Odisho v Central Coast Council

[2023] NSWLEC 1017

Land and Environment Court

New South Wales

Medium Neutral Citation:

Odisho v Central Coast Council [2023] NSWLEC 1017

Hearing dates:

3-4 November 2022

Date of orders:

17 January 2023

Decision date:

17 January 2023

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The development application DA 63360/2021 for the construction of a new pool to the beach side of the existing dwelling at 44 Ocean Street, North Avoca, is determined by the grant of consent subject to the conditions in Annexure A.

(3) Exhibits 1-7 are returned, and the remaining exhibits are retained.

Catchwords:

APPEAL – development application – construction of a swimming pool seaward of the coastal building line – coastal erosion – whether it will increase the risk of beach erosion – definition of beach erosion – whether it will impact coastal management

Legislation Cited:

Central Coast Local Environmental Plan 2022 cl 1.8A

Coastal Management Act 2016 ss 4, 5, Sch 3

Coastal Protection Act 1979

Environmental Planning and Assessment Act 1979 ss 3.43, 4.15, 8.7

Gosford Local Environmental Plan 2014 cl 2.3, 7.1

Interpretation Act 1987 s 30A

Land and Environment Court Act 1979 s 34AA

Protection of the Environment Operations Act 1997

State Environmental Planning Policy (Coastal Management) 2018

State Environmental Planning Policy (Resilience and Hazards) 2021 ss 2.2, 2.10, 2.11, 2.12, 2.13

Cases Cited:

Jones-Evans v Council of the City of Sydney [2005] NSWLEC 300

Kelly v The Queen [2004] HCA 12

Zhang v Canterbury City Council (2001) 115 LGERA 373; NSWCA 167

Texts Cited:

Central Coast Development Control Plan 2022

Coastal Engineering Manual (US Army Corps of Engineers, 2011)

Gosford Beaches Coastal Zone Management Plan 2017

Gosford Development Control Plan 2013

P Watson, “Subject: Review of Models to Assess the Extent of Impacts from Coastal Processes on Basement Structures”, 8 February 2007

Category:

Principal judgment

Parties:

Jonathan Odisho (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
T Poisel (Applicant)
S Simington (Solicitor) (Respondent)

Solicitors:
Madison Marcus Law Firm (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2022/192408

Publication restriction:

No

Judgment

1. COMMISSIONER: Along North Avoca Beach, a number of residential dwellings have the benefit of beach front access. Within the rear yard of one of those dwellings, at 44 Ocean Street, North Avoca, in the area of land between the dwelling and the beach, Mr Jonathan Odisho seeks development consent for the construction of a swimming pool. He lodged a development application with Central Coast Council (the Council) on 29 October 2021. Following the expiry of the period after which a development application is deemed to be refused, Mr Odisho lodged these appeal proceedings, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 3 November 2022. The parties did not reach an agreement and the appeal proceeded to a hearing forthwith pursuant to s 34AA(2)(b)(i).

3. The proposed pool is an in-ground concrete swimming pool that is approximately 7m long and 4.8m wide, with the coping at natural ground level and a depth of up to 1.5m. The structure will also include a small area of concrete hardstand around two edges of the pool perimeter. The fencing is proposed to be constructed on the concrete slab that forms part of the pool structure. The pool is proposed to be located in an area of the site that is currently grassed. The proposed development also includes landscaping in the rear yard and around the pool. The plan of the proposed pool is shown in Figure 1.

4. The pool structure includes pool walls of 200mm thickness and a base thickness of 250mm, supported by 5 piles of 600mm diameter that extend to below RL -1m, which is a minimum of 9.55m below the existing ground level, and are expected to be at an embedment level of RL -5m, 11.8m below pool excavation level. The pool walls are proposed to be supported by a beam around the perimeter of 600mm x 600mm to link the outer piles. The pool structure is therefore designed to be suspended, and to resist the forces imposed on it, such that any erosion of the sand would not affect the structure itself. The proposed development includes the pool structure, fencing, the concrete piles and the associated support beam, and landscaping.

5. The Council is opposed to the grant of development consent on the basis that the proposed pool is located seaward of the coastal building line, it does not meet the requirements for development on land in the coastal environment area and the coastal use area, it will create an increased risk of coastal hazards, and it will conflict with future coastal protection works.

6. For the reasons that are set out below, I have found that the construction of a pool is a form of development contemplated as being acceptable in the area that is seaward of the coastal building line, and that the impact of the construction of the proposed pool will be acceptable in the circumstances.

The site and the locality

7. The conciliation and hearing process commenced with a site inspection. The site is known as 44 Ocean Street, North Avoca, and is legally described as Lot 97 in DP 7547. The site contains a single dwelling and is located at the end of Ocean Street, adjacent to the Ocean Street beach access which provides public access to North Avoca Beach from the end of Ocean Street.

8. The site is rectangular in shape, with a total area of 889.7m² and a street frontage of 47.37m. The boundary that fronts North Avoca beach is 21m, and the site falls towards the beach with a small vegetated dune area about 20m wide beyond the boundary, which prevents easy direct access to the beach. There is no boundary fence along the rear of the site, but a wire fence is located on the land to the rear of the site and separates the grassed area adjoining the site from the vegetated dune area. A gate in the wire fence allows direct access to the vegetated dune area. An aerial photograph of the site, the adjacent dwelling and the beach access from Ocean Street is shown at Figure 2.

9. The surrounding neighbourhood is characterised by single dwellings, with a small number of dual occupancy and multi-dwelling housing developments. Single dwelling houses that address North Avoca beach are located to the north and south, along the length of North Avoca beach.

The planning controls

10. The site is zoned R2 Low Density Residential, pursuant to the Gosford Local Environmental Plan 2014 (GLEP). Although the GLEP has been repealed, it continues to apply to development applications lodged before the commencement of the Central Coast Local Environmental Plan 2022 (CCLEP), pursuant to the savings provision in cl 1.8A of the CCLEP.

11. The site is mapped as having Class 4 acid sulfate soils, and cl 7.1 of the GLEP therefore applies. An Acid Sulfate Soils assessment report by Martens Engineering dated August 2021 concludes that the site soils are not identified as actual acid sulfate soils or potential acid sulfate soil, and that an Acid Sulfate Soil Management Plan is therefore not required. Accordingly, pursuant to cl 7.1(4) of the GLEP, development consent is not required under cl 7.1.

12. The site is mapped as Coastal Use Area and Coastal Environmental Area pursuant to Ch 2 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), and is therefore within the coastal zone as defined in s 5 of the Coastal Management Act 2016 (CM Act).

13. Although the SEPP RH commenced after the development application was lodged, the provisions in Ch 2 are transferred provisions within the meaning of s 30A of the Interpretation Act 1987, and apply to the site in the same way as the State Environmental Planning Policy (Coastal Management) 2018 applied to the site at the time that the development application was lodged.

14. Section 2.10 of the SEPP RH applies to land within the coastal environment area and requires the consideration of certain impacts. Section 2.11 of the SEPP RH applies to land within the coastal use area, and similarly requires the consideration of certain impacts. Both sections are considered in detail below.

15. Section 2.12 of the SEPP RH precludes the grant of consent unless the consent authority is satisfied that the proposed development is not likely to increase the risk of coastal hazards, as follows:

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

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

16. Pursuant to s 2.2 of the SEPP RH, words and expressions in Ch 2 of the SEPP RH have the same meanings as they have in the CM Act. “Coastal hazard” is defined in s 4 of the CM Act as follows:

coastal hazard means the following—

(a) beach erosion,

(b) shoreline recession,

(c) coastal lake or watercourse entrance instability,

(d) coastal inundation,

(e) coastal cliff or slope instability,

(f) tidal inundation,

(g) erosion and inundation of foreshores caused by tidal waters and the action of waves, including the interaction of those waters with catchment floodwaters.

17. The word “beach” is also defined in s 4 of the CM Act, as are the words “beach fluctuation zone” and “beach system”, as follows:

beach means an area that is generally composed of sand or pebbles or similar sediment that extends landwards from the lowest astronomical tide to the line of vegetation or bedrock or structure.

beach fluctuation zone means the range of natural locations a beach profile occupies from its fully accreted condition to its fully eroded condition, with—

(a) a landward limit defined by the escarpment resulting from the erosion associated with a 1% storm event or a more extreme event of record, whichever is the greater landward limit, and

(b) a seaward limit that is the 40m depth seaward of the highest astronomical tide for the open coast and 10m depth seaward of the highest astronomical tide for estuaries or tidal coastal lakes.

beach system means the processes that produce the beach fluctuation zone and the incipient foredunes and foredunes landward of the relevant beach

18. Section 2.13 of the SEPP RH requires consideration the provisions of a certified coastal management program, as follows:

2.13 Development in coastal zone generally—coastal management programs to be considered

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

19. Based on s 2.2(1) of the SEPP RH, the words “certified coastal management program” include a coastal zone management plan under the Coastal Protection Act 1979, which continues to have effect under cl 4 of Sch 3 to the CM Act. The relevant plan is the Gosford Beaches Coastal Zone Management Plan 2017 (CZMP), which is considered further below.

20. The Gosford Development Control Plan 2013 (GDCP) continues to apply to the site, notwithstanding that it has now been replaced by the Central Coast Development Control Plan 2022 (CCDCP). The CCDCP, at Section 1.1.4, contains a savings provision such that the GDCP continues to apply to the development application the subject of this appeal on the basis that it was lodged prior to the commencement of the CCDCP.

21. The GDCP defines the landscape character of the Avoca/North Avoca area as follows:

“The Avoca/North Avoca Landscape Unit consists of a moderate to high level of residential development situated around Avoca Beach and Avoca Lake with rural residential development enclosing the area in the southern and western portions of the unit. The area features a high level of visual usage both at the local and the tourist level and comprises an important part of the scenic coastal system. Despite the moderate to high level of residential development within the unit, the landform and vegetation characteristics help to create good visual integration.”

22. It then describes the scenic conservation issues for that area in the following way:

“For Avoca/North Avoca the scenic character derives from a mix of low key residential and rural­residential uses, beach side character and informality and a rural/natural backdrop. Loss of tall indigenous vegetation within urban areas associated with redevelopment and resubdivision as well as large­scale residential dwellings reduces the visual integration of development. Demands for incremental expansion of residentially zoned areas is a major issue in seeking to retain the Environmental/Conservation and Scenic Protection zoned backdrop to the unit.”

23. Clause 3.1.7 of the GDCP contains provisions concerning ancillary development, which includes swimming pools. It falls within a chapter entitled “Dwelling Houses, Secondary Dwellings and Ancillary Structures”. The definition of ancillary development at Clause 3.1.7.1 is as follows:

“ancillary development means any of the following that are not exempt development under the exempt provisions of the Codes SEPP:

(a) access ramp, driveway, hard stand space, pathway or paving,

(b) awning, blind or canopy,

(c) balcony, deck, patio, pergola, terrace, verandah or carport or garage that is attached to a dwelling house,

(d) basement,

(e) detached studio or outbuilding,

(f) fence, screen or retaining wall,

(g) rainwater tank that is attached to a dwelling house,

(h) swimming pool or spa pool and child­resistant barrier.”

24. Clause 3.1.7.4 of the GDCP concerns swimming pools, and sets out requirements for “ancillary development comprising a swimming pool for private use”.

25. Chapter 6.2 of the GDCP concerns development that has frontage to a coastal beach. It has the following objectives:

“a. To ensure people and assets are safeguarded from risks associated with coastal hazards

b. ensure coastal processes are investigated and documented prior to and during the lodgement of any development application; and

c. to ensure development is appropriate for the site when having regard to the results of coastal, geotechnical and structural investigations and other consideration for development.”

26. Clause 6.2.7 of the GDCP concerns the coastal building line, and states as follows:

“A coastal building line now applies to coastal frontage areas in order to minimise coastal hazard impacts, including erosion, inundation and wave run­up, on property and development. All new development must be constructed landward of this coastal building line.

The coastal building line applies an acceptable level of risk and a reasonable balance of a range of factors including:

• The increased coastal hazard risk over time due to the projected impacts of climate change. The building and infrastructure asset life needs to be considered in this context.

• The potential for piled foundations to increase hazards on neighbouring properties (which may not be piled).

• Public safety and access issues on all lands.

• Beach amenity, landscape character and view sharing considerations.

• Coastal risks of storm surge, coastal erosion and gradual sea level rise are excluded by many general insurance policies in Australia. Any impacts on neighbours would also not be covered.

• Provision of access and services to properties.

• Geotechnical qualities.

• Challenges in property remediation following an erosion event.

The objective of the Coastal Building Line is:

i. No new development to be founded seaward of the coastal building line identified in the DCP Mapping;

ii. Equity in redevelopment of coastal frontage properties by applying consistent setbacks for new DA’s in Coastal Hazard Areas;

iii. Where new development is to be protected by an existing DA­approved seawall or terminal revetment then standard setbacks will apply for areas landward of that seawall once the seawall has been constructed”

27. The controls with respect to the coastal building line are at Section 6.2.8 of the GDCP, and includes, at 6.2.8.2(a), that “Council will not permit new buildings or any built structures to be constructed on, over or below the land which has been identified seaward of the coastal building line except where provided by clause 6.2.9 Development Exemptions”

28. Clause 6.2.9 includes an exemption at (d) for ancillary structures, as follows:

“d. Ancillary structures may be permitted forward of the coastal building line where the applicant demonstrates that the ancillary structure will not give rise to coastal erosion or increase the risk to property and life.”

29. The words “ancillary structures (containing non-habitable floor space)” are defined in Appendix 1 of the GDCP as being “Garages, carports, sheds and the like”.

30. The CZMP informed the coastal building line, and provides the following explanation in support of its establishment:

“Coastal building lines have been developed and presented in Appendix 3. These lines have been defined based on which of the following are in the most landward position:

• 2050 Zone of Slope Adjustment (adjusted to incorporate Council’s latest sea level rise projections);

• General allowable setback from the seaward cadastral boundary for beachfront property being 6 m for single level dwellings and 10 m for multi dwelling structures; and/or

• Existing building lines.

…

The Coastal Building Line attempts to apply an acceptable level of risk. It provides a considered and reasonable balance between a range of factors including:

• Coastal hazards are expected to increase over time due to the projected impacts of climate change. If piling were allowed forward of the coastal building line risk to the development would increase over time within the design life as storms would regularly expose the foundations of the buildings, impacting on beach amenity and potentially beach access during times when the beach is in an eroded state. Thus the piling comes to play only in a storm larger than the design storm rather than being relied upon on a regular basis;

• Potential for piled foundations to increase hazards on neighbouring properties (which may not be piled). Foundations such as piling and especially underground basement structures can have an impact on erosion at neighbouring properties if they are located within the wave impact zone, which would occur if foundations are allowed to be sited within the wave impact zone within the design life of the building;

• Public safety and access issues on all lands;

• Beach amenity, landscape character & view sharing considerations;

• Insurance - coastal risks of storm surge, coastal erosion and gradual sea level rise are excluded by many general insurance policies in Australia. Any impacts on neighbours would not be covered;

• Asset life - New development is not to be directly impacted by wave action and services must be able to be maintained to that development within the development’s economic lifespan. For example, the Australian Tax Office allows the entire construction cost of a residential rental property to be deducted over a period of 40 years. From this, it can be inferred that the economic life of a dwelling is 40 years, hence the 2050 planning horizon has been selected;

• Provision of access and services to properties – safe access and services must be maintained to properties during their economic lifespan – for this reason, there must be an acceptable risk of development being directly impacted by wave action and services being damaged during the economic lifespan of a property;

• Geotechnical qualities – the properties of the sub-soil will determine the required depth of piling. Where rock is known to occur beneath the dunes at relatively shallow depth, this would reduce the future erodibility of the dune and improve the ability to provide stable building foundations for new developments;

• Challenges in property remediation following an erosion event. Sourcing, screening and placing suitable material to rebuild a dune may be difficult to achieve when it is likely numerous properties on the coast are affected. This creates ongoing safety issues for residents and beach users.”

31. In the CZMP, the prediction of the movement of the coastal hazard zones due to sea level rise benchmarks, based on the Council projections, for North Avoca Beach is a long term recession of 10m by 2050 and 37m by 2100.

Objector evidence

32. The development application was notified to surrounding properties, with a notification period of 25 November 2021 to 16 December 2021. The Council received 40 written submissions in response to the notification. In addition, a number of resident objectors attended the site inspection and gave evidence concerning the proposed pool. The issues raised in the written submissions and in the oral evidence can be summarised as follows:

• There will be an increased risk of erosion, which will impact the dunes, dune vegetation and dwellings.

• The pool will have an acoustic impact and impact the privacy of adjoining neighbours.

• The visual impact of the pool and fencing.

• The proposed pool is out of character in the area, as there are no other pools along the beach front of North Avoca Beach.

• There will be an adverse precedent created by the approval of a pool along the land that is seaward of the coastal building line, which will exacerbate risk along the dune.

33. The proposed landscaping adjacent to the pool will provide sufficient privacy for the adjoining neighbours, and I consider that any acoustic impact from the use of the pool is no greater than what would generally be expected from a residential use. The pool pump enclosure is located adjacent to Ocean Street, and will therefore not have an adverse acoustic impact on nearby residential dwellings. The extent of the proposed changes to the boundary fencing has been reduced from what was originally proposed, such that views across the rear of the site from the adjacent property will largely be retained.

34. Further, as set out in my summary of the expert evidence below, the agreed evidence of the town planners is that the proposed pool will not have an unacceptable visual impact, and that the proposed pool is not incompatible with the character of the open beachfront area along North Avoca beach.

35. The objectors’ concerns with respect to erosion, the coastal building line, and the issue of precedent, are considered in my findings below on the contentions raised by the Council.

Expert evidence

36. Expert opinion evidence was given in the areas of town planning, and coastal processes.

Town planning expert evidence

37. Expert evidence on the town planning issues was given by Mr David Waghorn, a town planner engaged by Mr Odisho, and Mr Glenn Apps, a town planner engaged by the Council. They gave evidence in two joint reports and in court.

38. Mr Waghorn and Mr Apps agree that the proposed pool does not create a visual impact and is compatible with the open beachfront area. They agree that the proposed development does not result in overshadowing, does not reduce privacy and does not reduce views or vistas. They also agree that the location of the proposed landscaping is appropriate to screen views into the pool area from the beach.

39. In the event of a storm event that impacts the beach and exposes the piles of the proposed development, Mr Waghorn and Mr Apps agree that there will be a visual impact on the scenic values of the beach. However, they agree that any such impact would be temporary until such time as the underside of the pool was filled in. They agree that this can be managed through a condition of consent, which requires the restoration of the area under the pool upon it being undermined by a storm event. They therefore agree that any visual impact would be temporary and acceptable.

40. Mr Waghorn and Mr Apps agree that the location of the pool pump will not have an adverse visual impact, and that the acoustic impact of the pool pump will be managed through a condition of consent that requires compliance with the noise levels required by the Protection of the Environment Operations Act 1997.

41. Mr Waghorn and Mr Apps agree that the pool is ancillary development and that it has been established that it cannot be founded landward of the coastal building line. They agree that it therefore falls within the exemption in clause 6.2.9(d) of the GDCP, as long as it can be demonstrated that the structures “will not give rise to coastal erosion or increase the risk to property and life”, which they say is a matter for the coastal engineers.

42. With respect to the precedent that an approved pool might create, both Mr Waghorn and Mr Apps agree that each development application is considered on its own merits and the outcome of this development application should not influence a decision on an application on another site.

43. Mr Waghorn and Mr Apps disagree on the visual impacts of the pool in a situation once the beach has receded sufficiently to expose the piles on an ongoing basis. However, given the agreement of the coastal engineers outlined below, this will not occur in the design life of the proposed development.

Expert evidence on coastal processes

44. Expert evidence on coastal management and the risks concerning coastal erosion was given by Mr Peter Horton, a coastal engineer engaged by Mr Odisho, and Mr Doug Lord, a coastal engineer engaged by the Council.

45. Mr Horton and Mr Lord agree that the proposed pool must be piled as proposed to have an acceptably low risk of damage over the design life of 60 years. They agree that erosion may extend under or landward of the proposed pool in severe storms over its 60 year design life. At present, it is only following an erosion event of approximately 1 in 100 annual exceedance probability (AEP) that the foundation piles will be exposed. However, the probability of the pool being exposed to wave action in the event of severe storms increases as long-term recession due to sea level rise occurs along North Avoca Beach, assuming no management intervention is undertaken to prevent that recession. Whilst Mr Lord does not provide any estimate of the increased likelihood, Mr Horton estimates that, in 2050, erosion may expose the pool to wave action if an erosion event of approximately 1 in 20 AEP occurred in that year.

46. Mr Horton and Mr Lord agree that erosion of North Avoca Beach has and will continue to occur at times, irrespective of whether the pool is constructed or not, and that the hazard lines in the CZMP remain applicable whether the pool is constructed or not. They agree that there will be natural beach recovery after severe storms, and that the present and future hazard lines in the CZMP do not represent permanent shorelines, but limits of erosion in rare events. They agree that over the lifespan of the proposed pool there will be no significant recession of the beach that would cause the exposure of the piles on an ongoing basis.

47. However, Mr Horton and Mr Lord disagree as to whether the pool structure will cause erosion on the site and/or on other land, and on whether the proposed development will interfere with the alignment of the future seawall contemplated by the CZMP. Their evidence is considered in more detail below.

The Council’s position that the development application should be refused

48. In its Statement of Facts and Contentions, the Council raised nine contentions as to why the development application should be refused, and an additional contention concerning insufficient information. As a result of the evidence in the proceedings, the first two contentions have been resolved and the Council no longer presses those contentions or contention 7. Further, the town planning experts, Mr Apps and Mr Waghorn, agree that sufficient information has now been provided and this contention is therefore resolved, save for part of the contention that concerns the depth of the piling, which has been addressed by an agreed condition of consent.

49. The Council maintains that the development application should be refused, on the remaining contentions, which can be summarised as follows:

• The proposed development is located entirely seaward of the coastal building line and does not fall within the exemptions in the GDCP (contention 3);

• The requirements for development on land in the coastal environment area and the coastal use area have not been addressed in accordance with the requirements of ss 2.10 and 2.11 of the SEPP RH (contention 4);

• The Court could not be satisfied that the proposal is not likely to increase the risk from coastal hazards, and therefore it should be refused pursuant to s 2.12 of the SEPP RH (contention 5);

• The proposed development adversely affects the implementation of a plan to construct a seawall along North Avoca Beach in accordance with the CZMP (contention 6);

• The proposed development will create an adverse precedent for future development, which will result in a cumulative impact caused by multiple similar developments along the beachfront (contention 8), and is contrary to the public interest (contention 9).

The coastal building line (contention 3)

50. The proposed pool and supporting structure is located seaward of the coastal building line established by Chapter 6.2 of the GDCP. Whilst there is an exemption in clause 6.2.9 for ancillary buildings, the Council contends that the elements of the exemption are not met. As set out above, the exemption is for “ancillary structures”, where that structure “will not give rise to coastal erosion or increase the risk to property and lift.” The Council contends that there is insufficient evidence to demonstrate that the pool will not modify the location and extent of any erosion, and to demonstrate that it will not increase the risk to property and life. The Council’s position is also that the proposed pool is not appropriate for the site when having regard to the objectives of Chapter 6.2 of the GDCP.

51. The Council’s position is supported by the evidence of Mr Lord. Mr Lord concedes that the proposed piling is necessary to ensure the structure remains stable in a storm event across its design life, and therefore prevents the proposed pool from causing a risk to life or property in the event of a storm. As a result, the only risk to life that Mr Lord raises is if the pool is not serviceable following a storm event that erodes the sand around the piles such that the pool is suspended in the air.

52. With respect to coastal erosion, Mr Lord’s evidence is that there are two sources of erosion, which are both caused by the piles and occur only in an erosion event caused by a severe storm. The first source of erosion is the scour around the piles when the pile is exposed to wave action. He opines that the piles will change the natural wave motion across and along the beach and may result in additional erosion either adjacent or seaward of the pool. Mr Lord does not agree with Mr Horton’s modelling of this impact, as it is based on laboratory conditions with a unilateral force. The second is that the concrete pool structure displaces the natural coastal erosion that occurs to a sand dune, so that the sand that has been replaced by the concrete structure is eroded from other locations either seaward or adjacent to the subject property. Mr Lord considers that both of these sources of erosion are coastal erosion contrary to the requirements for the exemption in the GDCP, and can also introduce a risk to adjacent property and development, which is similarly contrary to the requirement in the GDCP.

53. On the basis of this evidence, the Council submits that the proposed development doesn’t meet the requirements of the exemption to the coastal building line as it causes coastal erosion on the subject land, and there is a real chance of it causing coastal erosion on the adjacent land. Further, the Council submits that the proposed development does not meet the objectives for the coastal building line. The Council submits that it should be refused on that basis.

54. The applicant makes a number of submissions to the contrary. Firstly, Mr Poisel, counsel for the applicant, points out that a provision of a development control plan cannot prohibit the carrying out of development: Zhang v Canterbury City Council (2001) 115 LGERA 373; NSWCA 167 at [74], and that the provisions of the GDCP in clauses 6.2.7 and 6.2.8.2(a) that prevent development seaward of the coastal building line contain prohibitions and therefore, have no effect.

55. Secondly, along the same lines, the applicant relies on s 3.43(5)(b) of the EPA Act, which provides that a provision of a development control plan has no effect to the extent that it is inconsistent or incompatible with a provision of any environmental planning instrument applying to the land. The applicant submits that clauses 6.2.7 and 6.2.8.2(a) prohibit the carrying out of development for the purpose of a dwelling house on the land seaward of the coastal building line, which is inconsistent or incompatible with cl 2.3 of the GLEP and the associated land use table, which permits development for the purpose of a dwelling house anywhere on the site. The applicant submits that clauses 6.17 and 6.2.8.2(a) of the GDCP therefore have no effect.

56. Thirdly, the applicant submits that, if, by preventing development seaward of the coasting building line, the GDCP sets a standard for development, s 4.15(3A)(b) of the EPA Act requires the consent authority to be flexible in applying the provisions and “allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development”. The Court, in exercising the functions of the consent authority, must therefore take a flexible approach and have regard to the objects of the standard. As objective (i) of the standard replicates the standard itself, the applicant submits that it is of no utility and the Court should have regard to the objectives of Chapter 6.2 of the GDCP. The applicant submits that, based on the evidence of Mr Horton, the proposed development achieves those objectives.

57. Fourthly, the applicant submits that the proposed development meets the exemption in clause 6.2.9(d). He submits that it meets the definition of an “ancillary structure”, and that, based on the evidence, the applicant has demonstrated that the pool cannot be founded landward of the coastal building line, that it will not increase the risk to property and life, and that any erosion will be confined to the site and inconsequential. The applicant points out that, based on the evidence of Mr Lord, the erosion that occurs is an inevitable outcome of constructing any structure with piling on the site, whether or not it is located seaward of the coastal building line, and the piling is necessary for the structure to remain secured to avoid the risk to property and life. Further, the applicant relies on the evidence of Mr Lord, given in cross-examination, that the calculations of erosion by Mr Horton would result in impacts that are inconsequential from an erosion impact perspective.

58. Mr Lord and Mr Horton agree that, in order for the proposed pool to give rise to coastal erosion that causes increased risk of coastal hazards on other land, a storm event must occur that erodes the beach sufficiently such that waves extend landward to the pool, the waves must have sufficient energy to impact, with force, the pool piles or the seaward face or base of the pool, and that interaction must be sufficient to divert waves and currents outward to such an extent to reach adjacent property and cause additional erosion that would not have otherwise occurred had the pool or the piles not been there (Ex 5 p 6). Mr Horton’s evidence that this will not occur and the proposed pool will not give rise to coastal erosion that affects any adjacent property or the public beach. His evidence is that this is the case even on calculations of the additional erosion based on methods that he considers to be over-conservative.

59. With respect to the erosion around the piles, Mr Horton’s evidence is that erosion around piles is well established in coastal engineering literature and, based on the Coastal Engineering Manual (US Army Corps of Engineers, 2011).

60. , can be conservatively estimated to be around 1.8m around each pile below the already eroded surface, although he maintains that it will not in fact erode to that extent as he has never seen the scour depicted in the Coastal Engineering Manual in the field. As the proposed pool is 1.9m from the adjacent property and 4-6m from the seaward property boundary, the scour around the piles would be expected to be contained within the site. His evidence is that the piles would not be expected to deflect waves or flows, consistent with the Coastal Engineering Manual, which states that small vertical piles (as proposed) do not “significantly affect the incident of wave” and do not cause significant reflection and diffraction. The experts agree that the proposed 0.6m diameter piles are “small” for the purpose of the Coastal Engineering Manual. Mr Horton’s evidence is that the pool soffit will not cause additional erosion to affect adjacent properties or public beach, given that it is about 6.6m AHD, well above most wave action on an eroded beach, and towards the limit of wave runup on an accreted beach.

61. With respect to the additional erosion in a storm event caused by the displacement of sand by the structure itself, Mr Horton’s evidence is that this additional erosion will be contained within the site even if it is based on calculations made in accordance with the methodology in P Watson, “Subject: Review of Models to Assess the Extent of Impacts from Coastal Processes on Basement Structures”, 8 February 2007, which he considers overly conservative but has been adopted by the Council to assess the impacts of basement structures (analogous to an in-ground pool) elsewhere at similar locations on the Central Coast. Using this approach, Mr Horton has found that the additional alongshore erosion is 0.9m and the additional lateral (shore-normal) erosion is 0.1m, which is contained within the site and does not extend into adjacent properties, and is not sufficient to impact the site (including the pool) itself.

The proposed pool is a type of development contemplated by the exemption and is acceptable in the circumstances

62. The whole of the site is zoned R2 Low Density Residential, in which development for the purpose of a dwelling house is permissible with development consent. The proposed pool is for the purpose of the dwelling house, as it is intended for use by residents of the dwelling house. The proposed pool is therefore permissible on that part of the site that is seaward of the coastal building line, subject to a grant of development consent.

63. However, in considering a development application for a structure that is permissible, s 4.15(1) of the EPA Act requires that the provisions of the GDCP be considered. The provisions concerning the coastal building line in Chapter 6.2 are entitled to significant weight, but they cannot be considered a non-discretionary development standard or determinative of the application (see Zhang v Canterbury City Council at [75]). As such, clauses 6.2.7-6.2.9 cannot operate to mandate or compel the refusal of a development that is permissible on the site. Contrary to particular (b) of contention 3, therefore, the GDCP cannot operate to prohibit new development seaward of the coastal building line. This also means the requirements for the exemptions in clause 6.2.9 could never be considered pre-requisites for permissibility, and the GDCP cannot compel the refusal of the proposed development if the proposed development does not meet the criteria for an exemption.

64. Instead, the provisions concerning the coastal building line in clauses 6.2.7-6.2.9, which include the exemptions, set standards for development to which Chapter 6.2 of the GDCP applies. I accept the Council’s submission in this regard. Put simply, those standards are that built form is to be located landward of the coastal building line, except for the listed exemptions. Section 4.15(3A)(b) of the EPA Act makes it clear that the Court, in exercising the functions of the consent authority, is required to “be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development.” The flexibility applies to all of the standards, including the criteria for the exemptions in clause 6.2.9.

62. Having regard to the provisions concerning the coastal building line in clauses 6.2.7-6.2.9 of the GDCP, I find that the proposed pool is a form of development contemplated by the exemption in clause 6.2.9(d) and is acceptable in the circumstances. I reach this conclusion for the following reasons.

63. Firstly, I consider that the proposed pool is an ancillary structure within the meaning of the exemption in clause 6.2.9(d), despite it not being listed as a form of an ancillary structure in the definition in Appendix 1 of the GDCP. The definition in Appendix 1 clearly contemplates other types of ancillary structures by the use of the words “and the like”, and ancillary development is defined in clause 3.1.7.1 to include swimming pools. The standards for swimming pools in clause 3.1.7.4 apply to “ancillary development comprising a swimming pool for private use”. The proposed pool is therefore a structure clearly contemplated as being acceptable on the seaward side of the coastal building line, pursuant to clause 6.2.9(d).

64. Secondly, the applicant has demonstrated, and it is agreed between the town planners, that the pool cannot be founded landward of the coastal building line. This is consistent with the requirements for an exemption in accordance with cl 6.2.9(d).

65. Thirdly, the applicant has demonstrated that the proposed pool structure will not increase the risk to property and life. The first way that this is demonstrated is that the pool is appropriately designed with concrete piles that will enable the pool structure to withstand the 1 in 100 AEP event during its design life. This prevents the proposed pool from causing a risk to life or property in the event of a storm. The second way that this is demonstrated is through Mr Horton’s evidence that the coastal erosion that occurs during a storm due to the pool structure is limited to erosion on the site. In this respect, I accept the evidence of Mr Horton concerning the extent of the erosion around the piles, and extent of the alongshore erosion caused by the displacing of the natural coastal erosion by the hard structure. With respect to each of these calculations, Mr Horton relies on established methodologies that have recorded acceptance in coastal engineering. Specifically, his method of calculating the depth and width of the scour around the pile is based on the Coastal Engineering Manual, which is an accepted coastal engineering reference document, and his method of calculating the adjacent additional erosion alongshore and cross-shore is in accordance with the methodology of Dr Watson adopted by the Council in previous development applications and referred to in clause 6.2.10(a) of the GDCP. Mr Lord’s opinion is instead speculative, and he does not provide any calculations or case studies of his own to support his opinion.

66. Fourthly, the coastal erosion caused by the proposed pool structure is acceptable in circumstances where it is the inevitable result of the support piles that are required to support a structure anticipated on the site, and where the erosion is confined to the site and does not extend to adjacent property or to the public beach.

67. Whilst clause 6.2.9(d) of the GDCP requires that the applicant establish that the structure “will not give rise to coastal erosion”, the evidence is that any structure on the site (even landward of the coastal building line) requires support through concrete piles, and the piles are the inevitable cause of any erosion around the piles, as well as alongshore and cross-shore erosion, in the event of a severe storm event. The strict reading of the requirement to demonstrate that the structure “will not give rise to coastal erosion” will therefore operate to prohibit structures that are anticipated by the exemption and that are designed appropriately with concrete piles. Accordingly, this requirement must be instead read in a context in which the GDCP cannot operate to prohibit such development, and an assessment made of whether the extent of the erosion is acceptable. In circumstances where, even on a conservative estimate of the erosion around the piles and the additional alongshore and cross-shore erosion, the erosion is confined to the site and does not extend to the adjacent property or to the public beach, I am satisfied that the extent of the erosion, which Mr Horton describes as “inconsequential”, is acceptable in the circumstances. This is consistent with the evidence of Mr Lord, who accepted in cross-examination that if Mr Horton’s calculations of the alongshore and cross-shore erosion were correct, there would be a limited impact on “the ocean property”.

68. Therefore, I consider that the proposed pool meets the exemption to the coastal building line, as it is an ancillary structure, it does not present a risk to life or property, and the piles which are necessary to prevent risk to life or property in the event of a storm will only cause a minor impact on coastal erosion, with any such impact confined to the site. For those reasons also, even if there is not strict compliance with the exemption, the proposed development nevertheless meets the objectives of Chapter 6.2 of the GDCP, which are set out in clause 6.2.4 and quoted above at [25]. I accept the applicant’s submission that, in exercising the flexibility required by s 4.15(3A)(b) of the EPA Act, the chapter objectives are the appropriate objects of the standards established in clauses 6.2.7-6.2.9 concerning the coastal building line. Based on the evidence of Mr Horton and for the reasons expressed above, I accept that the design and siting of the proposed pool is a solution that achieves those objects, and the development application should not be refused on the basis of clauses 6.2.7-6.2.9 and the coastal building line set out in the GDCP.

The requirements for land in the coastal environmental area and the coastal use area (contention 4)

72. The Council contends that the requirements in ss 2.10 and 2.11 of the SEPP RH concerning land in the coastal environmental area and the coastal use area have not been addressed, and that the Court could not be satisfied of the matters in s 2.10(2) and s 2.11(1)(b).

73. Section 2.10 of the SEPP RH provides as follows:

2.10 Development on land within the coastal environment area

(1) Development consent must not be granted to development on land that is within the coastal environment area unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on the following—

(a) the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment,

(b) coastal environmental values and natural coastal processes,

(c) the water quality of the marine estate (within the meaning of the Marine Estate Management Act 2014), in particular, the cumulative impacts of the proposed development on any of the sensitive coastal lakes identified in Schedule 1,

(d) marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms,

(e) existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(f) Aboriginal cultural heritage, practices and places,

(g) the use of the surf zone.

(2) Development consent must not be granted to development on land to which this section applies unless the consent authority is satisfied that—

(a) the development is designed, sited and will be managed to avoid an adverse impact referred to in subsection (1), or

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

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

(3) This section does not apply to land within the Foreshores and Waterways Area within the meaning of State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chapter 6.

74. Section 2.11 provides as follows:

2.11 Development on land within the coastal use area

(1) Development consent must not be granted to development on land that is within the coastal use area unless the consent authority—

(a) has considered whether the proposed development is likely to cause an adverse impact on the following—

(i) existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(ii) overshadowing, wind funnelling and the loss of views from public places to foreshores,

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

(iv) Aboriginal cultural heritage, practices and places,

(v) cultural and built environment heritage, and

(b) is satisfied that—

(i) the development is designed, sited and will be managed to avoid an adverse impact referred to in paragraph (a), or

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

(iii) if that impact cannot be minimised—the development will be managed to mitigate that impact, and

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

(2) This section does not apply to land within the Foreshores and Waterways Area within the meaning of State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chapter 6.

The requirements of section 2.10 are satisfied

75. The Council’s contention, at (b) of contention 4, is that the proposed development has not been designed or sited, and is not intended to be managed, to minimise the impact on the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment, or the coastal environmental values and natural coastal processes, contrary to the matters raised by s 2.10(1)(a) and (b).

76. In its submissions concerning s 2.10(1)(a) and (b), the Council relied upon the evidence that there will be erosion on the site caused by the concrete piles, and Mr Lord’s evidence that this erosion could extend to adjacent property. The Council’s position is that the pool structure, including the concrete piles, will cause the erosion in the two ways identified by Mr Lord (above at [52]), which is a direct effect of the additional pressure caused by the concrete piles, with the piles changing the natural wave motion across and along the beach as well as displacing the sand that would be eroded by natural processes and causing it to be eroded elsewhere.

77. As set out above concerning the earlier contention, Mr Horton’s evidence is instead that these two sources of erosion have an inconsequential effect on natural coastal processes, and that, in accordance with the Coastal Engineering Manual, the piles are defined as “small” and will not affect wave motion. Over the long term, Mr Horton opines that there will be substantial beach recovery following a storm such that the average beach volume remains constant, except for the loss from recession due to sea level rise, which will occur regardless of whether the development is carried out. Other than in erosion events in a severe storm, the vegetated dune will remain in place seaward of the pool. In his report of 9 September 2021 in support of the development application, Mr Horton addresses each aspect of ss 2.10 and 2.11.

78. I consider that, although the proposed development will have an impact on coastal erosion on the site due to the concrete piles, which could be considered an impact on “natural coastal processes” in the manner described by Mr Lord and relied upon by the Council, this impact is minor and the development is designed, sited and will be managed to minimise that impact. As set out earlier with respect to contention 3, I accept the calculations of Mr Horton with respect to the erosion around the piles and the erosion caused by the displacement of sand by the structure, such that the coastal erosion that occurs during a storm due to the pool structure is limited to erosion of sand on the site. I accept the evidence that the size of the piles will not affect wave motion. The size of the piles, together with the location of the pool landward of the vegetated dune in the most landward location possible on the site and 1.9m away from the adjoining property, means that any erosion of sand is limited to the site and the impact on “natural coastal processes” is minimised. With respect to s 2.10(1)(a), I accept what Mr Horton says in his report of 9 September 2021 and if the erosion of sand on the site is an impact described in (a), it is minimised in the same way. Therefore, I am satisfied that the development is designed, sited and will be managed to either avoid the adverse impact on the matters in s 2.10(1)(a) and (b) or minimise that impact.

79. The Council also contends, in its Statement of Facts and Contentions, that over time the pool will become increasingly exposed and potentially unsafe, and therefore that the Court could not be satisfied that the development is designed, sited and will be managed to avoid an adverse impact on the matters in s 2.10(1)(e) and 2.11(1)(i) and (iii).

80. Sections 2.10(1)(e) and 2.11(1)(i) both concern safe access to and along the beach for members of the public, including persons with a disability. Mr Waghorn and Mr Apps agree that, as the proposed pool is located on private land, it will not impact on public access to or from the beach. Therefore, the matters in those sub-sections are resolved.

81. For those reasons, and based on the content of the report of Mr Horton dated 9 September 2021, which also addresses the matters in s 2.10(1)(c), (d), (f) and (g), I have considered whether the proposed development is likely to cause an adverse impact on any of the matters in s 2.10(1), and I am satisfied that development is designed, sited and will be managed to either avoid those impacts or to minimise those impacts, in accordance with s 2.10(2).

The requirements of section 2.11 are satisfied

82. Section 2.11(1)(iii), which is raised by the Council in its Statement of Facts and Contentions, concerns the impact of the proposed development on “the visual amenity and scenic qualities of the coast”. As set out above, Mr Waghorn and Mr Apps agree that the proposed pool does not create a visual impact and is compatible with the open beachfront area. The evidence is therefore that the only potential visual impact that arises is in the event of a storm event that impacts the beach and exposes the piles of the pool structure. However, in such a storm event, the visual impact must be read in the context in which other properties to the north and south would be undermined to a similar extent to the proposed pool. Mr Lord and Mr Horton agree that over the lifespan of the proposed pool there will be no significant recession of the beach that would cause the exposure of the piles on an ongoing basis. The proposed pool is low in the landscape and at a point furthest away from the seaward boundary of the site, and I accept the evidence of Mr Waghorn that it will be read in conjunction with the dwelling and the landscaping when viewed from the beach.

83. Accordingly, I am satisfied that the pool has been sited and designed to avoid any impact on the visual amenity and scenic qualities and coast. Similarly, it does not cause overshadowing, wind funnelling and the loss of views from public places to foreshores. It will not prevent safe access to the public beach, and does not impact aboriginal cultural heritage, practices and places, or cultural and built environmental heritage.

84. I have therefore considered the impacts on the matters in s 2.11(1)(a) and pursuant to s 2.11(1)(b)(i), and for the above reasons, together with the report of Mr Horton dated 9 September 2021, I am satisfied that the development is designed, site and will be managed to avoid an adverse impact on those matters.

The Council’s concern regarding scour level

85. The Council also contends, within contention 4, that the scour level adopted by the development application at -1 AHD is not supported by field data, and there is “no resistant strata to limit that scour depth at -1 AHD”. However, both Mr Horton and Mr Lord agree that this depth of the piles is acceptable, and agree that the pool structure, if constructed in accordance with the design requirements in the development application, would accommodate a storm erosion event where the pool is completely undermined to a level of -1 AHD, subject to a detailed design to be signed off by a suitably qualified engineer. Mr Horton’s evidence is that the piles are proposed in the 2100 stable foundation zone, and Mr Lord agrees that the piling and pool casing are to be designed to withstand a design storm and the adopted sea level allowance to 2082. Therefore, based on the evidence, there is no issue that remains concerning particular (g) within contention 4.

This contention does not warrant refusal of the development application

86. For the above reasons, none of the matters raised in support of this contention form a basis on which the development application should be refused, and I am instead satisfied of the requisite matters that arise for consideration in ss 2.10 and 2.11 of the SEPP RH.

Whether there is an increased risk of coastal hazards (contention 5)

87. The Council contends that the Court, in exercising the functions of the consent authority, could not be satisfied that the proposed development is “not likely to cause increased risk of coastal hazards on that land or other land”, which means that s 2.12 of the SEPP RH precludes the grant of development consent for the proposed development. Section 2.12 provides as follows:

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

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

88. As set out above, “coastal hazards” is a defined term in the CM Act that includes “beach erosion” as well as shoreline recession, coastal inundation, tidal inundation and erosion and inundation of foreshores.

89. The Council submits that, due to the evidence of the estimated erosion of the sand on the site in the event of a 1 in 100 API storm as a result of the proposed piling, there will be beach erosion that is caused directly by the proposed development. The Council submits, therefore, that s 2.12 precludes the grant of development consent as there is a likely and certain increased risk of beach erosion. In advancing this position, the Council relies on the “beach” comprising the area between the low tide mark and the limit of the wave run-up during a storm event, which is, at present, at 7.5 AHD and on the subject site. This is the definition advanced in the evidence of Mr Lord. As the erosion of sand is estimated to occur within that area in the event of severe storm as a result of the piling, the Council says the proposed development clearly increases the likelihood of a coastal hazard on this land, in the form of beach erosion.

90. On the other hand, the applicant submits that the words “beach erosion” should be understood to be referring to the “beach” as defined in s 4 of the CM Act. As set out above, the definition of beach is as follows:

beach means an area that is generally composed of sand or pebbles or similar sediment that extends landwards from the lowest astronomical tide to the line of vegetation or bedrock or structure.

91. Therefore, the applicant submits that the beach only extends to the line of vegetation that is seaward of the site’s boundary, and does not extend to the site. As there is no evidence that there will be any impact on erosion of the beach as defined, the applicant submits that the Court can be satisfied that the proposed development is not likely to cause an increased risk of coastal hazards on that land or other land, and therefore s 2.12 of the SEPP RH does not operate to require refusal of the development application.

91. In response, the Council submits that the definition given by Mr Lord is the common meaning of the term “beach” for the purpose of understanding beach erosion and should be preferred over the definition in the CM Act. The Council submits that the expression “beach erosion” is an undefined compound expression similar to the other listed coastal hazards, and that the word “beach” is not used in a manner consistent with its definition throughout the other definitions, such as in the definition of “beach system” and “beach fluctuation zone”.

92. In this contention, the Council also asserts, at particular (b), that “the extent of the wave action and soil loadings will progress further landward in the absence of any protection structure minimising erosion of the beach into the future”. The agreed evidence of Mr Horton and Mr Lord is instead that the pool structure including foundations will be designed to withstand wave action and soil loadings for a 60 year design, and Mr Horton therefore concludes that there is no expectation of any need to protect the proposed pool by a protection structure. This conclusion is not disputed by Mr Lord.

93. In cross-examination on this contention, Mr Horton’s evidence is that any increased risk of erosion on the site caused by the proposed development is inconsequential, and that it is highly unlikely to cause any erosion on other land. His evidence is that the beach erosion level will remain the same regardless of whether or not the proposed development is in place. He considers that the beach erosion level will be similar along both 42 and 44 Ocean Street, with the erosion level progressing as a relatively straight line forming a near-vertical escarpment, stepping backwards in time. This is consistent with his evidence, set out above at [76], that there will be substantial beach recovery following a severe storm such that the average beach volume remains constant, except for the loss from recession due to sea level rise, which will occur regardless of whether or not the development is carried out.

94. Neither in the joint report nor in cross-examination did Mr Lord give an opinion that the proposed development will increase the risk of beach erosion, however defined, as distinct from coastal erosion. The Council seeks to rely on the evidence concerning the additional erosion of sand in the event of a severe storm in order for the Court to reach a conclusion that there is an increased risk of beach erosion. None of the other coastal hazards have been identified by the Council as being of increased risk as a result of the proposed development.

The proposed development is not likely to cause an increased risk of coastal hazards

96. I find that the words “beach erosion”, which is one type of coastal hazard, should be understood as the erosion of the beach as defined in s 4 of the CM Act. Reading the words according to their plain meaning, “beach erosion” is a two word noun phrase referring to the erosion of the beach.

97. In defining the word “beach” within the phrase “beach erosion”, I do not accept that its statutory definition should be set aside in favour of an opinion of an expert. To do so would be contrary to general principles of statutory interpretation: see, for example, Kelly v The Queen [2004] HCA 12 at [51].

98. There is no absurdity created that would lead to reading the definition of “beach” in any other way than as defined. I do not accept the Council’s submission that the word “beach” is used in an inconsistent manner throughout s 4 of the CM Act. Rather, the terms “beach fluctuation zone”, “beach profile” and “beach system” (two of which are defined terms) are compound nouns, and are not phrases for which the definition of “beach” would necessarily assist.

99. In applying the definition of beach to the circumstances before the Court, the beach is therefore the sand of North Avoca Beach that extends landwards from the lowest astronomical tide to the vegetated sand dune that is on the seaward side of the site’s boundary. The site does not form part of the beach as defined, for the purpose of considering beach erosion. As I have earlier accepted the evidence that the erosion estimated to be caused by the concrete piles during a storm event will be confined to the site, I am satisfied that there is no increased risk of beach erosion on either the site (because the site does not form part of the beach) or on other land.

100. In any event, the agreed evidence of Mr Horton and Mr Lord is that the erosion of North Avoca Beach will occur regardless of whether the proposed development is carried out, and that the hazard lines in the CZMP, which represents limits of erosion in rare events, remain applicable whether or not the pool is constructed. I accept Mr Horton’s evidence that any increased risk of erosion on the site caused by the proposed development is inconsequential, that it is highly unlikely to cause any erosion on other land, and that the progression of erosion will be the same regardless of whether or not the proposed development is carried out, with a relatively straight line forming a near-vertical escarpment, stepping backwards in time. I accept his evidence that there will be substantial beach recovery following each severe storm event such that the average beach volume remains constant. Based on this evidence, and Mr Horton’s assessment of other coastal hazards in his report of 9 September 2021, I am satisfied that the proposed development is not likely to cause increased risk of coastal hazards on that land or other land, pursuant to the terms of s 2.12 of the SEPP RH.

The impacts on coastal management (contention 6)

101. Section 2.13 of the SEPP RH prevents the grant of development consent unless the Court, in exercising the functions of the consent authority, has taken into consideration the relevant provisions of the CZMP. The Council contends that the proposed development should be refused as it is not consistent with the coastal management program contained in the CZMP. There are two aspects to this contention. The first is that CZMP informs the coastal building line that is considered above in contention 3. The Council submits that there is no entitlement to a pool and the CZMP specifically considers the hazards of coastal development and expressly excludes development seaward of the coastal building line for the reasons set out therein (and quoted above at [30]). The second aspect to this contention is that the CZMP contemplates future coastal protection works for North Avoca Beach, and the Council’s contention is that the proposed pool would conflict with the construction of those works.

102. Neither of these issues warrant refusal of the development application. Firstly, I have considered the provisions of the CZMP concerning the coastal building line and, consistent with my findings above at [61] to [70], I consider that the proposed development meets the exemption to the coastal building line in the GDCP and the piles, which are necessary to prevent risk to life or property in the event of a storm, will only have a minor impact on coastal erosion, with any erosion confined to the site. The piled foundations are designed to withstand the forces imposed on them for storm events up to the 1 in 100 AEP for the design life of the development, they are proposed to go below -1 AHD and therefore into the 2100 stable foundation zone, they are small in diameter by reference to the Coastal Engineering Manual such that they will not affect wave motion, they are sited to ensure on a conservative calculation they will not cause erosion on other land, and will not increase hazards on neighbouring properties. The proposed development therefore complies with the factors identified by the CZMP in Section 5.2.1 as informing an acceptable level of risk for development, notwithstanding that the pool structure will be seaward of the coastal building line.

103. Without there being a rezoning of the land or some other planning provision that prohibits development seaward of the coastal building line, there can be no blanket exclusion of development by the consideration of the CZMP, contrary to the submission made by the Council. Instead, each development application should be considered on its merits in accordance with s 4.15 of the EPA Act, considering the matters in SEPP RH (and other planning instruments) and with the GDCP (or CCDCP) remaining a focal point of that assessment. In this context and for the above reasons, I have considered the CZMP as required, and form the conclusion that the proposed development is acceptable.

104. Secondly, I do not accept the Council’s position that the proposed development will prevent the future construction of a seawall along North Avoca Beach. Without there being any design, timeframe or budget for such coastal protection works, the Council’s position is purely speculative and is not supported by any evidence that there is a particular intended alignment for the seawall or other protection works that the proposed development conflicts with.

105. For all of these reasons, none of the matters raised by the Council’s contention concerning coastal management in contention 6 warrant refusal of the development application.

Precedent and the public interest (contentions 8 and 9)

106. The Council contends that the proposed development should be refused as its approval will result in similar applications being made along the beachfront of North Avoca Beach, which will have a cumulative impact on the character of the beachfront and on coastal hazards. It also contends that the grant of consent is not considered to be in the public interest, having regard to the matters raised by the earlier contentions and by the objectors.

107. Mr Waghorn and Mr Apps agree that each development application is considered on its own merits and the outcome of one application should not influence a decision on an application on another site. They also agree that the matters raised in the public submissions that are not covered by the contentions already addressed are not matters that warrant refusal of the development application.

108. However, Mr Apps remains of the opinion that the approval of the proposed development will result in other approvals for similar pools or structures, using a similar method of support, along the beachfront. His opinion is that the more piled structures along the beachfront, the greater the cumulative visual impact on the beach as the beach moves landward over time and exposes those elevated structures and piles. He considers that the view along the beach will be dominated by piled structures as opposed to dunes and dune vegetation.

109. Mr Waghorn’s evidence is instead that ancillary structures are contemplated by the GDCP to be located seaward of the coastal building line, subject to the conditions in clause 6.2.9(d). As such, the proposed development is a form of development contemplated by the Council’s planning controls rather than an adverse precedent.

The proposed development does not set an undesirable precedent and the public interest does not warrant its refusal

110. I do not accept that the proposed development establishes an undesirable precedent for similar development, or that there is anything in the public interest that warrants its refusal, for the following reasons.

111. Firstly, I accept Mr Waghorn’s evidence that this proposed development is contemplated by the Council’s planning controls, as ancillary structures are contemplated seaward of the coastal building line subject to specified conditions. This means that the proposed development is expected development and does not set a precedent for some form of development not otherwise contemplated.

112. Secondly, each development application turns on its own merit assessment, such that any future development application would have to meet the conditions of the exemption in cl 6.2.9(d) of the GDCP or otherwise have an alternative solution that meets the objectives for the standards for development around the coastal building line.

113. Thirdly, the issue expressed by Mr Apps concerning the cumulative visual impact of piled development “as the beach moves landward”, is not one that arises during the design life of the proposed development. The agreed evidence of Mr Lord and Mr Horton is that over the lifespan of the proposed pool there will be no significant recession of the beach that would cause the exposure of the piles on an ongoing basis.

114. Instead, the piles will only be exposed for a temporary period following a severe storm with an erosion event of approximately 1 in 100 AEP. In an event that is more severe (and less frequent) than a 1 in 100 AEP that exposes a greater extent of the piles, there would be a devastating impact along the beachfront, which will not be confined to the exposure of piles but will include the collapse of unpiled buildings that are seaward of the coastal building line, as well as removal of sand within the wave zone. Therefore, any cumulative visual impact of piled ancillary structures would have to be read in that context, and would be temporary until the beach is restored through natural processes.

115. Further, the temporary impact caused by the erosion of sand on this particular site following a severe storm will be managed through a condition of consent, which requires the restoration of the area under the pool upon its being undermined by a storm event. As submitted by the applicant, it must be assumed that a condition will be complied with: Jones-Evans v Council of the City of Sydney [2005] NSWLEC 300 at [14]-[15] and [34]-[35].

116. Fourthly, there is no evidence of anything else in the public interest that warrants refusal of the development application. This is agreed by Mr Apps and Mr Waghorn.

117. For all of those reasons, neither of the Council’s contentions concerning precedent or the public interest warrant refusal of the development application.

The outcome of the appeal

118. For the reasons expressed above, none of the contentions raised by the Council warrant refusal of the development application. The proposed pool meets the exemption to the coastal building line in the GDCP, as it is an ancillary structure, it does not present a risk to life or property, and the piles which are necessary to prevent risk to life or property in the event of a storm will only cause a minor impact on coastal erosion, with any such impact confined to the site. I have considered the matters in ss 2.10 and 2.11 of the SEPP RH and I am satisfied of the matters in s 2.10(2) and 2.11(1)(b). As the impact is confined to the site and only occurs in the event of an erosion event that exceeds the 1 in 100 AEP, I am also satisfied that the proposed development will not cause an increased risk of coastal hazards, including beach erosion. Consistent with s 2.13 of the SEPP RH, I have considered the relevant provisions of the CZMP and find that the proposed development is generally consistent with the factors identified as informing an acceptable level of risk for development.

119. Based on the evidence before the Court, I have considered each of the matters that arise for consideration pursuant to s 4.15(1) of the EPA Act, and I am satisfied that consent should be granted subject to the agreed conditions.

120. In addition, consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the SEPP RH. As the site has a history of use as residential premises, it is unlikely to be contaminated.

Final orders

121. The Court orders that:

1. The appeal is upheld.

2. The development application DA 63360/2021 for the construction of a new pool to the beach side of the existing dwelling at 44 Ocean Street, North Avoca, is determined by the grant of consent subject to the conditions in Annexure A.

3. Exhibits 1-7 are returned, and the remaining exhibits are retained.

J Gray

Commissioner of the Court

Annexure A (180139, pdf) 

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Decision last updated: 17 January 2023