Land and Environment Court New South Wales Medium Neutral Citation: O'Donnell v Sutherland Shire Council [2011] NSWLEC 1007 Hearing dates: 26, 27, 28 October 2010 Decision date: 21 January 2011 Jurisdiction: Class 1 Before: Pearson C Decision: 1. The appeal is dismissed. 2. The application to modify development consent DA05/1217 granted on 23 December 2005 for construction of a boatshed, slipway, stub jetty, ramp and pontoon at 44 Kingfisher Crescent Grays Point is refused. 3. The exhibits are returned. Catchwords: DEVELOPMENT MODIFICATION - Boatshed - Foreshore building line - Visual impact Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Sutherland Local Environmental Plan 2000 Sutherland Local Environmental Plan 2006 State Environmental Planning Policy No 1 - Development Standards Cases Cited: Agostino v Penrith City Council [2010] NSWCA 20 Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 Currency Corporation Pty Ltd v Wyong Shire Council (2006) 155 LGERA 230 Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157 Friends of Pryor Park Inc v Ryde City Council (Bignold J, 25 September 1995) Gann v Sutherland Shire Council [2008] NSWLEC 157 Hooler v Sutherland Shire Council [2008] NSWLEC 189 House of Peace Pty Ltd v Bankstown City Council (2000) 106 LGERA 440 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 97 LGERA 433 Pearse v Sharp [2007] NSWLEC 710 Reading Properties Pty Ltd v Auburn City Council (2007) 158 LGERA 116 Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240 Category: Principal judgment Parties: Greg O'Donnell (Applicant) Sutherland Shire Council (Respondent) Representation: Mr A Pickles (Applicant) Mr M Wright (Respondent) Mr J Hannaford, Hannaford Lawyers (Applicant) Ms J Amy, Sutherland Shire Council (Respondent) File Number(s): 10084 of 2010 10085 of 2010 1Commissioner : These are two appeals under s96(6) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Sutherland Shire Council (the Council) of two applications to modify a development consent DA 05/1217 granted on 23 December 2005 for construction of a boatshed, slipway, stub jetty, ramp and pontoon at 44 Kingfisher Crescent Grays Point. 2Modification application 09/0305 (Appeal No 10084 of 2010) sought approval for modification of the approved levels of the seawall, floor level of the boatshed, and roof ridge; the addition of skylights to the boatshed roof; and extension of the slab external to the boatshed at the upper level to support a planter box. 3Modification application 09/0306 (Appeal No 10085 of 2010) sought approval for a pump out tank connected to the sewer; use of the existing sub structure support walls below the existing path and slab; demolition of the door penetration; and installation of a standard flush WC and wash facilities/shower. 4The works proposed by the modification applications have for the most part been completed. On 16 June 2009 the Council issued an Order pursuant to s121B of the Act ordering the owners of the property to bring the unauthorised building work into compliance with the development approval DA05/1217 and associated plans. 5The issues between the parties relate both to permissibility and to the merits. The Council submits that the proposed shower and WC are a prohibited development under cl 17 of the Sutherland Shire Local Environmental Plan 2006; and that the boatshed comprises two storeys and does not fall within the definition of a "boatshed" under the 2006 LEP and is therefore prohibited. The Council contends that proposed development as modified has an adverse visual impact on the foreshore; and that there is an unacceptable cumulative impact on the natural landform and scenic quality of the locality arising from the works below the foreshore building line. The site and locality 6The site has frontage to North West Arm, Port Hacking, along its northern boundary. The site slopes steeply towards the water. A 30m foreshore building line applies to the site. A two storey dwelling house is situated immediately below the foreshore building line. The land between the boatshed and the dwelling house located on the site has been terraced. The boatshed has been excavated into the slope. Two retaining walls extend from the eastern boatshed wall to the eastern boundary of the site. 7A photograph of the boatshed as constructed is annexed to this judgment. Planning controls 8In December 2005 when the Council granted development consent for the construction of the boatshed, the Sutherland Shire Local Environmental Plan 2000 (the 2000 LEP) applied to the site, which was zoned 2 (e2) Residential. The development control table in cl33 provided at item 2 that development for the purpose of drainage, and exempt development, did not require development consent. Item 3 identified development that required development consent: Ancillary development not included in item 2. Development for the purpose of: child care centres, cluster housing, community facilities, dual occupancy housing, except on internal allotments, dwelling houses, educational establishments, medical facilities, places of public worship, recreation areas, residential medical practice, roads, tennis courts (private), utility installations, other than gas holders or generating works. Demolition not included in item 2. Development below the foreshore building line allowed by clause 20. Subdivision. 9Development other than development included in item 2 or 3 was prohibited. 10"Ancillary development" was defined to mean: Ancillary development means a building, work or use which is used or carried out in conjunction with the primary legal use of a site. 11The 2000 LEP contained the following definition of "storey": Storey means: (a) the space between two floors, or (b) the space between any floor and its ceiling or roof above, or (c) foundation areas, garages, workshops, storerooms and the like, where the height between ground level and the top of the floor above is 1.5 metres or more. A storey which exceeds 4.5 metres is considered as two storeys. 12Clause 20 applied to foreshore building lines and waterfront development. The relevant subclauses were (3) and (4): (3) A person must not erect a building or carry out a work on land between a foreshore building line and the tidal water in respect of which the line is fixed. (4) However, subclause (3) does not apply to: (a) boat sheds, (b) watercraft facilities, (c) in-ground swimming pools, no higher than 300 millimetres above ground level at any point (unless located in the area of Bundeena or Maianbar), (d) works, including mechanical works, to enable pedestrian access, (e) landscaping and barbeques. 13At the time development consent was granted the applicable development control plan was the Waterfront Development: Development Control Plan 9.2/04 Edition 1 (the Waterfront DCP). The objectives of the Waterfront DCP were: The objectives of this plan are to: (a)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 (b)minimise the visual impact of development when viewed from adjacent land and waterways (c)blend developments into the foreshore and waterfront environment by using designs and materials which complement the natural landscape (d)minimise the disruption of the natural shoreline (e)retain and enhance endemic native vegetation along the foreshore and ensure that development does not adversely affect any estuarine flora or fauna habitat (f)maintain and improve public access of the intertidal area of the waterfront, which is public land (g)achieve an appropriate balance between private development and the alienation of the waterways, which is a public resource, from public use (h)phase out non-conforming structures and restore the foreshore and waterfront area to an actual state (i)conserve and enhance waterfront structures of heritage significance (j)minimise the obstruction of water views. 14Part 11.1 of the Waterfront DCP provided: 11.1 Boatsheds Boatsheds are specifically intended for the storage of small boats and boating equipment only. Council will not permit the use of a boatshed for any other purpose. The single-storey boatsheds can only be located at or above MHWM. Boat sheds can have a maximum length of 7m, a maximum width of 4m and a maximum height of 3m to the eaves or ceiling of the elevation/s facing the water and 5m to the highest part of the roof. The maximum floor level of the boat shed shall be 900mm above MHWM (1.44 AHD). Boatsheds should be designed to minimise excavation and incorporate a pitched (gable form) roof that reflects the character of the waterway. Boat sheds that exhibit a scale and character in keeping with traditional timber boatsheds are preferred. The materials of construction shall be of lower maintenance and in a time and, appropriate to the natural landscape. Walls shall be restricted to timber, stone, brick or other material with an applied surface finish satisfactory to Council and shiny or reflective materials and finishes shall not be used. Roofs shall be of corrugated metal or tile or other approved non-reflective materials. Boatshed doors shall be of non-reflective material with traditional double hung timber doors preferred. Boatsheds shall be set back a minimum 1.5m from the side boundary. The variation may be considered where there is: -No detrimental impact on the view from the waterway by virtue of excessive bulk of the building; -No loss of an existing view to the water from adjoining lands to the waterway; and -An acceptable relationship between buildings along the waterfront. 15The Sutherland Shire Local Environmental Plan 2006 (the 2006 LEP) came into force on 28 November 2006. The 2006 LEP has been amended, and Sutherland Shire Local Environmental Plan 2006 (Amendment No 8) came into force on 30 July 2010. 16Under the 2006 LEP the site is zoned 1 - Environmental Housing (Environmentally Sensitive Land): 1 Objectives of zone The objectives of this zone are as follows: (a) to allow development of a scale and nature that: (i) complements the natural landscape setting of the zone, and (ii) protects and conserves existing vegetation and other natural features of the zone, (b) to limit development in the vicinity of the waterfront so that the environment's natural qualities can dominate, (c) to minimise the risk to life, property and the environment by restricting the type, or level and intensity, of development on land that is subject to either natural or man-made hazards, (d) to minimise the impacts of development in the vicinity of heritage items, (e) to allow the subdivision of land only where the size of the resulting lots makes them capable of development that will not compromise the sensitive nature of the environment, (f) to ensure sharing of waterfront views between occupiers and users of new and existing buildings. 2 Development allowed without consent Development for the purpose of: bush fire hazard reduction work, bushland regeneration. Exempt development. 3 Development allowed only with consent Development (other than development included in item 2) for the purpose of: boatsheds, childcare centres, community facilities, drainage, dual occupancies, dwelling houses, places of public worship, recreation areas, residential medical practices, roads, utility installations (except gas holders or generating works). Demolition not included in item 2. 4 Prohibited development Any development not included in item 2 or 3. 17Clause 17 applies to land traversed by a foreshore building line. The objectives of cl17 are: (2) Objectives The objectives of this clause are as follows: (a) to avoid adverse ecological effects on waterways, (b) to protect and enhance significant natural features and vegetation on riparian land, (c) to retain endemic vegetation along foreshore areas, (d) to restore and revegetate foreshore areas to improve estuarine flora and fauna habitat, (e) to minimise any adverse impact from development on water quality and, so far as is practicable, to improve the quality of urban run-off entering waterways, (f) to minimise any adverse visual impact of development when viewed from adjacent land and waterways by using a design and materials that complement the natural landscape of the land to which this clause applies, (g) to minimise any adverse impact of development on the natural landform of foreshore areas and waterways by integrating structures into the site with minimal change to the natural topography of the land to which this clause applies, (h) to achieve an appropriate balance between private development and the public use of waterways, (i) to maintain and improve public access to the intertidal area of waterfronts where there will be minimal environmental impact, (j) to conserve and enhance structures on waterfronts that are of heritage significance, (k) to minimise the obstruction of water views from public land, (l) to ensure that there is no development below any foreshore building line, except as provided by this clause. 18The relevant provisions are in subclauses (7)-(10): (7) Controls A building must not be erected, and a work must not be carried out, on land between a foreshore building line and any waterway or waterfront reserve in respect of which the line is fixed. (8) Nothing in subclause (7) or clause 11 prevents consent being granted to: (a) any alteration (not being an addition) to an existing dwelling that is forward of the foreshore building line, or (b) the erection, carrying out of, or an alteration or addition to, an excluded building or work. (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. (10) In this clause: excluded building or work means any of the following: (a) a boat shed, (b) a watercraft facility, (c) an in-ground swimming pool that is no higher than 300 millimetres above ground level at any point, (d) a work to enable pedestrian access, (e) landscaping, (f) a barbecue, (g) a utility installation (except for a gas holder or generating works). riparian land means: (a) submerged land, or (b) land that adjoins, directly influences or is directly influenced by a body of water, and the body of water itself. 19Clause 18 of the 2006 LEP applies to land traversed by a foreshore building line, and provides: (2) The objectives of this clause are as follows: (a) to ensure that any development does not result in the obstruction or interference with navigation in waterways, (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, (d) to promote the public use of intertidal areas below the mean high water mark or high water mark, where appropriate. (3) The consent authority must not consent to development on land to which this clause applies unless the consent authority is satisfied that the following building or work will be removed before, or within a reasonable time after, the development is carried out: (a) any building or work, other than an excluded building or work, that is: (i) on the lot concerned or an adjoining lot owned by the person carrying out the development, or on adjacent land that person occupies under a lease or a licence, and (ii) between a foreshore building line and any waterway or waterfront reserve in respect of which the line is fixed, (b) any building or work (other than a watercraft facility) that is: (i) on the lot concerned or on an adjoining lot that is owned by a person carrying out the development, or on adjacent land that person occupies under a lease or a licence, and (ii) below the mean high water mark. (4) Subclause (3) does not require the removal of any building or work if: (a) the proposed development is the erection or installation of any of the following: (i) a fence or retaining wall between a dwelling and the street on which the dwelling is located, (ii) a garage or carport adjacent to a dwelling or located between a dwelling and the street on which the dwelling is located, (iii) a deck or verandah, (iv) an awning or canopy, or (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. (5) In this clause: excluded building or work has the same meaning as it has in clause 17. 20The Dictionary to the 2006 LEP includes definitions of "boatshed" and "storey": boatshed means a single storey building or structure, associated with a dwelling and used for the storage of small boats and boating equipment, and includes any sliprails used to facilitate access for boats to and from the building or structure to the water. storey means a space within a building situated between one floor level and the floor level above, or the ceiling or roof above, and includes the space within the following: (a) foundation areas, garages, workshops, storerooms, basements and the like, whose external walls have a height of more than 1 metre, as measured vertically from the ground level immediately below, (b) an attic within a residential building, but only if: (i) the roof of the attic is pitched from more than 300mm above the floor of the attic or at an angle of more than 35 degrees, or (ii) the area of the attic exceeds 60 percent of the floor space of the floor level below. 21The Sutherland Shire Development Control Plan 2006 (the 2006 DCP) applies to the site. Evidence 22A conciliation conference under s34 of the Land and Environment Court Act 1979 (the Court Act) was held on site, and included a view of the locality from the water. The parties did not reach agreement and the conciliation conference was terminated. The parties consented under s34(4) of the Court Act to my determining the matter, and consented to the evidence from the view forming part of the evidence in the proceedings. 23Expert planning evidence was provided on behalf of the applicant by Mr M Ball and on behalf of the Council by Ms D Pinold. Mr Ball and Ms Pinfold provided a joint report in relation to each appeal, and gave oral evidence. Ms Pinfold also provided a Review of Foreshore Development History (Exhibit 8). Mr J Lucke, a surveyor employed by the Council, provided a survey of the boatshed and surrounding levels; Mr Lucke was not required for cross-examination. Mr S Pracy, a Development Control Compliance Officer employed by the Council, provided a written report on building and Building Code of Australia issues, and was cross-examined. 24The applicant, Mr O'Donnell, provided a Statement of Evidence and was crossexamined. In his Statement of Evidence Mr O'Donnell outlined the background to the modification applications. In relation to the ground floor level, Mr O'Donnell states that the approved plans were incorrectly drawn showing the ground floor slab as being level, and during the course of construction the ground floor slab was sloped from the top of the sea wall upwards. In relation to the ridge height level, Mr O'Donnell states that the ridge has increased in height by 400mm over the approved level due to the requirement for a larger than anticipated ridge beam to support the ridge of the boatshed. The ridge beam was ordered and supplied by the timber supply contractor who specified the requirements for the beam as required for the structural loadings on the roof. The metal frame for the roof was manufactured by a different contractor and the beam sits directly on top of it. In relation to the location of the WC and shower, a temporary toilet and washing facility was installed during construction in an area between the existing wall supporting the stair and pathway and the boatshed wall. The pathway and retaining walls were designed to be connected structurally to the upper slab of the boatshed acting as a cantilever to the upper slab over the wall. The construction of the boatshed resulted in a void between the existing wall supporting the stair and the boatshed wall. The purpose of the penetration in the slab below the roof was to provide a junction point for services and to enable the removal of rubbish during construction, which was thrown down to barges rather than being taken up the stairs. Mr O'Donnell provided photographs of 41 boatsheds on North West Arm, including measurements of height, and photographs of the site from 1961 including the pathways and stairs and during construction of the boatshed. Permissibility Submissions 25The Council contends that that the applications cannot be approved, on two grounds. The first is that the applications were made under s96(1A) of the Act, and as the works for which approval is sought are not of minimal environmental impact, they cannot be approved under s96(1A) of the Act. The second basis is that the 2005 development consent was for a single storey boatshed; the structure as built and for which approval is sought is a two storey structure, which is not, under the definition in the 2006 LEP, a "boatshed"; and so the modifications to the approved boatshed cannot be approved under the 2006 LEP. The Council submits that s109B of the Act is not relevant as there is no need to save the operation of an existing consent when DA 05/1217 is properly construed. 26The applicant submits that there are two avenues by which the modification applications are permissible. The first avenue is based on construction of the 2005 development consent and the 2006 LEP. The applicant submits that the building as approved in 2005 always comprised two storeys, applying the definition of "storey" under the 2006 LEP. The approved plans show a reinforced concrete slab between the ground floor of the boatshed and the roof. While part of the division between the ground floor and the attic of the boatshed was shown to have internal timber joists, it is not evident from the plans that these timber joists would not have a floor on top of them to permit the entirety of the attic to be utilised for storage. Further the roof as approved was pitched at more than 300mm above the floor of the attic at a pitch of more than 35 degrees. 27The applicant submits that as a form of development ancillary to a dwelling house the boatshed is permissible, both "dwelling house" and "boatshed" being a form of development permissible with consent in the zone 1 - Environmental Housing (Environmentally Sensitive Land) zone under the 2006 LEP. It is immaterial whether or not the development is capable of being characterised as a "boatshed" as defined in the 2006 LEP, because if it is capable of being characterised as a building ancillary to a dwelling house, it is permissible (relying on Friends of Pryor Park Inc v Ryde City Council Bignold J, 25 September 1995). Clause 17 of the 2006 LEP contains restrictions on the carrying out of development on land traversed by a foreshore building line. While cl17(7) limits the forms of ancillary development that may be located below the foreshore building line, subclauses 17(8) and (9) apply in this instance. The changes to the roof, height and fenestration are "alterations", and the addition of the WC and shower is an "addition", which are authorised under cl17(8)(a) and (b) respectively of the 2006 LEP. Boatsheds are included within the definition of "excluded building or work" in cl17(1). The Council granted development consent in 2005 to the structure on the location of the building the subject of the appeal, and approved the construction of a boatshed. The provisions of the 2000 LEP in force at that time permitted "ancillary development", and if modifications to the boatshed result in a building that ceases to be a "boatshed" under the 2006 LEP by reason of it having two storeys, it is nevertheless capable of being approved pursuant to cl17(8)(b). The drafter of cl17(8) could not have had in mind that the only types of buildings that could be altered would be buildings that fitted within the definitions under the 2006 LEP even though they may have been approved under an earlier instrument. If the development cannot be characterised as an alteration or addition to an existing building or work, and cl17(8) does not apply, cl17(9) applies to permit consent being granted to an existing dwelling. If the structure as approved is incapable of being characterised as a "boatshed" under the 2006 LEP, the structure as approved comprised an ancillary building to an existing dwelling house, and that building having been approved in 2005, comprised part of an existing dwelling. Clause 17(9) permits an addition to such a dwelling subject to consideration of the requirements of cl17(9). 28In the alternative, the applicant relies on s109B of the Act, which provides: 109B Saving of effect of existing consents (1) Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force. (2) This section: (a) applies to consents lawfully granted before or after the commencement of this Act, and (b) does not prevent the lapsing, revocation or modification, in accordance with this Act, of a consent, and (c) has effect despite anything to the contrary in section 107 or 109. (3) This section is taken to have commenced on the commencement of this Act. 29The applicant submits that the Council, pursuant to the 2000 LEP, granted consent to a boatshed as a form of ancillary development. The development was the subject of a construction certificate granted on 31 October 2006 and construction having commenced before the commencement of the 2006 LEP, the consent remains in force. Section 109B saves the development consent as granted and in force, and it can be modified, even if that would breach the provisions of the 2006 LEP. Section 96 authorises retrospective approval of development, so that the operation of s96 and s109B together authorises the conversion of the boatshed into a two storey structure notwithstanding that this would not be a "boatshed" under the 2006 LEP. Consideration (1) The 2005 development consent 30In considering the permissibility issue, the starting point is the construction of the 2005 development consent. Development application DA 05/217 sought consent for "Development of a boatshed & (pontoon) to be built entirely on Freehold land. Development of a slip/ramp & pontoon below MHWM". 31While the development application referred to a "boatshed", the zoning table in cl33 of the 2000 LEP, which applied at the time the development application was lodged, does not expressly refer to development for the purpose of a boatshed. I agree with the applicant that the erection of the boatshed was a form of "ancillary development" as defined in the 2000 LEP, being used or carried out in conjunction with the primary legal use of the site, which was for a dwelling house. In Pearse v Sharpe [2007] NSWLEC 710 Jagot J considered the provisions for "ancillary development" in the 2000 LEP, and held (at [20]) that ancillary development as referred to in cl33 is not a separate development purpose; the provisions were "an attempt to articulate in the LEP recognition of the principles established in cases such as Foodbarn and O'Donnell ". 32While development ancillary to the use for a dwelling house was permissible with development consent, cl20(3) of the 2000 LEP prohibited the erection of a building or the carrying out of a work below the foreshore building line, unless it was a building or work specified in cl20(4). The only basis on which the erection of the structure, and the carrying out of the other work approved in the development consent, below the foreshore building line could be approved was by application of cl20(4). Development allowed by cl20(4) relevantly included the erection of a boatshed and the carrying out of landscaping and other associated works. I agree with the Council that the development application sought consent for a boatshed and other facilities identified in cl20(4), and that if the proposed structure had not been able to be characterised as a boatshed for the purposes of cl20(4), it would have been prohibited by cl20(3). 33The notice of determination of development consent dated 23 December 2005 stated that the proposed development was: "Development below the foreshore building line - Construction of Boatshed, Slipway, Stub Jetty, Ramp and Pontoon and minor repairs to existing seawall". 34Condition 1 provided: The development shall be implemented substantially in accordance with the details and specifications set out on the Drawing No. 03001 S.1 & 2 Amendment D dated 29/8/05 prepared by Aquatic Pontoons and any details on the application form and on any supporting information received with the application except as amended by the conditions specified and imposed hereunder. 35The plan specifically identified in condition 1 shows the dimensions of the boatshed to be 7m by 4m. The height to the ridgeline was 5m, being 2.7m from the ground level slab to the slab and joists and a further 2.3m to the ridgeline. The notation for the rear elevation states "hinged window access to roof space". The front elevation shows a "proposed hinged window & side lighting". Extending from the front of the boatshed was a "proposed timber loading platform for watercraft". The landscape plan accompanying the development application, referred to in condition 1, included Site Assessment/Calculations, showing the Gross Floor Area of the boatshed at 28sqm. 36The development application and accompanying plans do not specify the number of storeys of the proposed structure. The planning experts agree that the approved plan shows an upper level structure across the boatshed rather than a mezzanine; however, they disagree as to whether this is a floor to be used for general boatshed purposes and for storing watercraft, or whether it is a ceiling with roof space above capable of being used for storage. 37In considering the approved plan, I agree that it is not clear how far the specified slab extends from rear of the building towards the north. In applying the definition of "storey" in the 2000 LEP to the structure represented in the plans, the critical question is whether the slab/joists above the ground level slab constitutes a "floor". The notations on the approved plans identify the space above the slab/joists as "roof space", to be accessed through windows on the front (via the loading platform for watercraft) and rear elevations. Having regard to the description of that area as "roof space", the restricted means of access to it, and the roof pitch at 37 degrees, pitched close to the roof space floor, I am not persuaded that the approved roof space is a "space between any floor and its ceiling or roof above", but rather it is a space above a ceiling in which it would be possible to store watercraft. On that approach, it is not a "storey" as defined in 2000 LEP. 38The structure as shown on the plans was a structure appropriate for the storage of boats and boating equipment, which was consistent with the description of boatsheds at part 11.1 of the DCP. The dimensions of the structure were also consistent with the controls applicable to boatsheds in the DCP, in particular those relating to length, width, and height. The gross floor area shown on the landscape plan was consistent with the dimensions for a single storey boatshed in part 11.1 of the DCP. The Development Assessment Report dated 13 December 2005 noted in relation to the boatshed: The proposed boatshed proposes to replace an existing dilapidated boatshed and has been designed with a pitched roof and to minimise excavation. The previous development application (da05/0264) involved the construction of separate retaining structures surrounding the boatshed, to minimise excavation on the foreshore and to protect the visual amenity of the waterway the retaining structures will now be provided via the boatshed walls. The proposed floor level, size and height of the proposed boatshed comply with Council's requirements. The proposed boatshed is considered to be consistent with the character and appearance of several surrounding boatshed including an adjoining boatshed located to the east of the subject property. The proposed boatshed is to be constructed from appropriate materials, a condition of consent is recommended to ensure that appropriate colours and no-reflective surfaces are used. 39A development consent should be construed liberally: House of Peace Pty Ltd v Bankstown City Council (2000) 106 LGERA 440. I am satisfied that the development consent and the plans approved in condition 1 of that consent establish that what was approved in 2005 was a single storey boatshed of external dimensions, design, and location, consistent with the controls in the relevant planning instruments and policies. It was common ground that the approval of the erection of the structure included approval of the use as a boatshed. (2) The structure as built 40A modification application under s96 can be approved notwithstanding that the works proposed have been constructed: Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240. During the course of the hearing the parties clarified that the work to the sliprails and the seawall, and the east-west retaining walls, are not included in the modification applications. 41In appeal 10084 of 2010, approval is being sought for the building as constructed including the ground level and ridge heights, and the inclusion of three skylights in the roof. In relation to the height of the building, the modification application 09/0305 stated that the proposed modification was to correct RLs shown on the 2005 development consent plans, so that the seawall should be RL 1.45m (instead of 1.30m), the floor RL shown at 1.7m, and the roof ridge corrected from RL 6.3m to RL 7.1m. The evidence of Mr O'Donnell, Mr Pracy and the survey report of Mr Lucke was directed in part to establishing the actual dimensions of the structure as built. Mr Lucke's survey report states that the ground level slab is at RL 1.38m at the front. The photographs annexed to Mr O'Donnell's Statement confirm that the ground level slap slopes up away from the seawall. On Mr O'Donnell's measurements the mid point of the ground floor slab is at RL 1.7m. Mr Pracy was unable to confirm that measurement, and agreed that the survey report does not include spot levels to confirm it. 42However, it is not necessary to reach a firm conclusion as to the ground floor slab level. The significant measurements for the purposes of characterising the structure and assessing the merits of the applications are those of the structure above the ground level slab. Based on Mr Lucke's report, the overall height of the building, which as surveyed is taken from the outside of the building, is 5.690m (to RL 7.07), being 2.710m from the ground to the upper level, and a further 2.830m from the upper level to the ridge line. Based on Mr Pracy's evidence and Mr Lucke's survey report, the roof is pitched 1.275m above the roof space floor, at an angle of 32 degrees. The approved plans show the roof pitch at approximately 400mm, and the angle at 37 degrees. The evidence from the view confirms Mr Pracy's evidence that the increased volume of the roof space as a consequence of the increase in the external wall and the reduction in roof pitch means that the room height is now adequate to safeguard the occupants from injury or loss of amenity when in use as a habitable room. The applicant accepts that the size of the roof space area is such that it is capable of being used as a habitable room. Access to the space is possible through a glazed door on both the front and rear elevations. Having regard to the access, the volume of the roof space, and the finishing of the ceiling and flooring apparent on the view, I am satisfied that this space is a space between a floor level and the ceiling above, and meets the definition of "storey" in the 2006 LEP. (3) Whether a two storey boatshed is permissible under the 2006 LEP 43It was common ground that the structure as built, and as proposed to be approved in the modification applications, is a two storey structure and is not therefore a "boatshed" as defined in the 2006 LEP. The issue is whether such a structure is permissible under the 2006 LEP and can be approved in these modification applications. In contrast to the 2000 LEP, the 2006 LEP does not define, or include in the zoning table in cl11, "ancillary development". In the absence of provisions for "ancillary development" in the 2006 LEP, the principles in Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157 and Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 would apply, so that the building and its use as a boatshed being ancillary to the use as a dwelling house, would be permissible in the zone 1 - Environmental Housing (Environmentally Sensitive Land) zone. The WC and shower could be regarded as ancillary to that development. However, cl17 (7) of the 2006 LEP would prohibit the erection of a building or the carrying out of a work below the foreshore building line, unless cl17(8) or (9) applies. 44The 2006 LEP defines "dwelling" to mean "a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile". While I agree that the use as a boatshed may be ancillary to the use of the dwelling house, the structure is not a dwelling and so in my view cl17(8)(a) does not apply so as to permit alteration to that structure. For the same reason, cl17(9) does not apply so as to permit any "addition" to the structure. The applicant submits that the boatshed is an "excluded building or work" so that cl17(8)(b) applies to permit its alteration or addition. The definition of "excluded building or work" in cl17(10) includes a "boat shed". The Dictionary to the 2006 LEP includes a definition of "boatshed". It was common ground that the difference in spelling does not alter the substance of the provision. In my view the term as used in cl17 must be read in light of the definition in the Dictionary to the LEP, so that only a structure that relevantly is a single storey structure could be a "boatshed" and thus fall within paragraph (a) of an "excluded building or work". 45Contrary to the applicant's submissions, I consider that it would be consistent with the objectives of clauses 17 and 18, which are aimed at regulating and restricting development below the foreshore building line, for the drafter of the 2006 LEP to take a restrictive approach to the extent to which alterations or additions to structures on the foreshore could be permitted. The continuing use of a structure that did not fall within the definition of "boatshed", but which had been approved before the commencement of the 2006 LEP, would be protected as an existing use under s106 of the Act, and s109B would preserve an existing consent to carry out the development. 46For these reasons, I agree with the Council that the modifications to the approved development as carried out convert the structure into a two storey structure and cannot be approved. The 2006 LEP would not permit the approval of a structure that is not a "boatshed" as defined in the 2006 LEP, and would not permit the approval of ancillary works to such a structure. (4) Whether s109B(2)(b) permits modification 47The applicant relies on the decisions of Biscoe J in Currency Corporation Pty Ltd v Wyong Shire Council (2006) 155 LGERA 230 and Reading Properties Pty Ltd v Auburn Council (2007) 158 LGERA 116, and Lloyd J in Gann v Sutherland Shire Council [2008] NSWLEC 157, for the submission that s109B(2)(b) enables the modification under s96 of a development consent notwithstanding that it would be contrary to the provisions of the planning instrument in force at the date of modification. 48In Currency Corporation Biscoe J held that s109B could apply to a development which has the benefit of existing use rights. In the circumstances of that case, s109B did not apply because the relevant approval (which was the issue of a certificate of approval under the Strata Titles Act 1973) was not a "consent" contemplated by s109B, and the use (as a residential flat building) was not "in accordance with" that approval but was independent of that approval. In Reading Properties Biscoe J held that s109B preserved consents granted in 1997 and 2001 for a development comprising cinemas, shops, restaurants and retail facilities, which were subject to a condition which required that further individual applications be submitted for specific uses within the development. An application could be made for approval of a particular kind of shop, notwithstanding that shops were by then prohibited. At paragraph [33] Biscoe J held that the reference in s109B(2)(b) to "modification" is a reference to a modification pursuant to s96 of the Act; however, his Honour held that the application then before the court was not such an application, but simply an application pursuant to the earlier development consent. 49While confirming that an application can be made under s96 to modify a consent preserved by s109B, I am not persuaded that these decisions provide support for the applicant's broader submission. At paragraph [34] in Currency Corporation Biscoe J distinguished between the continuation of a use (here, the use as a boatshed), and carrying out a development, and held (at [35]) that the words "carrying out a development" in s109B "refer to an activity, permitted by a consent in force, which has not yet occurred". The activity permitted by the 2005 development consent was the erection of the boatshed in accordance with the plans approved in condition 1, namely as a single storey structure with a maximum height of 5m; that activity is not prohibited under the 2006 LEP, and so s109B(1) does not apply. 50The decision of Lloyd J in Gann does not, in my view, provide support for the submission that s109B(2)(b) would permit a modification of the 2005 development consent to enable the erection of a structure that would now be prohibited under the 2006 LEP. In Gann Lloyd J determined a question of law concerning the power to modify a development consent where the modification would result in non-compliance with three development standards in the applicable planning controls, relating to height, gross floor area, and landscaped area. Lloyd J applied the decision of the Court of Appeal in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 97 LGERA 433, which confirmed (at [14]) that an application for modification could be approved for a development in breach of an applicable development standard and that an objection under State Environmental Planning Policy No 1 - Development Standards was not available as a means of achieving modification in such circumstances. Lloyd J held: 8 In North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468, 97 LGERA 433, the Court of Appeal considered the relationship between the then s 76 and the then s 102 of the Act. Section 76 was relevantly the same as the present s 76A, and s 102 was relevantly the same as the present s 96. The Court of Appeal held as follows (at 481): Section 102 [now s 96] is a free-standing provision. A modification application may be approved notwithstanding the development would be in breach of an applicable development standard were it the subject of an original development application. And s 102(3A) [now s 96(3)] controls the way in which the consent authority takes into account the development standards found in any environmental planning instrument. 9 The fact that s 96 is a free-standing provision means that the restriction under s 76A which requires development to be carried out in accordance with the development consent and an environmental planning instrument, does not apply to an application under that section. This conclusion is reinforced by s 96(4), which states that the modification of a development consent in accordance with this section is taken not to be the granting of development consent, but a reference to a development consent includes a reference to the development consent as so modified. This provides a complete answer to the first three submissions advanced by Dr Berveling. Section 96(3) requires the consent authority to take the provisions of any relevant environmental planning instrument into consideration. 51Both Gann and Michael Standley concerned the application of a development standard which came into effect after the grant of development consent, and not a prohibition such as that constituted by cl17(7) of the 2006 LEP. In Agostino v Penrith City Council [2010] NSWCA 20 the Court of Appeal confirmed (at [49]) that while the process of deciding whether a particular provision is a development standard or a prohibition can be difficult, a development in respect of which it is asserted that a provision is a development standard is one that may be carried out, that is, permissible. The two storey structure that has been erected on the site is not a "boatshed" as defined in the 2006 LEP, and does not fall within the exceptions in cl17(8) or (9) to the prohibition in cl17(7). Neither the structure, nor the ancillary WC and shower, are permissible under the 2006 LEP, and I am not persuaded that there is power under s96 to approve them. Conclusion on permissibility 52I am not satisfied that there is power to approve either of the modification applications, even assuming that the Council's contention that s96(1A) does not apply is correct and that the applicant can rely on s96(2) of the Act. However, if I am wrong in my interpretation of the 2005 consent and the provisions of the 2006 LEP, or if s109B(2)(b) would enable the modification of the 2005 consent to permit a structure and ancillary works that would otherwise be prohibited, s96(3) of the Act requires that I take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application. Merits 53In considering the merits of the modification applications, the central issue is whether the visual impact of the modified boatshed is acceptable when considered against the applicable planning controls. Evidence 54In appeal 10085 of 2010 there are three matters of concern identified in the joint report of the expert planners: the retaining wall on the western side of the boatshed; the area occupied by the WC; and the two retaining walls running to the eastern side boundary. The experts agreed that the visual effect of the WC area can be ameliorated by additional planting adjoining it. There was agreement that the visual effect of the front wall to the west of the boatshed can be ameliorated by additional planting, however the experts disagreed as to whether the wall could or should be reduced in height and its finish altered. While the east-west retaining walls are not the subject of the appeal, the experts considered that they may be susceptible to amelioration. The experts disagreed as to whether any of the amelioration options would be sufficient to offset the overall impacts of the proposed modifications. 55In appeal 10084 of 2010 the experts disagreed as to the visual impact of the increase to the overall height of the boatshed, and the changes to fenestration on the front faade. The experts agreed that the proposed elevated planter boxes should be deleted from the application. The experts disagreed as to whether the other elements of the proposed modifications result in an unacceptable visual impact when viewed from the adjacent land and waterways. Mr Ball was of the opinion that the existing glazed area is about the same area as that approved, and that the visual impact of the building does not differ substantially from that approved. The skylights are small and not prominent from the waterfront elevation. If the building were lowered in accordance with the approved plans there would be more of the sandstone retaining wall behind the boatshed visible, and this would not materially increase views of or to natural landscaping on the site. Ms Pinfold was of the opinion that the modifications to the building height, the doors, skylights, and the door, result in a building that reads as a two storey structure and resembles a small waterfront cottage rather than a boatshed. Findings 56The applicant submits that the evidence as to how the boatshed came to be constructed in its current form is relevant in an assessment of the modification applications under s79Cof the Act. The applicant's evidence included an explanation, supported by contemporaneous photographs, of the construction of the ceiling slab, the walls, and the retaining walls. In relation to the height of the building as constructed, correspondence from Accredited Certifiers to the applicant (dated 25 March 2009) and to the Council (dated 29 January 2009) confirms the applicant's evidence that the changes to the ridge level and roof pitch were accepted by the certifier at the frame inspection as the change was considered minor. It is apparent from this correspondence that this decision was made in the absence of a survey, and that following a survey, the certifier concluded that the change in height from 6.3m AHD to 7.1m AHD combined with a change in the finished floor level from 1.3m AHD to 1.7m AHD represented a change that was not consistent with the development consent. The applicant's evidence was that the change in roof height was a consequence of the requirement for a larger than anticipated roof beam. However, Mr Pracy's evidence was that even if the ridge beam had to be increased from 250 x 50mm to 640 x 50mm, it would have been possible to have the ridge beam encroach further down into the roof space. This evidence was not contradicted, and I accept it. In any event, while the actual height from the ground to the upper level at 2.71m is close to that approved (2.70m), the actual height from the upper level to the ridge line is 2.830m, which is a more significant increase on the approved height of 2.300m than can be explained by a change in dimensions of the ridge beam in the order of 400mm. There was no evidence concerning the increase in wall height to the roof pitching point. These changes result in a roof space that can be used as a habitable room. Even if the evidence of the applicant as to how the building, including the retaining walls and external walls of the boatshed, was constructed is accepted as an explanation, I am not persuaded that such an explanation should be given weight in determining whether an application to modify the consent to reflect what has been constructed should be approved. 57In his Statement of Evidence the applicant states (at 5.5-5.10) that of the 41 boatsheds he has counted on the North West Arm, 16 are two storey and 14 are 5.4m or higher. The applicant provided photographs of 15 boatsheds, including the subject site, on North West Arm. Six of those properties were addressed in Ms Pinfold's Review of Foreshore Development History (exhibit 8). The photographs relied upon by the applicant and the structures included in Ms Pinfold's Review do not correspond. Ms Pinfold's Review provides details of 28 properties with structures below the foreshore building line from 135 Peninsular Road (to the north west of the subject site) to 78 Kingfisher Crescent (to the south east of the subject site). The applicant includes 4 structures on the other side of North West Arm, and three further along Peninsular Road around the point from the foreshore on which the subject site is located. The applicant's photographs confirm what was apparent from the site view, namely that there are other two storey structures erected along the foreshore. Ms Pinfold's Review states that the report was based on a search of Council recent building, development and property files and electronic records of building and development applications. Ms Pinfold was not cross examined on the contents of the review, and I accept her report as a summary of the relevant development history. 58Based on that summary, of the six sites common to both the applicant's Statement and Ms Pinfold's Review, the following comments can be made. The boatshed on the adjoining property (42 Kingfisher Crescent) is a single storey boatshed with loft storage area; the pitching point of the roof form is the ceiling of the former flat roof, with a maximum internal ridge height of 2.0m. Two of the structures are not in compliance with relevant approvals: one structure to the north west on Goldfinch Place (photograph M) is a two storey dwelling that according to Council records has been retained unlawfully, and another two storey structure further along Goldfinch Place (photograph L) has not been modified in accordance with a consent granted in 1998 so as to demolish the top storey of an existing residence to form a one storey boatshed. Of the other three properties, all further north west along Goldfinch Place, one is a two storey dwelling which was in existence before 1955 and is the only dwelling on the property (photograph K); one has a two storey building which Council records identify as a weatherboard and stone cottage and which was retained on heritage grounds (photograph J); and the other has a two storey dwelling dating from the late 1950s which is the only dwelling on the property (photograph I). It is not possible, on the evidence before me, to confirm the development history of the other sites relied upon by the applicant. 59In Hooler v Sutherland Shire Council [2008] NSWLEC 189, Lloyd J considered the application of cl17(9) and cl18 of the 2006 LEP, in particular objectives (b) and (c) of cl18. In considering whether cl18(4)(c) applied, Lloyd J held: 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. 60While Hooler was concerned with the retention of older structures below the foreshore building line, the argument in favour of enforcing the underlying policy objectives of the LEP is equally applicable to proposals for new structures on the foreshore. Two of the six properties common to Ms Pinfold's Review and the applicant's evidence raise compliance and enforcement issues for the Council. However, the other four properties and those summarised in Ms Pinfold's Review support her evidence that since their introduction in 1993 the Council has applied its planning controls restricting waterfront structures so as to restore the foreshore in an incremental fashion as development is proposed on particular properties. 61The modifications which are the subject of these applications have been constructed, which assists in understanding the visual impact. In assessing visual impact of the development, Mr Ball was of the opinion that from the waterway the first view is from the side and then the front. Approaching from the west, the western elevation is not visible because of the adjoining property and vegetation. The boatshed is nested in which is unusual, and it respects the existing topography. Mr Ball was of the opinion that the proposed works related to the WC and shower are contained within a small extension to the boatshed which is set well back from the front of the boatshed and is virtually invisible. 62Based on the evidence from the view, and in particular when comparing the subject structure to that on the adjoining property to the east and other single storey structures in the locality, I agree with Ms Pinfold that the combination of the height of the building, the external wall height to the roof pitching point, the glazed area including a door on the waterfront elevation, and the form of the roller door, results in a building that reads as a two storey structure and resembles a small waterfront cottage rather than a boatshed. Approval of such a structure in its location would not be consistent with the objectives of the Environmental Housing (Environmentally Sensitive Land) zone, in particular objectives (a)(i) of allowing development of a scale and nature that complements the natural landscape setting of the zone and (b) of limiting development in the vicinity of the waterfront so that natural qualities rather than built form can dominate. Approval of the structure would not be consistent with objective 2(f) of the controls applicable to development below the foreshore building line in cl17, namely to minimise adverse visual impact of development when viewed from the waterway. While I agree with Mr Ball that the proposed WC and shower are set back from the front of the boatshed, their approval would add to the scale of the structure when viewed from the waterway, which would not be consistent with objective (2)(f) of cl17. It follows that I am not satisfied that the nature and scale of the development as modified would be consistent with the objectives of the zone or those applicable to development below the foreshore building line in the 2006 LEP. 63A further consideration under s79C is the provisions of the 2006 DCP. Part 9.6 of the 2006 DCP provides controls for boatsheds, and provides that boatsheds must be single storey, with a maximum length of 7m, maximum width of 4m, and maximum height of 5m to the highest part of the roof. Part 9.6.b.5(3) notes that boatsheds that exhibit a scale and character in keeping with traditional timber boatsheds are preferred. I accept the evidence of Ms Pinfold that the size, scale and character of the structure is not consistent with this provision. Conclusion 64Approval of the modifications would be contrary to the planning controls which aim to regulate and restrict development below the foreshore building line so as to protect and enhance natural features and minimise adverse impacts. Even if there were power to approve the modifications, I am not satisfied that it should be exercised so as to do so. Orders 65The Orders of the Court are: Appeal 10084 of 2010 1. The appeal is dismissed. 2. The application to modify development consent DA05/1217 granted on 23 December 2005 for construction of a boatshed, slipway, stub jetty, ramp and pontoon at 44 Kingfisher Crescent Grays Point is refused. 3. The exhibits are returned. ______________________ Linda Pearson 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. Decision last updated: 25 January 2011