Eskaroos v Sutherland Shire Council

[2025] NSWLEC 1086

Land and Environment Court

New South Wales

Medium Neutral Citation:

Eskaroos v Sutherland Shire Council [2025] NSWLEC 1086

Hearing dates:

Conciliation Conference 30 January 2025

Date of orders:

18 February 2025

Decision date:

18 February 2025

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1)   The appeal is upheld.

(2)   Development Application No DA23/0568 for the construction of a jetty and sea stairs at 93-95 Kangaroo Point Road, Kangaroo Point is granted development consent subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – jetty and sea stairs – conciliation conference – agreement between the parties – orders

Legislation Cited:

Crown Land Management Act 2016

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 23

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 5.7, 6.6, 6.7, 6.8, 6.9, 6.21

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.11, 4.6

Sutherland Shire Local Environmental Plan 2015, cll 6.1, 6.4, 6.7, 6.9

Texts Cited:

Sutherland Shire Council Community Engagement Strategy

Category:

Principal judgment

Parties:

Samuel Eskaroos (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
R Coffey (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
Apex Planning and Environment Law (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2024/106241

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application DA23/0568 seeking consent for the construction of a jetty and sea stairs (Proposed Development) at 93-95 Kangaroo Point Road, Kangaroo Point legally described as Lot 8 in DP 9823 (the Site).

2. The Proposed Development proposes to extend the jetty beyond the mean high water mark, a distance of 49.9m, including the sea stairs. The sea stair component alone is sized 3m by 0.9m. The jetty is setback 3.7m to the prolongation of the northern side boundary, and 11m to the prolongation of the southern side boundary. The jetty is proposed to be 49.1m in length, 1.8m in width, and constructed using piers that are drilled into the sea bed. It is proposed to have an overall area of 87.94m² including the sea stairs.

3. A Town Planning Joint Expert Report (JER) prepared by Michael Vine for the Applicant and Clarissa Zurlo for the Respondent was filed on 18 December 2024. The experts agree that all contentions particularised in the Statement of Facts and Contentions filed by the Respondent on 15 April 2024 have been resolved. The parties also rely on the Supplementary Joint Expert Report – Town Planning, filed 28 January 2025 (Supplementary JER).

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 30 January 2025. I have presided over the conciliation conference.

5. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application, subject to conditions.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of Sutherland Shire Local Environmental Plan 2015 (SSLEP) and the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP). The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional note provided to the Court.

9. The Site has a primary frontage to Kangaroo Point Road and shares a rear boundary with Oyster Bay (the Georges River).

10. The Development Application, as amended, seeks consent to construct a jetty and sea stairs with two structural piles. The proposed jetty is to be a maximum of 30m in length from the mean high water mark, and have a maximum width of 1.25m. The building work of the Proposed Development is to be carried out on Crown Land below the mean high water mark of the Site.

11. In satisfaction of the terms of cl 5.7 of the SSLEP, consent is sought to carry out development on land below the mean high water mark of a body of water subject to tidal influence (including the bed of any such water) and the Applicant relies on an environmental assessment, namely the Marine Habitat Report prepared by Harbour Port East Coast Pty Ltd dated October 2022 filed with the Class 1 Application at Tab 6.

12. The landward part of the Site is within Zone C3 Environmental Management and the seaward part of the Site is within Zone W1 – Natural Waterways (W1 zone) pursuant to the SSLEP. Development for the purpose of a water recreation structure is permitted with consent in the W1 zone. A water recreation structure is defined as:

“a structure used primarily for recreational purposes that has a direct structural connection between the shore and the waterway, and may include a pier, wharf, jetty or boat launching ramp”.

13. Pursuant to s 23 of the Environmental Planning and Assessment Regulation 2021, the Development Application has been made by the owner of the Site (the Applicant in the proceedings) with the consent of the Delegate of the Minister administering the Crown Land Management Act2016 Department of Planning and Environment – Crown Lands and Public Spaces by letter dated 26 June 2023, as the nominal owner of the Crown Land below mean high water mark. A copy of owners consent is filed with the Class 1 Application at Tab 3.

14. The Development Application was notified to surrounding property owners for 14 days to 10 October 2023. One written submission was received by the Council and copy of which was filed with the List of Objectors on 26 August 2024.

15. The Applicant filed amended plans with the Court on 30 January 2025 consistent with the JER. The amendments comprise a reduction in the length and width of the jetty and the reduction from four to two structural piles and moving the northern boundary setback location of the jetty from 3.7m to 4.9m. The parties agree that these amendments are of a minor nature.

16. Although, the amended plans were not required to be re-notified pursuant to the provisions of the Council’s adopted Community Engagement Strategy, a copy of the amended plans were provided to the original submitter by the Respondent together with advice that the parties were proposing to enter into an agreement pursuant to s 34 of the LEC Act.

17. I am satisfied that consideration has been given as to whether the Site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. The parties explain, and I accept that as the Site has a history of use only for residential purposes, it is very unlikely to be contaminated.

18. As the Crown Land is specified to be Class 1 land on the Acid Sulfate Soils Maps of the SSLEP, consent is required for the carrying out of any works pursuant to cl 6.1 of the SSLEP. However, given the nature of the proposed works, which do not involve disturbance of soil greater than one tonne, or will not lower the water table, an Acid Sulfate Soil management plan is not required. The Applicant relies on the letter from Craig Turner of Harbour City Planning Pty Ltd dated 29 January 2025 filed on 30 January 2025. In any event, condition 11.1 is to be imposed to appropriately avoid adverse impacts throughout the construction period.

19. The Site is within the Georges River Catchment which is a regulated catchment pursuant to the Biodiversity and Conservation SEPP. In relation to stormwater management, the objective of cl 6.4 of the SSLEP is to minimise the impacts of urban stormwater on receiving waters. Clause 6.4(3) of the SSLEP provides as follows:

(3) Development consent must not be granted to development on land to which this Plan applies unless the consent authority is satisfied that the development—

(a)  is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and

(b)  includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and

(c)  avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact.

20. Similarly, s 6.21 of the Biodiversity and Conservation SEPP provides:

6.21   Stormwater management

(1)  This section applies to development for the purposes of works, including water recycling facilities, water reticulation systems and water storage facilities, that are designed to collect, channel, store, treat or disperse stormwater runoff.

(2)  Development to which this section applies may be carried out on land in a regulated catchment—

(a)  by or on behalf of a public authority—without development consent, or

(b)  otherwise—with development consent.

(3)  Despite subsection (2), development to which this section applies is prohibited on land in a regulated catchment if the works will cause untreated stormwater to be disposed of into a natural waterbody.

(4)  In this section—

untreated stormwater means stormwater that has not been subjected to measures designed to reduce litter, suspended soils, nutrients or other substances that contribute to a decline in water quality.

21. For the reasons set out in the Supplementary JER at par 13 I am satisfied that the design and materials for the construction of the proposed development will not impact stormwater management.

22. The Supplementary JER also provides as assessment of the relevant provisions of the Biodiversity and Conservation SEPP at par 13 which I adopt as reasons for satisfaction of the jurisdictional prerequisites and I summarise below as follows:

1. Due to the location and nature of the proposed works, there will be neutral impacts on the quality of water entering the Georges River because the jetty will be constructed of timer piles and will allow water to flow freely under the structure. Further, the character of the waterway is an intertidal mud flat, thus water flow will not be adversely impacted given the use of a suspended structure on timber piles: s 6.6(2);

2. Regarding aquatic ecology, no excavation in the water table is proposed, there will be no unacceptable or cumulative environmental impact because of the design or construction and there will no impacts on the quality of ground water. The Site is not identified as being sensitive habitat for terrestrial or aquatic animals, nor vegetation, there will be no clearing of riparian vegetation and the Site is not located in coastal wetlands. The Proposed Development will not involve or cause coastal erosion or additional sedimentation into the Georges River. The design of the Proposed Development does not require additional measures to protect the surrounding location or waterbody: s 6.7;

3. The structure is suspended on poles and will not obstruct the natural recession of floodwaters: s 6.8;

4. The Proposed Development will permit private recreational access to an area otherwise inaccessible and there will be no impact on any existing public access arrangements; s 6.9;

23. The Proposed Development will take place on environmentally sensitive land being a watercourse and the terms of cl 6.7 of the SSLEP seek to protect and maintain the water quality within watercourses, the stability of the bed and banks of watercourses, aquatic and riparian habitats and ecological processes within watercourses and riparian areas. The Court is satisfied that the development is designed, sited and will be managed to avoid any significant adverse environmental impacts as required by cl 6.7(4) of the SSLEP for the reasons set out in the following:

1. Marine Habitat Report prepared by Harbour Port East Coast Pty Ltd dated October 2022;

2. Letter from DPI Fisheries dated 17 October 2022 confirming no objection to the Proposed Development provided a number of safeguards are used; and

3. Conditions of consent include the safeguards sought by DPI Fisheries.

24. For the reasons set out by the experts in the JER and Supplementary JER, together with the documents relied on by the Applicant, including the Marine Habitat report, I am satisfied as required by the terms of cl 6.9(3) of the SLEP regarding limited development on foreshore areas.

25. The Site is mapped as part of the “coastal use area” as per the Resilience and Hazards SEPP. The Supplementary JER addresses the terms of s 2.11 of the Resilience and Hazards SEPP and I am satisfied that the Proposed Development is designed, sited and will be managed to avoid an adverse impact.

26. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I adopt the reasons given by the parties and experts as set out in this judgment.

27. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Notations

28. The Court notes that the Respondent has approved, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, the amendment of Development Application No DA23/0568 in accordance with the following plans:

Architectural plans prepared by Harbour Planning
Drawing Number	Drawing Name	Date
DWG – 01	Locality Plan	December 2024
DWG – 02	Site Plan	December 2024
DWG – 03	Elevations	December 2024
DWG – 04	Detail Plan (Above)	December 2024
DWG – 05	Detail Plan (Below)	December 2024
DWG – 06	Specification Plan	December 2024
DWG – 07	Licence Diagram	December 2024
Acid Sulfate Soils Statement prepared by Harbour Planning Pty Ltd		29 January 2025

Orders

29. The Court orders:

1. The appeal is upheld.

2. Development Application No DA23/0568 for the construction of a jetty and sea stairs at 93-95 Kangaroo Point Road, Kangaroo Point is granted development consent subject to the conditions in Annexure A.

E Espinosa

Commissioner of the Court

**********

Annexure A

Decision last updated: 18 February 2025