Land and Environment Court New South Wales Medium Neutral Citation: Counsel v Sutherland Shire Council [2011] NSWLEC 1306 Hearing dates: 8 September 2011 Decision date: 08 September 2011 Jurisdiction: Class 1 Before: Brown ASC Decision: 1. The appeal is upheld. 2. Development Application 10/0727 for the demolition of all improvements and the construction of a new dwelling with an attached garage, swimming pool and boatshed at 34 Grosvenor Crescent, Cronulla is approved subject to the conditions in Annexure A. 3. The exhibits are returned the exception of exhibits 1, A and B. Catchwords: DEVELOPMENT APPLICATION: demolition of all improvements and the construction of a new dwelling with an attached garage, swimming pool and boatshed - whether breach of foreshore building line appropriate Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental planning Policy No 1 Sutherland Local Environmental Plan 2006 Cases Cited: Cooper Brookes (Wollongong) v Federal Commissioner of Taxation (1981) 147 CLR 297 Lennard v Jessica Estates (2008) 71 NSWLR 306 Category: Principal judgment Parties: Michael James Counsel (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel Mr I Hemmings, barrister (Applicant) Ms J Amy, solicitor (Respondent) Solicitors Susan Hill & Associates Lawyers Pty Ltd (Applicant) Sutherland Shire Council (Respondent) File Number(s): 10579 of 2011 Judgment 1ACTING SENIOR COMMISSIONER: This is an appeal against the refusal of Development Application 10/0727 by Sutherland Shire Council (the council) for the demolition of all improvements on the site including a garage, dwelling and swimming pool and the construction of a new dwelling with an attached garage, swimming pool and boatshed at 34 Grosvenor Crescent, Cronulla (the site). 2The site is Lot 100 in DP 831250 and has a site area of 1303 sq m. The site has a frontage of 12.19 m to Grosvenor Crescent, side boundaries of 83.24 m on the west and 82.865 m on the east. The rear boundary of 19.61 m adjoins Gunnamatta Bay. 3The area around the site is almost exclusively single dwelling residential development with some properties in Grosvenor Crescent having a frontage to Gunnamatta Bay. 4The site has a dual zoning with that part of the site adjoining Grosvenor Crescent within Zone 2 - Environmental Housing (Scenic Quality) and that part of the site near Gunnamatta Bay within Zone 16 - Environmental Protection (Waterways Zone). The approximate area of Zone 2 is 852 sq m and the approximate area of Zone 16 is 451 sq. Both zonings are under Sutherland Local Environmental Plan 2006 (LEP 2006) where dwelling houses are permissible within Zone 2 but not Zone 16. 5The site is affected by a 20 m at Foreshore Building Line (FBL) and in accordance with cl 17, the FBL is measured from the deemed Mean High Water Mark (MHWM). Clause 17 also provides specific requirements for buildings or works traversed by a FBL. 6The Statement of Facts and Contentions identified the following council contentions: 1. the permissibility of development below the FBL, 2. the non-compliance with the building height development standards in cl 33(4) relating to the number of storeys, ceiling height and overall roof height and the unacceptable objection under State Environmental planning Policy No 1 -Development Standards (SEPP 1), 3. the non-compliance with the density development standard in cl 35(5) and the absence of an objection under SEPP 1, 4. the non-compliance with the landscaped area development standard in cl 36 and the absence of an objection under SEPP 1, 5. the unacceptable impact on the existing and desired landscaped character and streetscape of the locality, through the design of the swimming pool and the street front "podium", 6. the design and dimensions of the proposed boatshed, 7. loss of privacy to the adjoining property at 32 Grosvenor Crescent, 8. the retention of unauthorised structures within the waterway, and 9. inadequate information in relation to levels, landscaping and stormwater drainage. 7The appeal was heard as an on-site hearing and the site, surrounding area and one adjoining property were inspected at the commencement of the hearing with the parties, and following the inspection, the remainder of the hearing was conducted at the council offices. 8The appeal was conducted as a conciliation conference under s 34AA of the Land and Environment Court Act 1979. As part of the conciliation conference process, the opportunity for an agreement or a reduction in the number of contentions was explored with the parties. Based on the provision of additional information and amended plans provided to the council prior to the hearing and further discussions during the conciliation phase of the conference, agreement was reached on all but one contention; the permissibility of development below the FBL. 9The amended plans satisfied the development standards for density and landscaped area, reduced the height of the proposed swimming pool, removed the street front "podium, redesigned the boatshed, provided additional screening to prevent overlooking, accepted the applicants argument on the unauthorised structures within the waterway (with exception of one mooring pole and an "air dock" that are to be removed by way of a condition). While the proposed development exceeded the height development standards, but given the other amendments to the plans, the council accepted that compliance with the height development standards was unreasonable and unnecessary in circumstances of the case and that the SEPP 1 objection was well founded. 10As no overall agreement was reached, the conciliation was terminated pursuant to s 34AA(2)(b). In accordance with s 34AA(2)(b)(i) the hearing was held forthwith and in accordance with s 34AA(2)(b)(ii) on the basis of what occurred at the conciliation conference. 11Expert town planning evidence was provided by way of a joint report from Mr Tony Moody on the applicant and Ms Debbie Pinfold for the council. Evidence was also provided by three local residents who acknowledged that the amended plans addressed a significant amount of their previous concerns however both adjoining residential property owners maintained that greater benefit would be achieved if the proposed building was setback further from Gunnamatta Bay to enhance the views from their properties. One adjoining owner also raised loss of privacy. 12The breaches of the FBL were identified as two areas of the upper level south facing deck the and part of the roof form above (see plan below). 13Clause 17 relevantly states: 17 Buildings or works on land traversed by foreshore building line (1) Application of clause This clause applies to land that is traversed by a foreshore building line. (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. . . (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. 14Mr Moody and Ms Pinfold agreed that the proposed development satisfied the objectives of the clause required by cl 17(9)(a) and also satisfied the matters in cl 17(9)(b)(i) to (iii) but disagreed on whether the development satisfied cl 17(9)(b)(iv). Ms Pinfold states that cl 17(9)(b)(iv) is not satisfied as there is a reasonable alternative that would allow a dwelling to be located behind the FBL. She proposes a deferred commencement condition that the dwelling be relocated a further 1.2 m from the Gunnamatta Bay frontage. Mr Moody states that the breach of the FBL is substantially less than a number of other existing dwellings. Further, the proposed balcony and roof represent open structures with much less visual impact than structures with walls and when combined with the proposed additional landscaping the breach of the FBL is entirely reasonable and consistent with the objectives. 15Ms Amy, for the council, submits that cl 17(9)(b)(iv) must be read in the manner adopted by Mr Pinfold. She submits that there is a reasonable alternative that would allow a new dwelling to be located behind the FBL therefore the breaches make the development prohibited. She submits that there is sufficient area towards Grosvenor Crescent to allow the dwelling to be located entirely behind the FBL. Mr Hemmings, for the applicant, adopts a different approach to the interpretation of cl 17(9)(b)(iv). He submits that the clause should be read in a way that if there is an alternative location for a new dwelling behind the FBL, then the decision to locate a dwelling in this alternate location must be reasonable. In the circumstances of this case, Mr Hemmings submits that it is not reasonable given the peculiar shape of the FBL line on the site, the minor breaches of the FBL and the consistency in setback with adjoining properties. 16In considering the competing submissions, I agree with the submissions of Mr Hemmings although the submission of Ms Amy is not without some merit. In accepting the approach of Mr Hemmings, I have relied on the comments in Cooper Brookes (Wollongong) v Federal Commissioner of Taxation (1981) 147 CLR 297 (at 320) where it states that if there are two meanings that are open in statutory interpretation, it is proper to adopt a meaning that avoids consequences that appear irrational and unjust and produces the fairer and more convenient response so long as it conforms to the legislative intent. In Lennard v Jessica Estates (2008) 71 NSWLR 306 (at 52) it states that the Court must look to the intention of the draftsperson and avoid the irrational result of a particular construction, unless the language of the provision in question is intractable or where the operation of the provision, read literally, indicates that it could not have been intended by the draftsperson. 17I am satisfied that to adopt the council's approach, in this case, would be unreasonable, "irrational and unjust" and support and "irrational result" for a number of reasons. First, the FBL, while complying with the provisions of cl 17, is an historic line that changes direction constantly and dramatically and bears no resemblance to the existing foreshore. The FBL is largely irrelevant for planning purposes in this location given the location of the foreshore and the adjoining residential development. Second, the extent of the breaches is minor, at best and even Ms Pinfold accepts that the development, including the breaches, still satisfies the objectives in cl 17(2), particularly the objectives relating to the visual impact from the waterway (objectives (f) and (g)). Third, the proposed development provides a consistent setback to Gunnamatta Bay with both adjoining properties. I note that the adjoining buildings have much greater breaches of the FBL than proposed in this application. Fourth, the breaches of the FBL create no amenity impacts on adjoining residential properties. Fifth, cl 17(9) provides the opportunity for a dwelling to be erected on land between a FBL and the waterway (subject to the other requirements in the clause) and all other matters required to be considered in cl 17(9), with the exception of cl 17(9)(b)(iv), are considered acceptable by both Mr Moody and Ms Pinfold. 18For the reasons mentioned above, the council's deferred commencement condition 2 can be deleted. 19I have reviewed the SEPP 1 objection provided by the applicant, and accepted by the council, to show that the compliance with the height development standards in cl 33(4) is unreasonable and unnecessary in the circumstances of the case and concur that the SEPP 1 objection well founded. 20The orders of the Court are: 1. The appeal is upheld. 2. Development Application 10/0727 for the demolition of all improvements and the construction of a new dwelling with an attached garage, swimming pool and boatshed at 34 Grosvenor Crescent, Cronulla is approved subject to the conditions in Annexure A. 3. The exhibits are returned the exception of exhibits 1, A and B. G T Brown Acting Senior Commissioner 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: 26 October 2011