Harbour Port East Coast Pty Ltd v Sutherland Shire Council

Case •

[2023] NSWLEC 1249

•

23 May 2023

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Harbour Port East Coast Pty Ltd v Sutherland Shire Council [2023] NSWLEC 1249
Hearing dates: 27-28 April 2023
Date of orders: 23 May 2023
Decision date: 23 May 2023
Jurisdiction:Class 1
Before: Horton C
Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development application DA/21/1188 for access stairs, stair landing deck, jetty, ramp, pontoon and stabilisation piles at 44 Rutherford Avenue, Burraneer is determined by the grant of consent, subject to conditions of consent at Annexure A.

(3) All Exhibits are returned, except for Exhibit B.

Catchwords:

DEVELOPMENT APPLICATION – visual impact of development on waterfront – impact on heritage significance – ecological impact – whether essential matters deferred

Legislation Cited:

Crown Lands Management Act 2016

Environmental Planning and Assessment Act 1979, ss 1.4, 4.16, 8.7, 8.14

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34AA

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11, 4.6

Sutherland Shire Local Environmental Plan 2015, cll 4.3, 5.10, 6.1, 6.5, 6.7, 6.8, 6.9, 6.16, Sch 5

Texts Cited:

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)
J Cole Planning Solicitors (Respondent)
File Number(s): 2022/335533
Publication restriction: Nil

Judgment

  1. COMMISSIONER: One notable aspect of properties located on the southern side of Rutherford Avenue, Burraneer is their elevation above the waters of the Port Hacking waterway below.

  2. These waters lie at the foot of a large sandstone cliff formation that defines the southern tip of the Burraneer peninsula.

  3. In order to provide access to the water at the base of the sandstone cliff formation to the south of No 44 Rutherford Avenue, Burraneer (the site), the Applicant in these proceedings, Harbour Port East Coast Pty Ltd, proposes to construct access stairs, a landing deck, jetty, pontoon and piers for which development consent is sought.

  4. To this end, development application DA21/1188 (the DA) was lodged with Sutherland Shire Council (the Respondent) on 19 November 2021.

  5. As the DA was otherwise undetermined, the Applicant filed an appeal in Class 1 of the Court’s jurisdiction on 9 November 2022 under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

  6. The appeal was listed for mandatory conciliation on 27 April 2023, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979.

  7. As access from the site to the water is not currently possible due to the sandstone cliff formation, the proceedings commenced with a view of the site from the water, on a boat arranged by the Applicant that disembarked from Wally’s Wharf and boat ramp, Dolans Bay.

  8. The view from the boat took in the broad context of the Port Hacking foreshore, with localities identified such as Turriell Point, Bundeena, Maianbar and the Royal National Park.

  9. The Court’s particular attention was drawn to both the natural landscape features and the built form of the Burraneer headland between No 22 Loch Lomond Crescent on the western side of the peninsula, and an area of bushland in the vicinity of Eurabalong Road on the eastern side of the peninsula.

  10. Within this area of the headland, a number of jetties, pontoons, stairs, boatsheds and other maritime structures are evident in a variety of materials, colours, finishes and styles.

  11. This area of headland is identified as an item of heritage significance, about which more will be said.

  12. At the conclusion of the view, and after discussion with the parties, I concluded that the potential value of engaging in conciliation was so limited that I terminated the conciliation and proceeded forthwith to hearing.

  13. At the commencement of the hearing, the Applicant sought to amend the DA, unopposed, by relying upon amended plans prepared by Harbour Port annexed to the planning joint expert report (Exhibit A, Tab 21, Annexure A). The Respondent agreed, in accordance with cl 55 of the Environmental Planning and Assessment Regulation 2000, as the relevant consent authority, to the amendment of the DA.

  14. The amendments include the powder coating of stringer members to the steel access stair structure and the removal of landscape works to the rear of the property from this application.

The site and its context

  1. The site is legally described as Lot 1 in DP 224222, with a battle-axe shape having a frontage to Rutherford Avenue of approximately 26m, and a width of approximately 7.6m to the south, fronting the water.

  2. The site is currently occupied by a part one, part two-storey dwelling house located close to the Rutherford Avenue frontage.

  3. The rear access handle is largely unvegetated, although some retaining walls, stairs and immature planting is evident. These landscape elements are the subject of other proceedings and are only relevant to these proceedings for the purposes of conditions of consent, should the Court be minded to grant consent.

  4. The site continues into the Port Hacking waterway and comprises a portion of the sandstone cliff formation, and an area below Mean High Water Mark.

  5. The locality is described in the Statement of Facts and Contentions, authored by the Respondent, as comprising two-storey dwellings orientated to the Port Hacking waterway, with waterfront swimming pools, jetties, pontoons and access stairs evident on several of the adjoining properties in the street.

  6. The site is located in the C3 Environmental Management zone, and in the W1 Natural Waterways according to the Sutherland Shire Local Environmental Plan 2015 (SSLEP), in which the proposed development is permissible with consent.

  7. The objectives of the C3 zone are:

•  To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.

•  To provide for a limited range of development that does not have an adverse effect on those values.

•  To allow development of a scale and nature that maintains the predominantly natural landscape setting of the locality and protects and conserves existing vegetation and other natural features of the locality.

•  To limit development in the vicinity of the waterfront so that the locality’s natural qualities can dominate.

•  To allow the subdivision of land only if the size of the resulting lots makes them capable of development that will not compromise the sensitive nature of the environment.

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

  1. The objectives of the W1 zone are:

•  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.

  1. The site is located within the coastal environment area, and the coastal use area according to ss 2.10 and 2.11 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP).

  2. The site is also identified on the Terrestrial Biodiversity Map at cl 6.5(2) of the SSLEP. The objectives of the clause, at subcl (1), are:

(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.

  1. The operative provisions, at subcl (3) and (4) are:

(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.

  1. The site is also identified on the Riparian lands and Watercourses Map at cl 6.7(2) of the SSLEP. Clause 6.7 relevantly provides:

(1)  The objective of this clause is to protect and maintain the following—

(a)  water quality within watercourses,

(b)  the stability of the bed and banks of watercourses,

(c)  aquatic and riparian habitats,

(d)  ecological processes within watercourses and riparian areas.

…

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

(a)  whether or not the development is likely to have any adverse impact on the following—

(i)  the water quality and flows within the watercourse,

(ii)  aquatic and riparian species, habitats and ecosystems of the watercourse,

(iii)  the stability of the bed and banks of the watercourse,

(iv)  the free passage of fish and other aquatic organisms within or along the watercourse,

(v)  any future rehabilitation of the watercourse and riparian areas, and

(b)  whether or not the development is likely to increase water extraction from the watercourse, and

(c)  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—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.

  1. The site is within the area marked on the Natural Landforms Map, at cl 6.8(2) of the SSLEP which deals with Environmentally sensitive land—environmental and scenic qualities of natural landforms in the following terms:

(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.

  1. The Burraneer peninsula is within the Port Hacking foreshore. Clause 6.9 of the SSLEP prescribes certain limitations to development within this area.

6.9   Limited development on foreshore area

(1)  The objectives of this clause are as follows—

(a)  to ensure that development in the foreshore area will not adversely impact on natural foreshore processes or affect the significance and amenity of the area,

(b)  to maintain and improve public access to the intertidal area of waterfronts if that access will cause minimal adverse environmental impact,

(c)  to avoid adverse ecological effects on waterways by minimising any adverse impact from development on water quality and, so far as is practicable, to improve the quality of urban run-off entering waterways,

(d)  to protect and enhance significant natural features and vegetation in the foreshore area,

(e)  to retain endemic vegetation along foreshore areas,

(f)  to restore and revegetate foreshore areas to improve estuarine flora and fauna habitat,

(g)  to minimise any adverse visual impact of development when viewed from adjacent land and waterways by using a design and materials that complement the natural landscape of the foreshore area,

(h)  to minimise any adverse impact of development on the natural landform of the foreshore area and waterways by integrating the development with minimal change to the natural topography of the foreshore area,

(i)  to achieve a balance between private development and the public use of waterways,

(j)  to minimise the obstruction of water views from public land.

(2)  Development consent must not be granted to development on land in the foreshore area except for the following purposes—

(a)  the alteration of, or additions to, residential accommodation, or the demolition of existing residential accommodation and the erection of new residential accommodation on the land, if the footprint of the residential accommodation will not extend further forward of the foreshore building line than the footprint of the existing residential accommodation,

(b)  the erection of new residential accommodation if there is no reasonable alternative location for the residential accommodation outside the foreshore area,

(c)  development for the following purposes that does not significantly alter the shape, natural form or drainage of the foreshore area—

(i)  boat sheds,

(ii)  jetties,

(iii)  landscaped areas,

(iv)  sea retaining walls,

(v)  slipways,

(vi)  swimming pools (that are no higher than 300 millimetres above ground level),

(vii)  water recreation structures,

(viii)  waterway access stairs,

(ix)  inclinators,

(d)  the erection of a building in the foreshore area (other than a building referred to in paragraph (a), (b) or (c)), if the levels, depth or other exceptional features of the site make it appropriate to do so.

(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)  for development for 1 of the following purposes, the development and resulting building will not have an adverse impact on the amenity or aesthetic appearance of the foreshore—

(i)  the alteration of, or additions to, a building,

(ii)  the demolition of an existing building and erection of a new building on the land,

(iii)  the erection of a new building, 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 in 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.

  1. Clause 6.16 of the SSLEP deals with urban design, and requires the consent authority, at subcl (1), to 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,

(g)  the principles for minimising crime risk set out in Part B of the Crime Prevention Guidelines and the extent to which the design of the proposed development applies those principles.

Expert evidence

  1. In accordance with its usual practice, the Court directed experts in ecology, heritage and planning to confer in respect of certain contentions prior to the commencement of the proceedings.

  2. While the joint expert reports were filed by the Respondent prior to the proceedings, I record here that parties were comfortable with the joint expert reports being marked as Applicant’s exhibits given they are contained in a Court Book prepared by the Applicant, marked Exhibit A and identified by relevant tabs.

  3. In respect of planning, Mr Benjamin Black, on behalf of the Applicant, and Mr Damon Kenny, on behalf of the Respondent, conferred in the preparation of a joint expert report (Exhibit A, Tab 21).

  4. In respect of ecology, Mr Rick Johnson, on behalf of the Applicant, and Ms Cally Collins, on behalf of the Respondent, conferred in the preparation of a joint expert report (Exhibit A, Tab 22), to which the Applicant took objection, in part. The Court directed the ecology experts to confer further, and prepared a supplementary joint expert report that was tendered the following day, marked Exhibit D.

  1. In respect of heritage, Mr Philip North, on behalf of the Applicant, and Mr Matthew Taylor, on behalf of the Respondent, conferred in the preparation of a joint expert report (Exhibit A, Tab 23).

  2. The experts agreed that a number of contentions were resolved by the provision of additional information. The remaining contentions may be summarised as falling within the following categories:

  1. Visual impact

  2. Heritage Impacts

  3. Ecological impacts

  1. I record here that the planning joint expert report contains a number of annexures, including a Geotechnical Investigation and Slope Risk Assessment (Geotechnical Report) prepared by Morrow, dated 17 February 2023 (Annexure B), to which the Respondent took objection. The Respondent submits that no leave was sought, and no direction given, for the provision of a single expert report for a matter that had long been pressed.

  2. I accept the Applicant’s submission that the Geotechnical Report was provided, not in response to a contention, but a claim of insufficient information that has now been remedied, and about which Mr Kenny voices no concern in the joint expert report to which it is appended.

Building height

  1. While the Respondent initially contended that the proposed access stairs exceed the height of building standard applicable to the site, the planning experts agree that additional survey information contained at Annexure D of the joint expert report clarifies that parts of the sandstone cliff formation are located vertically below relevant sections of the stairs and landings. As such, an existing ground level has been identified that demonstrates compliance with the height standard of 8.5m.

  2. Certain aspects of the additional survey information are transposed on the amended plans prepared by Harbour Port, such as the West Elevation (Dwg 2 Rev 2), that support the agreement of the experts.

  3. On this basis, I accept that the proposal is within the 8.5m height standard at cl 4.3 of the SSLEP.

Visual impact of waterfront development

  1. The Respondent also contends that the size, scale and extent of works proposed are uncharacteristic of the existing and desired residential waterfront setting, resulting in an adverse visual impact when viewed from the waterway and adjoining properties.

  2. The Respondent submits that the existing stairs, jetties and pontoons to the east of the site are no example to follow, as consent was granted under a different planning regime. Instead, the bushland character of the land to the west of the site is the character with which the proposal must be compatible.

  3. Furthermore, the development as proposed is at odds with coastal environmental values and the scenic qualities of the coast.

  4. This is demonstrated by non-conformances with the following provisions of Chapter 10 of the Sutherland Shire Development Control Plan 2015 (SSDCP):

  1. In respect of the objectives of Chapter 10, the proposal:

  1. fails to make a positive contribution to the foreshore and natural setting (objective 1);

  2. is not compatible with the scale, character and landscape setting of the foreshore, natural setting and scenic quality, and does not ensure that the environment’s natural qualities dominate (objective 2);

  3. fails to retain or enhance existing natural features, trees and bushland in the foreshore area (objective 3);

  4. neither minimises the impact of development on the natural landform (objective 4), nor integrates in the foreshore and waterfront environment by using design and materials which complement the natural landscape (objective 5); and

  5. does not minimise adverse impacts nor improve environmental qualities along the foreshore (objective 6), nor minimise visual impact (objective 7).

  1. In respect of the controls at Chapter 10, Section 3 of the SSDCP:

  1. The footprint is calculated by the Respondent to comprise 64.1% of the land water interface when measured at the Medium High Water Mark. This exceeds the maximum area of 50% permitted by Control 1.

  2. The surface area of structures exceeds the maximum of 25m2 permitted by Control 3.

  3. The landing platform at the base of the access stairs has a zero setback to the eastern boundary, contrary to Control 4 that requires a minimum setback of 2.5m from a boundary.

  4. The use of powder coated steel is contrary to Control 14 that advises recreation structures are to be constructed primarily of timber to complement the natural character and scenic qualities of the waterfront and foreshore.

  5. The proposal does not seek to share an existing facility on an adjoining property that is the thrust of Control 22.

  1. The parties agree that the visual character of the sandstone cliff formation varies along its length, agreed to be in the order of 900m. In essence, the parties agree there is a cluster of stairs, jetties and pontoons to the east of the site that have modified the sandstone cliff formation. These are distinct from the more natural setting of the cliff and vegetation to the west.

  2. However, the parties differ as to where the precise demarcation of this change occurs.

  3. According to the Respondent, there is a marked change at the subject site. Land to the west of the site is largely defined by sandstone cliff and bushland vegetation.

  4. According to the Applicant, such a distinction ignores the fact that stairs, jetties and pontoons are located immediately west of the site. It is only west of these man-made structures that the character changes to that described by the Respondent.

  5. The planning experts agree that the rhythm of existing jetties and pontoons is such that the site appears to be the ‘missing’ one, in the manner of a ‘missing tooth’, and that the proposed stairs, jetty and pontoon would effectively ‘take its place’ among similar examples.

  6. That said, Mr Kenny considers the landing at the base of the access stairs to be excessive, and should be reduced in size to achieve a balance between built form and the natural setting. The Respondent proposes the landing be deleted in its without prejudice conditions of consent (Exhibit 2).

  7. Mr Taylor relies on images within the heritage joint expert report, also pointed out at the onsite view, that show sunlight striking features projecting from the sandstone cliff formation to suggest the stair structure would be highlighted against the shaded cliff face. The effect is likely to be exacerbated by the distance between the stair and the cliff face, which is uncertain. In short, the greater the clearance required from the cliff face, the more the stair structure will be highlighted by sunlight.

  8. According to Mr North, the proposed colours and materials are superior to those evident on adjoining and nearby sites where bright, fresh sandstone, reflective glass or metal and white surfaces catch the eye, in contrast to the transparency and darker finish of that proposed.

  9. Likewise, Mr North cites the access path and stairs at No 42 Rutherford Avenue to the east of the subject site as an example of adverse outcomes that can come from integrating access into the sandstone cliff formation, as is sought by Chapter 10, Objective O5 of the SSDCP. In particular, integration of the sort evident in adjoining properties necessitates the modifying of the natural landform, contrary to the objectives of Chapter 10 of the SSDCP at [44(1)].

  10. On the basis of the onsite view, and the images depicting the existing conditions in the vicinity of the site that are re-produced in the evidence, I prefer and accept the Applicant’s view that the character of the foreshore is distinguished by a cluster of stairs, jetties and pontoons that commences west of the site, and continues to the east. As such, this cluster takes in the subject site. By contrast, the sandstone cliff formation and bushland vegetation are a distinct and uncorrupted character to the west of the site.

  11. In my view, this is the only conclusion that can be reached when the number and location of stairs, jetties and pontoons in the images prepared by the Respondent are considered, such as that re-produced below (site marked in dashed line) (Exhibit 3, Tab 2):

Heritage Impacts

  1. The sandstone cliff formation is a landmark when viewed from the water, or from locations such as Bundeena or Maianbar. Between Nos 2–52 Rutherford Avenue and 2–16 Loch Lomond Crescent, it is also identified in Sch 5 of the SSLEP as an item of local heritage significance.

  2. The Respondent contends that the visual prominence of the proposal will detract from the heritage values identified in the inventory sheet (Exhibit 3, folios 129-138), contrary to the objectives of cl 5.10 of the SSLEP, that are:

(1) Objectives The objectives of this clause are as follows—

(a)  to conserve the environmental heritage of Sutherland Shire,

(b)  to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,

…

  1. Development consent is required by subcl (2)(a)(i) for altering the exterior of a heritage item, and for erecting a building on land on which a heritage item is located (subcl (2)(e)(i)).

  2. The EPA Act, at s 1.4, defines a building as:

building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure within the meaning of the Local Government Act 1993.

  1. Subclause 5.10(4) of the SSLEP requires the consent authority, or the Court on appeal, to consider the effect of the proposed development on the heritage significance of the item.

  2. The statement of significance for the sandstone cliff formation in the State Heritage Inventory (Exhibit A, folios 35-37) is in the following terms:

“A representative example of sandstone cliffs but without rock platforms below in an estuarine setting fringed with bush and overlaid with intensive suburban development. The headland is a landmark when viewed from the water or Bundeena or Maianbar and some sections of the cliffs have high scenic qualities, especially those that include remnant indigenous vegetation.

The landform has significance for its historic association with the middle Triassic period. The following elements contribute to the significance of the item:

The natural and estuarine setting.

…”

  1. The Respondent notes the recommended management of the heritage item, contained in the inventory sheet, advises that pontoon jetties, boatsheds and staircases be excluded from the heritage listing, and that “prevention of further additional man-made elements is desirable.”

  2. Furthermore, elements impacting upon the integrity and intactness of the heritage item are nominated to include pontoon jetties, zig-zag pathways down the cliff face and the occasional boatshed.

The structure is fixed to the heritage item

  1. In response to a question from the Court, the Applicant was granted leave for Mr Black to take the Court to the nature of fixing of the structure to the sandstone cliff formation.

  2. Mr Black took the Court to the Geotechnical Report, prepared by Morrow dated 17 February 2023, at Annexure B of the joint expert report, and the Structural engineering drawings at Annexure C of the joint expert report, prepared by Lindsay & Associates (Rev A). The upshot of Mr Black’s explanation is that the structure is fixed into the vertical face of the cliff at 8 locations. Table 5, on p11 of the Geotechnical Report, identifies a borehole diameter of between 30mm-50mm, to permit an anchor bar, or dowel, of between 600mm-3500mm depth into the cliff face.

  3. The distance of the structure from the cliff face will vary given its irregular profile, that has been surveyed by use of drone-mounted LiDAR at Annexure D of the joint expert report (the LiDAR survey).

  4. The Respondent submits the Court does not have sufficient certainty as to the means by which the stair structure is fixed to the rock at its base. Absent such certainty, the Respondent submits it is conceivable that concrete pads or the like may be employed, which Mr North agrees would be unacceptable in heritage terms.

  5. The Respondent’s primary submission is that, in light of such uncertainty, the structural details are an essential matter that cannot be deferred and consent should be refused. In the alternative, should the Court be minded to grant consent, the Respondent proposes a condition requiring changes to the design as to the method of attachment of the stair structure, and structural certification to ensure minimum impact on the cliff face and all rock formations.

  6. The Structural engineering drawings are, in my view, clear on the method of attachment to the sandstone cliff formation, and to the rock below.

  7. The stairs are fixed into the vertical face of the sandstone cliff formation as described at [65]. Notes to this effect are evident on the Stair Layout plan (Drawing 22267-S02), which refer to a member schedule contained on that sheet, and on the Elevations (Drawing 22267-S03).

  8. Likewise, the Elevations also provide reference to a detail for fixing of the base of the stair structure, identified as detail D20. Detail D20 is depicted on Drawing 22267-S05, and shows, by reference to the member schedule, a 100mm x 100mm vertical stair member connected via a baseplate, to a 400mm diameter concrete pier, socketed into the rock to a depth of at least 150mm. Below the pier, four dowels of 20mm in diameter are proposed to be drilled at least 600mm into the rock.

  9. There is no proposal for concrete pad footings to the rock bed at the base of the sandstone cliff formation as speculated by the Respondent. Instead, a recessed housing for the 400mm diameter pier is to be provided in the rock at the base of the stair structure. Detail D20 is consistent with that usually seen in drilled or bored piles where the recess into which the pier is socketed is prepared using a drilling rig or auger of some sort. This is distinct from driven piles that rely on a hammering action unsuited to exposed rock where refusal or shattering may occur.

  10. However, it is relevant to record three types of piles or piers are proposed. The first is that shown in Detail D20 discussed above. The second is a 250mm diameter concrete pier supporting the proposed jetty at a maximum of 4300mm centres, according to Dwg 2 of the amended plans. The third type is 300mm turpentine stabilisation piles adjacent to the proposed pontoon, cut to a height of 2.25m Australian Height Datum (AHD).

  11. The amended plans, and the structural engineering details, indicate the piers support the access stairs as described at [72], while piers and piles supporting the jetty and pontoon are in silt and rock.

  12. As it may be to the disadvantage of the environment for all of the three types of piles or piers to be installed by driving action, I consider it only prudent to amend what appears to be general information provided in the letter by Department of Primary Industries Fisheries dated 14 July 2020 (Fisheries advice) in respect of excavation and driving of “footings”, should the Court be minded to grant consent (Exhibit A, Tab 5).

  13. For completeness, detail D16, depicted on the same drawing, provides the fixing detail of the stair structure at the top of the sandstone cliff formation that comprises four concrete pad footings annotated to be 600mm x 600mm x 300mm high, also socketed into the rock by 150mm.

The banksia

  1. A banksia tree grows on the lower portion of the sandstone cliff formation. The Respondent submits the banksia is an example of the remnant indigenous vegetation identified in the statement of significance as contributing to the high scenic values of the heritage item.

  2. Mr Taylor estimates it to be in the order of 20 years of age, and expresses concern at the potential impact of the stair structure on its canopy.

  3. According to Mr Taylor, the size of the banksia as shown in the LiDAR survey is at odds with his visual assessment of the size of the tree when on site. Mr Taylor cites the scale of the banksia in Fig 2 of the heritage joint expert report which appears larger. Given uncertainty as to the precise distance of the stair structure from the cliff face, Mr Taylor considers it possible for the final location of the stair structure to require the pruning of the banksia.

  4. Mr Taylor confirms the banksia is also depicted in Figure 7 of the joint expert report which I consider to be in the same or similar location and extent as that depicted in the amended plans prepared by Harbour Port. Furthermore, the contrast and clarity of the image in Figure 7, depicted against a clear backdrop of sky, is more helpful in determining the position of the base and canopy than the frontal view of the banksia that is obscured against the vegetated backdrop of the sandstone cliff formation, and with the effect of parallax rendering actual levels uncertain.

Ecological impacts

  1. As a result of the supplementary joint expert report cited at [33], it is Ms Collins’ evidence that, absent a construction methodology to install piles and attachment of the structure, there is potential to impact the seabed and rocks, either directly or indirectly.

  2. Ms Collins agrees that the Marine Habitat Survey Report and Assessment (Exhibit A, Tab 21, Annexure F) adequately describes and maps the aquatic environment surrounding the proposed jetty and pontoon to assess the impacts of the proposed development on marine vegetation. These impacts may be considered minor, subject to the location and anchoring of barges and the like during construction.

  3. As it is put by the Respondent in closing submissions, an anchor may be carelessly placed by a construction barge over an area of protected seagrass such as Posidonia australis, that is identified around 4.7m from the location of proposed works.

  4. The Applicant submits that the plans and other documents are sufficient to assess the likely impact of the development, but that, for removal of doubt, proposed conditions of consent provide for a construction management plan to be provided to the Respondent for approval prior to the consent being operational. The proposed conditions incorporate the terms set out by Fisheries advice.

  5. These terms include that all construction works should be done without excavation but is instead to be by driving any required footings to minimise potential disturbance of the seabed.

  6. The Applicant submits, and the experts agree, that the specification of the piers and pile; their diameter, location and intervals are unchanged from that proposed at the time of the Fisheries advice.

  7. Mr Johnson considers drilling of the piles into the seabed to be the same, or better, than driven, or rammed, piles that have the tendency to disperse a greater volume of silt from the seabed. That said, the experts agree it is possible to minimise any adverse impact on water quality at the site, regardless of construction method, by deploying silt curtains to localise any short term turbidity created from pile insertion, and so protect local seagrass habitats.

  8. In addition to the seagrass and other aquatic life, Mr Johnson advises of turfing green filamentous algae forming in crevasses within the sandstone cliff formation that may be affected by the proposed works, and which continue to colonise such areas, but about which there is little research on successfully relocating such areas.

  9. For the reasons set out at [69]-[73], I consider the documents supporting the development application to be clear about the means of support to the stair structure. On the basis of the ecological evidence, I also consider a drilled or driven pier or pile supporting the jetty and pontoon to be acceptable, subject to the use of silt curtains and other construction methods that are usually confirmed prior to the release of a construction certificate. In respect of the potential for an anchor from a construction barge to damage the Posidonia australis seagrass, I note this risk is alive today by any craft using the waterway. It is a risk that, in respect of the proposal, can be mitigated by a construction management plan as a condition of consent, as is commonplace.

  1. Furthermore, by adopting the Fisheries advice into the conditions of consent, as is proposed, limits apply as to the method by which piers and piles may be installed.

  2. Relatedly, having considered those matters to be considered at cl 6.5(3) of the SSLEP, I am satisfied that the details contained in the Geotechnical Report at [65], and structural engineering drawings document a development that has been designed and sited to avoid any significant adverse environmental impact, and that a construction management plan is an appropriate means by which any impact can be managed during construction.

  3. Likewise, having considered those matters at cl 6.7(3) of the SSLEP, I am satisfied that the proposed development is designed, sited and will be managed to avoid any significant environment impacts of the sought to be considered at subcl (3). In forming this opinion of satisfaction, I am assisted by the agreed position of the ecological expert report (Exhibit D) in respect of the impact on water quality and flows, aquatic and riparian species, habitats and ecosystems, the free passage of fish and other aquatic organisms in particular. I consider the stability of the bed and banks of the waterways, to be sufficiently addressed at [71]-[72], which also serves to explain the measures I consider appropriate to minimise the impacts of the development on the foreshore. For completeness, I also understand there to be no proposal for, or likely impact on, water extraction.

  4. The matters dealt with by ss 2.10 and 2.11 of the Resilience and Hazards SEPP are, in my mind, similar in terms to those at cll 6.5 and 6.7 of the SSLEP, but for concepts that require consideration beyond those of the environment and biodiversity.

  5. Section 2.10 of the Resilience and Hazards SEPP requires consideration of coastal environmental values (subcl (1)(b)), public open space and access to the foreshore by members of the public (subcl (1)(e), and aboriginal cultural heritage, practices and places (subcl (1)(f)).

  6. Section 2.11 of the Resilience and Hazards SEPP likewise requires consideration of public open space and access to the foreshore by members of the public (subcl (1)(a)(i)), as well as overshadowing, wind funnelling and loss of views from public places (subcl (1)(a)(ii)), visual amenity and scenic qualities (subcl (1)(a)(iii)), aboriginal cultural heritage, practices and places (subcl (1)(a)(iv), and cultural and built heritage (subcl (1)(a)(v)).

  7. The proposed development seeks to affix structures to an item of heritage significance, that the Respondent submits will diminish the scenic qualities, and by extension, the coastal environmental values, of the sandstone cliff formation for reasons set out at [44].

  8. I accept Mr North’s evidence that where an attempt to integrate access to the waterway is evident in the area, it has resulted in the modification of the sandstone cliff formation that does not retain or enhance natural features, nor minimise the impact of development on the natural landform of the foreshore.

  9. Instead, the proposal minimises its visual impact by a structural solution that is likely to present somewhat transparently when viewed from the foreshore, and the waterway. The materials include cable balusters, and a structural member size of no more than 100mm x 100mm in bulk. The method of fixing to the vertical sandstone cliff face, and the rocks below minimise the impact of the development on the natural landform with minimal change to the natural topography. No change in topography is proposed.

  10. In considering whether the development makes a positive contribution to the foreshore and natural setting of the area, being objective 1, Chapter 10 of the SSDCP, I have considered the character of the foreshore in which the development is proposed. Again, I accept Mr North’s assessment of the impact resulting from like development in the area. As seen in the photomontage prepared by the Applicant, re-produce below, stairs, jetties and pontoons constructed in the immediate vicinity of the site over years have cut into, or been built up over, the natural landform of the sandstone cliff formation.

  1. While the Respondent submits these are creatures of another planning regime, the proposed development stands apart from this historical approach by proposing a more loose-fit, fine-boned approach that, in my view, retains and enhances the natural features of the sandstone cliff formation, including the natural undulations, fissures and other features that have been mapped by laser survey.

  2. Notwithstanding the possible effects of sunlight on the structure, I conclude the proposal will result in a visually recessive structure that will permit the environment’s natural qualities to dominate. As such, I can accept the proposal will positively contribute to the foreshore by departing from the heavy-handed terrain engineering of the past.

  3. To the extent that the proposal offends controls in Chapter 10, Section 3 of the SSDCP, I consider this a function of past consents for subdivision of land that results in a narrow frontage to the waterway, and note conformity, in part, with the setback of 2.5m to the western boundary of the site and the majority of other controls, including the use of dark tones which the Respondent is correct to point out is no more than compliance with the control.

  4. Accordingly, I am satisfied that the proposal imposes no unacceptable impact in respect of visual amenity or scenic qualities, the coastal environmental values of the Burraneer headland, or of the heritage significance of the sandstone cliff formation when cl 5.10 of the SSLEP is considered. In terms of aboriginal cultural heritage, practices and places cited at [95], I note the internal referral by Council’s Aboriginal Heritage Input officer (Exhibit 3, folio 109) identifies no aboriginal sites or objects.

  5. The matters at cll 6.8 and 6.9 of the SSLEP also deal with both environmental and scenic qualities of natural landforms, and place certain limits on development on foreshore areas such as the subject site. For the reasons above, I reiterate that I am satisfied that the proposed development is designed, sited and will be managed to avoid any significant environment impacts in terms required of me by ss 2.10 and 2.11 of the Resilience and Hazards SEPP, and by cl 6.8 of the SSLEP.

  6. Finally, in respect of cl 6.9 of the SSLEP, I am satisfied that:

  1. The appearance of the development is compatible with similar development in the immediate vicinity of the site, and will not cause environmental harm of the sort at subcl (3)(b).

  2. By virtue of the loose-fit, fine-boned structural solution, natural qualities of the foreshore are retained.

  3. The proposal will not cause congestion or generate conflict between people using the waterway and that, absent public access along the foreshore in the local area, no opportunities are compromised.

  4. The heritage significance of the sandstone cliff formation is maintained.

  5. That the height and function of the stabilisation piles, at 2.25m AHD will assist in the event of seal level rise.

  1. In respect of cl 6.9(4) of the SSLEP, I note that no public access is currently provided to the waterway in the vicinity of the site by virtue of the steep terrain.

  2. Clause 6.16 of the SSLEP sets out matters that must be considered by the consent authority, or the Court on appeal, in deciding whether to grant development consent. I have considered those matters at subcl (1) and, consistent with my assessment above, I record once again my conclusion that the proposal adequately retains the natural environment in which it is located, responds to the natural landform of the site and preserves the high visual quality of the sandstone cliff formation through the considered method of fixing and relative transparency of the access stairs when viewed against the sandstone cliff formation.

Other jurisdictional considerations

  1. The DA was accompanied by the written consent of the owner of the property at 44 Rutherford Avenue, Burraneer, as well as the written consent of the Department of Planning, Industry and Environment (DPIE) as the delegate of the Minister administering the Crown Lands Management Act 2016.

  2. The consent provided by DPIE, dated 12 July 2021, expires after 12 months if action is not taken. The parties agree that the action to be taken was the lodgement of the DA for which owner’s consent was provided, and that the date of lodgement, being 19 November 2021, is within that period.

  3. The DA was notified between 24 November – 16 December 2021.

  4. The site appears to comprise land that is identified at cl 6.1 of the SSLEP as affected by both Class 1 and Class 5 acid sulfate soils. However, as the works also appear to involve the disturbance of less than 1 tonne of soil and will not lower the water table. Furthermore, the proposed without prejudice conditions of consent provide for unexpected finds of acid sulfate soil and so I consider the question of acid sulfate soils adequately addressed.

  5. Similarly, in considering the Resilience and Hazards SEPP, I note there is no change of use proposed and no prior use that would give rise to contamination. In the circumstances of this site, I have considered whether the land is contaminated as required by s 4.6 of the Resilience and Hazards SEPP, and have reasons to conclude it is not.

Conditions of consent are disputed

  1. I have considered the conditions of consent filed by the parties, containing differing positions as to certain terms proposed without prejudice.

  2. I do not accept there to be a need for the deferred commencement conditions proposed by the Respondent for the reasons that follow:

  1. The development application before the Court does not seek consent for landscaping, as this is the subject of a separate application.

  2. The plans and other documents identified by the Respondent as deserving of deferred commencement are, firstly, superseded by those amended plans cited at [13] and, secondly, as stated at [89]-[90], I find the proposed development to be clear in the manner in which structure, support and fixings are documented. It follows that a construction management plan is appropriate to require prior to the release of the Construction Certificate.

  1. As I do not accept the landing at the base of the access stairs contributes in any significant measure to visual impact, and because the condition bears no resemblance to the evidence of the Respondent’s planning expert, I cannot accept the Respondent’s condition at Condition 3A(i) requiring the landing to be deleted.

  2. As stated at [89]-[90], I find the proposed development to be clear in the manner in which structure, support and fixings are documented, supported by Geotechnical Report. For this reason, the design change sought by the Respondent at Condition 3A(ii) of Exhibit 3 is unnecessary and is deleted.

  3. Likewise, as the materials and finishes are addressed in the amended plans, Condition 3A(iii) as proposed by the Respondent is redundant and is deleted.

  4. As stated at [75], given the proposal may require more than one installation method for the piers and piles, I consider it appropriate and necessary to vary the terms of the Fisheries advice under s 8.14(3) of the EPA Act to provide clarity to parties in the preparation of a construction management plan. Given the ecological experts agree that the impacts of drilled or driven piles can be mitigated by the use of silt curtains, I propose to amend the last point featured in the Fisheries advice to permit either installation method.

Conclusion

  1. Having considered all of the evidence before me, I find the proposed development warrants the grant of consent under s 4.16 of the EPA Act, subject to conditions of consent that are amended from those filed by the parties in accordance with my findings.

Orders

  1. The Court orders that:

  1. The appeal is upheld.

  2. Development application DA/21/1188 for access stairs, stair landing deck, jetty, ramp, pontoon and stabilisation piles at 44 Rutherford Avenue, Burraneer is determined by the grant of consent, subject to conditions of consent at Annexure A.

  3. All Exhibits are returned, except for Exhibit B.

T Horton

Commissioner of the Court

335533.22 Annexure A (165051, pdf)

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Decision last updated: 23 May 2023

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