Land and Environment Court of New South Wales CITATION : Hooler & Anor v Sutherland Shire Council [2008] NSWLEC 189 APPLICANTS: Geoff Hooler & Denise Howell PARTIES : RESPONDENT Sutherland Shire Council FILE NUMBER(S) : 10678 of 2007; 11193 of 2007; 11013 of 2007 CORAM: Lloyd J Development Consent :- consent subject to condition requiring demolition of original dwelling - condition accepted by erection of new dwelling - breach - dual occupancy - foreshore building line - relevance of policy objectives to ensure restoration of land below foreshore building line to a natural state KEY ISSUES: Building Certificate: - alterations and additions to original dwelling - effect of condition requiring demolition - existence of original dwelling is unlawful Environmental Planning and Assessment Act 1979 ss 80A, 96, 97, 149F LEGISLATION CITED: State Environmental Planning Policy No. 1 - Development Standards Sutherland Shire Local Environmental Plan 1993 cl 14A Sutherland Shire Local Environmental Plan 2006 cll 14A, 17, 18, 35, 36 DATES OF HEARING: 5 May 2008; 6 May 2007 & 7 May 2008 DATE OF JUDGMENT: 12 June 2008 APPLICANTS: M G Craig QC and A M Pickles (barrister) SOLICITORS P H Legal LEGAL REPRESENTATIVES: RESPONDENT: T F Robertson SC SOLICITORS Home Wilkinson Lowry JUDGMENT: - 11 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Lloyd J Thursday, 12 June 2008 LEC Nos. 10678 of 2007; 11193 of 2007 & 11013 of 2007 HOOLER & ANOR v SUTHERLAND SHIRE COUNCIL [2008] NSWLEC 189 JUDGMENT Background 1 HIS HONOUR: There are three appeals before the Court: No 10678 of 2007 : an appeal under s 96 of the Environmental Planning and Assessment Act 1979 ("the Act") against the refusal of an application to modify a development consent by deleting a condition (condition 15); No. 11193 of 2007 : an appeal under s 97 of the Act against the refusal of a development application to use an existing dwelling on the land as a dual occupancy dwelling; No. 11013 of 2007 : an appeal under s 149F of the Act against the refusal of an application for a building certificate in respect of alterations and additions to the existing dwelling. 2 By a notice of discontinuance dated 19 March 2008 the applicants proposed to discontinue the first of the appeals. The council did not and does not consent to the discontinuance. 3 The parties have raised nine separate questions of law, as well as questions of merit. The nine question of law have been conveniently assembled by the council into three groups covering the following topics: (a) the effect of the development consent on the existing dwelling (questions 1, 2, 3, 4 and 7); (b) whether dual occupancy as proposed is prohibited (questions 3(a), 5 and 6) and (c) the proper construction of cll 35 and 36 of Sutherland Shire Local Environmental Plan 2006 (questions 8 and 9). 4 On 11 November 1998, the council granted the development consent in question for a proposal described as a "new dwelling" at No. 26 Grandview Parade, Caringbah, subject to conditions. The land has a frontage to Burraneer Bay and contains an old fibro cottage at the waterfront and a small part of which extends over the bay. The new dwelling was to be constructed behind the existing fibro cottage and towards the street frontage. The conditions of the development consent included the following: 2. The development shall be implemented substantially in accordance with the details set out on the plan/drawing No. 118/98 and on the application form and on any supporting information received with the application except as amended by the conditions specified hereunder. ... 15. To ensure that demolition of structures is carried out in an acceptable and safe manner: (i) the demolition of the existing building shall be carried out strictly in accordance with the Australian Standard 2601-1991 "The Demolition of Structures" ... The existing dwelling has not been demolished. Alterations and additions were made to it without consent in 2006. The council has issued an order requiring its refusal. Does the development consent require demolition of the existing (or original) dwelling? 5 The answer to this question effectively resolves the first of the three groups of legal questions. The applicants submit that the answer to this question is "No". The council submits that the answer is "Yes". In my opinion, the answer to this question is clearly "Yes". I have come to this conclusion for the following reasons. 6 Condition 2 of the consent expressly incorporates "the details set out in the plan/drawing No. 118/98...". The identified plan comprises three sheets bearing the stamp of the council with the words "Approved under Delegation by S Kelly 10 November 1998" and bearing the signature of "S Kelly". Only two of the sheets are numbered "118/98" but they are also numbered "Sheet 1 of 3" and "Sheet 2 of 3". Mr M G Craig QC, appearing for the applicants, properly concedes, however, that the third sheet ("Sheet 3 of 3") also bearing the stamp of the council and the signature "S Kelly" is part of the approved plan and concedes that it is permissible to have regard to the three sheets for the purpose of construing the consent. 7 The first sheet comprises the floor plans of the proposed new dwelling. The second sheet comprises the elevations and section of the proposed new dwelling. The third sheet comprises the site plan which as well as showing the site of the proposed dwelling, also shows the site of the existing dwelling with the words "Fibro Cottage Tile Roof No. 26 (To Be Demolished)". 8 The site plan also has site calculations. These demonstrate a total site area of 780 square metres, a proposed total gross floor area of 338.16 square metres, resulting in a proposed floor space ratio of 0.434:1. 9 These calculations are clearly based on an assumption that the existing dwelling is to be demolished. That is, the floor space ratio and, in particular, the landscaped area would not be achievable if the original dwelling was to remain. The construction of these calculations shown on the plan, together with the words "To Be Demolished" on the site of the original dwelling, clearly indicate that the new dwelling was to be erected on the condition that the original dwelling was to be demolished. 10 This conclusion is confirmed by condition 15, which I have set out in par [4] above. If it was not the intention to demolish the original dwelling as part of the consent then condition 15 would have no work to do. 11 The first group of questions may thus be answered as follows: (1) Whether on its proper construction, development consent No. 99/0800 ('the 1998 consent") required the demolition of the waterfront cottage. Answer : Yes (2) If so, whether the obligation to demolish the waterfront cottage has crystallised and whether that obligation binds the current applicants, being successors in title to the application for DA 99/0800? Answer : Since the proposed residence has been completed and is now occupied, the answer is "Yes". the development consent operates in rem . The continued existence of the original dwelling is unlawful. (3) If not, whether the grant of the 1998 consent was beyond power because: (a) it authorised a dual occupancy which was prohibited under the provisions of the Sutherland Shire Local Environmental Plan 1993 (under which the development application was approved), (b) in the absence of the removal of the waterfront cottage an objection pursuant to State Environmental Planning Policy No. 1 - Development Standards (SEPP No. 1) was required in respect of development standards relating to either density or landscaped area, or (c) in the absence of either an objection under SEPP No. 1 or a decision by the council under cl 14A(6) of the Sutherland Shire Local Environmental Plan 1993 , cl 14A(5) prevented the council from granting consent. Answer : It is not necessary to answer this question. (7) Is the use as a dwelling house of that part of the waterfront dwelling falling below the mean high water mark an "existing use" for a lawful purpose prior to the coming into force of Sutherland Shire Local Environmental Plan 2006 or any other relevant environmental planning instrument having the effect of prohibiting the use? Answer : Again, it is unnecessary to answer this question. The demolition of the original dwelling is required as a condition of development consent for the new dwelling - a condition which was accepted by the erection of the new dwelling. Is the dual occupancy as proposed prohibited? 12 This raises questions 3(a), 5 and 6. Question 3(a) is noted in par [11] above. Questions 5 and 6 are as follows: (5) Whether the dual occupancy application is an application for "dual occupancy" within the meaning of Sutherland Shire Local Environmental Plan 2006 ? (6) If it is not for "dual occupancy", is the application prohibited under the provision of the Sutherland Shire Local Environmental Plan 2006 ? 13 These questions do not arise for determination. That is, it is not necessary to answer these questions in the circumstances of this case. For reasons which follow, the proposal should not be approved on consideration of the merits. The proper construction of cll 35 and 36 of the local Environmental Plan 14 This raises questions 8 and 9 which are as follows (8) Whether cl 35 of the Sutherland Shire Local Environmental Plan 2006 applies to the dual occupancy application because: (a) the application is " development for the purposes of a building " (cf cl 35(1)) or (b) the application " results in the creation of floor space " (cf cl 35(1)). (9) Whether the dual occupancy application is for " development for the purposes of a building " within the meaning of cl 36(3) of the Sutherland Shire Local Environmental Plan 2006 . 15 Again these questions do not arise for determination in the circumstances of this case for the reasons which follow. The merits of the application 16 The application to use the original dwelling as a dual occupancy dwelling and the application for a building certificate for alterations and additions to that dwelling should both be refused for the following reasons. 17 Clause 17 of the Sutherland Shire Local Environmental Plan 2006 applies to land that is traversed by a foreshore building line. The subject land is traversed by a foreshore building line which is parallel to and ten metres from the mean high water mark. A building must not be erected on land between a foreshore building line and any waterway in respect of which the line is fixed: cl 17(7). Clause 17(9), however, provides for a permissible exception to the general prohibition. It states: (9) Nothing in subclause (7) or clause 11 prevents consent being granted to the erection of a dwelling, or any addition to an existing dwelling, on land between a foreshore building line and any waterway or waterfront reserve in respect of which the line is fixed if: (a) the consent authority has considered the objectives of this clause, and (b) the consent authority is satisfied that: (i) the new dwelling or addition will not be erected any further forward of the foreshore building line than any existing dwelling on the land, and (ii) the new dwelling will not dominate the locality in which it is erected as a result of its height, bulk, design, colour or detailing, and (iii) the natural qualities of the foreshore are retained or restored as far as practicable through the retention or reinstatement of natural levels and endemic vegetation, and (iv) in the case of the erection of a dwelling - there is no reasonable alternative that would allow a new dwelling to be located behind the foreshore building line. 18 The original dwelling is not supposed to be there. There is an outstanding order for its demolition which has been issued by the council and its continued existence is unlawful. 19 Mr M E Ball, the applicant's consultant town planner, was asked in evidence whether, assuming that the original dwelling was not there, the original dwelling could nevertheless be approved having regard to cl 17(9). Mr Ball's evidence was that cl 17(9)(b)(i) is not relevant in this case, that it would satisfy sub-cll (9)(b)(ii) and (iiii), but would not satisfy sub-cl (9)(b)(iv). That is, as I understand his evidence, there is room behind the foreshore building line which would be a reasonable alternative for the location of such a dwelling. That is, the development infringes cl 17. 20 There is, however, a stronger reason for refusing the application, and which I find determinative. Clause 18 also applies to land which is traversed by a foreshore building line. The objectives of the clause include the following: ... (b) to ensure restoration of land below any foreshore building line, to a natural state (so far as is practicable), with a minimum intrusion of man-made structures, (c) to reduce the number of structures below any foreshore building line, particularly following the redevelopment of a site, ... 21 Clause 18(3) provides that the consent authority must not consent to development on land to which the clause applies unless it is satisfied that any building or work between the foreshore building line and any waterway will be removed before or within a reasonable time after the development is carried out. 22 Clause 18(4), however, provides that sub-cl (3) does not require the removal of any building or work if, relevantly: ... (b) the consent authority is satisfied that the use of the building or work is lawful, or (c) the consent authority is satisfied that the removal of the building or work: (i) would be inconsistent with, or is not necessary to achieve, any of the objectives of this clause, or (ii) is unreasonable or unnecessary in the circumstances of the case. ... 23 There was a clause to a similar effect in the previous local environmental plan, namely cl 14A of Sutherland Shire Local Environmental Plan 1993. It was the presence of this clause which no doubt led the council to grant consent to the development application for the new dwelling on condition that the original dwelling be demolished. 24 The proposals now before the Court clearly do not satisfy the exception provided by cl 18(4)(b): the existence of the original dwelling is unlawful. Mr Craig QC submits ss 80A(1)(b) and 80A(5) authorise the imposition of a condition of consent which modifies an earlier consent - in the present case to delete the requirement to demolish the original dwelling thereby rendering it lawful. This would, however, require a consideration of the current planning controls. In my opinion, the proposals do not satisfy the exceptions provided by cl 18(4)(c). The retention of the original dwelling would be clearly contrary to the objectives of sub-cl (c)(i). 25 Moreover, the removal of the existing dwelling would not be unreasonable or unnecessary in the circumstances of this case, contrary to sub-cl (c)(ii). I am confirmed in this view on taking a view of the site and of other foreshore development around Burraneer Bay which was taken in the presence of the representatives of the parties. The foreshore is presently cluttered with many older structures erected below the foreshore building line and, in many cases, either adjacent to or over the waterway. The council is fully justified in attempting to rectify this undesirable situation whenever an application for consent dealing with waterfront land is made. It is for this reason that cl 18 exists, and to do otherwise would be clearly contrary to the objectives of the clause to ensure the restoration of land below the foreshore building line to a natural state and to reduce the number of structures below any foreshore building line. No reason has been advanced on behalf of the applicants to the effect that removal of the original dwelling is unreasonable or unnecessary in the circumstances of the case, other than pointing out the many other waterfront structures around the bay. As I have said, the existence of such structures is a sound reason for enforcing the policy objective of cl 18. The council should take every opportunity to secure their removal whenever that opportunity arises. 26 It follows that both appeal under s 97 and the appeal under s 149F of the Act should be dismissed. 27 Finally in the hearing of this matter I acknowledge the assistance of Commissioner Tuor, who heard the case with me. Orders 28 The final orders of the Court are as follows: No. 10678 of 2007: Leave is granted for the filing of a notice of discontinuance. No. 11193 of 2007: The application is dismissed. No. 11013 of 2007: The application is dismissed. I hereby certify that the preceding 28 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd. Associate Dated: 12 June 2008 ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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