> Land and Environment Court of New South Wales CITATION : Matthew Strange and Stephen Strange v Kiama Municipal Council [2003] NSWLEC 287 APPLICANT: Matthew Strange and Stephen Strange PARTIES : RESPONDENT: Kiama Municipal Council FILE NUMBER(S) : 10228 of 2002 CORAM: Hussey C Development Application :- Alterations/extensions KEY ISSUES: Foreshore building line (SEPP 1 objection) Public interest LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Kiama Municipal Council LEP CASES CITED: DATES OF HEARING: 26 September 2003 DATE OF JUDGMENT: 11/18/2003 APPLICANT: Mr J Robson SOLICITORS: Peedoms LEGAL REPRESENTATIVES: RESPONDENT: Mr I Hemmings SOLICITORS: Kearns & Garside JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10228 of 2002 Hussey C 18 November 2003 Matthew Strange and Stephen Strange Applicant v Kiama Municipal Council Respondent Judgment Background 1 This matter initially came to the Court by way of an appeal against council's refusal of the development application for alterations and extensions to an existing waterfront house at 152 Charles Street, Minnamurra. 2 The alterations to the existing house involve the conversion of the lower floor garage area, reconfiguration of the first floor level, re-roofing the building and provision of additional glazing to the eastern and southern elevations. The overall proposal also includes the construction of a new two-storey building at the south western end of the land. The existing dwelling house has a gross floor area (inclusive of garaging) of 186.5 m2 and the proposed alterations and additions will increase the gross floor area to 444.8 m2. 3 The main issues concerned compliance with the Foreshore Building Line (FBL), storm/beach erosion risks, visual impact and public interest considerations. 4 Following orders to grant development consent on 24 January 2003, this decision was appealed and her Honour Justice Pain subsequently decided to remit the matter for further hearing. For this further hearing, the outstanding issues involve: + non-compliance with council's policies concerning the erection, alteration, extension or rebuilding of buildings along the Minnamurra River. In this regard, determination of a SEPP 1 objection to the FBL standard is required: + inconsistency with the NSW Coastal Policy. + impact on adjoining property. The evidence 5 Further evidence for the council was presented by Mr G. Debnam, senior town planner with Kiama Council. The applicant's consulting town planner Ms L Bull also presented a further report, incorporating an updated SEPP 1 objection to the F. B. L. development standard. 6 In accordance with Justice Pain's finding, this proposal involves the erection of the building forward of the foreshore building line. This foreshore building line was formerly set by way of the Minnamurra Foreshore Building Line Policy. 7 Subsequently on 16th September 2003, council adopted the Kiama DCP No 36 - Building Lines and Foreshore Building Lines, which is effective from 24 September 2003. With regard to the submissions concerning the weight to be given to this DCP 36, I note that the F. B. L. controls are practically the same as those contained in the Minnamurra Foreshore Building Line Policy 36 and that is an aspect previously considered. However with the adoption of these controls in the DCP, I now consider they should be given elevated weight, so that the development should demonstrate reasonable compliance with the intent of the controls. 8 This DCP is specifically related to Kiama L.E.P., which in turn adopts cl. 7 of the Environmental Assessment Model Provisions 1980. Accordingly it contains the following aims: (a) provide guidelines for the appropriate sighting of dwellings and other buildings; and (b) protect the amenity of the localities in which the development is situated. 9 It also contains several associated objectives. 10 Particular attention is given to the Minnamurra River F.B.L. in Section 9.1, which differentiates the affected properties into Section 1 (North of No. 128 - 132 Charles Street) and Section 2 (South of 128 - 132 Charles Street). 11 As the subject property is in Section 2, the following controls are specified: (i) Any alteration, extension or rebuilding of the building forward of the foreshore building line shall be restricted to an accumulative maximum increase in floorspace of 10% as compared with the floorspace of the building at the time of first implementation of the foreshore building line on 7 March 1969. (ii) A development application which proposes a significant increase in the gross floor area compared with that of an existing building will not be approved unless that portion of the existing building forward of the Foreshore Building Line is removed. (iii) Any alteration or rebuilding of a building forward of the Foreshore Building Line, where more than 50% of the existing building is to be demolished in the process, is not permitted. (iv) New building work, including roofs, shall be designed so as not to increase the bulk and scale of the development when viewed from Minnamurra River and adjoining public areas. (v) The colours and materials on buildings shall have low reflectivity. All applications are required to be accompanied by schedule of finishing materials and colours for council approval. (vi) The existing side boundary setbacks shall not be reduced. (vii) Any extension of an existing building shall not reduce existing setback to the river. (viii) Buildings forward of the foreshore building line show of the limited to single-storey in height. 12 Insofar as this proposal involves limited building works forward of the F.B.L, which comprises mainly alterations within the existing building footprint, together with the new covered walkway, this constitutes building under the relevant instrument and is subject to the F. B. L controls. 13 Whilst there was some argument concerning the status of the 30 m FBL, it appears that it can be altered under certain circumstances. Firstly, the provisions of cl 7 (3) the model provisions allow: (3) The council may alter or abolish any foreshore building line, where the levels, depth or other exceptional features of the site make it necessary or expedient to do so. 14 Alternately, a variation to this F B. L. may be allowed pursuant to a successful SEPP 1 objection to a development standard. In this regard Mr Debnam considers this 30 m FBL is a development standard. This is consistent with the approach of Ms Bull who submitted a SEPP 1 objection to this FBL development standard. 15 With respect to the first option, Ms Bull says the existence of the existing dwelling house wholly forward of the FBL is an exceptional feature of the site, that makes it that necessary and expedient for the FBL to be altered pursuant to cl 7 (3). 16 Against this however, Mr Debnam disagrees and says there has been no substantive material lodged by the applicant suggesting that the foreshore building line should be altered or abolished pursuant to this cl 7 (3). 17 In my assessment of these competing positions, I accept Mr Debnam's opinion that no compelling evidence has been presented regarding exceptional features of the site, which would warrant alterations or abolishment of the FBL. It appears that the position of existing buildings has been accounted for because section 9.1 of the Minnamurra River Foreshore Building Line states: "in recognition of existing development pattern along the river and the inherent differences in the development of section 1 and section 2, the following criteria are to be applied in the assessment of development applications which seek to vary the development standard which prohibits the construction of buildings in contravention of the Foreshore Building Line …" 18 Accordingly the F. B. L. controls in the DCP allow for the retention of existing dwellings but limit any increase in floorspace to an additional 10%, or where there are alterations and rebuilding of more than 50% of existing dwelling, this is not permitted. On this basis then, I do not accept Ms Bull's position that the existing dwelling is an exceptional circumstance, which warrants alteration of this control. 19 The alternative option is to consider the SEPP 1 objection on the basis that the 30 m FBL is a development standard, as recognised by the planners. Insofar as the LEP does not specify the underlying objectives, associated objectives are listed in cl 9 of DCP 36. While some of these have little relevance to the subject application, the following underlying objectives are identified in the SEPP 1 objection and Mr Debnam agrees they are consistent with the relevant development standard objectives: o restrict development and reduce redevelopment below the foreshore building line, o reduce the number of structures below the foreshore building line, particularly upon redevelopment foreshore land, o restore the land below the foreshore building line, as far as practicable, to a natural state, with a minimum intrusion of artificial structures, o provide the separation between private land uses and public access along the foreshore, and o provide visual separation between land - based development and water - based activities. 20 According to Ms Bull's assessment of these underlying objectives, the proposal demonstrates reasonable consistency, except for the requirement that buildings within the F. B. L. are to be demolished where significant extensions are proposed. This acknowledgement of the significant extensions is consistent with Mr Debnam's evidence that the overall floor area will be increased by 138.5%. 21 While the proposed building works do not encroach further towards the foreshore, nevertheless I accept Mr Debnam's opinion that this proposed upgraded development will restrict opportunities to achieve the associated objectives related to providing separation between private and public land uses and facilitate convenient public access and visibility along the foreshore. 22 Even though the status of initiatives to protect and enhance public access along the foreshores is uncertain at this stage, due to delays in the proposed rezoning of the Proposed Recreation 6 (c) land and action on the land acquisition program, nevertheless I do not consider proposal is consistent with the derived objectives. 23 In summary then, it seems to me that the ultimate purpose of the development standard is to recognise the existing dwellings that encroach on the standard, but restrict their redevelopment, so as to provide a balance with public amenity of the foreshore land. In this case then, it seems that the significant alterations proposed result in an unreasonable balance towards the private interests when compared to public interest considerations. Therefore I do not consider that compliance with the development standard in this case is unreasonable or unnecessary and consequently the SEPP 1 objection fails. 24 The associated detailed controls regarding foreshore development have recently been confirmed in DCP 36. Of concern in this case is that these controls require demolition of encroaching buildings where a significant increase in gross floor area is proposed. Mr Debnam has estimated the increase in gross floor area as 138.5%, which he considers is significant and that is consistent with the evidence of Ms Bull. Under these circumstances then the proposal is noncompliant because no permanent demolition is proposed, and this is a negative aspect of the proposal. 25 Linked with this is the other requirement that restricts redevelopment where more than 50% of the existing building is to be demolished. In this case the internal alterations and removal and reconstruction of the roof and other works is in the order of 50% as stated by Mr Debnam. But this area is proposed to be reconstructed substantially within the existing building envelope and accordingly, I do not consider that this demonstrates reasonable compliance with these elements of the DCP. This is a further negative aspect of the proposal, when due weight is given to the DCP. 26 The other issues then encompass consistency with the NSW Coastal Policy and public interest considerations. In this regard Mr Debnam says that within this Section 2, there are other older cottages at No. 148 and 150 Charles Avenue, which have similar redevelopment potential. He says that in the interests of orderly development, compliance with the F. B. L. controls is required to maintain the amenity surrounding land, particularly view sharing. Conclusions 27 Having considered the further evidence and submissions, I now consider this proposal does not merit consent. The setback controls have been formalised in the recently adopted DCP 36. These controls provide for a 30 m FBL and allow only minor alterations to existing dwellings that encroach on the FBL, or their removal in the event of significant alterations. 28 In this case, the FBL is linked to the LEP and the planners have assessed its restrictions on the basis that it is a development standard. For the reasons previously stated, I do not consider this significant scale of redevelopment satisfies the underlying objectives in restricting building and redevelopment below the FBL and restoring land to its natural state. Accordingly I am not satisfied that compliance with this development standard is unreasonable or unnecessary, in this case. 29 In addition to this I do not consider that the proposal demonstrates reasonable compliance with the provisions of DCP 36 because it involves a significant increase in gross floor area, which would then require removal of the encroaching buildings, to comply with the DCP provisions. Furthermore, I accept Mr Debnam's evidence that the overall effect is that the alterations constitute more than 50% of existing building being demolished and therefore is not permissible, according to the DCP. 30 In the ultimate, I consider that when appropriate weight is given to the DCP 36 provisions, this proposal results in a significant increase in gross floor area, which has insufficient regard for the F. B. L. objectives. As it relies on a SEPP 1 objection for approval, I am not satisfied that the SEPP 1 objection should be allowed in this case and accordingly the application must fail. Court orders 31 The orders of the Court are: 1. The appeal is dismissed. 2. The SEPP 1 objection to the Foreshore Building Line in Kiama LEP is disallowed. 3. Development consent for the development application (D489/01) for alterations and additions to an existing dwelling at 152 Charles Street, Minnamurra, is refused. 4. The exhibits may be returned except for Exhibits 6, 11, 19, 21, A, C and K. __________________ R Hussey Commissioner of the Court 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.