Land and Environment Court of New South Wales CITATION : Harbour Port Constructions Pty Ltd v Sutherland Shire Council [2005] NSWLEC 760 APPLICANT Harbour Port Constructions Pty Ltd PARTIES : RESPONDENT Sutherland Shire Council FILE NUMBER(S) : 10614 of 2005 CORAM: Hoffman C KEY ISSUES: Development Application :- Jetty - ramp - pontoon and fender piles below Foreshore Building Line - scenic protection - aquatic ecology - navigation requirements Sutherland Shire Development Control Plan LEGISLATION CITED: State Environmental Planning Policy No. 71 - Coastal Protection, Sutherland Shire Local Environmental Plan 2000 DATES OF HEARING: 20/12/2005 EX TEMPORE JUDGMENT DATE : 12/20/2005 APPLICANT Mr T Howard, barrister SOLICITORS Freidman Reeves LEGAL REPRESENTATIVES: RESPONDENT Mr G Mathieson, solicitor Sutherland Shire Council Legal Branch JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 20 December 2005 10614 of 2005 Harbour Port Constructions Pty Ltd v Sutherland Shire Council JUDGMENT 1 This is appeal No. 10614 of 2005 between Harbour Port Constructions Pty Limited and Sutherland Shire Council in regard to an application for development below the foreshore building line of a jetty, ramp, pontoon and fender piles at 36 Grosvenor Crescent, Cronulla. The site is on the western shores of Gunnamatta Bay. Deleted from the application was a request for authorisation of existing sliprails and reclamation. 2 The site contains a single dwelling, swimming pool and boatshed. Parts of the swimming pool and boatshed are within reclaimed areas of the foreshore, but within the property boundaries. 3 The jetty will project across an existing rock shelf standing on piles but then there will be a cantilevered structure on a flexible ramp which goes down onto the pontoon. The pontoon is kept in place by two berthing poles on the outward side of the pontoon. 4 The zoning is Residential 2(e) under the Sutherland Shire Local Environmental Plan 2000. However the area below high water mark is zoned 7(a) Environmental Protection Waterways. The objectives of the zone is generally to recognise the importance of the waterways as an environmental and recreational asset for the residents of the area and the Sydney Region, and to ensure development does not adversely affect the ecology, scenic value or navigability of the waterways, and to ensure aquatic environments are not adversely affected by the recreational use of the waterways, and to provide for viable aquaculture in the waterway areas. 5 Development within the general locality above High Water Mark consists of detached dwellings and ancillary structures. Below high water mark and in the vicinity of the subject site, most properties have waterway access structures that extend out approximately 15 m into the waterway. These include structures such as jetties, ramps, pontoons, mooring pens and slipways. 6 The applicable statute is State Environmental Planning Policy No. 71 - Coastal Protection, Sutherland Shire Local Environmental Plan 2000 and the Sutherland Shire Development Control Plan 9.2/04 edition 1 for Waterways. 7 The Court had the benefit of a summary report by Miss L Collins, town planner of Sutherland Shire Council, who noted that the original application had been refused by council principally for the reasons of an additional two berthing poles that were requested in the original application. They would have been within an aquatic weed bed area and would have permitted permanent berthing at the facility. Indeed the Department of Primary Industries and Fisheries had objected to that, and subsequently it had been withdrawn from the proposal. 8 There are amended plans before me in Exhibit A, representing the application as it now stood. This had been assessed, it had also been notified, and there had been no objections from any neighbours or other bodies, and Primary Industries and Fisheries had withdrawn their original objections. 9 Under the matters for consideration I have found that the proposed works will not alter the existing public access to and along the coastal foreshore, and due to the built-up nature of the foreshore in this locality and the structures built upon them, new public access to and along the coastal foreshore for pedestrians is not feasible. 10 The location and design of the proposed ramp and pontoon is considered to be appropriate in the existing location, given the built-up foreshore and other nearby structures below high water mark. It is considered to be compatible with the surroundings. The proposed works are not considered to have a detrimental impact on the amenity of the coastal foreshore, nor will the proposal impact on overshadowing the foreshore or loss of views. The works are considered to be compatible with the existing context of the area and as such the scenic quality is not considered to be compromised. 11 The application was referred to the Department of Primary Industries and Fisheries for comments, and no objections were raised to the proposal in regard to the conservation of the fish habitat and marine vegetation. 12 The proposed development below the foreshore building line is unlikely to impact on coastal processes or create coastal hazards. It is considered that the proposal allows for an appropriate integration of land based and water based activities for these specific properties, and that may have the benefit of reducing demands and impacts upon local public facilities. 13 The subject site has not been recognised as a place of cultural significance under the council's records and mapping system. It will not detrimentally affect the water quality of the coastal water bodies and the subject site has not been recognised as a heritage item, archaeological item or a place of historical significance under the council's records. 14 The parties have approached the Court with consent orders in Exhibit 11, and having considered the statutes and planning implications of the proposal, I find no reason sufficient to refuse those orders. Therefore by consent the orders of the Court are: 1. That the appeal is upheld. 2. Development Application 050/0344 in respect of 36 Grosvenor Street, Cronulla, is determined by the granting of consent subject to conditions in Annexure A, as annotated by the parties. 3. The exhibits are returned to the parties, except Exhibits A, 6, 7, 9 and 11. By consent there is no order as to costs. ___________________ K G Hoffman Commissioner of the Court rjs 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.