Johnston v Wollongong City Council

[2018] NSWLEC 1331

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Johnston v Wollongong City Council [2018] NSWLEC 1331
Hearing dates:	19-21 February 2018; 10 August 2018
Date of orders:	18 September 2018
Decision date:	18 September 2018
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	The Court orders: (1) The appeal is dismissed. (2) The exhibits are returned, except for Exhibits A, B, N and 1.
Catchwords:	APPEAL – development application – dwelling on headland – coastal processes – precedent – visual impact of the development on a prominent headland
Legislation Cited:	Coastal Protection Act 1979 Draft State Environmental Planning Policy (Coastal Management) 2016 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Protection of the Environment Administration Act 1991 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Coastal Management) 2018 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No. 55- Remediation of Land State Environmental Planning Policy No. 71 Coastal Protection Wollongong Local Environmental Plan 2009
Cases Cited:	Blackmore Design Group Pty Limited v North Sydney Council [2001] NSWLEC 279 Terrace Towers Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289
Texts Cited:	NSW Coastal Planning Guideline: Adapting to Sea Level Rise, August 2010 Wollongong Development Control Plan 2009 Wollongong Section 94A Contributions Plan 2017
Category:	Principal judgment
Parties:	Julie Ann Johnston (First Applicant) Joan Mary Johnston (Second Applicant) Wollongong City Council (Respondent)
Representation:	Counsels: A Galasso SC (Applicants) M Wright SC (Respondent)   Solicitors: Williamson Isabella Lawyers (Applicants) Wollongong City Council (Respondent)
File Number(s):	2017/184487
Publication restriction:	No

Judgment

1. This Class 1 appeal concerns Wollongong City Council’s (Council) refusal of a development application lodged by Julie Johnston and Joan Johnston (applicants) (DA 2016/1368) for the construction of a two storey dwelling house, swimming pool, spa and associated works on land located at Lot 39 Woodland Avenue, Thirroul, being real property descriptor LOT 39 DP 7133 (site). The appeal is brought pursuant to s 8.7 of the Environmental Planning and AssessmentAct 1979 (EPA Act).

2. For the following reasons, I have decided to refuse the development and dismiss the appeal.

Facts

3. The site is located at the eastern end of Woodland Avenue, being the last parcel of private property before the beach area (Crown land). It is currently vacant (but for fencing) and slightly vegetated.

4. It was created in 1912 as a result of the subdivision of the Woodlands Beach Estate, Thirroul. While the south western portion of the site is generally level, it then falls steeply to the east (beach). Relevantly, the central area of the site is comprised of a steep cliff face, falling approximately 6m to the rock shelf and beach sand below.

5. The site is located within the E4 Environmental Living Zone under the Wollongong Local Environmental Plan 2009 (WLEP 2009) which generally separates the R2 zone and RE1 zoned Crown Reserve which overlies the southern Thirroul coastline area. The land zoning permits dwelling houses, albeit in an environmentally sensitive way.

6. The site is also identified by Council as being affected by unstable land, coastal geotechnical risk, key fish habitat, acid sulphate soils, foreshore building line and as being within the Coastal Zone.

7. The site is adjoined by a two storey residential dwelling to the immediate east. Part of a private lot is located to the immediate north of the site. A dual occupancy exists on this northern site; however, the structures have been located to the far west of the site. To the south of the Woodland Ave road reserve is a site with a split zoning, R2 and R4 of the WLEP 2009. At the time of the hearing, a two storey dwelling was under construction and straddling the R2/R4 zone boundary. The remainder of the surrounding area is comprised of single residential dwelling houses, of a variety of sizes and architectural styles.

8. The aerial photographs below taken from the Council’s assessment report in the Council’s bundle (Exhibit 5) show the site outlined in red and its location proximate to the coastline.

The proposal

9. The dwelling is proposed to be stepped down the slope of the land towards the east (the beach). The ground floor, accessible from Woodland Ave, is proposed to contain a double garage, one bedroom, an ensuite laundry, a cabana, a swimming pool and an outdoor balcony area. The lower ground floor is comprised of a second bedroom, a walk in wardrobe, a sitting room and an ensuite, a rumpus room and the main kitchen living and dining area, opening out onto a 75m² east facing balcony area. A spa and terrace area is proposed to be accessed off the lower ground floor bedroom.

10. It is understood from the coastal and geotechnical experts’ joint report (Exhibit 4) and their earlier statements and architectural plans (Exhibit A) that the proposed development includes:

• The development of a two storey structure with a ground floor level of 13.85AHD (Australian Height Datum) and lower ground level of 10.65AHD.

• The western portion of the site comprises an upper section at approximately 13.6AHD which slopes from the crest of the foreshore cliff line (approximately 10m high). The central and southern portions of the site are comprised of clayed soils and weathered claystone. Traces of coal wash fill have also been observed within the area.

• The Erins Vale Formation (EVF) forms the sub vertical cliff faces at the base of the cliff, seaward of the eastern site boundary, and has also been encountered at between RL 3.3AHD and RL 1.1AHD.

• A combined erosion and long term recession rate of 0.15m/year has been adopted in the design, with the existing profile above the EVF assumed to maintain the same slope and simply translate horizontally landward as erosion and long term recession (Exhibit 4). This is considered to be reasonable for planning purposes over the design life according to the parties’ planners, Ms Jessica Saunders (Council) and Mr Dan Brindle (Planners’ Joint Report – Exhibit 3).

The Statutory Controls

11. The following legislation and environmental planning instruments were the subject of evidence and submissions:

1. Coastal Protection Act 1979 (1979 Act)

2. Coastal Management Act 2016 (commenced 3 April 2018)

3. State Environmental Planning Policy No. 55 - Remediation of Land

4. State Environmental Planning Policy No. 71 - Coastal Protection (SEPP 71)

5. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

6. State Environmental Planning Policy (Infrastructure) 2007

7. Wollongong Local Environmental Plan 2009 (WLEP 2009)

8. Draft State Environmental Planning Policy (Coastal Management) 2016 (Draft SEPP 2016)

9. State Environmental Planning Policy (Coastal Management) 20118 (SEPP 2018)

10. Wollongong Development Control Plan 2009 (WDCP 2009)

11. Wollongong Section 94A Contributions Plan 2017

12. There is no dispute that the Court has a statutory requirement to consider the risks associated with coastal processes, both now and into the future, in any planning and development decision it makes in relation to a coastal zone. However, in this case the legislative framework changed after the completion of the evidence and my reserving judgment. Therefore, it was necessary to invite the parties to address me about the correct legislative framework for the purposes of the appeal – with particular reference to the making of State Environmental Planning Policy (Coastal Management) 2018, as made.

13. To that end, the parties filed written submissions on 10 August 2018 which I have now had opportunity to consider.

14. Both parties also referred to the repeal of the Coastal Protection Act 1979 (repealed) and the commencement of the Coastal Management Act 2016 after the conclusion of the evidence.

15. The Coastal Management Act2016, at the time evidence was given, had been enacted, but not yet commenced. That occurred on 3 April 2018. The management objectives for the coastal environment area are listed in s 8(2) of the Act.

16. At the time of the hearing, I was referred to the provisions of the 1979 Act which provide objectives for the protection of the coastal environment of the State and contain requirements relating to the preparation of Coastal Zone Management Plans (CZMPs) and matters to be dealt with in CZMPs. One of the listed matters was the management of risks arising from coastal hazards.

17. It was also explained to me at the hearing that following extensive stakeholder consultation the Council had prepared and exhibited a coastal study report and mapping (called the Wollongong City Council Coastal Zone Study), which was endorsed at its meeting on 27 July 2010 when it was resolved that:

1. The hazard extents identified in the Wollongong City Council Coastal Zone Study be used for development assessment;

2. Section 149(2) notations be made on properties potentially affected by the coastal hazards identified in the Study; and

3. The hazard extents identified in the Study form the basis for the preparation of the Wollongong City Council CZMP.

18. The evidence is that the applicants’ site is mapped within the 'Coastal Influenced Geotechnical Hazard Zone' as identified in the Wollongong City Council Coastal Zone Study 2010. Consequently, the following s 149(2) notation applies to the site:

“Council and other public authority policies on hazard risk reduction

…

This land has been identified in the Wollongong City Council Coastal Zone Study (Cardno Lawson Treloar 2010) as having:

An exposure to coastal geotechnical risk

…

The Wollongong City Council Coastal Zone Study (Cardno Lawson Treloar 2010) is dated July 2010 and reflects information available at that time. For coastal geotechnical risk, it does not distinguish between current or future exposures. Contact Council for more information …”

19. According to the evidence on 30 October 2017, the Council endorsed the final draft of the CZMP for resubmission to the NSW Minister for Environment for certification under the 1979 Act. It was then certified on 20 December 2017. However, it was explained at the time that in order to take effect, the certified draft CZMP needed to be adopted by the Council and published in the NSW Gazette. To that end, on 19 February 2018, the Council recommended that the certified draft be adopted and gazetted after requisite notification and community briefing (Exhibit 8). It was conceded by the applicants at the time of the hearing that the CZMP was in effect a legislative reality because its gazettal was required to be done in consequence of the Minister’s certification irrespective (Transcript 21/2/2018, p216, L30). Therefore, in that circumstance, on the back of the 1979 Act, one is required to comply with an adopted and gazetted CZMP.

20. Since the conclusion of the hearing, the applicants, in its further written submissions dated 10 August 2018 (AWS), have drawn my attention to the fact that the certified draft plan was in fact published in the NSW Gazette on 9 March 2018. It is now the case that the Wollongong CZMP is a “certified coastal management program” as referred to in cl 21 of the Draft SEPP 2016 (now cl 16 of SEPP 2018). The SEPP 2018 was also commenced after the hearing on 3 April 2018. (I will deal with the relevance of the SEPP 2018 shortly).

21. At the hearing, it was explained to me that the Wollongong CZMP sets out actions that the Council (and potentially other agencies) can take to manage properties and assets at risk, now and into the future, from coastal storms, climate change and sea level rise. According to the Council, a two staged process was used to prepare the Wollongong CZMP. The first stage identified the land extents potentially exposed to coastal hazards up to 2100 timeframe. The report from this stage was the Wollongong Coastal Zone Study (referred to earlier) which informed the preparation of the CZMP, as the second stage. For the preparation of the CZMP, a risk based approach was used to identify the properties and assets at highest risk and proposed management options. The action recommended to address those risks is reported in the CZMP – Implementation Action Plan.

22. While most of the actions identified in the Implementation Action Plan relate to Council assets i.e. beaches and dunes, there are a few that relate to private property. Relevantly, for present purposes, one of the actions is for the provision of a seawall to be constructed to protect properties around the Thirroul headland where the site is situated.

23. The applicants submitted at the hearing on the evidence that the piling of the development as proposed in this case as assessed in the joint report by the coastal and geotechnical experts is that it effects a sea wall (Exhibit 4 2.3). In that regard, it is further submitted that the design as proposed (at 8m) is not inconsistent with the CZMP and the Council’s Management Study. In support of that proposition, the applicants’ senior counsel Mr Galasso refers the Court to the summary in the Management Study at p39 under the heading at 6.22 Geotechnical Risk Levels and Treatment Options Item S11 which refers to the sea wall in this area to stop wave overtopping and covering 16 properties– and the need for undertaking detailed design of a wall up to McCauley’s Beach. The sea wall is identified in the Study as a priority number 2, not priority 1, and on that basis, it is submitted that “the timing intersects existing buildings” (T21/2/18, p219 l1). In other words, in circumstances as is the case at hand - where there is no agreement for a contiguous sea wall from the owners at number 7 and the Council as owner of the reserve - the trigger for protecting the site by a sea wall is this DA.

State Environmental Planning Policy (Coastal Management) 2018 (SEPP 2018)

24. Let me now summarise each parties’ further written submission with respect to the SEPP 2018 and other matters.

The Applicants’ position

25. The applicants submit that there are four relevant topics to that legislative change in the circumstances of this appeal.

The Savings Provision

26. Firstly, cl 21 of the SEPP 2018 contains a savings provision to the effect that the former planning provisions continue to apply (and the ‘new “or current SEPP) does not apply.

27. Clause 21 is set out below:

21 Savings and transitional provisions

Note. See also section 27 (Granting of development consent relating to coastal protection works) of the Coastal Management Act 2016.

(1) The former planning provisions continue to apply (and this Policy does not apply) to a development application lodged, but not finally determined, immediately before the commencement of this Policy in relation to land to which this Policy applies.

(2) Clause 10 of this Policy does not apply to the following activities (to the extent that they would otherwise comprise development to which that clause would apply):

(a) the carrying out of an activity for which an approval was granted by a determining authority under Part 5 of the Act before the commencement of this Policy,

(b) the carrying out of an activity after the commencement of this Policy, but only if:

(i) any approval that is required for carrying out the activity is granted by the determining authority under Part 5 of the Act within 12 months after that commencement, and

(ii) any environmental impact assessment of that activity under Part 5 of the Act that is required had commenced before the commencement of this Policy.

(3) The former planning provisions continue to apply (and this Policy does not apply) to an application for development consent if:

(a) the application is made within 12 months after the commencement of this Policy, and

(b) an environmental impact statement is to be submitted in connection with the application, and

(c) the Secretary issued, before the commencement of this Policy, environmental assessment requirements for the preparation of the statement, and

(d) those environmental assessment requirements require the preparation of the statement to have regard to:

(i) State Environmental Planning Policy No 14—Coastal Wetlands, or

(ii) State Environmental Planning Policy No 26—Littoral Rainforests.

(4) In this clause:

activity and approval have the same meanings as they have in Part 5 of the Act.

former planning provisions means:

(a) the provisions of each of the following Policies as in force immediately before the Policy’s repeal:

(i) State Environmental Planning Policy No 14—Coastal Wetlands,

(ii) State Environmental Planning Policy No 26—Littoral Rainforests,

(iii) State Environmental Planning Policy No 71—Coastal Protection, and

(b) the provisions of State Environmental Planning Policy (Infrastructure) 2007 that would be in force if that Policy had not been amended by this Policy.

(Emphasis added)

28. Next, at par 4 of the AWS they submit that it is arguable that the usual alternate course of the SEPP being taken into account as a “draft on exhibition” instrument is not the case as cl 21 does not contemplate that approach. Rather, cl 21 simply states the position of the controls which are applicable to an application such as this one; that is, at the time of the decision, there is no proposed environmental planning instrument which has been placed on exhibition: s 4.15(1)(a)(iii).

29. In any event, to the extent that the former planning provisions (as that term is defined in cl 21) are relevant, the applicants submit that they were addressed in the evidence and submissions before the Court.

The Provisions of the SEPP 2018

30. Furthermore, and despite their primary submission in par 4 of the AWS, the applicants submit that the provisions of the now SEPP were considered as part of the evidence before the Court, in response to specific contentions raised by the Council.

31. In regard to Contention 7 which provides as follows:

“The proposal is inconsistent with the provisions of the Draft State Environment Planning Policy (Coastal Management) 2016

Particulars

At the time of assessing the development application, the Draft SEPP (Coastal Management) 2016 was on exhibition and hence require consideration pursuant to Section 79C(1)(a)(ii).

The site is mapped as being within the coastal environment area, pursuant to the exhibited Maps.

The proposal is not consistent with the Management objectives exhibited for that Area.” (emphasis altered)

32. With respect to this contention, the applicants rely on the coastal engineering experts agreed position that the proposed development is consistent with the various management objectives of the Coastal Environment Area, namely subss 8(2)(a), (b), (c) and (d) of the Coastal Management Act 2016. Noting that the current version of the Act has identical corresponding clauses to the version reviewed by the experts (Joint Expert Report, at par 41).

33. The applicants also submit that the evidence has addressed Council’s Contention 11 about Draft SEPP 2016. The contention provides:

“11. The application is inconsistent with the Draft State Environment Planning Policy (Coastal Management) 2016

Particulars

The Draft SEPP (Coastal Management) 2016 has been exhibited but not adopted.

Section 79C(1)(a)(ii) of the Environmental Planning and Assessment Act 1979 requires that any proposed instrument that is or has been the subject of public consultation under that Act and has been notified to the consent authority is to be taken into consideration in determining an application.

Division 3 Coastal environment area Clause 14(1) states that development consent must not be granted on land within the coastal environment area unless the coastal authority is satisfied as to certain matters.

The proposal has not demonstrated that the development will not result in adverse impacts on the biophysical, hydrological and ecological environment as required by clause 14(1)(a).

The submitted information does not demonstrate the potential will not impact on geological or geomorphological coastal processes or features or that the proposed works will not be impacted by these processes and features.

The submitted information indicates the removal of most of the vegetation on the embankment which does not satisfy clause 14(1)(d).

Division 5 General clause 16 requires that development consent must not be granted to development within the coastal zone unless the consent authority is satisfied that the proposed development is not likely to cause increased risk of social coastal hazards on that land, or other land.

The proposal provides no certainty that the works would not result in adverse impacts on coastal processes and would not be impacted by coastal processes both during construction and throughout the life-cycle of the proposed building.”

(emphasis altered)

34. In response to Contention 11, the applicants submit that SEPP 18 although commencing on 3 April 2018 despite different numbering is, both in form and content, similar to that in the public consultation draft SEPP 2016. In support of that proposition, the applicants rely upon a letter prepared by Mr Peter Horton, coastal engineering expert on behalf of the applicants, who is the co-author of the joint coastal engineering geotechnical engineering expert report dated 31 January 2018. In that letter, Mr Horton compares the provisions of the Draft SEPP 2016 and the SEPP 2018 in the context of the matters agreed between the experts. He concludes that, as reflected in the joint report, the proposed development satisfies the current SEPP, and former SEPP 71, in relation to the clauses outlined.

35. Furthermore, to the extent that the evidence before the Court addressed the then draft and now made SEPP, the applicants include with their submissions a document entitled ‘Schedule 8’ cross-referencing the evidence and the correlation between the draft SEPP and the final form of the SEPP.

Clause 3 of the SEPP

36. With respect to cl 3 of the SEPP which sets out the aims of the policy to promote an integrated and coordinated approach to land use planning in the coastal zone in a manner consistent with the objects of the Coastal Management Act 2016, including the management objectives of each coastal management area, by;

1. managing development in the coastal zone and protecting the arrival assets of the coast, and

2. establishing a framework for land use planning to guide decision-making in the coastal zone, and

3. mapping the 4 coastal management areas that comprise the NSW coastal zone the purpose of the definitions in the Coastal Management Act 2016.

37. The applicants submit that to the extent the chapeau to cl 3 references a coordinated approach that must be read in terms of the fact that the SEPP replaced three prior SEPPs, as referenced in cl 21.

38. Furthermore, that approach is directed to the three subparagraphs to cl 3. The essence of those paragraphs mirror certain of the specific aims of SEPP 71, which was repealed upon the making of the SEPP 2018 (see subcll 2(1)(a),(e),(f)(i),(j),(k), and (l)). Those aspects were addressed as part of the hearing.

39. Insofar as cl 3 references management objectives, in the coastal engineers joint report at par 41, the experts agreed that the proposed development is consistent with various management objectives of the Coastal Environment Area, namely s 8(2)(a), (b), (c) and (d) of the Coastal Management Act 2016. The current version of the Act has identical corresponding clauses to the version reviewed by the experts.

Wollongong Coastal Zone Management Plan

40. I have earlier referred to the applicant’s position in relation to the Wollongong CZMP. They accept that it applies as referred to in cl 16 of the SEPP 2018 and cl 21 of the draft SEPP. Moreover, they submit that those provisions tie in the objectives referenced in cl 3.

41. Accordingly, for the above reasons, ultimately the applicants contend that notwithstanding that the SEPP has since been made; there is no change of law or of substance to the issues before the Court.

The Council’s position

42. The Council contends that for the purposes of this appeal the “former planning provision” pursuant to cl 21.4 is SEPP 71.

43. However, the effect of cl 21 is that the SEPP 2018 remains a proposed instrument for the purposes of the evaluation required by cl 4.15 of the SEPP 2018. As an instrument now made, the Coastal Management SEPP is deserving of weight in the Court’s consideration of the current application: (Terrace Towers Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289 and Blackmore Design Group Pty Limited v North Sydney Council [2001] NSWLEC 279 albeit dealing with a draft instrument prohibiting certain development).

44. Therefore, the Court is required to give consideration (and weight) to the terms of cll 13 and 14 of the SEPP 2018, observing that the site is mapped as being located within both the “coastal environment area” and “coastal use area”.

45. Consideration and weight must also be given in Council’s submission to cl 16 of the coastal management SEPP 2018. Clause 16 provides:

Development consent must not be granted to development on land within the coastal zone unless the consent authority has the taken into consideration the relevant provisions of any certified coastal management program that applies to the land.

46. As the Court was made aware during the hearing, Council has a certified coastal management program, as defined in the coastal management SEPP. Prior to its repeal on 3 April 2018, s 4.15(1)(a)(v) of the EPA Act required a consent authority to take into consideration the provisions of any coastal zone management plan (within the meaning of the 1979 Act) as are of relevance to the development the subject of the development application. The obligation to consider a coastal management plan (or certified coastal management plan, using the coastal management SEPP words) now directly arises only via cl 16 of the SEPP.

47. Section 2.6 of the joint report of the engineers (Exhibit 4) refers to both the draft SEPP 2016 and Coastal Management Act 2016. At the time this evidence was given, the draft SEPP existed as a published public consultation draft. The now commenced instrument differs in certain respects to that draft. Importantly, two matters for consideration have been added which did not appear in the draft of the coastal environment area, namely;

(b) coastal environmental values and natural coastal processes; and

(c) existing public open space and safe access to and along the foreshore, beach, head land all rock platform for members of the public, including persons with a disability.

48. The Council submits that these two matters for consideration closely reflect management objectives (a) and (f) of the coastal environment area set out in the now commenced Coastal Management Act2016. This Act had not commenced at the time the evidence was given. Section 8(2) lists the management objectives for the coastal environment area. Paragraph 41(a) of the Exhibit 4 refers to those management objectives, but only to natural processes of coastal waters. It does not (and could not, given the expertise of these experts) speak to protecting and enhancing the “coastal environmental values”, “natural character” and “scenic value” of the area.

49. In relation to those matters, the evidence of Ms Saunders contained within pages 6 and 8 of the joint report with Dr Richard Lamb, together with Figures 1.2 and 1.3 of that report provide assistance. In addition, it was a matter of agreement for both expert witnesses that:

1. the proposal is a substantial development in a prominent location (p 8)

2. that the locality has special aesthetic values (p 10)

3. sections, elevations, 3-D plus external perspectives impression and landscaping plans do not reflect the findings of the geotechnical or coastal engineering reports and would be required to be revised to reflect those recommendations (p 14)

4. a cable stayed structure supported from below, suspended above the site, would have significantly greater and unacceptable visual impacts (p 18).

50. The Council also submits that the evidence before the Court (Exhibit J, Appendix C, pages 9 and 10 of the Northtop Structural Report by Trevor Clack), and evidence given at the hearing by coastal engineer Gary Blumberg was that the contiguous pile wall proposed to the western boundary of the subject land will, in practice, function as a seawall once the land to the east of it is eroded and has been washed away. Approval, therefore, would effectively include approval of development defined as “coastal protection works” under s 4(1) of the Act. Subject to verification by reference to the transcript, the Council submits that Mr Blumberg gave evidence to the effect that the western wall is likely to result in end effects, to some extent, in the future.

51. It is further submitted that if the Court were minded to grant consent to the proposed development, for completeness, it must address s 27(1) (of the now commenced Act) which relevantly provides that the Court would first need to be satisfied that:

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

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

(ii)    the maintenance of the works.

52. With respect to SEPP 71, the Council contends as pleaded in its Statement of Facts and Contentions that pursuant to cl 21(1) of the coastal management SEPP, SEPP 71 and the matters for consideration set out in cl 8 of the SEPP continue to apply to the Court’s assessment of the subject application. SEPP 71 applies to land in NSW which is located within the coastal zone. The matters which should be taken into account by a Council as part of the determination of a development application are outlined in cl 8. The site is within the coastal zone, and hence, the Policy applies.

53. The Council also submits that SEPP 2018 should be viewed in light of the terms of cl 21(1) as a proposed instrument for the purposes of s 4.15 of the EPA Act.

54. At paragraph 4 of the applicants’ written submissions, it was put as arguable that the usual alternate course of the coastal management SEPP being taken into account as a draft on exhibition is not the case. If that position were accepted, it would produce the rather “absurd result that the draft coastal management SEPP would be a consideration for a consent authority for the purposes of s 4.15 under the EPA Act but, once actually made, as is the case at hand, it cannot lawfully be taken into consideration any form”.

55. According to the Council, this position contended by the applicant, should not be entertained - the coastal management SEPP 2018 is a consideration as a proposed instrument in this case.

Finding – what relevance should the SEPP 2018 have in this case

56. Having considered the parties’ submissions including the applicants’ final position at par 20 that “…notwithstanding that the SEPP has since the hearing had been made, there is no change of law or substance to the issues before the Court” and Mr Horton’s letter filed with the AWS – (confirming after a comparison of the relevant provisions of the draft SEPP 2016 and SEPP 2018 in the context of the agreed matters between the experts that there is no change) – I accept that cl 21 appears to preclude a consideration of the SEPP as a proposed instrument under s 4.15(a)(ii) of the EPA Act. In any event, if the applicant’s primary view about the interpretation of cl 21 is correct – then it remains the case that the SEPP must be still relevant as part of a weighted assessment under the public interest: s 4.15(e).

57. That said, it is clear that the DA before the Court is not subject to the made SEPP 2018 given the terms of cl 21 and, that SEPP 71 remains a relevant policy in this appeal.

58. With respect to the Coastal Management Act2016, now commenced, I accept as the applicants submit that the made Act has identical corresponding clauses to the version reviewed by the engineers in their joint report at par 41. Importantly, for present purposes, I note the coastal engineers in this case have agreed that the proposed development is consistent with the various management objectives for the Coastal Environment Area, namely subss 8(2)(a), (b) (c) and (d) of the Act.

59. I now return to the other planning controls referred to in the case.

State Environmental Planning Policy No. 55 - Remediation of Land 2005

60. SEPP 55 applies to all of NSW. Clause 7 of the SEPP lists the matters the consent authority must consider as part of the assessment of any development application.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

61. SEPP BASIX applies to all of NSW. It requires a BASIX Certificate to be submitted in accordance with cl 50 of the Environmental Planning and Assessment Regulation 2000 in specified circumstances.

State Environmental Planning Policy (Infrastructure) 2007

62. SEPP (Infrastructure) applies to all of NSW. Division 5 applies to Electricity transmission or distribution. Clause 45 applies to development within 5m of an exposed overhead power line.

Wollongong Local Environmental Plan 2009 (WLEP 2009)

63. WLEP 2009 commenced on 26 February 2010 and is in force for the purpose of this application. Having considered all of relevant provisions, I note the following in particular.

64. The site is zoned E4 Environmental Living under WLEP 2009.

65. Clause 1.4 refers to the Dictionary which contains the definitions of words and expressions in the WLEP 2009.

66. The objectives of the E4 Environmental Living zone are as follows:

•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.

67. The Land Use Table for the E4 zone identifies "Dwelling houses" under item 3 as "permitted with consent".

68. Clause 4.1 of the WLEP 2009, together with the Lot Size Map identifies a minimum lot size of 999sqm for the site.

69. Clause 4.3 of the WLEP 2009, together with the Height of Buildings Map, limits height to a maximum of 9m on the site.

70. Clause 4.4 of the WLEP 2009, together with the Floor Space Ratio Map, limits the maximum floor space ratio permitted on the site. The maximum floor space ratio for the site is 0.3:1.

71. Clause 5.5 of the WLEP 2009 provides that development consent must not be granted for development on land within the coastal zone unless the consent authority is satisfied concerning cumulative impacts on the coastal foreshore and its processes.

72. Clause 7.6 of the WLEP 2009 relates to development which comprises earthworks and requires that development consent must not be granted for earthworks unless impacts of the earthworks on environmental functions and processes, neighbouring uses or heritage items and features of surrounding land have been considered.

73. Clause 7.7 of the WLEP 2009 relates to land shown on the Foreshore Building Line Map and requires that consent not be granted for development on land in the foreshore area, except for certain purposes, and not until the consent authority is satisfied as to certain matters. The site is identified within the Foreshore Building Line Map as being entirely within the Foreshore Building Line area.

Wollongong Development Control Plan 2009 (WDCP 2009)

74. WDCP 2009 applies to all land within the Wollongong Local Government Area excluding land approved under Part 3A of the EPA Act.

75. The WDCP 2009 is divided into Parts and sets out the requirements that are required to be complied with for proposed development as follows:

• Part A- Introduction

• Part B - Land Use Based Planning Controls

• Part C - Specific Land Use Controls

• Part D - Locality Based DCP's/Precinct Plans

• Part E- General (City Wide) Controls

• Appendices

76. Chapter A1 - Introduction details the requirements for applying for variations to development controls within the DCP.

77. Chapter A2 - Ecologically Sustainable Development provides objectives and principles for applying Ecologically Sustainable Development (ESD) for all developments in the Wollongong Local Government Area.

78. Chapter B1 - Residential Development contains residential development controls for dwelling-house, secondary dwelling, semi-detached dwellings, dual occupancy, attached dwelling, multi-dwelling housing (villas and townhouses), residential flat building developments in standard residential zones. Section 4 provides general development controls which apply to the erection of all dwelling-house, dual occupancy, secondary dwelling, ancillary structures and semi-detached dwellings within urban areas.

79. Chapter D1 - Character Statements identifies the existing character and desired future character for each particular suburb within the city.

80. Chapter E3 - outlines Council's general requirements for the design and provision of access and car parking.

81. Chapter E6 - outlines Council's general requirements for landscaping and tree pruning and removal.

82. Chapter E7 - provides Council's general requirements for waste minimisation, management and recycling for all developments.

83. Chapter E12 - Geotechnical Assessment of Slope Instability applies to the development as the site is known to be affected by instability.

84. Chapter E14 - Stormwater Management outlines Council's requirements for stormwater drainage design and onsite stormwater detention for all developments.

85. Chapter E17 - Preservation and Management of Trees and Vegetation outlines Council's requirements for the preservation and management of trees and other vegetation including pruning and removal.

86. Chapter E19 - Earthworks outlines Council requirements for land reshaping works.

87. Chapter E22 - Soil Erosion and Sediment Control applies to the development as the works would require soil erosion and sediment control measures.

Other Relevant Policies & Guidelines

NSW Coastal Planning Guideline: Adapting to Sea Level Rise, August 2010

88. This Guideline supports NSW Government Policy and as such, Councils, state agencies, planners and development proponents are to have regard to it when addressing coastal risks associated with climate change in development assessment in coastal areas (page 2). Section 4 of this Guideline relates specifically to development assessment in coastal areas and applies the following two key principles of the Guideline:

1. PRINCIPLE 5 - Minimise the exposure of development to coastal risks.

2. PRINCIPLE 6 - Implement appropriate management responses and adaptation strategies, with consideration for the environmental, social and economic impacts of each option.

89. In this Guideline, 'coastal risks' refer to coastal erosion, tidal inundation and coastal flooding.

The Evidence

90. At the commencement of the hearing, I visited the site and surrounding area and heard evidence from a number of local objectors who were principally concerned about the bulk and scale of the development on the foreshore and its impact upon the public views from the headland reserve at the end of Woodland Road and the beach and water below. Generally speaking, the residents told me that they valued the beach and the natural escarpment. Collectively, they objected to the intrusion of the applicants’ large development into the coastal landscape, and said, that the development destroyed the area’s scenic quality and set a bad precedent. Some of the objectors referred me to the objectives of the E4 zone in the LEP to support their opinions. They said that the proposal was not in keeping with the objective “to provide for low impact residential development”. Nor did it seek “to protect amenity and scenic quality” in accord with cl 5.5 of the LEP or respect the development and the foreshore building line objective: cl 7.7.

91. The objectors most proximate to the site at 4 Woodland Avenue invited the Court into their home to better understand the impact of the scale of the development on their existing ocean views across their neighbour’s land. As originally designed, these objectors lost ocean views from their family room and back deck. After hearing this evidence, the applicants agreed to make some amendments to their plans to reduce this impact by relocating their cabana/barbeque to the north in order to break up the built form along that western side boundary. The changes were accepted were deemed to be satisfactory in achieving this outcome.

90. Notes of the objectors’ oral evidence and the written submissions they read out on the day were tendered to the Court as (Exhibit 7). I have read and considered this material together with the earlier written submissions lodged with the Council during the exhibition period of the original DA.

Expert evidence

93. As already stated, in addition to the lay evidence, the Court also received oral and written evidence from experts including:

• Coastal engineering evidence from Mr Peter Horton, Mr Paul Roberts, Mr Gary Blumberg and Mr Peter Tobin. Their joint report dated 31 January 2018 is (Exhibit 4).

• Planning evidence from Ms Saunders and Mr Dan Brindle. Their joint report is (Exhibit 3).

• Visual impact evidence from Dr Lamb and Ms Saunders. Their visual impact joint report is (Exhibit 2).

The Contentions

94. When filed the Council’s Amended Statement of Facts and Contentions (ASOFC) identified several contentions in respect of the proposal at that time, including:

• non-compliance with the floor space ratio (FSR) development standard cl 4.4 and inconsistency with cll 2.3, 5.5, 5.9, 7.6 and 7.7 of the WLEP 2009;

• inconsistency with the aims in cl 2 of SEPP 71 – which are required to be considered by cl 8;

• geotechnical matters;

• WDCP 2009: non-compliances with cl 4.8 Building Character and Form; cl 4.9 Fences; and cl 4.15 Development near the Coastline;

• landscape and environment matters; and

• inadequate information.

95. However, many of these contentions were resolved by amendments to the plans and the provision of further technical evidence. Senior Counsel, Mr Wright took some time during his opening address to identify the remaining issues agitated by the Council. He explained, following the submission of the further expert geotechnical and coastal evidence and structural plans, that the Council accepted the agreed position of the parties’ coastal and geotechnical experts as recorded in their joint report (Exhibit 4). That is, that geotechnical and related matters had now adequately considered coastal processes and erosion of the site and its development potential. And, based on an adopted conservative design life of 100 years for the structural design of the proposed development, the Council agreed that, from a coastal and geotechnical perspective, the development can be carried out subject to accepted recommendations (Exhibit 4, p2).

96. The Council also accepted that by piling the development as proposed a seawall is not required at the site over the design life (Exhibit 4, p2.3). And, whilst the CZMP discusses a seawall at the site and adjacent areas, it does not mandate a requirement for a seawall as originally asserted by Contention 9(b) of the ASOFC (Exhibit 4, p2.3). Particularly, in circumstances where there has been no agreement for a contiguous seawall by the owner of 7 Tasman Parade or the Wollongong City Council who owns the adjoining reserves.

97. It was also agreed during the hearing that the applicants would amend the garage design and architectural plans to overcome any breach of the FSR development standard in cl 4.4 of the WLEP 2009. And, as explained earlier the modifications to accommodate the view corridor necessary to preserve the ocean views across the site for the objectors at 4 Woodland Avenue.

Council’s final position

98. While the resolution of the these contentions narrowed the matters in dispute, they did not overcome the Council’s primary position that the proposal is inconsistent with relevant provisions in cl 8 of SEPP 71 and the zone objectives to the land use table for the E4 Environment Living Zone under the WLEP 2009.

99. The Council submits on the evidence of Ms Saunders that the dwelling will straddle over both the top and bottom of the bank, as identified via survey (Exhibit 10) and extend further into the coastal zone than any nearby development in the surrounding area. It will be visually prominent is thereby inappropriate for this location. Based on the planning evidence of Ms Saunders, it also submitted that the development has the potential to adversely impact on “the natural scenic quality of the surrounding area”, and thereby offend the aims of SEPP 71 set out in cl 2(1)(k) SEPP 71 which are mandatory considerations under cl 8(a). Put simply, by its bulk, scale and size, the development does not protect or improve the natural scenic quality of the surrounding area.

100. The Council invites me to appreciate the impact of the development that I observed during the Court view on the natural scenic quality of the surrounding area when viewed from the DH Lawrence Reserve looking south to the site; from the beach below, the ocean and the Sandon Point headland and conclude that the development is not suitable given its type, location and design and its relationship with the surrounding area: cl 8(k) of SEPP 71. It is also submitted that the development will cause a detrimental impact on the amenity of the coastal foreshore, and cause significant loss of views from a public place to the coastal foreshore – including Woodland reserve at the end of the cul-de-sac (where some of the objectors said that gathered to picnic and/or sit on the public bench to enjoy the ocean views and the views along the coastline) and, from in the ocean and at the beach looking back at the coastal foreshore: cl 8(e) of SEPP 71. And, given the development’s siting, size, scale, bulk, vegetation removal and excavation, the Council submits that the Court will conclude that the proposal is not for “…low impact residential development in an area with special ecological, scientific or aesthetic values” which is a relevant objective of the zone (i); nor does it ensure that the residential development does not have an adverse effect on those values which is objective (ii) of the WLEP 2009.

101. The Council drew my attention to the fact that Ms Saunders and Mr Brindle agreed in their joint report that the site has aesthetic values due to its location on the coast (joint report p9 (a)) . Although they had different opinions as to whether the site has “special aesthetic values” as contemplated in E4 zone objective (i). In that regard, Ms Saunders evidence is that the special aesthetic values of the site are the coastal cliff and rock shelf - as depicted on Figures 2.1 and 2.2 of the joint report which differentiate it from other sites in the area. Whereas, Mr Brindle believes the site has no special scenic or aesthetic qualities that differentiate it from other sites in the locality, including other sites in the E4 zone. The Council submits that Mr Brindle's assessment about this matter does not accord with my observations at the site view but Ms Saunders evidence does.

The Applicants’ final position

102. Mr Galasso, in his final submissions to the Court, said that the proposal meets the aim set out in cl 2(1)(e) in that the design protects the visual amenity of the coast. It also meets the aim set out in cl 2(1)(f) as it protects and preserves the beach environment and beach amenity. In making these submissions, he relied on the engineers’ position in the joint report and the fact that they have dealt with many aspects of the controls. In summary, the applicants' case is that the development will act as sea wall and thereby protect and preserve the beach environment and beach amenity (e) and (f). In that regard, the joint coastal and geotechnical engineering experts are in agreement that the development will not impact the EVF rock platform - which was also a particular concern for some of the objectors.

103. Additionally, Mr Galsso submitted that any native coastal vegetation concern has been satisfactorily addressed by the applicants’ ecologist Dr Robertson and thereby aim (g) is satisfied by this DA.

104. With respect to cl 8(d) the applicants submit that where its located this two storey development is relatively benign, and cut into the site appropriately. There is no significant issue about overshadowing or loss of views from a public place. It does not significantly impact the public view they can still sit on the bench at the end of the cul-de-sac and enjoy the ocean view and the present amenity. As the development travels down the coast, the public can still view the headland to the north, and that is an appropriate balance between the private interests that undoubtedly exist for the site and the public view at the end of Woodland Avenue. When making this submission, Mr Galasso took the opportunity to emphasis the fact that the SEPP prevails to the extent of any inconsistency with the EPI. With respect to view loss, the prevailing SEPP is only concerned with “any significant loss of view from a public place to the coastal foreshore" and in this case the evidence supports a finding that there is none.

105. The applicants also submit that Ms Saunders' concern about sediment control and the like is not made out on the evidence. The geotechnical and coastal engineering experts agree that erosion and sedimentation measures can be implemented at the site. Any consequential damage during a storm event can be repaired and this can be required by conditions of consent. It is not envisaged that the construction period would be indefinite.

106. The applicants submit that the development provides the opportunity for clear delineation between public and private domain through fencing. The structural solution for the site envisaged by the geotechnical engineers is a plied solution with the structure supported on plies. There will be visual impacts during the construction activity but they will be short lived.

107. In summary, based on the evidence of Mr Brindle, the applicants are content to describe the development as of a modest proportion with an FSR of less than that of typical dwellings in the area, with a design that effectively reduces the bulk of the development and a scale which results in a proportion in keeping with nearby dwellings. In short, they submit that the bulk and mass of the building is appropriate for the site. The development has a single storey appearance from the street and adjoining residential development. The bulk reduces with height with less development on the upper level, the design of the upper level is separated into pavilions with the northern cabana area being lighter in appearance, and it provides modulated fences to the public domain including a variety of material and finishes. The FSR and height are more than compliant. Whilst the building occupies approximately 80% of the depth of the site (from north to south) the above factors are said to result in a building that has an acceptable bulk.

108. Ultimately, it is contended that the development is not out of character in this area and would be compatible in visual terms with other development in the vicinity of the other E4 zone.

Consideration

109. The aims of SEPP 71 as set out in cl 2 of the Policy are relevant because cl 7 of the SEPP 71 requires that I take into account the matters listed in cl 8 when I determine this DA.

110. While I have considered all of the aims, as required the evidence essentially focussed on the aims in subcll 2(1)(e) and (k) which provide:

(e) to ensure that visual amenity of the coast is protected , and

…

(k) to ensure that the type ,bulk , scale and size of the development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area, and

111. Ms Saunders’ evidence is that the development is inconsistent with the stated aims of the Policy in particular, (e) and (k). I accept her expert assessment.

112. The bulk and scale and size of the development is not appropriate for this prominent headland location because the design has the potential to adversely impact on the natural scenic quality of the surrounding area, and thereby offend the aims of SEPP 71 set out in cl 2(1)(k). This is apparent and demonstrated, as Ms Saunders suggests, in Figure 1.1 of the joint report (Exhibit 2). The photograph shows the site in the context of the coastline and surrounding area - it is outlined in yellow travelling over the cliff face and down to the rock platform below. It demonstrates that the development will be clearly visible and different to others in the immediate locality because it is the only development over the cliff and onto the rock platform. And, although difference does not necessarily equate with adverse impacts in this case it does. The large built form tumbled over the cliff will obscure the existing natural scenic quality of the cliff and rock shelf that I observed at the site view from various public vantage points. Thereby, in my assessment, it cannot be described as protecting or improving the natural scenic quality of the surrounding area: cl 2(1)(k) of the SEPP 71. Rather, it will dominate the natural scenic quality of the surrounding area when viewed from the ocean and the beach below and Reserve to the north. It will also loom large and dominate the natural scenic quality of the surrounding area when viewed from Sandon Point.

113. Ms Saunders describes the site as unique with regard to its proximity to the coastline and she is concerned about the adverse visual impacts during construction and the visual impact of the siting, bulk and scale of the development cascading down the cliff when completed. She believes that the development is out of character with the surrounding area and that the visual amenity of the coast is not protected by this design: cl 2(1)(e). I accept her expert assessment as it accords with my own observations. While the structure will withstand erosion of the coastline from coastal processes and a sea wall is desirable, the proposed design does not ensure that the visual amenity of the coast is protected now based on the evidence before me.

114. Accordingly, I find that the development is inconsistent with the aims of the SEPP 71, in particular, (e) and (k) as the Council contends.

115. It is also the case that the development offends the objectives of the E4 zone which are relevant by virtue of cl 2.3(2) of the WLEP 2009.

116. The objectives of the E4 Environmental Living Zone are:

•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.

117. Having considered the evidence about the site including my observations of it from the beach below, the DH Lawrence Reserve looking south to the site, and from the Sandon Point headland opposite, I cannot accept Mr Brindle’s assessment in the joint report that “…the site has no special aesthetic qualities that differentiate it from other sites in the locality, including other sites in the E4 zone”. Nor can I accept his view that this development which cantilevers over the cliff face toward the foreshore can be characterised as “…a modest low impact residential design which offers a bulk and scale in keeping with that of nearby dwellings”. Instead, I agree with Ms Saunders and the applicants’ expert Dr Lamb (as it happens) that the proposal is a substantial development in a prominent location (Exhibit 2, p8). In fact, if approved, as the visual experts observed it will be the first, in the immediate locality, as shown in Figure 1.1, to protrude over the cliff top. That is, the only prominent development which straddles the cliff toward the beach in this section of the coastline visible from Corbett Avenue to Tasman Parade (Figure 1.1 of Exhibit 2, the Visual Expert’s Joint Report).

118. Ms Saunders and Dr Lamb believe that the site is not typical of the immediate vicinity because works are required on the beach and rock shelf within the property boundaries, as part of the proposed development as shown in Figure 1.1 (Exhibit 2, p2). To my thinking, their evidence underlines the fact that this site does have “special aesthetic values” which differentiate it from other coastal sites in the locality. It contains a coastal cliff and rock shelf within its boundaries. I have not been made aware of any other site in the locality or for that matter the E4 zone with these features where a residential use is proposed. Therefore, it follows that these special or unique aesthetic features of the site are exactly what the zone objectives (i) and (ii) address and seek to ensure are not adversely effected by residential development. The fact that the use is permissible and that the proposal complies numerically with the Council’s FSR control and presents a single storey presentation to the Woodland Ave address does overcome the adverse visual impact of the development when viewed from the various public places. In my assessment the values associated with the special aesthetic features of this site will be adversely affected by the proposal. For the first time, a residential development in this locality will cascade down the cliff and be read as a bulky form encroaching over the cliff top and be visible from several public vantage points. The cliff and rock face will be largely obscured by the built and the value of these features will inevitable be adversely effected. As such, I must agree with Ms Saunders, that the current proposal is not consistent with the zone objectives (i) and (ii). It does not “…ensure that residential development does not have an adverse effect on those values”. Instead it offers an intrusive development on the coastal foreshore which is anything other than low-impact residential development in an area with special aesthetic values where those special values will be adversely affected. I must agree again with Ms Saunders that this residential development, if constructed, will dominate the cliff top and coastline as it cascades down the site to the beach and thereby generate an adverse impact upon the sites’ special aesthetic values. It is my considered opinion that this structural engineering design response to the geotechnical and coastal hazard constraints which operate on the site has resulted in a design which will have a significant adverse impact on the aesthetic values of the site.

119. Accordingly, I find that the current design does not accord with the objectives (i) and (ii) of the E4 zone and therefore the site is simply not suitable for this large canter levered development over the cliff face: s 4.15(c).

120. It is also my considered opinion that an approval of this design protruding beyond the cliff will adversely impact on the view of the foreshore area from surrounding public open space areas, including the beach immediately adjoining and as such has the potential of setting an undesirable precedent for development along the coastline: s 4.15(e). For all these reasons, the site is not suitable for the development: s 4.15(e) of the EPA Act and the application must be refused.

Orders

121. The Court orders:

1. The appeal is dismissed.

2. The Exhibits are returned, except for Exhibits A, B, N and 1.

______________

Susan Dixon

Senior Commissioner of the Land and Environment Court

**********

Amendments

19 September 2018 - Correction made to [118] - Clerical error

It should read as:

"It does not “…ensure that residential development does not have an adverse effect on those values”. "

Decision last updated: 19 September 2018