Harbour Port East Coast Pty Ltd v Sutherland Shire Council

[2021] NSWLEC 1087

Land and Environment Court

New South Wales

Medium Neutral Citation:

Harbour Port East Coast Pty Ltd v Sutherland Shire Council [2021] NSWLEC 1087

Hearing dates:

Conciliation conference on 28 January 2021

Date of orders:

19 February 2021

Decision date:

19 February 2021

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)  Development consent is granted to Development Application No. 19/0851 for the construction of a mooring pen with four piles on Crown Land below Mean High Water Mark, fronting Lot 1 in Deposited Plan 806009, known as 250A Woolooware Road, Burraneer, 2230, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – construction of a mooring pen – conciliation conference – agreement between the parties

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Sutherland Shire Local Environmental Plan 2015

State Environmental Planning Policy (Coastal Management) 2018

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
S Freidman (Solicitor) (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
Harris Freidman Lawyers (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2020/156548

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 19/0851 for the construction of a mooring pen with four piles on Crown Land below Mean High Water Mark (the proposal) at 250A Woolooware Road, Burraneer (the site) by Sutherland Shire Council (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 28 January 2021. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

The proposal

5. The site has a deep waterfrontage to Gunnamatta Bay. The proposal is for the construction of a mooring pen on Crown Land, below the Mean High Water Mark (MHWM) of the subject site and within the waterway of Gunnamatta Bay. The mooring pen will be located adjacent (north & east) to an existing pontoon, ramp and jetty below the MHWM. The mooring pen will consist of 4 x timber mooring piles to a height of 2.25m AHD. The mooring piles will frame a berthing area of 57m² (9.5m x 6m). The furthest seaward point of the mooring pen will be 18.9m from the MHWM.

Consideration of jurisdictional pre-requisites to the grant of consent

6. Owner’s consent for the lodgement of the application, pursuant to cl 49(1)(b) of the Environmental Planning and Assessment Regulation 2000, has been provided on behalf of the applicant by the Department of Planning, Industry & Environment, Lands and Water, dated 20 September 2019, and is attached to the application.

7. The site is zoned E4 Environmental Living and the area below the MHWM is zoned W2 Recreational Waterways, pursuant to Sutherland Shire Local Environmental Plan 2015 (LEP 2015). The proposed development is a permissible land use with development consent within the W2 zone. The objectives of the E4 and W2 zones, to which regard must be had, are:

Zone E4 Environmental Living

Objectives of zone

• 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.

Zone W2 Recreational Waterways

Objectives of zone

• To protect the ecological, scenic and recreation values of recreational waterways.

• To allow for water-based recreation and related uses.

• To provide for sustainable fishing industries and recreational fishing.

• To achieve a balance between public and private use of the waterways and intertidal areas.

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

• To allow suitable mooring facilities having regard to the established character of an area, recreational uses, the functionality of the waterways and the cumulative impact of mooring facilities and other man-made structures in a waterway.

8. The site is mapped as Environmentally Sensitive Land – riparian land and watercourses. Clause 6.7 of LEP 2015 applies to the site at cl 6.7(2). Clause 6.7 is in the following terms:

6.7 Environmentally sensitive land—riparian land and watercourses

(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.

(2) This clause applies to land identified as “Environmentally Sensitive Land” on the Riparian Lands and Watercourses 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 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.

9. The site is mapped as Environmentally Sensitive Land – environmental and scenic qualities of natural landforms. Clause 6.8 of LEP 2015 applies to the site at cl 6.8(2). Clause 6.8 is 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.

10. State Environmental Planning Policy (Coastal Management) 2018 (Coastal Management SEPP) applies to the site at cl 5. The site is mapped as part of a coastal environment area and a coastal use area. Clauses 13 to 16 of SEPP (Coastal Management) are in the following terms:

13 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 clause 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 subclause (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.

14 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.

15 Development in coastal zone generally—development not to increase risk of coastal hazards

Development consent must not be granted to development on land within the coastal zone unless the consent authority is satisfied that the proposed development is not likely to cause increased risk of coastal hazards on that land or other land.

16 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.

11. I accept the Council’s submission that there is no certified coastal management program that applies to the site.

12. I have considered the Council’s submission on jurisdictional matters (Attachment 1) and appeal assessment (Attachment 2) and on the basis of those documents and in the absence of any contrary evidence, I am satisfied that the proposal has been designed, sited and will be managed to avoid any significant adverse environmental impact.

Orders

13. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application No. 19/0851 for the construction of a mooring pen with four piles on Crown Land below Mean High Water Mark, fronting Lot 1 in Deposited Plan 806009, known as 250A Woolooware Road, Burraneer, 2230, subject to the conditions of consent at Annexure A.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (181893, pdf)

(Attachment 1) (202160, pdf)

(Attachment 2) (451251, pdf)

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Decision last updated: 23 February 2021