Stubbs and anor v Sutherland Shire Council

APPLICANT Ms S Duggan, barrister SOLICITORS Solari Legal LEGAL REPRESENTATIVES: RESPONDENT Mr M Wright, barrister SOLICITORS Sutherland Shire Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10462, 10463 of 2008 Barry Norman Stubbs and Julie Gwenyth Kirby v Sutherland Shire Council

JUDGMENT 1 COMMISSIONER: The two appeals relate to the property at 167 Georges River Road, Oyster Bay (the site). Appeal No 10462 of 2008 is an appeal against the refusal by Sutherland Shire Council (the council) of DA 07/1354 for the construction of a dwelling.

2 Appeal No 10463 of 2008 is an appeal against the refusal by the council of Building Certificate application BC 07/0175 for the construction of a concrete floor slab, concrete roof and supporting walls. The parties agreed that the appeals should be heard concurrently. The site 3 The site has a frontage to the Georges River and Georges River Road. It is accessed via a right of carriageway that runs from Georges River Road and traverses the adjoining property at 169 Georges River Road. The site is generally rectangular in shape having a depth of 80.71 m on its eastern side, 85.05 m on its western side, a width of approximately 12.75 m including a northern boundary of the mean high water mark (MHWM) of the Georges River, giving a total site area of 1031 sq m. The site falls some 23 m from Georges River Road to the Georges River. Background 4 The site originally contained a dwelling house (the original dwelling) located between 2.2 m and 3.5 m from the MHWM. The original dwelling contained a basement identified as being used as a storeroom and two residential levels of accommodation.

5 On 2 June 2004, development consent was granted to DA 04/0354 for alterations and additions to the original cottage. The assessment was undertaken through the provisions of Sutherland Local Environmental Plan 2000 (LEP 2000) that applied at the time. LEP 2000 provided for a 20 m foreshore building line (FBL) measured from the MHWM. The salient features of the development consent provided for the retention of the existing basement (around 12.2 sq m), the reconfiguration of the lower floor plan and additional floor area for the upper floor plan. The setback to the MHWM remained unchanged. The Notes to the development consent stated that the consent is to lapse unless the development is physically commenced within two years from the endorsed date of this consent, that is 2 June 2006. 6 Notwithstanding the time limit contained within the development consent, the Principal Certifying Authority issued a Construction Certificate on 24 April 2007. The Construction Certificate was similar to that granted by DA 04/0354 for alterations and additions to the original cottage with the exception of the basement level that was extended in a northerly and easterly direction (to around 72.25 sq m including walls and stairs). This additional area necessitated additional excavation. At present, the basement level has been constructed in accordance with the Construction Certificate and consists of a concrete floor slab, concrete roof and supporting walls. This construction is the subject of Appeal No 10463 of 2008.

7 On 27 September 2007, an application to modify DA 04/0354 to include additional excavation and increases in floor area to the basement level was refused by the council.

8 On 30 November 2007, DA 07/1354 was lodged for the construction of a dwelling. The proposed dwelling generally occupies the form approved by DA 04/0354 including the same setback to the MHWM. This development application proposes the construction of a new dwelling and not alterations and additions to the original dwelling as it was found during building preparation activities on the site that the original dwelling foundations were not structurally capable of accommodating the proposed alterations and additions. The majority of the original dwelling has been removed with the exception of two small sections of the existing walls. Council refused DA 07/1354 on 15 February 2008. The assessment was undertaken through the provisions of Sutherland Local Environmental Plan 2006 (LEP 2006). As with LEP 2000, LEP 2006 provides for a 20 m FBL measured from the MHWM. This refusal is the subject of Appeal No 10462 of 2008. 9 Council refused a s 82A review application on 26 June 2008. Relevant planning controls 10 The site is within Zone 1-Environmental Housing (Environmentally Sensitive Land) under LEP 2006. Clause 11 provides objectives for Zone 1. The objectives are: Zone 1-Environmental Housing (Environmentally Sensitive Land) 1 Objectives of zone The objectives of this zone are as follows: (a) to allow development of a scale and nature that: (i) complements the natural landscape setting of the zone, and (ii) protects and conserves existing vegetation and other natural features of the zone, (b) to limit development in the vicinity of the waterfront so that the environment's natural qualities can dominate, (c) to minimise the risk to life, properly and the environment by restricting the type, or level and intensity, of development on land that is subject to either natural or man-made hazards, (d) to minimise the impacts of development in the vicinity of heritage items, (e) to allow the subdivision of land only where the size of the resulting lots makes them capable of development that will not compromise the sensitive nature of the environment, (f) to ensure sharing of waterfront views between occupiers and users of new and existing buildings. 11 Clause 17 provides requirements for buildings or works on land traversed by a FBL. The relevant parts of the clause state: 17 Buildings or works on land traversed by foreshore building line (1) Application of clause This clause applies to land that is traversed by a foreshore building line. (2) Objectives The objectives of this clause are as follows: (a) to avoid adverse ecological effects on waterways, (b) to protect and enhance significant natural features and vegetation on riparian land, (c) to retain endemic vegetation along foreshore areas, (d) to restore and revegetate foreshore areas to improve estuarine flora and fauna habitat, (e) to minimise any adverse impact from development on water quality and, so far as is practicable, to improve the quality of urban run-off entering waterways, (f) to minimise any adverse visual impact of development when viewed from adjacent land and waterways by using a design and materials that complement the natural landscape of the land to which this clause applies, (g) to minimise any adverse impact of development on the natural landform of foreshore areas and waterways by integrating structures into the site with minimal change to the natural topography of the land to which this clause applies, (h) to achieve an appropriate balance between private development and the public use of waterways, (i) to maintain and improve public access to the intertidal area of waterfronts where there will be minimal environmental impact, (j) to conserve and enhance structures on waterfronts that are of heritage significance, (k) to minimise the obstruction of water views from public land, (I) to ensure that there is no development below any foreshore building line, except as provided by this clause. . . . (9) Nothing in subclause (7) or clause 11 prevents consent being granted to the erection of a dwelling, or any addition to an existing dwelling, on land between a foreshore building line and any waterway or waterfront reserve in respect of which the line is fixed if: (a) the consent authority has considered the objectives of this clause, and (b) the consent authority is satisfied that: (i) the new dwelling or addition will not be erected any further forward of the foreshore building line than any existing dwelling on the land, and (ii) the new dwelling will not dominate the locality in which it is erected as a result of its height, bulk, design, colour or detailing, and (iii) the natural qualities of the foreshore are retained or restored as far as practicable through the retention or reinstatement of natural levels and endemic vegetation, and (iv) in the case of the erection of a dwelling - there is no reasonable alternative that would allow a new dwelling to be located behind the foreshore building line. 12 Clause 18 provides requirements for development in or adjacent to waterways. The clause states: 18 Development in or adjacent to waterways (1) This clause applies to any of the following land: ( a) land in Zone 16-Environmental Protection (Waterways), (b) land traversed by a foreshore building line, (c) land below the mean high water mark. Note . The mean high water mark referred to here is the mean high water mark as it currently exists. (2) The objectives of this clause are as follows: (a) to ensure that any development does not result in the obstruction or interference with navigation in waterways, (b) to ensure restoration of land below any foreshore building line, to a natural state (so far as is practicable), with a minimum intrusion of man-made structures, (c) to reduce the number of structures below any foreshore building line, particularly following the redevelopment of a site, (d) to promote the public use of intertidal areas below the mean high water mark or high water mark, where appropriate. (3) The consent authority must not consent to development on land to which this clause applies unless the consent authority is satisfied that the following building or work will be removed before, or within a reasonable time after, the development is carried out: (a) any building or work, other than an excluded building or work, that is: (i) on the lot concerned or an adjoining lot owned by the person carrying out the development, and (ii) between a foreshore building line and any waterway or waterfront reserve· in respect of which the line is fixed, (b) any building or work (other than a watercraft facility) that is: (i) on the lot concerned or on an adjoining lot that is owned by a person carrying out the development, and (ii) below the mean high water mark. (4) Subclause (3) does not require the removal of any building or work if: (a) the proposed development is the erection or installation of any of the following: (i) a fence or retaining wall between a dwelling and the street on which the dwelling is located, (ii) a garage or carport adjacent to a dwelling or located between a dwelling and the street on which the dwelling is located, (iii) a deck or verandah, (iv) an awning or canopy, or (b) the consent authority is satisfied that the use of the building or work is lawful, or (c) the consent authority is satisfied that the removal of the building or work: (i) would be inconsistent with, or is not necessary to achieve, any of the objectives of this clause, or (ii) is unreasonable or unnecessary in the circumstances of the case. 13 Clause 33 provides requirements for building height. The applicant submitted an objection under State Environmental Planning Policy No 1­Development Standards (SEPP 1) to show why strict compliance with the provisions of cl 33 was unreasonable and unnecessary in the circumstances of the case.

14 Draft Sutherland Local Environmental Plan 2006 (Amendment 4) and Sutherland Development Control Plan 2006 apply but have limited relevance to the contentions raised by the council. The contentions - the new dwelling 15 The Statement of Facts and Contentions identify the following areas of dispute: 1. the proposed development is prohibited as it does not satisfy the requirements of cl 17(9) of LEP 2006, 2. the proposed development will have an adverse visual impact from the Georges River by way of bulk, scale and height, 3. the proposed development does not provide adequate view sharing with adjoining properties, and 4. whether the SEPP 1 objection to the height standard is well founded. The council's position - the proposed dwelling 16 Ms Debbie Pinfold, a town planner, Mr lan Drinnan, an environmental scientist and Mr David Sheils, a landscape consultant provided evidence for the council.

17 Ms Pinfold's principal position is that DA 07/1354 is a development application for a new dwelling and not a development application for alterations and additions, and as such must be considered under the provisions of LEP 2006. There is currently no dwelling located on the site; the previous dwelling having been demolished without development consent with the exception of two small sections of wall. DA 04/0354 approved alterations and additions to the original dwelling however the works authorised by this approval were not lawfully commenced, with the Construction Certificate being issued and works commencing after the development consent had lapsed.

18 Ms Pinfold states that cl 17(7) prohibits the construction of a dwelling below the FBL but for the exceptions contained within cl 17(9) that require a consideration of the clause objectives and the satisfaction of all four criteria in cl 17(9)(b). In her opinion on the proposed development does not comply with clause objectives (b), (d), (f), (h) and (I) and all four criteria.

19 Objective (b) seeks to protect and enhance the significant natural features and vegetation. Ms Pinfold states that the proposed landscaping is inadequate and has resulted in the complete removal of the natural landform and its replacement with planter boxes.

20 Objective (d) seeks to restore and revegetate foreshore areas. In this regard, Ms Pinfold and Mr Drinnan are of the opinion that the proposed development does not improve water quality by filtering run-off, allowing reduced run-off velocities and simultaneous volume of flow largely through the planter box landscaping strip. 21 Objective (f) seeks to minimise any adverse visual impact from the waterway. Ms Pinfold states that the proposed dwelling results in the dominance of the built form over the natural environment below the FBL.

22 Objective (g) seeks to minimise adverse impact of development on the natural landform of foreshore areas and waterways. While Ms Pinfold accepts that the proposed development does not substantially alter the existing natural landform below the FBL, the construction basement level does substantially alter the existing natural landform.

23 Objective (I) seeks to ensure there is no development below the FBL. In Ms Pinfold's view the proposed development is prohibited below the FBL.

24 Ms Pinfold also states that the proposal does not satisfy all four heads of consideration in cl 17(9)(b). Clause 17(9)(b)(i) states that a new dwelling or addition will not be erected any further forward of the FBL than any existing dwelling on the land. Ms Pinfold states that the proposed development does not satisfy this requirement as there is no existing dwelling located below the FBL.

25 Clause 17(9)(b)(ii) states that a new dwelling will not dominate the locality by way of its height, bulk, design, colour or detailing. According to Ms Pinfold, the proposed development does not satisfy this requirement in relation to design and height. The conflict with the design relates to the unsatisfactory design elements of locating the dwelling in close proximity to the MHWM and the treatment of the area between the dwelling and the water's edge. The issue with the height relates to the non-compliance with the height requirements in LEP 2006. 26 Clause 17(9)(b)(iii) states that the natural qualities of the foreshore be retained or restored as far as practical through the retention or reinstatement of natural levels and endemic vegetation. In her opinion, Ms Pinfold states that the limited setback and the design of the landscaped area do not allow for planting or canopy vegetation and provide insufficient scope for the planning of other endemic vegetation elements to restore the natural qualities of the foreshore.

27 Clause 17(9)(b)(iv) states that a dwelling may be erected below the FBL when there is no reasonable alternative behind of the FBL. Ms Pinfold states that there is a reasonable alternative location for the construction of a new dwelling behind the FBL that would not have any significant adverse impacts on the adjoining properties. The applicant's position - the proposed dwelling 28 Mr Fletcher states that, in his opinion, the six contentions identified by the council can be summarised into one primary issue; that being whether there is such a difference between the previously approved alterations and additions and the current proposal and whether the changes to the relevant planning controls are so significant as to now warrant the refusal of the application.

29 He sees no inconsistency with clause objectives (a), (g), (h), (i), (j) and (k). In relation to objectives (b), (c), (d), (e) and (f), Mr Fletcher states that the approval of DA 04/0354 created very substantial alterations and additions that did not encroach further into the FBL. Therefore, the proposed dwelling does not result in any development closer to the MHWM than the original dwelling or the alterations and additions to that dwelling previously approved by the council. For objective (l), Mr Fletcher states that the proposed development involves development in accordance with the provisions of cl 17 and is therefore consistent with this objective. 30 In relation to cl 17(9)(b)(i), (ii) and (iii), Mr Fletcher states that as the proposed development does not involve any works beyond the alignment of the previous dwelling or the previously approved alterations and additions, then the proposal will not result in any further in impacts on the natural landscape of the site than was previously assessed. The proposal involves new landscaping, which will enhance the appearance of site and to some extent provide increased natural habitat.

31 On the question of whether there is a reasonable alternative that would allow a dwelling to be located behind the FBL (cl 17(9)(b)(iv)), Mr Fletcher acknowledges that it is possible for a new dwelling to be located behind the FBL however compliance would be unreasonable in the circumstances because of the location of the original dwelling and the approval by the council for alterations and additions to this dwelling. In his opinion, it would be unreasonable to insist on strict compliance with the FBL and an unduly harsh penalty arising from unfortunate circumstances that were not foreseen prior to demolition occurring. Also, Mr Fletcher states that a dwelling located at or near the FBL is likely to have significantly greater impacts on the amenity of the adjoining dwellings and the dwelling on the subject site than is the case with the current proposal. Findings - the proposed dwelling 32 The fundamental difference between the parties is the weight that should be given to the original dwelling and the approval for alterations and additions. The council maintains that no weight should be attributed to the previous activities and that the proposed dwelling should be considered strictly in accordance with the requirements of LEP 2006 as a new dwelling. The applicant maintains that the proposed dwelling creates no more impact than the approved alterations and additions and that it is relevant and appropriate to take into account the earlier approval.

33 LEP 2006 states that a dwelling must not be erected between the FBL and MHWM (cl 17(7)). Exceptions are provided for alterations (but not additions) to an existing dwelling (cl 17(8)(a)) and alterations to an existing dwelling and the erection of a dwelling subject to the consideration of the zone objectives (cl 17(9)(a)) and satisfaction of four criteria (cl 17(9)(b)). If a development application does not satisfy all four criteria then the application must be refused. Put simply, a new dwelling may be erected forward of the FBL but no further forward than an existing dwelling on the land and the dwelling will not dominate the locality and the dwelling will retain or restore (as far as practicable) natural levels and endemic vegetation and if there is no reasonable alternative for a dwelling to be located behind the FBL. The last criterion is important in this case as it effectively prohibits the erection of a new dwelling forward of the FBL (even if the first three criteria are satisfied) if there is a reasonable alternative location behind the FBL. 34 In this case, there was no dispute that the development application is for a new dwelling. While some walls of the existing dwelling remain, the vast majority the original dwelling had been removed. The evidence of Mr Fletcher was that the existing walls and footings were found to be unstable and had to be demolished on advice from the supervising Structural Engineer. It would have been more helpful to have known the condition of the existing walls and footings at the development application stage where the question of whether a new dwelling should be located on the footprint of the existing building or at the FBL would have been more appropriately addressed. It does not however change the fact that the existing dwelling did not have the structural capacity to accommodate the proposed additional floor space.

35 In balancing the different approaches adopted by Ms Pinfold and Mr Fletcher, I prefer the approach of Ms Pinfold for a number of reasons. Firstly, if the approval for alterations and additions were considered as a circumstance that could be taken into account in the assessment of the development application, I am not satisfied that it should be given such weight that it would outweigh the need to assess the development application as a new dwelling under LEP 2006.

36 Secondly, and while the approach of Mr Fletcher has some merit in a practical sense, I am not satisfied that the reliance placed by Mr Fletcher on the comparison between an approval for alterations and additions to any existing dwelling and the approval of a new dwelling is entirely valid. An application for alterations and additions requires different considerations to that for the assessment for a new dwelling. If a development application is submitted for alterations and additions to an existing dwelling than it would not be appropriate to assess the existing dwelling against the current planning requirements if it had been approved under a previous planning regime. This needs to be compared to a development application for a new dwelling that would be appropriately assessed under the current planning requirements. Put simply, the approval for alterations and additions by the council was likely based on a different set of circumstances to that which would apply for a new dwelling. 37 Thirdly, I do not accept that the criterion in cl 17(9)(b)(ii) is satisfied. The original dwelling was constructed with a significant encroachment into the FBL although there was no suggestion that the dwelling was constructed anything but in accordance with approved plans but most likely under a previous planning regime. This encroachment, together with the form of the building with a strong vertical appearance is an imposing and overt structure when viewed from the Georges River. It is clearly inconsistent with that anticipated by cll 17 and 18 of LEP 2006. Given the general thrust of LEP 2006 to reinstate the FBL area (cll 17(2)(d) and (d), cl 17(9)(b)(iii) and cl 18(2)(b)) and locate new dwellings at the FBL, I am not satisfied that the original dwelling should be the benchmark for further development of the site.

38 Fourthly, I do not accept that the criterion in cl 17(9)(b)(iii) is satisfied. LEP 2006 not only seek to retain the natural qualities of the foreshore in the consideration of any development application but also seeks the reinstatement of the foreshore area to its natural state. The construction of a new dwelling within the area between the FBL and the MHWM would be inconsistent with this criterion.

39 Fifthly, and even if Mr Fletchers approach of attributing significant weight to the previous approval was adopted, I do not accept that the criterion in cl 17(9)(b)(iv) is satisfied. The test to be satisfied in cl 17(9)(b)(iv) is that there is no reasonable alternative that would allow a new dwelling to be located behind the foreshore building line. This criterion applies only to new dwellings and Mr Fletcher provided schematic drawings showing a building profile of a complying residential development located at the FBL. 40 With the benefit of the site view and the schematic drawings, I am not satisfied that a new dwelling could not be located at or beyond the FBL. The use of a building envelope can be misleading, as it is unlikely that a building would occupy the full volume of the envelope. More importantly, there are no physical constraints to the erection of a dwelling at or beyond the FBL. A dwelling in this location would have a similar setback from the Georges River to both adjoining properties and with a reasonably competent architect, I am satisfied that a sensitive design could adequately address views and other potential amenity impacts of adjoining properties.

41 In terms of cl 17(9)(b), I am not satisfied that the new dwelling satisfies cl 17(9)(b)(ii), (iii) and (iv) and as such development consent cannot be granted.

42 I am satisfied that the "existing dwelling test" in cl 17(9)(b)(i) should not be read as narrowly as suggested by Ms Pinfold and as such would not be a reason to refuse development consent. While no dwelling currently exists on the site, it would be inappropriate to ignore the original dwelling and also the approval granted by the council. 43 As development consent is not to be granted it is unnecessary to address the non compliance with the breach of the height requirement in cl 33. The contentions - the Building Certificate 44 The Statement of Facts and Contentions identify the following areas of dispute: 1. the proposed basement level has been constructed without development consent and visually dominates the foreshore area of the site, and 2. the proposed basement level would create an unreasonable precedent if allowed to remain. The council's position - the Building Certificate 45 Ms Pinfold states that the basement level has been constructed without development consent and below the FBL and MHWM. The structure is inconsistent with a number of objectives in cl 17 of LEP 2006 and as such should be removed.

46 For similar reasons, the unapproved constructed basement level is not in the public interest. The applicant's position - the Building Certificate 47 Mr Fletcher states that the basement level was constructed after the foundation problem was ascertained. The basement level is larger than the basement level previously approved by the council but in accordance with the Construction Certificate plans. Importantly, the additional area will not alter the external appearance of the finished structure as the additional area is within the footprint of the previously existing dwelling and therefore upon completion of the development will not be visible.

48 The applicant provided an estimate from a quantity surveyor of $325,000 for the basement construction costs to date.

Findings - the Building Certificate 49 Section 149F(3) states that: (3) On the hearing the appeal, the Court may do any one or more of the following: (a) it may direct the council to issue a Building Certificate in such terms and on such conditions as the Court thinks fit, (b) it may revoke, alter or confirm a notice under section 149C, (c) it may make any other order that it considers appropriate. 50 It would not be appropriate, in my view, for the appeal to be upheld and the Court to direct that a Building Certificate be issued. I accept that the non-compliance with the previously identified requirements of LEP 2006 is a matter that would entitle the council to order or to take proceedings to order the building to be demolished, altered, added to or rebuilt as required by s 149D(a)(i) and (ii).

51 In coming to this conclusion, I am not however convinced that the demolition of the existing basement structure should be undertaken without first considering whether this area could be included as part of any residential development of the site. If a dwelling was constructed at the FBL, consideration could be given to the retention of the constructed basement area with some modification to increase the landscaping below the FBL and a reduction in the prominence of the structure from the Georges River, to provide a development more consistent with the objectives and requirements of LEP 2006. Orders 52 For Appeal No 10462 of 2008, the Orders of the Court are: 1. The appeal is dismissed. 2. DA 07/1354 for the construction of a dwelling at 167 Georges River Road, Oyster Bay is refused. 3. The exhibits are returned.

53 For Appeal No 10463 of 2008, the Orders of the Court are: 1. The appeal is dismissed. 2. The refusal by Sutherland Shire Council of Building Certificate application BC 07/0175 for the construction of a concrete floor slab, concrete roof and supporting walls is confirmed.

      G T Brown
      Commissioner of the Court

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