Geelan v Sutherland Shire Council - [2011] NSWLEC 1375

Land and Environment Court

New South Wales

Medium Neutral Citation: Geelan v Sutherland Shire Council [2011] NSWLEC 1375
Hearing dates: 1 September 2011, Interim findings 25 October 2011, mention 11 November 2011, 14 November 2011
Decision date: 14 November 2011
Jurisdiction: Class 1
Before: Brown ASC
Decision:
1. The appeal is upheld.
2. The application for alterations and additions to an existing dwelling house at 8 Shell Road, Burraneer is approved subject to the conditions in Annexure A.
3. The exhibits are returned with the exception of exhibits 1 and K.
4. The SEPP 1 objection to the landscaped area development standard in cl 36 of Sutherland Local Environmental Plan 2006 is well founded.

Catchwords: DEVELOPMENT APPLICATION: alterations and additions to an existing dwelling - breach of foreshore building line - location of "existing dwelling on the land" - whether some proposed works permissible - if permissible, whether works acceptable on merit assessment
Legislation Cited: Environmental Planning and Assessment Act 1979
Sutherland Shire Local Environmental Plan 2006
Cases Cited: Cooper Brookes (Wollongong) v Federal Commissioner of Taxation (1981) 147 CLR 297
Edgar Allen Planning Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 790
Lennard v Jessica Estates (2008) 71 NSWLR 306
Project Blue Sky v Australian Broadcasting Authority (1998) 66 NSWLR 379
Wilson v State Rail Authority [2010] NSWCA 198
Wollongong City Council v Vic Vellar Nominees Pty Ltd [2010] 178 LGERA 445
Category: Principal judgment
Parties:
Luke Geelan (Applicant)
Sutherland Shire Council (Respondent)
Representation:
Counsel
Mr A Galasso SC (Applicant)

Mr T Robertson SC (Respondent)
Solicitors
Maddocks Lawyers (Applicant)
Sutherland Shire Council (Respondent)

File Number(s): 10081 of 2011

Judgment

ACTING SENIOR COMMISSIONER: This is an appeal against the refusal by Sutherland Shire Council (the council) for alterations and additions to an existing dwelling house located at 8 Shell Road, Burraneer (the site). The site is an internal allotment, with access from Shell Road. It has an L-shaped configuration with a total site area of 2112 sq m. The eastern boundary has a 27.97 m frontage to Gunnamatta Bay.

Background

On 9 July 2010, the council approved DA 10/0214 for "Alterations and Additions to Existing Dwelling, Swimming Pool and Cabana" (the 2010 approval) that included condition 7(b). Condition 7(b) states:

7. Design Changes Required

To reduce the environmental and/or/the logical impact of the development proposal, following the design changes shall be implemented

(a)

(b) No works the east of the existing dwelling (red line shown on the approved plans) approved in this application.

Should the applicant wish to undertake any works the east of the existing dwelling on site, a Section 96 amendment shall be submitted to Council in accordance with the Environmental Planning and Assessment Act 1979 to amend this condition.

On 24 August 2010, the council received Development Application No10/0807 for "Alterations and Additions to Existing Dwelling and Spa ". This was largely in response to condition 7(b) of DA 10/0214. This development application was refused on 24 November 2010 and is the basis for this appeal.

The proposed buildings or works to the east of the dwelling currently under construction (or the red line shown on the approved plans) are listed below, however not all are in dispute. The works are;

alterations to the existing cabana,
pool extensions,
open form pergola and raised timber deck,
timber path,
elevated ground floor outdoor terrace
stairs,
raised planter boxes,
first-floor balcony extension,
raised floor level of boatshed,
raised deck and spa
balustrading,
cantilevered planter boxes,
works to the eastern facade of the boatshed, and
roof extension and
privacy screen structures and supporting columns.

The contentions raised by the council are:

the permissibility of some proposed works, and
if permissible, whether approval should be granted to the proposed works on a merit assessment, considering the specific planning requirements for the site.

Development on the site consists of a dwelling house currently undergoing alterations and additions with the majority of work completed and close to lock-up stage.

Relevant planning controls

The site is located within Zone 2 - Environmental Housing (Scenic Quality) under Sutherland Shire Local Environmental Plan 2006 (LEP 2006). The objectives of the zone are:

(a) to allow development that complements the predominantly urban landscape setting of the zone, characterised by dwelling houses on single lots of land,

(b) to ensure the character of the zone, as one comprised predominantly of dwelling houses, is not diminished by the cumulative impacts of development,

(c) to allow development that is of a scale and nature that is consistent with the urban surroundings of the zone, while retaining or restoring natural features,

(d) to protect existing vegetation and other natural features of the zone and encourage appropriate bushland restoration,

(e) 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 either natural or man-made hazards,

(f) to minimise the impacts of development in the vicinity of heritage items,

(g) to allow the subdivision of land only where the size of the resulting lots makes them capable of development that retains or restores natural features, while allowing a sufficient area for building footprints,

(h) to ensure sharing of waterfront views between occupiers and users of new and existing buildings.

The site is traversed by a foreshore building line (FBL). The FBL is located 20 m from the deemed mean high water mark in accordance with cl 17(3)(a)(i) (see Attachment 1).

Clause 17 addresses land traversed by a FBL and relevantly states:

17 Buildings or works on land traversed by foreshore building line

(1) Application of clause

This clause applies to land that is traversed by a foreshore building line.

(2) Objectives

The objectives of this clause are as follows:

(a) to avoid adverse ecological effects on waterways,

(b) to protect and enhance significant natural features and vegetation on riparian land,

(c) to retain endemic vegetation along foreshore areas,

(d) to restore and revegetate foreshore areas to improve estuarine flora and fauna habitat,

(e) to minimise any adverse impact from development on water quality and, so far as is practicable, to improve the quality of urban run-off entering waterways,

(f) to minimise any adverse visual impact of development when viewed from adjacent land and waterways by using a design and materials that complement the natural landscape of the land to which this clause applies,

(g) to minimise any adverse impact of development on the natural landform of foreshore areas and waterways by integrating structures into the site with minimal change to the natural topography of the land to which this clause applies,

(h) to achieve an appropriate balance between private development and the public use of waterways,

(i) to maintain and improve public access to the intertidal area of waterfronts where there will be minimal environmental impact,

(j) to conserve and enhance structures on waterfronts that are of heritage significance,

(k) to minimise the obstruction of water views from public land,

(l) to ensure that there is no development below any foreshore building line, except as provided by this clause.

(3) Meaning of "foreshore building line"-generally

In this plan:

foreshore building line , in relation to land (other than land referred to in subclause (4) or (5)), means:

(a) if a foreshore building line is shown on the map in relation to the land:

(i) in the case of land that has a deemed mean high water mark-a line across the land that is parallel to, and the distance specified on the map from, that deemed mean high water mark, or

(ii) .

(4)

(5)

(6)

(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.

(10) In this clause:

excluded building or work means any of the following:

(a) a boat shed,

(b) a watercraft facility,

(c) an in-ground swimming pool that is no higher than 300 millimetres above ground level at any point,

(d) a work to enable pedestrian access,

(e) landscaping,

(f) a barbecue,

(g) a utility installation (except for a gas holder or generating works).

riparian land means:

(a) submerged land, or

(b) land that adjoins, directly influences or is directly influenced by a body of water, and the body of water itself.

Are the works permissible?

The respondent's submissions

Mr Robertson SC, for the council, submits that cl 17(7) provides that a building and a work must not be carried out on land between the FBL and any waterway. Clauses 17(8) and (9) provide exemptions from cl 17(7) and relevantly include the pool extension, timber path, stairs, landscaping and the balustrade. If the purpose of the addition of columns to the boat shed is to support the cantilevered planter boxes used to conceal the existing spa and elevated deck of the boat shed, then they are a use related to a dwelling rather than the boat shed, and hence are not "excluded works" identified in cl 17(10) and acceptable under cl 17(8)(a). The remaining works are prohibited, unless they fall within cl 17(9). Clause 17(9)(b)(i) limits the extent of derogation from this prohibition. If the works can not satisfy this objective test, it is necessary to consider the qualitative tests in the remainder of subclause (9), all of which must be satisfied for the works to be permissible.

Mr Robertson submits that the interpretation of cl 17(9)(b)(i), that confines the area of physical disturbance, forward of the FBL, to the most limited area will be more consistent with the purpose of the provision than any other interpretation. These controls have been consistently construed to restrict development on the foreshore area so as to preserve, restore or enhance the formerly natural areas below the FBL. Under LEP 2006, even more than its predecessors, a construction that promotes the objectives of removing (or, in the case of an existing dwelling, constraining) development forward of the FBL must be preferred to the one that does not achieve that purpose. There are textual indications that support this construction. First, the word "any" is used in two different senses in cl 17(9)(b)(i) and according to Mr Robertson there is no warrant to suggest, as promoted by Mr Minto, the applicant's town planner, a notional FBL. It is not directed to relocating the FBL, but rather to locate the footprint of the new dwelling or addition by reference to the physical location of the existing dwelling.

Second, the Court is required to consider whether the use of the word "dwelling" (as distinct from "dwelling house") was employed deliberately to reduce the footprint of the area of foreshore not subject to the prohibition on rebuilding and additions. Mr Robertson submits that "dwelling" is specifically defined, as is "dwelling house". "Dwelling" is therefore a specific defined cubic space, comprising the rooms of an abode, whereas "dwelling house" is the structure in which the dwelling(s) is contained and includes ancillary space such as entertainment areas, gardens and so on. Where a building forms readily into two parts: in this case, the suite of rooms and a large entertainment deck, then this distinction between a dwelling and a dwelling house has work to do. If the roof of the boat shed ever became part of the dwelling house when physical access to it was provided from the original dwelling house, it simply became part of the open space available to the occupants of the dwelling for entertainment purposes. It is not different, conceptually, to any other part of the site to which access can be gained from doors in the dwelling or purposes ancillary to the dwelling house, such as entertaining, viewing the waterway, active or passive recreation etc. This needs to be compared to the applicant's approach, if correct, then the whole of the land, including the expansive hard stand areas between the building and its boundaries, is part of the existing dwelling. Mr Robertson submits that there is no warrant to give the word "dwelling" any extended or wider meaning than an enclosed space used for the purposes of an abode. Consequently, the construction of the word "dwelling" excludes the roof of the boat shed (the open deck) and cannot demarcate the extent of derogation of the FBL.

Mr Robertson also submits that there is no existing dwelling on the site. The dwelling was demolished, unlawfully in councils opinion, in the course of carrying out "alterations and additions" to the existing dwelling on the land. Reference is made to the planning principle in Edgar Allen Planning Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 790 at [52] where it states that the demolition of more than 50% of a structure of an existing dwelling is not an alteration or addition, but either a rebuilding or the erection of a new dwelling. Mr Robertson notes that the applicants architect estimated that the percentage of build form to be demolished and replaced was about 25% of the existing residence however he is instructed that around 95% of the existing building has been demolished. Further support for this approach is found in the decision of Wollongong City Council v Vic Vellar Nominees Pty Ltd [2010] 178 LGERA 445 where Biscoe J determined that the word "existing" emphasised that the facilities for a dwelling had to be actual rather than merely potential [31] and [64], be habitable [65] and lawfully constructed [75-85].

The applicant's submissions

In relation to the existing planning controls, Mr Galasso SC acknowledges that cl 17(7) is relevant however this subclause is not absolute as there are two primary exceptions, firstly cl 17(8) and secondly, cl 17(9). The introductory words to cl 17(8) make it clear that the general proscription identified in cl 17(7) is overridden by cl 17(8) to the extent that it is applicable.

Mr Galasso notes that on 5 February 1980, BA 80/0643 was approved by the council (the 1980 approval) for "additions to residence" and provides for an addition to the dwelling in the form of an expansion of the living room of the existing dwelling. This approval provided for the removal of the aluminium windows on the eastern side of the existing living room and what was described as a "living extension" was proposed to the east of the living room on to the existing concrete slab, described on the plan as "open deck". The approval essentially permitted the extension of the internal living space of the residence onto an external area (the open deck) by providing an unencumbered connection between the internal living area and the open deck. The current proposal provides no additions, but seeks only to alter the roof by extending it, adding a small balcony and installing a spa on the deck. Given that the floor area or volume of the existing dwelling will not be enlarged, the proposed changes must be deemed as alterations rather than additions. Mr Galasso submits that the council formally established the relationship between the residence and the open deck with the 1980 approval.

Mr Galasso submits that the effect of the 1980 approval, and adopting a purposive and practical assessment of the resulting built form, was that for the purposes of identifying the extent of the residence, it must not only include the internal spaces of the building, but also the external extension of those internal spaces, including the open deck. Expressed in another way, Mr Galasso submits that even putting aside the boatshed below, there is no sensible conclusion that results in the "dwelling" not including the open deck area as the 1980 approval determined the eastern extent of dwelling, being the eastern edge of the open deck.

Mr Galasso submits that consent can be granted pursuant to cl 17(9) provided that consideration has been given to the objectives of the clause. As part of the consideration, there must also be satisfaction that any addition to an existing dwelling will not be erected any further forward of the FBL than any existing dwelling on the land. According to Mr Galasso, this must include all component parts of the dwelling, including the deck. Even if the works are classified as additions (and not alterations), they are to be constructed within the existing footprint of the existing dwelling and thereby would not be any further forward of the FBL than any existing dwelling on the land.

Mr Galasso does not agree with the submissions made by Mr Robertson on the construction of cll 17(8) and (9) for a number of reasons. Firstly, the council, in relation to the 2010 approval, has not chosen to require the removal of any structure forward of the FBL, or forward of the existing dwelling even if the council's more conservative location is adopted.

Secondly, the strictness of the construction urged by the council is contrary to:

the meaning of a provision in an environmental planning instrument has to be determined having regard to its context and purpose: ( Project Blue Sky v Australian Broadcasting Authority (1998) 66 NSWLR 379 at [36] - [39]),
the planning purpose is determined by reference to the language of the instrument considered in context: ( Wilson v State Rail Authority [2010] NSWCA 198 at [12] - [13]),
the Court must look to the intention of the draft person and avoid the irrational result of a particular construction unless the language of the provisions in question is intractable or where the operation of the provision, read literally, indicates that it could not have been intended by the draft person: ( Lennard v Jessica Estates (2008) 71 NSWLR 306 at [52], and
where two meanings are open in statutory interpretation it is proper to adopt a meaning that avoids consequences that appear irrational and unjust and produces a fairer and more convenient operation so long as it conforms to be legislative intention: ( Cooper Brookes (Wollongong) v Federal Commissioner of Taxation (1981) 147 CLR 297 at [320]).

If considered in light of these authorities, Mr Galasso submits that that the council's approach places artificial limitations on the true interpretation of cl 17. A practical and purposive approach to the construction of cl 17 would render, as part of the "dwelling", the deck area. No part of the proposed non excluded works will extend beyond the "dwelling". Mr Galasso rejects the submissions that the 2010 approval did not authorise the works currently being undertaken on site. Even if works associated with the residence, may have been erected without authority (and this is not accepted by the applicant) it is irrelevant to the present question of permissibility.

Findings - the purpose of cl 17

While I accept the purpose of cl 17 is to address buildings and works between the FBL and the foreshore and that one of the objectives in cl 17(2) is to "restore and revegetate or areas to improve estuarine flora and fauna habitat" (cl 17(2((d)), I do not accept Mr Robertson's submission that the controls have been consistently construed to restrict development on foreshore so as to preserve, restore or enhance the formerly natural areas below the FBL. To adopt this approach would be to largely ignore the exceptions provided firstly by cl 17(8) and secondly, cl 17(9). I agree with Mr Galasso that the introductory words to cl 17(8) make it clear that the general proscription identified in cl 17(7) is overridden by cl 17(8) to the extent that it is applicable. The test of acceptability rests with the assessment required by cl 17(8) and cl 17(9).

Findings - is there an existing dwelling on the land?

The submissions of Mr Robertson and Mr Galasso focus on what, for the purposes of cl 17(9)(b)(i), constitutes "any existing dwelling on the land". There was no dispute that the alterations and additions to the existing dwelling house removed additional walls during the renovations that were shown on the approved plans as remaining. There was also no dispute that the new walls were located in the position of the original walls that were removed and that the form of the building remained the same as shown on the approved plans.

On the question of whether there was any existing dwelling on the land to satisfy cl 17(9)(b)(i), I am satisfied that the answer is yes. While the planning principle in Edgar Allen Planning addresses the question of what constitutes alterations and additions in terms of the extent of building demolition, it must be remembered that planning principles are not legally binding and are not a substitute for the proper consideration of the facts and individual circumstances of a particular case. The submissions suggested that the 2010 approval provided for the demolition of some 25% of the fabric of the dwelling house whereas some 95% was removed. There was no specific evidence to support these submissions although I do not accept that it is a critical matter in answering the question of whether there was any existing dwelling on the land Of greater importance, in my view, is that the alterations and additions to the dwelling house were almost completed at the time of the site inspection and notwithstanding the concerns raised by the council during the appeal, no action has been taken by the council to address the alleged non-compliance with the approved plans. In any event, and even if some 95% of the fabric was removed as part of the alterations and additions, it does not necessarily follow that these works would be automatically deemed illegal or that it could reasonably be suggested that the alleged non-compliance with the approved plans could somehow lead to a finding that, for the purposes of cl 17(9)(b)(i), there was not "any existing dwelling on the land".

Also, in Vic Vellar it was found that for a dwelling to be "existing", the facilities for a dwelling had to be actual rather than merely potential, be habitable and lawfully constructed. Based on the site inspection where the external and internal areas of the residence were inspected, it was clear that the residence was largely completed and there is little, if any doubt in my mind that based on Vic Vellar, there is an existing dwelling on the land. The question of whether the dwelling house has been lawfully constructed has been addressed earlier in the previous paragraph.

Findings - dwelling or dwelling house?

The principal position of Mr Robertson is that a "dwelling' must be a reference to the cubic volume of the abode on the site, and cannot include the open deck. Mr Galasso maintains that the open deck forms part of the existing dwelling on the land given the 1980 approval and as such approval can be granted, subject to the favourable consideration of cl 17(9)(a) and cl 17(9)(b)(ii) (see Attachment 1) .

Clause 17(9)(b)(i) provides:

(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) .

(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

The Dictionary to LEP 2006 provides the following definition:

dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile.

dwelling house means a building containing only one dwelling.

It must be generally accepted that the draft person sought to distinguish between "dwelling" and "dwelling house" as they are separately defined. The difference, in my view, is however relatively subtle. In considering the different definitions, it would seem that a "dwelling" is not so different to a "dwelling house" except that it exists with other dwellings in a single building whereas a "dwelling house" contains only a single dwelling within a building. I am not satisfied that the submission of Mr Robertson that a "dwelling" excludes the use of ancillary matters such as open space, should be accepted, having regard to its context and purpose ( Project Blue Sky) and by reference to the language of the instrument considered in context ( Wilson ), particularly considering the definitions in LEP 2006.

I accept that there is some support for Mr Robertson's approach if considered against the definition of "residential flat building" which states(with my underlining):

residential flat building means a building containing, 3 or more dwellings but does not include seniors housing, a townhouse or a villa house.

If considered against this definition, a dwelling could comfortably be seen to be a cubic space if the dwelling takes the form of an apartment or unit in a building that accommodates three or more dwellings. This configuration could potentially exclude ancillary spaces such as entertainment areas, gardens etc. The same degree of comfort however could not be achieved if considered against the definitions of "townhouse" and "villa house" that state (with my underlining):

townhouse means a dwelling within a two-storey building, on a lot of land containing 3 or more dwellings, where each dwelling has open space at finished ground level for the exclusive use of the occupants of that dwelling.

villa house means a single storey dwelling on a lot of land containing 3 or more dwellings, where each dwelling has an individual entrance and there is open space at ground level for the exclusive use of the occupants of the dwelling.

These definitions refer to a dwelling but specifically include those ancillary matters seen by Mr Robertson as being excluded from a dwelling, such as open space at ground level for the exclusive use of the occupants of the dwelling. I have taken the term "open space at finished ground level for the exclusive use of the occupants of the dwelling " or "open space at ground level for the exclusive use of the occupants of the dwelling " to mean an area outside the defined cubic space of the dwelling.

Similarly, little practical support for Mr Robertson's submission is gained when considering the definitions of "group home" and the consequent definitions of "permanent group home" and "transitional group home" which state (with my underlining):

group home means a dwelling that is a permanent group home or a transitional group home.

permanent group home means a dwelling :

(a) used to provide a household environment for disabled persons or socially disadvantaged persons, whether those persons are related or not, and

(b) occupied by the persons referred to in paragraph (a) as a single household, with or without paid or unpaid supervision or care and either with or without payment for board and lodging being required,

but does not include a building to which State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 applies or a transitional group home.

transitional group home means a dwelling :

(a) used to provide temporary accommodation, for the purposes of relief or rehabilitation, for disabled persons or socially disadvantaged persons, whether those persons are related or not, and

(b) occupied by the persons referred to in paragraph (a) as a single household, either with or without paid or unpaid supervision or care and either with or without payment for board and lodging being required,

but does not include a building to which State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 applies.

If these definitions are considered in the manner suggested by Mr Robertson, then these forms of development may only be carried out within the cubic space of a building with no use of ancillary features such as open space. It is difficult to imagine that this is a planning outcome anticipated for a disadvantaged group of society by restricting their use of a home to the cubic space of the home and restricting access to external open space.

The acceptance of the submissions by Mr Robertson would also result in a curious situation where a permissible use within Zone 2 - Environmental Housing (Scenic Quality), that it is a dwelling house, would not be subject to the provisions of cll 17(8) and (9).

The inconsistent approach to the use of the "dwelling" in LEP 2006 is also consistent with the submission of Mr Galasso that the word "dwelling" is used in a generic sense in cll 36(6) and 37(c).

Some weight must also be given to the 1980 approval that provided direct access from the residence to the open deck with the clear intention to provide an open recreation area to be used in conjunction with the existing residence.

I am satisfied that the use of the word "dwelling" is used inconsistently within the context of LEP 2006 and consequently, the comments in Cooper Brookes are valid 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. Similarly, the comments in Lennard, are also valid where 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 drafts person.

I am satisfied that to adopt the council's narrow approach to the interpretation of the definition of "dwelling", in this case, would be unreasonable, "irrational and unjust" and support an "irrational result" in that it would preclude the practical and sensible use of the flexibility available in cll 17(8) and (9) for the proposed development.

For these reasons, I am satisfied that the words "existing dwelling" includes the open deck.

The merits

The FBL cuts the 37.39 m long northern side boundary approximately 29.5 m from foreshore and the 37.1 m long southern boundary approximately 28.5 m from the foreshore. The effect is that the majority of the site, including most of the dwelling house undergoing alterations and additions, is located between the FBL and the foreshore (see plan below).

Town planners Ms Debbie Pinfold, for the council, and Mr Andrew Minto, for the applicant agree that the open form pergola attached to the cabana and raised timber deck near the pool are forward of the FBL and prohibited under cl 17(7) as the flexibility available in cll 17(8) and (9) is not available.

Ms D Pinfold and Mr Minto agree that the following works fall within "excluded building and works" in cl 17(10) and as such are permitted under cl 17(8)(b):

pool extension,
timber path,
stairs, and
balustrading.

They however disagree on whether the following works are "excluded building and works":

cantilevered planter boxes, and
works to the eastern facade of the boatshed that involve planter boxes, new boat shed door and masonary columns.

Ms Pinfold and Mr Minto agree that the following works are additions, not alterations to the existing dwelling house and consideration of their permissibility falls under cl 17(9):

alterations to the existing cabana,
elevated ground floor outdoor terrace
raised planter boxes,
first-floor balcony extension,
raised deck and spa,
roof extension, and
privacy screen structure and supporting columns.

Clause 17(9) relevantly provides the opportunity for any addition to an existing dwelling, on land between the FBL and the waterway, if

consideration has been given to the objectives of cl 17 (cl 17(9)(a)), and
the addition will not be erected any further forward of the FBL than any existing dwelling on the land (cl 17(9)(b)(i)), and
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 (cl 17(9)(b)(ii)).

The objectives in cl 17(9)(a) that are in dispute are:

(b) to protect and enhance significant natural features and vegetation on riparian land,

.

(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,

.

(l) to ensure that there is no development below any foreshore building line, except as provided by this clause.

Ms Pinfold and Mr Minto have different opinions on whether the proposed works are appropriate although their opinions are based on different scenarios; Mr Pinfold adopting Mr Robertson's submission that the "existing dwelling on the land " did not include the open deck whereas the Minto maintained the approach of Mr Galasso that the open deck formed part of the "existing dwelling on the land ". Having found in favour of Mr Galasso's submissions on this question, the assessment required by cl 17(9) must reflect this finding.

Also, the consideration required by cl 17(9) should not be taken in isolation of the site and its context, including buildings on adjoining properties. In this case, any argument about the relationship with the FBL must take into account that under the approach of the council or the applicant, there is already a significant breach of the FBL. Also, the foreshore area of the site has been largely cleared of natural vegetation, over time, and the reinstatement of this area to a pristine natural environment is clearly impractical. It would seem that a sensible and practical approach would be to ensure that the proposed works do not create an unacceptably greater tension with the objectives in cl 17(9)(a) than currently exists.

In considering the relevant objectives in cl 17 required by cl 17(9)(a), the fact that the additions will not be erected any further forward of the FBL than any existing dwelling on the land (cl 17(9)(b)(i)) and that the natural qualities of the foreshore are retained or restored as far as practicable through the reinstatement of additional vegetation identified in the landscape plan (cl 17(9)(b)(ii)), I find that:

the roof extension should be reduced in size by 3.5 m to provide a building form that is more consistent with the building line of adjoining buildings and minimises the visual impact of development when viewed from adjacent land and waterways,
the first-floor balcony extension is acceptable as it does not add unacceptably to the bulk of the building when viewed from adjacent land and waterways,
the elevated ground floor outdoor terrace and associated stair should be removed and the area battered and landscaped to allow for the reinstatement of some endemic vegetation and a form closer to natural levels. The stair from the deck to the ground level adjoining the boatshed may remain. Access from the ground floor area of the dwelling to be foreshore area of the site can be made available along the existing driveway,
the raised deck and spa is acceptable provided that the spa is no more than 300 mm above the level of the raised deck and is screened by the proposed vegetation in the planter box, as it does not add unacceptably to the bulk of the building when viewed from adjacent land and waterways,
the privacy screen structure and supporting columns on the northern elevation is to be removed and replaced with a light weight privacy screen that is a maximum height of 1.8 m on the ground floor level adjoining the area marked "day bed", as the proposed structure adds unacceptably to the bulk of the building when viewed from adjacent land and waterways,
the privacy screen structure on the southern elevation is to be removed, as it adds unacceptably to the bulk of the building when viewed from adjacent land and waterways,
the raised planter boxes, cantilevered planter boxes, new boat shed door and associated columns are acceptable as they essentially architectural features that are appropriately defined as additions to an existing dwelling and significantly improve the appearance of a particularly unattractive component of the site when viewed from adjacent land and waterways,
the minor changes to the cabana are acceptable as they do not change the size and location of the cabana but significantly improve the appearance when viewed from adjacent land and waterways.

On the basis of the findings I made in relation to the merits of the works, directions were made on 25 October 2011 for the applicant to file and serve revised plans (which have been designated exhibit K) by 1 November 2011 I and the council to file and serve any comments on the revised plans by 8 November 2011 following which final orders will be made in chambers. Some minor disagreements resulted from the revised plans and a mention was held on 11 November 2011 to address the areas of disagreement.

Orders

The orders of the Court are:

1. The appeal is upheld.

2. The application for alterations and additions to an existing dwelling house at 8 Shell Road, Burraneer is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibits 1 and K.

4. The SEPP 1 objection to the landscaped area development standard in cl 36 of Sutherland Local Environmental Plan 2006 is well founded.

G T Brown

Acting Senior Commissioner

Decision last updated: 10 January 2012

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Citations

Geelan v Sutherland Shire Council [2011] NSWLEC 1375

Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Edgar Allan Planning Pty Limited v Woollahra Municipal Council [2006] NSWLEC 790

Medium Neutral Citation:	Geelan v Sutherland Shire Council [2011] NSWLEC 1375
Hearing dates:	1 September 2011, Interim findings 25 October 2011, mention 11 November 2011, 14 November 2011
Decision date:	14 November 2011
Jurisdiction:	Class 1
Before:	Brown ASC
Decision:	1. The appeal is upheld. 2. The application for alterations and additions to an existing dwelling house at 8 Shell Road, Burraneer is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 1 and K. 4. The SEPP 1 objection to the landscaped area development standard in cl 36 of Sutherland Local Environmental Plan 2006 is well founded.
Catchwords:	DEVELOPMENT APPLICATION: alterations and additions to an existing dwelling - breach of foreshore building line - location of "existing dwelling on the land" - whether some proposed works permissible - if permissible, whether works acceptable on merit assessment
Legislation Cited:	Environmental Planning and Assessment Act 1979 Sutherland Shire Local Environmental Plan 2006
Cases Cited:	Cooper Brookes (Wollongong) v Federal Commissioner of Taxation (1981) 147 CLR 297 Edgar Allen Planning Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 790 Lennard v Jessica Estates (2008) 71 NSWLR 306 Project Blue Sky v Australian Broadcasting Authority (1998) 66 NSWLR 379 Wilson v State Rail Authority [2010] NSWCA 198 Wollongong City Council v Vic Vellar Nominees Pty Ltd [2010] 178 LGERA 445
Category:	Principal judgment
Parties:	Luke Geelan (Applicant) Sutherland Shire Council (Respondent)
Representation:	Counsel Mr A Galasso SC (Applicant) Mr T Robertson SC (Respondent) Solicitors Maddocks Lawyers (Applicant) Sutherland Shire Council (Respondent)
File Number(s):	10081 of 2011