Hosey v Sutherland Shire Council
[2005] NSWLEC 374
•07/18/2005
Land and Environment Court
of New South Wales
CITATION: Hosey v Sutherland Shire Council [2005] NSWLEC 374
PARTIES: APPLICANTS
Peter Joseph Hosey and Wendy HoseyRESPONDENT
Sutherland Shire Council
Willis & BowringFILE NUMBER(S): 11385 of 2003
CORAM: Nott C
KEY ISSUES: Development Application :- Proposed boatshed - appearance of the foreshore - excavation into embankment at the waterfront - existing waterfront structures - landowner's consent not obtained for slip rails - desirability of considering together an application for slip rails with the application for a boatshed - possibility of deletion of certain man-made structures and the erection of a differently located boatshed
LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97
Sutherland Local Environmental Plan 2000
Development Control Plan for Waterfront DevelopmentDATES OF HEARING: 29 April 2005
DATE OF JUDGMENT:
07/18/2005LEGAL REPRESENTATIVES: APPLICANTS
RESPONDENT
Mr P Baltins, solicitor
SOLICITORS
Willis & Bowring
Mr C Mathieson, council's principal environmental lawyer
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Nott C
18 July 2005
11385 of 2003
Peter Joseph Hosey and Windy Hosey v Sutherland Shire Council [2005] NSWLEC 374
JUDGMENT
1. Commissioner Nott: This is an appeal against the council’s refusal of a development application to erect a boatshed at 25 Flat Rock Road, Gymea Bay. The boatshed would be located on the applicants’ land just above the mean high-water mark of the North West Arm of Port Hacking. The proposed boatshed has a width of 4 m (plus the width of retaining walls each side) and a length of 7 m. The proposal is shown in the amended plans, drawing MDPO.02.035.1C (exhibit A).
2. The subject land slopes steeply from Flat Rock Road to the waterfront. Because of the steepness of the land, there will be significant excavation for the boatshed. At the rear eastern part of the boatshed, the excavation will have to be to a depth of 5 m. Moreover, the excavation will occur in the location of an aboriginal archaeological relic, being a shell midden. Near the water’s edge, there are large rock floaters and a rock platform. A new pedestrian access will have to be constructed down to a side entrance to the boatshed.
3. Below mean high-water mark, there are existing watercraft facilities associated with the subject land. These comprise a timber deck or wharf, from which a ramp or jetty projects south-westerly across the water to a pontoon. There are two fender poles close to the pontoon. Projecting south-easterly from the timber deck are two slip rails. At the time of the Court’s inspection, there was a trolley at the top of the rails with a small boat stored on it. The applicants also own a large motorboat (much larger than the proposed boatshed), which presumably has a mooring further out in North Arm Cove. A condition of the license granted to the applicants relating to the area below mean high-water mark was that no vessel shall be stored on the licensed land or adjoining the structures below mean high-water mark.
4. In order to easily launch a boat that is stored in the proposed boatshed, slip rails would have to be provided from within the boatshed across the rock shelf to sufficiently deep water. The original application (prior to the amended version now being considered by the Court) did provide for the existing slip rails presently running from the timber deck to be relocated to the proposed boatshed. However, the Department of Land and Water Conservation, representing the owner of the land below mean high-water mark, stated that landowner’s consent would not be considered for relocating the slip rails until the applicants could provide confirmation of the council’s granting development consent to the proposed boatshed on the applicants’ freehold land.
5. It is a prerequisite to the making of a development application that the owner of the land on which the development is to be carried out should grant consent for the lodging of the application. There is no right of appeal to this Court against the refusal of a landowner to grant consent for the making of a development application. However, if a government department (which is charged with the responsibility of deciding whether to grant a landowner’s consent) unreasonably declines to grant such consent, it appears that the conduct of the department could be the subject of a complaint under the Ombudsman Act 1974. (The responsibility for deciding whether to grant a landowner’s consent for development below mean high-water mark has since been transferred to the Department of Infrastructure, Planning and Natural Resources.)
6. If development consent is granted for the presently proposed boatshed, another development application will have to be made for development consent in respect of that portion of the slip rails that would be below mean high-water mark, assuming that the (departmental) landowner’s consent to lodging the development application is granted. It seems to me unfortunate that the applicants have had to pursue a costly appeal for the boatshed not knowing whether or not they would be able to lodge a development application for the slip rails in the event that the application for the boatshed was successful. Unless there is some adopted policy to the contrary, it would appear to be open to the department to grant a landowner’s consent to the lodging of a development application while at the same time expressing reservations to the council about the appropriateness of the consent authority granting development consent.
7. The proposed location of the boatshed is on the eastern side of the watercraft facilities referred to in par 3 above. On the western side of the facilities, some landscaping has been carried out with a low sandstone wall at the waterfront; and (above mean high-water mark) a flat sandstone terrace area or patio has been created with sandstone retaining walls.
8. A well-constructed stairway, preserving the environmental features of the land, leads down from the applicants’ house. The stairway winds past a small storage shed, hidden by trees, located about 6 m from the mean high-water mark. The stairway then proceeds down past the flat stone patio to the timber deck or wharf.
9. The council refused the development application for the boatshed by notice of determination dated 11 March 2003.
10. For the purpose of the hearing, the issues are set out in council’s Statement of Issues dated 3 March 2005. Briefly, the issues relate to: the visual appearance and the impact of the proposed boatshed on the natural state of the foreshore; the loss of trees and bushland; and the impact on an aboriginal archaeological deposit, being a shell midden.
11. At the hearing, consultant town planner Mr L Fletcher gave evidence for the applicants. For the council, evidence was given by the council officers Mr G Hand (town planner) and Mr J J Smith (environmental assessment officer – landscape). I have reviewed the documentary evidence, and I have had the benefit of a view of the site and foreshore of North Arm Cove as seen from the waterway.
12. For the reasons given below, I have concluded that it would not be appropriate to grant development consent for the proposed boatshed. I do not exclude the possibility of another development application being lodged for a boatshed on the western side of the existing waterfront facilities, as was canvassed during the hearing. Detailed and accurate plans would have to be prepared showing not only the new location of the boatshed but also the pedestrian access to it. Such plans should include cross-sections to assist in the assessment of the existing and proposed ground levels in the locations of the boatshed, the access and the slip rails. Desirably, any such new application should include (with the landowner’s consent) the construction of the necessary slip rails extending from within the boatshed across the rock shelf to an appropriate depth in the waterway. Whether or not any such new application should be approved would be a matter for the council to decide in the first instance.
13. The subject land is zoned residential 2(e2) under the Sutherland Local Environmental Plan 2000 (LEP 2000). The relevant provisions of LEP 2000 are referred to in the Statement of Basic Facts and in the Statement of Issues. Moreover, the proposed development has to have regard to the development control plan for waterfront development (DCP). There was also a draft LEP environmental plan referred to by the council officers, but its making in final form was not imminent and certain at the date of hearing.
14. The DCP includes the following:
11.1 Boatsheds
…Boatsheds should be designed to minimise excavation and incorporate a pitched (gable form) roof that reflects the character of the waterway. Boatsheds that exhibit a scale and character in keeping with traditional timber boatsheds are preferred.
11.2 Landscaping
… natural features along the foreshore are to be retained and the removal of natural rock, trees and vegetation to enable the construction of landscaping is not supported.
Natural ground levels are to be retained with minimal use of retaining walls.
15. Because of the particular location of the proposed boatshed, a massive amount of excavation will be required into the natural embankment at the foreshore. As well, a pedestrian access will have to be provided to the boatshed. The plan 1C shows that this access would be on the subject land immediately adjacent and parallel to the mean high-water mark. Such an access would lead to the destruction of a relatively large section of the rock shelf and embankment for a distance of 7.5 m; and a very large rock near the side entrance to the proposed boatshed would probably have to be destroyed or removed (the plan 1C does not accurately show the angle at which this large rock is presently supported by the embankment). An alternative access branching out from the existing stairway at a higher level would probably be better, although it would require an increase in the width of excavation along part of the western side of the boatshed.
16. Having regard to the provisions of LEP 2000 and the DCP, such an amount of excavation at waterfront could set an undesirable precedent: cf. BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274 at 279 (CA) and see cl 30(c) of LEP 2000.
17. The presently proposed location for the boatshed would also involve the destruction of at least part of a locally significant Aboriginal midden. For this to occur, a permit under s 87 and consent under s 90 of the National Parks and Wildlife Act 1974 are needed. The applicants have applied for such a permit and consent, but the Department of Environment and Conservation (NSW) has not issued the approvals. The department has advised that the application is incomplete and that additional information is required. Among other things, the applicants were requested to provide information about possible alternative locations for the boatshed and justification for the preferred option.
18. The existing stairway shown on the development application plan (MDPO.02.035.1C), being exhibit A, does not appear to show the existing stairway accurately. In the absence of other evidence to the contrary, I have assumed that the survey plan of Watson Buchan Pty Ltd dated 8 May 2002 (part of ex 12) accurately shows the stairway.
19. Taking the survey plan of 8 May 2002, it may be feasible to construct a boatshed immediately above mean high-water mark to the west of the existing waterfront facilities (mentioned in par 3 above). It would appear that there might be a distance of about 7.5 m for the slip rails to run from the mean high-water mark to a point in the water where the western rail would meet the prolongation of the line of the common side boundary between the subject land and adjoining property at No. 23. Even if the rails had to be extended for 9 m, the “encroachment” over the prolongation of the line of the common boundary would probably be less than 1 m, because of the angle of the rail. I use the word “encroachment” in quotation marks, because strictly speaking the mere ownership of the private freehold above mean high-water mark does not give the freehold owner a proprietary right over the waterway. I note also that the plan 1C indicates that the jetty, pontoon and fender pole of the property at No. 23 itself “encroaches” by about 3 m over the prolongation of the common boundary between No. 23 and its neighbour to the west. If there is a policy of the department against allowing future “encroachments”, query whether the policy may be varied in appropriate cases, particularly if the private owner of the land directly above the “encroaching” watercraft facility raises no objection to it. The slip rails would have to be oriented so as not to be lined up directly to the western existing fender pole. If a boatshed is located to the west of the applicant’s existing watercraft facilities, some truncation of part of the westward projection of the existing timber deck and wharf may be necessary.
20. Compared with the currently proposed location of the boatshed, an advantage of locating a boatshed on the subject land to the west of the applicants’ existing watercraft facilities is that the landform has already been altered by an excavation for the landscaped patio area. About half the floor area of a boatshed could cover most of the patio. There would still have to be further excavation in the location of the patio, but the excavation would be far less than what would be required for the present development proposal.
21. I have illustrated in the plan below the approximate position of a possible alternative location that was discussed at the hearing:
22. However, whether it would be appropriate to approve a boatshed at that location would depend upon a full consideration of a properly documented development application (as mentioned in par 12 above), and I refrain from expressing a concluded view on its merits. Nevertheless, as I indicated, a boatshed located on the western part of the subject land rather than (as now proposed) on the eastern part would appear to have less impact on the natural landform.
23. I do not necessarily agree with the views that were expressed at the hearing by the council officers that this stretch of North West Arm would probably not be suitable for any further boatsheds to be constructed. Individual circumstances of each property would have to be considered.
24. In my opinion, cl 20 of LEP 2000 does not preclude the granting of development consent for a boatshed. The equivalent provisions to cl 20 of LEP 2000 were contained in the former cl 19 of Sutherland Local Environmental Plan 1993, which was considered by the Court of Appeal in Curry v Sutherland Shire Council [1998] NSWSC 398. The Court said that the fundamental policy objective of the clause was to preserve and enhance waterfront land (within the foreshore building line) and to significantly reduce the number of buildings below the line. However, the Court immediately went on to say that the requirement to reduce the number of buildings did not apply to certain exempted development mentioned in subclauses (4) and (6).
25. As can be seen from cl 20(4) of LEP 2000, such exempted development includes boatsheds, watercraft facilities, works to enable pedestrian access, and landscaping and barbecues. The clause does not prevent the granting of consent to such development—see objective (c) of cl 20(1).
26. In respect of the present development application, the orders of the Court are:
1. The appeal is dismissed. 2. Development application no. 02/1390 for a boatshed in the south-eastern corner of 25 Flat Rock Road, Gymea Bay, is refused.
3. The exhibits, other than exhibits A, C, 8 and 9, may be returned.
_____________
A J Nott,
Commissioner of the Court
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