A development application, the coastal seawall and considering relevant factors
In Platford v van Veenendaal and Shoalhaven City Council [2018] NSWLEC 27, the Land and Environment Court of New South Wales declared Shoalhaven City Council's (the Council) decision to grant development consent for a 'boathouse arm' to be invalid. The neighbouring owner was successful in establishing that the Council failed to consider relevant matters when determining to grant consent to the development application.
Relevant law
Section 55M(1) of the Coastal Protection Act 1979 (NSW) states that consent to undertake coastal protection works should not be granted unless the Council is satisfied that:
- the works will not unreasonably limit public access of the beach or pose a threat to public safety; and
- arrangements have been made for the life of the works to restore any erosion of the beach or land adjacent to the beach caused by the works, and maintain the works.
The facts
In 2016, the landowner lodged a development application (DA) with the Council to demolish an existing two storey dwelling and erect a new two storey dwelling in its place.
Importantly, the DA also sought approval of a boathouse arm, which was connected to the main dwelling with a solid concrete screen wall. This screen wall varied in height, ranging from 3.7 metres to 4.12 metres.
On 17 July 2017, the Council consented to the development subject to several conditions including:
- Condition 6 which required the landowner to lodge amended building plans which mitigated the effects of wave runup, being the vertical height above still water to which water recedes after a wave has broken;
- Condition 36 which stated that no walls were to be constructed in the wave runup area; and
- Condition 43 which required the existing seawall to be maintained.
A neighbour of the landowner objected to the development on the basis that the development of the boathouse arm and screen wall would obscure her "iconic" views of Hyams Beach and interfere with the wave runup flows.
The neighbour subsequently brought judicial review proceedings challenging the validity of the development consent on three primary grounds:
- whether the Council was the correct consent authority to determine the development application;
- the height of the screen wall of the boathouse arm; and
- the effect of the screen wall of the boathouse arm on the wave runup flows.
Decision
The Court rejected the first two grounds on the basis that:
- the Council was the relevant consent authority as the DA did not seek consent to build a seawall, but merely involved a condition requiring the maintenance of the seawall; and
- the height of wall did not exceed the relevant standards.
With regard to the third ground, the Court looked to whether the Council's coastal engineer had adequately considered the likely effect of coastal inundation and erosion as a result of wave runup on the screen wall. In particular, the Court considered whether the engineer had accounted for several coastal hazards as contemplated in the Shoalhaven Development Control Plan 2014, Shoalhaven Local Environment Plan 2014 and State Environmental Planning Policy No 71 – Coastal Protection. In finding that the engineer had overlooked the effects of these coastal hazards, the Court also pointed to the fact that there was no indication that Council had independently considered these effects during the 17 July 2017 council meeting. This failure to consider the impacts of the coastal hazards on the surrounding environment meant that Council's decision to grant consent was invalid because it did not turn its minds to relevant matters which it was bound to consider.
The Court's decision may provide guidance to coastal landowners seeking to challenge the validity of coastal development consents. The decision also acts as a reminder to Councils and other consent authorities of the importance of considering all relevant matters when determining a DA, particularly where a development is likely to impact the coastal environment. The decision comes at a time when coastal landowners are increasingly concerned about and are exploring self-help remedies to, abate inundation and coastal erosion.
It is also important to acknowledge that this decision occurred in an area which is currently subject to reform. The new Coastal Management Act 2016 and the corresponding Coastal Management State Environmental Planning Policy will bring across existing provisions from the Coastal Protection Act 1979 and will impact upon the development controls used to manage works in the coastal zone.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.
