Watson v Transitional Coastal Panel

Land and Environment Court (NSW)|2018-12-21

This decision was given as an extemporaneous decision at 3pm on 21 December 2018. It has been revised and edited prior to publication.

COMMISSIONER: This Class 1 appeal concerns a development application (DA) brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the respondent's deemed refusal to undertake repairs to the existing seawall located within the Council Road Reserve immediately seaward of the private property at Lots 21-23 and 18-20 Section 2 in DP 1623 being 44 and 48 Childe Street, Byron Bay (the site).
The proceedings were referred to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 17, 18, 19 and 21 December 2018. I presided over the conciliation conference which was held in Sydney.
At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act which comprised several Appendices was filed with the Court on 21 December 2018 (s34 Agreement).
The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the restacking of existing rock with the importation of additional rock of a certain size and quantity to restore the face of the existing seawall (Applications Summary Table at Appendix 3 of s34 Agreement). Nature of the Works Section Plans Repair Works Plans Rock Size Quantity of Rocks Proposed access Restacking of existing rock with importation of additional rock to restore the face to design profile above sand level. Repair works above +1 to about +6.5m AHD. BSR-CS1-UW-003A BSR-CS1-UW-004A 1.5-5T Up to 75 tonnes From beach BSR-CS1-UW-005A BSR-CS1-UW-006A (up to 7 x 12t trucks)

Noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 Agreement (s34 Agreement at Appendix 8).

Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising power under s 4.16 of the EPA Act. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings in a joint written submission dated 18 December 2018. The submission refers to the Joint Experts' Coastal Engineering Report: Leslie Angus Jackson and James Carley 44 and 48 Childe Street, Belongil, Byron Bay (JER) (Appendix 4 of the s34 Agreement) and a bundle of documents prepared by the parties including copies of relevant legislation and other documents which I have marked as Exhibit A.
The parties explained to me during the conference how the jurisdictional pre-requisites have been satisfied in order to allow the Court to make the following agreed orders: 1. Grant the development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act.
I have set out below my understanding of the parties' agreed position and the evidence in support of the agreement taken from their written submission. "Jurisdictional requirements Legislative Context Coastal Protection Act 1979 [(CP Act)] Savings and transitional provisions 1. The development application was lodged on 11 August 2017. At that time and up until 3 April 2018, the CP Act and State Environmental Planning Policy No 71- Coastal Protection (SEPP 71) were in force. 2. On 3 April 2018, the [CP Act] was repealed and the Coastal Management Act 2016 [(CM Act)] came into force. Clause 5 of Schedule 3 to the [CM Act] provides as follows: [Exhibit A] at 486: 5 General saving Subject to this Schedule and the regulations: (a) anything begun before the repeal date under a provision of the former Act for which [th]ere is a corresponding provision in this Act may be continued and completed under the former Act as if this Act had not been enacted, and (b) subject to paragraph (a), anything done under a provision of the former Act for which there is a corresponding provision in this Act (including anything arising under paragraph (a)) is taken to have been done under the corresponding provision of this Act. 3. On 3 April 2018, SEPP 71 was also repealed and replaced by the State Environmental Planning Policy (Coastal Management) 2018 [(2018 SEPP)]. Clause 21 of the 2018 SEPP relevantly provides as follows: [Exhibit A] at 404: 21 Savings and transitional provisions Note. See also section 27 (Granting of development consent relating to coastal protection works) of the Coastal Management Act 2016. (1) The former planning provisions continue to apply (and this Policy does not apply) to a development application lodged, but not finally determined, immediately before the commencement of this Policy in relation to land to which this Policy applies. … (4) In this clause: former planning provisions means: (a) the provisions of each of the following Policies as in force immediately before the Policy's repeal: (i) State Environmental Planning Policy No 14 - Coastal Wetlands, (ii) State Environmental Planning Policy No 26 - Littoral Rainforests, (iii) State Environmental Planning Policy No 71 - Coastal Protection, and (b) the provisions of State Environmental Planning Policy (Infrastructure) 2007 that would be in force if that Policy had not been amended by this Policy. 4. As a consequence of these savings and transitional provisions, the planning provisions that previously applied continue to apply to the assessment and determination of [this] development [application]. That is, the CP Act and SEPP 71. 5. Section 27A (also repealed on 3 April 2018) of the State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) provided as follows: 129A Development with consent (1) Development for the purposes of a sea wall or beach nourishment may be carried out by any person with consent on the open coast or entrance to a coastal lake. (2) If a coastal zone management plan does not apply to the land on which any such development is to be carried out, the Coastal Panel has the function of determining a development application for development to which this clause applies. (3) Before determining a development application for development to which this clause applies, the consent authority must take the following matters into consideration: (a) the provisions of any coastal zone management plan applying to the land, (b) the matters set out in clause 8 of State Environmental Planning Policy No 71 - Coastal Protection, (c) any guidelines for assessing and managing the impacts of coastal protection works that are issued by the Secretary for the purposes of this clause and published in the Gazette. Note. Section 55M of the Coastal Protection Act 1979 sets out preconditions to the granting of development consent relating to coastal protection works. 6. That clause continues to apply pursuant to cl 21(4)(b) of the 2018 SEPP. Coastal Protection Act 1979 7. The object of the CP Act in s 3 was to provide for the protection of the coastal environment of the State for the benefit of both present and future generations and, in particular: [Exhibit A] at 410: (b) to encourage, promote and secure the orderly and balanced utilisation and conservation of the coastal region and its natural and man-made resources, having regard to the principles of ecologically sustainable development, and [...] (d) to promote public pedestrian access to the coastal region and recognise the public's right to access. 8. Section 55M provided as follows: [Exhibit A] at 432: 55M Granting of development consent relating to coastal protection works (1) Consent must not be granted under the Environmental Planning and Assessment Act 1979 to development for the purpose of coastal protection works, unless the consent authority is satisfied that: (a) the works will not over the life of the works: (i) unreasonably limit or be likely to unreasonably limit public access to or the use of a beach or headland, or (ii) pose or be likely to pose a threat to public safety, and (b) satisfactory arrangements have been made (by conditions imposed on the consent) for the following for the life of the works: (i) the restoration of a beach, or land adjacent to the beach, if any increased erosion of the beach or adjacent land is caused by the presence of the works, (ii) the maintenance of the works. (2) The arrangements referred to in subsection (1) (b) are to secure adequate funding for the carrying out of any such restoration and maintenance, including by either or both of the following: (a) by legally binding obligations (including by way of financial assurance or bond) of all or any of the following: (i) the owner or owners from time to time of the land protected by the works, (ii) if the coastal protection works are constructed by or on behalf of landowners or by landowners jointly with a council or public authority - the council or public authority, Note. Section 80A (6) of the Environmental Planning and Assessment Act 1979 provides that a development consent may be granted subject to a condition, or a consent authority may enter into an agreement with an applicant, that the applicant must provide security for the payment of the cost of making good any damage caused to any property of the consent authority as a consequence of the doing of anything to which the consent relates. (b) by payment to the relevant council of an annual charge for coastal protection services (within the meaning of the Local Government Act 1993). (3) The funding obligations referred to in subsection (2) (a) are to include the percentage share of the total funding of each landowner, council or public authority concerned. 9. "Coastal protection works" was defined as including seawalls: s 4. 10. The parties have agreed, with the imposition of the agreed conditions, that the objects of the CP Act & the EPA Act are achieved, and that the provisions of Section 55M of the [CP Act] are satisfied … 11. … the experts have conferred and prepared [the JER] report. In connection with the section 55M(1) considerations [they agreed that]: • the works will not unreasonably limit or be likely to unreasonably limit public access to or use of the beach (JER at [6] & [9]-[10] & Section 2.4 of Addendum A); • With respect to public safety, the works are [the] repair of [an] existing [seawall] and the maintenance conditions requiring ongoing maintenance of the [seawall], will ensure that there is no threat to public safety caused by the works (JER [30]-[35]). • Satisfactory arrangements (by conditions imposed on the consent) have been made for the restoration of the beach, if any increased erosion of the beach is caused by the presence of the works. Condition 8 of the development consent provides that the seawall must be maintained, repaired and rectified in accordance with the Maintenance, Repair and Rectification Plan. Relevant matters which have been included in the maintenance plan include: ○ An agreed monitoring regime; ○ A prohibition or limitation on seaward migration of the structure; ○ The size and specification of imported repair rocks; ○ Annual or episodic limits on the quantity of imported material (JER at [41]). 12. Regarding maintenance, the maintenance plan satisfactorily requires ongoing maintenance of the works. 13. Section 55M(2) requires that the arrangements in s 55M (1) (b) be secured by adequate funding. Those arrangements have been provided for in the conditions of consent by way of a bond to be provided by the landowners. In [this case], condition 9 requires that prior to any works being carried out, [the owner] must provide an irrevocable bank guarantee to Crown Lands in the amount of $20,000 to undertake works in accordance with the maintenance plan in the event that the seawall is damaged as a result of a coastal storm. The owner of the private property is required to cause to be registered on the title of the private property a public positive covenant requiring the owner to comply with the obligations of the development consent, and to comply with the obligations of the maintenance plan. 14. The CP Act and s 55M brings into play the mandatory considerations under s 4.15 of the EPA Act. Local Environmental Plan 1988 15. The land zoning map in the 2014 LEP indicates that the whole of the Belongil Spit including the land the subject of these proceedings is a "deferred matter". Therefore, the 2014 LEP does not apply, and the 1988 LEP continues to apply. 16. The Watson works are located on Crown Land. Under the 1988 LEP, the land in [these] proceedings is zoned as follows: a. the private land is zoned [7(f2) (sic)] (Urban Coastal Land Zone); and b. the public land adjacent to the private property … is zoned [7(f1) (sic)] (Coastal Land Zone). 17. The objects of the relevant zone [are] as follows: [Exhibit A] at 21: Zone No 7 (f1) (Coastal Land Zone) 1 Objectives of zone The objectives of the zone are: (a) to identify and protect environmentally sensitive coastal land, (b) to enable development for certain purposes where such development does not have a detrimental effect on the habitat, landscape or scenic quality of the locality, (c) to prevent development which would adversely affect, or be adversely affected by, coastal processes, and (d) to enable the careful control of noxious plants and weeds by means not likely to be significantly detrimental to the native ecosystem. Zone No 7 (f2) (Urban Coastal Land Zone) 1 Objectives of zone The objectives of the zone are: (a) to identify urban land likely to be influenced by coastal processes, (b) to permit urban development within the zone subject to the council having due consideration to the intensity of that development and the likelihood of such development being adversely affected by, or adversely affecting, coastal processes, (c) to permit urban development within the zone subject to the council having due consideration to: (i) the need to relocate buildings in the long term, (ii) the need for development consent to be limited to a particular period, (iii) the form, bulk, intensity and nature of the development, and (iv) continued safe public access to the site, and (d) to allow detailed provisions to be made, by means of a development control plan, to set aside specific areas within the zone for different land uses and intensities of development. 18. Clause 88 is relevant to the assessment of the development applications, which provides as follows: [Exhibit A] at 74: 88 Development within the coastal zone (1) The objectives of this clause are as follows: (a) to provide for the protection of the coastal environment of the State for the benefit of both present and future generations through promoting the principles of ecologically sustainable development, (b) to implement the principles in the NSW Coastal Policy [1] , and in particular to: … (iii) provide opportunities for pedestrian public access to and along the coastal foreshore, and (iv) recognise and accommodate coastal processes and climate change, and (v) protect amenity and scenic quality, and (vi) protect and preserve rock platforms, beach environments and beach amenity, and … (ix) ensure that the type, bulk, scale and size of development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area, and (x) ensure that decisions in relation to new development consider the broader and cumulative impacts on the catchment, and ... (2) Development consent must not be granted to development on land that is wholly or partly within the coastal zone unless the consent authority has considered: (a) existing public access to and along the coastal foreshore for pedestrians (including persons with a disability) with a view to: (i) maintaining existing public access and, where possible, improving that access, and (ii) identifying opportunities for new public access, and (b) the suitability of the proposed development, its relationship with the surrounding area and its impact on the natural scenic quality, taking into account: (i) the type of the proposed development and any associated land uses or activities (including compatibility of any land-based and water-based coastal activities), and (ii) the location, and (iii) the bulk, scale, size and overall built form design of any building or work involved, and … (d) how the visual amenity and scenic qualities of the coast, including coastal headlands, can be protected, and (e) how biodiversity and ecosystems, including: (i) native coastal vegetation and existing wildlife corridors, and (ii) rock platforms, and (iii) water quality of coastal waterbodies, and (iv) native fauna and native flora, and their habitats, can be conserved, and (f) the cumulative impacts of the proposed development and other development on the coastal catchment. (3) Development consent must not be granted to development on land that is wholly or partly within the coastal zone unless the consent authority is satisfied that: (a) the proposed development will not impede or diminish, where practicable, the physical, land-based right of access of the public to or along the coastal foreshore, and … (d) the proposed development will not: (i) be significantly affected by coastal hazards, or (ii) have a significant impact on coastal hazards, or (iii) increase the risk of coastal hazards in relation to any other land. 19. The [development is] permissible with development consent, being proposed beach and coastal restoration works, and therefore permissible with consent under cl 9 of the [1988 LEP] (page 21 of the [Exhibit A]). 20. Clause 9(3) of the [1988 LEP] states that the consent authority shall not grant consent to the carrying out of development on land unless the consent authority is of the opinion that the carrying out of the development is consistent with the objectives of the relevant zone. The [parties submit based on the evidence of the coastal experts in the JER that the] proposed works are consistent with the objectives of the zone [(a) - (d)]. Relevantly, the development does not have a detrimental effect on the habitat, landscape or scenic quality of the locality, and the development would not adversely affect, or be adversely affected by, coastal processes (see JER at [24]-[29]). There are extensive conditions which seek to protect the Norfolk Pine Tree in the northwest portion of the Construction Footprint (see condition 5.4 and Annexure 3 nos 3-20) 21. Clause 88(2) of the [1988 LEP] considerations: The parties consider that the development addresses the relevant matters required to be considered in cl 88(2), as follows: a. Existing public access is maintained: JER at [6] & [9]-[10]); b. Regarding the suitability of the proposed [development] and their relationship with the surrounding area, the [development is] for the repairs of [an] existing [structure] only; c. There are no amenity issues on the coastal foreshore within the meaning of cl 88(2)(c); d. In terms of the scenic qualities of the coast including coastal headlands, the proposals are for repairs of [an] existing [structure] only; e. In terms of impact on biodiversity and ecosystems, the conditions of consent ameliorate and manage any impacts that might arise (eg condition 3 requires that the works must be carried out in accordance with the approved plans; condition 4 requires surveys to be undertaken prior to the issue of a CC; condition 9 details the construction methodology of the construction works; condition 4(ix) identifies that no excavation on the beach is proposed; the conditions ensure the protection of the Norfolk Pine Tree). f. In relation to cumulative impact, this is addressed in the joint report in Addendum A at [35]-[40]. The existing works have protected the property for over 20 years. Complete removal of the section of seawall on the subject site is unlikely to reduce the magnitude of downdrift end effect, but the present end effect to the NW would extend into the subject property: JER at [34-35]. 22. Clause 88(3) of the [1988 LEP] provides that development consent must not be granted unless the consent authority is satisfied that (relevantly): a. The proposed development will not impede or diminish where practicable, the physical, land based right of access to the public to or along the coastal foreshore and b. [not relevant] c. [not relevant] d. The development will not be significantly affected by coastal hazards or have a significant impact on coastal hazards or increase the risks of coastal hazards in relation to any other land. 23. With respect of cl 88(3)(a), the application relates to the repair of [an] existing [wall] in front of private properties and, while it is located on public land, there is no impediment or diminution of the right of access along the coastal foreshore. The repairs are also subject in the conditions to a "whole of embayment" solution, and the conditions also provide for emergency access to members of the public from the beach. 24. With respect of cl 88(3)(d), the [development is] for [the] repair, reconstruction and ongoing maintenance of [an] existing [seawall] and therefore will not be significantly affected by coastal hazards over and above the status quo, and will not have a significant impact on coastal hazards or increase the risks of coastal hazards (see the JER at 24-29). In the absence of a coastal management plan, and the adverse consequences of a breach of the [seawall], the repairs to the existing [structure] may have some public benefits until such plan is developed as it will provide protection for public and private infrastructure as well as a breakthrough of the ocean into the estuary and wetlands: [JER at [45]). 25. Clause 88(1) identifies the relevant objectives within the coastal zone generally. For the reasons given, the parties agree that the carrying out of the development is consistent with the objectives of the coastal zone. SEPP 71 26. Under s 4.15 of the EPA Act the Court is required to consider the provisions of any [environmental planning instrument]. 27. SEPP 71 applied to land within the "coastal zone" as defined in the CP Act: [s] 4(1) and cl 3 definition of "coastal zone" in SEPP 71. It is not in dispute that the land the subject of each of these development applications is within the coastal zone and that SEPP 71 applies. 28. SEPP 71 provided, relevantly, as follows: [Exhibit A] at 382-385: 2 Aims of Policy (1) This Policy aims: (a) to protect and manage the natural, cultural, recreational and economic attributes of the New South Wales coast, and (b) to protect and improve existing public access to and along coastal foreshores to the extent that this is compatible with the natural attributes of the coastal foreshore, and (c) to ensure that new opportunities for public access to and along coastal foreshores are identified and realised to the extent that this is compatible with the natural attributes of the coastal foreshore, and … (e) to ensure that the visual amenity of the coast is protected, and (f) to protect and preserve beach environments and beach amenity, and … (j) to manage the coastal zone in accordance with the principles of ecologically sustainable development (within the meaning of section 6 (2) of the Protection of the Environment Administration Act 1991), and (k) to ensure that the type, bulk, scale and size of development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area, and (l) to encourage a strategic approach to coastal management. Part 2 Matters for consideration 7 Application of clause 8 matters The matters for consideration set out in clause 8: … (b) are to be taken into account by a consent authority when it determines a development application to carry out development on land to which this Policy applies. 8 Matters for consideration The matters for consideration are the following: (a) the aims of this Policy set out in clause 2, (b) existing public access to and along the coastal foreshore for pedestrians or persons with a disability should be retained and, where possible, public access to and along the coastal foreshore for pedestrians or persons with a disability should be improved, (c) opportunities to provide new public access to and along the coastal foreshore for pedestrians or persons with a disability, (d) the suitability of development given its type, location and design and its relationship with the surrounding area, … (j) the likely impact of coastal processes and coastal hazards on development and any likely impacts of development on coastal processes and coastal hazards, … (p) only in cases in which a development application in relation to proposed development is determined: (i) the cumulative impacts of the proposed development on the environment, … 29. Under cl 7(b) of SEPP 71 the consent authority is required to take into account the matters for consideration in cl 8 when it determines a development application to carry out development on land to which the Policy applies: Aldous v Greater Taree City Council [2009] NSWLEC 17; 167 LGERA 13 at [79]. 30. Relevantly, the considerations that apply in cl 8 overlap with the considerations under s 55M and the [1988 LEP]. 31. There are no other jurisdictional prerequisites that the Court must be satisfied of prior to granting consent." (Emphasis added)

Findings - Jurisdiction

The legislation, as outlined in the parties' agreed written submissions quoted above, invite me to make findings about the evidence in relation to this DA in order to engage jurisdiction.
In this case, the proposed development is located partly on the Council Road Reserve owned by the Council and partly on private property.
As landowner, the Crown has provided written consent to the making of this DA on public land. The requirement for landowners consent arises by operation of cl 49(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Reg). The clause provides that a development application may be made by the owner of the land to which the development relates, or any other person with the consent in writing of the owner of the land. The applicant, as owner of the private land, has provided the requisite consent.
I accept that the proposed development is permissible with development consent in the Zone Nos 7(f1) (Coastal Land zone), and the 7(f2) (Urban Coastal Land Zone) being proposed beach and coastal restoration works (as defined in the Dictionary in the 1988 LEP) under cl 9 of the 1988 LEP.
I am also satisfied that the proposed development is consistent with the objectives of the 7(f1) (Coastal Land Zone) and the 7(f2) (Urban Coastal Land Zone) which is a relevant consideration under cl 9(3) of the 1988 LEP based on the evidence referred to by the parties at pars 11-14 of their agreed submissions (see page 8 of this judgment) including the coastal experts' agreed evidence in respect of objective (b) that the proposed development will not have a detrimental effect on the habitat, landscape or scenic quality of the locality, and the development would not adversely affect, or be adversely affected by, coastal processes (JER at [24]-[29]). There are extensive conditions which seek to protect the Norfolk Pine tree in the northwest portion of the Construction footprint (see condition 5.4 and Annexure 3).
Clause 88 of the 1988 LEP deals with development within the coastal zone. It requires that development consent must not be granted to the development on this site unless I consider the matters listed at (a) - (f) in subcl 88(2) reproduced at par 18 of the parties' agreed submissions (see pages 10-11 of this judgment). I have considered these matters together with the evidence and the parties' submissions and I believe that the development has responded appropriately for the reasons outlined by the parties at par 22 of their agreed submissions (see page 13 of this judgment). Therefore, cl 88(2) is not an impediment to me granting consent to the proposed development.
As discussed at par 23 of the parties' agreed submissions (see page 13 of this judgment), cl 88(3) of the 1988 LEP requires before the grant of development consent that I am satisfied about the following matters that: (a) the proposed development will not impede or diminish where practicable, the physical, land based right of access to the public to or along the coastal foreshore, and (b) … (c) … (d) the proposed development will not be: (i) significantly affected by coastal hazards or (ii) have a significant impact on coastal hazards or (iii) increase the risks of coastal hazards in relation to any other land.
The agreed evidence of the coastal experts is that existing public access is maintained by the development: (JER at [7] and [10]-[11]).
In that regard, they agree that the proposed works do not limit public access along the beach and the use of the beach during ambient wave conditions when the beach is accreted. In this case, the evidence is that much of the wall is buried under the beach sand during accreted conditions. Accreted conditions are the most common conditions and according to the experts report (Addendum B at [2]) the wall is presently covered in sand and vegetation (Figure (2)). The experts state that the leading edge of the crest of the current wall is about on the seaward property boundary at the NW end and about 3m within private property at the SE and the lower sections are on the public lands seaward of the property. The experts agree that the current works have been in place for 20 years and generally do not restrict safe beach usage along the beach except for short periods during storms (Addendum B at [42] - [43]). And while they have assessed that the proposed development will limit public access along the beach and use of the beach when the beach is eroded and/or at times of large waves and/or high tide, they do not assess such limitation as being unreasonable. In fact, their evidence is that the proportion of time that this will occur is difficult to calculate on present data. Mr Carely noting that he has witnessed such conditions on numerous occasions in the past that during very eroded beach states, all structures north of Manfred Street (about 330m) limit public beach use. In any event, the path on top of the Jonson Street Structures (JSS) provides alternate access to the beaches on either side.
The evidence is that the coastal environment is dynamic and the beach is receding. In those circumstances, the experts agree that the proposed development will help prevent a breakthrough of Belongil Spit. They also agree that it will assist to provide protection to the environmentally sensitive estuary and wetlands landward of the development (JER at [30]).
And while the experts agree that the public interest would be best served through the development of a CMP. They also agree that no co-ordinated management plan has been enacted in Byron Bay in the 40 years following the original NSW PWD (1978) study (JER at [44]). While the long term occupation of public land does not serve the public interest, Mr Carley accepts that given the absence of the CMP and the adverse consequences of a beach in the Belongil seawall, interim occupation of the public beach may have some public benefit until a CMP is developed (JER at [47]).
Accordingly, I am satisfied on the expert evidence that the proposed development will not impede or diminish where practicable, the physical, land based right of access of the public to or along the coastal foreshore. I note the words "where practicable". Having regard to the text of the subclause in context it is clear that the clause is not expressed in absolute terms. Access is to be provided by the development where "practicable". Therefore, the clause anticipates circumstances where development will necessarily, impede or diminish the physical, land based access of the public to or along the coastal foreshore if it is "impracticable" not to do so. Grammatically, the words, "where practicable" relate directly to the development and the proposed works. In my assessment of the facts as explained to me by Mr Galasso SC and Ms Duggan SC, this development falls within that qualification. The existing seawall is described by the experts as rubble revetment. The proposed development is to place certain specified material within a defined profile on public land to protect both public and private property from coastal processes. The existing seawall has been in place for many years and is in need of maintenance to improve structural stability and to make it safe according to the agreed position of the experts. That said the development is interim. It is subject to conditions for a "whole of embayment" solution (Conditions 10.1 & 10.2), and also conditions to provide for emergency access to members of the public from the beach (for the first time). Based on the expert evidence before me I conclude that this interim protection measure is appropriate and to the extent that it offends cl 88(3)(a) (if it does which in this case I think not) it is not presently practical to avoid such a consequence. The development falls within the qualification identified in the clause. In reaching this state of satisfaction I accept the experts' assessment that the proposed development will assist to prevent a breakthrough of Belongil Spit and assist to provide protection not only to the applicant's private property, but also the environmentally sensitive estuary and wetlands landward of the development. It is not a practical approach to avoid any short term impacts on public access until the whole of embankment solution envisaged by the proposed conditions of consent (10.1 and 10.2) is in place. While the proposed development is partly on private and public land, there is no impediment or diminution of the right of access along the foreshore. The proposed development is subject to conditions to a "whole of embayment solution" and other conditions to provide for emergency access to members from the beach. Mr Jackson contending that occupation of the public beach until a CMP is developed to provide a better solution will have public benefit as it will provide protection for public and private infrastructure as well as reducing the risk of a breakthrough of the ocean into the estuary and wetlands.
I accept that subcll 88(3)(b) and (c) are not relevant.
With respect to cl 88(3)(d), the parties address this at par 25 of the parties' agreed submissions (see page 13 of this judgment). I agree with the parties' joint submission based on the evidence of the coastal experts (JER at [47]).
SEPP 71 applies to this site within the coastal zone. Clause 8 of the SEPP 71 lists certain matters for consideration which cl 7 requires me to take into account when determining this DA.
Clause 8(a) refers to the aims of the Policy which are set out at cl 2 of the SEPP 71. I have considered those aims and I am satisfied on the evidence of the coastal experts that the proposed development achieves those aims. In that regard, the evidence is that the proposed development seeks to protect and manage the natural attributes of the NSW coast: cl 2(1)(a) - in the absence of a CMP - yet accommodate and encourage a strategic approach to coastal management by incorporating a "whole of embankment solution" when opportunity arises in accord with cl 2(1)(l). Furthermore, the proposed development seeks to reduce the risk of a breakthrough of the ocean into the estuary and sensitive wetlands (JER at [47]) and this accords with the aim in cl 2(1)(f) of the SEPP 71. Based on the expert evidence, the proposed development is not visually intrusive therefore, the visual amenity of the coast will be protected and cl 2(1)(e) is achieved. The type, bulk scale and size of the proposed development is on the evidence considered to be appropriate and sensitive to the environment based on my understanding of the location. It will also protect and improve the natural scenic qualities of the surrounding area by ensuring that there is no breakthrough of the ocean into estuary and sensitive wetlands - it will require the removal of stray rocks from the beach. The coast experts evidence (JER at [26]-[39]) supports the conclusion that the development achieves the stated aims.
In addition to the aims of the SEPP called up by cl 8(a), I have also considered the other matters listed in cl 8. And, based on the evidence of the coastal experts, it is my view that these considerations are also adequately addressed by this DA. There is no impediment in the SEPP to my dealing with the DA.
As the parties observe in their agreed submissions, there is some overlap with the considerations under s 55M and the 1988 LEP. Nonetheless I have considered each relevant provision and I am of the view that with the imposition of the agreed conditions, the objects of the CP Act and the EPA Act are achieved for the reasons submitted by the parties and based on the experts agreed evidence referred to earlier in this judgment.
The appeal requires the consent authority to be satisfied of the matters in s 55M of the CP Act and cl 88(3) of 1988 LEP. Based on the agreed evidence of the coastal experts as outlined, I am satisfied that: 1. With the imposition of the conditions, and in particular condition 10, the proposal will not unreasonably limit or be likely to unreasonably limit public access (s 55M(a)(i)) and will not impede or diminish, where practicable, the physical land based right of access of the public to or along the coastal foreshore (cl 88(3)(a)). 2. The proposal will not pose or be likely to impose a threat to public safety (s 55M(a)(ii)) and will with the imposition of the conditions requiring monitoring and maintenance of the works and the walls that the works rely upon will provide an improvement public safety to that which presently exists. 3. I also accept on my understanding of the site and evidence that the proposal will not: 1. be significantly affected by coastal hazards, or 2. have a significant impact on coastal hazards, or 3. increase the risk of coastal hazards in relation to any other land. As required by cl 88(3)(d) as compared to the existing situation.
I have formed this view based on the parties agreed submissions and evidence which is set out in detail at pars 10-12 (at page 8 of this judgment). I do not need to repeat it.
For completeness, the Court notes that: 1. the application was publicly exhibited on 7 March 2018; 2. by email on 29 November 2018, the amended plans which the Court granted leave to the Applicant to rely upon on 2 November 2018 were publicly notified. The emails of 29 November 2018 also notified members of the public of the hearing and informed that they were entitled to provide evidence to the Court in either written or oral form. No member of the public requested to provide further evidence to the Court; and 3. Government agencies were notified of the amended plans by letter of 4 November 2018.
The Court also notes that it has been provided with copies of written submissions from the public and submissions from Byron Shire Council, the NSW Office of Environment and Heritage and the National Parks and Wildlife Service, including correspondence relating to Roads Act approval with NSW Department of Industry - Lands and Water (DPI) and Byron Shire Council.
The Court notes that the conditions specify that the Applicant is required to obtain Roads Act approval from each of DPI and Byron Shire Council.
The Court also notes that it has been provided with a letter dated 12 December 2018 from NSW Department of Industry - Lands and Water to the Respondent providing landowner's consent to the amendment of the plans insofar as they relate to access to the construction site through land owned by NSW Department of Industry - Lands and Water (being the land known as the Old Jetty Site).
Having considered the parties' submissions as summarised and the relevant legislation together with the evidence in the joint report and Exhibit A, I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act for the reasons that follow.
As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision.
The Court orders: 1. The appeal is upheld. 2. Development Application number CP 17-007 to undertake repairs to the existing seawall located within the Council Road Reserve immediately seaward of the private property at Lots 21-23 and 18-20 Section 2 of DP 1623, being 44 and 48 Childe Street, Byron Bay is approved subject to the conditions found in Annexure A. 3. Except in respect of any existing cost order which has been made, each party is to bear its own costs of these proceedings. ……………………………. S Dixon Senior Commissioner of the Court

Endnote

At the relevant date, the NSW Coastal Policy was SEPP 71

Amendments 13 February 2019 - Pursuant to UCPR 36.17, the slip rule, by the Court's own motion, amend an accidental omission of a part of paragraph [19] due to technical complications when uploading the judgment onto Caselaw. 13 February 2019 - Correction of typographical error in [2]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 February 2019

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