Land and Environment Court New South Wales Medium Neutral Citation: Platford v van Veenendaal and Shoalhaven City Council [2018] NSWLEC 27 Hearing dates: 5 March 2018 Date of orders: 09 March 2018 Decision date: 09 March 2018 Jurisdiction: Class 4 Before: Preston CJ Decision: The Court: (1) Declares that the development consent granted by the second respondent on or about 25 July 2017 in respect of the Development Application 16/1341 for development at 52 Cyrus Street Hyams Beach ("Purported Consent for DA 16/1341") is invalid and of no effect. (2) Sets aside the Purported Consent for DA 16/1341. (3) Grants an injunction restraining the first respondent from undertaking any development in reliance upon the Purported Consent for DA 16/1341. (4) Lists the proceedings at 9:30am on 26 March 2018 for directions concerning the question of the costs of the proceedings. Catchwords: JUDICIAL REVIEW – development consent for dwelling in coastal zone – boathouse arm of development at risk of coastal inundation – condition of consent required maintenance of existing seawall – whether council the consent authority – whether council considered height controls applying to the boathouse arm – whether council considered effects of coastal inundation on the screen wall of the boathouse arm – failure to consider relevant matters established Legislation Cited: Coastal Protection Act 1979 ss 4(1), 37, 55M Environmental Planning and Assessment Act 1979 ss 4, 76A(1)(b), 79C(1)(a), 80A(1)(f) Shoalhaven Development Control Plan 2014 Ch G6, G12 Shoalhaven Local Environmental Plan 2014 cl 5.5 State Environmental Planning Policy (Infrastructure) 2007 cl 129A State Environmental Planning Policy No 71 – Coastal Protection cll 7, 8 Cases Cited: Parramatta City Council v Pestell (1972) 128 CLR 305 SZEPZ v Minister for Immigration and Multicultural Affairs (2006) 159 FCR 291; [2006] FCAFC 107 Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Category: Principal judgment Parties: Colleen Anne Platford (Applicant) Theodorus van Veenendaal (Frist Respondent) Shoalhaven City Council (Second Respondent) Representation: Counsel: Noel Hutley SC and Stephen Free (Applicant) The First and Second Respondents filed submitting appearances. Solicitors: Gilbert + Tobin Lawyers (Applicant) Steele Law (First Respondent) BAL Lawyers (Second Respondent) File Number(s): 2017/254528 Publication restriction: Nil Judgment 1. Hyams Beach, near Jervis Bay, is scenically stunning, with its white sands and turquoise waters. Two residential properties, on the southern end of the beach, enjoy scenic views. 2. The more southerly property, at 54 Cyrus Street, owned by the applicant, Ms Platford, was redeveloped first. The two storey house, running west to east along a considerable portion of the property, has extensive views to the east to the sea and to the north over the adjoining property along the beach. 3. The owner of the more northerly property at 52 Cyrus Street, the first respondent, Mr van Veenendaal, now wishes to redevelop the property. Mr van Veenendaal lodged a development application (DA 16/1341) with Shoalhaven City Council (the Council) to demolish the existing two storey dwelling and erect a new two storey dwelling on the western portion of the property. The application also seeks approval for what is described by the applicant as the "boathouse arm". This is a non-habitable, ancillary building extending along the side boundary with No 54 Cyrus Street, from the new dwelling to 7.5m from the eastern boundary. (The eastern boundary is now in the sands of the beach). The boathouse arm includes a boathouse room and a solid concrete screen wall linking the boathouse to the main dwelling. The screen wall varies in height from 3.7m to 4.12m and is set back 900mm from the side boundary with 54 Cyrus Street. The screen wall is of coloured concrete construction. A concrete roof projects northwards from the top of the screen wall, covering the pathway between the main dwelling and the boathouse. 4. Ms Platford objected to the proposed development, particularly the boathouse arm. The boathouse and the screen wall would block her "iconic" views to Hyams Beach, particularly from the ground floor of her house and overshadow her house. The boathouse arm would also be exposed to coastal hazards and interfere with wave runup flows. 5. The Council met on 17 July 2017 and determined to grant consent to the application subject to conditions. Three conditions are of relevance. Condition 6 required the applicant, prior to the issue of the construction certificate, to submit amended building plans that would mitigate the effects of wave runup, including raising the level of the floor of the boathouse, changing the floor's construction to be timber slats rather than concrete, founding the entire development on piled footings, and placing no filling or retaining walls in the wave run up area. Condition 36 reiterated that no filling or retaining walls must be constructed in the wave runup area. Condition 43 required the existing sea wall within the property to be maintained such that it continues to provide protection to the south eastern half of the property. 6. Ms Platford has brought judicial review proceedings challenging the validity of the development consent on nine grounds. Mr van Veenendaal and the Council have filed submitting appearances. They submit to the making of all orders sought and the giving or entry of judgment in respect of all claims made, save as to costs. In such circumstances, it remains necessary for the applicant, Ms Platford, to satisfy the Court that the consent is invalid: SZEPZ v Minister for Immigration and Multicultural Affairs (2006) 159 FCR 291; [2006] FCAFC 107 at [4]. 7. Ms Platford's grounds concern three topics: the correct consent authority to determine the development application, the height of the screen wall of the boathouse arm and the effect of the screen wall on wave runup flows. The correct consent authority 1. The first ground of challenge (ground 1) is that the Council was not the relevant consent authority to determine the development application and hence the Council's determination to grant consent to the application was outside power. This ground depends on the development consent being construed as granting consent for development for the purposes of a sea wall. 2. The Council had carried out "interim works" in 2013 of constructing a rock revetment or sea wall to protect the public sewer that runs through the property. The existing sea wall, if maintained, will protect the south eastern half of the property from wave action and erosion. The protection afforded by the sea wall enabled the proposed boathouse to be located closer to the beach than would otherwise have been allowed. However, the existing wall must be maintained in order to continue to provide this protection to the boathouse from wave action and erosion. Accordingly, the Council, in granting consent to the development including the boathouse, imposed condition 43 that the existing sea wall be maintained such that it continues to provide protection to the south eastern half of the property. 3. Ms Platford contends that the Council had no power to grant consent to development for the purposes of a sea wall, only the Coastal Panel had that power. Clause 129A(1) of the State Environmental Planning Policy (Infrastructure) 2007 ('Infrastructure SEPP') provides that development for the purposes of a sea wall may be carried out by a person with consent on the open coast. Hyams Beach is part of the open coast. The consent authority to determine a development application seeking consent for development for the purposes of a sea wall depends on whether or not a coastal zone management plan applies to the land. For Hyams Beach, a coastal zone management plan had not been adopted at the time that the Council determined the development application. In this circumstance, cl 129A(2) provides that the Coastal Panel is the consent authority with the function of determining a development application for development for the purposes of a sea wall. 4. Ms Platford contends that the Council, by imposing condition 43, extended the development approved by the consent to include a form of development for the purposes of a sea wall. The maintenance of the sea wall required by condition 43 involves the carrying out of a work (the work required to maintain the sea wall) and a change of the purpose for which the sea wall is to be used (from a temporary measure to protect the sewerage pipe to a permanent measure to protect the boathouse), both of which are "development" (within the definition of "development" in s 4 of the Environmental Planning and Assessment Act 1979 ('EPA Act') and s 37 of the Coastal Protection Act 1979) and for the purposes of a sea wall. 5. By operation of cl 129A(2) of the Infrastructure SEPP, however, only the Coastal Panel and not the Council had the function of granting consent to development for the purposes of a sea wall. Hence, Ms Platford contends, the grant of consent was outside power. 6. I do not accept this contention. On its proper construction, the development application made by Mr van Veenendaal did not seek consent for development for the purposes of a sea wall. The development for which consent was sought was for the demolition of the existing dwelling and the erection and use of the new dwelling, including the building and structures of the boathouse arm. The development application did not seek consent for development (in any of the ways defined) for the purposes of a sea wall. It is true that part of the development for which consent was sought (in the boathouse arm) depended on the continued existence and proper functioning of the sea wall. The Coastal Hazards Risk Assessment Report (6 June 2016) submitted as part of the development application noted that "the 2013 sewer protection works would need to be maintained and that this revetment would provide a level of protection to the boatshed". However, the development application did not seek consent to maintain the revetment. In these circumstances, the Coastal Panel was not the consent authority. 7. A "consent authority" is defined to be, in relation to a development application, the relevant public authority having the function of determining the development application (see definition of "consent authority" in s 4 of the EPA Act). The Coastal Panel can have the function of determining a development application for development for the purposes of a sea wall (see cl 129A(2) of the Infrastructure SEPP). But it can only have this function if and when a development application is made seeking consent to carry out development for the purposes of a sea wall. The development application in this case did not seek consent for development for the purposes of a sea wall and hence the Coastal Panel was not the consent authority having the function of determining this development application. 8. The fact that the Council imposed condition 43 requiring maintenance of the sea wall does not change this conclusion for two reasons. First, the identification of the consent authority operates by reference to the development application made and the development for which consent is sought in that development application, so as to be able to identify the public authority with the function of determining the development application. The identification of the consent authority cannot operate retrospectively by reference to the determination to grant consent to the development application (including the conditions of the consent). 9. Secondly, the imposition of condition 43 in the grant of consent to the development application did not extend the approved development to include development for the purposes of a sea wall. The approved development remained that sought in the development application of the demolition of the existing dwelling and the erection and use of the new dwelling. The power to impose condition 43 lay in s 80A(1)(f) of the EPA Act, which empowers a consent authority to impose a condition of development consent if: "it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 79C(1) applicable to the development the subject of the consent". 1. The maintenance of the existing sea wall could include the carrying out of works on the land. The Council had power under s 80A(1)(f) to require the carrying out of such maintenance works. The imposition of a condition requiring the carrying out of works does not involve the grant of consent to the carrying out of the works, notwithstanding that the carrying out of works is development as defined. This is because the grant of development consent entitles the holder of the consent to carry out the development approved by the consent but does not require the carrying out of that development. A condition requiring the carrying out of works is different; the works must be carried out if the holder of the consent elects to carry out the development approved by the consent. The development must be carried out in accordance with the consent (see s 76A(1)(b)) and this includes any conditions of the consent. The development for which consent has been granted, however, remains that which was sought in the development application. It does not extend to the carrying out of any works required by a condition of the consent imposed under s 80A(1)(f) of the EPA Act. 2. I reject ground 1. The height of the screen wall 1. Two grounds of challenge (grounds 2 and 3) concern the Council's consideration of the height of the screen wall in the boathouse arm. The screen wall, which links the main dwelling to the boathouse, varies in height from 3.71m to 4.12m. Shoalhaven Development Control Plan 2014 ('Shoalhaven DCP') contains controls regulating the height of various buildings and structures in residential zones. For dwelling houses in the applicable R2 Low Density Residential Zone, Chapter G12 contains controls for fencing (s 5.3.3), freestanding privacy screens (s 5.3.5) and ancillary structures (s 5.3.8). 2. Ground 2 contends that the Council failed to take into consideration these height controls in determining to grant consent to the development application. The first two controls can be quickly dismissed as not applicable. The screen wall is set back 900mm from the side boundary. The fencing controls in s 5.3.3 concern fences or walls on boundaries. The screen wall also extends from the main dwelling to the boathouse. The controls for freestanding privacy screens in s 5.3.5 concern screens that are freestanding. By reason of its connection to both the main dwelling and the boathouse the screen wall in this case is not freestanding. The Report to the Council meeting on 17 July 2017 concluded that these controls in s 5.3.3 (fencing) and s 5.3.5 (freestanding privacy screens) were not applicable. Ms Platford has not demonstrated that the Council was in error in so concluding. 3. The controls in s 5.3.8 concerning ancillary structures may, however, be applicable. The note to s 5.3.8 describes "Ancillary structures" to include: "carports, garages, sheds, freestanding pergola, swimming pools, tennis courts and the like. Although the principal dwelling is usually the main building, a number of the ancillary structures may be built to provide additional facilities or features for use by the residents." 1. The specific objectives of the controls for ancillary structures include to "minimise the impacts of ancillary structures upon the surrounding properties." The controls specified are of two types: Performance Criteria and Acceptable Solutions. The Performance Criteria identifies how a development should perform so that the desired objectives can be achieved. Acceptable Solutions indicate how the development can achieve the desired performance and objectives. 2. One of the performance criteria (P22.1) for ancillary structures is that "the design of a carport, garage or other residential related freestanding structure complements the dwelling design and has minimal impact on the amenity and solar access of adjoining properties." For Performance Criterion P22.1, the Acceptable Solution, in certain residential zones, including the R2 Zone, is stated in A22.1 to be "The floor area of a garage does not exceed 110m2 and the height of the walls do not exceed 3.0m". 3. The Council Officer, in the Shoalhaven DCP Chapter G12 Checklist attached to the Report to the Council meeting on 17 July 2017, found that the screen wall was "non-compliant" with the Acceptable Solution A22.1 because "the proposed boathouse arm exceeds 3m for most of its length." The Checklist noted that: "The non-compliance is with the Acceptable Solution and so the proposal has been assessed against the Performance Criteria P22.1-P24." The Checklist found that Performance Criteria P22.2 (relating to garages) and P24 (relating to swimming pools and tennis courts) were not relevant. Performance Criterion P23 was achieved as the buildings in the boathouse arm are "clearly neither equipped nor intended for residential occupation separate to the main dwelling." 4. This left Performance Criterion P22.1 (quoted earlier). The Checklist stated: "The impact of the boathouse arm on amenity and solar access of adjoining properties has been addressed in detail in the Section 79C Planning Assessment Report and is considered to be acceptable." In terms, this statement does not find that the ancillary structure of the boathouse arm, including the screen wall, "has minimal impact on the amenity and solar access of adjoining properties", as required by Performance Criterion P22.1. However, the statement refers to and incorporates the findings in the Section 79C Planning Assessment Report on the impact of the boathouse arm on adjoining properties. In this section of the Planning Assessment Report, there are findings that the boathouse arm has minimal impact on the amenity and solar access of the adjoining property of 54 Cyrus Street. 5. The Section 79C Planning Assessment Report assessed the impact on views from 54 Cyrus Street applying the four step methodology established by the Court in the planning principle in Tenacity Consulting v Warringah Council [2004] NSWLEC 140, namely assessment of the value of the views to be affected, consideration from what part of the property the views are obtained, assessment of the extent of the impact, and assessment of the reasonableness of the proposal that is causing the impact. In the third step, the extent of the impact, the Report stated: "The views available to the property need first to be identified. Currently the property has unimpeded views from the north north west to slightly south of east. The views captured by the property are significantly obtained across the side boundary between 52 and 54. The view loss to the living areas on the upper floor will suffer negligible impact. There is a greater loss to the upper floor bedrooms however this is balanced by the fact that they are not living rooms. The overall impact to views from the upper level is assessed as minor. The views affected on the lower level are more significant, with most views across the side boundary lost. The impact to views from the lower level is assessed as severe. Weighing up the views from the whole property, the overall view impact is assessed as minor. This is influenced by: • the high quality of the views which remain unaffected; • the fact that the views lost are across a side boundary; • the views from living areas and the principal open space area are virtually unaffected." 1. The Section 79C Planning Assessment Report assessed the overshadowing caused by the boathouse arm: "Shadow diagrams provided by the applicant with the amended plans show that on the lower floor there will be some additional loss of sun (compared with the pre-development state) in the afternoon to the ground floor bedrooms, bathroom and outdoor paved area. However, the shadow diagrams indicate that the lower level rooms do not lose any sunlight due to the new development until well after 12pm and the outdoor terrace also retains substantial sunlight between 9am and 3pm. There remains ample access for light and air to the lower level. It is useful to note that these areas would be more significantly affected if a building utilising the full available building envelope were to be constructed on the site. The amended plans indicate that the raised ground level shown in the first issue of plans has been removed." 1. In summary, the Report to the Council meeting concluded that, although the boathouse arm did not comply with Acceptable Solution A22.1, in that the wall exceeded 3m, it did achieve the Performance Criteria, including P22.1, for ancillary structures. 2. Ground 3 challenges the reasonableness of this conclusion. Ground 3 contends that "if Council concluded that the boathouse arm/concrete structure was compliant with the Shoalhaven DCP, that conclusion was unreasonable" and alternatively, "if Council concluded that the boathouse arm/concrete structure was non-compliant with the Shoalhaven DCP but it was nevertheless appropriate to approve the Development Application, that conclusion was unreasonable". 3. I reject ground 3. Ms Platford has not established that the finding that the ancillary structure of the boathouse arm, including the screen wall, achieved the Performance Criteria, including P22.1, was manifestly unreasonable. The ground of judicial review of manifest unreasonableness sets a high bar for a challenger. It is not enough that the Council's finding or inferences of fact and any decision based on those findings or inferences could be unsound. The validity of the decision is not dependent upon the soundness of the Council's findings or inferences: see, for example, Parramatta City Council v Pestell (1972) 128 CLR 305 at 323. 4. Here, the Report to the Council meeting assessed the impacts of the boathouse arm, including the screen wall with its height exceeding 3m, on the view from and the overshadowing of the adjoining property of 54 Cyrus Street and found those impacts to be minimal. Those findings were reasonably open on the material before the Council. 5. Ground 2 raises a different argument. This ground relies upon the apparent difference between what was said in the Checklist (that the ancillary structure of the boathouse arm was "non-compliant" with the controls in s 5.3.8) and what was said orally by the Council Officer at the meeting on 17 July 2017 (that the boathouse arm is "compliant"). Ground 2 contends that the boathouse arm is not compliant with the controls for ancillary structures in s 5.3.8 but the Council, as the collegiate body, proceeded to consider and determine the development application on the basis that the boathouse arm was compliant with these controls. As a consequence, the Council failed to take into consideration these controls. 6. Ms Platford relied upon the following statements at the Council meeting on 17 July 2017. The first was the question asked by Councillor Alldrick and the answer given by the Council Officer: "Councillor Alldrick: There was mention in the second deputation, that it was said that the wall is non-compliant. Um, the wall is compliant? Council Officer: The wall at the boathouse, the boathouse arm wall is compliant in terms of the heights and distance from boundary and things like that. I think there was some suggestion that the rock wall protecting the sewer wasn't compliant. Councillor Alldrick: OK. Council Officer: but we have even had Advisian do their review of the coastal hazard issues, they actually look closely at that wall and gave advice that it was satisfactory and would withstand the expected storm." 1. The second was the question asked by Councillor Wells and the answer given by the Council Officer: "Councillor Wells: Staff, during her presentation Miss Platford mentioned that the standard boundary fence was 1.8 meters high, I think she asserted that for a screening fence 2.4 meters was the limit. Where does 3.6 sit in terms of development controls and… Council Officer: Through Madam Chair, the numbers that we have been quoted were acceptable solutions in the DCP document. They are one way of meeting the requirement but the DCP is structured with performance criteria and this wall is part of a total structure and really doesn't fit the definition of either a boundary fence or just a screen. So it has been assessed on the merits of the proposal in accordance with the performance criteria and is acceptable. Councillor Wells: Was there a discussion had with the applicant at any time that the wall height be reduced, so that the boat shed arm looks more like a tooth brush than just a solid brick wall? Council Officer: Yes the issue of the height of the wall was raised with the applicant and did end up in a reduction in the height of the wall, but that is the only change they have agreed to carry out to the design. Councillor Wells: The height of that wall is below the floor level of the upper storey of 54? Council Officer: By just a bit over a meter. Councillor Wells: Thank you." 1. The third was the statement by Councillor Proudfoot that "we're informed that the boathouse certainly does comply". 2. The fourth is the statement by Councillor Pakes that: "I can't not support it because all the processes have been followed, everything complies…" 3. The fifth is the statement by Councillor Proudfoot that: "I mean it complies, it fits, it sits with our DCP…" 4. Ms Platford contended that these statements that the boathouse arm complies with Shoalhaven DCP were incorrect. The height of the screen wall exceeded 3m, which was the maximum height given in the Acceptable Solution A22.1 for walls of ancillary structures. 5. I reject this ground. It is based on an incorrect understanding of the controls for ancillary structures in s 5.3.8 of Shoalhaven DCP. The controls specify the Performance Criteria that must be met for ancillary structures. The Acceptable Solutions are ways in which those Performance Criteria can be met. In a sense, by meeting an Acceptable Solution, the ancillary structure is deemed to comply with the Performance Criteria. But the converse does not apply: not meeting the Acceptable Solution does not necessarily mean that the ancillary structure cannot comply with the Performance Criteria. 6. In this case, the Council Officer assessed that, although the ancillary structure of the boathouse arm, including the screen wall, did not meet the Acceptable Solution A22.1 (because the wall exceeded 3m in height), it nevertheless achieved the Performance Criteria, including P22.1. In this way, the ancillary structure could be described as being "compliant" with the controls for ancillary structures in s 5.3.8 of Shoalhaven DCP. This is what the Council Officer said in the Council Officer's Report and, on a fair reading, what the Council Officer said orally at the meeting (particularly the second statement quoted where the officer explained that the structure had been assessed in accordance with the Performance Criteria). 7. In these circumstances, the Council as a collegiate body was not misled about the compliance of the boathouse arm with the controls in Shoalhaven DCP. 8. I reject ground 2. The effect of the screen wall on coastal inundation 1. The remaining five grounds (grounds 4-9) concern the effect of the screen wall on coastal inundation, particularly wave runup flows. 2. The boathouse arm includes the boathouse room and the screen wall connecting the main dwelling to the boathouse. The boathouse arm is deliberately located in the south eastern half of the property so as to be protected from coastal erosion by the seawall that protects the public sewer running near the eastern boundary of the property. The coastal engineer engaged by the Council to assess the coastal risks of the proposed development, Mr Adamantidis of Advisian, concluded: "As the existing revetment has been assessed to provide adequate protection against storm erosion for the southern half of the property, the immediate erosion hazard is assessed to extend only as far landward as the seawall for the southern half of the property, as mapped in Figure 17. Due to the presence of the protective seawall, the proposed boathouse is located landward of the 2025 Zone of Reduced Foundation Capacity landward limit and is therefore not considered to be Precinct 1 according to Council's DCP, and would therefore be allowable." 1. Whilst the boathouse arm was assessed not to be at risk from wave erosion, it still would be exposed to coastal inundation by wave runup. Wave runup relates to the rush of water up the beach on the breaking of a wave. The amount of runup is the vertical height above still water level to which the rush of water reaches. Wave runup is site specific. Advisian assessed the present day maximum wave runup level for a 100 year ARI storm event at the property to be 4.4m AHD at the location of the boathouse. Sea level rise would be expected to increase this value by approximately the quantum of the sea level rise, ie. 0.35m by 2100. 2. The plans lodged with the development application showed the boathouse to have a concrete floor with a finished floor level of RL 4.05. A wave runup level of 4.4m AHD would therefore be approximately 0.35m above the finished floor level. As a consequence, Advisian recommended that: "The boathouse would need to be constructed with a floor level above the wave inundation level plus suitable freeboard to allow for future sea level rise, to enable it to comply with the provision of Council's DCP, Chapter G6, Section 4, which requires that, for structures constructed in the coastal frontage zones, 'future developments in the coastal zone consider the risks associated with local coastal hazards such as coastal erosion, shoreline recession, coastal inundation, coastal entrance migration, slope instability and stormwater erosion and their potential increase with projected Sea Level Rise.' As the boathouse may be subject to future wave inundation with sea level rise, it is recommended that the floor of the boathouse be constructed of timber slats to reduce wave uplift pressures." 1. Advisian noted that: "The wave runup assessment was valid for the existing ground elevations. If ground levels were to be modified (eg. by introducing fill), that would increase the level of wave runup – for this reason, the area under the boathouse must not be filled." 1. Advisian also recommended that "all electrical wiring, fuel lines or other service pipes and connections are located above the wave runup level plus a freeboard of 0.5m" and that "[t]he boathouse should still be constructed on piled foundations bedded into the underlying rock…" 2. The Council Officer's Report and the Council by its determination adopted these findings and recommendations of Advisian through the imposition of condition 6 requiring the submission of amended building plans for the boathouse. Condition 6 provides: "6. Prior to the issue of the Construction Certificate, the applicant must submit to the PCA amended building plans that address the following: a. The boathouse floor being constructed to a height of RL 4.75m AHD and in accordance with the requirements of the Advisian report dated 6 June 2017 (report No. 30105-03779-001) vis: (i) the floor of the boathouse is to be constructed of timber slats to reduce wave uplift pressures; (ii) access to the boathouse is to be from the landward side or via a timber ramp oriented south-north so that it does not interfere with wave runup flows; (iii) The boathouse is to be landscaped to suitably screen the sub-floor area and the area between the boathouse arm and the dividing fence be landscaped with appropriate vegetation of a height that must not exceed that of the boathouse arm; b. The boathouse overall height is to be RL 7.76m AHD; c. All electrical, wiring, fuel lines or any other service pipes and connections to the boathouse arm must be located at least 500mm above the wave runup level; d. The entire development must be founded on pilled footings in accordance with the recommendations of the Report on Geotechnical Investigation by Douglas Partners Pty Ltd re no Project 89244.00 R.001. Rev2 dated 15 February 2017; e. No filling must be placed and no retaining walls must be constructed in the wave runup area." 1. Ms Platford contends that this assessment of coastal inundation risks was incomplete because it failed to assess the screen wall connecting the boathouse to the main dwelling. The screen wall was proposed to be a solid concrete structure from 3.71m to 4.2m in height. The plans show the level of the paving adjacent to the screen wall to be RL 4.05, the same as the finished floor level of the boathouse room. Advisian plotted (in Figure 17) the extent of present day wave runup to be around a third of the length of the screen wall (landward of the boathouse room) and the extent of wave runup allowing for sea level rise to 2050 to be around half of the length of the screen wall (landward of the boathouse room). 2. Ms Platford contends, however, that Advisian did not address the effect of wave runup on this part of the screen wall in the wave runup area or, conversely, the effect of this part of the screen wall on wave runup. Advisian only assessed the effects of wave runup on the boathouse room and the effect of the boathouse room on wave runup. 3. The explanation for this omission to consider the screen wall in the wave runup area might lie in the plans provided by the Council to Advisian. The Council provided, by attachment to an email on 5 June 2017, two plans, the Boat House & Garden Plan showing the finished floor level of the boathouse room and the level of the paving both to be RL 4.05, and an east-west section through the boathouse and the outdoor WC with a concrete roof extending from the main dwelling to the boathouse room. Neither plan explicitly shows a solid concrete screen wall connecting the boathouse to the main dwelling. In these circumstances, Ms Platford suggests, Advisian may not have appreciated that there was a solid concrete wall with a height of 3.71m to 4.12m from ground level (which was at one place RL 4.05, which was lower than the extent of wave runup (RL 4.4)). 4. Ms Platford contends that the Council was obliged under s 79C(1)(a)(i) and (iii) of the EPA Act and various legal instruments to consider the coastal inundation risks of and on the screen wall. 5. First, Chapter G6 of the Shoalhaven DCP contains objectives and controls to manage the risks associated with coastal processes. Key objectives include: "i. Ensure that future development in areas of coastal management considers the risks associated with coastal processes and is sympathetic to the physical constraints. ii. Consider local physical coastal processes and hazards to avoid significant adverse impacts from these processes… iv. Ensure that future developments in the coastal zone consider the risks associated with local coastal hazards such as coastal erosion, shoreline recession, coastal inundation, coastal entrance migration, slope instability and stormwater erosion and their potential increase with projected Sea Level Rise." 1. The controls vary depending on the level of risk for the area in which buildings are proposed. Because of the protection from beach erosion provided by the seawall, the south-eastern half of the property was assessed by Advisian to be landward of Precinct 1 High Risk and Precinct 2 Moderate Risk, and hence fell within Precinct 3 Low Risk. There are no particular controls applying to land within Precinct 3, but the development application still needs to be assessed on merit, taking into consideration the risks associated with coastal inundation by wave runup. 2. Ms Platford contends that the assessment required by Chapter G6 of Shoalhaven DCP included assessing the risks associated with coastal inundation by wave runup on the screen wall and the likely effect of the screen wall on wave runup flows. Ms Platford contends that the Council failed to take these matters into consideration (ground 4) or, if it did, its consideration was manifestly unreasonable (ground 5). 3. Second, cl 5.5 of Shoalhaven Local Environmental Plan 2014 ("Shoalhaven LEP") regulates development within the coastal zone. The "coastal zone" is defined to have the same meaning as in the Coastal Protection Act 1979. It was accepted by the Council that the properties at 52 and 54 Cyrus Street, Hyams Beach are in the coastal zone as defined. Clause 5.5(3)(d) of Shoalhaven LEP provides: "(d) the proposed development will not: (i) be significantly affected by coastal hazards, or (ii) have a significant impact on coastal hazards, or (iii) increase the risk of coastal hazards in relation to any other land." 1. "Coastal hazards" is defined to have the same meaning as in the Coastal Protection Act. That meaning includes "coastal inundation". 2. Ms Platford contends that the Council was obliged by cl 5.5(3)(d) to address and be satisfied that not only the boathouse room but also the screen wall within the wave runup area will not have the effects identified in cl 5.5(3)(d). Ms Platford contends that the Council failed to consider and form the required opinion of satisfaction about these matters (ground 6) or, if it did, its opinion of satisfaction was manifestly unreasonable (ground 7). 3. Third, cl 7 of State Environmental Planning Policy No 71 – Coastal Protection ("Coastal Protection SEPP") requires a consent authority, when it determines a development application to carry out development on land within the coastal zone, to take into account the matters for consideration in cl 8. One of the matters for consideration in cl 8 is "(j) the likely impact of coastal processes and coastal hazards on development and any likely impacts of development on the coastal processes and coastal hazards". "Coastal zone" has the same meaning as in the Coastal Protection Act. 4. Ms Platford contends that the Council failed to consider the likely impact of coastal inundation by wave runup on the screen wall in the wave runup area and any likely impacts of the screen wall on wave runup flows (ground 8). 5. Fourth, s 55M of the Coastal Protection Act provides that: "(1) Consent must not be granted under the Environmental Planning and Assessment Act 1979 to development for the purpose of coastal protection works, unless the consent authority is satisfied that: (a) the works will not over the life of the works: (i) unreasonably limit or be likely to unreasonably limit public access to or the use of a beach or headland, or (ii) pose or be likely to pose a threat to public safety, and (b) satisfactory arrangements have been made (by conditions imposed on the consent) for the following for the life of the works: (i) the restoration of a beach, or land adjacent to the beach, if any increased erosion of the beach or adjacent land is caused by the presence of the works, (ii) the maintenance of the works. (2) The arrangements referred to in subsection (1) (b) are to secure adequate funding for the carrying out of any such restoration and maintenance, including by either or both of the following: (a) by legally binding obligations (including by way of financial assurance or bond) of all or any of the following: (i) the owner or owners from time to time of the land protected by the works, (ii) if the coastal protection works are constructed by or on behalf of landowners or by landowners jointly with a council or public authority—the council or public authority, Note. Section 80A (6) of the Environmental Planning and Assessment Act 1979 provides that a development consent may be granted subject to a condition, or a consent authority may enter into an agreement with an applicant, that the applicant must provide security for the payment of the cost of making good any damage caused to any property of the consent authority as a consequence of the doing of anything to which the consent relates. (b) by payment to the relevant council of an annual charge for coastal protection services (within the meaning of the Local Government Act 1993). (3) The funding obligations referred to in subsection (2) (a) are to include the percentage share of the total funding of each landowner, council or public authority concerned." 1. "Coastal protection works" are defined to mean "activities or works to reduce the impact of coastal hazards on land adjacent to tidal waters and includes seawalls, revetments, groynes and beach nourishment." (s 4(1)). 2. Ms Platford contends that the Council, by granting consent subject to condition 43 that required the existing seawall to be maintained, granted consent to development for the purpose of coastal protection works. As a consequence, Ms Platford argues, the Council was required to have considered and formed the opinion of satisfaction about the matters in s 55M(1)(a) and (b) and there is nothing in the material before the Council, or in the recording of the Council meeting, to indicate that any consideration was given to these matters, let alone that the Council was satisfied of the matters (ground 9). 3. In these various ways, Ms Platford contends the Council failed to consider these relevant matters. 4. I find that the Council did fail to consider the relevant matters in Chapter G6 of the Shoalhaven DCP, cl 5.5(3)(d) of the Shoalhaven LEP and cl 8(j) of the Coastal Protection SEPP by failing to consider the likely effect of coastal inundation by wave runup on the screen wall in the wave runup area and the likely effect of the screen wall on wave runup flows. Advisian found that the other part of the boathouse arm in the wave runup area, the boathouse room, would be affected by and would itself affect wave runup and recommended various measures to mitigate these effects, including raising the floor level of the structure and prohibiting the placing of any fill or the construction of any retaining walls in the wave runup area. The construction of a solid concrete screen wall in the wave runup area is inconsistent with Advisian's assessment and recommendations. The inference should be drawn that Advisian did not address the likely effects of wave runup on the screen wall or the likely effects of the screen wall on wave runup. These were material effects falling within the scope of the relevant matters regarding coastal hazards in Chapter G6 of the Shoalhaven DCP, cl 5.5(3)(d) of the Shoalhaven LEP and cl 8(j) of the Coastal Protection SEPP that the Council was bound to consider in determining the development application. The Council failed to do so. The Council relied on and adopted the consideration by Advisian of the relevant matters regarding coastal hazards. There is nothing in Advisian's reports, or in any other material considered by the Council, that addressed the likely effects of wave runup on the screen wall or the likely effects of the screen wall on wave runup flows. Equally, there is no indication in the recording of the discussion at the Council's meeting on 17 July 2017 that these effects were addressed by the Council. 5. In these circumstances, I uphold grounds 4, 6 and 8 that the Council failed to consider the relevant matters under Chapter G6 of Shoalhaven DCP, cl 5.5(3)(d) of the Shoalhaven LEP and cl 8(j) of the Coastal Protection SEPP. 6. As the Council failed to consider these relevant matters, grounds 5 and 7, which contended that the Council's consideration of these matters was manifestly unreasonable, do not arise and for that reason, I reject them. 7. I do not uphold ground 9 for a different reason. Section 55M of the Coastal Protection Act requires the consent authority, before granting consent to development for the purpose of coastal protection works, to be satisfied of the matters in s 55M(1). In this case, as I have found earlier, the development application did not seek consent for development for the purpose of coastal protection works. The Council, which was the consent authority with the function of determining that development application, did not grant consent to development for the purpose of coastal protection works. It granted consent to the development sought in the development application of the demolition of the existing dwelling and the erection and use of the new dwelling. The imposition of a condition (condition 43) on the grant of consent to that development requiring the carrying out of works (the works of maintaining the existing seawall) did not involve the granting of consent to the carrying out of those works. 8. In these circumstances, s 55M did not operate to prevent the Council from granting consent to the development application unless it was satisfied of the matters in s 55M(1). Orders to be made 1. Ms Platford has established that the Council failed to consider relevant matters in determining to grant consent to the development application. These failures are material and invalidate the consent. Ms Platford seeks in the summons orders declaring the consent to be invalid and setting aside the consent and restraining Mr van Veenendaal from undertaking any development in reliance on the consent. The Council and Mr van Veenendaal submit to the making of these orders. 2. Ms Platford seeks an order that the respondents pay her costs of the proceedings. The respondents submitted to the orders of the Court, save as to costs. The respondents should therefore be given an opportunity to be heard as to why they should not be ordered to pay Ms Platford's costs, if they oppose such an order. The proceedings should be listed initially for a directions hearing to determine whether the respondents wish to oppose an order for costs in favour of Ms Platford and, if so, to set a date for the hearing on costs. 3. The Court: 1. Declares that the development consent granted by the second respondent on or about 25 July 2017 in respect of the Development Application 16/1341 for development at 52 Cyrus Street Hyams Beach ("Purported Consent for DA 16/1341") is invalid and of no effect. 2. Sets aside the Purported Consent for DA 16/1341. 3. Grants an injunction restraining the first respondent from undertaking any development in reliance upon the Purported Consent for DA 16/1341. 4. Lists the proceedings at 9:30am on 26 March 2018 for directions concerning the question of the costs of the proceedings. ********** 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: 09 March 2018