Harbour Port East Coast Pty Ltd v Sutherland Shire Council

[2023] NSWLEC 1683

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Harbour Port East Coast Pty Ltd v Sutherland Shire Council [2023] NSWLEC 1683

Hearing dates:

23-24 May 2023, 26 July 2023

Date of orders:

13 November 2023

Decision date:

13 November 2023

Jurisdiction:

Class 1

Before:

Gray C

Decision:

In proceedings 2022/353257, the Court orders that:

(1) The appeal is dismissed.

(2) The development application for the construction of a shared access way, jetty and sea stairs, located at the prolongation of the boundary between 36 and 38 Woodlands Road, Taren Point (DA21/1085) is refused.

In proceedings 2022/353258, the Court orders that:

(1) The appeal is dismissed.

(2) The development application for the construction of a shared access way, jetty and sea stairs, located at the prolongation of the boundary between 28 and 30 Woodlands Road, Taren Point (DA21/1062) is refused.

The orders of the Court, as amended on 07 December 2023, are as follows:

In proceedings 2022/353256, the Court orders that:

(1) The appeal is dismissed.

(2) The development application for the construction of a shared access way, jetty and sea stairs, located at the prolongation of the boundary between 52A and 54 Woodlands Road, Taren Point (DA21/1164) is refused.

(3) Exhibits D, 1, 4 and 7 are returned, and remaining exhibits are retained.

Catchwords:

APPEAL – three development applications for jetties – impact on public access to the beach and foreshore – visual impact – precedent

Legislation Cited:

Coastal Management Act 2016 ss 4, 5, Sch 3 cl 4

Coastal Protection Act 1979

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Environmental Planning and Assessment Regulation 2000 cll 49, 50, 55

Environmental Planning and Assessment Regulation 2021, ss 23, 24, 39, Sch 6 s 3

Greater Metropolitan Regional Environmental Plan No 2—Georges River Catchment 1999

Interpretation Act 1987 s 30A

State Environmental Planning Policy Amendment (Water Catchments) 2022

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 11, ss 6.7, 6.9, 6.65, 11.7, 11.8

State Environmental Planning Policy (Coastal Management) 2018

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.2, 2.10, 2.11, 2.13

Sutherland Shire Local Environmental Plan 2015 (Amendment No 23)

Sutherland Shire Local Environmental Plan 2015 cll 1.8A(2A), 6.5, 6.7, 6.8, 6.9, 6.16,

Cases Cited:

Becton Corporation Pty Limited v Minister for Infrastructure, Planning and Natural Resources & Anor [2005] NSWLEC 197

BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399

Botany Bay City Council v Remath Investments No. 6 Pty Limited (2000) 111 LGERA 446; [2000] NSWCA 364

Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75

Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2023] NSWCA 264

Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374

Rose Bay Marina Pty Ltd v Minister for Urban Affairs and Planning (2002) 122 LGERA 255; [2002] NSWLEC 123

Royal Motor Yacht Club v Sutherland Shire Council (Land and Environment Court of New South Wales, 26 June 1987, unreported)

Stafford Quarries Pty Ltd v Kempsey Shire Council (1992) 76 LGRA 52

Wharf 11 Pry Ltd v Sydney City Council (Land and Environment Court of New South Wales, 15 February 1991, unreported)

Texts Cited:

Georges River Estuary Coastal Zone Management Plan, July 2013

Sutherland Shire Development Control Plan 2015

Category:

Principal judgment

Parties:

Harbour Port East Coast Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
M Astill (Applicant)
J Cole (Solicitor) (Respondent)

Solicitors:
Harris Freidman Lawyers (Applicant)
Messenger Cole Solicitors (Respondent)

File Number(s):

2022/353256
2022/353257
2022/353258

Publication restriction:

No

Judgment

1. COMMISSIONER: Woolooware Bay is on the lower estuarine of the Georges River immediately south-east of Captain Cook Bridge, and not far from where the Georges River opens to Botany Bay. The north-western shore of Woolooware Bay includes Taren Point Shorebird Reserve and looks out to the east across the bay toward Towra Point Nature Reserve. Between Taren Point Shorebird Reserve and Captain Cook Bridge, around 30 private dwelling houses on Woodlands Road have direct access to the waters of Woolooware Bay. Before the Court are three appeals concerning three separate development applications lodged by Harbour Port East Coast Pty Ltd (Harbour Port) for the construction of a jetty from a number of those dwellings to the water. Each of the three jetties proposed include the construction of a shared access way, jetty and sea stairs, located substantially on the public waterway and foreshore land at the prolongation of a shared boundary between two properties. Each development application was refused by Sutherland Shire Council (the Council) on 14 June 2022. Harbour Port appeals against each of those decisions pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. The Council remains opposed to the grant of development consent for each of the proposed jetties. Its position is that the proposed developments will have an adverse visual impact, an adverse impact on the habitat of the shorebird community, an adverse impact on public access for pedestrians using the beach and rock outcrops, and will set an undesirable precedent for additional jetties that will have a cumulative impact on the amenity of the natural and environmental values of the locality.

3. For the reasons that are set out below, I consider that the each of the proposed developments will have an adverse impact on public access to the beach and foreshore, and this impact is not acceptably minimised or mitigated in the proposed design. As set out below, I find that this alone is a sufficient basis on which the development applications should be refused. In addition, I find that each jetty will each have a visual impact that is unacceptable in the circumstances, and that, due to their visual impact, they have the potential to create an adverse precedent for future development that is similarly unacceptable. I have therefore determined to refuse the development applications.

The proposed developments

4. As set out above, there are three separate development applications, each for the construction of a shared access way from private properties, a jetty and sea stairs. Those development applications are for the following (the proposed developments):

• The construction of a shared access way, jetty and sea stairs, located at the prolongation of the shared boundary between 36 and 38 Woodlands Road (proceedings 2022/353257) (DA21/1085). The works are predominantly on the waterside of the mean high water mark, attached to the eastern opening of a boatshed on number 36 Woodlands Road. The jetty is proposed to connect to a decking platform that is 5.2m x 2.1m and connects to the boatshed. The jetty measures 27.3m from that platform, and at the eastern end of the jetty are a set of stairs 3m long that allow access to the water.

• The construction of a shared access way, jetty and sea stairs, located at the prolongation of the shared boundary between 28 and 30 Woodlands Road (proceedings 2022/353258) (DA 21/1062). The works are entirely on the waterside of the mean high water mark and therefore outside the boundaries of the two properties. The jetty is proposed to connect to a decking platform that is 3.6m x 1.6m and connects to a brick seawall that runs parallel to the rear boundaries of 28 and 30 Woodlands Road. The jetty measures 22m from that platform, and at the eastern end of the jetty are a set of stairs 3m long that allow access to the water.

• The construction of a shared access way, jetty and sea stairs, located at the prolongation of the shared boundary between 52A and 54 Woodlands Road, as well as a timber landing on 54 Woodlands Road and stairs connecting each of 52A and 54 Woodlands Road to the shared access way (proceedings 2022/353256) (DA21/1164). The works include the construction of a platform that is 2m x 1.5m located predominantly on 54 Woodlands Road, timber steps measuring 1.9m x 1.1m from the patio area on 54 Woodlands Road to that platform, timber steps at a perpendicular angle from the sand at 52A Woodlands Road to that platform, and a jetty located on the waterside of the mean high water mark that measures 27.2m from that platform, together with a set of stairs 3m long that allow access to the water.

5. Each structure is proposed to be constructed of hardwood decking and polyethylene clad piers, and have a width of 1.5m. Each of the shared jetties are positioned to function in a way that is connected to existing vessel access or storage facilities and provide a point of water access to safely launch and intermittently dock shallow draft vessels. The location of the proposed developments in their context in an aerial photograph is shown in Figure 1.

6. At the hearing, the Council agreed to an amendment to each of the development applications, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000), in accordance with amended plans that introduce stairs within the beach area on each side of each jetty. The stairs now form part of the proposed developments and enable members of the public using the beach area to walk up and over each jetty.

The locality of the proposed developments

7. Woolooware Bay is largely absent of notable man-made structures extending into the waterway, except for four historic dilapidated slip rails from old boat sheds. Those slip rails extend into the water from the private properties or boat sheds adjacent to the private properties at 24, 50, 52A and 54 Woodlands Road.

8. A natural sandy beach area extends north from the southern end of Taren Point Shorebird Reserve to around 24 Woodlands Road, where it becomes a rocky intertidal area with a skid ramp and slip rails at the rear of 24 Woodlands Road and some private structures built out beyond the mean high water mark in land reclamations. A seawall is continuous from 26 to 30 Woodlands Road. The natural sandy beach area is partly exposed in high tide and fully exposed in mid to low tide, and can be walked for its full length at that time, except that a person walking from the beach area adjacent to the Shorebird Reserve to the beach area adjacent to the residential properties to the north would be required to walk over the slip rails at the rear of 50, 52A and 54 Woodlands Road. The beach adjacent to the Shorebird Reserve is an open tidal sandflat, and the reserve provides public access to the beach and foreshore immediately south of 64A Woodlands Road. The beach widens to a large sandflat during mid to low tide in the area adjacent to the Shorebird Reserve, and the beach then narrows to the north of 54 Woodlands Road although the sandy beach and the rocky outcrop in the intertidal area becomes exposed during low tide. An aerial image of the beach area adjacent to the private properties north of 54 Woodlands Road is in Figure 2, and a photograph of the tidal sandflat adjacent to the Shorebird Reserve is contained in Figure 3. At certain high tides, not observed during the hearing, the sandy beach area shown in Figure 2 is inundated.

9. The adjacent marine environment is comprised of the open tidal sandflat, low rock outcrops and open water. These areas and Shorebird Reserve provide habitat for an assemblage of shorebirds known as the Taren Point Shorebird Community, which is an endangered ecological community. Mangroves and trees in the sandy flat habitat in the south-western corner of Woolooware Bay at the southern end of the beach area adjacent to the Shorebird Reserve provide additional roosting habitat for some of the shorebirds.

10. The eastern side of Woolooware Bay contains the internationally recognised migratory bird reserve known as the Towra Point Nature Reserve. To the south of the bay is a board walk and historic disused oyster farm wharf, and the board walk connects to a public walkway and bike path that links Atkinson Road in the south to Woodlands Road. Historically, the bay has been used for oyster cultivation but this use ceased some time ago.

11. Two site inspections were conducted in the course of the hearing, one in the morning close to high tide (a tide of around 1.2m), and the other in the afternoon close to low tide (around 0.8m).

The planning framework

12. The landward side of the mean high water mark, where the residential dwellings are sited, is zoned C4 Environmental Living pursuant to the Sutherland Shire Local Environmental Plan 2015 (SSLEP), and the area below the mean high water mark extending into the bay is zoned W1 Natural Waterways. Development for the purpose of water recreation structures is permissible in the W1 zone, and a water recreation structure is defined in the Dictionary to the SSLEP as follows:

water recreation structure means a structure used primarily for recreational purposes that has a direct structural connection between the shore and the waterway, and may include a pier, wharf, jetty or boat launching ramp.

13. The objectives of the W1 zone are as follows:

• To protect the ecological and scenic values of natural waterways.

• To prevent development that would have an adverse effect on the natural values of waterways in this zone.

• To provide for sustainable fishing industries and recreational fishing.

• To protect and preserve beaches and ensure they are free from man-made structures.

• To protect and enhance remnant natural features, aquatic habitat, public access and the navigability of waterways.

• To allow for a range of water recreation structures if their size, siting and form will not diminish the natural scenic character of the waterways, intertidal areas and aquatic reserves.

• To ensure that the natural scenic qualities of waterways are not diminished through the cumulative impact of man-made structures.

• To enable uses authorised under the Marine Estate Management Act 2014.

14. The objectives of the C4 land are:

• To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.

• To ensure that residential development does not have an adverse effect on those values.

• To allow for development that preserves and enhances the natural landscape setting of the locality.

• To protect and restore trees, bushland and scenic values particularly along ridgelines and in other areas of high visual significance.

• To ensure the character of the locality is not diminished by the cumulative impacts of development.

• 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 natural or man-made hazards.

• To allow the subdivision of land only if the size of the resulting lots makes them capable of development that retains or restores natural features while allowing a sufficient area for development.

• To share views between new and existing development and also from public space.

15. The proposed developments are all located on land mapped as territorial biodiversity, pursuant to cl 6.5 of the SSLEP. Clause 6.5 provides:

6.5 Environmentally sensitive land—terrestrial biodiversity

(1) The objective of this clause is to maintain terrestrial biodiversity by—

(a) protecting native fauna and flora, and

(b) protecting the ecological processes necessary for their continued existence, and

(c) encouraging the conservation and recovery of native fauna and flora and their habitats.

(2) This clause applies to land identified as “Environmentally Sensitive Land” on the Terrestrial Biodiversity Map.

(3) In deciding whether to grant development consent for development on land to which this clause applies, the consent authority must consider—

(a) whether the development is likely to have—

(i) any adverse impact on the condition, ecological value and significance of the fauna and flora on the land, and

(ii) any adverse impact on the importance of the vegetation on the land to the habitat and survival of native fauna, and

(iii) any potential to fragment, disturb or diminish the biodiversity structure, function and composition of the land, and

(iv) any adverse impact on the habitat elements providing connectivity on the land, and

(b) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

(4) Development consent must not be granted for development on land to which this clause applies unless the consent authority is satisfied that—

(a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or

(b) if that impact cannot be reasonably avoided by adopting feasible alternatives—the development is designed, sited and will be managed to minimise that impact, or

(c) if that impact cannot be minimised—the development will be managed to mitigate that impact.

16. The area that is waterside of the mean high water mark is also mapped as environmentally sensitive land on the Riparian Lands and Watercourses Map, in accordance with cl 6.7 of the SSLEP, and on the Natural Landforms Map, in accordance with cl 6.8 of the SSLEP. Clause 6.8 provides:

6.8 Environmentally sensitive land—environmental and scenic qualities of natural landforms

(1) The objectives of this clause are to protect and enhance the environmental and scenic qualities of natural landforms, including rock outcrops, cliffs, beaches and rock platforms.

(2) This clause applies to all land identified as “Environmentally Sensitive Land” on the Natural Landforms Map.

(3) In determining whether to grant development consent for development on land to which this clause applies, the consent authority must consider whether the development is likely to have any adverse impact on the environmental and scenic qualities of natural landforms.

(4) Development consent must not be granted for development on land to which this clause applies unless the consent authority is satisfied that the development—

(a) is designed, sited and will be managed to avoid any significant adverse environmental impact, or

(b) if that impact cannot be avoided by adopting feasible alternatives—the development is designed, sited and will be managed to minimise that impact, or

(c) if that impact cannot be minimised—the development will be managed to mitigate that impact.

17. Clause 6.9 of the SSLEP concerns development on the foreshore area, which is defined in the Dictionary to the SSLEP as “land between the foreshore building line and the mean high water mark of the nearest bay or river”, and the foreshore building line is that which is depicted on the Foreshore Building Line Map. However, only the proposed jetty for 52A and 54 Woodlands Road actually contains works within the area defined as the foreshore area under the SSLEP.

18. Sutherland Shire Local Environmental Plan 2015 (Amendment No 23) (Amendment 23) altered the wording of cl 6.9 of the SSLEP. The development applications were each uploaded to the NSW Planning Portal before the commencement of Amendment 23 on 29 April 2022. Clause 1.8A(2A) of the SSLEP sets out the following savings provision:

(2A) If a development application has been made before the commencement of Sutherland Shire Local Environmental Plan 2015 (Amendment No 23) in relation to land to which the Plan applies and the application has not been finally determined before the commencement, the application must be determined as if the Plan had not commenced.

19. Whether the altered wording of cl 6.9 applies to the proposed developments depends on the date on which the development applications are considered to have “been made”. Prior to Amendment 23, cl 6.9 permits development for the purpose of jetties, with the following operational provisions:

(3) Development consent must not be granted under this clause, unless the consent authority is satisfied that—

(a) the appearance of the development, from both the foreshore area and the adjacent waterway, will be compatible with the surrounding area, and

(b) the development will not cause environmental harm such as—

(i) pollution or siltation of the waterway, or

(ii) an adverse effect on surrounding uses, marine habitat, wetland areas or fauna and flora habitats, or

(iii) an adverse effect on drainage patterns, and

(c) the natural qualities of the foreshore area are retained or restored as far as practicable through the retention or reinstatement of natural levels and endemic vegetation, and

(d) the development will not cause congestion or generate conflict between people using open space areas or the waterway, and

(e) opportunities to provide continuous public access along the foreshore area and to the waterway will not be compromised, and

(f) any heritage significance of the foreshore area on which the development is to be carried out and of surrounding land will be maintained, and

(g) in the case of development for the alteration, extension or rebuilding of an existing building (or the erection of a new building) wholly or partly in the foreshore area, the alteration, rebuilding or new building will not have an adverse impact on the amenity or aesthetic appearance of the foreshore, and

(h) in the case of the erection of a new dwelling, the dwelling will not be erected further forward of the foreshore building line than any existing dwelling on the land, and

(i) it has considered sea level rise or change of flooding patterns as a result of climate change.

(4) In deciding whether to grant development consent for development on the foreshore area, the consent authority must consider whether and to what extent the development would facilitate the following—

(a) continuous public access to and along the foreshore area through or adjacent to the proposed development,

(b) public access to link with existing or proposed open space,

(c) public access to be secured by appropriate covenants, agreements or other instruments registered on the title to land,

(d) public access to be located above the mean high water mark,

(e) reinforcement of the foreshore character and respect for existing environmental conditions,

(f) management of any rise in sea level or change of flooding patterns as a result of climate change.

20. The changes to the wording of cl 6.9 brought about by Amendment 23 are of little substance in circumstances where very little of the proposed developments are sought to be carried out in the area defined as the foreshore area.

21. Clause 6.16 of the SSLEP was not altered by Amendment 23, and requires the consent authority to consider certain urban design principles when deciding whether to grant development consent, as follows:

6.16 Urban design—general

(1) In deciding whether to grant development consent for any development, the consent authority must consider the following—

(a) the extent to which high quality design and development outcomes for the urban environment of Sutherland Shire have been attained, or will be attained, by the development,

(b) the extent to which any buildings are designed and will be constructed to—

(i) strengthen, enhance or integrate into the existing character of distinctive locations, neighbourhoods and streetscapes, and

(ii) contribute to the desired future character of the locality concerned,

(c) the extent to which recognition has been given to the public domain in the design of the development and the extent to which that design will facilitate improvements to the public domain,

(d) the extent to which the natural environment will be retained or enhanced by the development,

(e) the extent to which the development will respond to the natural landform of the site of the development,

(f) the extent to which the development will preserve, enhance or reinforce specific areas of high visual quality, ridgelines and landmark locations, including gateways, nodes, views and vistas,

…

The State Environmental Planning Policy (Resilience and Hazards) 2021

22. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) also applies, and the land where the shared access ways for each of the jetties are proposed are mapped as Coastal Use Area pursuant to Ch 2. The coastal use area boundary runs parallel to and below the mean high water mark, such that the full length of the jetties are not within the coastal use area.

23. The full extent of the proposed developments is on land mapped as Coastal Environment Area pursuant to Ch 2 of the SEPP RH. The Coastal Environment Area extends from beyond the western boundaries of the properties on the eastern side of Woodlands Road north of the Shorebird Reserve, to the waters of Woolooware Bay. The land is therefore within the coastal zone as defined in s 5 of the Coastal Management Act 2016 (CM Act).

24. Although the SEPP RH commenced after the development applications were uploaded to the NSW Planning Portal, the provisions in Ch 2 are transferred provisions within the meaning of s 30A of the Interpretation Act 1987, and apply to the site in the same way as the State Environmental Planning Policy (Coastal Management) 2018 applied to the site, such that the provisions are “to be construed as if it had not been so transferred”. As such, the provisions of the SEPP RH apply, regardless of when the development applications are considered to have been made.

25. Section 2.10 of the SEPP RH applies to land within the coastal environment area, and s 2.11 applies to land within the coastal use area. Each requires the consideration of certain impacts, as follows:

2.10 Development on land within the coastal environment area

(1) Development consent must not be granted to development on land that is within the coastal environment area unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on the following—

(a) the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment,

(b) coastal environmental values and natural coastal processes,

(c) the water quality of the marine estate (within the meaning of the Marine Estate Management Act 2014), in particular, the cumulative impacts of the proposed development on any of the sensitive coastal lakes identified in Schedule 1,

(d) marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms,

(e) existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(f) Aboriginal cultural heritage, practices and places,

(g) the use of the surf zone.

(2) Development consent must not be granted to development on land to which this section applies unless the consent authority is satisfied that—

(a) the development is designed, sited and will be managed to avoid an adverse impact referred to in subsection (1), or

(b) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

(c) if that impact cannot be minimised—the development will be managed to mitigate that impact.

(3) This section does not apply to land within the Foreshores and Waterways Area within the meaning of State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chapter 6.

2.11 Development on land within the coastal use area

(1) Development consent must not be granted to development on land that is within the coastal use area unless the consent authority—

(a) has considered whether the proposed development is likely to cause an adverse impact on the following—

(i) existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(ii) overshadowing, wind funnelling and the loss of views from public places to foreshores,

(iii) the visual amenity and scenic qualities of the coast, including coastal headlands,

(iv) Aboriginal cultural heritage, practices and places,

(v) cultural and built environment heritage, and

(b) is satisfied that—

(i) the development is designed, sited and will be managed to avoid an adverse impact referred to in paragraph (a), or

(ii) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

(iii) if that impact cannot be minimised—the development will be managed to mitigate that impact, and

(c) has taken into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development.

(2) This section does not apply to land within the Foreshores and Waterways Area within the meaning of State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chapter 6.

26. Pursuant to s 2.2 of the SEPP RH, words and expressions in Ch 2 of the SEPP RH have the same meanings as they have in the CM Act. The word “beach” is defined in s 4 of the CM Act, as is the word “foreshore”, as follows:

beach means an area that is generally composed of sand or pebbles or similar sediment that extends landwards from the lowest astronomical tide to the line of vegetation or bedrock or structure.

…

foreshore means the area of land between the highest astronomical tide and the lowest astronomical tide.

27. The area defined as ‘foreshore’ pursuant to the SEPP RH is therefore distinct from the ‘foreshore area’ under the SSLEP (described above at [17]), although the land between the mean high water mark and the highest astronomical tide falls within both. The considerations required by cl 6.9 of the SSLEP and Ch 2 of the SEPP RH are similarly distinct, although there may be some overlap.

28. Section 2.13 of the SEPP RH requires consideration the provisions of a certified coastal management program, as follows:

2.13 Development in coastal zone generally—coastal management programs to be considered

Development consent must not be granted to development on land within the coastal zone unless the consent authority has taken into consideration the relevant provisions of any certified coastal management program that applies to the land.

29. Based on s 2.2(1) of the SEPP RH, the words “certified coastal management program” include a coastal zone management plan under the Coastal Protection Act 1979, which continues to have effect under cl 4 of Sch 3 to the CM Act. The relevant plan is the Georges River Estuary Coastal Zone Management Plan, dated July 2013.

The State Environmental Planning Policy (Biodiversity and Conservation) 2021

30. The land on which the proposed developments are located is within the area identified as the Georges River Catchment pursuant to the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C). However, the provisions in the SEPP B&C that apply to land in the Georges River Catchment changed on 21 November 2022, which post-dates the date on which the development applications were uploaded to the NSW Planning Portal. The savings provision is found at s 6.65 of the SEPP B&C, as follows:

6.65 Savings and transitional provisions

(1) The former provisions continue to apply, and the other provisions of this Chapter do not apply, to an application for development consent lodged, but not finally determined, before the commencement of State Environmental Planning Policy Amendment (Water Catchments) 2022.

…

(3) In this section—

former provisions means—

(a) Chapters 6–12 as in force immediately before their repeal by State Environmental Planning Policy Amendment (Water Catchments) 2022, and

(b) the provisions of each environmental planning instrument amended by State Environmental Planning Policy Amendment (Water Catchments) 2022 that would be in force if the instrument had not been amended by that Policy.

31. The date of commencement of State Environmental Planning Policy Amendment (Water Catchments) 2022 is 21 November 2022.

32. If the development applications are considered to have been “lodged, but not finally determined” before 21 November 2022, the applicable provisions are found in Ch 11 of SEPP B&C, which relates to the Georges River Catchment. Pursuant to s 11.8, jetties are permissible with development consent under the heading “marinas and slipways”, and the following must be considered:

The need for a condition of consent requiring centralised pumping stations.

Whether adverse impacts will occur on any natural wetlands, seagrass beds, mangroves and any other flora and fauna habitats.

Whether arrangements for the collection, storage, treatment and subsequent disposal of sewage and other wastes are satisfactory and meet the requirements of the Environment Protection Authority.

Whether measures to prevent the escape of fuels, oils, grease and other chemicals into the waterway are adequate.

Whether the proposal satisfies the document entitled Environmental Guidelines: Best Management Practice for Marinas and Slipways (1997) prepared by and available from the Environment Protection Authority.

Whether adequate depth of water exists for the marina and other related land and water shoreline facilities and, if not, whether the means proposed for maintaining adequate water depth are appropriate and will not lead to adverse impacts on the Georges River or its tributaries.

The stability of banks and foreshores and whether acid sulfate soils are likely to be disturbed.

33. In addition, s 11.7 of SEPP B&C sets out specific planning principles that are required to be considered when a consent authority determines a development application. The planning principles most relevant to the contentions raised in these proceedings are at (5) and (7) of s 11.7 as follows:

(5) Land degradation

Land degradation processes, such as—

(a) erosion,

(b) sedimentation,

(c) deterioration of soil structure,

(d) significant loss of native vegetation,

(e) pollution of ground or surface water,

(f) soil salinity and acidity, and

(g) adverse effects on habitats and sensitive natural environments (aquatic and terrestrial) within the Catchment,

must be avoided where possible, and minimised where avoidance is not possible.

…

(7) River-related uses

Uses located on immediate foreshore land on the Georges River and its tributaries must be water-related and public access to the foreshore of the river and its tributaries must be provided in order to enhance the environment of the Catchment.

34. However, if the development applications are considered to have been “lodged, but not finally determined” on or following 21 November 2022, the applicable provisions are contained in Ch 6, which apply to a number of catchments including the Georges River Catchment. The relevant sections, relied upon by the Council, are ss 6.7 and 6.9 as follows:

6.7 Aquatic ecology

(1) In deciding whether to grant development consent to development on land in a regulated catchment, the consent authority must consider the following—

(a) whether the development will have a direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation,

(b) whether the development involves the clearing of riparian vegetation and, if so, whether the development will require—

(i) a controlled activity approval under the Water Management Act 2000, or

(ii) a permit under the Fisheries Management Act 1994,

(c) whether the development will minimise or avoid—

(i) the erosion of land abutting a natural waterbody, or

(ii) the sedimentation of a natural waterbody,

(d) whether the development will have an adverse impact on wetlands that are not in the coastal wetlands and littoral rainforests area,

(e) whether the development includes adequate safeguards and rehabilitation measures to protect aquatic ecology,

(f) if the development site adjoins a natural waterbody—whether additional measures are required to ensure a neutral or beneficial effect on the water quality of the waterbody.

(2) Development consent must not be granted to development on land in a regulated catchment unless the consent authority is satisfied of the following—

(a) the direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation will be kept to the minimum necessary for the carrying out of the development,

(b) the development will not have a direct, indirect or cumulative adverse impact on aquatic reserves,

(c) if a controlled activity approval under the Water Management Act 2000 or a permit under the Fisheries Management Act 1994 is required in relation to the clearing of riparian vegetation—the approval or permit has been obtained,

(d) the erosion of land abutting a natural waterbody or the sedimentation of a natural waterbody will be minimised,

(e) the adverse impact on wetlands that are not in the coastal wetlands and littoral rainforests area will be minimised.

(3) In this section—

coastal wetlands and littoral rainforests area has the same meaning as in the Coastal Management Act 2016, section 6.

…

6.9 Recreation and public access

(1) In deciding whether to grant development consent to development on land in a regulated catchment, the consent authority must consider—

(a) the likely impact of the development on recreational land uses in the regulated catchment, and

(b) whether the development will maintain or improve public access to and around foreshores without adverse impact on natural waterbodies, watercourses, wetlands or riparian vegetation.

(2) Development consent must not be granted to development on land in a regulated catchment unless the consent authority is satisfied of the following—

(a) the development will maintain or improve public access to and from natural waterbodies for recreational purposes, including fishing, swimming and boating, without adverse impact on natural waterbodies, watercourses, wetlands or riparian vegetation,

(b) new or existing points of public access between natural waterbodies and the site of the development will be stable and safe,

(c) if land forming part of the foreshore of a natural waterbody will be made available for public access as a result of the development but is not in public ownership—public access to and use of the land will be safeguarded.

(3) This section does not apply to development on land in a regulated catchment if the land is in a special area under the Water NSW Act 2014.

35. The Council placed significant reliance on s 6.9 of SEPP B&C to support its position in relation to the impact of the proposed developments on public access to the river foreshore. However, I have reached the conclusion, contrary to the parties’ agreed position, that the savings provisions in each of cl 1.8A(2A) of the SSLEP and s 6.65 of the SEPP B&C are operative, such that the applicable wording of cl 6.9 of the SSLEP is that prior to Amendment 23 and the applicable provisions of the SEPP B&C are those contained in the now repealed Ch 11, and s 6.9 of the SEPP B&C does not apply. The reasons for this conclusion are lengthy and are therefore set out separately below (commencing at [40]).

The Sutherland Shire Development Control Plan 2015

36. Chapter 10 of the Sutherland Shire Development Control Plan 2015 (SSDCP) concerns Foreshores and W1 Natural Waterways, and has specific development controls concerning jetties. The objectives are set out at section 1, which describes the waterways and foreshore areas in the following way:

“The Shire's waterways and foreshore areas have 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. The objective of these provisions is to ensure that the visual and environmental qualities of the foreshore and waterfront areas of Sutherland Shire are maintained and enhanced over time, whilst providing opportunities for passive and active recreation and boating.”

37. The objectives of the chapter are as follows:

“1. Ensure that development visible from the foreshore, waterways and public domain makes a positive contribution to the foreshore and natural setting of the area.

2. Ensure development is compatible with the scale, character and landscape setting of the foreshore, natural setting and scenic quality and that the environment’s natural qualities dominate.

3. Retain and enhance existing natural features, trees and bushland in the foreshore area.

4. Minimise the impact of development on the natural landform of the foreshore and waterway by integrating structures into the site with minimal change to the natural topography.

5. Integrate developments in the foreshore and waterfront environment by using design and materials which complement the natural landscape.

6. Minimise adverse environmental impacts from development and where possible, improve environmental qualities along the foreshores.

7. Minimise the visual impact of foreshore and waterway structures when viewed from adjacent land, foreshores and waterways.

8. Achieve an appropriate balance between private development and the public use of waterways.

9. Maintain and improve public access to the intertidal area of the waterfront.

10. Ensure that any development does not obstruct or interfere with the physical manoeuvring of vessels and navigation within the waterway.”

38. The controls concerning water recreation structures, including jetties, that are relevant to the proposed developments, are:

“1. Man-made structures must not occupy a total of more than 10 metres or 50% (whichever is the lesser) of the land-water interface, measured along the MHWM, of each property.

2. At least 50% of the foreshore area should retain or restore the natural landform and be landscaped with indigenous species chosen from Council’s Native Plant Selector available on Council’s website.

3. The maximum surface area of water recreation structures is 25m2 per lot.

4. Water recreation structures below the deemed mean high water mark must 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.

5. A fixed jetty is not to exceed a length of 20m from deemed mean high water mark including any reclamations.

6. A suspended ramp must not exceed a length of 6m.

7. Any fixed jetty is not to exceed a length of 20m or the minimum length needed to reach the 0.0 tide height contour (-0.93m AHD), whichever is the lesser.

8. Any jetty, ramp and pontoon structure is not to exceed a length of 20m or the minimum length needed to reach 600mm water depth at 0.0 low tide (-1.53m AHD), whichever is the lesser.

9. The maximum width of a jetty must be 2m and the maximum height must be limited to 750 mm above MHWM (i.e. the maximum height is 1.29m AHD).

…

13. Jetties are to be supported on piles.

14. Water recreation structures are to be constructed primarily of timber to complement the natural character and scenic qualities of the waterfront and foreshore.

15. Water recreation structures are to be treated in brown or dark tones to reduce the visual impact of the structure or can be left as natural timber, except when alternative treatments are necessary for public safety.

16. Water recreation structures must be designed and constructed so that they do not cause damage, or have the potential to cause damage (including shading) to marine vegetation, macro-algae, seagrass or mangroves.

17. No water recreation structure will be permitted over Posidonia australis (strapweed seagrass). Jetties and ramps constructed with suitable mesh decking may be permitted over Zostera Capricorni and other seagrasses.

18. A jetty must be designed and constructed in such a manner as to not adversely affect the natural movement of water and not cause the accumulation of weed, sediment or other material.

19. The construction of “L” or “T” ends or other types of elongations or steps at right angles to jetties is not permitted.

20. Water recreation structures must not impact on the navigation or recreational value of the adjoining waterway.

21. Water recreational structures must not interfere with publicly accessible areas along the waterfront.

22. Council strongly supports the use of shared facilities for two or more adjoining waterfront properties. This particularly applies in confined bays and areas of particular environmental sensitivity.”

39. The proposed developments do not comply with the controls with respect to the height or length of jetties, and there is a dispute concerning whether the jetties interfere with publicly accessible areas along the waterfront.

The savings provisions in the SSLEP and SEPP B&C apply

40. The relevant dates with respect to each development application are:

• The development application for 36 and 38 Woodlands Road (DA 21/1085) was uploaded to the Planning Portal on 21 September 2021 and the filing fee was paid on 27 October 2021.

• The development application for 28 and 30 Woodlands Road (DA 21/1062) was uploaded to the Planning Portal on 17 September 2021 and the filing fee was paid on 12 October 2021.

• The development application for 52A and 54 Woodlands Road (DA 21/1164) was uploaded to the Planning Portal on 21 September 2021 and the filing fee was paid on 30 November 2021.

41. Each of the development applications were accompanied by letters of owners’ consent from Transport for NSW (TNSW) on behalf of Roads and Maritime Services (RMS), except that the consent letter was dated 24 September 2020 and was stated to be valid “for 12 months from the date of this letter”.

42. A current owners’ consent from TNSW for each of the development applications was then provided as an annexure to the joint expert report in town planning, and each letter of consent is dated 27 March 2023.

43. In determining whether the development applications are considered to have been “made” prior to 29 April 2022 for the purpose of cl 1.8A(2A) of the SSLEP or “lodged” prior to 21 November 2022 for the purpose of s 6.65 of the SEPP B&C, it is necessary to consider the relevant regulations under the EPA Act. However, those too, have been recently replaced by new provisions in the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021) which contains a savings provision in Sch 6 s 3 for development applications “submitted but not determined before 1 March 2022”.

The parties’ position

44. The parties’ agreed position is that the development applications were neither ‘made’, ‘lodged’ nor ‘submitted’ until such time as the final version of the owners’ consent of TNSW was provided, which was in March 2023. They say that until that occurred, the development application was incomplete and was therefore not “made” or “lodged”.

45. There are a number of authorities that support the parties’ position. In Botany Bay City Council v Remath Investments No. 6 Pty Limited (2000) 111 LGERA 446; [2000] NSWCA 364, the Court of Appeal found that the development applications were not “made” before a given date because they were not accompanied by an environmental impact statement, which was required by cl 77 of the applicable regulations to accompany applications for designated development. The Court found that there has to be “substantial compliance” with the requirements for a development application before it can be considered to be made. Stein JA summarised the principles in the following way (at [13]-[15]):

“13 I see no warrant for splitting the requirements of a development application between it being made in the prescribed form and the documents necessary to accompany it, as well as the payment of the fee. I cannot accept that the latter requirements may be hived off so as not to be requirements for the making of the development application.

14 That is not to say that a development application is invalid or void if it is not accompanied by, for example, an EIS, SIS or the prescribed fee, at the very time of its lodgment with the consent authority. Substantial compliance may be satisfied by the later accompaniment of the required document under subparas (c), (d) or (d1) or the fee under subclause (e) of s 77(3).

15 For the purposes of this case, the construction which I favour means that the EIS has to substantially comply with the requirements of the unamended Act prior to the appointed day (1 July 1998) for it to qualify under cl 11 as a development application made but not determined under the unamended Act.”

46. In Rose Bay Marina Pty Ltd v Minister for Urban Affairs and Planning (2002) 122 LGERA 255; [2002] NSWLEC 123, the Court found that a development application lodged by a person other than the owner of the land, without being accompanied by owners’ consent, was “incomplete and ineffective”. This conclusion was reached based on the requirement in the regulation for a development application to be “made” either by the owner of the land, “or by any other person, with the consent in writing of the owner of that land”.

47. In Becton Corporation Pty Limited v Minister for Infrastructure, Planning and Natural Resources & Anor [2005] NSWLEC 197 at [7] (Becton), Lloyd J confirmed that “it is settled law that a development application which is not accompanied by the landowner’s consent is not made within the meaning of cl 49(1) of the EP&A Regulation”. Clause 49(1) of the EPA Regulation 2000, at that time, required a development application to be “made… by any other person, with the consent in writing of the owner of that land”.

48. The parties’ agreed position is that, because the development applications were not accompanied by a valid written owners’ consent and there was no completed “owners consent” section in the development application forms, they were incomplete and ineffective, not being in the “form approved” and not being made with the consent of the owner of the land.

The provisions of the EPA Regulation 2021

49. The EPA Regulation 2021 provides the following with respect to the making of development applications:

23 Persons who may make development applications

(1) A development application may be made by—

(a) the owner of the land to which the development application relates, or

(b) another person, with the written consent of the owner of the land.

…

24 Content of development applications

(1) A development application must—

(a) be in the approved form, and

(b) contain all the information and documents required by—

(i) the approved form, and

(ii) the Act or this Regulation, and

(c) be submitted on the NSW planning portal.

(2) The fees payable for a development application are specified in Schedule 4 and determined in accordance with Part 13, including additional fees for integrated development, development requiring concurrence and designated development.

(3) A development application is lodged—

(a) on the day on which the fees payable for the development application under this Regulation are paid, or

(b) if the applicant is notified under Part 13 that no fee is required—on the day the applicant submitted the application on the NSW planning portal.

(4) The applicant must be notified through the NSW planning portal that the development application has been lodged.

(5) If the council is not the consent authority, the consent authority must give the council a copy of—

(a) the development application, and

(b) for designated development—the environmental impact statement.

50. The relevant savings provision is at Sch 6 s 3 as follows:

3 Applications submitted before 1 March 2022

(1) The 2000 Regulation continues to apply instead of this Regulation to the following applications submitted but not finally determined before 1 March 2022—

(a) a development application,

(b) an application for a complying development certificate,

(c) a modification application,

(d) an application to modify a complying development.

(2) Despite subsection (1), a requirement to use the NSW Planning Portal under the 2000 Regulation, clause 55(1), 55AA(2)(d) or 121B(1) does not apply if the development application or modification application is subject to proceedings in the Court.

51. Also of relevance is the ability of a consent authority to reject a development application in s 39, with the following provision in s 39(2) concerning whether the development application was made:

(2) For the purposes of the Act, a development application is taken never to have been made if—

(a) the application is rejected by a consent authority under this section, and

(b) the determination to reject the application is not changed following a review.

52. In my view, the use of the word “submitted” in the EPA Regulation 2021 imparts a different meaning from that imparted by the use of the word “made”. There is a clear consistency in the use of the word “submitted” in ss 24(1)(c) and 24(3)(b), and again in the savings provision in Sch 6 s 3, and a deliberate departure from the use of the word “made” in s 23(1) and “lodged” in s 24(3). The word “submitted” in ss 24(1)(c) and 24(3)(b) is used in reference to it being uploaded to the NSW Planning Portal, and therefore relates to the development application being provided or conveyed to the consent authority rather than it being “made” or “lodged”. Given that an incomplete development application can be submitted, and subsequently rejected pursuant to s 39 without it being considered to be “made”, the absence of owners’ consent, in my view, does not mean it cannot be considered to have been “submitted”.

53. As each of the development applications the subject of these appeals were uploaded on the NSW Planning Portal prior to 1 March 2022, they were submitted prior to 1 March 2022 and the EPA Regulation 2000 applies.

54. Even if I am wrong in the conclusion reached above in [52] and the consent of the owners of the land is required for a development application to be considered as “submitted”, the development applications the subject of these appeals were, in fact, accompanied by owners consent. The owners’ consent letter from TNSW dated 24 September 2020 was provided with the development application. Whilst there may be questions about its currency or sufficiency, those questions raise separate issues that do not detract from the fact that owners’ consent was provided.

The provisions of the EPA Regulation 2000

55. Clause 49(1) of the EPA Regulation 2000, at the time of its repeal, allowed a development application to be made by the owner of the land, or “by any other person, with the consent of the owner of the land”. Clause 49(4A) makes it clear that the consent of the owner “is not required to be in writing”.

56. Clause 50 then sets out the manner in which a development application is made, and includes the following:

(1) A development application, other than an application for State significant development, must—

(a) be in the form that is approved by the Planning Secretary and made available on the NSW planning portal, and

(b) contain all of the information that is specified in the approved form or required by the Act and this Regulation, and

(c) be accompanied by the information and documents that are specified in Part 1 of Schedule 1 or required by the Act and this Regulation, and

(d) be lodged on the NSW planning portal.

…

(9) A development application is taken not to have been lodged until the fees notified to the applicant by means of the NSW planning portal have been paid.”

57. As I summarised above, the parties’ position is that, prior to March 2023, the development application was not accompanied by a valid written owners’ consent and there was no completed signature in an “owners consent” section of the development application form, which means that cl 50(1) was not complied with and the development application could not be considered “made” or “lodged”.

58. I do not accept the parties’ position. Firstly, the requirement of cl 49(1) was met when the development applications were lodged on the NSW Planning Portal, as the development applications were accompanied by the consent of the owners of the land. Whilst it is true that the letter of consent from TNSW includes a statement that the “consent is valid for 12 months from the date of this letter”, this raises a question about the adequacy or currency of the written consent, but it does not nullify its existence. The statements in Rose Bay and Becton relate to development applications that are not accompanied by owners’ consent. In fact, the development applications presently before the Court were accompanied by owners’ consent.

59. I note also that, insofar as the letter of consent purported to withdraw owners’ consent after a period of 12 months, it is well established that once given, owners’ consent cannot be withdrawn (see Wharf 11 Pry Ltd v Sydney City Council (Land and Environment Court of New South Wales, 15 February 1991, unreported)) and cannot be made conditional upon a particular design being pursued (see Royal Motor Yacht Club v Sutherland Shire Council (Land and Environment Court of New South Wales, 26 June 1987, unreported); Stafford Quarries Pty Ltd v Kempsey Shire Council (1992) 76 LGRA 52 at 55-56).

60. Secondly, there was substantial compliance with cl 50(1)(a) of the EPA Regulation 2000 as, without any evidence to the contrary, each of the development application forms were completed and in the form “approved by the Planning Secretary and made available on the NSW planning portal”. On the date that these proceedings were re-listed on this question of whether the savings provisions apply, the parties provided a development application form that they asserted was that which was “approved by the Planning Secretary and made available on the NSW planning portal”. However, the form provided was related to proposals requiring the consent of the Minister for Planning. However, the Minister for Planning is not the consent authority for the proposed developments and that form is not relevant. Instead, having regard to each of the forms submitted through the NSW planning portal (Ex A, B and C) and on the assumption that the form available on the NSW planning portal was that which was submitted, each part of the form is completed and there is no requirement for a signature of owners’ consent on the form.

61. There was no other reason advanced by the parties as to why the development applications could not be considered to have been “lodged” or “made” prior to the relevant dates contained in the two savings provisions. In accordance with cl 50(9) of the EPA Regulation 2000, the development applications were “lodged” on the date that the fee was paid. They were also “made” on the same date: see Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2023] NSWCA 264 at [129]-[130].

62. Although the dates vary for each development application, this means that each application was “made” and “lodged” prior to the relevant dates in the savings provisions in cl 1.8A(2A) of the SSLEP and s 6.65 of the SEPP B&C. Accordingly, both these savings provisions apply and the applicable wording of cl 6.9 of the SSLEP is that prior to Amendment 23, and the applicable provisions of the SEPP B&C are those contained in the now repealed Ch 11. Although Ch 11 of the SEPP B&C commenced after the development applications were made, the provisions in Ch 11 are transferred provisions within the meaning of s 30A of the Interpretation Act 1987, and apply to the site in the same way as the Greater Metropolitan Regional Environmental Plan No 2—Georges River Catchment applied to the site, and the provisions are “to be construed as if it had not been so transferred”.

63. For these reasons, s 6.9 of the SEPP B&C does not apply to the assessment of the proposed developments. In reaching this conclusion contrary to the parties’ agreed position, I am aware that the parties’ have not had the opportunity to address the Court on Ch 11 of the SEPP B&C. This is of little moment as I have reached a decision on the proposed developments by reference to the SEPP RH, the SDCP, and the provisions of the SSLEP that remain unamended by Amendment 23, each of which were before the Court at the hearing and in relation to which each party had the opportunity to address the Court.

The expert evidence

64. Expert opinion evidence on the town planning issues was given by Mr Benjamin Black, a town planner engaged by Harbour Port, and Mr Joseph Vescio, a town planner engaged by the Council.

65. Mr Black and Mr Vescio agree that, when viewed from the waterway, the existing land based development between 2 and 64 Woodlands Road makes a significant contribution to the character of the foreshore and the scenic quality of the locality. They agree that the ‘foreshore area’, as defined in the SSLEP, has been heavily altered by development. However, they disagree as to the appropriateness of the anticipated visual impact that the proposed developments will have on the natural scenic qualities of the locality, the extent of the existing public access to the beach that is adjacent to 28 to 50 Woodlands Road, and the extent to which the proposed developments will impact on the safe and convenient access by the public to that beach.

64. Expert opinion evidence on the impact of the proposed developments on the Taren Point Shorebird Community was given by Ms Elizabeth Ashby, an ecologist engaged by Harbour Port, and Ms Cally Collins, an ecologist employed by the Council. They agree that the proposed developments will result in minor adverse impacts to the marginal foraging and roosting habitat of the Taren Point Shorebird community located in the vicinity of the development footprints, but disagree as to whether or not that impact is significant.

Public access to the beach and foreshore

67. The Council contends that the proposed developments will significantly and adversely impact on safe and convenient access for pedestrians traversing the beach at low to mid tides. The Council points out that, at mid to low tide, the sand connection from Shorebird Reserve is revealed to allow public access along to the continuous beach connection of the Woodlands Road foreshore, all the way to 22 Woodlands Road, which has a reclamation area that protrudes and restricts access to only the lower tide. The Council says that the full extent of the beach, including along the water frontages of 24 to 54 Woodlands Road, is of public benefit given the shallow topography, and is attractive for recreational fishers, students and children playing, walkers and bird watchers. The Council’s position is that any jetty, regardless of length, presents as a major and insurmountable obstacle and an intrusive impasse for the walkable area of the beach and foreshore.

68. The Council’s position is supported by the evidence of Mr Vescio, who opines that the vast area of flat rock outcrop and sandy beach available at mid-low tide is of public benefit “given the shallow topography and interest the natural area provides” (Ex 2, p 19). His evidence is that the area that is accessible is considered “attractive for recreational fishers, children playing, walkers and bird watchers”, such that any jetty “presents as a major and unreasonable obstacle and an intrusive impasse for the walkable area of the foreshore” (Ex 2, p 19). His evidence is also that this is not adequately resolved by the introduction of stairs, which will discourage free range casual traversal of the beach and creates a physical barrier to less able bodied users of that area.

The applicant’s position that any impact is insignificant

69. Harbour Port’s position is instead that the existing public access is limited, with no access in high tide and access impeded by slip rails and a boat shed at mid and low tide. Harbour Port submits that the jetties, by their very nature, will affect public access in some way, but that any additional limitation on access is minimal, especially with the addition of the steps over the jetties. In circumstances where jetties are anticipated development in the zone, Harbour Port submits that they cannot be considered inappropriate in and of themselves, and there must be something about their design that make them inappropriate.

70. In support of the latter proposition, Harbour Port relies on the decision of the Court in BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 (BGP Properties), in which McClellan CJ of the LEC found that development that is permissible in the zone ought to be considered suitable, provided that the environmental impacts are acceptable. His Honour stated:

“117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.

118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.”

71. Harbour Port submits that, in circumstances where the W1 zone has a very confined range of permissible uses, additional weight should be given to the permissibility of the jetties and that there is nothing about the design of the jetties that make the impact of the jetties unacceptable. Harbour Port therefore submits that a “water front owner would expect to be able to achieve approval [for] a jetty for themselves” (Written submissions, p 6).

72. Further, Harbour Port submits that the provisions of the SLEP in cll 6.5, 6.8 and 6.9, and those in the SEPP RH in ss 2.10 and 2.11, do not require that there be no impact, but allow the impact to be minimised or mitigated. Harbour Port says that a jetty necessarily requires something to traverse the beach perpendicular to the shoreline, such that the impact can’t be eliminated, but that the impact is not significant in the circumstances where the existing public area is uninviting, and it is also minimised by the provision of public access stiles.

73. In support of its position, Harbour Port relies on the evidence of Mr Black, who opines that the public access to the beach area fronting the sites is overstated by the Council and Mr Vescio, and that any use of that area is likely to be ad-hoc. Mr Black opines instead that the area is unsuitable to walk over due to large areas or rock and areas covered in oyster shells, and that public access to the foreshore and along the waterways remains in the open area that is most attractive for recreational users, to the south of 64 Woodlands Road, which can be accessed directly from a public reserve.

Each of the jetties unacceptably impede public access along the beach and foreshore

74. I consider that, having regard to the provisions of each of the SEPP RH and the SSDCP, each of the jetties unacceptably impede public access to the beach and foreshore, and this impact is not acceptably minimised or mitigated in the proposed design.

75. Contrary to the position advanced by Harbour Port, it is not sufficient that a jetty is permissible such that any impacts resulting from the inherent nature of its design are required to be considered acceptable. I do not see BGP Properties as supporting such an approach. Indeed, BGP Properties endorses the fact that permissibility is a neutral factor, citing Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374, in which the Court found that the Council acted appropriately in refusing consent to a permissible use that had adverse amenity impacts. Whilst weight can be given to the zoning and to the permissible uses within the zone, s 4.15(1)(b) of the EPA Act requires consideration of the likely impacts of the development, and s 4.15(1)(a) requires consideration of the applicable planning instruments and development control plan, which also provide a framework for considering the acceptability of impacts. In considering the same, I find the impacts on public access along the beach and foreshore to be unacceptable, for the reasons set out below.

The existing public open space and access along the beach

76. As set out earlier, the intertidal area where the proposed access platforms for each jetty are located comprises of sandy beach area exposed at mid to low tide. Photographs of the areas to the north and south of each proposed location at low tide can be seen in Figure 4.

77. As described above, the beach is connected to the south where a public reserve south of 64A Woodlands Road provides access to the foreshore, which opens to a wide sand flat at low tide.

78. Public access to the sandy beach areas that become available at mid to low tide is not only achieved from walking along the beach from the public reserve south of 64A Woodlands Road, but also from the water using a recreational craft and from the private properties of residents who have direct frontage to the bay. Whilst there are slip rails at the rear of 50, 52A and 54 Woodlands Road, and a boat shed at the rear of 46A Woodlands Road, at mid to low tide there is traversable sandy beach between and below each slip rail, and between the boat shed and slip rails.

79. Further, the sandy beach area where the slip rails and boat shed are located can be traversed at mid to low tide, by walking under or over the slip rails at 54 and 52A Woodlands Road, over the slip rails at 50 Woodlands Road, and around the low side of the boat shed at 46A Woodlands Road.

80. Once a person has accessed the beach at the rear of 46 Woodlands Road, either by walking from the public reserve south of 64A Woodlands Road, by watercraft, or from the rear of a residential property, they then have unobstructed passage along the beach at mid to low tide, up to the rear of 24 Woodlands Road, where additional slip rails are located and where reclamation areas extend into the bay and the foreshore is comprised of rocky outcrop.

81. I accept the evidence of Mr Vescio that these beach areas, around the slip rails and north of 46 Woodlands Road, are public open space areas used by the public for walking, baiting, and recreational fishing, and are accessed by kayakers. This is supported by the site inspections, during which it was observed that various areas of the foreshore and beach, particularly north of 46 Woodlands Road, were being used for recreational purposes, both in the morning at mid to high-tide and the afternoon at low-tide.

The impacts of the jetties on public access and open space

82. I consider that the proposed development at the rear of 36 and 38 Woodlands Road, and that at the rear of 28 and 30 Woodlands Road, each reduce the quality of the public open space of the beach and foreshore that stretches along the rear of the properties between 24 and 46 Woodlands Road. I consider that they impede the use of, and access along, that stretch of beach and foreshore, with structures that are above the ground level of the sand.

83. At the rear of 36 and 38 Woodlands Road, the decking platform and jetty is at 2.25m above the level of the Zero Fort Denison Tide Gauge (ZFDTG). This is around 30cm above the ground level of the sand immediately adjacent to the boat shed, but increases to 0.75m above the ground level around 3m from the boatshed, and then to 1.5m above the ground level at the water’s edge at a low tide of 0.75m. Due to its location and its length across the beach to connect to the private properties and the resulting height above the sand, it obstructs movement of the public along that stretch of beach, and is an obstacle to the use of that area as a whole.

84. At the rear of 28 and 30 Woodlands Road, the decking platform and jetty is also at 2.25m above the level of the ZFDTG, which means it will range from 0.84m above the ground level of the sand near the brick sea wall, to 1.5m above the ground level at the water’s edge at a low tide of 0.75m. It therefore also presents an obstruction to the movement of the public along that stretch of beach at mid to low tide, due to its location and length across the beach to connect to the private properties, and resulting height above the sand.

85. I accept the evidence of Mr Vescio that this is not adequately resolved through the introduction of stairs, which instead will create a defined track and “forced zig zagging” along the beach as users focus on the one point to cross each jetty, or will require walking in close proximity to the boundary, both of which discourages the free range casual traversing of the beach by recreational users of that area.

86. With respect to the proposed development at the rear of 52A and 54 Woodlands Road, this is in an area already obstructed by existing boat sheds and slip rails. Nevertheless, I consider that this proposed development creates an additional obstruction that impedes access along the foreshore for walkers seeking to access the beach and foreshore that stretches along the rear of the properties between 24 and 46 Woodlands Road, and in addition, decreases the usable area of beach and public open space between the slip rails at the rear of 52A and the rear of 54 Woodlands Road.

87. The decking platform and jetty proposed at the rear of 52A and 54 Woodlands Road is also at 2.25m above the level of the ZFDTG, which means it will range from around 30cm above the ground level of the sand immediately adjacent to the shared access platform, but quickly becomes 1m above the ground level of the sand around 2m from that point, and then, of course, becomes 1.5m above the ground level at the water’s edge at a low tide of 0.75m. This becomes a significant additional obstruction for anyone wanting to use that area of the public beach, that cannot be easily traversed.

88. The stairs do not adequately resolve this issue, as they create an additional structure in an area already obstructed by the slip rails and boat sheds, and they also require a walker to take a particular route to cross the jetty rather than the free range traversing of that area. As such, the proposed development at the rear of 52A and 54 Woodlands Road also impedes the movement of the public along that area of the foreshore at mid to low tide, due to its location, its design that traverses the beach and foreshore, and the resulting height at which it traverses the sandy beach.

The impact when considered in the context of the SEPP RH

89. The sandy beach area at the rear of the properties along Woodlands Road, between 24 Woodlands Road and the Taren Point Shorebird Reserve, falls within the definition of “beach” and “foreshore” pursuant to the SEPP RH. The “beach” is the sandy area from the line of the lowest astronomical tide (generally considered to be 0.0 ZFDTG) to the line of structure at the rear of each property, which includes the seawall from 26 to 30 Woodlands Road, various edging and retaining walls along the rear of the yards, and the boat sheds to which the slip rails attach. Some of that sandy area only has a very small volume of sand above the rock. The “foreshore” extends from the lowest astronomical tide to the highest astronomical tide, and therefore incorporates the whole of the area that can be accessed at low tide between 24 Woodlands Road and the Taren Point Shorebird Reserve, although some areas of the foreshore are on private property.

90. The full extent of the proposed developments is on land that is within the coastal environment area, such that s 2.10(1)(e) of the SEPP RH requires the consent authority to consider whether the proposed developments are likely to have an adverse impact on “existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability”. As set out above at [82] to [88], the proposed developments will adversely impact the existing public open space by creating an obstruction to the free movement within the beach and foreshore, and will obstruct the safe passage of the public to and along the beach and foreshore, at mid to low tide, between 24 Woodlands Road and the Taren Point Shorebird Reserve. As there is limited access at present for persons with a physical disability, the impact relates to access for members of the public who are able to access the beach and foreshore by walking along the beach from the public reserve, by water using recreational craft or by direct access from their private properties.

91. Section 2.10(2) provides that development consent must not be granted to the development unless the consent authority is satisfied that it is designed, sited and will be managed to either avoid that adverse impact or minimise that impact, or, if it cannot be minimised, that it will be managed to mitigate the impact. For the reasons that follow, I have not reached the state of satisfaction required by s 2.10(2).

92. I consider that the proposed developments are not designed, sited or managed to avoid the impact that I have described above at [82] to [88], and [90]. Instead, their design to include access platforms directly from private property with a jetty extending from the private property over the sandy beach to the water, results in a height of the jetty above the sand that makes the jetty an obstruction for public users of the beach and the foreshore at mid to low tide between 24 Woodlands Road and the Taren Point Shorebird Reserve, who are not able to move freely within that space as public open space or walk unobstructed along the beach and foreshore. I accept the evidence of Mr Vescio that each jetty presents as a major and unreasonable obstacle and an intrusive impasse for the walkable area of the foreshore.

93. I am similarly not satisfied that the developments are designed, sited and will be managed to minimise that impact. There were two reasons advanced as to how the impact was to be minimised: the sharing of the jetties between the two properties; and the inclusion of access stairs or stiles. Neither of these measures, either separately or together, minimise the impact to an acceptable degree.

94. Firstly, the sharing of the jetties between two properties will limit the number of obstructions, but the two to the north (to the rear of 36 and 38 Woodlands Road, and 28 and 30 Woodlands Road) will nevertheless divide the area of beach and foreshore between 24 and 46 into separate areas of public open space and create the intrusive impasse for the walkable area, and the proposed development at the rear of 52A and 54 Woodlands Road nevertheless creates the additional obstruction described at [86].

95. Secondly, the impact is not acceptably minimised by the inclusion of access stiles or stairs. As described above at [85] and [88], they create an additional structure within the public open space and a defined track with “forced zig zagging” along the beach, requiring a walker to take a particular route rather than allowing the free range traversing of the beach and foreshore.

96. For the same reasons, I am not satisfied that the development will be managed to mitigate that impact. The access stairs do not mitigate the impact to an acceptable degree, for the reasons expressed above at [95].

97. Further, the fact that there are other more attractive areas of beach and foreshore, to the south of 64 Woodlands Road, that would remain available for use by the public following the carrying out of the development is of limited relevance. As set out above at [78] to [81], the foreshore and beach between Taren Point Shorebird Reserve and 24 Woodlands Road are public open space areas used by the public, and the fact that there are other areas that are more attractive does not change the impact that the proposed developments each have on this existing public open space and on safe access to and along this area of the foreshore and beach.

98. Accordingly, I have not reached the state of satisfaction required by s 2.10(2) of the SEPP RH in relation to the impact of each of the proposed developments on “existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public”. The impact is not avoided, and the development will not be managed to minimise or mitigate that impact. In my view, this is a sufficient basis alone upon which the development applications should be refused.

89. Given my conclusions in relation to s 2.10(2) of the SEPP RH, I need not consider s 2.11, which concerns only that part of the proposed developments located on the area mapped as coastal use area.

The impact when considered in the context of the SSDCP

100. Notwithstanding my conclusion that s 2.10(2) of the SEPP RH, of itself, is a sufficient basis upon which the developments applications should be refused, I also consider that the impact of the proposed developments on public access to the beach and foreshore is unacceptable when considered against the provisions of the SSDCP, for the following reasons.

101. For the reasons expressed above at [82] to [88], the jetties each interfere with publicly accessible areas along the waterfront, contrary to control 21 of Chapter 10 of the SSDCP. In addition, it is common ground that they exceed the control for a maximum length of 20m, with lengths of 27.3m, 22m, and 27.2m. This is because the length required from the private property boundaries to a reasonable depth for use of the jetties exceeds 20m.

102. Whilst s 4.15(3A)(b) of the EPA Act requires flexibility in applying the standards of a development control plan, and provides that alternative solutions should be allowed that achieve the objects of the standard, no such alternative solution is proffered in the proposed development applications that achieves the objects of the standard. Because of their length across the beach at mid to low tide, and their resulting height, they interfere with publicly accessible areas along the waterfront and similarly do not meet the relevant objective of the controls within that chapter to “maintain and improve public access to the intertidal area of the waterfront”. Whilst the access stairs will allow a person to walk over the structures, this is not sufficient to mitigate the interference of those structures with the publicly accessible area or to achieve the objective of maintaining and improving public access, for the reasons expressed above at [85] and [88].

Visual impact

103. The Council contends that the proposed developments, individually and collectively, will create change in the currently natural foreshore environment by introducing visual clutter and manmade structures that extend into and dominate the existing natural setting of the waterway foreshore when viewed from various public and private vantage points.

104. The Council’s position is supported by the evidence of Mr Vescio, who opines that the proposed developments will contribute to a significant adverse change in views of the natural waterway, and will extend the visual impact of the land based existing development into the waterway. The Council submits that this is contrary to the objectives of the W1 zone to ensure that the natural scenic qualities of waterways are not diminished, and is contrary to cl 6.8 of the SSLEP, which has as its objective to protect and enhance the environmental and scenic qualities of natural landforms.

105. Harbour Port’s position is instead that jetties, ramps and pontoons are appropriate in the visual context in which they are a permissible form of development. This is support by the evidence of Mr Black, who opines that these structures are a desirable visual feature of the Sutherland Shire waterways where they are associated with residential development. He considers that “the area of the subject site has been heavily modified such that there is limited redeeming natural attributes”, and that the jetties across the council area contribute to the visual character of the waterways.

The visual impact of the proposed developments is unacceptable in the circumstances

106. I consider that the ability to see a permissible form of development anticipated by the zoning is not sufficient, of itself, to constitute an adverse visual impact. There must be something about its location, design or the surrounding locality that creates an impact that is not appropriate or acceptable in the field of view.

107. In the circumstances of the proposed developments, considered in the context of cl 6.8(3) of the SSLEP, I consider that the visual impact is not acceptable when viewed from the beach and foreshore at the rear of 24 to 46 Woodlands Road, and when viewed from the beach and foreshore adjacent to the Shorebird Reserve. I reach this conclusion for the following reasons.

108. Firstly, the area that is waterside of the mean high water mark is mapped as environmentally sensitive land, such that cl 6.8(3) requires that the consent authority consider “whether the development is likely to have an adverse impact on the environmental and scenic qualities of natural landforms”. Whilst Mr Black and Mr Vescio agree that the land adjoining Woolooware Bay from 2 to 64 Woodlands Road has been heavily developed such that the natural scenic quality of that shoreline has not been maintained, there remains views from that developed area and from the beach adjacent to Taren Point Shorebird Reserve to the natural landform of Woolooware Bay and the Towra Point Nature Reserve. I accept the evidence of Mr Vescio that these natural attributes make the area unique, and consider that Woolooware Bay and Towra Point Nature Reserve, viewed from this area, are natural landforms that have scenic qualities. As present, consistent with the evidence of Mr Vescio, the scenic quality encompasses the natural foreshore presentation of Woolooware Bay with minimal intrusion of man made structures other than disused or dilapidated structures, with the bay reading as a contiguous natural bay from Captain Cook Bridge through to Shell Rock. This also makes it distinct from the other areas of the Georges River foreshore, where jetties are part of the built form character. Contrary to Mr Black’s opinion, there is nothing in the SSDCP or SSLEP that supports his view that jetties are a desirable attribute of the area, and the fact that they form part of the built form character of the foreshore at other points along the Georges River does not make it the desired character of the foreshore that forms part of Woolooware Bay.

109. Secondly, when viewing Woolooware Bay toward Towra Point Reserve from the beach and foreshore at the rear of the properties between 24 and 46 Woodlands Road, the two proposed jetties in that area will be prominent in the field of view. This view is currently largely unspoilt by man made structures. The existing jetty to the north-western end of the bay cannot be viewed from this location. Each of the two proposed jetties in that area (at the rear of 36 and 38 Woodlands Road, and 28 and 30 Woodlands Road) will protrude into the bay well beyond the length of any existing structure and at a height of 2.5m above the ZFDTG. Each of those two proposed jetties, both individually and collectively, will therefore be prominent in the visual field for anyone viewing Woolooware Bay toward Towra Point Nature Reserve from a vantage point along that area of beach and foreshore. I accept the evidence of Mr Vescio that these structures will contribute to an adverse change in the currently natural foreshore environment with the perspective visual clutter of man-made structures extending out into the existing natural setting.

110. Thirdly, the jetty at the rear of 52A and 54 Woodlands Road will protrude further into the bay than the existing sliprails, above the water line, such that it will be visible from the beach next to the Shorebird Reserve and present an extension into the bay of the highly developed area to the north. Views over Woolooware Bay from the beach next to the Shorebird Reserve are currently framed to the north by the boat shed and other structures at the rear of 54 Woodlands Road, where slip rails also descend into the water, but are otherwise uninterrupted by manmade structures. The jetty will protrude into the bay beyond the existing structures and above the slip rails, so that, as Mr Vescio opined, it presents as an extension of the visual impact of the land based existing development. Contrary to the position of Harbour Port, the fact that there are existing structures that result in a heavily modified foreshore, does not mean that additional development that further modifies the scenic qualities of the area is acceptable.

111. Fourthly, the three jetties have a cumulative visual impact when considered together. I accept the evidence of Mr Vescio that the jetties change the scenic quality of the present natural features of the intertidal sand beach and rock shelf, extending the visual impact of existing land based development into the waterway. This is exacerbated by the length of the jetties into the bay, which is currently free of man made structures other than the dilapidated slip rails that descend below the water.

112. For the above reasons, in circumstances where Woolooware Bay is a natural land form and cl 6.8(3) specifically requires consideration on an impact on its scenic quality, I consider that the visual prominence of the jetties when viewed from the beach and foreshore at the rear of 24 to 46 Woodlands Road, and when viewed from the beach and foreshore adjacent to the Shorebird Reserve, to be unacceptable.

The creation of an adverse precedent

113. The Council also contends that the approval of each of the development applications will set an undesirable precedent for future development of a similar nature in the same area as the proposed developments. The Council says that this will cause cumulative effects creating adverse impacts in relation to the erosion of the natural and scenic qualities of the area and to shorebird habitat. The Council relies on the decision of Lloyd J in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75. In this decision, Lloyd J refers to the concept of a consent operating as a precedent and says (at [28]):

“…if the Court is entertained with an application for a proposed development which is both objectionable in itself and where there is a sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration.”

114. Harbour Port’s position is that any precedent created by the grant of development consent would reflect that the proposed developments are not inconsistent with the controls, and the question of whether future applications are inconsistent, will be a matter for consideration in determining those applications. Harbour Port relies on the evidence of Mr Black, who opines that private water recreation structures are a common development along the waterways of the Sutherland Shire, and are considered acceptable from a policy and public standpoint. He relies on there being a strong history of development approvals and existing jetty structures. This is supported by photographs of various areas of the Georges River foreshore where jetties form part of the built environment of the foreshore.

115. I accept the Council’s position that the approval of the proposed developments will set a precedent for future development of a similar nature at the rear of the properties that have direct access to Woolooware Bay, which will unacceptably continue the erosion of the natural and scenic qualities of the area. This is readily apparent by a comparison of the natural and scenic qualities of Woolooware Bay at present, with the aerial photographs of other areas of the Georges River foreshore, where almost every property with foreshore access has a jetty. I accept the evidence of Mr Vescio that a proliferation of additional jetty development would be anticipated to follow any grant of development consent for the proposed developments, and that the proliferation of similar inappropriate development in the context of this area of Woolooware Bay would unacceptably erode the natural and scenic qualities of the area.

The final orders

116. As set out above, I have decided that each of the development applications should be refused on the basis that each of the proposed developments do not avoid, or acceptably minimise or mitigate, their impact on existing public open space and safe access to and along the foreshore and beach for members of the public. As such, I have not reached the state of satisfaction required by s 2.10(2) of the SEPP RH in relation to the impact of each of the proposed developments. In my view, this is a sufficient basis upon which the development applications should be refused.

117. In addition, I have found that the impact of each of the proposed developments on public access to the beach and foreshore is unacceptable when considered against the provisions of the SSDCP, and that the proposed developments, both individually and collectively, will have an unacceptable visual impact in their locational context within Woolooware Bay and based on the consideration required by cl 6.8(3) of the SSLEP. Further, the approval of the proposed developments would set a precedent which may result in future developments of a similar nature along this area of Woolooware Bay, which will further unacceptably erode the natural and scenic qualities of the area.

118. The Council also raised an additional contention concerning the impact of the proposed development on the habitat of the shorebird community. However, it is unnecessary for me to consider the acceptability of this impact given my findings that the development applications should be refused for the reasons given above.

119. In proceedings 2022/353257, the Court orders that:

1. The appeal is dismissed.

2. The development application for the construction of a shared access way, jetty and sea stairs, located at the prolongation of the boundary between 36 and 38 Woodlands Road, Taren Point (DA21/1085) is refused.

120. In proceedings 2022/353258, the Court orders that:

1. The appeal is dismissed.

2. The development application for the construction of a shared access way, jetty and sea stairs, located at the prolongation of the boundary between 28 and 30 Woodlands Road, Taren Point (DA21/1062) is refused.

121. The orders of the Court, as amended on 07 December 2023, are as follows:

In proceedings 2022/353256, the Court orders that:

1. The appeal is dismissed.

2. The development application for the construction of a shared access way, jetty and sea stairs, located at the prolongation of the boundary between 52A and 54 Woodlands Road, Taren Point (DA21/1164) is refused.

3. Exhibits D, 1, 4 and 7 are returned, and remaining exhibits are retained.

I certify that this and the preceding 46 pages are a true copy of my reasons for judgment.

……………………….

J Gray

Commissioner of the Court

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Amendments

07 December 2023 - The Court orders that, pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005, the reference to DA21/1062 in order 2 made on 13 November 2023 is deleted and replaced with DA21/1164.

Deletion made at [77] of typographical error.

Decision last updated: 07 December 2023