect of a particular proposal is a valid consideration.

… The decision of the Court of Appeal in BP Australia Ltd v Campbelltown City Council is, of course, binding upon me. … That Court held that the risk of establishing a precedent is readily invokable by prospective developers of other land in the vicinity is a valid consideration. In Shellcove Gardens Pty Ltd v North Sydney Municipal Council , Sugarman J acknowledged that: (at par 18 in Goldin ) "since it may be expected that other developers would seek to follow an example which has been set. Notwithstanding that each application must be considered on its individual merits and that there is no such thing as binding precedent in these matters, if one application were granted it might prove difficult for the council to refuse others unless the circumstances were distinguishable. Here there is more than a mere chance or possibility of later applications but a distinct probability" 36 At par 15 Lloyd J refers to the matter of Girvan v Willoughby Municipal Council (1952) 18 LGR(NSW)222 wherein Sugarman J said "but if approved it is not likely to remain an isolated application … approval would create a precedent which makes it difficult to refuse … other cases.

37 Lloyd J also cites the case of Lord Widgery CJ where in the course of a planning appeal he said: "there is a problem which has appeared in the administration of the planning law since its inception. There is no doubt whatever that human nature being what it is, if permission is granted for a particular form of development on site A it is difficult to refuse similar development on site B if the circumstances are the same … in all planning cases it must be of the greatest importance when considering a single planning application to ask oneself what the consequences in the locality will be - what are the side effects which will flow if such a permission is granted. Insofar as an application for planning permission on site A is judged, according on consequence on sites B, C, and D in my judgment no error of law is disclosed but only what is perhaps the most elementary principal of planning practice is being observed". 38 Having already decided that the application should fail it is not necessary in my assessment to rely on the issue of precedent in this matter. However, by way of comment, on the one hand and applicants' expert relies on the existence of similar structures to justify the proposal and yet on the other hand does not consider the cumulative impact and the precedential effect as a matter that would warrant refusal. In an assessment of the individual merits this can clearly include an assessment of the precedential effect including whether the proposal is 'unobjectionable' in its own right, or whether it is the cumulative impact and the precedential effect which would make a number of applications 'objectionable'.

39 In the current matter before me, while it is not necessary to resort to the issue of precedent in my determination, I consider that, the proposed development is not only 'objectionable' in its own right, it would also have a precedential effect for possible future applications. The evidence from council's planner was that the "approval would establish a potential precedent for the addition of further non conforming structures in a unique waterfront setting within the locality". And while there was no evidence of other applications lodged, this concept must be considered as a real chance or probability, especially when an applicant seeks to rely on the existence of similar structures in the area, albeit not in the immediate vicinity of the proposal.

40 In conclusion I find that the application for a 40 m jetty ramp and pontoon for the subject location does not warrant approval as the site is unsuitable for the development for the reasons provided above.

Orders 41 On the basis of my merits assessment above, the orders of the Court are: 1. The appeal in respect of the property known as No. 55 Holt Road, Taren Point, is dismissed. 2. The development application submitted to Sutherland Shire Council, and as amended, for a jetty, ramp and pontoon adjoining the above property is determined by the refusal of consent. 3. The exhibits are returned.

NB: Figures 1, 2 & 3 have been ommitted due to computer memory restrictions but are retained on the Court file

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