Ralph Lauren Pty Ltd v Transitional Coastal Panel

[2018] NSWLEC 1679

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ralph Lauren Pty Ltd v Transitional Coastal Panel [2018] NSWLEC 1679
Hearing dates:	Conciliation conference on 17, 18, 19 and 21 December 2018
Date of orders:	21 December 2018
Decision date:	21 December 2018
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	See orders at [33] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Byron Local Environmental Plan 1988 Coastal Management Act 2016 Coastal Protection Act 1979 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Local Government Act 1993 Protection of the Environment Administration Act 1991 State Environmental Planning Policy (Coastal Management) 2018 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 14—Coastal Wetlands State Environmental Planning Policy No 26—Littoral Rainforests State Environmental Planning Policy No 71—Coastal Protection
Cases Cited:	Aldous v Greater Taree City Council (2009) 167 LGERA 13; [2009] NSWLEC 17
Category:	Principal judgment
Parties:	Robert Watson (Applicant) Transitional Coastal Panel (Respondent)
Representation:	Counsel: A Galasso SC with R White (Applicant) S Duggan SC with N Hammond (Respondent)   Solicitors: King & Wood Mallesons (Applicant) Beatty Legal (Respondent)
File Number(s):	2018/113432
Publication restriction:	No

Judgment

This decision was given as an extemporaneous decision at 3pm on 21 December 2018. It has been revised and edited prior to publication.

1. COMMISSIONER: This Class 1 appeal concerns a development application (DA) brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the respondent’s decision to refuse consent for works to repair an existing seawall within the private property Lot 2 Section 2 in DP 1623 and SP65430 known as 1 and 1A Don Street, Byron Bay (the site).

2. The proceedings were referred to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, and they negotiated over several days on 17, 18, 19 and 21 December 2018 before agreement was reached. I presided over the conciliation conference which was held in Sydney.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court at 10am on 21 December 2018 (s34 Agreement).

4. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the particular development involves the restacking of existing rock and concrete and/or concrete slabs with the importation of additional rock of a certain size and quantity to restore the face of the existing seawall located on the applicant’s private property. The detail of the works was provided to me at the outset of the conference in a tabular form in a document referred to as the ‘Applications Summary Table’ and reproduced below.

Nature of the Works	Section Plans	Repair Works Plans	Rock Size	Quantity of Rocks	Proposed access
Restacking of existing rock & concrete with importation of additional rock. Concrete slabs to be cut if required. Works limited to top section of wall between about +3m to +6m. Top section of wall removed and existing filter to be repaired if necessary.	BSR-DS-UW-003A BSR-DS-UW-005A	BSR-DS-UW-004A BSR-DS-UW-006A	1.5-5T	Up to 240 tonnes (20 x 12t trucks)	From OJS onto property

5. The detail of the development was refined further during the conciliation and is now specified in the development plans and conditions of development consent referred to in the s34 Agreement at Appendix 8 (hereafter referred to as ‘the agreed development’).

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising power under s 4.16 of the EPA Act. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised.

7. The parties identified the jurisdictional prerequisites of relevance in these proceedings and referred me to two documents. An agreed joint written submission dated 18 December 2018 which sets out the facts of the case, the statutory context, the relevant jurisdictional issues and the parties’ response. It refers to particular paragraphs of the Joint Experts’ Coastal Engineering Report: Leslie Angus Jackson and James Carley Lots 1 and 2 Don Street, Belongil, Byron Bay (JER) (Appendix 4 of the s34 Agreement). I was also provided with a Schedule referencing the legislation and again paragraph references to the JER. The legislation is contained in Volume 1 of a Court book tabled during the conference and marked (Exhibit A). I have not visited the site; however, the parties understand that I am generally familiar with the area, having inspected it for another appeal earlier in the year. They were content to show me a photograph of the specific area of the development and the proposed access route to construct the repair works.

8. The parties explained to me during the conference how the jurisdictional pre-requisites have been satisfied in order to allow the Court to make the following agreed orders:

1. Leave to be granted to the Applicant to amend the following plans:

1. BSR-DS5-UW-011 Vehicle Access Plan Rev 0 14/12/2018

2. Grant the development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act.

9. I have set out below my understanding of the parties’ agreed position and the evidence in support of the agreement taken from their agreed written submissions.

“Jurisdictional requirements

Legislative Context

Coastal Protection Act 1979 [(CP Act)]

Savings and transitional provisions

1. The development application was lodged on 11 August 2017. At that time and up until 3 April 2018, the CP Act and State Environmental Planning Policy No 71– Coastal Protection (SEPP 71) were in force.

2. On 3 April 2018, the [CP Act] was repealed and the Coastal Management Act 2016 [(CM Act)] came into force. Clause 5 of Schedule 3 to the CM Act provides as follows: [Exhibit A] at 486:

5 General saving

Subject to this Schedule and the regulations:

(a) anything begun before the repeal date under a provision of the former Act for which [th]ere is a corresponding provision in this Act may be continued and completed under the former Act as if this Act had not been enacted, and

(b) subject to paragraph (a), anything done under a provision of the former Act for which there is a corresponding provision in this Act (including anything arising under paragraph (a)) is taken to have been done under the corresponding provision of this Act.

3. On 3 April 2018, SEPP 71 was also repealed and replaced by the State Environmental Planning Policy (Coastal Management) 2018 [(2018 SEPP)]. Clause 21 of the 2018 SEPP relevantly provides as follows: [Exhibit A] at 404:

21 Savings and transitional provisions

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

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

…

(4) In this clause:

former planning provisions means:

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

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

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

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

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

4. As a consequence of these savings and transitional provisions, the planning provisions that previously applied continue to apply to the assessment and determination of [this] development [application]. That is, the CP Act and SEPP 71.

5. Section 27A (also repealed on 3 April 2018) of the State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) provided as follows:

129A   Development with consent

(1)  Development for the purposes of a sea wall or beach nourishment may be carried out by any person with consent on the open coast or entrance to a coastal lake.

(2)  If a coastal zone management plan does not apply to the land on which any such development is to be carried out, the Coastal Panel has the function of determining a development application for development to which this clause applies.

(3)  Before determining a development application for development to which this clause applies, the consent authority must take the following matters into consideration:

(a)  the provisions of any coastal zone management plan applying to the land,

(b) the matters set out in clause 8 of State Environmental Planning Policy No 71—Coastal Protection,

(c)  any guidelines for assessing and managing the impacts of coastal protection works that are issued by the Secretary for the purposes of this clause and published in the Gazette.

Note. Section 55M of the Coastal Protection Act 1979 sets out preconditions to the granting of development consent relating to coastal protection works.

6. That clause continues to apply pursuant to cl 21(4)(b) of the 2018 SEPP.

Coastal Protection Act 1979

7. The object of the CP Act in s 3 was to provide for the protection of the coastal environment of the State for the benefit of both present and future generations and, in particular: [Exhibit A] at 410:

(b) to encourage, promote and secure the orderly and balanced utilisation and conservation of the coastal region and its natural and man-made resources, having regard to the principles of ecologically sustainable development, and

...

(d) to promote public pedestrian access to the coastal region and recognise the public’s right to access.

8. Section 55M provided as follows: [Exhibit A] at 432:

55M   Granting of development consent relating to coastal protection works

(1) Consent must not be granted under the Environmental Planning and Assessment Act 1979 to development for the purpose of coastal protection works, unless the consent authority is satisfied that:

(a)  the works will not over the life of the works:

(i)  unreasonably limit or be likely to unreasonably limit public access to or the use of a beach or headland, or

(ii)  pose or be likely to pose a threat to public safety, and

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

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

(ii)  the maintenance of the works.

(2)  The arrangements referred to in subsection (1) (b) are to secure adequate funding for the carrying out of any such restoration and maintenance, including by either or both of the following:

(a)  by legally binding obligations (including by way of financial assurance or bond) of all or any of the following:

(i)  the owner or owners from time to time of the land protected by the works,

(ii)  if the coastal protection works are constructed by or on behalf of landowners or by landowners jointly with a council or public authority—the council or public authority,

Note. Section 80A (6) of the Environmental Planning and Assessment Act 1979 provides that a development consent may be granted subject to a condition, or a consent authority may enter into an agreement with an applicant, that the applicant must provide security for the payment of the cost of making good any damage caused to any property of the consent authority as a consequence of the doing of anything to which the consent relates.

(b) by payment to the relevant council of an annual charge for coastal protection services (within the meaning of the Local Government Act 1993).

(3)  The funding obligations referred to in subsection (2) (a) are to include the percentage share of the total funding of each landowner, council or public authority concerned.

9. “Coastal protection works” was defined as including seawalls: s 4.

10. The parties have agreed, with the imposition of the agreed conditions, that the objects of the CP Act & the EPA Act are achieved, and that the provisions of Section 55M of the CP Act are satisfied …

11. … the experts have conferred and prepared [the JER] report. In connection with the section 55M(1) considerations [they agreed that]:

• the works will not unreasonably limit or be likely to unreasonably limit public access to or use of the beach (JER at [6] & [9]-[12] & Section 2.4 [41]-[46] of Addendum A of the JER);

• With respect to public safety, the works are repair of [an] existing [seawall] and the maintenance conditions requiring ongoing maintenance of the [seawall]. This will ensure that there is no threat to public safety caused by the works (JER [34]-[40]).

• Satisfactory arrangements (by conditions imposed on the consent) have been made for the restoration of the beach, if any increased erosion of the beach is caused by the presence of the works. Condition 8 of the development consent provides that the seawall must be maintained, repaired and rectified in accordance with the Maintenance, Repair and Rectification Plan. Relevant matters which have been included in the maintenance plan include:

○ An agreed monitoring regime;

○ A prohibition or limitation on seaward migration of the structure;

○ The size and specification of imported repair rocks;

○ Annual or episodic limits on the quantity of imported material (JER at [49]).

12. Regarding maintenance, the maintenance plan satisfactorily requires ongoing maintenance of the works.

13. Section 55M(2) requires that the arrangements in [s 55M(1)(b)] be secured by adequate funding. Those arrangements have been provided for in the conditions of consent by way of a bond to be provided by the landowners. In [this case], condition 9 requires that prior to any works being carried out, he must provide an irrevocable bank guarantee to Crown Lands in the amount of $20,000 to undertake works in accordance with the maintenance plan in the event that the seawall is damaged as a result of a coastal storm. The owner of the private property is required to cause to be registered on the title of the private property a public positive covenant requiring the owner to comply with the obligations of the development consent, and to comply with the obligations of the maintenance plan.

14. The CP Act and s 55M brings into play the mandatory considerations under s 4.15 of the EPA Act.

Local Environmental Plan 1988

15. The land zoning map in the 2014 LEP indicates that the whole of the Belongil Spit including the land the subject of these proceedings is a “deferred matter”. Therefore, the 2014 LEP does not apply, and the 1988 LEP continues to apply.

16. Under the 1988 LEP, the land in [these] proceedings is zoned as follows:

a. [7(f2) (sic)] (Urban Coastal Land Zone); and

Zone No 7 (f2)   (Urban Coastal Land Zone)

1   Objectives of zone

The objectives of the zone are:

(a)  to identify urban land likely to be influenced by coastal processes,

(b)  to permit urban development within the zone subject to the council having due consideration to the intensity of that development and the likelihood of such development being adversely affected by, or adversely affecting, coastal processes,

(c)  to permit urban development within the zone subject to the council having due consideration to:

(i)  the need to relocate buildings in the long term,

(ii)  the need for development consent to be limited to a particular period,

(iii)  the form, bulk, intensity and nature of the development, and

(iv)  continued safe public access to the site, and

(d)  to allow detailed provisions to be made, by means of a development control plan, to set aside specific areas within the zone for different land uses and intensities of development.

17. Clause 88 is relevant to the assessment of the development [application], which provides as follows: [Exhibit A] at 74:

88   Development within the coastal zone

(1)  The objectives of this clause are as follows:

(a)  to provide for the protection of the coastal environment of the State for the benefit of both present and future generations through promoting the principles of ecologically sustainable development,

(b)  to implement the principles in the NSW Coastal Policy [1] , and in particular to:

1. At the relevant date, the NSW Coastal Policy was SEPP 71

…

(iii)  provide opportunities for pedestrian public access to and along the coastal foreshore, and

(iv)  recognise and accommodate coastal processes and climate change, and

(v)  protect amenity and scenic quality, and

(vi)  protect and preserve rock platforms, beach environments and beach amenity, and

…

(ix)  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

(x)  ensure that decisions in relation to new development consider the broader and cumulative impacts on the catchment, and

...

(2)  Development consent must not be granted to development on land that is wholly or partly within the coastal zone unless the consent authority has considered:

(a)  existing public access to and along the coastal foreshore for pedestrians (including persons with a disability) with a view to:

(i)  maintaining existing public access and, where possible, improving that access, and

(ii)  identifying opportunities for new public access, and

(b)  the suitability of the proposed development, its relationship with the surrounding area and its impact on the natural scenic quality, taking into account:

(i)  the type of the proposed development and any associated land uses or activities (including compatibility of any land-based and water-based coastal activities), and

(ii)  the location, and

(iii)  the bulk, scale, size and overall built form design of any building or work involved, and

…

(d)  how the visual amenity and scenic qualities of the coast, including coastal headlands, can be protected, and

(e) how biodiversity and ecosystems, including:

(i) native coastal vegetation and existing wildlife corridors, and

(ii) rock platforms, and

(iii) water quality of coastal waterbodies, and

(iv) native fauna and native flora, and their habitats,

can be conserved, and

(f)  the cumulative impacts of the proposed development and other development on the coastal catchment.

(3)  Development consent must not be granted to development on land that is wholly or partly within the coastal zone unless the consent authority is satisfied that:

(a)  the proposed development will not impede or diminish, where practicable, the physical, land-based right of access of the public to or along the coastal foreshore, and

…

(d)  the proposed development will not:

(i)  be significantly affected by coastal hazards, or

(ii)  have a significant impact on coastal hazards, or

(iii)  increase the risk of coastal hazards in relation to any other land.

18. The [development is] permissible with development consent, being proposed beach and coastal restoration works, and therefore permissible with consent under cl 9 of the [1988 LEP] (page 21 of the [Exhibit A]).

19. Clause 9(3) of the [1988 LEP] states that the consent authority shall not grant consent to the carrying out of development on land unless the consent authority is of the opinion that the carrying out of the development is consistent with the objectives of the relevant zone. The parties agree that the proposed works are consistent with the objectives of the zone [(a) – (d)].

20. Clause 88(2) of the [1988 LEP] considerations:

The parties agree that the development addresses the relevant matters required to be considered in cl 88(2), as follows:

a. Existing public access is maintained: JER at [6] & [9]-[10]);

b. Regarding the suitability of the proposed [development] and their relationship with the surrounding area, the [development is] for the repairs of [an] existing [structure] only;

c. There are no amenity issues on the coastal foreshore within the meaning of cl 88(2)(c);

d. In terms of the scenic qualities of the coast including coastal headlands, the proposals are for repairs of [an] existing [structure] only;

e. In terms of impact on biodiversity and ecosystems, the conditions of consent ameliorate and manage any impacts that might arise (e.g. condition 3 requires that the works must be carried out in accordance with the approved plans; condition 4 requires surveys to be undertaken prior to the issue of a CC; condition 9 details the construction methodology of the construction works; condition 4(ix) identifies that no excavation on the beach is proposed).

f. In relation to cumulative impact, this is addressed in the joint report in Addendum A of the JER at [35]-[40]. The existing works have protected the property for 20 years. Complete removal of the section of seawall on the subject site is unlikely to reduce the magnitude of downdrift end effect, JER at [32].

21. Clause 88(3) of the [1988 LEP] provides that development consent must not be granted unless the consent authority is satisfied that (relevantly):

a. The proposed development will not impede or diminish where practicable, the physical, land based right of access of the public to or along the coastal foreshore and

b. [not relevant]

c. [not relevant]

d. The development will not be significantly affected by coastal hazards or have a significant impact on coastal hazards or increase the risks of coastal hazards in relation to any other land.

22. With respect of [cl] 88(3)(a), the application relates to the repair of [an] existing [wall] on private property and, there is no impediment or diminution of the right of access along the coastal foreshore. The repairs are also subject in the conditions to a “whole of embayment” solution (conditions 10.1 & 10.2), and the conditions also provide for emergency access to members of the public from the beach (not currently provided).

23. With respect of [cl] 88(3)(d), the [development is] for [the] repair, reconstruction and ongoing maintenance of [an] existing [seawall] and therefore will not be significantly affected by coastal hazards over and above the status quo, and will not have a significant impact on coastal hazards or increase the risks of coastal hazards. In the absence of a coastal management plan, and the adverse consequences of a breach of the [seawall], the repairs to the existing [structure] may have some public benefits until such plan is developed as it will provide protection for public and private infrastructure as well as a breakthrough of the ocean into the estuary and wetlands: [JER at [54]).

24. Clause 88(1) identifies the relevant objectives within the coastal zone generally. For the reasons given, the parties agree that the carrying out of the development is consistent with the objectives of the coastal zone.

SEPP 71

25. Under s 4.15 of the EPA Act, the Court is required to consider the provisions of any [environmental planning instrument].

26. SEPP 71 applied to land within the “coastal zone” as defined in the CP Act: s 4(1) and cl 3 definition of “coastal zone” in SEPP 71. It is not in dispute that the land the subject of [this] development [application] is within the coastal zone and that SEPP 71 applies.

27. SEPP 71 provides, relevantly, as follows: [Exhibit A] at 382-385:

2   Aims of Policy

(1)  This Policy aims:

(a)  to protect and manage the natural, cultural, recreational and economic attributes of the New South Wales coast, and

(b)  to protect and improve existing public access to and along coastal foreshores to the extent that this is compatible with the natural attributes of the coastal foreshore, and

(c)  to ensure that new opportunities for public access to and along coastal foreshores are identified and realised to the extent that this is compatible with the natural attributes of the coastal foreshore, and

…

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

(f)  to protect and preserve beach environments and beach amenity, and

…

(j) to manage the coastal zone in accordance with the principles of ecologically sustainable development (within the meaning of section 6 (2) of the Protection of the Environment Administration Act 1991), and

(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

(l)  to encourage a strategic approach to coastal management.

Part 2 Matters for consideration

7   Application of clause 8 matters

The matters for consideration set out in clause 8:

…

(b)  are to be taken into account by a consent authority when it determines a development application to carry out development on land to which this Policy applies.

8   Matters for consideration

The matters for consideration are the following:

(a)  the aims of this Policy set out in clause 2,

(b)  existing public access to and along the coastal foreshore for pedestrians or persons with a disability should be retained and, where possible, public access to and along the coastal foreshore for pedestrians or persons with a disability should be improved,

(c)  opportunities to provide new public access to and along the coastal foreshore for pedestrians or persons with a disability,

(d)  the suitability of development given its type, location and design and its relationship with the surrounding area,

…

(j)  the likely impact of coastal processes and coastal hazards on development and any likely impacts of development on coastal processes and coastal hazards,

…

(p)  only in cases in which a development application in relation to proposed development is determined:

(i)  the cumulative impacts of the proposed development on the environment, …

28. Under cl 7(b) of SEPP 71 the consent authority is required to take into account the matters for consideration in cl 8 when it determines a development application to carry out development on land to which the Policy applies: Aldous v Greater Taree City Council [2009] NSWLEC 17; 167 LGERA 13 at [79].

29. Relevantly, the considerations that apply in cl 8 overlap with the considerations under s 55M and the [1988 LEP].

30. There are no other jurisdictional prerequisites that the Court must be satisfied of prior to granting consent.” (Emphasis added)

Findings - Jurisdiction

10. The legislation, as outlined in the parties’ agreed written submissions quoted above, invite me to make findings of fact on the evidence in relation to this DA in order to engage jurisdiction.

11. The proposed development is wholly on private land. The coastal protection works are intended to protect the applicant’s property against coastal processes.

12. The landowner has provided written consent to the making of this DA. The requirement for landowners consent arises by operation of cl 49(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Reg). The clause provides that a development application may be made by the owner of the land to which the development relates, or any other person with the consent in writing of the owner of the land.

13. I accept that the proposed development is permissible with development consent in the Zone No 7(f2) (Urban Coastal Land Zone), being proposed beach and coastal restoration works (as defined in the Dictionary in the LEP) under cl 9 of the 1988 LEP. Development for the purposes of a seawall or beach nourishment is also permissible with consent on the open coast under cl 129A of SEPP (Infrastructure).

14. I am satisfied that the proposed development is consistent with the objectives of the relevant land zoning 7(f2) (Coastal Land Zone) which is a relevant consideration under cl 9(3) of the 1988 LEP. I have formed this view based on the evidence including the coastal experts’ evidence in Addendum B of the JER. Based on the evidence it is clear that this urban land has and is likely to be influenced by coastal processes (zone objective (a)). The proposed development is consistent with the zone objective for continued safe public access to the site (zone objective (c)(iv)). It is also consistent with zone objective (b) in that it is low intensity development that will not be adversely affected by coastal processes.

15. Clause 88 of the 1988 LEP deals with development within the coastal zone.

16. Clause 88(1) identifies the relevant objectives within the coastal zone. The parties agree based on the evidence of the coastal experts in their joint report that the carrying out of the development is consistent with the objectives of the urban coastal zone.

17. Clause 88(2) provides that development consent must not be granted to the development on this site unless I have considered the matters listed in subclauses (a) – (f) (reproduced at par 17 of the parties’ agreed submissions – see pages 11-12 of this judgment). I have considered these together with the evidence and the parties’ agreed submissions as outlined based on the evidence (referred to below) and I believe that the development has responded appropriately primarily for the reasons submitted by the parties including:

1. Existing public access is maintained: JER at pars [6] & [9]-[10]);

2. The suitability of the proposed development and their relationship with the surrounding area, the development is for the repairs of an existing structure only;

3. The absence of any amenity issues on the coastal foreshore within the meaning of cl 88(2)(c);

4. In terms of the scenic qualities of the coast including coastal headlands, the proposal is for repairs of an existing structure only;

5. In terms of impact on biodiversity and ecosystems, the proposed conditions of consent ameliorate and manage any impacts that might arise (e.g. Condition 3 requires that the works must be carried out in accordance with the approved plans; Condition 4 requires surveys to be undertaken prior to the issue of a CC; Condition 9 details the construction methodology of the construction works; Condition 4(ix) identifies that no excavation on the beach is proposed).

6. In relation to cumulative impact, this is addressed in the joint report in Addendum A at pars [35]-[40]. The existing works have protected the property for 20 years (Addendum A at par [40] of JER – erosion of unprotected properties and observed “end effects” – do not necessarily mean additional erosion caused by the seawall. Complete removal of the section of seawall on the subject site is unlikely to reduce the magnitude of downdrift end effect: JER at pars [32] and [46].

18. Clause 88(3) of the 1988 LEP provides that development consent must not be granted unless the consent authority is satisfied that:

(a) the proposed development will not impede or diminish, where practicable, the physical, land based right of access of the public to or along the coastal foreshore, and

(b) …

(c) …

(d) the proposed development will not:

(i) be significantly affected by coastal hazards or

(ii) have a significant impact on coastal hazards or

(iii) increase the risks of coastal hazards in relation to any other land.

19. With respect of cl 88(3)(a), the application relates to the repair of an existing wall on private property, and as the experts conclude there is no impediment or diminution of the right of the physical land right of public access to or along the coastal foreshore by this application. That is the existing physical land based public access to or along the coastal foreshore is maintained by the development. There is currently no public access to or along the coastal foreshore from the development site as it is private land. With respect to access along coastal foreshore, access is provided and there is no impediment or diminishment of such access by the development. The parties submit that the fact that the works to repair the existing seawall is on private land is sufficient reason alone for cl 88(3)(a) to be satisfied. I agree with them and I am so satisfied.

20. That said, I appreciate that in reaching this state of satisfaction I have also had regard to the text of the subclause in context. The clause is not expressed in absolute terms. Access is to be provided by the development where “practicable”. Therefore, the clause anticipates circumstances where development will necessarily, impede or diminish the physical, land based access of the public to or along the coastal foreshore if it is “impracticable” not to do so. Grammatically, the words, “where practicable” relate directly to the development and the proposed works. In my assessment of the facts as explained to me by Mr Galasso SC and Ms Duggan SC, this development falls within that qualification. The existing seawall is described by the experts as rubble revetment. The proposed development is to place certain specified material within a defined profile on private land to protect both public and private property from coastal processes. The existing seawall has been in place for 20 years and is in need of maintenance to improve structural stability and to make it safe (Addendum B at par [46] of JER). That said the development is interim. It is subject to conditions for a “whole of embayment” solution (Conditions 10.1 & 10.2), and also conditions to provide for emergency access to members of the public from the beach (for the first time). The experts’ record in their report that the existing seawall was impacted by waves during a severe erosion event in 2016 and the present condition is such that the upper face of the wall is steep and rocks/concrete could be dislodged. The application has been made to repair and make safe the existing seawall. The experts agree that the beach is getting smaller and on that basis it is fair to say that the defined area of the development may not be available for these repair works if a large storms hits the coastline before the wall is repaired. Accordingly, based on the expert evidence before me I conclude that this interim protection measure is appropriate and to the extent that it offends cl 88(3)(a) (if it does which in this case I think not) it is not presently practical to avoid such a consequence. I accept the experts’ assessment that the proposed development will assist to prevent a breakthrough of Belongil Spit and assist to provide protection not only to the applicant’s private property, but also the environmentally sensitive estuary and wetlands landward of the development. It is not a practical approach to avoid any short term impacts on public access until the whole of embankment solution envisaged by the proposed conditions of consent (10.1 and 10.2) is in place.

21. I accept and find that subcll 88(3)(b) and (c) are not relevant.

22. With respect of cl 88(3)(d), based upon the expert evidence, I am satisfied that the development which is for the repair, reconstruction and ongoing maintenance of the existing seawall will not be significantly affected by coastal hazards over and above the status quo, and will not have a significant impact on coastal hazards or increase the risks of coastal hazards. In that regard the experts agree that:

“…[the] subject works are only a small part (about 40m) of about a kilometre of near contiguous artificial protection works [(seawall)] from Border Street to the northern most private property on Belongil Spit, with an additional 400m of [seawall] (and groynes) in the town centre at Johnson Street. Any erosion impacts of this relatively short 40m length of the existing wall are likely to be insignificant relative to the totality of structures, and the removal, or by allowing it to fail, of a single short seawall (such as the subject seawall) on this stretch would be unlikely to reduce of any impacts by the current [wall] and groynes”. (Addendum B, at par [41] of JER).

Moreover they conclude that there is no evidence that if there is any additional erosion at the Old Jetty site that such additional erosion can be attributed to the subject works (Addendum B at par [43] of JER). I accept, as Mr Carley notes the causes of erosion/recession are complex and uncertain (at par [15], Addendum B of JER). In the absence of a coastal management plan (CMP), and the adverse consequences of a breach or failure of the existing seawall (i.e. additional rocks and concrete being placed on the sandy part of the beach), the repairs to the existing structure may have some public benefit until such CMP plan is developed as it will provide protection for public and private infrastructure as well as a breakthrough of the ocean into the sensitive estuary and wetlands further inland: (JER at par [54]).

23. SEPP 71 applies to this site within the coastal zone. Clause 8 of the SEPP 71 lists certain matters for consideration which cl 7(b) requires me to take into account when determining this DA.

24. Clause 8(a) refers to the aims of the Policy which are set out at cl 2 of the SEPP 71.

25. As required I have taken all of the aims of the Policy in cl 2 into account in my determination of this development application and I am satisfied on the expert evidence that the proposed development achieves these aims (JER at pars [26]-[39]). Briefly stated, the expert evidence is that the proposed development does seek to protect and manage the natural, cultural, recreational and economic attributes of the NSW coast by protecting the built and natural environment protecting recreational beach as far as possible: cl 2(1)(a). And, in the absence of a CMP and as an interim measure it seeks to protect and improve existing public access to and along coastal foreshores to the extent that this is compatible with the natural attributes of the coastal foreshore: cl 2(1)(b). The development does not impede the achievement of the objective to ensure that new opportunities for public access to and along coastal foreshores are identified and realised to the extent that this compatible with the natural attributes of the coastal foreshore: cl 2(1)(c). Further, based on the expert evidence the proposed development is not visually intrusive and I accept that the visual amenity of the coast will be protected and cl 2(1)(e) is achieved. The development does protect and preserve the beach environments and beach amenity e.g. by removing rocks from the sandy beach: cl 2(1)(f). The type, bulk scale and size of the proposed development is according to the expert evidence considered to be appropriate and sensitive to the environment such that it protects and improves the natural scenic quality of the surrounding area that would be otherwise eroded and damaged by coastal processes. And, it will also protect and improve the natural scenic qualities of the surrounding area by ensuring that there is not breakthrough of the ocean into estuary and sensitive wetlands – it will require the removal of stray rocks from the beach: cl 2(1)(k). Additionally, it accommodates and encourages a strategic approach to coastal management by incorporating a “whole of embankment solution” when opportunity arises in accord with cl 2(1)(l).

26. In addition to the aims of the SEPP called up by cl 8(a), I have also considered the other matters listed in cl 8. Again, briefly stated, existing public access is maintained by this development for the public including those with disabilities and is improved because e.g. the sandy beach will be safer as the sea wall is less likely to collapse and stray rocks find their way onto the beach (JER at pars [6] and [9]-[10]): cl 8(b). Furthermore, the development allows for emergency access for the public which is new access (cl 8(c)). The development which is repair work to an existing sea wall is of a type, location, design and relationship with the surrounding area that is suitable. The expert evidence is that it is visually acceptable (cl 8(d)). There is no evidence that the development has any detrimental amenity impacts on the coastal foreshore, including significant overshadowing, loss of views from public place to the coastal foreshore (cl 8(e)). The development seeks to protect the scenic qualities of the NSW coast, and means to protect and improve these qualities by ensuring that there is not breakthrough of the ocean into estuary and sensitive wetlands – and the consent will require the removal of stray rocks from the beach (cl 8(f)). There is no evidence that the development impacts on the matters raised in subcll (g), (h), (i) (m) and (n) and there is no draft Council plan that I have been taken to in this case. The experts have dealt with the impacts of coastal processes and coastal hazards on the development and any likely impacts of the development on coastal processes, coastal hazards and the cumulative impacts considerations raised by cl 8(j) and they are satisfied I repeat the comments I have summarised in respect of their evidence on these issues at paragraph [22] of my judgment above which I believe adequately addresses these considerations in cl 8 also. There is no impediment in the SEPP to my approving of this DA.

23. The appeal requires the consent authority to be satisfied of the matters in s 55M of the CP Act.

24. In relation to s 55M of the CP Act (recited at par 8 of the agreed submissions (see pages 7-8 of my judgment) and for the reasons stated at pars 7-14 of the agreed submissions above which I do not need to repeat), I am satisfied, considering the agreed position of the parties and accepting the joint expert evidence as required by s 55M(a)(i) and (ii), that:

1. With the imposition of the conditions, and in particular Condition 10, the works will not over the life of the development unreasonably limit or be likely to unreasonably limit public access to or the use of a beach or headland, (s 55M(a)(i)); or

2. pose or be likely to impose a threat to public safety (s 55M(a)(ii)) and will with the imposition of the conditions requiring monitoring and maintenance of the works and the wall that the works rely upon will provide an improvement to public safety to that which presently exists.

3. Furthermore, I am satisfied as required by s 55M(b)(i) and (ii) that satisfactory arrangements have been made (by the conditions imposed on the consent) for the following for the life of the works:

1. the restoration of a beach, or land adjacent to the beach, if any increased erosion of the beach or adjacent land is caused by the presence of the works,

2. the maintenance of the works.

4. I am also satisfied that adequate funding has been secured for the carrying out of any such restoration and maintenance as required in accord with subs (1)(b) in accord with s 55M(2) including by either or both of the matters in subss (2)(a)(i) and (ii) and (b) and (3). In that regard I acknowledge as stated earlier in this judgment that that there is a Maintenance, Repair and Rectification Plan required by condition on the consent and also the requirement for an irrevocable bank guarantee to Crown Lands in the sum of $20,000 to cover the works in accordance with the maintenance plan in specified circumstances when the seawall is damaged. The property owner is also required to register on the title of the private property a public positive covenant requiring the owner to comply with the obligations of the development consent, ant to comply with the obligations of the maintenance plan.

29. For completeness, the Court notes that:

1. the application was publicly exhibited on 7 March 2018;

2. by email on 29 November 2018, the amended plans which the Court granted leave to the Applicant to rely upon on 2 November 2018 were publicly notified. The emails of 29 November 2018 also notified members of the public of the hearing and informed that they were entitled to provide evidence to the Court in either written or oral form. No member of the public requested to provide further evidence to the Court; and

3. Government agencies were notified of the amended plans by letter of 4 November 2018.

30. The Court also notes that it has been provided with copies of written submissions from the public and submissions from Byron Shire Council, the NSW Office of Environment and Heritage and the National Parks and Wildlife Service.

31. The Court also notes that it has been provided with a letter dated 12 December 2018 from NSW Department of Industry – Lands and Water to the Respondent providing landowner’s consent to the amendment of the plans insofar as they relate to access to the construction site through land owned by NSW Department of Industry – Lands and Water (being the land known as the Old Jetty Site).

32. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

33. The Court orders:

1. The appeal is upheld.

2. Development Application number CP 17-006 to undertake repairs within the private property at Lot 2 Section 2 of DP 1623 and SP65430, being 1 and 1A Don Street, Byron Bay, to the existing seawall located on the private property and the public reserve known as The Esplanade is approved subject to the conditions found in Annexure A.

3. Except in respect of any existing cost order which has been made, each party is to bear its own costs of these proceedings.

4. The Applicant is granted leave to rely on BSR – DS5 – UW – 011 Vehicle Access Plan Rev B dated 18 December 2018.

…………………………….

S Dixon

Senior Commissioner of the Court

Annexure A

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Endnote

Decision last updated: 12 February 2019