24-01-2020 - Appeal No. 245 of 2019 - Final Order of Judge Rackemann · 51987.2951.01

                     (b)     satisfied all assessment benchmarks that would apply if the change
40                           application were a development application, or can otherwise be condition
                             to do so.

     The issues in dispute relating to coastal engineering advanced by the Respondent are (adopting the
     paragraph numbering in the Notice of Appeal):

             7. 1    The proposal is in conflict with the assessment benchmarks of the State Planning
45                   Policy as it proposes development in an Erosion Prone Area and Natural Hazard Area
                     (reason 1).
             7.2     Development seaward of the Coastal Building Line is contrary to the building
                     setbacks contained in the Planning Scheme and the setback provided under State
                     Code 8; Coastal Development and Tidal Works of the State development assessment
50                   provisions (reason 2).
           7.3       Recent modelling carried out by the Council Indicates significant erosion is likely to
                     occur in the future which may threaten life and property should the proposed
                     development proceed (reason 3);
           7.5       The proposal does not comply with the Natural Resources Overlay Code for Coastal
55                   Protection as it has the potential to adversely impact on natural coastal processes
                     (reason 5);
           7.6       Given the site is affected by the Coastal Building Line and is located in a highly
                     vulnerable erosion prone area, the proposed 6m setback is not sufficient to minimise
                     the risk of erosion (reason 6).
60         7.7       The proposal does not comply with the Biodiversity Overlay Code as vegetation is
                     proposed to be removed within the Environmental Protection Overlay placing the
                     integrity and resilience of the foreshore at risk (reason 7).

           7.8       The proposal is contrary to the Overall Outcomes for the Eastern Beaches Locality as
                     it does not protect the dunal area and natural environment nor maintain the safety
65                   of people and works (reason 8).

     On 12 April 2019, Council’s solicitor wrote to the Appellant’s solicitor advising that Council was no
     longer relying on reasons 4, 7 and 8 of its reasons for refusal, and that it also was now relying on
     overall outcomes (a)‐(e) & (g) and performance outcomes PO1, PO3‐PO5 of the Coastal Protection
     Overlay Code in the draft planning scheme.

70   Having regard to the above issues in dispute relevant to coastal engineering, the key questions for
     the coastal engineering experts are:

     1.    The extent of erosion associated with a storm event equivalent to a 100 year ARI return
           period.
     2.    The extent of recession associated with sea level rise predicted for the design life of the
75         swimming pool (assumed to be 30 years) (i.e. a sea level rise of 0.3 metres by the year 2050)
     3.    The design of the piled foundation of the swimming pool to withstand erosion for a
           combination of erosion associated with a 100 year ARI storm and recession due to sea level
           rise of 0.3 metres by 2050
     4.    The likelihood of erosion given the underlying geological conditions


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