Fraser v Sutherland Shire Council

[2023] NSWLEC 1342

Land and Environment Court

New South Wales

Medium Neutral Citation:

Fraser v Sutherland Shire Council [2023] NSWLEC 1342

Hearing dates:

Conciliation conference on 20 June 2023

Date of orders:

06 July 2023

Decision date:

06 July 2023

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No 22/0951 for the relocation of the existing ramp and pontoon, removal of the existing concrete jetty, addition of a stub jetty and mooring pen, and alterations to existing seawall below the mean high watermark, at 6 Akira Place, Caringbah South (Lot 24 in DP 232669), is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2021, s 37

Fisheries Management Act 1994

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Resilience and Hazard) 2021, s 4.6

Sutherland Local Environmental Plan 2015, cll 5.7, 6.7, 6.8, 6.9

Category:

Principal judgment

Parties:

Troy Fraser (First Applicant)
Vivienne Fraser (Second Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
P Vergotis (Solicitor) (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
Piper Alderman (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2022/383639

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No 22/0951 for the relocation of the existing ramp and pontoon, removal of the existing concrete jetty, addition of a stub jetty and mooring pen, and alterations to existing seawall below the mean high watermark (the proposal), at 6 Akira Place, Caringbah South (the site), by Sutherland Shire Council (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 20 June 2023. I presided over the conciliation conference. 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.

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

4. There are preconditions to the exercise of power to grant development consent for the proposal.

Amended Plans

5. The Council, as the consent authority, consented to the amendment of the application, pursuant to s 37 of the Environmental Planning and Assessment Regulation 2021, to rely on the plans and documents listed under condition 1 of the conditions of consent at Annexure A.

Public submissions

6. Two resident objectors gave evidence onsite at the commencement of the conciliation conference. Their concerns can be summarised as:

• the location and layout of the proposal will adversely impact on the ability of neighbours to navigate and moor their vessels; and

• the proposal is too close to the northern boundary (conceptually extended into the bay) which will impact on the northern neighbour’s ability to navigate and moor their vessel.

7. I accept the Council’s submission and documentary evidence that the assessment by the Manager of Waterways, Operations Botany Bay/Port Hacking, that Transport for NSW has reviewed the proposal and raises no navigational objections regarding the structures impacting unreasonably on other waterways users.

Jurisdictional prerequisites

8. The site is zoned C4 Environmental Living and W2 Recreational Waterways under the Sutherland Shire Local Environmental Plan 2015 (LEP 2015). The objectives of the zones, to which regard must be had, are:

Zone C4   Environmental Living

1   Objectives of zone

• To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.

• To ensure that residential development does not have an adverse effect on those values.

• To allow for development that preserves and enhances the natural landscape setting of the locality.

• To protect and restore trees, bushland and scenic values particularly along ridgelines and in other areas of high visual significance.

• To ensure the character of the locality is not diminished by the cumulative impacts of development.

• To minimise the risk to life, property and the environment by restricting the type or level and intensity of development on land that is subject to natural or man-made hazards.

• To allow the subdivision of land only if the size of the resulting lots makes them capable of development that retains or restores natural features while allowing a sufficient area for development.

• To share views between new and existing development and also from public space.

Zone W2   Recreational Waterways

1   Objectives of zone

• To protect the ecological, scenic and recreation values of recreational waterways.

• To allow for water-based recreation and related uses.

• To provide for sustainable fishing industries and recreational fishing.

• To achieve a balance between public and private uses of the waterways and intertidal areas.

• To protect remnant natural features, aquatic habitat, public access and the navigability of waterways.

• To allow suitable mooring facilities having regard to the established character of an area, recreational uses, the functionality of the waterways and the cumulative impact of mooring facilities and other man-made structures in a waterway.

9. The proposed development, being water recreation structures and mooring pen are permissible uses within these zones with development consent.

10. Section 4.6(1) of the State Environmental Planning Policy (Resilience and Hazard) 2021 (SEPP Resilience & Hazards) precludes the granting of development consent unless the consent authority has considered whether the site is contaminated. The site has only been used for residential purposes and there is no change of use. Accordingly, consideration of a report specifying the findings of a preliminary investigation of the site is not required and the site is suitable for the proposed development.

11. Clause 5.7 of LEP 2015 requires development consent to carry out development on any land below the mean high-water mark of any body of water subject to tidal influence. I am satisfied by the evidence before me that the objectives and requirements of cl 5.7 have been considered and addressed.

12. Clause 6.7 of LEP 2015 requires various matters to be taken into consideration in determining whether to grant consent for land identified as ‘Environmentally Sensitive Land.’ The Addendum Report to the Marine Habitat Survey included in the application confirms that there will be no ecologic impact or dredging as the new sea wall will sit atop a natural intertidal rock ledge in the same position as the existing seawall. The letter from the Department of Primary Industries Fisheries dated 13 March 2023 confirms that the proposed development does not constitute dredging for the purposes of the Fisheries Management Act 1994. I am satisfied no adverse impact on the aquatic ecosystem will result from the application and that the various matters under cl 6.7 of LEP 2015 have been considered and addressed. Further, appropriate conditions have been added.

13. Clause 6.8 of LEP 2015 precludes the granting of development consent on land identified as ‘Environmentally Sensitive Land’ unless the consent authority is satisfied of various matters. The application includes a Marine Habitat Survey prepared by Waterfront Surveys Australia dated 20 January 2022 and an Addendum Report to this survey which addresses the relevant matters. I am satisfied that the relevant matters to be considered under cl 6.8 of LEP 2015 in respect of the environmentally sensitive land have been addressed and in particular the removal of the existing concrete jetty structure will enhance the scenic qualities of this waterfront.

14. Clause 6.9 of LEP 2015 limits development which may be carried out on foreshore area. Jetties are a permissible form of development along with water recreation structures, which includes a mooring pen. The clause provides various matters that must be considered before development consent can be granted regarding land in the foreshore area. The Statement of Environmental Effects prepared by Southern Waterfronts addresses the relevant matters and confirms that the application will not impact the foreshore area or natural foreshore processes. A letter from Transport of New South Wales dated 12 January 2022 confirms that the proposed structures do not interfere with any water moorings. I am satisfied that the matters under cl 6.9(3) of LEP 2015 in respect of the appearance, protection, maintenance and amenity of the foreshore area have been considered and addressed.

Conclusion

15. I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 20 June 2023 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

16. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No 22/0951 for the relocation of the existing ramp and pontoon, removal of the existing concrete jetty, addition of a stub jetty and mooring pen, and alterations to existing seawall below the mean high watermark, at 6 Akira Place, Caringbah South (Lot 24 in DP 232669), is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Susan O’Neill

Commissioner of the Court

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Annexure A

Decision last updated: 06 July 2023