Hall v Sutherland Shire Council

[2021] NSWLEC 1232

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hall v Sutherland Shire Council [2021] NSWLEC 1232

Hearing dates:

Conciliation conference on 14 and 21 April 2021

Date of orders:

7 May 2021

Decision date:

07 May 2021

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1) The Applicant be granted leave to rely on the amended plans as set out in condition 1 of Annexure A.

(2) The Appeal is upheld.

(3) Development consent is granted to development application No DA19/0633 for the removal and replacement of existing waterway access, stairs and walkway at 27 Crammond Avenue, Bundeena, subject to the conditions of consent contained within Annexure A.

(4) Each party pay their own costs of this appeal.

Catchwords:

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

Legislation Cited:

Coastal Management Act 2016, s 5

Environmental Planning and Assessment Act 1979, ss 4.16, 8.17

Environmental Planning and Assessment Regulation 2000, cl 77

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Coastal Management) 2018, cll 13, 14

Sutherland Shire Local Environmental Plan 2015, cll 2.3, 4.3, 4.4, 5.10, 6.5, 6.7, 6.8, 6.9, 6.14

Texts Cited:

Land and Environment Court of New South Wales COVID-19 Pandemic Arrangements Policy (July 2020)

Sutherland Shire Development Control Plan 2015

Category:

Principal judgment

Parties:

Philip Hall (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
W Soon (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
Kinny Legal (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2020/266865

Publication restriction:

No

Judgment

1. COMMISSIONER: Philip Hall (the Applicant) has appealed the refusal by Sutherland Shire Council (the Respondent) of his development application (19/0633) which seeks consent for removal and replacement of a set of stairs and walkway providing access from a higher level of land across a cliff face onto a rock shelf on foreshore land (the Proposed Development) at 27 Crammond Avenue, Bundeena (the Subject Site).

2. The Subject Site is zoned E3 Environmental Management under the provisions of Sutherland Shire Local Environmental Plan 2015 (SSLEP), and the Proposed Development is permissible within that land use zone. The development application is made with owners’ consent.

3. The Proposed Development is situated entirely above the Mean High Water Mark within the Subject Site.

4. The appeal comes to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act.

5. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 14 and 21 April 2021, and I presided over the conciliation conference.

6. The conciliation conference was convened in a manner consistent with the Court’s COVID-19 Pandemic Arrangements Policy (the Policy). A site view was not undertaken at the commencement of the conciliation conference.

7. 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 consent to the Applicant’s development application, subject to conditions.

8. 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.

9. The Parties have advised that there are jurisdictional matters that must be satisfied in order for the Court to have power to grant consent to the Proposed Development, and that these requirements have been satisfied as follows:

1. section 5 of the Coastal Management Act 2016 (the CM Act) provides that the coastal zone means:

the area of land comprised of the following coastal management areas:

(a) the coastal wetlands and littoral rainforests area;

(b) the coastal vulnerability area;

(c) the coastal environment area; and

(d) the coastal use area.

2. the CM Act also provides the definitions, and sets out management objectives, for land located within each of the different coastal areas, and those definitions are utilised for the purposes of State Environmental Planning Policy (Coastal Management) 2018 (SEPP Coastal Management);

3. the Subject Site is mapped under SEPP Coastal Management as a Coastal Environmental area and as a Coastal Use area. The Parties have considered the requirements in SEPP Coastal Management as they apply to the Subject Site. They have confirmed, and I am satisfied, that:

1. in relation to the provisions of cl 13 of SEPP Coastal Management concerning Coastal Environmental areas:

1. the Proposed Development is not likely to cause any adverse impact on the matters identified in subcl 13(1); and

2. the Proposed Development is designed, sited and will be managed to avoid any adverse impact referred to in subcl 13(1), in satisfaction of the provisions of subcl 13(2); and

2. in relation to the provisions of cl 14 of SEPP Coastal Management concerning Coastal Use areas:

1. the Proposed Development is not likely to cause any adverse impact on the matters identified in subcl 14(1)(a);

2. the Proposed Development is designed, sited and will be managed to avoid any adverse impact referred to in that subcl 14(1)(a), in satisfaction of the provisions of subcl 14(1)(b); and

3. account has been taken of the surrounding coastal and built environment, and the bulk, scale and size of the Proposed Development;

3. the Applicant’s development application, as amended, is compliant with the provisions of SEPP Coastal Management;

4. in relation to the provisions of SSLEP:

1. as required under cl 2.3(2), regard has been had to the objectives of the E3 Environmental Management zoning of the Subject Site;

2. the height of buildings and floor space ratio development standards applicable to the Subject Site under cll 4.3 and 4.4 are not relevant to the Proposed Development;

3. in relation to the provisions of cl 5.10, which applies to the Applicant’s development application because the rock cliff and rock outcrop is listed as heritage item No 0504 being ‘Sandstone formations in headland at Cabbage Tree Point, including Pulpit Rock (major) and sandstone rock shelf’ within Schedule 5 of SSLEP:

1. only a small portion of the Proposed Development will extend to within the area of the heritage listing; and

2. the Applicant’s development application, as amended, satisfies the heritage objectives of cl 5.10 because the Proposed Development minimises visual impacts on sandstone formations within the heritage listing;

4. as the Subject Site is mapped as “Environmentally Sensitive Land – Terrestrial Biodiversity” under the provisions of cl 6.5, the matters required to be considered under the provisions of subcl 6.5(3) have been considered and the Proposed Development (as amended) is designed, sited and will be managed to avoid any significant adverse environmental impact to land mapped as Environmentally Sensitive Land - Terrestrial Biodiversity, in satisfaction of subcl 6.5(4);

5. as the Subject Site is mapped as “Environmentally Sensitive Land – Riparian Land and Watercourses” under the provisions of cl 6.7, the matters required to be considered under the provisions of subcl 6.7(3) have been considered and the Proposed Development is designed, sited and will be managed to avoid any significant adverse environmental impact to land mapped as Environmentally Sensitive Land - Riparian Land and Watercourses, in satisfaction of subcl 6.7(4);

6. as the Subject Site is mapped as “Environmentally Sensitive Land – environmental and scenic qualities of natural landforms” under the provisions of cl 6.8, the matters required to be considered under the provisions of subcl 6.8(3) have been considered and the Proposed Development is designed, sited and will be managed to avoid any significant adverse environmental impact to land mapped as Environmentally Sensitive Land – environmental and scenic qualities of natural landforms, in satisfaction of subcl 6.8(4);

7. as part of the Proposed Development is located below the Foreshore Building Line (FBL) it is subject to the provisions of cl 6.9, and I am satisfied that:

1. waterway access stairs are permissible below the FBL pursuant to the provisions of subcl 6.9(2)(c)(viii);

2. the Proposed Development will not significantly alter the shape, natural form or drainage of the foreshore area as required under the provisions of subcl 6.9(2); and

3. the appearance of the Proposed Development, from both the foreshore area and the adjacent waterway, will be compatible with the surrounding area as required under the provisions of subcl 6.9(3)(a), and will not cause environmental harm, as required under the provisions of subcl 6.9(3)(b);

4. the natural qualities of the foreshore area will be retained or restored as far as practicable through the retention or reinstatement of natural levels and endemic vegetation, also as required under the provisions of subcl 6.9(3)(c);

5. the Proposed Development will not cause congestion or generate conflict between people using open space areas or the waterway as required under the provisions of subcl 6.9(3)(d);

6. opportunities to provide continuous public access along the foreshore area and to the waterway will not be compromised as required under the provisions of subcl 6.9(3)(e);

7. any heritage significance of the foreshore area on which the Proposed Development is to be carried out and of surrounding land will be maintained as required under the provisions of subcl 6.9(3)(f);

8. sea level rise, or change of flooding patterns, as a result of climate change has been considered as required under the provisions of subcl 6.9(3)(i); and

9. the extent to which and whether the Proposed Development would facilitate the matters within subcl 6.9(4) has been considered;

8. as the Subject Site is zoned E3 Environmental Management the provisions of cl 6.14 of SSLEP apply to the Proposed Development. These require that 40% of the area of the Subject Site should be landscaped area, and in relation to which the Parties agree, and I am satisfied, that this development standard is not breached by the Applicant’s proposal, as amended;

5. the Proposed Development has been notified consistent with the provisions of Sutherland Shire Development Control Plan 2015 (SSDCP) and cl 77 of the Environmental Planning and Assessment Regulation 2000, and:

1. submissions regarding views, heritage item and bulk/scale have been considered by the Respondent in its assessment of the Proposed Development; and

2. in the opinion of the Respondent and its experts, matters raised in the submissions have been resolved by the Applicant’s amended plans;

6. the Applicant’s amended plans filed with the Court on 30 November 2020 were renotified by the Respondent and no submissions were received in response to that further notification.

10. There are no other jurisdictional prerequisites that must be satisfied before the Court can exercise the power to determine the appeal under s 4.16 of the EP&A Act.

11. Having considered the advice of the Parties, provided above at [9], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied.

12. I am further 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.

13. 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.

14. In making the orders to give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties.

15. The Court orders that:

1. The Applicant be granted leave to rely on the amended plans as set out in condition 1 of Annexure A.

2. The Appeal is upheld.

3. Development consent is granted to development application No DA19/0633 for the removal and replacement of existing waterway access, stairs and walkway at 27 Crammond Avenue, Bundeena, subject to the conditions of consent contained within Annexure A.

4. Each party pay their own costs of this appeal.

…………………………..

M Chilcott

Commissioner of the Court

Annexure A (168097, pdf)

**********

Decision last updated: 07 May 2021