Tipaza Pty Ltd v Sutherland Shire Council

[2008] NSWLEC 1358

Land and Environment Court

of New South Wales

CITATION:

Tipaza Pty Ltd v Sutherland Shire Council [2008] NSWLEC 1358

PARTIES:

APPLICANT
Tipaza Pty Ltd

RESPONDENT
Sutherland Shire Council

FILE NUMBER(S):

10588 of 2008

CORAM:

Taylor C

KEY ISSUES:

Development Application :- s34(5) conciliation conference for a waterfront development

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Sutherland Shire Local Environmental Plan 2006

DATES OF HEARING:

25/08/2008

 
DATE OF JUDGMENT: 

4 September 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr S. Kondilios, solicitor
of Maddocks

RESPONDENT
Ms J. Amy, solicitor
of Sutherland Shire Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Taylor C

4 September 2008

10588 of 2008 Tipaza Pty Ltd v Sutherland Shire Council

JUDGMENT

Background

1 This appeal arose following the refusal by Sutherland Shire Council of an application by Tipaza Pty Ltd for a waterfront development.

2 The matter before the Court on August 25 2008 initially commenced on-site as a s34 conciliation conference. The parties could not come to agreement so the conference was terminated. The parties agreed to the matter proceeding to adjudication by the Court under s34 (4)(b) of the Land and Environment Court Act 1979. This judgment is under s34 (5) of the Act. The parties agreed that I could have regard to the evidence and submissions from the s34 conciliation conference phase of the proceedings.

The Proposal

3 The proposal is for a waterfront development comprising the removal of a stone groyne and stone ramp and the construction of a new floating pontoon, new jetty and open mesh deck and new mesh ramp. Adjoining the stone groyne and stone ramp, there is a well maintained boatshed and sandstone seawalls and steps that once led down to a bathing enclosure, that was in use from at least 1913 until around 1983. The parties have identified these as heritage items.

Site location

4 The site is located on the eastern foreshore of Gymea Bay, Sutherland Shire where there is a cluster housing development that will share the use of the proposed structure. The adjacent foreshore area contains numerous other waterfront structures including inter alia, jetties, boat ramps, pontoons, ramps boathouses and other building developments.

5 The original development application raised a number of issues/contentions that can be summarised as:

(a) The development application would have adverse impacts on heritage and scenic value of the waterway due to removal of the rock groyne and boat/skip ramp.

(b) The development application would have adverse impacts on seagrass due to the construction of the new jetty and pontoon.

(c) Insufficient information was available to the Council with respect to the extent and nature of the development to enable proper assessment of the application to be carried out.

(d) Objections from adjacent residents were raised with respect to the proposed length of the jetty, ramp and pontoon.

6 The relevant statutory planning framework and controls are the Sutherland Shire Local Environmental Plan 2006 (SSLEP 2006). The proposed development is permissible with consent in Zone 16 (Environmental Protection (Waterways)). The objectives of Clause 11 Zone 16 (1) (Environmental Protection (Waterways) are:

(a) to recognise the importance of the waterways of Sutherland Shire as an environmental and recreational asset,
(b) to ensure development is carried out in a way that protects the ecology, scenic value or navigability of the waterways,
(c) to ensure aquatic environments are not adversely affected by the recreational use of the waterways,
(d) to allow private development only where it does not reduce or hinder the use of public beaches, intertidal areas or the waterways,
(e) to provide for viable aquaculture in the waterways.

7 Clause 11 Zone 16 (3) provides for the following development only with consent:

Development (other than development included in item 2) for the purpose of:
aquaculture, beach and foreshore protection works (if carried out by a public authority and authorised by a plan of management under the Local Government Act 1993 ), berthing areas, ferry operations, marinas, passenger transport facilities, public pedestrian access to facilitate recreational use of the waterway, scientific research associated with native habitats, utility installations (except for gas holders or generating works), watercraft facilities, wildlife refuges.

8 Schedule 6 of the SSLEP 2006 (B350) lists the Binda Road boat shed, stone ramp, groyne and salt water bathing enclosure remnants as an item of local heritage significance. The relevant Heritage objectives as listed under Clause 54 (1) of the SSLEP are:

(a) to conserve the environmental heritage of Sutherland Shire,
(b) to conserve the heritage significance of heritage items, including associated fabric, settings and views.

9 This proposal for a waterfront development also invokes the need to consider Clause 54 (2) of the SSLEP:

Development consent is required for any of the following:
(a) demolishing or moving a heritage item,
(b) altering a heritage item, including (in the case of a building) making changes to the detail, fabric, finish or appearance of its exterior.

10 Since the items at the foreshore of 17-19 Binda Road are specifically listed as artefacts of local heritage significance in Schedule 6 of the SSLEP 2006 (B350), consideration of Clause 54 (9) is also necessary as part of the relevant development controls:

The consent authority may, before granting consent to any development on land on which a heritage item is situated, require a heritage impact statement to be prepared.

Objectors

11 The parties as well as local objectors viewed the site of the development application on the morning of the August 25 2008. A conference between the parties on the site resulted in agreement with respect to issues/contention (b) and (c) as the applicant agreed to amendments and conditions with respect to the proposal.

12 The only issues that remained in contention were whether the heritage item (the rock groyne and boat/skip ramp) should be retained along with the objectors concerns.

13 Mr Davies (on behalf of himself and Mrs Davies of 11 Binda Road), objected that the proposed application would restrict access to the waterfront structures to the north and that the proposed structure needed to be reduced in length to permit easier navigation.

14 In response to Mr Davies’ objections the applicant offered as part of their conditions to reduce the length of the boat ramp by 300 mm. The Council accepted the applicant’s amendments to the proposed development application as part of its conditions of consent. The applicant was concerned that further reduction of the length of the proposed pontoon would mean that his boat would not have the minimum of 600m at the Indian Spring Low Water (ISLW).

15 Mr Davies remained concerned that the amended jetty ramp and pontoon length (reduced to 9400 mm – measured from the existing boatshed) would still restrict access to his pontoon from the southeast.

16 The Department of Lands advised the Council in correspondence that the removal of the rock groyne and boat/skip ramp would be required because:

The department’s Land Assessment for the subject area of waterway limits the number of access facilities that may be included in a holding. In this respect, the proponent may have a jetty, ramp and pontoon structure or a slipway/ramp. But not both.

Departmental requirements for the removal of the groyne and ramp are fundamental to the establishment of a jetty, ramp and pontoon at this location.

As the Council wishes the heritage items to be retained, Council’s refusal of the Development Application is endorsed.

17 The heritage contentions raised by the Council to retain the rock groyne and boat ramp/skip is consistent with the Heritage objectives as listed under Clause 54 (1) of the SSLEP.

18 The Heritage experts for the Council and applicant provided on-site evidence as to the value of the items in addition to a Heritage Impact Statement (Graham Brooks and Associates). This is in accordance with Clause 54 (9) that states the consent authority may require a heritage impact statement to be prepared.

19 The evidence provided by the Applicant’s heritage expert noted that the removal of the rock groyne and boat ramp/skip will have a negative impact on the heritage significance of the site but these could be fully mitigated by their retention. The Council’s heritage expert concurred and noted that their collective sum was much more important than the survival of individual elements and that they should be retained as whole due to their local significance. Council’s heritage expert also noted that there was direct historical association with the former NSW Premier and Commonwealth Governor General W.J. Mckell who once held a Permissive Occupancy Licence for the Binda Road boathouse and baths.

20 The removal of the rock groyne and boat/skip ramp was the preferred outcome of the Department of Lands (letter dated 14 May 2008), while the Council’s desire was to retain the features due to their heritage value. The Department of Lands were not present at the s34, though correspondence with the Council (10 July 2008) indicated that they supported the Council’s decision to not remove the heritage items and their concomitant decision to refuse the original development application. Because contention (a) was not resolved, the conciliation conference was terminated and both parties agreed to the matter proceeding to an adjudication (s34 (b)).

Assessment and findings

21 I have considered the resident’s objections to the proposal. I find that depending on the size of any boat accessing the proposed pontoon for 17-19 Binda Road, there may be a possibility of more restricted access from the southeast despite a reduction in the length of the applicant’s pontoon by 300mm. However, examination of the site indicated that Mr Davies’ pontoon would still be readily accessible from the northwest. I do not consider this to be a sufficient enough reason to not allow the appeal.

22 With reference to the Department of Lands wish to remove the rock groyne and boat/skip ramp as part of any future approval of the proposal, I have considered Clause 18 (2) (b) of the SSLEP 2006, the nature of permissible development in Zone 16 (SSLEP 2006) and the aforementioned heritage aspects.

23 The area within the vicinity of the proposed development at Binda Road, Gymea Bay is replete with a variety of boat ramps, pontoons and related structures that protrude at varying distances into the bay. In addition, it was noted that to the northwest at some 150m, lot number 43 Kiwong Street extends beyond the proposed footprint of the new structure that forms part of the development application. Further, the immediate catchment area for the development application site as well adjacent foreshore areas is significantly urbanised and the natural runoff to the bay in this area and related soil infiltration patterns have been altered as a consequence.

24 Inspections of the foreshore area around the development application site shows that sea grasses (Zostera and Posidonia spp) are present in relative abundance despite the presence of the existing rock groyne and boat/skip ramp. Zostera spp is a dynamic and adaptable seagrass that can tolerate a wide range of environmental conditions and is found commonly in the estuaries of eastern Australia. Posidonia spp is endemic to the temperate waters of southern Australia and is a long-lived and productive seagrass that is found in permanently open bays and lagoons.

25 The effect of the aforementioned structures coupled to the consequences of urbanisation is that natural processes in this section of the bay have been permanently altered. Notwithstanding these effects sea grasses are present in relative abundance in the vicinity of the proposed development. Further, there are substantial non-impacted areas of the bay remaining to the south of the site along the fringes of the Royal National Park.

26 While there is a potential inherent conflict between the development proposal (including the removal of the groyne and boat ramp/skip) and the retention of the heritage items it is necessary to balance the various objectives of the SSLEP so as to facilitate appropriate and optimum development, heritage and environmental outcomes. It is clear that development of this type is permissible in Zone 16 of the SSLEP and that objectives of Clause 54 (1) (b) require the conservation of items of heritage significance.

27 Given that the groyne has significant heritage value as agreed by the experts and that the development application could accommodate its retention through the overlaying of the new jetty and pontoon over the existing boat/skip ramp, I see no reason to justify its removal. The Heritage objectives of Clause 54 (1) are satisfied by its retention as the new jetty and pontoon will be incorporated with the existing watercraft facilities. This outcome is not inconsistent with Clause 18 (2) (b) of the SSLEP 2006 and the Department of Lands advice that no additional new facilities are created for this holding. Further, approval of the development and retention of the heritage items is unlikely to adversely affect the extant sea grasses.

28 The collective environmental limitations arising from urbanisation of the catchment and foreshore areas described above will not be alleviated significantly by the removal of the heritage items. Consequently, there is no reason to not retain the heritage aspects of this site while approving the development application, since this will achieve dual objectives without deleteriously affecting the current and future ecological functioning of the foreshore areas.

29 These heritage items have been listed specifically in Schedule 6 of the SSLEP 2006 and their retention meets the relevant objectives Clause 54 (1) (a, b) of the SSLEP 2006:

(a) to conserve the environmental heritage of Sutherland Shire,
(b) to provide flexibility in the application of standards for development or permitted uses of land to enable appropriate conservation of heritage items.

30 I have decided that the existing rock groyne and boat/skip ramp should be retained and the new jetty and pontoon overlain and integrated with this structure as agreed between the parties. I find that the foreshore will retain as much natural functioning as is practicable (Clause 18 (2) (b)), bearing in mind the effects of urbanisation and various other waterfront developments already present in Gymea Bay.

31 I have decided that the deferred commencement conditions should include amended plans to provide certainty and clarity to the proposal:

The plans are to be amended to the satisfaction of the Council to reduce the length of the jetty/pontoon structure by 300 mm and to reduce the width to a maximum of 1.5m. The plans are to show the retention of the existing heritage item consisting of the rock groyne and stone ramp.

32 The applicant agreed as part of the deferred commencement condition to a Positive Covenant over the heritage item and to the submission of a Conservation Management Plan, which is consistent with Clause 54 (9) of the SSLEP.

33 The orders of the Court are therefore:

1. The appeal is upheld subject to the conditions in Annexure A.
2. The exhibits except Exhibit A may be returned.
________________________
Dr Mark Patrick Taylor
Commissioner of the Court
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