DISCUSSION
14The evidence before the Commissioner and the underlying premise of his decision was that the new dwelling could be relocated a further 1.2 metres from the Bay frontage, thereby putting it entirely behind the FBL.
15The reasoning process of the Commissioner was as follows. First, he recited the planners' evidence concerning the meaning they attributed to cl 17(9)(b)(iv) and its application: at [14] of his judgment. Ms Pinfold, for the council, stated that it was not satisfied as there was a reasonable alternative that would allow a dwelling to be located behind the FBL, and proposed a condition that it be relocated a further 1.2 metres from the Bay frontage. Mr Moody, for the applicant, adopted the test of whether the breach of the FBL was reasonable and consistent with the objectives of cl 17, and referred to larger breaches by surrounding dwellings, the slighter visual impact of the proposed building work in breach of the FBL and the mitigation of that smaller impact by landscaping. The Commissioner then referred to the submissions of counsel: at [15]. Ms Amy for the council submitted that there was a reasonable alternative which would allow the new dwelling to be located behind the FBL. Mr Hemmings, counsel for the applicant, was said to have adopted a different approach to the interpretation of the provision. The Commissioner noted the first submission of the applicant's counsel "that the clause should be read in a way that if there is an alternative location for a new dwelling behind the FBL, then the decision to locate a dwelling in this alternate location must be reasonable". The applicant's counsel then proceeded to make a second submission that it was not reasonable to relocate because of three matters: the shape of the FBL, the minor breaches of it and the setbacks of adjoining properties. After referring to two authorities on statutory construction, the Commissioner then said that he agreed with the submissions (plural, ie both submissions) of the applicant's counsel because to adopt the council's approach would be "unreasonable, 'irrational and unjust' and support and [sic] 'irrational result' for a number of reasons": at [17].
16He then stated five reasons for that decision:
(a)the FBL was irrelevant for planning purposes in this location;
(b)the breaches were minor, and still satisfied the objectives in cl 17(2);
(c)adjoining properties breached the control to a greater extent;
(d)the breaches of the proposed development created no amenity impacts on adjoining properties; and
(e)the other requirements of cl 17(9) were met.
17The Commissioner appears to have thought that:
(a)the parties (and their planners) were advancing different constructions of cl 17(9)(b)(iv);
(b)the council's construction was a "literal" one, and that on this literal construction, cl 17(9)(b)(iv) was not satisfied because there was a reasonable alternative that would allow a new dwelling to be located behind the FBL, and therefore there had to be a condition to that effect for consent to be granted: at [15] - [16] of his judgment;
(c)however, on the applicant's construction, cl 17(9)(b)(iv) was satisfied because the alternative location was not reasonable, and therefore there was no requirement that the new dwelling be located behind the FBL;
(d)the applicant's construction should be adopted because the council's construction was unreasonable, "irrational and unjust" and would support an "irrational result" for the five reasons listed at [16] above; and
(e)implicitly, the alternative of a new dwelling located behind the FBL was not reasonable for the same five reasons and therefore cl 17(9)(b)(iv) was satisfied.
18In what follows, I adopt a substantial part of the council's submissions.
19In my opinion:
(a)In fact, there is no significant difference between the parties as to the construction of cl 17(9)(b)(iv). Indeed, before me the council was content to accept the construction expressed by the applicant's counsel to the Commissioner at [15] of his judgment: "if there is an alternative location for a new dwelling behind the FBL, then the decision to locate a dwelling in the alternate location must be reasonable".
(b)Thus, the questions posed by cl 17(9)(b)(iv) are: whether a new dwelling can be located entirely behind the FBL and, if so, whether that is a reasonable alternative.
(c)As it was common ground before the Commissioner that the new dwelling could be located entirely behind the FBL, the only contentious question was whether that was a reasonable alternative.
(d)The real issue is whether the five matters relied on by the Commissioner at [17] of his judgment are relevant to that question. In my opinion, they are irrelevant to that question for the reasons set out at [20] - [21] below.
(e)Matters relevant to that question include matters such as the area available for a new dwelling behind the FBL, the topography of that area (eg whether the land slopes so that a building cannot be erected for geotechnical reasons), whether an appropriate amount of building volume can be achieved having regard to what would be expected in the locality (eg a one bedroom shack rather than a three bedroom dwelling might not be reasonable having regard to the development controls in the locality), parking and access.
20Although not clearly articulated, it sufficiently appears from the five reasons at [17] of the Commissioner's judgment that he applied tests of whether the FBL control was reasonable and whether the extent of the breaches of the control were reasonable. The Commissioner's approach is suggestive of an investigation into the merits of the FBL control, admixed with the application of State Environmental Planning Policy No 1 - Development Standards (SEPP 1) to the FBL control. That, however, is not the question which cl 17(9)(b)(iv) poses. New dwellings cannot be constructed forward of the FBL unless there is no reasonable alternative. In my view, that does not invite or require the exploration of questions of the merits of the FBL control, consistency with surrounding development which breaches the FBL control, the extent of the new dwelling's breach of the FBL control, or the other matters which the Commissioner took into account. The ameliorating adjective "reasonable" in cl 17(9)(b)(iv) does not relate to the reasonableness of the FBL control or surrounding compliances with it, but rather to the reasonableness of erecting a new dwelling at this alternative location entirely behind the FBL.
21The five matters that the Commissioner took into account at [17] of his judgment are as follows:
(a)The FBL is an historic line that changes direction constantly and dramatically, bears no resemblance to the existing foreshore, and is largely irrelevant for planning purposes in this location given the location of the foreshore and adjoining residential developments.
This is a criticism of the policy of the cl 17(7) FBL control. The Minister made the decision to impose the FBL at this location and adopted a policy which prevented, other than in exceptional circumstances, new residential development forward of the FBL. The Commissioner's approach would set the cl 17(7) prohibition at naught. In my view, the criticism is irrelevant to the question of the reasonableness of the alternative location posed by cl 17(9)(b)(iv). That existing adjoining residential developments have been constructed forward of the FBL says nothing as to the relevance of applying the policy to this development. The adjoining developments may well have been constructed at a time when no FBL applied. Eventually, these existing developments will be redeveloped and one should not assume that they will not then comply with the FBL control. On the contrary, as Lloyd J said in Hooler v Sutherland Shire Council [2008] NSWLEC 189 at [25]: "the existence of such structures is a sound reason for enforcing the policy objective of cl 18. The council should take every opportunity to secure their removal whenever that opportunity arises".
(b)The extent of the breaches is minor and the whole proposed development still satisfies the objectives of the control.
This is a classic SEPP 1 reasoning process which, in my opinion, is irrelevant to determining whether there is a reasonable alternative. The alternative location is no less reasonable because the breach of the control is minor. If the breach is minor, then perhaps the alternative is more reasonable because it is more readily available. In any event, the reasonableness of the alternative location cannot be measured by the extent of the breach. Further, the reasonableness question posed by cl 17(9)(b)(iv) is not answered simply because another question posed by cl 17(9) (paragraph (a): consistency with objectives) has been answered favourably to the applicant.
(c)The proposal is consistent with adjoining properties which have much greater breaches of the FBL.
In my opinion, this is irrelevant. The extent of other breaches of the FBL cannot justify this breach. More importantly, it says nothing as to the reasonableness of the alternative location.
(d)The breaches of the FBL create no amenity impacts on adjoining residential properties.
In my opinion, whether this is so or not is irrelevant because it says nothing as to the reasonableness of the alternative location. Presumably, the alternative creates no amenity impacts either.
(e)Clause 17(9) provides the opportunity for a dwelling to be erected below the FBL, and all other requirements of the clause are satisfied, with the exception of paragraph (b)(iv).
There is a logical difficulty with this proposition. If, in order to obtain the benefit of the exception in cl 17(9), five requirements have to be satisfied but only four of them can be satisfied, then satisfaction with four cannot be a reason for finding that the fifth is satisfied. Perhaps implicitly the Commissioner was acknowledging here that the fifth requirement, in cl 17(9)(b)(iv), is not satisfied but it was sufficient in his view that four out of five are satisfied. I cannot agree. That is to effectively delete subparagraph (iv), which is a mandatory requirement.