Land and Environment Court of New South Wales CITATION : Prochilo v Shoalhaven City Council [2006] NSWLEC 811 APPLICANT Guy Prochilo PARTIES : RESPONDENT Shoalhaven City Council FILE NUMBER(S) : 11139 of 2005 CORAM: Moore C KEY ISSUES: Development Application :- Coastal hazard assessment LEGISLATION CITED: DCP 62 Coastal Villages Development Control Plan CASES CITED: Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 172; Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248 DATES OF HEARING: 1 and 6 December 2006 EX TEMPORE JUDGMENT DATE : 12/06/2006 APPLICANT Mr J Maston, barrister INSTRUCTED BY LEGAL REPRESENTATIVES: Maclarens Lawyers RESPONDENT Mr G Gleeson, solicitor Morton& Harris JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE C 6 December 2006 05/11139 Guy Prochilo v Shoalhaven City Council JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. The consequence of the Court's decision in this appeal will be the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but will be available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 1. COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the refusal, on 8 August 2005, by Shoalhaven City Council (the council), of Development Application 01/2294. 2. The application seeks consent for the erection of a new dwelling and associated fencing at 11 Quay Road, Callala Beach (the site). The site has a frontage to Quay Road but addresses Callala Beach (having a boundary to the mean high water mark of that beach). The orientation of all dwellings on this side of Quay Road are to the beach which beach forms part of the shores of Jervis Bay (the bay). The site is located at the southern end of the beach and near the perimeter of the development within that village. 3. The site has an area of a little over 930 sq m and is Lot 4 Section L DP 8188. It has a frontage of a little over 15 m and a depth of nearly 61 m. The site is located in the frontal sand dune area to the bay. There is no significant vegetation on the site and there is presently a brick garage erected on the site. 4. After the application was lodged in June 2001, an exchange of correspondence took place between the council and representatives of the owners over the intervening years. Some further information was provided to the council but not sufficient to satisfy it about matters which were of concern to it. 5. Of significance in this appeal is that, during the determination process, at the end of November 2004, the council considered and adopted a Callala Beach Coastal Hazard Study Report prepared by the Snowy Mountains Engineering Corporation. A subsequent, 2006 version of the study has also been considered by the council. 6. The council has adopted, although not incorporated in any formal planning document, a building setback of 23 m on the landward side of each allotment along the Callala Beach beachfront. As a consequence, there is no provision which imposes such a requirement in either the Local Environment Plan (the LEP) or in DCP 62 being the relevant Coastal Villages Development Control Plan (the DCP). 7. The joint report prepared by the town planning experts on these issues notes, commencing at para 5, the following "The building setback controls applied to the development from Jervis Bay appear to be controls set by Council under the terms of the Local Government Act 1919. Council's policy book appeared to indicate that Council on 22 April 1986 resolved to revise the former 15.24 m foreshore building line. However, this is yet to be finalised. In the interim, further information on building lines for those lots should be obtained from Council's coastal engineer. Council on 20 September 2005 resolved not to approve applications for development forward of the 50 year stable foundation zone, that is the 23 m building line for Callala Beach. This resolution was based on the Callala Beach erosion study 2004 prepared by SMEC relating to the impact of coastal hazards on coastal development which recommended inter alia: Council adopt the seaward limit of a 50 year stable foundation zone as the appropriate setback criterion for the assessment of new residential building developments. Council should be aware that because the line delineating the zone coincides closely with the 23 m building setback line for Callala Beach it is recommended that Council maintain the 23 m building line for future new residential development proposals. It appears that in the period between April 1986 and 20 September 2005 the building setback was implemented on a merits basis by Council's engineers based primarily on a coastal hazard reduction basis". 8. I am satisfied that the basis for the foreshore building setback line has no planning requirement to sustain it. It also, as earlier noted, does not appear in the DCP or in the LEP. 9. The tests to be applied, in my view, when determining whether or not it is appropriate to require adherence to the building line (or to the alternative sought by the applicant, in the further amended plans, to a building line of 21.5 m) arise from the decision of McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 172, commencing from para 87. Although, in para 87, His Honour deals with development control plans, there are a number of matters considered in those and subsequent paragraphs which have equal application to the policy that has been adopted by the council and being considered in these proceedings. 10. Effectively, I am satisfied that the policy adopted by the council needs to be tested against a number of propositions dealt with in paragraphs 91 and 92 of Stockland. 11. The first proposition, given that there is a certainty as to the contents of the policy (that is that 23 m is an absolute setback line), is whether that has been one which has been consistently applied by the council. The second is whether it is well founded, in its intrinsic, scientific attributes. The third is whether there has been an appropriate basis of consultation undertaken when adopting such a line. 12. I am satisfied, consistent with the joint report of the planners, that, in general terms, there has been a consistency of application of the 23 m building line. 13. The first matter that arises from me to determine is, even though it has been applied consistently, is this building line rationally based on scientific knowledge and assessment or is it one which should be modified in light of coastal engineering evidence that has been given tothe Court. 14. In these proceedings, I have had the benefit not merely of coastal engineering evidence given by Mr Britton, a Court-appointed coastal engineer but also evidence given by Mr Nielsen, a coastal engineer on behalf of the council, who was one of those involved in (and a significant author of) the Snowy Mountains Engineering Corporation reports and evidence given by Dr Treloar, a coastal engineer retained by the applicant. 15. The first matter which is of concern to me arises from the recommendations of the August 2004 Snowy Mountains Engineering Corporation report. 16. The recommendations are on page 15 and the first of them is contained in and referred to in paragraph 8 of the joint report of the planners. 17. This is the foundation of the council's resolution of 25 September that the council not approve applications for development forward of the 50 year stable foundation zone (that is the building line for Callala Beach). 18. That proposition contains the inherent inference that the 23 m building line for Callala Beach coincides absolutely (or in general terms) with the 50 year stable foundation zone. 19. Such an assumption is derived from the first of the recommendations of the 2004 Snowy Mountains Engineering Corporation report which asserts "given that the line delineating the zone coincides closely with the 23 m building line for Callala Beach, it is recommended that Council maintain the 23 m building line for future new residential development proposals" 20. That assertion of alleged fact is simply significantly incorrect, on the basis of the coastal engineering evidence given to me by Mr Nielsen, one of the substantial authors of that report. 21. At least for the site, that line would be a minimum of some 7 m further landward - that is nearly a one third variation on the 23 m building line - than is actually the case. 22. It was Mr Nielsen's evidence that the 50 year hazard line should be drawn, in his view, at the 19 m mark and that stable foundation zone was some 11 m further landward of that. 23. On the evidence of Mr Britton (in which Dr Treloar concurred) the 50 year hazard line is a further 2.5 m landward (at 21.5 m) and adding to that the 11 m distance which Mr Nielsen says is required to reach the stable foundation zone would require a building line at 32.5 m - some 9.5 m landward of the 23 m building line. 24. I simply am not able to accept, as a matter of fact, the assertion that is made in that portion of the Snowy Mountains Engineering Corporation report to which I have referred. 25. That fundamental and erroneous proposition is, by necessary implication, carried forward into the recommendations which appear on page 14 of the May 2006 report by the Snowy Mountains Engineering Corporation. 26. In these proceedings, there is a legitimate difference of opinion between Mr Nielsen (who says that the 50 year stable foundation zone is the appropriate location desirably for buildings but as a compromise it could come forward to 23 m [the presently imposed building line]) and the position of Mr Britton that the philosophic proposition that should be adopted is "first, that a building should not be impacted on by a 50 year hazard occasioning event and that, in turn, it should generally not impact on the consequences of such 50 year event". Dr Treloar concurred in that philosophic view. 27. On Mr Nielsen's evidence, it would be possible to locate a building at the 19 m mark and have it satisfy that position. 28. Mr Britton said he did not consider that position to be sufficiently conservative and he postulated the desirability of a 21.5 m building line for this site (and, as a necessary corollary of that, a merit-based adoption for other sites in Callala Beach of an assessment of where the present state of coastal engineering hazard assessment would locate the 50 year hazard line as being the appropriate building line for any future redevelopment on any other site). 29. It is clear from the extract from the August 2004 Snowy Mountain Engineering Corporation report that that distance will vary as one travels along of the developed area of Callala Beach and will also vary over time as the extent of knowledge is increased for the scientific prediction, with greater refinement, for the location of that line. 30. I am satisfied that the 23 m building line is not a well founded prescription. 31. I am satisfied, preferring the evidence of Mr Britton and Dr Treloar as to what would be an appropriate and conservative delineation of the 50 year hazard zone, that the 50 year hazard zone for this allotment is at 21.5 m. 32. The applicant has amended his plans to have a building which, at the ground level for its substantial structure on piers, will not intrude into that building line (at 21.5 m) and would have a detached lightweight deck structure forward of it at the ground level (that being considered by the council as being possible and appropriate as a modest intrusion into the extent of the 50 year hazard zone). 33. I am not prepared to accept the proposition adopted by Mr Nielsen (and, indeed, the applicant does not ask me to accept) that it would be appropriate or desirable to adopt a 19 m location for the 50 year hazard line. I am satisfied that the more conservative approach advocated by Mr Britton and Dr Treloar should be adopted. 34. In general terms, I am satisfied that the adoption, on a site by site basis, on the basis of contemporary scientific knowledge at the time of assessment of any application, is the appropriate approach to the assessment of what should be the setback in a landward direction of any future new residential development at Callala Beach. 35. I am not persuaded that there is any rational basis, apart from blind adherence to the consistent policy application without any appropriate and scientific foundation, to adhere to the 23 m building setback line (despite the best endeavours of Mr Gleeson, solicitor to the council, to persuade me that there was some foundation in the precautionary principle as to why I do so). 36. I am satisfied that a precautionary approach has already been accommodated by the additional 2.5 m, advocated by Mr Britton and Dr Treloar, beyond Mr Nielsen's 19 m location for the 50 year hazard line. 37. I am therefore satisfied that the amended application, based on 21.5 m setback for the substantial structure, is appropriate and that the appeal should be upheld on that basis. As a consequence, I do not need to consider whether there has been an appropriate basis of consultation undertaken when adopting the 23 m building line. 38. There remains the question of whether or not the version of condition 6 in the without prejudice conditions of consent should be adopted or not. 39. The council proposed a condition that required "the proposed dwelling shall be supported on piers which extend beyond the 1 in 100 year stable foundation zone for the coastal erosion". 40. As put by Mr Maston, barrister for the applicant, such a condition could well require for what he jokingly described as "piering to China". 41. An alternative version of the condition was proposed to the parties that "the proposed dwelling shall be support on piers, the feet of which shall be within the 1 in 100 year stable foundation zone for coastal erosion". 42. That requirement would extend only to the substantial dwelling and not to the detached deck which is clearly acknowledged by all the coastal engineering evidence as to be a sacrificial structure in the event of a 1 in 50 year hazard storm event occurring. That it is a matter which needs to be settled between the parties and can be done within the terms of a leave to re-list consistent with the decision of the Court of Appeal in Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248. 43. I therefore conclude that the orders of the Court should be that: 1. The appeal is upheld; 2. Development Application 01/2294 for the erection of a new dwelling and associated fencing at 11 Quay Street, Callala Beach (being Lot 4 Section L Deposited Plan 8188) should be granted development consent subject to conditions of consent contained in Exhibit 9 but subject to the clarification of the precise terms of proposed condition 6; and 3. The exhibits, other than Exhibit G, may be returned. 44. In order to enable the parties to have the opportunity to clarify the position with respect to condition 6, I give the following direction: The parties are to notify the Registry, by the close of business on 15 December, if they wish to have the matter re-listed before me for further consideration of condition 6 with such re-listing to occur during the week commencing 18 December or if they have agreed that there should be some other version of condition 6 other that that proposed the party precisely what the agreed terms of the condition 6 should be. 45. In the event that there is no revised version of condition 6 settled between the parties notified to the Court or no notification, by the close of business on Friday 15 December that the parties wish the matter to be re-listed before me for the purposes of further submissions concerning condition 6, I will make orders in Chambers during the week commencing Monday December to give effect to this decision. Tim Moore 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.