Parris v Sutherland Shire Council
[2006] NSWLEC 524
•30/08/2006
Land and Environment Court
of New South Wales
CITATION: Parris v Sutherland Shire Council [2006] NSWLEC 524 PARTIES: APPLICANT
RESPONDENT
Glen Parris
Sutherland Shire CouncilFILE NUMBER(S): 10957 of 2005 CORAM: Hussey C KEY ISSUES: Development Application :- Boatshed and jetty construction, location of MHWM, escarpment excavation, impact on sea grasses, visual impact LEGISLATION CITED: State Environmental Planning Policy No 71 - Coastal Protection
Sutherland Shire Local Environmental Plan 2000
Draft Sutherland Shire Local Environmental Plan 2004
Development Control Plan for Waterfront DevelopmentDATES OF HEARING: 05/07/2006 (OSH), 02/08/2006
DATE OF JUDGMENT:
08/30/2006LEGAL REPRESENTATIVES: APPLICANT
Mr P Battins, solicitor
SOLICITORS
Willis & BowringRESPONDENT
Mr C Mathieson, principal environmental lawyer
Of: Sutherland Shire Council
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Hussey C
30 August 2006
10957 of 2005 Glen Parris v Sutherland Shire Council
BackgroundJUDGMENT
1 This appeal was lodged against council's refusal of a development application for the construction of a boat shed and jetty, relocation of an existing approved jetty, removal of old slip rails and replacement with new sliprails at 32 Shiprock Road, Port Hacking.
2 In 1999, council approved a jetty for this site. That approval was for a jetty of about the same length as the proposal but it was located further to the west. It appears that approval has lapsed.
3 With regard to the proposed boat shed and ancillary structures, the outstanding issues can be summarised as follows:
A. Boatshed:
(i) The extent of the proposed excavation into the rock escarpment,
(ii) The impact of the excavation on the preservation and enhancement of the natural features and vegetation of the waterfront,
(iii) The compatibility of the design and scale of the boat shed in relation to surrounding traditional boat sheds (one of which is a heritage item),
B Jetty:
(i) Length exceeds the 9 m limit in the DCP,
(ii) Height of jetty and hand rail exceeds the controls in the DCP,
(iii) Visual impacts of the proposed jetty of the waterway,
(iv) Jetty does not provide access to reasonable usable water levels - with potential impacts on natural environment, seabed and waterway from vessels and motors running aground.
4 In order to assess these issues, the parties agreed to Mr M Ball being the Court-appointed planning expert. Accordingly he prepared detailed assessment reports, Exhibits 6 and 7.
The site
5 The site is described as Lot 60 DP 1042828. It has a total area of 1659 sq m and a frontage of approximately 15.6 m to Port Hacking. The land falls quite steeply from Shiprock Road and incorporates a number of terrace levels. The waterfront area is characterised by a steep rock escarpment about 7 m high. This escarpment contains existing steps to the water area and incorporates existing vegetation.
6 The site is recessed into a shallow bay, and there are a number of jetties, pontoons, boat shed and slipways nearby in this area.
7 To the west of the site is a boat shed, jetty and pontoon, which extends beyond the Mean High Water Mark (MHWM). The pontoon projects about 27 m beyond the MHWM. Other boat sheds and jetties exists the to the west.
8 To the east of the site is another boat shed with a jetty and sliprails, with other boat sheds, jetties beyond that.
The proposal
9 The proposed boat shed is to be 7 m x 4 m, with a ridge height of 4.6 m above the floor level. The jetty is proposed to be 1.5 m wide, and to extend 15 m beyond the MHWM. The slip away is to replace an existing structure; this is to be 15M beyond the MHWM.
10 A new stairway is proposed to replace the existing one adjacent to the escarpment face, with some sections integrated within the envelope of the boat shed.
11 The new boat shed is proposed just above MHWM.
Planning controls
State Environmental Planning Policy No 71 – Coastal Protection
(SEPP 71)
(1) …
(2) This policy:
a) identifies State significant development in the coastal zone, and
b) requires certain development applications to carry and development in sensitive coastal locations to be referred to the Director-General for comment and
in the coastal zone
(3) This policy aims to further the implementation of the Government’s coastal policy.
- a) to protect and manage the natural, cultural, recreational and economic attributes of the New South Wales coast, and
b) to d) ……
e) to ensure that the visual amenity of the coast is protected, and
f) to protect and preserve beach environments and beach amenity, and
g) to protect and preserve native coastal vegetation, and
h) to protect and preserve the marine environment of New South Wales, and
i) to j) …
k) to ensure that the type, bulk, scale and size of development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area, and
12 Under this LEP the site is zoned Pt 2(e2) Residential and Pt 7(a) Environmental Protection – Waterways.
13 The objectives of the 2(e2) includes:
A residential environment at a lower density than the Residential 2(e1) zone in an environmentally and visually sensitive locality:
(a) where the scale, amenity and sensitive environmental character of the area is preserved, and
(b) where the streetscape and views to the land from the waterway that characterised by 1 and 2 to be detached residential buildings within a landscape setting, and
(c) which is protected from visually intrusive development, especially were buildings or works are within the view of any waterway or on-site which contains significant vegetation or natural features that should be preserved, and
(d) where non-residential uses provide necessary services to the local neighbourhood without adversely affecting the residential amenity, and
(e) where the natural environment is protected from development that would harm the foreshore, escarpment and habitats in the vicinity of waterways.
14 Other relevant clauses include:
· Clause 14(2) dealing with heritage items and relic protection,
· Clause 16, dealing with development of known or potential archaeological sites,
· Clause 19 dealing with foreshore scenic protection areas,
· Clause 20 – dealing with foreshore building lines and waterfront development, which provides that:
15 The objectives of this cl 20 are:
- a) preservation and enhancement of the natural features and vegetation near where the land meets the water,
b) restoration of the land below the foreshore building line, so far as practicable, to a natural state, with a minimum intrusion of man-made structures,
c) no buildings below the foreshore building line other than building excepted by this clause,
d) a significant reduction in the number of structures below the foreshore building line, particularly on redevelopment of a site,
e) conservation and enhancement of waterfront buildings of heritage value,
f) avoidance of adverse ecological effects of the waterways, and
g) public use of the intertidal areas below the main high watermark or high watermark, where appropriate …
16 Clause 30 lists special considerations in the residential zones.
Draft Sutherland Shire Local Environmental Plan 2004 (DLEP).
17 The site is affected by the provisions of the DLEP, wherein the site is zone partly Environmental Housing (Environmentally Sensitive Land) and partly Environmental Protection (Waterway). At this time, finalisation of this DLEP is uncertain.
18 However the DLEP requires boatsheds and works to obtain development consent in the Environmental Housing zone. Also, development that requires development consent in the Environmental Protection (Waterways) zone includes watercraft facilities and works to enable public pedestrian access to facilitate recreational use of the waterway.
Development Control Plan for Waterfront Development
19 The objectives of the DCP are set out in cl 3 as follows:
a) minimise the impact of development on the natural landform of the foreshore and waterway by integrating structures into the site with a minimum change to the natural topography.
b) minimise the visual impact of development when viewed from adjacent land and waterways.
c) blend developments into the foreshore and waterfront environment by using designs and materials which complement the natural landscape.
d) minimise disruption of the natural shoreline.
e) retain and enhance endemic native vegetation along the foreshore and ensure that development does not adversely affect any estuarine floral or fauna habitat.
f) maintain and improve public access of the intertidal area of the waterfront, which is public land.
g) achieve an appropriate balance between private development and the alienation of the waterways, which is a public resource, from public use.
h) phase-out nonconforming structures and restore the foreshore and waterfront area to a natural state.
i) conserve and enhance waterfront structures of heritage significance.
j) minimise the obstruction of water views.
20 Clause 10(a) of the DCP states:
- A fixed jetty is not to exceed a length of 9 m from M.H.W.M. and any existing reclamations are included in the 9 m. The jetty may have a maximum width of 2 m and a maximum height of 750 mm above the M.H.W.M. (1.29 m AHD).
21 Clause 11.1of the DCP states:
- Boatsheds are specifically intended to the storage of small boats and boating equipment only. Council will not permit the use the boat shed for any other purpose. Single storey boat sheds can only be located at or above M.H.W.M. Boatsheds can have a maximum length of 7 m, a maximum width of 4m and maximum height of 3 m to the eaves or ceiling of the elevation/s facing the water and 5 m to the highest part of the roof. The maximum floor level of the boat shed shall be 900 mm above the M.H.W.M.(1.44 m AHD). Boatsheds should be designed to minimise excavation and incorporate a pitch (gable form) roof that reflects the character of the waterway. Boatsheds that exhibit scale and character in keeping with traditional timber boatsheds are preferred.
- The evidence
22 In addition to Mr Ball’s evidence, Mr M Adamson (council planner) and Ms K Korbel (environmental scientist) provided opinions on aspects of the proposal.
23 Mr Ball assessed the proposal relative to the controls as shown in the following Table 1.
Table 1 - DCP Compliance
Complies? Jetty length (max) 9 m beyond MHWM Jetty width (max) 2 m Jetty height (max) 1.29 AHD Jetty length to reach – 1.53 AHD Boatshed length 7 m Boatshed width 4 m Boatshed height 3 m (to eaves)
5 m (to ridge)
5 m
YesBoatshed floor level 1.44 AHD Boatshed roof to be gabled Boatshed setback Side setback – 1.5+
(1) The main numerical control of relevance is a maximum jetty length of 9 metres
- (the proposal is 15m): see cl10.1(a). Notwithstanding the 9 metre control, jetties are to
be no longer than the minimum needed to reach usable water at low tide. Usable water
appears to mean the point at which the sea bottom is covered by 600 mm of water at ISLW.
The level of the sea bottom at that point would be –1.53 AHD.
(2) Could be conditioned to comply.
24 With regard to the boatshed component, the main issue concerns its size and necessity to excavate part of the escarpment. The degree of impact is practically affected to some extent by the position of the zone boundary. In this regard, Mr Ball says:
The zone boundary follows the Mean High Water Mark (the "MHWM") which existed at the time of the promulgation of the SSLEP. The actual MHWM was redefined by survey (and apparently registered on title) after gazettal of the SSLEP. This new MHWM is up to three metres closer to the waterway than the old one as shown on the D.P. Notwithstanding this, the zone boundary remains as gazetted. The area below the old MHWM is zoned 7(a) Environmental Protection Waterways - upon which boatsheds are prohibited under the SSLEP. Land above the old MHWM is zoned Residential 2(e2) on which boatsheds are permissible …
25 According to Mr Ball's assessment, the escarpment in the location of the boat shed as shown on the elevation and sections drawings begins fairly close to the position of the old MHWM. Consequently to achieve the desired size of the boatshed, substantial excavation into the escarpment is required.
26 Insofar as Mr Ball initially suggested that the boat shed could be reduced in length to about 5 m and marginally relocated, I understand from the applicant’s submissions that such reduction will unreasonably compromise the utility of the boatshed. Notwithstanding this, Mr Ball also said that the extent of excavation itself is not, in itself, a major flaw in this application and that there are means by which the excavation can be undertaken and the spoil removed from the site in acceptable manner.
27 However the evidence indicated to me that councils main concern related to the visual impact of the excavation and the failure to preserve and enhance the natural features and vegetation at the waterfront. Notwithstanding this, I understand from Mr Adamson's evidence that the proposed design/style of single boat shed with its pitched roof could be acceptable, if the excavation was not involved.
28 From this, it appears to me that such a suitably located, "stand-alone" boat shed of the design proposed, would then result in acceptable visual impacts from the waterway. But such "stand-alone" back shed would inevitably be seen against the existing escarpment backdrop and this would include some views of part of the replacement steps.
29 In response to this concern, the applicant amended the plans to incorporate part of steps behind the front portion of the pitched roof, thereby reducing visual intrusion. Also, the excavation cavity is to be restored with rock facing to match the existing escarpment face and the balustrading is to be of open construction.
30 Accordingly, Mr Ball’s conclusion on the amended plans is that:
"The proposed retaining walls are to be stonefaced rather than a smooth construction and finish. This will reduce visual impact in a manner exemplified by number of other walls present in this part of the waterway which were inspected by the Court in the presence of the parties.
An example of the proposed stonework has been supplied and this is satisfactory with the proviso that such stonework is to be rough-faced, rather than smooth. This was a concern emerging from the inspection of other waterfront work and should be included as a condition."The proposed balustrading is shown to be of open construction to reduce visibility above the roofline of the boat shed and against the backdrop of the escarpment behind.
31 Mr Ball also commented on the need for satisfactory complimentary landscaping plans to be required as conditions consent.
32 The other outstanding issues concern the jetty component because the proposed length of approximately 20m from the old MHWM exceeds the 9m limited allowed in DCP. In this regard, Mr Ball identified the following relevant points:
1. The overall length of structures permitted under the DCP is somewhat longer than 9 m. For example, the end of a ramp attached to a fixed jetty may project to point 15 m beyond MHWM. Such ramps angle down to a floating pontoon which can further extend the total length of structures to at least 16.7 m beyond the MHWM.
2. The length of the proposed jetty from the actual MHWM is 15 m. That is, it projects beyond the new/redefined WHWM by 15 m. If the objectives and provisions of the DCP are concerned with practical and actual effect of jetty length relative to actual MHWM, then the proposal complies.
3. The projection of the proposed jetty into the waterway is shorter than most of its neighbours. The jetties and pontoons to the west of the site are about 25 – 27 m beyond the MHWM. Those to the east of site range from about 10m (excluding slip rails) to about 20 m beyond MHWM.
4. Clause 5 of the DCP acknowledges that the Plan can be varied so long as the Plan objectives are satisfied.
5. The site is recessed into a bay, rather than on a more prominent point.
33 Insofar as the controls allow for a jetty to be constructed, Mr Adamson's main objection to the proposal is its fixed deck design, which does not incorporate a drop-down to a pontoon.
34 From his detailed assessment of the proposed jetty, Mr Ball made the following comments:
- the jetty is acceptable in the context of the DCP provisions and the existing structures in this general area. Although the jetty itself is longer than encouraged under the DCP, it is of a length consistent with the jetty, ramp and pontoon of a length complying with DCP.
- the proposed jetty would have a significantly lesser visual impact than would ensue from a jetty, ramp and pontoon complying with DCP. The jetty generally presents a better and smaller amount of visible area than if a ramp and pontoon are present.
- Fisheries has sought the covering of the jetty deck be of mesh (rather than a more solid structure). This has been done in the amended plans.
35 Mr Ball also referred to the following provisions of clause 10.1 (d) of the DCP:
In all cases, the length of the structure is to be only the minimum needed to reach usable water which is 600mm depth at 00 low tide (- 1.53 AHD).
36 Whilst this clause is subject to a number of interpretations, the Court was informed that the parties had agreed to the following:
2. If the – 1.53m AHD is meant to refer to 00 low tide level, that low tide level would be 600mm below the ISLW (a measure of low water below which the tide seldom falls) and the usable water level would be the same as ISLW, at which time there would be no water at the end of the proposed jetty. "00 low tide" is not defined and has no apparent reference to terms commonly used in determining water levels.
37 Accordingly Mr Ball says that the intent of this subclause appears to be to keep jetties, ramps and pontoons as short as practicable, in reaching "usable water". It is also to reduce impacts on the seabed from vessels and motors running aground.
38 On the basis of this aforementioned criteria, Mr Ball’s assessment is:
- The proposal results in the depth of water at the end of the proposed jetty being – 0.715 AHD (0.21 ISLW), which means at the time of ISLW, the seabed at the end of the jetty would be 210 mm out of water.
- Mean low water is the mean of annual low tides; this figure for Fort Denison is ISLW + 0.35 m = - 0.575 AHD, whereas Council calculates this level as ISLW + 0.41. Therefore at mean low water there would be a depth of water at the end of the proposed jetty of about 150 – 200 mm, which significantly restricts access, except for small craft.
- At mean high water, there would be depth of water at the end of the proposed jetty of about 1.27 m - enough a quite large boats.
- At mean water level (the means of high and low water), there would be depth of water at the end of the proposed jetty of about 0.67 m, which is apparently sufficient for an outboard boat taking 4-5 passengers.
39 From this, Mr Ball says that a key question is the degree to which the proposal could, and would, create the potential for an intensified use of the waterfront area. At present the waterfront area can and is now used for the storage and launching of boats. This current use of waterfront involves dragging watercraft across the seabed at the storage area of the existing slipway at low tide. Accordingly Mr Ball says that the use of the jetty could reduce damage of this kind.
40 Another significant aspect of the length of the jetty, concerns potential impact on the Zostera and Posidonia sea grasses. This arises because the end of the jetty will be located approximately 1.5m, from the start of the Posidonia in a depth of approximately 0.1m at low tide.
41 However, this matter has been considered by the Department of Primary Industries, who require the jetty to finish at least 2m before the inner edge of the Posidonia beds and with no pontoon. Also mesh decking is required for the jetty where it traverses the Zostera seagrass, to prevent harm by shading.
Conclusions
42 Having considered the evidence, I am satisfied that it is a reasonable expectation that an application can be made for an appropriate boatshed and jetty at this waterfront property in Port Hacking, particularly considering the 1999 approval. This general neighbourhood is characterised by residential development with many waterfront dwellings having associated watercraft facilities such as each jetties and boatsheds.
43 This site for the proposed boat shed and jetty is in a recessed bay and there are other larger boat sheds and jetties in the immediate vicinity. This includes a heritage listed boat shed, immediately to the west of the site. Whilst many of these existing jetties do not comply with the current controls, in terms of their locations relative to the MHWM, nevertheless they form the visual character of the waterfront.
44 However, planning controls allow an appropriate boat shed on the 2 (e2) Residential part of the land, subject to it being of appropriate size and design so as to not detract from the visual amenity of the waterfront area. The DCP contains complimentary design controls for boat sheds and jetties.
45 In this case, I am satisfied that the boat shed has been located on the 2 (e2) part of the land, albeit with significant excavation into the rock escarpment. The evidence indicates to me that the boatshed design has been amended to incorporate the desired design features, including its gabled roof and its visual presentation is acceptable, apart from the excavation impacts.
46 However, the amended proposal shows that the excavated area in the escarpment can be satisfactorily restored by the provision of appropriate sandstone facing. Associated landscaping can also be provided, which complements the existing vegetated area and provides some screening to the exposed escarpment area, as currently exists.
47 On this basis, Mr Ball supports the proposal and says that the proposed boat shed would give an overall impression of form compatible with traditional boat sheds in the Port Hacking area. From my understanding of the evidence and observations on the view, I am satisfied to rely on this conclusion, that the proposed boat shed, as amended and in its neighbourhood context, satisfactorily complies with the objectives and relevant planning controls, subject to the additional conditions stated by Mr Ball, which are to be imposed.
48 The associated element concerns to jetty. In so far as the proposed jetty is somewhat longer than the 9m allowed in the DCP and it does not have a drop-down pontoon element, nevertheless I am satisfied its environmental and amenity impacts are acceptable.
49 Taking into account the recessed bay in which the jetty is proposed, its overall length is noticeably less than existing adjoining jetties. Therefore I do not consider it overall length will be unduly intrusive in this context. Whilst the DCP prefers an end pontoon, this is inappropriate in this case due to the location of the sensitive seagrasses.
50 In balancing the competing positions, I note that the Department of Primary Industries has considered the proposal without a potoon and considers it acceptable subject to conditions, which restrict its overall length to provide a minimum of 2m clearance to the Posidonia beds and also providing mesh decking over the Zostera beds.
51 In the ultimate, I am satisfied to rely on the Court appointed expert, Mr Balls opinion that the visual impacts of the proposed jetty from the waterway are acceptable and that the discretion allowed in the application of the DCP cl. 10.1 (d) controls can be exercised. In my assessment a reasonable balance is achieved between the private interests in ‘constructing and using’ the boat shed and jetty, relative to visual impacts and environmental impacts on the seagrass is in this recessed bay, where current boating activities are likely to cause more environmental harm to the foreshore.
1. The appeal is upheld.
2. Development consent is granted to DA No. 40146 for the construction of a boatshed, jetty and sliprails at 32 Shiprock Road, Port Hacking, subject to the conditions in Annexure A.
3. The exhibits may be returned except for 5, 6, 7, 8, B, E and F.
___________________
- R Hussey
Commissioner of the Court
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