John Van Haandel v Byron Shire Council
[2006] NSWLEC 394
•21/06/2006
Land and Environment Court
of New South Wales
CITATION: John Van Haandel v Byron Shire Council [2006] NSWLEC 394 PARTIES: APPLICANT
RESPONDENT
John Van Haandel
Byron Shire CouncilFILE NUMBER(S): 10734 of 2005 CORAM: Brown C KEY ISSUES: Development Application :- construction of a dwelling - coastal erosion - erosion escarpment line LEGISLATION CITED: Byron Development Control Plan 2002
Byron Local Environmental Plan 1988
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
New South Wales Coastal Policy 1997
North Coast Regional Environmental Plan 1998DATES OF HEARING: 20/06/2006, 21/06/2006 EX TEMPORE JUDGMENT DATE: 06/21/2006 LEGAL REPRESENTATIVES: APPLICANT
Mr G Green, solicitor
SOLICITORS
Pike Pike & Fenwick
RESPONDENT
Ms K Gerathy, solicitor
SOLICITORS
Abbott Tout
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBrown C
21 June 2006
10734 of 2005 John Van Haandel v Byron Shire Council
JUDGMENT
1 COMMISSIONER: This is an appeal against the refusal of Development Application 10.2005.54.1 by Byron Shire Council (the council) for the construction of a dwelling at 31 The Esplanade, Byron Bay (the site). The Esplanade is a paper road only and actually forms part of the Belongil Beach. It provides no access to the site.
The site and surrounding area
2 The site is Lot 1 in DP 778102. It is irregular in shape with an area of 505 sq m and a frontage to Belongil Beach. Access to the site is via an existing right-of-way from Childe Street. The site is currently vacant with the exception of the concrete slab from a previous dwelling.3 The area is characterised by a range of small to large scale detached dwelling houses elevated above beach level with a range of sea wall structures occupying private land and the Crown land that makes up Belongil Beach.
The proposal
4 The proposal seeks to construct a transportable structure to be used for residential purposes. Specifically, the proposal provides for a building with an area of 59.4 sq m., a demountable deck, the extraction and construction of a concrete hard stand area for two vehicles and construction of three small retaining walls associated with the car park and entry area.Background
5 The recent history of the site is of some relevance in the proceedings. On 27 October 2003 a development application was lodged for alterations and additions to an existing single storey dwelling comprising an extension of some 7 sq m together with other minor modifications. Approval by the council was granted and the Department of Infrastructure, Planning and Natural Resources (DIPNR) granted concurrence. The Notice of Determination was dated 3 February 2004.Relevant planning controls6 On 24 June 2004 a s 96 modification application was lodged seeking reconstruction of two side walls that were previously to be retained. Council refused the application on 11 November 2004. DIPNR refused concurrence on 1 April 2005.
7 The site is within the 7(f2) (Urban Coastal Land Zone) under Byron Local Environmental Plan 1988 (LEP 1988). Dwellings are permissible with consent in this zone.
8 The other relevant clauses in LEP 1988 are cl 2A(1). This clause states the council shall not grant consent to the carrying out of development of land to which the plan applies only where the council is of the opinion that the carrying out of the development is consistent with the aim, objectives and guiding principles of this plan.
9 Clause 9(3) states:
- Except as otherwise provided by this plan the council shall not grant consent to the carrying out of development on land to which this plan applies unless the council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out.
10 The objectives of the 7(f2) zone are:
- (a) to identify urban land likely to be influenced by coastal processes;
(b) to permit urban development within the zone subject to the council having due consideration to the intensity of that development and the likelihood of such development being adversely affected by or adversely affecting coastal processes;
(c) to permit urban development within the zone subject to the council having due consideration to:
- (i) the need to relocate buildings in the long term;
(ii) the need for development consent to be limited to a particular period;
(iii) the form, bulk intensity and nature of the development; and
(iv) continued safe public access to the site;
11 Clause 32 requires the concurrence of the Director-General. The Director-General, in deciding whether to grant concurrence, must consider the following:
- (a) the likelihood of the proposed development adversely affecting or being adversely affected by coastal processes;
(b) the need to relocate buildings in the long term;
(c) the need for the development consent to be limited to a particular period;
(d) the form, bulk, intensity and nature of the development; and
(e) continued safe public access to the site.
Council requested the Director’s concurrence but concurrence was refused.
12 The North Coast Regional Environmental Plan 1998 (the REP) also applies. Clause 30 of the REP sets out objectives for coastal development including to enhance the visual quality of the coastal environment (Objective (a)) and to minimise risk to people and property resulting from coastal processes (Objective (d))
13 The New South Wales Coastal Policy 1997 (the Coastal Policy) is prescribed under the Regulations to the Environmental Planning and Assessment Act 1979 as a matter to be considered under s 79C. The Coastal Policy provides a series of goals, objectives and strategic actions to achieve an integrated approach to the management of the coast. Goal 2 is to recognise and accommodate natural processes and climate change. It’s related objective is to give impacts of natural processes and hazards a high priority. To achieve this objective Strategic Action 2.1.1 requires coastline management plans to be prepared by councils in accordance with the Coastline Management Manual.
14 Byron Development Control Plan 2002 (DCP 2002) applies to the site and, relevantly, Pt J: Coastal Erosion Lands. Under DCP 2002 the site is identified as being in Precinct 1 and being under immediate threat from coastal erosion processes. The element objective in Part J2 of DCP 2002 is to ensure impact of coastal processes on potential development is minimised by limiting development and ensuring any development is only temporary.
15 Draft Local Environment Plan for the Byron Bay Area also applies as it had been advertised between January and April 2006. It attracted around 1200 submissions. As no assessment of the submissions has been undertaken the draft plan could not be seen to be imminent or certain and as such should be given no weight in these proceedings.
The issues
16 The council filed a Statement of Issues containing six major issues and a number of sub issues. Following the submission of further information by the applicant the issues were significantly narrowed at the hearing. During the hearing the issue of transportability of the proposed dwelling was addressed through additional conditions, although additional plans would need to be provided by the applicant.
17 As a consequence the remaining issue was whether the proposed building provided an adequate set back from the erosion escarpment line. The issue also raised the question of whether the Court should use its discretion because of the history of the application and particularly the approval granted by the council on 3 February 2004.
The evidence
18 On the town planning issues, Mr Andrew Smith provided evidence for the applicant and Mr Chris Pratt provided evidence for the council. For the coastal management issues, Mr Angus Jackson provided evidence for the applicant and Mr Phillip Watson provided evidence for the council.
The appropriate setback
Background
19 Pt J2.1(1) provides no building is to be located within 20 m of the erosion escarpment. Erosion escarpment is not defined in LEP 1988 or DCP 2002 and the location was the subject of disagreement between Mr Jackson and Mr Watson. While agreeing on the definition contained within the recent Byron Coastline Management Study that, in part states, erosion escarpment is the landward limit of erosion in the dune system caused by storm waves, they disagreed on the physical location although both indicated on site their respective locations.
20 To give their conclusions some meaning it is necessary to provide some history of the site and surrounding area. As I understand large rocks were placed within the crown land some 30 years ago to create sea walls to protect the land from coastal erosion events (the earlier rock wall). These rocks are still in place, although there was some question over their stability. At the site, the sea wall is more than 3 m in height. Whether the rocks were placed in this location with the knowledge or approval of the council was in dispute between the parties. Above this level and set further back from the earlier rock wall further rocks have been placed on the site and are subject of legal action by the council for their removal (the later rock wall).
The applicant’s evidence
21 Mr Jackson states that the location of the proposed dwelling satisfies the 20 m requirement in Pt J2.1 when measured from the earlier rock wall. The property and adjacent properties are protected from erosion by the earlier rock wall and this prevents storm waves from eroding into the properties and forming an erosion escarpment. Even if the earlier rock wall is disregarded and the back of this wall is taken as the erosion escarpment, the distance from this deemed erosion escarpment line to the seaward limit of the proposed building is still greater than 20 m. In his opinion, a severe storm event would take at least 3 to 5 days to reach the proposed location of the dwelling, thereby allowing sufficient time to remove the dwelling.
The council’s evidence
22 Mr Watson identifies the erosion escarpment further landward. He states that the natural erosion escarpment line immediately to the north-west of the property is governed by the extent of the ad hoc protection works (i.e., earlier rock wall) that extends along the adjoining properties up to Manfred Street. The natural erosion escarpment line in this location is formed by the storms in 1970’s and 1980’s and is not evident due to the ad hoc works, landscaping and filling in some locations. In his opinion, the erosion escarpment line on the site would be a transition between the alignments identified to the south-east and north-east with the result that the 20 m setback intersects the majority of the proposed dwelling.
Findings
23 The Court is required to take into consideration the range of planning documents that relate to the protection of coastal areas. These are identified earlier in the judgment. There can be no doubt that the Belongil Spit is highly susceptible to coastal erosion and the council has adopted the legitimate principal of planned retreat to address this coastline hazard. The area falls within the most sensitive category in Pt J of DCP 2002. Based on the evidence of both Mr Jackson and Mr Watson, Belongil Spit is subject to a range of associated coastline hazards. These coastline hazards have been extensively studied and are well understood to the point where this part of the coastline could be indisputably described as being subject to short term beach erosion, reduced bearing capacity and long-term shoreline recession. Clearly, the site calls for a cautious approach to any form of development.
24 In balancing the expert evidence I am more persuaded by the evidence of Mr Watson. I accept his evidence that the earlier rock wall cannot be relied upon because it has a relatively low crest level and poor structural interlocking of the rocks. The rocks also have a significant variation in size, including a relatively large amount of small rocks within the rock face. This needs to be compared to a conventional engineer-designed structure where larger rocks are used. He expects that the earlier rock wall would undergo significant damage or possibly fail completely in a design ocean storm event. Without details of the design or construction of the earlier rock wall I accept Mr Watson’s evidence that it is not possible to predict the future ability to resist design storm wave attack or estimate it’s longevity. I accept Mr Watson’s opinion that the earlier rock wall will, at some point, rapidly deteriorate and fail. For this reason, I agree that the estimate of 3 to 5 days for any erosion to reach the location of the proposed dwelling should not be relied upon. I also note that an independent structural assessment commissioned by the council concluded that the wall was structurally unsound and should be removed.
25 Without diminishing the individual significance of the range of planning instruments that apply to the site it could be generally concluded that they seek a co-ordinated and planned approach to coastal hazard assessment and management. The council has responded appropriately to the general directions required by the planning instruments, through LEP 1988 and DCP 2002, particularly Pt J. There was no suggestion that these local planning instruments were inconsistent with any of the higher order planning controls identified earlier in the judgment.
The Court’s discretion
26 Mr Green submitted that the Court should use the discretion available in Pt J2.1 relating to existing buildings to allow the proposed dwelling. He submits that the previous building was unfortunately damaged and the decision to remove the remaining walls was taken on the basis of structural considerations and not the planning implications that would flow from their removal. He described this as a technical breach. Mr Green further submitted that the objective of the 20 m requirement was satisfied because the building could be removed within 12 hours, this being substantially short of the period suggested by Mr Jackson for any storm erosion to reach the location of the proposed dwelling.
27 I reject these submissions for a number of reasons. Part J2.1 distinguishes between new and existing buildings. Despite the actions that led to the removal of the existing building, the site is vacant and the proposed dwelling must be regarded as a new dwelling. I note that even the requirements for existing buildings invoke additional considerations for relocation consistent with the council’s approach of planned retreat. The satisfaction of the element objectives through the relocatability of the dwelling and the likely time for erosion to reach the dwelling can also not be supported. The 3 to 5 day time period is extremely questionable based on the findings earlier in the judgment. I also accept that the 20m setback addresses the additional coastal hazards of long-term recession and the reduced bearing capacity.
28 Importantly, to accept the submission would be to effectively disregard the 20 m requirement in DCP 2002even though the majority of the building falls within this setback. While the Court has a discretion in applying this requirement the Court must also assume that it has a planning purpose. As submitted by Ms Gerathty, the 20 m requirement must be applied cumulatively with the requirement for relocation otherwise it would have no purpose.
29 In accordance with cl 2A(1) I find that the proposed development will be inconsistent with the aims in cl 2(a) and 2(b), the guiding principle in cl 3(b) and accordance with cl 9(3), inconsistent with objective (b). On this basis the development consent must be refused.
30 While s 39(6) of the Land and Environment Court Act1979 allows the Court to determine the appeal irrespective of whether concurrence has been granted I accept that after consideration of the matter in cl 3(2)(a) concurrence should not be granted.
31 Prior to the Court making final orders, Mr Green requested the opportunity to provide amended plans based on the findings in the judgement. The proceedings were adjourned and following directions made:
(1) The applicant is to provide amended plans to council by 30 June 2006.
(2) The council is to advertise and review the amended plans and advise the applicant on the merits or otherwise of the plans by 28 July 2006.
(3) The parties to approach the Court via e-court for a Mention during the week commencing 31 July 2006.………………………………….
G T Brown
Commissioner of the Court
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