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

240   CONSIDERATION OF RELEVANT PLANNING DOCUMENTS

      a.    Beach Protection Act 1968 – 1974 (as amended in 2002)

            i)     From PP’s experience the proposed development would have been subject to an
                   application for approval from the Beach Protection Authority. The Authority was
                   generally not supportive of development seaward of a coastal building line unless there
245                was precedent for development seaward of the coastal building line on neighbouring
                   properties, or a coastal processes assessment was undertaken and demonstrated that
                   the erosion prone area width could be reduced.
            ii)    PP’s opinion is that the Beach Protection Authority would have considered the erosion
                   prone area reassessment undertaken by either BMT WBM (2018) or Omtrek Pty. Ltd.
250                favourably.
            iii)   NC says that this is not relevant to the coastal assessments in that it is speculation as to
                   what the Authority would have determined under this hypothetical scenario.
      b.    State Development Assessment Provisions (SDAPs) Other relevant matters

            i)     PP’s opinion is that the proposed piled foundation constitutes an alternative coastal
255                protection structure and as such the proposed development would comply with
                   performance outcome 6 of the State Development Assessment Provisions State Code 8.
            ii)    NC says that the setback does not comply with those provided under PO6 of the State
                   Code 8; Coastal Development and Tidal Works of the State Development Assessment
                   Provisions.
260         iii)   NC says that the development does not comply with the provisions of the Natural
                   Resource Overlay Code overall outcome 13.42.2 (f) (i) and specific outcome O20.
      ASSESSMENT IN RELATION TO THE REASONS FOR REFUSAL
      Our agreed position in relation to the reasons for refusal detailed above are as follows:
      1.    Reason 1; Whilst this reason is correct, the proposed geotechnical design ensures that,
265         irrespective of coastal erosion and subsequent slope failure and reprofiling, the pool structure
            will remain in place following a 100 year storm tide and wave erosion event.
      2.    Reason 2; this is a matter for the planners and the Court to consider.
      3.    Reason 3; coastal erosion and subsequent slope failure and reprofiling analysis described in
            this report demonstrates that significant erosion that would fail the original proposed pool
270         can occur under a severe storm tide and wave event. However, the proposed geotechnical
            design ensures that, irrespective of coastal erosion and subsequent slope failure and
            reprofiling, the pool structure will remain in place following a 100 year storm tide and wave
            erosion event.
      4.    Reason 5; with the proposed geotechnical design with micro‐pile support for the pool, coastal
275         processes will not be impacted by the proposed development on all coastal events up to the
            100 year storm tide and wave event, accounting for climate change to 2050. Under more
            severe events, further erosion could occur; however coastal structures of this nature are
            normally required to be designed to withstand events up to the 100 year event (noting that



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