Harbour Port Constructions Pty Limited v Sutherland Shire Council

[2006] NSWLEC 447

Land and Environment Court

of New South Wales

CITATION:	Harbour Port Constructions Pty Limited v Sutherland Shire Council [2006] NSWLEC 447
PARTIES:	APPLICANT: Harbour Port Constructions Pty Limited RESPONDENT: Sutherland Shire Council
FILE NUMBER(S):	11084 of 2005
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Impact on scenic value and character of the waterfront; and Precedent
LEGISLATION CITED:	Sutherland Shire Local Environmental Plan 2000, (SSLEP) Development Control Plan for Waterfront Development, (DCPWD) Draft Sutherland Shire Local Environmental Plan 2004, (DSSLEP) Environmental Planning and Assessment Act 1979, ss 79C and 97
CASES CITED:	Thorncraft & Anor v Bathurst Regional Council [2005] NSWLEC 571; Goldin v Minister for Transport (2002) 121 LGERA 101
DATES OF HEARING:	11/07/2006 to 13/07/2006
DATE OF JUDGMENT:	07/21/2006
LEGAL REPRESENTATIVES:	APPLICANT: Mr T G Howard, barrister, instructed by Mr S M Freidman, solicitor SOLICITORS: Harris Freidman Hyde Page, Lawyers RESPONDENT: Mr J A Cole, solicitor SOLICITORS: Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

21 July 2006

11084 of 2005 - Harbour Port Constructions Pty Limited v Sutherland Shire Council

JUDGMENT

1 This is an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Sutherland Shire Council, (the council) of a modification application made under s 96(1A) of the Act, to delete a condition of consent and to erect two fender piles on the seaward face each side of an existing pontoon below the Mean High Water Mark, (MHWM), within the waterway of Georges River on Crown land adjacent to Lot 8, DP 10615, being No 43 Harrow Street, Sylvania.

2 I visited the land in company with the parties on the morning of the hearing and Mr Bradfield the owner, explained that he intends to upgrade to a larger boat of around 35-foot “…a few years down the track”. He presently uses an 18-foot six-inch runabout. The fender piles would allow him “…to sensibly and safely get off a boat.” He agreed that, “…[the present arrangement] was not bad with the existing boat.”

3 I have concluded that the natural and manmade balance of the waterfront would be better served if the modification application for fender piles were refused consent.

The land

4 The land where the proposed fender piles would be situated is on the southern side of Harrow Street between Florida and Mowbray Streets at Sylvania. The land is on the Georges River and the waterfront is occupied by a seawall, concrete slipway and sliprails jetty ramp and pontoon.

Relevant planning controls

Sutherland Shire Local Environmental Plan 2000, (SSLEP)

5 Under the provisions of the SSLEP the land is zoned 7(a) Environmental Protection (Waterways) and the proposal as a ‘watercraft facility’ is permissible with consent.

6 The relevant objectives of the SSLEP are, [Note: Exhibit 2, Tab 10, p 4]:

(a) …
(b) a sustainable Sutherland Shire through the efficient and equitable management of land uses;
(c) …
(d) …
(e) …
(f) an environmentally appropriate balance of development that is ecologically sustainable, socially equitable, and economically viable and leads to a more sustainable outcome of Sutherland Shire;
(g) …
(h) …
(i) to protect environmentally sensitive areas;
(j) …
(k) …

7 The objectives of the 7(a) zone under the SSLEP are, [Note: Exhibit 2, Tab 10, p 70]:

(a) To recognise the importance of the waterways of Sutherland Shire, as an environmental and recreational asset for residents of the area and the Sydney region.
(b) To ensure development does not adversely affect the ecology, scenic value or navigability of the waterways.
(c) To ensure aquatic environments are not adversely affected by the recreational use of the waterways.
(d) Development that requires development consent includes development for the purpose of watercraft facilities.

8 ‘Watercraft facility’ under the SSLEP means ‘…a pontoon, suspended ramp or walkway, jetty, mooring, wharf, slipway, watercraft landing and launching facility or the like, but does not include a marina’.

Development Control Plan for Waterfront Development, (DCPWD)

9 On 21 October 2002, the council adopted DCPWD and it came into effect on 12 November 2002. Relevant clauses in this DCPWD are:

10 The purpose of the DCPWD is set out in cl 2.

The purpose of this plan is to provide a series of standards and objectives that are intended to guide the form of development in the waterfront areas of the Shire. The Shire's waterways and foreshore areas have both local and regional significance as they represent a valuable estuarine environment that provides the community with opportunities for passive and active recreation. The maintenance of the natural beauty of the waterways and the foreshores is important to the scenic quality of the Shire. Consequently, the development of these areas by individuals for private purposes carries with it a responsibility to ensure that the visual and environmental quality of these foreshore areas is maintained.
This plan seeks to allow development that is in harmony with the natural surrounding, which minimises the impact on the natural environment and acknowledges the importance of the waterways as natural public resource.

11 The objectives of the DCPWD are found in cl 3.

… are to:

12 Clause 10 elaborates on the type of development, which may be allowed below Mean High Water Mark (MHWM).

Pursuant to SSLEP 2000 ‘watercraft facilities’ are a permissible form of development within the 7(a) Environmental Protection zone below M.H.W.M. Watercraft facility means a pontoon, suspended ramp or walkway, jetty, mooring, wharf, slipway, watercraft landing and launching facility or the like, but does not include a marina.
Shared and communal arrangements for structures will be encouraged, where appropriate, in order to minimise the number of structures and their cumulative impact.
Any development below M.H.W.M should be setback a minimum 2.5m from the prolongation of the common lot boundary unless there is explicit provision for shared use of the facility by neighbouring properties.
Generally, any waterfront development that causes or has the potential to cause damage (includes shading) to marine vegetation, macro algae, sea grass or mangroves will not be approved.

13 Clause 10.1 Jetties, Ramps and Pontoons of the DCPWD outlines the specific controls that apply to particular types of development.

Jetty, ramp and pontoon structures are designed to facilitate access to private recreational vessels where a reasonable depth of water is available. The structures are intended only to be used for short stay embarking and disembarking of passengers and the transfer of personal goods. The following controls apply to jetties, ramps and pontoons:

Draft Sutherland Shire Local Environmental Plan 2004, (DSSLEP)

14 The DSSLEP zones the waterway as Environmental Protection (Waterway) and applies to the whole of the Shire (except for the Kurnell Peninsula) and was originally exhibited from 18 February to 3 May 2003 as Draft Sutherland Shire Local Environmental Plan 2003.

15 The council considered submissions received during the exhibition period in September 2003 and, following amendments to the draft instrument, a s.65 Certificate was issued by the Department of Infrastructure, Planning and Natural Resources (now the Department of Planning) to re-exhibit the Draft LEP. It was again exhibited, this time as Draft Sutherland Shire Local Environmental Plan 2004, from 1 December 2003 to 18 January 2004.

16 The council adopted the DSSLEP, with amendments, on 15 March 2004 and a report in accordance with s 68(4) of the EP&A Act was forwarded to the Department of Planning on 24 March 2004 for consideration and gazettal.

17 On 4 June 2004 the Department wrote to the council expressing 6 areas of immediate concern with the draft plan and requested Council to reconsider these specific aspects.

18 On 6 September 2004 the council resolved to carry out a limited review of the draft Plan. This review has taken place and has addressed the issues raised by Department and a number of other specific issues identified by the council.

19 At the council meeting held on Monday 11 April 2005 it was decided to make further amendments to the Draft Plan Local Environmental Plan and forward it to relevant public authorities for consultation pursuant to s 62 of the Environmental Planning and Assessment Act 1979. It was also decided that the Department of should be requested to issue a s 65 certificate to enable further public exhibition of the Draft Plan.

20 Under the provisions of the DSSLEP watercraft facilities are permissible with consent and the controls applying to jetties, ramps and pontoons currently embodied in cl 10.1 of the DCPWD are reiterated.

The proposal and its history

21 Modification application No MA 05/0174 was lodged with the respondent council on 9 June 2005 to modify development application No DA 05/0364, to delete Condition 4 and to erect two fender piles.

22 The proposal is described in plans prepared by Harbour Port Constructions Pty Limited and as shown in DWG 01, DWG 02, and DWG 03, dated February 2004. The statement of environmental effects by Harbour Port Constructions sets out full details of the development application.

23 During the course of the hearing it became clear that the around 400mm in diameter, white-painted fender piles, would stand around 3.5m above the level of the top of the pontoon at low tide and 1.5m above the top of the pontoon at high tide. The piles would be positioned 100mm forward (waterside) of the edge of the pontoon at high tide and 400mm forward of the edge of the pontoon at low tide. The centre of the piles would be positioned 600mm off the sides of the pontoon and thus around 4m apart. A vertical rubber buffer would be attached to each pile.

24 Development in the vicinity comprises above the MHWM, of detached dwellings and ancillary structures. Below the MHWM and in the vicinity of the subject land most properties have waterway access structures. Pontoons without fender piles are found nearby and there is a private marina to the east of the subject land.

The council’s decision

25 On 20 May 2005 the council issued development consent to development application No DA05/0364 and imposed a condition to delete the fender piles. On 9 June 2005 the applicant lodged a s 96 modification application with the council.

26 On 2 August 2005 the s 96-modification application was refused under delegated authority for two reasons that are reflected in the issues.

The hearing
27 The appeal was filed on 19 September 2005.
28 At the hearing the court heard evidence on behalf of the respondent council from:
· Mr M Adamson, town planner of the council; and
· Ms F Thomson, Maritime Services.

29 On behalf of the applicant evidence was given by:

· Mr C Turner, applicant’s representative and marine contractor; and

· Mr R Bradfield; owner of No 43 Harrow Street, Sylvania; and

· Mr L M Fletcher, consultant town planner.

30 Mr A Patterson was the Court-appointed consulting engineer.

31 Mark Adamson, Town Planner Sutherland Shire Council, prepared the statement of basic facts.

The issues

32 On 9 December 2005 the council filed an amended statement of issues.

1. The need for stabilisation/fender piles has not been sufficiently established in accordance with clause 10.1(f) of the Waterfront Development DCP (DCPWD).
2. The stabilisation/fender piles will adversely affect the scenic value of the waterway, introducing man-made structures and visual clutter in the waterway having regard to:

Particulars
The proposal is not in accordance with:

Particulars
8.1 Clause 2(a): the proposal does not have regard to the aim of protecting and managing the natural attributes of the NSW coast.
8.2 Clause 2(e): the proposal will adversely affect the visual amenity of the waterway. Regard must also be had to the undesirable precedent that approval of the proposal will set.
8.3 Clause 2(k): the proposed fender piles are inappropriate for the location and will adversely affect, rather than protect and improve, the natural scenic quality of the surrounding area.
8.4 Clause 2(l): the proposal is inconsistent with the Council's long term and consistently applied policy, which does not favour fender piles/berthing areas. Also see 7 above.

9.1 Clause 8(d): the proposed fender piles are unsuitable having regard to the adverse visual impact upon the waterway.
9.2 Clause 8(e): the proposal will have a detrimental impact on the amenity of the coastal foreshore, particularly with respect to visual impact.
9.3 Clause 8(f): the proposal will reduce the scenic qualities of the waterway, rather than protecting and improving these qualities.
9.4 Clause 8(p): The proposal will set an undesirable precedent and lead to cumulative impacts in the locality.

10. Any matters raised by the Director -General having regard to Part 3 of SEPP 71 - Significant Coastal Development. These matters are unknown at this stage.

33 Issues 8, 9 and 10 were not pressed and the following emerged as the salient issues:

· Clause 10.1(f) civil engineering justification.

· Whether the proposal would adversely impact on the scenic value and character of the waterfront.

· Precedent.

The evidence and findings

Clause 10.1(f) civil engineering justification

34 Mr Howard submitted that the applicant was content to rely on the civil engineering justification of Mr Patterson in Exhibit 4. Although there are some faint words of support for the structural necessity of fender piles in this report, these are few, and qualified and predicated on the fact that on most occasions when people are embarking or disembarking there is no need for fender piles. On the site inspection the boat sent to take us out into the Georges River came up to the pontoon stern first and passengers were then able to embark and disembark without the need for fender piles.

35 I am satisfied that the existing jetty, ramp and pontoon is structurally sufficient to provide ‘short stay embarking and disembarking of passengers and the transfer of personal goods’. The report of Mr Patterson makes it clear that the subject site is not in an area exposed to high tidal runouts, strong currents and large wind waves, and as such he cannot as a civil engineer demonstrate their need in this particular case.

36 In support of my finding, I refer to the statements of Mr Patterson that:

“There is no basis to support the contention that the fender piles will aid in the resistance of the pontoon to wave loads” as the piles are not connected to the pontoon, [Note: Exhibit 4, p 3]
“…if the pontoon is only to be used for the setting down and picking up of passengers” , substantial built up of storm winds could be avoided “…with plenty of warning, sufficient to move a vulnerable vessel off the pontoon berth to its normal mooring” , [Note: Exhibit 4, p 3].
“ There is no documentation regarding the capacity of the pontoon to resist horizontal [berthing and mooring] loads, and no details of the member sizes and connection sizes (bolt diameters, hinge sizes). However, on telephone enquiry to Mr Turner it was learnt that the connections between the jetty and ramp, and ramp and pontoon are designed with 24mm diameter steel hinge pins. In the case of narrow ramps (1.5 metres wide), there are two hinges top and bottom. With a 1.8 metre-wide ramp, which has three timber bearers, there are three pairs of hinge brackets. This arrangement permits vessel impacts up to a certain magnitude to be resisted by the pontoon alone. In the event of large vessel impacts or environmental loads on vessels, eg large vessel berthing under adverse weather conditions, such a system may have insufficient capacity, and the use of fender piles would be required. Sylvania, [is] located on [a] quite exposed coastline, subject to strong winds and because of the reasonable lengths of open water fetches would build up substantial wave heights in the design 50-year storm.
There are several pontoons of similar design and construction adjacent… It was noted that none of these had fender piles, so that it can be assumed that in terms of surviving the design storms, the pontoons themselves are adequate. [Note: Exhibit 4, p 4].
“…the actual structural need for the pontoon fender piles is not clearly established”, [Note: Exhibit 4, p 7].
“The pontoons are able to permit vessels up to about 10 metres to 12 metres to approach and berth at the pontoons in good weather, for the purpose of setting down and picking up passengers. This assumes attended vessels and short stays (ie vessels would not be subjected to storm conditions while at the pontoon,” [Note: Exhibit 4, p 7].

37 Mr Bradfield the owner of No 43 Harrow Street, Sylvania, presently owns a 18-foot six-inch runabout which he is able to comfortably bring alongside the existing pontoon to pick up and set down passengers. In anticipation of upgrading to a bigger boat, he seeks to modify the original consent and to delete Condition 4, and to erect two fender piles.

38 I am satisfied that the applicant has failed to advance engineering reasons sufficient to satisfy the requirements of cl 10.1(f) of the DCPWD, in support of the need for the fender piles. I refuse the application for this reason.

Scenic value and character of the waterfront

39 The council suggests that the proposed fender piles would adversely affect the scenic value of the waterway, under objective (b) of the 7(a) Environmental Protection (Waterways) zone, and under objectives (b), (e) and (i) of cl 2 of SSLEP, and objectives (b) and (g) of cl 3 of the DCPWD. Mr Adamson supports the council’s contention.

40 Mr Fletcher stated the proposal would not be “inconsistent or antipathetic to the objectives or provisions of these documents [planning instruments].” He added, [Note: Exhibit B, pp 3-4]:

Obviously, the fender piles will be visible from the water and, to varying degrees from adjoining properties. However, watercraft facilities are common on waterfront properties and therefore, in my opinion, although visible are not necessarily visually intrusive.
The proposed development is by no means the first visual intrusion on the waterfront in this locality. Apart from the existing slipway, jetty, ramp and pontoon on the subject property, there are several boatsheds as well as jetties, ramps and pontoons and the like within direct view and on both sides of the subject property along the edge of the Georges River. The foreshore area, and the backdrop to the foreshore area in this section of Georges River, is one that has been modified by residential development on the adjacent land and very little of the natural vegetation remains. The foreshore is not in a natural or pristine state. Rather it is a suburban foreshore with significant modification to natural land/water interface.
However, in my view people are not offended by the presence of watercraft facilities on or adjacent to the waterway and indeed it is an expected part of a suburban waterfront environment. In this context, providing there is a demonstrated need for them, the addition of two fender piles at the edge of the existing pontoon, ramp and jetty would, in my view, not constitute an unacceptable visual intrusion…

41 Contrary to the evidence of Mr Fletcher, I am satisfied that the scenic value would be adversely affected if the fender piles were erected. This is because each would stand around 3.5m above the level of the pontoon at low tide and 1.5m above at high tide and would be around 4m apart. The top the piles would be around 400mm in diameter and painted white and they would add to the visual clutter on the Georges River.

42 The existing pontoon is a low, horizontal element in the waterway and less visually intrusive than a pontoon with flanking fender piles.

43 I am satisfied that by limiting these privately owned fender piles the council would tend to achieve its objectives of:

· a sustainable Sutherland Shire and efficiently and equitably manage waterfront resources.

· an environmentally appropriate balance of development that is ecologically sustainable, socially equitable, and economically viable and leads to a more sustainable outcome for Sutherland Shire.

· protection of environmentally sensitive areas.

· development that does not adversely affect the scenic value of the waterways.

· minimisation of the visual impact of development when viewed from adjacent land and waterways;

· an appropriate balance between private development and the alienation of waterways, which is a public resource, from public use.

44 Under the requirements of the DCPWD the council seeks to minimise the visual impact of development when viewed from adjacent land and waterways; blend developments into the foreshore and waterfront environment by using designs and materials which complement the natural landscape; With fender piles this is not possible as they are required by Maritime to be painted white for safety and navigational reasons. This makes them stand out and as a result the fender piles become to some a visual disruption to the shoreline.

45 On merit, I consider the modification application fails for this reason.

Precedent

46 I am also satisfied having regard to existing and potential future developments of a similar kind in this section of the foreshore and waterway that were fender piles to proliferate in the Georges River, an undesirable precedent would result.

47 As was noted with approval by his Honour Lloyd J in Thorncraft & Anor v Bathurst Regional Council [2005] NSWLEC 571, and as stated in Goldin v Minister for Transport (2002) 121 LGERA 101, if a development application is objectionable and there is sufficient probability that further applications of a like-kind, are likely, the precedential effect should be taken into consideration.

48 Just as the applicant seeks to justify the proposed fender piles by reference to others nearby, so too would other applicants be likely to refer to the present application were it approved.

49 For the above reasons, the appeal is dismissed.

Orders
50 My orders are:
1. The appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 is dismissed.
2. Modification application No MA 05/0174 lodged with the respondent council on 9 June 2005 to modify development application No 05/0364 to delete Condition 4 and to erect two fender piles on the seaward face each side of an existing pontoon below the Mean High Water Mark, (MHWM), within the waterway of Port Hacking on Crown land adjacent to Lot 8, DP 10615, being No 43 Harrow Street, Sylvania, is refused consent.
3. The exhibits except for Exhibits A, 1, 8 and 11 are returned.

S J Watts

Commissioner of the Court

sw