Hetherington v Northern Beaches Council

[2023] NSWLEC 1499

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hetherington v Northern Beaches Council [2023] NSWLEC 1499

Hearing dates:

Conciliation Conference 10 August 2023

Date of orders:

05 September 2023

Decision date:

05 September 2023

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Consent is granted to DA 2022/0880 for the construction of a new seawall within the Crown Land below the mean high water mark, alterations to the existing timber decking to the boatshed including part demolition/reduction in area of the decking and boatshed skid, and provision of associated filling and turfing of that space created by the new seawall, subject to conditions contained in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – residential development – new seawall – alterations and additions to timber deck – works below mean high water mark – conciliation conference – agreement between the parties - orders

Legislation Cited:

Coastal Management Act 2016, s 27

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, ss 34, 34AA

Pittwater Local Environmental Plan 2014, cll 7.1, 7.6, 7.7, 7.8, 7.10

State Environmental Planning Policy (Resilience and Hazards) 2021

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 4.6, 2.10, 2.11, 2.12 and 2.13

Texts Cited:

Northern Beaches Community Participation Plan

Category:

Principal judgment

Parties:

Scott Jarvis Hetherington (First Applicant)
Adele Lynette Hetherington (Second Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
D Briggs (Solicitor)(Applicant)
E Julliard (Solicitor)(Respondent)

Solicitors:
DG Briggs and Associates (Applicant)
Northern Beaches Council (Respondent)

File Number(s):

2023/71914

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application No DA2022/0880 for a seawall and land reclamation works (the Proposed Development) at 20 Cabarita Road, Avalon Beach legally described as Lot 7 in Deposited Plan 17704 (the Site).

2. As set out in the Statement of Facts and Contentions filed by the Respondent on 31 March 2023, specifically, the Development Application seeks consent for:

“• Demolition or partial demolition of the existing stone seawall;

• Removal of an area of the existing timber decking adjacent to the boat shed and skid ramp;

• Construction of a new sandstone seawall further seaward of the existing seawall;

• Land reclamation works behind the proposed new sandstone seawall to provide a levelled lawn area behind the new seawall;

• Extension of an existing timber deck associated with the jetty and boatshed.”

3. The Court arranged a conciliation conference under s 34AA(3) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 10 August 2023. I presided over the conciliation conference.

4. 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. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

5. 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

6. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

7. The Proposed Development has been amended in a minor respect to retain the existing seawall/retaining wall within the works. The purpose of that amendment is to limit risks of environmental harm that may arise out of the demolition and removal of the existing sandstone wall. By leaving that wall in place and carrying out the development, it will be subsumed within the new work. The parties say that the Proposed Development, and complemented by the further information provided by the Applicant, demonstrate that the proposal:

1. mitigates impacts from tidal influence (including scouring and erosion) thereby protecting the ecological and scenic value of the natural waterway;

2. through the expert reports, does not have an adverse effect upon the natural values of the waterway;

3. has no impact upon sustainable fishing industries or recreational fishing;

4. does not adversely impact on the natural environment;

5. has no impact upon the navigation of the waterway;

6. provides opportunity and improvement to existing private access to the waterway; and

7. does not cause unnecessary impact on public access to the foreshore and indeed, facilitates improved access along the foreshore.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be a number of provisions in the Pittwater Local Environmental Plan 2014 (PLEP) and the State Environmental Planning Policy (Resilience and Hazards) 2021. The parties explained how the jurisdictional prerequisites have been satisfied in a comprehensive Jurisdictional Note and also rely on the contents of a report prepared by Robert Player of DFP Planning Consultants filed 26 July 2023 (Supplementary Town Planning Report).

9. Owner’s consent for the development application has been provided and a copy of same is found at Annexure C to the Class 1 Application.

10. The zone boundary between the C4 Environmental Living Zone and the W1 Natural Waterways Zone is at the MHWM (by title) under the PLEP.

11. The Proposed Development is largely proposed upon land zoned the W1 Natural Waterways Zone.

12. Clause 7.1 of the PLEP relates to Acid Sulphate Soils and cl 7.1(3) provides that Development Consent must not be granted under this clause for the carrying out of works unless an acid sulfate soils management plan has been prepared for the proposed works in accordance with the Acid Sulfate Soils Manual and has been provided to the consent authority. An Acid Sulphate Soils Assessment prepared by Marine Pollution Research Pty Ltd dated 28 April 2021 is filed with the Class 1 Application in satisfaction of the requirements of cl 7.1 of the PLEP.

13. The Site falls within the Biodiversity Map of the PLEP and cl 7.6(4) provides:

(4) 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 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.

14. The objectives of cl 7.6 are directed towards protecting native fauna and flora, the ecological processes necessary for the continued existence, and encouraging the conservation and recovery of Native fauna and flora and their habitats.

15. The DA is supported by various reports including particularly an Estuarine Risk Report prepared by Cardno (NSW/ACT) Pty Ltd (now Stantec) dated 26 September 2022 (Annexure F to the Class 1 Application) and an Aquatic Ecology Report prepared by Marine Pollution Research Pty Ltd dated 15 April 2021 (Annexure G to the Class 1 Application), each of which deal with estuarine flora and fauna.

16. The parties, and the Court, are satisfied that the Proposed Development, and the conditions proposed by the development consent, satisfy the cl 7.6(4) preconditions to the grant of consent.

17. The Site falls within the Geotechnical Hazards Map pursuant to cl 7.7 of the PLEP and the Site is categorised Geotechnical Hazard H1. The objectives of cl 7.7 are intended to ensure that development on land susceptible to geotechnical hazards match the underlying geotechnical conditions of the land, are restricted on unsuitable land and otherwise do not endanger life or property. Whilst cl 7.7 is ordinarily directed to the carrying out of development on sloping sites where there is geotechnical risk, the Proposed Development must satisfy the terms of cl 7.7(4). Clause 7.7(4) provides that development consent must not be granted to development on land unless:

(a) the consent authority is satisfied that the development will appropriately manage waste water, stormwater and drainage across the land so as not to affect the rate, volume and quality of water leaving the land, and

(b) the consent authority is satisfied that—

(i) the development is designed, sited and will be managed to avoid any geotechnical risk or significant adverse impact on the development and the land surrounding the development, or

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

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

18. The Proposed Development is supported by a Geotechnical Risk Management Report prepared by Mr Ben White of White Geotechnical Group Pty Ltd dated 20 May 2022 (Annexure I to the Class 1 Application). I am satisfied that the Geotechnical Risk Management Report satisfies the preconditions set out in cl 7.7(4).

19. Clause 7.8 of the PLEP refers to limited development on foreshore area however the terms of this clause do not apply to the Proposed Development for reasons that the foreshore area, as defined by cl 7.8(5), means ‘the land between the foreshore building line and the mean high water mark of the nearest natural water body shown on the Foreshore Building Line Map’ and the Proposed Development does not fall within the foreshore area.

20. Clause 7.10 of the PLEP provides that development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required:

(a) the supply of water,

(b) the supply of electricity,

(c) the disposal and management of sewage,

(d) stormwater drainage or on-site conservation,

(e) suitable vehicular access.

21. To the extent that they are necessary for the purpose of the Proposed Development, those essential services are available to the Site.

Supplementary Town Planning Report dealing with the Coastal Management Act 2016 and State Environmental Planning Policy (Resilience and Hazards) 2021

22. The Coastal Management Act 2016 (CMA), particularly s 27 applies to the proposed development.

23. State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), particularly ss 2.10, 2.11, 2.12 and 2.13 apply to the proposed development.

24. These provisions of the CMA and the Resilience and Hazards SEPP are jurisdictional preconditions to the grant of development consent.

25. Mr Robert Player prepared the Supplementary Town Planning Report to address the relevant provisions of the CMA and the Resilience and Hazards SEPP.

26. Section 27(1)-(2) of the CMA provides:

(1) Development consent must not be granted under the Environmental Planning and Assessment Act 1979 to development for the purpose of coastal protection works, unless the consent authority is satisfied that –

(a) the works will not, over the life of the works –

(i) unreasonably limit or be likely to unreasonably limit public access to or the use of a beach or headland, or

(ii) pose or be likely to pose a threat to public safety, and

(b) satisfactory arrangements have been made (by conditions imposed on the consent) for the following for the life of the works –

(i) the restoration of a beach, or land adjacent to the beach, if increased erosion of the beach or adjacent land is caused by the presence of the works,

(ii) the maintenance of the works.

(2) The arrangements referred to in subsection (a) (b) are to secure adequate funding for the carrying out of any such restoration and maintenance, including by either or both of the following –

(a) by legally binding obligations (including by way of financial assurance or bond) of all or any of the following –

(i) the owner or owners from time to time of the land protected by the works,

(ii) if the coastal protection works are constructed by or on behalf of landowners or by landowners jointly with a council or public authority – the council or public authority.

…

(b) by payment to the relevant council of an annual charge for coastal protection services (within the meaning of the Local Government Act 1993).

27. To the extent that the provisions are relevant to the proposal, Mr Player opines in the Supplementary Town Planning Report, inter alia:

“a. In respect to s27(a), the proposed seawall and its ancillary works, and over the life of the works, will improve rather than limit public access to the foreshore, providing connection between the two adjoining properties;

b. By reference to the reports supporting the DA, confirms that the proposed works:

i. are necessary;

ii. improve safety for the owners and the public alike;

iii. are consistent with the Council’s Pittwater 21 DCP;

iv. are in compliance with the Estuarine Planning Level and the 100-year ARI storm tide at 1.25 AHD;

v. confirms the conditions for power supply and structural integrity;

c. In respect to s27(b), confirms by reference to appropriate conditions of development consent, the proposal will not cause increased erosion of the beach/rock shelf area or adjacent land caused by the presence of the proposed seawall.

d. In respect to s27(c), confirms the licence granted by Crown Lands (no. LI 500491), the nature of the works do not require payment of an annual charge for coastal protection services within the meaning provided for by the Local Government Act 1993.”

28. Section 2.10(1)-(2) of the Resilience and Hazards SEPP deals with 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.

…

29. Mr Player opines in the Supplementary Town Planning Report, inter alia:

“a. In respect to clause 2.10(1), and by reference to the Estuarine Risk Report, the proposed works are consistent with the Council’s Pittwater 21 DCP in respect to the site specific Estuarine Planning Level and the Wave Load Determination (per Clause B3.7 Estuarine Hazards Controls of the Pittwater 21 DCP);

b. In respect to clause 2.10(1), and by reference to the Aquatic Ecology Report, the infilling of the small indent to the predominant seawall alignment has no discernible impact upon seabed ecology, and those works will not change the biophysical, hydrological (surface and groundwater) and ecological environment of this Careel Bay locality - and further, the Estuarine Risk Report demonstrates appropriate mitigation measures;

c. In respect to clause 2.10(1), the use of clean (VENM) backfill material encapsulated within geosynthetic fabric barrier and top layer of river sand and turf and native plant species in garden beds is entirely consistent with the control; and d. Further in respect to clause 2.10(1):

i. the provision of public pedestrian links from the neighbouring properties below the mean high water mark is consistent with relevant planning objectives;

ii. the proposal will have no adverse impacts on Aboriginal Cultural Heritage, practices and places; and

iii. the proposal will have no adverse impacts on the use of the surf zone;

…

e. In respect to clause 2.10(2), the proposal has been designed and sited to avoid any significant adverse impacts identified within clause 2.10(1), consistent with the position adopted by New South Wales Crown Lands, Transport for New South Wales - Maritime Division, and the New South Wales Department of Primary Industries – Fisheries.”

30. Section 2.11(1) of the Resilience and Hazards SEPP deals with 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 foreshore,

(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) 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 foreshore,

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

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

31. To the extent that those provisions are relevant, Mr Player opines that the proposal:

“a. facilitates improved and safer access along the foreshore;

b. would not result adverse overshadowing, wind funnelling, nor the loss of access from public places to the foreshore and waterways of the Careel Bay locality;

c. maintains the visual amenity and scenic qualities of the Careel Bay foreshore and waterway, being designed and sited in a manner that is consistent and compatible with foreshore development upon adjoining properties;

d. is satisfactory in terms of compliance with the Resilience & Hazards SEPP, consistent with the opinions expressed in the report prepared by the Council’s assessing officer in that regard.”

32. Clause 2.12 of the Resilience & Hazards SEPP deals with development in the coastal zone generally and ensuring that development does not increase risk of coastal hazards. Mr Player cites the Estuarine Risk Report stating that “the proposed seawall and ancillary works are not likely to cause increased risk of coastal hazards on the site, land or other land in this Careel Bay foreshore and waterway area”.

32. Section 2.13 of the Resilience and Hazards SEPP deals with development in the coastal zone generally and the requirement that coastal management programs be considered. Mr Player confirms that there are no coastal management programs that apply to the Site.

33. The application does not involve a change in use and there is no concern with respect to contamination as required by s 4.6 of the Resilience and Hazards SEPP. The Council’s records are that the past and current use of the Site as a dwelling house remains unchanged.

34. As provided for in the Applicant’s Statement of Facts and Contentions in Reply filed on 17 May 2023, the Applicants’ representative obtained concurrences (General Terms of Approval) from the New South Wales Department of Planning, Infrastructure and Environment (NSW Fisheries), a copy of which is annexed at K to the Class 1 Application.

35. The Development Application was publicly exhibited in accordance with the EPA Act, the Environmental Planning and Assessment Regulation 2021 and the Northern Beaches Community Participation Plan. The Development Application was notified from 4 August 2022 to 18 August 2022. A total of two submissions were received by the Respondent, which were in support of the of the Development Application.

36. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I adopt the reasons given by the parties as set out in this judgment.

37. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Notations:

39. The Court notes that

1. The Northern Beaches Council, as the relevant consent authority, has agreed under section 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No DA2022/0880 in accordance with the documents listed below:

Drawing No.	Plan Number	Author	Date
Site Plan & Seawall Detail	2220-DA01 Rev A	Stephen Crosby & Assoc. Pty. Ltd.	22.6.23
Details and Levels Over Lot 7 in DP 17704 (annotated in red font)	Ref: 73940	Adam Clerke Surveyors Pty Limited	7/11/2020
XS1 Profile
XS2 Profile
View from Careel Bay

40. The Applicant filed the amended material referred to in [39(1)] on 28 July 2023

Orders:

41. The Court orders:

1. The appeal is upheld.

2. Development Consent is granted to DA 2022/0880 for the construction of a new seawall within the Crown Land below the mean high water mark, alterations to the existing timber decking to the boatshed including part demolition/reduction in area of the decking and boatshed skid, and provision of associated filling and turfing of that space created by the new seawall, subject to conditions contained in Annexure A.

E Espinosa

Commissioner of the Court

71914.23 Annexure A

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Decision last updated: 05 September 2023