Harbour Port Constructions Pty Limited v Sutherland Shire Council

[2005] NSWLEC 697

Land and Environment Court

of New South Wales

CITATION:

Harbour Port Constructions Pty Limited v Sutherland Shire Council [2005] NSWLEC 697

PARTIES:

APPLICANT
Harbour Port Constructions Pty Limited

RESPONDENT
Sutherland Shire Council

FILE NUMBER(S):

10615 of 2005

CORAM:

Hoffman C

KEY ISSUES:

Development Application :- Proposed ramp and pontoon - environmental issues - character of the location

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Sutherland Shire Local Environmental Plan 2000
Development Control Plan 9.2/04 edition 1
State Environmental Planning Policy No. 1

DATES OF HEARING:

29/11/2005 and 20/12/2005

 
DATE OF JUDGMENT: 

12/20/2005

EX TEMPORE JUDGMENT DATE:

12/20/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr T. Howard, barrister
SOLICITORS
Freidman Reeves

RESPONDENT
Mr G. Mathieson, solicitor
for Sutherland Shire Council Legal Branch

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

20 December 2005

10615 of 2005 Harbour Port Constructions Pty Limited v Sutherland Shire Council

JUDGMENT

1 This is appeal 10615 of 2005 between Harbour Port Constructions Pty Limited and Sutherland Shire Council in regard to a proposal for a proposed ramp and pontoon at No 36 Sandbar Place, Lilli Pilli, which has absolute frontage to the Port Hacking River. The site contains a single dwelling, boat shed, sliprails and jetty at the moment. The application had also included in the original application a request for authorisation of the existing sliprails. However this has been withdrawn from the application.

2 The plans in exhibit B now reflect the proposal that is before me in the modified form. It has been exhibited for comment and there has been no objection from the neighbours. The Court had the benefit of a report from Ms L Collins, town planner of Sutherland Shire Council, for information on the necessary matters to be considered.

3 The original application had been objected to by the Department of Primary Industries and Fisheries due to seagrasses outside the property. However, this objection had been withdrawn with modification of the proposal.

4 The statutory considerations are the Sutherland Shire Local Environmental Plan 2000 and Development Control Plan 9.2/04 edition 1 for Waterfront Development, together with the State Environmental Planning Policy No 71. The subject property on the landward side is zoned Residential 2(e2) under the statute, and the land below high water mark is zoned 7(a) Environmental Protection (Waterways).

5 The objectives of the 7(a) zone are generally to recognise the importance of the waterways as an environmental and recreational asset for residents of the area and the Sydney region, to ensure that development does not adversely affect the ecology, scenic value or navigability of the waterways, and to ensure aquatic environments are not adversely affected by the recreational use of the waterways and to provide for viable aquaculture in waterways areas.

6 The development adjoining and nearby the proposal is relatively built-up and characterised by jetty, ramps and pontoon structures on the properties adjacent to the subject site. The proposal reflects that existing character in this particular location.

7 The proposal consists of a ramp and pontoon being built on to the end of the existing hard core jetty. Part of that jetty will be demolished and reconstructed to form a solid structure on which to attach the cantilevered flexible ramp which will go down on to the pontoon. There are no structures within the water to locate the pontoon, this being done by the rigid connection via a hinge to the hard core jetty. Consequently it is only proposed that the pontoon be used for embarking and disembarking from small vessels at the site.

8 The matters to be considered contained in Ms Collins’ reports lead me to the following conclusions: The proposed ramp and pontoon is not inconsistent with the aim for protection and management of the natural, cultural recreation and economic attributes of the New South Wales coast, in that the proposed works are an expected form of development within the waterway with little or no impact on the environment.

9 The proposed works will not alter the existing public access to and along the coastal foreshore, all of the adjoining properties also having absolute frontage to the waterfront. There are no opportunities for new public accesses to and along the foreshores in that locality. Therefore the existing public access will not be changed.

10 The subject site has not been recognised as a place of cultural significance or Aboriginal heritage under council’s record systems.

11 The proposed work will not detrimentally impact the visual amenity along the coastline, being minor works in a locality where there are many foreshore structures. And the environmental amenity of the foreshore will not be further compromised as a result.

12 There is no existing land based coastal vegetation affected by the proposal. It is also consistent with the aim for protection and preservation of the marine environment of New South Wales, given that the matter was referred to the Department of Primary Industries and Fisheries, who re-assessed the amended application and raised no objection in regard to the impacts on seagrasses and the marine environment. There are no rock platforms within the waterway at the frontage to this site. The design of the proposal, as modified, is in accordance with the principles of ecologically sustainable development.

13 The bulk, scale and size of this small structure is considered to be appropriate in the existing location and is consistent with the scenic quality of the locality.

14 The proposed ramp and pontoon are unlikely to impact on coastal processes or create coastal hazards and will not increase any conflict between land based and water based coastal activities.

15 There is no reason that it would have any impact on the water quality of coastal water bodies. Overall, therefore, it would seem that the proposal has minimal and acceptable effect on the foreshore and the environment.

16 The parties have come to the Court with consent orders in exhibit 11 and I see no reason sufficient to refuse that application. Therefore consent orders of the Court are as follows:

1. The appeal is upheld.
2. Development Application 04/1164 in respect of No 36 Sandbar Place, Lilli Pilli, is determined by the granting of consent, subject to the conditions in annexure A as annotated hereto.
3. The exhibits are returned to the parties, except exhibits A, 6, 7, 9 and 11.
By consent no order as to costs.

___________________

K G Hoffman
Commissioner of the Court
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