Land and Environment Court of New South Wales CITATION : Tuffy v Sutherland Shire Council [2006] NSWLEC 812 APPLICANT Richard Tuffy PARTIES : RESPONDENT Sutherland Shire Council FILE NUMBER(S) : 10674 of 2006 CORAM: Hussey C KEY ISSUES: Development Application :- Construction of boatshed, compliance with foreshore controls, excessive excavation, boatshed design Environmental Planning and Assessment Act LEGISLATION CITED: Sutherland Local Environmental Plan 2000 Sutherland Local Environmental Plan 2006 DATES OF HEARING: 11/12/2006 EX TEMPORE JUDGMENT DATE : 12/11/2006 APPLICANT Mr G Newport, barrister LEGAL REPRESENTATIVES: RESPONDENT Mr C Mathieson, solicitor Of: Sutherland Shire Council JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 11 December 2006 10674 of 2006 Richard Tuffy v Sutherland Shire Council JUDGMENT This decision was given extemporaneously. It has been revised and edited prior to publication. Background 1 This appeal was lodged against council's refusal of a development application for the construction of a boat shed and associated works on a foreshore property situated at 44 Coopernook Avenue, Gymea Bay. 2 The refusal was due mainly to the applications failure to satisfy the LEP provisions relating to impact on foreshore areas, particularly the proposal for significant excavation into the natural rock to construct the boat shed and associated retaining walls on the foreshore. The height of the boat shed, the amount of excavation along with the removal of the natural rock areas along the foreshore was considered excessive and inappropriate in terms of the built up appearance of the foreshore, loss of natural shoreline and the natural rock features of the site. 3 In response to these concerns, the proposal was amended to reduce the amount of rock excavation and to delete the terrace/deck resulting in a conventional size of boatshed with a pitched roof in accordance with councils Waterfront DCP. The proposal also involves planting shrubs and trees adjacent to the boat shed and within the retaining wall structures to soften the impact of the boatshed on the foreshore. 4 Following consideration of this redesigned proposal, the council has decided that the relevant objectives of the planning controls are reasonably met. Consequently, the parties have agreed to enter consent orders. 5 In accordance with the Court practices, objectors to the proposal were notified. Mr McNally, neighbour from 42 Coopernook Avenue participated in the on-site hearing and expressed his concerns about physical access to the waterfront. 6 For the appeal a detailed development assessment report (Exhibit 2) was prepared by Mr M Adamson, councils town planner. The site 7 The subject site is known as 44 Coopernook Avenue, Gymea Bay (Lot 21 DP 14902) 8 A two storey dwelling and in ground swimming pool currently occupy the higher level of the site adjacent to Coopernook Avenue. 9 The land is an irregular shaped allotment with a frontage of 8.305m to Coopernook Avenue. The site is very narrow and there is a substantial fall from Coopernook Avenue to the foreshore area of approximately 23m. The site falls from the north - western corner at R.L 42 to the south-eastern corner at R.L 0.5. 10 The portion of the site from the base of the natural cliff to the MHWM is dominated by vegetation consisting of shrubs and native trees that provide a natural and undisturbed appearance when viewed from the foreshore and waterways. 11 The subject site benefits from a right of footway through the adjoining lot to the west, No 42 Coopernook Avenue. Access to the waterfront is provided via a set of stairs and path across the adjoining allotment. This is shown in transfer No. C513156. 12 Below the Mean High Water Mark and in the vicinity of the subject site several properties have waterway access structures. Foreshore structures including jetty ramps and pontoons are present in the area. 13 The street scene in the immediate vicinity of the subject land is characterised by residential housing of single and two storey construction. The proposal 14 This proposal involves development below the Foreshore Building Line for the construction of a jetty, ramp, pontoon, boatshed, slip rails and inclinator. It also involves the construction of associated sandstone retaining walls and integrated landscaping. Planning controls 15 The following Environmental Planning Instruments (LEPs), State Environment Planning Policies (SEPPs), Development Control Plans (DCPs), Codes or Policies are relevant to this application: o Sutherland Shire Local Environmental Plan 2000 (SSLEP 2000). Under this LEP the land is zoned Residential 2 (e2) and is in a Foreshore Scenic Protection Area and the proposed development is permissible with consent. o Sutherland Shire Local Environmental Plan 2006. o DCP Dwelling Houses in 2(e) Residential zones and Kurnell 9.1/02 Ed 7. o Sutherland Shire Development Control Plan 2006 o DCP Waterfront Development o Notification of Development Applications 9.0/02 Ed 4. Notification of application 16 The application has been advertised in accordance with the provisions of Clause 12 of SSLEP 2000 and Council's Notification of Development Applications - Development Control Plan. Five (5) adjoining or affected owners were notified of the proposal and one (1) submission was received from Mr and Mrs McNally (neighbours from 42 Coopernook Ave). 17 Their concerns related to the following matters: o this development will involve the removal of stairs that provide access to the waterfront and also that construction workers will use their property to access the construction area, o there is a covenant on the property that provides for the owner of No 44 Coopernook Avenue permissive access rights to the waterfront utilising the existing path and access stairs through No 42 Coopernook Avenue, as described in transfer C513156. It is envisaged that the path may be utilised to obtain access to the waterfront as there is no other way of obtaining access from Coopernook Avenue. Access to the foreshore area from the property will still be available after construction of the boatshed and associated works, o that an existing midden has been partially removed. 18 As the application proposes "Integrated Development" under the terms of the Environmental Planning and Assessment Act or involves excavation within 40 m of Mean High Water Mark, it was referred to the following authorities and the following comments were received: DIPNR Comment The Department of Infrastructure, Planning and Natural Resources has reviewed the subject development application for works within 40 metres of a watercourse/foreshore and has no objection to approval of the development as presented, subject to General terms of approval. Fisheries Comment: Officers of DPI (Fisheries) have reviewed the above proposal and have no objections subject to specific environmental safe guards detailed in their conditions of approval. The evidence 19 As I have noted, Mr Adamsom prepared a detailed development assessment of the proposal, which is the primary information used for the determination of this proposal. This assessment incorporates the relevant planning control considerations, together with the various objections lodged. 20 Mr Adamson's assessment was not challenged and provides: "STANDARD REQUIREMENT PROPOSAL COMPLIANCE Sutherland Shire Local Environmental Plan 2000 Floorspace Ratio 0.4:1 0.29:1 Yes Landscape Area 55% 61.8% Yes Waterfront DCP Boatshed Side Boundary Setbacks 1500mm >1500mm Yes East 1500mm 1500mm Yes West Boatshed 3m to ceiling 3m to ceiling Yes Height Max 3m 3m Yes Width Max 7m 7m Yes Length One One Yes Number of storeys Jetty and ramp 15m 15m Yes Maximum length' 3.6m x 2.4m 3.6m x 2.4m Yes" Pontoon Waterfront DCP 21 Objectives of the Waterfront DCP that are relevant in this proposal are: o Minimise the impact of development on the natural landform of the foreshore and waterway by integrating structures into the site with a minimum change to the natural topography. o Minimise the visual impact of development when viewed from adjacent land and waterways. o Blend developments into the foreshore and waterfront environment by using designs and materials which complement the natural landscape. 22 It is considered that the amended proposal through the removal of the deck area and retention of a number of trees within this area has assisted in minimising the impacts to the natural landform of the foreshore. The proposed amendments have resulted in a development that is more sympathetic with the natural topography and is now in keeping with the objectives of the Waterfront DCP. 23 The objectives of Clause 19 of SSLEP 2000 are to limit scale and size of development and protect the landscape and visual character of foreshore areas. 24 The original proposal which consisted of a two storey boatshed, series of retaining walls, access stairs to the waterfront and the elevated terrace were considered to be excessive in size and scale and did not meet the above objective in protecting the landscape and visual character of the foreshore areas. 25 The amended proposal however, has addressed these prior concerns through the design changes undertaken. 26 The boatshed design is now in accordance with the requirements of the Waterfront DCP in that a conventional roof has been provided and the two storey element has now been removed from the boatshed design. It is now of a size and scale consistent with the objectives of the Waterfront DCP. Clause 20 - Impact on foreshore area 27 "The objectives of this clause are: (a) preservation and enhancement of the natural features and vegetation near where the land meets the water, (b) restoration of the land below the foreshore building line, so far as practicable, to a natural state, with a minimum intrusion of man-made structures, (c) no buildings below the foreshore building line other than buildings excepted by this clause, (d) a significant reduction in the number of structures below the foreshore building line, particularly on redevelopment of a site, (e) conservation and enhancement of waterfront buildings of heritage value, (f) avoidance of adverse ecological effects on the waterways, and (g) public use of the intertidal areas below the mean high water mark or high watermark, where appropriate." 28 The original development application failed to satisfy the objectives of Clause 20 of SSLEP2000. 29 Clause 20 of SSLEP 2000 requires preservation and enhancement of the natural features and vegetation near where the land meets the water. 30 The original submission to council involved significant excavation into the natural rock to construct a boatshed, elevated terrace and a series of retaining walls on the foreshore. The height of the boatshed, the amount of excavation along with the removal of the natural rock areas along the foreshore would have resulted in an excessive built up appearance of this area on the foreshore. The proposed works on the foreshore area were inappropriate and involved the loss of the natural shoreline and the natural rock features of the site. 31 The amended proposal although still excavating into the rock has deleted the terrace/deck from the proposal and provided a conventional sized boatshed with a pitched roof in accordance with Councils Waterfront DCP. The proposal also involves the planting of shrubs and trees adjacent to the boatshed and within the retaining wall structures to soften the impact of the boatshed on the foreshore. It is considered that the objectives of Clause 20 will be met through the redesign. 32 The proposed development in its amended form will maintain the existing waterfront character and will be visually acceptable. The proposal will blend into the foreshore area and have an acceptable impact on the scenic amenity of the waterfront. Adjoining development on the foreshore. 33 There is an existing boatshed on the adjoining property to the east, however this boatshed appears to have existed for many years. The proposed boatshed being of a conventional nature is now of a size and scale that is comparable with the adjoining boatshed. 34 There is a large two storey sandstone boatshed located at no 38 Coopernook Avenue. This has been there for sometime and is listed as a heritage item. There are a few scattered jetty ramps and pontoons around this point, however there is a large area where there are no structures present. 35 It is considered that the proposal will now be consistent with other waterfront structures within the area. Objectives of the 7(a) Environmental Zone (Waterways) 36 Objectives of the zone are: (a) To recognise the importance of the waterways of Sutherland Shire, as an environmental and recreational asset for residents of the area and the Sydney region. (b) To ensure development does not adversely affect the ecology, scenic value or navigability of the waterways. (c) To ensure aquatic environments are not adversely affected by the recreational use of the waterways. (d) To provide for viable aquaculture in waterway areas. 37 SSLEP 2000 recognises the importance of waterways and seeks to ensure that development does not adversely affect their ecology, scenic value or navigability. 38 The subject site through the redesign of the boatshed and removal of the terrace now demonstrates that it can successfully provide a boatshed and meet the objectives of SSLEP 2000. This is evident by the reduction in size of the boatshed and addition of shrubs and trees adjacent to the boatshed to soften the building from the foreshore. The elevator has now been deleted from the proposal which has also assisted to minimise the visual impacts this dominant structure had from the waterways. Construction of elevator and inclinator 39 The objective of cI 19 of SSLEP is to limit the scale of development and protect the landscape and visual character of foreshore areas. 40 The amended proposal has incorporated the retention of existing significant trees and through conditions of development consent will require the provision of additional trees and shrubs near the boatshed and foreshore area. It is considered that the redesign of the elevator and inclinator to a single inclinator and relocation has removed the imposing elevator structure that was originally proposed. The inclinator will now be positioned at the base of the cliff face when not in use. A condition has been imposed on the development consent to ensure this occurs. 41 The proposed development in its amended form will now maintain the existing waterfront character and will be visually acceptable. Acid sulphate soils 42 An acid sulphate soil report was submitted by Geo Enviro Consultancy Pty Ltd. The report states that: "From our site inspection and review of available information, the site is situated in an area with no known occurrence of acid sulphate soil and is underlain by sandstone bedrock at shallow depths. Based on the foregoing, we are of the opinion that the proposed development is not likely to be impacted by acid sulphate soil". 43 Council's Environmental scientist comments in relation to the above were as follows: "The works are to be conducted on class 5 soils and excavation will occur within 500 m of class 1 acid sulphate soils. I have assessed this property and have concluded that work will not impact the watertable below 1 m AHD on the class 1 land. No further ASS assessment is required for acid sulphate soils. " Permissive access rights to the waterfront 44 There is a covenant on the adjoining property at No. 42 Coopernook Avenue that provides the owner of No. 44 Coopernook Avenue permissive access rights to the waterfront utilising the portion of land and stairs through No. 42 Coopernook Avenue as described in the transfer C513156. Aboriginal Heritage 45 The site has been identified as being within the High Archaeological Sensitive zone. An Aboriginal Archaeological Assessment was undertaken by AHMS and submitted to council on 3rd October 2006. This was identified as being inadequate information when the appeal was lodged. 46 The recommendations of the report have been incorporated as conditions of development consent to ensure that site clearance is monitored and that the midden remains undisturbed during excavation works. Separation fabric, such as heavy duty plastic sheeting or geotextile should be placed around the midden before site works commence to make the boundaries more visible during excavation. 47 Another recommendation of the report was that prior to site clearance the midden and shelter should be recorded by a qualified archaeologist and the site registered with the Department of Environment and Conservation. Tree removal 48 The proposal required the removal of an angophora located on the foreshore area. The tree was affected by the construction of the boatshed, deck and the installation of the inclinator. A site inspection carried out in response to the land and Environment Court appeal by Council's consultant tree expert has revealed that the angophora was in fact in poor health and has since fallen down. 49 A significant amount of shrubbery would also require removal on the foreshore area due to the construction of the terrace, boatshed and retaining walls. The proposed works failed to meet the objectives of Clause 20 (a) "preservation and enhancement of the natural features and vegetation near where the land meets the water. As part of the amended proposal a number of trees and shrubs will be planted to minimise the impacts of the boatshed on the foreshore area and retain as much as possible the natural appearance of this area when viewed from the foreshore. The reduction in terrace areas and series of solid retaining walls has also assisted in softening the impact on the foreshore. Sutherland Shire Local Environmental Plan 2006 50 The subject site is also identified within the Environmental Housing (Environmentally Sensitive Land) zone in accordance with Sutherland Shire Local Environmental Plan 2006 (SSLEP 2006). Boatsheds and inclinators are permissible development in accordance with this zone. 51 Sutherland Shire Local Environmental Plan 2006 was gazetted on 15th November 2006 and came into effect on the 29th November 2006. 52 The proposal is considered to be in keeping with adjoining development and maintains the visual character of the foreshore and waterways in accordance with Clause 17 Building or Works on land traversed by foreshore building line of SSLEP 2006. Sutherland Shire Development Control Plan 2006 53 The proposed development will generally comply with the requirements of SSDCP 2006. The proposal satisfies the objectives and numerical controls of SSDCP 2006 that are relevant to the proposal, in particular Chapter 3, Part 6 Urban Design - Landform and Chapter 9 Part 6 Specific Land Uses - Foreshore and Waterfront Development. Conclusions 54 Having considered the evidence, including the objections and undertaken a view, I am satisfied that the consent orders should now be granted. 55 It is apparent from the evidence that the amended proposal is more site responsive and consequently demonstrates reasonable compliance with the various foreshore planning controls. The proposal has been assessed against these controls by Mr Adamsom, resulting in his opinion that the proposal merits consent. In my opinion, no substantive evidence was presented that warrants rejection of this opinion. 56 In terms of the planning controls, I note that SSLEP 2006 came into effect after the lodgement of this development application and it therefore has the benefit of transitional provisions. 57 With respect to the objections, Mr McNally's main concern was that pedestrian access be maintained from his property to the foreshore. The existing pedestrian arrangement involves some encroachment onto the subject property near the sandstone escarpment to obtain access to the steps. Following the site discussions, the applicant agreed to the imposition of a condition requiring the sandstone retaining wall on the western boundary to be formed on an alignment, which maintains pedestrian access from No 42 Coopernook Avenue. This should reasonably address Mr McNally's concerns. Court orders 58 By consent the orders of the Court are: 1. The appeal is upheld. 2. Development consent is granted to DA 05/-182 for demolition of a seawall, construction of a boatshed, jetty, ramp, pontoon, sliprails and inclinator at 44 Coopernook Avenue, Gymea Bay, subject of conditions in Annexure A. 3. Exhibits may be returned except for A, B, 2, 3 and 4. ___________________ R Hussey 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.