Hakim M B and Anor v City of Canada Bay and the Minister Administering the Ports, Corporatisation and Waterways Management Act 1995

[2007] NSWLEC 17

Land and Environment Court

of New South Wales

CITATION:	Hakim M B and Anor v City of Canada Bay and the Minister Administering the Ports, Corporatisation and Waterways Management Act 1995 [2007] NSWLEC 17 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT: Mick Bechara Hakim and Yvonne Hakim RESPONDENT: City of Canada Bay Council SECOND RESPONDENT: Minister Administering the Ports Corporatisation and Waterways Management Act 1995
FILE NUMBER(S):	11200, 11202 and 11203 of 2005
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Environmental impact of the proposal on the waterfront
LEGISLATION CITED:	Drummoyne Local Environmental Plan 1986, (DLEP) Drummoyne Comprehensive Development Control Plan 1999, (DDCP) State Environmental Planning Policy No 56 - Sydney Harbour Foreshores and Tributaries, (SEPP56) Sydney Regional Environmental Plan No 22 - Parramatta River, (SREP22) Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, (SREP2005) Environmental Planning and Assessment Act 1979, ss79C and 97
DATES OF HEARING:	20/12/2006 and 22/12/2006
DATE OF JUDGMENT:	30 April 2007
LEGAL REPRESENTATIVES:	APPLICANT: Mr P C Tomasetti, barrister, instructed by Mr D C Balog, solicitor SOLICITORS: D C Balog & Associates RESPONDENT: Mr P M Jackson, solicitor SOLICITORS: Pike Pike and Fenwick SECOND RESPONDENT Mr I J Hemmings, barrister, instructed by Mr S C Simington, solicitor SOLICITORS: Lindsay Taylor, Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

30 April 2007

11200, 11202 and 11203 of 2005 - Mick Bechara Hakim and Yvonne Hakim v City of Canada Bay and the Minister Administering the Ports, Corporatisation and Waterways Management Act 1995

JUDGMENT

1 Appeal No 11200 of 2005 concerns a letter dated 26 August 2005 issued under s 22C of the Rivers and Foreshores Improvement Act 1948, (RFI Act), requiring the provision of a security bond in the amount of $35,000 to secure restoration of the cliff face as a precondition to the issue of a Part 3A permit to carry out works on Lot 115, DP 1111, being No 10 Fortescue Street, Chiswick, the applicant’s property, that is ‘protected land’ as defined by the Act. A condition of the draft permit was included with the 26 August letter that requires the restoration of the cliff face in two stages.

2 Appeal No 11202 of 2006 concerns a direction dated 26 August 2005 issued by the respondent under s 22G of then RFI Act to carry out specified rehabilitation works on a collapsed cliff face at the land.

3 Appeal No 11203 of 2005 was under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the City of Canada Bay (the council) to refuse a development application to construct a seawall, swimming pool, retaining wall, access stairs, landscaping, to relocate boulders and to excavate and level the land at Lot 115, DP 1111 being No 10 Fortescue Street, Chiswick. As integrated development is involved in this appeal and a Part 3A permit is required under the RFI Act, the second respondent (the Minister) has been joined as a party.

4 The applicant did not pursue Appeal No 11201 of 2005 under s 97 of the Environmental Planning and Assessment Act 1979 that was against the decision of the council to refuse a development application to construct a jetty, ramp and pontoon on the bed of Parramatta River adjacent to the subject land.

5 I viewed the land in company with the parties from the water on the morning of the first day of proceedings. The matter was heard on two days in December 2006 and was not completed. Case management was held on 22 December 2006, 12 February 2007 and 04 April 2007 seeking to finalise the matter.

6 Following intensive negotiation between the parties many of the issues have been resolved. I am satisfied that the outstanding matter of the type and position of steps leading to the waterfront has now been properly addressed and I conclude that the applicant should succeed.

The land

7 The land is situated on the northwestern side of Fortescue Street between Riverview and Chiswick Streets and has a frontage to Parramatta River to the northwest. It has a frontage of 20.115m to Fortescue Street and an irregular depth of 62.79 and 68.275m, with an area of some 1,315m2. The land falls about 16m from Fortescue Street to the Parramatta River.

8 Development adjoining the subject land comprises residential properties. Abutting to the southwest is a two-storey dwelling house at No 12 Fortescue Street, and to the northeast are two dwelling houses in a battle-axe arrangement at Nos 8 and 8a Fortescue Street. Opposite the land to the southeast are other residential dwellings.

Relevant planning controls

Drummoyne Local Environmental Plan 1986, (DLEP)

9 Under the provisions of the DLEP the land is zoned 2(a) Residential and the proposal to construct a seawall, swimming pool, retaining wall, access stairs, landscaping among other things is permissible with consent.

Drummoyne Comprehensive Development Control Plan 1999, (DDCP)

10 Section 6.15 of the DDCP relates to the Foreshore Building Line, (FSBL).

State Environmental Planning Policy No 56 - Sydney Harbour Foreshores and Tributaries, (SEPP56)

11 SEPP56 is now repealed but was applicable when the application was lodged.

Sydney Regional Environmental Plan No 22 - Parramatta River, (SREP22)

12 SREP22 is now repealed but was applicable when the application was lodged.

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, (SREP2005)

13 SREP2005 applies to the land.

The proposal and its history

14 Appeal No 11203 of 2005 involves Development Application No 391/2005 that was lodged with the respondent council on 13 July 2005 to construct a seawall, swimming pool, retaining wall, access stairs, landscaping, to relocate boulders and to excavate and level the land.

15 Previous development applications include:

· Development Application No 915/02 to demolish the existing dwelling and to erect a new dwelling, was approved by the council on 6 May 2003. The construction of the dwelling has commenced has not been completed and the proposed works are part of the development of the same land.

· Development Application No 56/04 for an in ground swimming pool, terrace and landscaping was refused by the council on 2 July 2004 on the grounds that a Part 3A permit was refused by NSW Waterways. This was on the grounds of inadequate information being submitted with the application and the alterations to the dwelling were indicated on the submitted plans but not applied for in the application.

· Development Application No 847/03 for the erection of a seawall, removal of a rock shelf and construction of access stairs was refused by the council on 17 February 2004 on the grounds that the application did not comply with the objectives and controls contained in SREP22 and the DCP for Sydney Harbour and Parramatta, a Part 3a permit was refused by NSW Waterways and there were said to be adverse impacts on the natural environment.

· Development Application No 423/03 for the erection of a seawall at the property was refused by the council on 22 September 2003 on the grounds that the application did not comply with the objectives and controls contained in SREP22 and the DCP for Sydney Harbour and Parramatta, and a Part 3a permit was refused by NSW Waterways.

Notification

16 Development Application No 391/2005 the subject of Appeal No 11203 of 2005, to construct a seawall, swimming pool, retaining wall, access stairs, landscaping was notified to nearby owners and occupants from 21 July 2005 to 8 August 2005 and the council received one submission.

17 An integrated development referral was made to the NSW Maritime Authority on 15 July 2005. The council received a response dated 23 August 2005 advising that a Part 3a permit would not be issued, and that land owner consent from NSW Maritime is required and that concern is raised to the merits of the proposed development.

The council’s decision

18 By notice dated 2 September 2005 the council refused Development Application No 391/2005 for the following reasons:

1. Pursuant to Clause 49 of the Environmental Planning and Assessment Regulation 2000, the applicant has failed to obtain consent from the owner of the land ‘NSW Maritime’ to land, which the development consent relates.
2. Pursuant to Section 91A(4) of the Environmental Planning and Assessment Act 1979, the approval body (NSW Maritime) has not granted approval to the issuing of a Part 3A permit which is required in order for the development to be lawfully carried out, and therefore the consent authority must refuse consent to the application.
3. Pursuant to Clause 7(g) of State Environmental Planning Policy No 56 - Sydney Harbour Foreshores and Tributaries, the application does not protect or improve unique visual qualities of the Harbour, its foreshores and tributaries.
4. Pursuant to Clause 7 of the Sydney Regional Environmental Planning Policy No 22, the Foreshores and Waterways Planning and Development Advisory Committee has recommended refusal of the application on the following grounds:
a) the proposal involves a radical alteration of the subject foreshore and will result in a highly modified foreshore environment dominated by man-made features such as the retaining wall, seawall and access stairs,
b) the proposal would irreversibly destroy the remaining natural features of the subject land. In the Committee's view the large boulders in the Parramatta River remain a natural feature of the locality,
c) the proposal is contrary to the performance criteria for landscape character type 14 under the Development Control Plan for Parramatta River which states that:
(i) remaining natural elements along the foreshore are preserved and,
(ii) visual continuity of elements is not broken by development example cliff features,
d) the proposal is contrary to clause 4.17 of the DCP which states that where the foreshore is in its natural state seawalls generally will be discouraged. In the Committee's view, the foreshore at the water's edge has not been irreversibly damaged by previous excavation works and should be restored to its natural state,
e) the proposal will have an adverse visual impact on the scenic quality of the subject foreshore when viewed from the Parramatta River,
f) the proposal is inconsistent with the aims of Sydney Regional Environmental Plan No 22 and the guiding principles of State Environmental Planning Policy No 56 relating to protection of scenic quality, and
g) the proposal is inconsistent with clauses 17(b), (d) and (e) of the exhibited Draft Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2004 relating to the protection, reinstatement and restoration of terrestrial ecological communities, natural inter tidal foreshore areas and riparian land.
5. Pursuant to Clause 2(2)(e)(i) of the Sydney Regional Environmental Planning Policy No 22, the application does not protect and enhance the landscape and scenic qualities of Parramatta River.
6. Pursuant to Clause 2(2)(e)(iii) of the Sydney Regional Environmental Planning Policy No 22, the application does not preserve the natural foreshores of the Parramatta River and detracts from their natural character.
7. Relevant performance criteria and guidelines of the Development Control Plan for Sydney Harbour and Parramatta River, in particular:
a) Pursuant to Section 4.17 of the Development Control Plan for Sydney Harbour and Parramatta River,

“Seawalls can be required to protect the land from the sea or to stop accelerated erosion of the shoreline. However, where the foreshore is in its natural state, seawalls will generally be discouraged.”

b) Pursuant to Section 4.18 of Development Control Plan for Sydney Harbour and Parramatta River,

“Reclamations will generally not be encouraged and it will be necessary to demonstrate that reclamation provides a public facility or leads to environmental improvements.”

c) Pursuant to Section 5.1 of Development Control Plan for Sydney Harbour and Parramatta River,

“The distinguishing characteristic of Sydney Harbour is its dramatic topography. This is reflected in large headlands and cliffs, as well as substantial areas of natural foreshores and the juxtaposition of built elements. Even in the most developed areas, it is still possible to perceive the underlying geomorphology and native vegetation. Clearly, it is the natural environment that is most sensitive and irreplaceable.”

8. The application is considered unsatisfactory under Section 79C (1)(b) of the

Environmental Planning and Assessment Act 1979, as the development will result in unsatisfactory adverse impacts on the natural environment.

9. The application is considered unsatisfactory under Section 79C (1)(d) of the

Environmental Planning and Assessment Act 1979, as the proposal has not been supported by the Waterways Authority (acting as an integrated development approval under Section 91 Environmental Planning and Assessment Act 1979).

10. The application is considered unsatisfactory under Section 79C (1)(e) of the

Environmental Planning and Assessment Act 1979, by virtue of the adverse impacts created and the public submissions received it cannot be said that the development is in the public interest.

The hearing

19 The appeals were filed on 12 October 2005.

20 On 22 December 2006 on behalf of the applicant evidence was given by:

· Mr P D Roberts, civil engineer of Jeffery and Katauskas who referred to Drawing PFW 01B and a joint committee of experts held on 2 November 2006;

· Ms N W Sonter, landscaping specialist referred to the plans in Exhibit J.

21 Many expert witnesses tendered written statements and Mr B Krohn, Chartered Architect, for the council lastly prepared a position paper dated 19 April 2007.

22 Mr S Anderson, Team Leader, Canada Bay Council, prepared the statement of basic facts.

The further amended statement of issues

23 In respect of Appeal No 11203 of 2005 on 11 October 2006, the second respondent was granted leave to rely on a further amended statement of issues to amended plans, [Note: Exhibit R1]:

1 Whether there is sufficient information to evaluate the visual appearance of the proposed development (particularly from the waterway) having regard to:

1.1 the possible use of blade wall underpins in various unspecified locations; and
1.2 the lack of a north elevation that depicts the proposed development and incorporates the revised landscaping and geotechnical recommendations; and
1.3 the lack of sufficient sections through the site.

Particulars:
Clause 25(b), (c) and 26(a) Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, (SREP (SHC) 2005).

Particulars:
3.1 Lack of appropriate species diversity and structural complexity reflecting the native vegetation communities that would have occurred in the vicinity of the site.
3.2 Lack of additional plantings in loose rock / rubble areas to provide for long term erosion and sediment control, weed suppression and to add to the diversity of plantings on the site.
3.3 Lack of plantings that have the potential to overhang the waterway and/or with the potential to provide a food source for local fauna.
3.4 Generally:
3.4.1 Clause 21(b), (d), (e), (f) and cl 25(b) of Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 , (SREP (SHC) 2005),
3.4.2 Clause 5.6 of Sydney Harbour Foreshores and Waterways Development Control Plan 2005 , (SHF&W DCP 2005).

Particulars:
Clause 21(a), (d) of SREP (SHC) 2005.

Particulars:
Clause 29(1) of SREP (SHC) 2005.

6 The issues raised by the council.

24 The environmental impact of the proposal on the waterfront was the salient issue in this appeal.

25 In Appeals No 11200 and 11202 of 2005 the respondent’s issues were, [Note: Exhibits R8 and R9 respectively]:

Whether the works proposed in proceedings 11203 of 2005 are consistent with proper remediation of the foreshore.

Impact of the proposal on the waterfront

26 On 22 December 2006 the landscaping concept plans were found wanting and the applicant agreed to revise them and to properly describe the works involved. To facilitate this the hearing was adjourned.

27 The applicant agreed to amend the plans on or before 18 January 2007. Subject the Registrar’s list, case management continued will be held before the commissioner on 22 December 2006, 25 January 2007, 12 February 2007 and 4 April 2007.

28 Mr Hemmings indicated that on behalf of the second respondent there was no objection to the plans in Exhibit H. However, it would be necessary for the applicant to:

1. amend landscape concept plans, to remove the three notations to the blade walls and reference to the three-years management plan and stormwater plan and include a water tank no excavation and possibility of drilling for services;

2. provide detailed hydraulic plans for stormwater and drainage;

3. amend the Vegetation Management Plan to incorporate Exhibit L.

29 During the hearing the parties have engaged in extensive consultation with the result that the only remaining matter to be resolved is whether the type and location of the proposed steps linking the waterfront to the pool area is satisfactory.

30 As the proposed steps would be largely following the slope of the ground and the only excavation would be to form the individual steps and to found the steel steps on bedrock I am satisfied that the steps would have minimal impact on the foreshore environment and their presence would not constitute a reason for refusal of the application.

31 Although negotiations have taken longer than originally anticipated, I am satisfied the outcome would be in the public interest and approval may be granted to construct a seawall, swimming pool, retaining wall, access stairs, landscaping and other foreshore works.

32 For the above reasons, the Appeal No 11203 of 2005 is upheld. Appeal Nos 11200 of 2005 and 11202 of 2005 are dismissed and I have directed that Appeal No 11201 be sent to the Registrar for hearing dates.

Conditions

33 The conditions are those in Exhibit J as amended during the hearing and as filed 20 April 2007.

Order (Appeal No 11203 of 2005)
34 My orders in respect of Appeal No 11203 of 2005 are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

2. Development application No 391/2005 lodged with the respondent council on 13 July 2005 to construct a swimming pool, retaining wall, access stairs, landscaping, to relocate boulders and to excavate and level the land at Lot 115, DP 1111, being No 10 Fortescue Street, Chiswick is approved subject to Conditions 1 to 52 in Annexure A.

3. The exhibits except for Exhibits A, B, C, D, Q, R, S, T, U, V, W, X, 5, 6, 13, R1, R2 and R8 are returned.

S J Watts

Commissioner of the Court

sw

Order (Appeal No 11200 of 2005)
35 My orders in respect of Appeal No 11200 of 2005 are:
1. Subject to the orders in Appeal No 11203 of 2005 the appeal in respect of s 22L of the Rivers and Foreshores Improvement Act 1948 is dismissed.
2. The exhibits are returned.

S J Watts
Commissioner of the Court
sw

Order (Appeal No 11202 of 2005)
36 My orders in respect of Appeal No 11202 of 2005 are:
1. Subject to the orders in Appeal No 11203 of 2005 the appeal in respect of s 22G of the Rivers and Foreshores Improvement Act 1948 is dismissed.
2. The exhibits are returned.

S J Watts

Commissioner of the Court

sw

Order (Appeal No 11201 of 2005)
37 In respect of Appeal No 11201 of 2005 I order that the matter be listed before the Registrar to allocate a hearing date.

S J Watts

Commissioner of the Court

sw

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

07/06/2007 - to clarify the consent - Paragraph(s) Order No 2 in Appeal No 11203 of 2005 the word 'seawall' deleted by consent of the parties under the slip rule 8 June 2007