Land and Environment Court New South Wales Medium Neutral Citation: Sutherland Shire Council v Counsel [2012] NSWLEC 61 Hearing dates: 22/3/12 Decision date: 26 March 2012 Jurisdiction: Class 1 Before: Biscoe J Decision: Appeal allowed. Conditions of development consent varied to provide that new dwelling be behind foreshore building line. Catchwords: APPEAL:- from decision of a Commissioner on a question of law - Commissioner granted development consent for new dwelling subject to conditions - exception in local environmental plan to a prohibition on building forward of a foreshore building line - mandatory requirement of the exception that consent authority is satisfied that there is no reasonable alternative that would allow a new dwelling to be located behind the foreshore building line - Commissioner held exception established so that dwelling does not have to be wholly behind foreshore building line - construction and application of the exception requirement and relevant considerations. Legislation Cited: Land and Environment Court Act 1979 s 56A State Environmental Planning Policy No 1 - Development Standards Sutherland Shire Local Environmental Plan 2006 cll 17, 18 Cases Cited: Chappelow v Sutherland Shire Council [2010] NSWLEC 1294 Counsel v Sutherland Shire council [2011] NSWLEC 1306 Harbour Port Construction Pty Ltd v Sutherland Shire Council [2007] NSWLEC 696 Hooler v Sutherland Shire Council [2008] NSWLEC 189 Noun v Sutherland Shire Council [2011] NSWLEC 1243 O'Donnell v Sutherland Shire Council [2011] NSWLEC 1007 O'Donnell v Sutherland Shire Council [2011] NSWLEC 184 Stubbs v Sutherland Shire Council [2008] NSWLEC 1433 Category: Principal judgment Parties: Sutherland Shire Council (Appellant) Michael James Counsel (Respondent) Representation: COUNSEL: Mr T F Robertson SC (Appellant) Submitting appearance (Respondent) SOLICITORS: HWL Ebsworth (Appellant) Susan Hill & Associates (Respondent - submitting appearance) File Number(s): 11007 of 2011 Judgment 1This is an appeal by Sutherland Shire Council under s 56A(1) of the Land and Environment Court Act 1979 against a decision of the Acting Senior Commissioner in Counsel v Sutherland Shire Council [2011] NSWLEC 1306. Such an appeal is limited to questions of law. The Acting Senior Commissioner upheld an appeal by Mr Michael Counsel (the applicant), against the council's refusal of development consent for the demolition of an existing dwelling and construction of a new dwelling with an attached garage, swimming pool and boatshed at 34 Grosvenor Crescent, Cronulla. He allowed the appeal and granted development consent subject to conditions. 2In substance, the appeal is against the decision to omit a condition proposed by the council that the new dwelling be relocated, by some 1.2 metres, so as to be entirely behind a foreshore building line (FBL). 3The appeal turns on the construction and application of cl 17(9)(b)(iv) of the Sutherland Shire Local Environmental Plan 2006 (LEP). This provision prescribes one of the mandatory requirements of an exception to the prohibition in cl 17(7) on the erection of a building forward of the 20 metre FBL, measured from the deemed mean high water mark. 4Unusually, there is no contradictor in this appeal because the applicant has filed a submitting appearance save as to costs. Thus, the council's grounds of appeal and submissions are uncontested. However, if the appeal is allowed, the applicant consents to my disposing of the proceedings by way of amendment to the conditions so as to require the new dwelling to be behind the FBL, rather than remitting the proceedings for determination in accordance with my decision. 5In my opinion, the appeal should be allowed and an order made amending the conditions in the way provisionally consented to by the applicant. APPEAL GROUNDS 6The appeal grounds are as follows: 1.The Acting Senior Commissioner erred in law in misconstruing cl 17(9)(b)(iv) of the LEP, by departing from the ordinary and natural meaning of the provision in its context. 2.The Acting Senior Commissioner erred in law in taking into account irrelevant considerations in determining whether cl 17(9)(b)(iv) was satisfied, as follows: (i)the planning control, which prohibited dwellings below the FBL was largely irrelevant; (ii)breaches of the control were minor; (iii)the objectives of the control were met despite the breaches; (iv)the breaches did not cause an adverse visual impact from the waterway; (v)adjoining properties had dwellings which were also below the FBL; (vi)the breaches of the FBL by other dwellings were much greater; (vii)no amenity impacts were caused by the breaches on adjoining residential properties; and (viii)other requirements of cl 17(9) were met, except for cl 17(9)(b)(iv). 3.The Acting Senior Commissioner erred in law in failing to take into account any relevant considerations in determining that the requirements of subparagraph (iv) had been met. 7The grounds of appeal are interrelated. The council submits that the error in construing cl 17(9)(b)(iv) (Ground 1) is demonstrated by the irrelevant factors considered by the Commissioner (Ground 2), and those factors and that construction distracted the Commissioner from considering relevant matters (Ground 3). THE LEP 8Clause 17 of the LEP relevantly provides: 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. (emphasis added) 9In the present case the mandatory requirements in cl 17(9)(a) and (b)(i)-(iii) are satisfied and the only issue is whether the requirement in subparagraph (iv) is satisfied. 10I note that the reference to "a" new dwelling in cl 17(9)(b)(iv) contrasts with the references to "the" new dwelling in (i) and (ii). Therefore it appears that the ambit of subparagraph (iv) is not limited to the new dwelling the subject of the relevant development application but extends to any new dwelling. 11Clause 18 of the LEP applies (inter alia) to land traversed by an FBL and relevantly provides: 18 Development in or adjacent to waterways ... (2) The objectives of this clause are as follows: ... (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, ... (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: ... (ii)between a foreshore building line and any waterway or waterfront reserve in respect of which the line is fixed, (emphasis added) 12Consistently with their objectives, these controls have been repeatedly construed and applied by the Court to restrict development on the foreshore so as to preserve, restore or enhance the formerly natural areas forward of the FBL: Hooler v Sutherland Shire Council [2008] NSWLEC 189 at [25] per Lloyd J; Noun v Sutherland Shire Council [2011] NSWLEC 1243 at [23] per Dixon C; O'Donnell v Sutherland Shire Council [2011] NSWLEC 1007 at [45] per Pearson C (upheld on appeal: O'Donnell v Sutherland Shire Council [2011] NSWLEC 184); Chappelow v Sutherland Shire Council [2010] NSWLEC 1294 at [57] - [59] per Hussey C; Stubbs v Sutherland Shire Council [2008] NSWLEC 1433 at [33] - [39] per Brown C; Harbour Port Construction Pty Ltd v Sutherland Shire Council [2007] NSWLEC 696 at [20] per Hussey C. THE JUDGMENT BELOW 13The Commissioner's reasons for deleting the contentious condition are set out at [12] - [18] of his judgment, as follows: 12. The breaches of the FBL were identified as two areas of the upper level south facing deck the [sic] and part of the roof form above (see plan below). ... 14 Mr Moody [the applicant's planner] and Ms Pinfold [the council's planner] 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. 15 Ms Amy, for the council, submits that cl 17(9)(b)(iv) must be read in the manner adopted by Mr [sic] 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. 16 In 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. 17 I am satisfied that to adopt the council's approach, in this case, would be unreasonable, "irrational and unjust" and support and [sic] "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. 18 For the reasons mentioned above, the council's deferred commencement condition 2 can be deleted. DISCUSSION 14The evidence before the Commissioner and the underlying premise of his decision was that the new dwelling could be relocated a further 1.2 metres from the Bay frontage, thereby putting it entirely behind the FBL. 15The reasoning process of the Commissioner was as follows. First, he recited the planners' evidence concerning the meaning they attributed to cl 17(9)(b)(iv) and its application: at [14] of his judgment. Ms Pinfold, for the council, stated that it was not satisfied as there was a reasonable alternative that would allow a dwelling to be located behind the FBL, and proposed a condition that it be relocated a further 1.2 metres from the Bay frontage. Mr Moody, for the applicant, adopted the test of whether the breach of the FBL was reasonable and consistent with the objectives of cl 17, and referred to larger breaches by surrounding dwellings, the slighter visual impact of the proposed building work in breach of the FBL and the mitigation of that smaller impact by landscaping. The Commissioner then referred to the submissions of counsel: at [15]. Ms Amy for the council submitted that there was a reasonable alternative which would allow the new dwelling to be located behind the FBL. Mr Hemmings, counsel for the applicant, was said to have adopted a different approach to the interpretation of the provision. The Commissioner noted the first submission of the applicant's counsel "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". The applicant's counsel then proceeded to make a second submission that it was not reasonable to relocate because of three matters: the shape of the FBL, the minor breaches of it and the setbacks of adjoining properties. After referring to two authorities on statutory construction, the Commissioner then said that he agreed with the submissions (plural, ie both submissions) of the applicant's counsel because to adopt the council's approach would be "unreasonable, 'irrational and unjust' and support and [sic] 'irrational result' for a number of reasons": at [17]. 16He then stated five reasons for that decision: (a)the FBL was irrelevant for planning purposes in this location; (b)the breaches were minor, and still satisfied the objectives in cl 17(2); (c)adjoining properties breached the control to a greater extent; (d)the breaches of the proposed development created no amenity impacts on adjoining properties; and (e)the other requirements of cl 17(9) were met. 17The Commissioner appears to have thought that: (a)the parties (and their planners) were advancing different constructions of cl 17(9)(b)(iv); (b)the council's construction was a "literal" one, and that on this literal construction, cl 17(9)(b)(iv) was not satisfied because there was a reasonable alternative that would allow a new dwelling to be located behind the FBL, and therefore there had to be a condition to that effect for consent to be granted: at [15] - [16] of his judgment; (c)however, on the applicant's construction, cl 17(9)(b)(iv) was satisfied because the alternative location was not reasonable, and therefore there was no requirement that the new dwelling be located behind the FBL; (d)the applicant's construction should be adopted because the council's construction was unreasonable, "irrational and unjust" and would support an "irrational result" for the five reasons listed at [16] above; and (e)implicitly, the alternative of a new dwelling located behind the FBL was not reasonable for the same five reasons and therefore cl 17(9)(b)(iv) was satisfied. 18In what follows, I adopt a substantial part of the council's submissions. 19In my opinion: (a)In fact, there is no significant difference between the parties as to the construction of cl 17(9)(b)(iv). Indeed, before me the council was content to accept the construction expressed by the applicant's counsel to the Commissioner at [15] of his judgment: "if there is an alternative location for a new dwelling behind the FBL, then the decision to locate a dwelling in the alternate location must be reasonable". (b)Thus, the questions posed by cl 17(9)(b)(iv) are: whether a new dwelling can be located entirely behind the FBL and, if so, whether that is a reasonable alternative. (c)As it was common ground before the Commissioner that the new dwelling could be located entirely behind the FBL, the only contentious question was whether that was a reasonable alternative. (d)The real issue is whether the five matters relied on by the Commissioner at [17] of his judgment are relevant to that question. In my opinion, they are irrelevant to that question for the reasons set out at [20] - [21] below. (e)Matters relevant to that question include matters such as the area available for a new dwelling behind the FBL, the topography of that area (eg whether the land slopes so that a building cannot be erected for geotechnical reasons), whether an appropriate amount of building volume can be achieved having regard to what would be expected in the locality (eg a one bedroom shack rather than a three bedroom dwelling might not be reasonable having regard to the development controls in the locality), parking and access. 20Although not clearly articulated, it sufficiently appears from the five reasons at [17] of the Commissioner's judgment that he applied tests of whether the FBL control was reasonable and whether the extent of the breaches of the control were reasonable. The Commissioner's approach is suggestive of an investigation into the merits of the FBL control, admixed with the application of State Environmental Planning Policy No 1 - Development Standards (SEPP 1) to the FBL control. That, however, is not the question which cl 17(9)(b)(iv) poses. New dwellings cannot be constructed forward of the FBL unless there is no reasonable alternative. In my view, that does not invite or require the exploration of questions of the merits of the FBL control, consistency with surrounding development which breaches the FBL control, the extent of the new dwelling's breach of the FBL control, or the other matters which the Commissioner took into account. The ameliorating adjective "reasonable" in cl 17(9)(b)(iv) does not relate to the reasonableness of the FBL control or surrounding compliances with it, but rather to the reasonableness of erecting a new dwelling at this alternative location entirely behind the FBL. 21The five matters that the Commissioner took into account at [17] of his judgment are as follows: (a)The FBL is an historic line that changes direction constantly and dramatically, bears no resemblance to the existing foreshore, and is largely irrelevant for planning purposes in this location given the location of the foreshore and adjoining residential developments. This is a criticism of the policy of the cl 17(7) FBL control. The Minister made the decision to impose the FBL at this location and adopted a policy which prevented, other than in exceptional circumstances, new residential development forward of the FBL. The Commissioner's approach would set the cl 17(7) prohibition at naught. In my view, the criticism is irrelevant to the question of the reasonableness of the alternative location posed by cl 17(9)(b)(iv). That existing adjoining residential developments have been constructed forward of the FBL says nothing as to the relevance of applying the policy to this development. The adjoining developments may well have been constructed at a time when no FBL applied. Eventually, these existing developments will be redeveloped and one should not assume that they will not then comply with the FBL control. On the contrary, as Lloyd J said in Hooler v Sutherland Shire Council [2008] NSWLEC 189 at [25]: "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". (b)The extent of the breaches is minor and the whole proposed development still satisfies the objectives of the control. This is a classic SEPP 1 reasoning process which, in my opinion, is irrelevant to determining whether there is a reasonable alternative. The alternative location is no less reasonable because the breach of the control is minor. If the breach is minor, then perhaps the alternative is more reasonable because it is more readily available. In any event, the reasonableness of the alternative location cannot be measured by the extent of the breach. Further, the reasonableness question posed by cl 17(9)(b)(iv) is not answered simply because another question posed by cl 17(9) (paragraph (a): consistency with objectives) has been answered favourably to the applicant. (c)The proposal is consistent with adjoining properties which have much greater breaches of the FBL. In my opinion, this is irrelevant. The extent of other breaches of the FBL cannot justify this breach. More importantly, it says nothing as to the reasonableness of the alternative location. (d)The breaches of the FBL create no amenity impacts on adjoining residential properties. In my opinion, whether this is so or not is irrelevant because it says nothing as to the reasonableness of the alternative location. Presumably, the alternative creates no amenity impacts either. (e)Clause 17(9) provides the opportunity for a dwelling to be erected below the FBL, and all other requirements of the clause are satisfied, with the exception of paragraph (b)(iv). There is a logical difficulty with this proposition. If, in order to obtain the benefit of the exception in cl 17(9), five requirements have to be satisfied but only four of them can be satisfied, then satisfaction with four cannot be a reason for finding that the fifth is satisfied. Perhaps implicitly the Commissioner was acknowledging here that the fifth requirement, in cl 17(9)(b)(iv), is not satisfied but it was sufficient in his view that four out of five are satisfied. I cannot agree. That is to effectively delete subparagraph (iv), which is a mandatory requirement. ORDERS 22For these reasons, I propose to allow the appeal. 23Section 56A(2) of the Land and Environment Court Act empowers the Court to remit the matter to the Acting Senior Commissioner for determination in accordance with this decision or to make such other order in the appeal as the Court sees fit. The appeal having been allowed, the applicant consents to an order that conditions 1 and 9 be amended so as to require the new dwelling to be entirely behind the FBL, rather than remit the matter. I consider that it is appropriate to make such an order. 24The orders of the Court are as follows: 1.The appeal is upheld. 2.The decision of the Acting Senior Commissioner in proceedings No 10579 of 2011 in granting development consent on conditions is varied by amending conditions 1 and 9 in the form attached to these orders. 3.The exhibits may be returned with the exception of Exhibit A. 4.No order as to costs. ATTACHMENT 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: 27 March 2012