Land and Environment Court New South Wales

• Medium Neutral Citation: Newton and anor v Great Lakes Council [2013] NSWLEC 1248
• Hearing dates: 24 and 25 October 2013 with written submissions by 15 November 2013
• Decision date: 20 December 2013
• Before: Moore SC

Decision

See para (58)

• Catchwords: DEVELOPMENT CONSENT: Reasonableness of conditions of consent: climate change; coastal hazards; beach erosion
• Legislation Cited: Environmental Planning and Assessment Act 1979; State Environmental Planning Policy 71 - Coastal Protection; Great Lakes Local Environmental Plan 1996
• Cases Cited: Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142
• Category: Principal judgment
• Parties: G & L Newton (Applicants); Great Lakes Council (Respondent)
• Representation: Mr M McMahon, solicitor (Applicants); Mr T Pickup, solicitor (Respondent); M. E. McMahon & Associates (Applicant); Local Government Legal (Respondent)
• File Number(s): 10605 of 2013

Judgment

Introduction

1 SENIOR COMMISSIONER: Winda Woppa is a narrow settled peninsula on the northern shores of Port Stephens and on the eastern side of the mouth of the Myall River. The peninsula is accessed by driving through Hawks Nest, a more major settlement to Winda Woppa's north-east. Jimmy's Beach runs along the shoreline of Winda Woppa in a crescent shape with a generally southerly aspect.

2 The likelihood of sea level rise and the potential of consequential risk of damage to buildings in the vicinity of the foreshore is at the heart of this dispute concerning the conditions attached to an approval given by the Great Lakes Council (the Council) for the construction of a new dwelling at Winda Woppa.

3 The site of the proposed new dwelling has its frontage to The Boulevarde, the road that runs along the frontal dunes of Jimmy's Beach.

4 Jimmy's Beach, particularly the portion immediately opposite the site across The Boulevarde, because it has its aspect toward the mouth of Port Stephens, has suffered severe storm erosion in past. Jimmy's Beach has required extensive sand replenishment as a consequence of storm surges in the recent past. The Boulevarde itself has been undermined in part by past storm surges.

5 During the course of the site inspection, a photograph was taken (and subsequently became Exhibit J) that shows much of the section of Jimmy's Beach in the vicinity of the site - portion that has been extensively sand replenished in the recent past. This photo is reproduced below:

The development consent for a dwelling

6 In July 2013, the Council granted development consent for the erection of a dwelling on the site. The dwelling is proposed to be set back from the street in a fashion that appeared, during the site inspection, to be broadly consistent with the adjacent dwellings on each side and consistent with the general setback pattern along The Boulevarde in the vicinity.

7 An advice from the applicant's consulting engineer makes it clear that the slab design for the dwelling is a conventional one (Exhibits B and 5) and does not incorporate any additional design features in anticipation of any future coastal erosion impacts that might arise as a consequence of increased coastal hazards resulting from climate change and sea level rise.

8 The current and applicable local environmental plan is Great Lakes Local Environmental Plan 1996. The relevant development control plan is Hawks Nest - Low Density Residential Development Control Plan No 48 (the DCP). A new local environmental plan is in the process of finalisation.

9 In the immediate context of this development application, I consider I am entitled to presume, absent any documentation which would cause me to presume to the contrary (of which there is none in evidence in these proceedings), that in its determination to grant development consent, the Council considered all matters that it was relevantly required to consider in its deliberative processes before making such a determination - including all relevant matters raised by the documents noted in (8) above.

10 The presumption of regularity in the granting of the development consent requires me to assume that the Council considered and, in reaching the decision to grant the development consent, was satisfied about the matters mandated for consideration in Great Lakes Local Environmental Plan 1996, the DCP and those matters raised by cll 5.5 and 7.9(3) of the 2013 Draft Local Environmental Plan to the extent that they were required to be addressed (assuming that the views expressed by Pepper J in Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 are correct concerning cl 1.8A of such draft plans in its now standard form - a matter which does not, perhaps fortunately, require my analysis in these proceedings).

11 Because of the Council's presumed consideration of the broad policy matters arising in these three documents and the presumed satisfaction with the matters that arise therefrom, it is not necessary for me to undertake a detailed analysis to reach my own satisfaction on those points as these proceedings are concerned solely with the reasonableness or otherwise of two of the conditions that the Council has attached to the consent that it has granted for this dwelling.

The contested conditions

12 As the site is zoned 2(a) Low Density Residential under the Great Lakes Local Environmental Plan 1996, the erection of a dwelling is permissible with consent on this site. The site has an area of 562.8 m2.

13 The development application was lodged in mid-March and was considered by the Council at a strategic planning meeting on 9 July 2013 and granted approval subject to conditions. The notice of determination was issued on 19 July 2013 and the Class 1 appeal against conditions 7 and 8 was filed on 9 August 2013.

14 The Great Lakes Local Environmental Plan 1996 contains, in cl 27, restrictions on development on the Winda Woppa peninsula. None of the restrictions that are contained in that clause impose any additional restrictions on development on the site above those that would arise from a consideration of ordinary development matters and matters that would ordinarily a rise under State Environmental Planning Policy No 71, Coastal Protection (the SEPP). The particular matters that are called up by the SEPP are cl 2 that sets out its aims and the matters for consideration in cl 8 that are mandated to be considered, by cl 7, these arising both contemporaneously when the council determined this development application (cl 7(b)) and when the council prepared its draft local environmental plan, draft Local Environmental Plan 2013 (cl 7(a)).

15 The provisions of the DCP that are relevant to this site, in particular, are set out in Part 3 under the heading Environmental Hazards. The stated objective for this element of the DCP is:

To ensure people and assets are safeguarded from risks associated with coastal hazards and flooding; sea level rise; bushfire; acid sulphate soils; and stormwater.

16 The DCP then sets out to controls that are applicable under each of these headings. The controls under the heading Coastal Hazards and Flooding are as follows:

A linear sea level rise of 0.91 m to the year 2100 is to be taken into account.

For development proposals on the Winda Woppa peninsula, a report from suitably qualified geotechnical engineer and an engineer specialising in coastal marine processes shall be required, to determine suitable measures for protection of the building against coastal erosion in recession, changes in storm frequency and intensity and sea level rise.

17 This portion of the DCP also includes a commentary concerning the Winda Woppa peninsula. Although the commentary does not contain any operative provisions and is purely descriptive, it is appropriate to be set out in this decision - given that the provisions of the DCP informed, at least in part, the council's decision-making process for the application for erection of a dwelling on the site. The commentary is in the following terms:

The land on the Winda Woppa peninsula has been and continues to be subject to severe coastal erosion.

The Winda Woppa area has been subject to a moratorium preventing further building works during the period from 10 July 1984 to 14 November 1989. The reason for the moratorium was that Jimmy's Beach is a recession area and subject to severe erosion.

The Council has carried out expensive sand renourishment works and has resolved to continue to do so. The restriction on building has therefore now been lifted on the basis that renourishment works will continue. It should be noted that if Council had not carried out these expensive renourishment works then it is highly likely that severe damage to property and dwellings along the beach area would have already occurred and eventually all properties on the potential would be affected adversely.

The approval by Council to allow building on the peninsula is subject to these works continuing and accordingly special local contributions in addition to normal rates may be required in the future to supplement available funds from Council and Government to protect the property from erosion damage. The extent of future contributions may be somewhat dependent on erosion rates.

18 Although s 79C(3A) applies because of the date of lodgement of the application, nothing turns on this given the lack of specific application of the DCP's controls to what was applied for in this instance.

19 As the site falls within the coastal zone as defined by State Environmental Planning Policy 71 - Coastal Protection (the SEPP), cl 7(b) of the SEPP operates to mandate that the matters set out in cl 8 of the policy are to be taken into account by the Council when determining a development application for this site. The presumption of regularity earlier referred to also permits me to assume that those matters were appropriately considered by the Council in its process for determining that consent should be granted to this dwelling. The applicability of the SEPP is noted on any s 149(2) planning certificate issued by the Council but no detail was provided of any specific nature.

20 When the Council gave approval for the proposed dwelling on the site, the conditions of development consent included two provisions (conditions 7 and 8) that the Council considered were appropriate to account for the risks of coastal erosion as a consequence global warming and of sea level rise resulting from climate change in coming decades. In doing so, the Council considered that these two conditions were appropriate to be imposed pursuant to s 80A of the Environmental Planning and Assessment Act 1979 (the Act).

21 The relevant conditions of development consent are in the following terms:

(7) Time limited consent

Development consent shall be limited to a period of twenty years and shall expire on 9 July 2033. Sixty days prior to consent expiry, the owner's consultant shall undertake a review of coastal controls, including but not limited to long-term recession and storm erosion, both current and projected at the time. The review report shall be submitted to Council for consideration not later than thirty days prior to expiry. If appropriate, the review may recommend a continuation of the consent for an extra period of time consistent with evidence and coastal hazard predictions at that time.

Note: An extreme coastal storm occurring at any time in the future, and being beyond Council's response capability may nonetheless cause severe structural damage and therefore require demolition and removal in the interests of public and resident safety.

Reason: To allow reasonable expectation of development under current uncertainties in relation to beach renourishment and the resulting effective hazard lines.

(8) Structural details for 2060 sea level rise conditions

Footings and foundations must be designed and constructed to ensure continued support of the building structure consistent with the 2033 sea level rise conditions (hazard line and zone of reduced foundation capacity).

Reason: To ensure structural stability and safety and to avoid increased erosion of adjacent properties during a design storm event.

22 In the Council's statement of facts and contentions in reply, with respect to condition 8, the Council said:

Although the heading in condition 8 mistakenly refers to the 2060 sea level rise conditions, the conditions is correctly referring to 2033 sea level rise conditions.

Coastal erosion studies

23 The Council has commissioned two substantive coastal hazard studies. The first is for Blueys and Boomerang Beaches, a locality within the Council's area some 50 kilometres to the north as the crow flies. The second is for Jimmy's Beach, the beach that is fronted by the site (it being only separated from the beach by the width of The Boulevarde). Both these coastal hazard studies have been provided to the Council. The Blueys and Boomerang Beaches Study was provided in early 2012 and the Jimmy's Beach Study later in 2012 (but over a month prior to the applicants contracting to buy the site).

24 As at the time of the hearing, the Council had considered the Blueys and Boomerang Beaches Study and, amongst other things, had resolved that a notation appear on any s 149(2) certificate for Blueys and Boomerang Beaches' properties. The notation is in the following terms (Exhibit 10):

Council's policy requires that dwellings erected on the first row of lots adjacent to Blueys and Boomerang beaches shall be located at a minimum setback of 15 metres from the eastern boundary such that the risk from coastal erosion is minimised. Further development restriction may also be imposed after application of the New South Wales Planning Guidelines adopting the sea level rise on the land as it is identified as having reduced foundation capacity under Council's 2060 sea level rise projections.

25 As at the time of hearing this appeal, the Council had not considered the Jimmy's Beach Study and, consequently, had not adopted any notation to appear on s 149(2) certificates issued for properties along The Boulevarde or elsewhere within this locality.

Condition 7

26 I have set out earlier, the matters it is appropriate to assume were considered by the Council in reaching its decision to impose condition 7.

27 However, for the purposes of considering whether or not it is reasonable to maintain condition 7 in its present form or at all, it is also appropriate to consider, in the necessary balancing act to determine the reasonableness or otherwise of maintaining the condition, the nature of other development in the locality; what might be the consequences of removal or modifying the condition in light of my conclusion, discussed below, that condition 8 should remain and the extent to which, in the context of development in the locality, the applicants were or ought to have been on notice that this condition or one similar to it might be imposed on any development on the site for which consent might be sought.

28 It is appropriate, prior to commencing this analysis, to repeat the terms of condition 7:

(7) Time limited consent

Development consent shall be limited to a period of twenty years and shall expire on 9 July 2033. Sixty days prior to consent expiry, the owner's consultant shall undertake a review of coastal controls, including but not limited to long-term recession and storm erosion, both current and projected at the time. The review report shall be submitted to Council for consideration not later than thirty days prior to expiry. If appropriate, the review may recommend a continuation of the consent for an extra period of time consistent with evidence and coastal hazard predictions at that time.

Note: An extreme coastal storm occurring at any time in the future, and being beyond Council's response capability may nonetheless cause severe structural damage and therefore require demolition and removal in the interests of public and resident safety.

Reason: To allow reasonable expectation of development under current uncertainties in relation to beach renourishment and the resulting effective hazard lines.

29 It is to be observed that, in functional terms, condition 7 effectively imposes two obligations on whomsoever is the owner of the property in 2033. The first, although subject to the hope of a reprieve pursuant to the second, is the obligation to cease using the dwelling at the time of expiry of the consent.

30 The hope of reprieve lies in the second half of the condition whereby the Council holds out the potential - subject to the then owners undertaking a coastal hazard study, the results of which might provide an appropriate foundation for the Council to do so - of approval for some further occupation of the dwelling either on an indefinite basis or on some further time restriction basis (and, of course, subject to whatever might be the legal planning regime in effect at that time).

31 There are, however, a number of factors weighing in favour of the applicants on this point. The principal one is that development along The Boulevarde has been taking place for many years and there does not appear to be any likelihood of further significant development along The Boulevarde.

32 From my observation, there were no other vacant blocks in the immediate vicinity of the site. The pattern of development in the immediate vicinity generally has consistent setbacks from the road - with the road, itself, having a generally consistent setback from the beach on the frontal dunes.

33 If the risks that are foreshadowed in the Jimmy's Beach Hazard Study come to pass, this dwelling, by virtue of the maintenance of condition 8, will be better protected for its structural integrity than either of the neighbouring properties.

34 Had this been a greenfields area with a new subdivision proposed, significantly different public policy considerations would likely arise. However, this is not the case for this application and, in my view, greater than ordinary considerations should apply if there is to be an extraordinary condition of this nature imposed given the existence of extensive development in the vicinity not subject to such a time limit on their consents.

35 The applicants in these proceedings bought the site in October 2012. The contract for sale was Exhibit G in the proceedings. The contract documentation is unexceptional and includes a planning certificate issued by the Council pursuant to s 149(2) of the Environmental Planning and Assessment Act. Some limited information would have been available had the certificate incorporated the information that would have arisen pursuant to s 149(5) if it had been sought - but that was not the case. Conventionally, such supplementary information is not routinely obtained for conveyancing purposes.

36 Although the more limited planning certificate did disclose that the SEPP applied, such a disclosure was purely of a general nature and foreshadowed no prospect that further controls could potentially specifically arise as a consequence of any hazard study being undertaken for the locality within which the land the subject of contract was located.

37 Further, on the broad issue of disclosure, the Jimmy's Beach Hazard Study itself, although received by the Council by this time, had not been made available for public information.

38 Whilst the internal Council processes for analysing such a report are likely to take time and a Council policy response to it could not be immediate (and would be unreasonable to be expected without proper analysis and consideration, including consideration of any public submissions that might be made about the document and appropriate policy responses to it) nonetheless this cannot set aside the fact that, in this instance the report had been received; a report on the same broad range of issues from the same consultancy had been received concerning the Bluey's and Boomerang Beaches precinct; and policy decisions had been taken by the Council based on that report.

39 Whilst the processes that were followed after the receipt of the Jimmy's Beach Hazard Study were entirely conventional ones, the fact that, in the circumstances of the potential consequences for people such as these applicants, the absence of the availability of that information in the public domain is also a factor warranting consideration on this condition (although not, in my view, relevant to be considered in the context of condition 8 - as condition 8 deals with proper engineering design issues appropriate for a particular site rather than the more substantial policy issue of whether development should be permitted to remain, potentially, at all, at a point defined by a policy study that, in itself, acknowledges that its projections are likely to be the subject of further refinement as the science improves and measurable baseline data becomes available).

40 Although condition 7 is cast in terms that hold out a prospect of some future reconsideration of its impact toward the time that the Damoclean Sword is scheduled to drop, the burden that is placed on whoever might be the owners of the dwelling at that time is a not insignificant one, potentially, with no certainty that, should such study conclude that the prohibition should not come into effect either for some further period of time or at all, there is no guarantee of extension (and cannot be any guarantee as present decision makers cannot bind the hands of their future successors on such matters). Holding out such an illusion of hope, in itself, is unreasonable in circumstances where the outcome is highly speculative.

41 Balancing (and adopting) the matters presumed to have been taken into account, quite properly by the Council (setting aside entirely the point of whether the Draft Local Environmental Plan was required to be considered), on one hand, with the range of matters militating against maintaining the condition (discussed above), on very fine balance, condition 7 does not warrant retention. This is primarily because the condition is so out of context with that imposed on the surrounding existing developments. The other factors merely add weight to this.

42 However, this conclusion is itself only able to be supported if, for the reasons discussed below, condition 8 is retained.

Condition 8

43 The applicant's structural engineer, Mr Kidd, conducted a joint conference with Mr Love, an Investigations Engineer employed by the Council. This joint conferencing process was directed at considering the appropriateness or otherwise of the imposition of condition 8 relating to the structural footings systems proposed for the dwelling.

44 Critical to my assessment of the reasonableness of the imposition of this condition is the opinion expressed by Mr Kidd in the joint report (Exhibit 5), an opinion that is in the following terms:

It is my opinion that the current design is adequate for current normal conditions. Based on the supplied information, if the coastal erosion modelling was to be adopted and therefore erosion were to extend across the subject property, the proposed foundation system would be inadequate to support the dwelling under these conditions. My opinion relates to the structural footings systems only and not to the validity, accuracy or implementation of the coastal erosion mechanisms, outlined in the expert reports.

45 The position that necessarily flows from this evidence is that, if I am satisfied that:

• the coastal hazards data demonstrates that there is a reasonable prospect of risk to the structural integrity of the dwelling as a consequence of coastal hazards occasioned by sea level rise (that is I am satisfied that the 2033 hazard line adopted by the Council as postulated would be located on the site is an appropriate hazard assessment point); and
• I consider it reasonable and appropriate that additional measures be undertaken in construction of the footings for the dwelling to protect against that event

then condition 8 is appropriate to be imposed.

46 During the course of the site inspection, I had the benefit of hearing evidence given informally by Mr Love and by Mr Messiter, Principal Coastal Engineer at SMEC. Mr Messiter had been retained by the Council to provide evidence concerning the two coastal hazard studies that had been undertaken by his employer under contract to the Council. Of relevance to be noted, from the summary of this discussion (Exhibit 6) is that:

• The Boulevarde has been undermined by 1 - 2 metres on the seaward shoulder on what was understood to be three or four occasions on the past during severe storm events.
• The particular location on Jimmy's Beach opposite the site will continue to be subject to intermittent higher energy wave events due to the exposure to ocean swell events from particular directional sectors penetrating the entrance to Port Stephens.
• Accordingly high rates of erosion and foreshore recession will continue to be observed.
• The 2033 hazard line identified by Council is appropriate;

47 As I understood their evidence, a range of alternative foundation solutions are available that would satisfy condition 8.

48 The Council provided a bundle of photographs (Exhibit 8) depicting June 2007 and 2008 storm event impacts on The Boulevarde in the immediate vicinity of the site. One of them shows the undermining of portion of the pavement of The Boulevarde in June 2008. A copy of that photograph is reproduced below:

49 The applicant did not provide any evidence that questioned the validity of the 2033 hazard line. The Council produced marked up air photos showing the site and the present hazard line and present zone of reduced foundation capacity line. It is reproduced below:

50 This photograph formed part of Exhibit 7, the second part of which comprised the same air photo marked with the 2060 hazard line and the 2060 zone of reduced foundation capacity line. This second photograph in Exhibit 7 is reproduced below:

51 Because the incremental rate of creep of these two hazard lines across the property is an arithmetical one (that is one at a constant and not increasing rate), the hypothesised 2033 lines would be at approximately two-fifths of the distance across the allotment from the 2013 lines towards the 2060 lines. A comparison of these air photos with the approved plans that form part of the Class 1 appeal papers (Exhibit F) makes it obvious that, in 2033, the zone of reduced foundation capacity line will be at or slightly beyond the most shoreward extent of the slab upon which the dwelling is proposed to be erected.

52 Although the precision with which these lines are drawn may be subject to revision (as time and better scientific understanding of climate change permits their refinement), nonetheless the broad underlying suppositions about the likelihood of climate change and its impacts are not open to question.

53 The position that therefore arises is that, by 2033 (with adjustments either backward or forward in light of better calculational precision or evolution in knowledge), there is a real and not insignificant risk that storm events could impact on the structural stability of this dwelling if conventional foundation construction standards, as by the applicant as a consequence of seeking deletion of condition 8 as proposed, were to be adopted.

54 Given that I have concluded that it is unreasonable to impose a time limited consent of the nature proposed by condition 7, it is reasonable to assume that, in the absence of some destructive event, continued occupation of the dwelling can be anticipated after 2033.

55 If this were to be the case, it would be completely irresponsible, in light of Mr Kidd's evidence, not to incorporate reasonable precautionary measures at the time of construction. Such precautionary measures are not only desirable in the interests of those who are occupants of the dwelling but also in the broader public interest (for example, to ensure that there would be not sudden failure of the structure in the fashion that might cause representatives of public authorities such as the State Emergency Service to be put at risk in effecting any rescue that might be necessary for occupants of the dwelling).

56 It therefore follows that the inevitable corollary to the removal of condition 7 is the necessity to retain condition 8.

Conclusion

57 In summary, although I am satisfied that it is inappropriate to impose condition 7 (although there is no legal impediment to doing so), it follows for the reasons that were earlier set out that the removal of this condition makes it essential that condition 8 (requiring appropriate precautionary standards to be applied to construction of the footings for the dwelling) remain as a condition of consent for the erection of this dwelling.

Orders

58 In light of the foregoing, the orders of the Court are:

(1) The appeal is upheld;

(2) Development consent for the erection of a dwelling at 49 The Boulevarde, Hawks Nest is modified by the deletion of condition 7 only; and

(3) The exhibits, other than Exhibits 1, F and G, are returned.

Tim Moore

Senior Commissioner

Decision last updated: 07 January 2014