253 Spit Road Pty Ltd v Mosman Municipal Council

Relevant planning controls

1. That part of the site below Mean High Water Mark (MHWM) is covered by SEPP Sydney Harbour. SEPP Sydney Harbour applies by way of cl 3(1) in that the location of the marina is within the area described in this clause. Specific provisions in cl 3(2)(a) apply as the location of the marina is within "the Foreshores and Waterways Area" of the Sydney harbour Catchment.
2. Part 2 provides Planning principles with cl 14 providing specific requirements for the Foreshores and Waterways Area.
3. The site is within Zone W5 Water Recreation under SEPP Sydney Harbour. Clause 17(2) provides that "the consent authority must not grant development consent to any development unless satisfied that it is consistent with the aims of this plan and the objectives of the zone in which it is proposed to be carried out": The proposed use may be carried out, with development consent, pursuant to the Table referred to in cl 18(1) as a "commercial marina".
4. The aims of SEPP Sydney Harbour are in cl 2 and the W5 zone objectives are in cl 17.
5. Clause 20(a) identifies matters that "are to be taken into consideration by consent authorities before granting consent to development under Part 4 of the Act". The relevant matters are Public access to, and use of, foreshores and waterways (cl 22), Interrelationship of waterway and foreshore uses (cl 24), Foreshore and waterways scenic quality (cl 25), Maintenance, protection and enhancement of views (cl 26) and Boat storage facilities (cl 27).
6. Clause 4.7 of DCP Sydney Harbour addresses Marinas (Commercial and Private).
7. Mosman Local Environmental Plan 2012 (LEP 2012) does not apply to land below the MHWM, however the Sydney Harbour DCP requires consideration of LEP 2012 and Mosman Business Centres Development Control Plan (the Mosman DCP) in conjunction with SEPP Sydney Harbour and DCP Sydney Harbour.
8. The part of the site covered by LEP 2012 is zoned RE2 Private Recreation. Clause provides 1.2 Aims of Plan and cl 2.3(2) provides that the consent authority must have regard to the zone objectives when determining a development application. Clause 6.4 addresses Scenic Protection.

Is the proposal consistent with the aims of SEPP Sydney Harbour ?

1. The aims of SEPP Sydney Harbour are set out in cl 2 and state: (1) This plan has the following aims with respect to the Sydney Harbour Catchment: (a) to ensure that the catchment, foreshores, waterways and islands of Sydney Harbour are recognised, protected, enhanced and maintained: (i) as an outstanding natural asset, and (ii) as a public asset of national and heritage significance, for existing and future generations, (b) to ensure a healthy, sustainable environment on land and water, (c) to achieve a high quality and ecologically sustainable urban environment, (d) to ensure a prosperous working harbour and an effective transport corridor, (e) to encourage a culturally rich and vibrant place for people, (f) to ensure accessibility to and along Sydney Harbour and its foreshores, (g) to ensure the protection, maintenance and rehabilitation of watercourses, wetlands, riparian lands, remnant vegetation and ecological connectivity, (h) to provide a consolidated, simplified and updated legislative framework for future planning. (2) For the purpose of enabling these aims to be achieved in relation to the Foreshores and Waterways Area, this plan adopts the following principles: (a) Sydney Harbour is to be recognised as a public resource, owned by the public, to be protected for the public good, (b) the public good has precedence over the private good whenever and whatever change is proposed for Sydney Harbour or its foreshores, (c) protection of the natural assets of Sydney Harbour has precedence over all other interests.
2. Clause 17(2) provides that: (2) Except as otherwise provided by this plan, the consent authority must not grant development consent to any development unless satisfied that it is consistent with the aims of this plan and the objectives of the zone in which it is proposed to be carried out.

The evidence

1. Expert evidence was provided for the council by Mr John Pagan, a town planner and the applicant provided expert evidence from Ms Lavinia Schivella, a planning advisor on marine matters. Mr Pagan and Ms Schivella agree that, in the context of the proposed development, "the public" includes:

• the NSW boating community,
• the local Mosman boating community,
• local Mosman residents and property owners within vicinity of the proposal who use the area, and
• the broader community (Sydney and all of NSW).

1. Private interests include:

• businesses and other operations adjacent to the proposed development and in the Mosman LGA,
• customers of the businesses in the first point, purchasing exclusive use of products or services,
• the interests of the proponent,
• the interests of the objectors, and
• local Mosman residents and property owners within vicinity of the proposal.

1. Ms Schivella states that the local Mosman and broader community derive a benefit from the value that the many boating activities provide visually (the activities occurring on the water), as well as financially, for example through rental or taxes paid to the relevant agencies for the use of public space. The less abled or elderly public also derive a benefit as access through pontoon systems such as described in the proposal, for these groups can be provided through direct business at the proposed site. For less abled and elderly boaters access can be provided through the Sydney Harbour Boating Destinations Plan.
2. In considering the likely users of the area, Ms Schivella states that no single boating group should be given preference - equal weight should be given to all the types of recreational boating likely to occur from the adjacent site: beach sailing and the type of boating and other recreational uses likely to occur from the proposed development. It is difficult to determine numbers of likely users based solely on current customers of the sailing club or future customers of the Catalina Anchorage Marina. The private users from both sites include any customers of the businesses and consideration should be given over whether these private uses should be weighted any differently to the broader Sydney and NSW public, as these are exclusive uses through purchase of a product or service
3. Mr Pagan considers that the proposed extension of the Catalina Anchorage Marina would encroach upon the area of open and relatively open water currently available to members of the public who launch small craft from the beach to the north and south of the subject site and from the Yacht Club and the Skiff Club. The use of the beach, the clubs' facilities and the open water by a large number of people represents a public good that should have precedence over the private good represented by the relatively small number of people who would use or otherwise derive benefit from the proposed development. If the Council's evidence relating to small craft access to the water, manoeuvring and safety, then the aims of cl 2 relating to the public good will not be met.
4. The navigation and safety issues were addressed by Mr Peter Fielder for the council and Mr Howard Glenn, for the applicant. Mr Glenn states that the Yacht Club, the Skiff Club, and any other skipper or master of a vessel in the area will need to continue to be aware of any changed circumstances, and respond accordingly to ensure that their operations are safely carried out, and that this is a continuing responsibility of all vessel operators. Further, Mr Glenn is of the view that any sailor who was not competent to sail through the waterway created between the existing fixed structure and the proposed developments should not be sailing further out into the harbour where moving vessels were most likely to encountered. Mr Glenn is of the view that there is still ample and significant beach space and waterway for beginner sailors to learn safely in the immediate vicinity.
5. Mr Fielder has concerns for the safety of all vessels especially non-powered recreational craft, both sailing and rowing, which will navigate to and from Pawirri Beach south of the proposed development. Navigation of these vessels will be through the fairway (or channel) created by the development in that the fairway created is:

• presently used by a range of non-powered recreational craft, both sailing and rowing,
• is proposed to be 120 m long and generally 18-20 m wide,
• at its narrowest will be 14 m wide Is aligned almost directly into the prevailing 3pm summer breeze, and
• is in an area of high current through the middle portions of the tide.

1. Mr Fielder's concerns for navigation safety arise from the width of the fairway that will be created to the south of the proposed structure. The fairway proposed to be created by the proposal, does not comply with the minimum requirements set out in the Australian Standard Marina Design Guidelines AS3962.
2. Mr Fielder also states that a sailing vessel departing Pariwwi Beach south of the site, in the prevailing summer breeze, sailing at maximum efficiency, without any allowance for wind disturbance created by the moored vessels, would have to make a minimum of 7 tacks to transit the channel. Mr Fielder's view is that this is not an appropriate circumstance for learn to sail, junior sail training or regular sailing operations.
3. In relation to the Skiff Club sailing operations, Mr Glenn and Mr Fielder agree that the proposal will result in changes to the operations of the Skiff Club, particularly in respect to the approach and departure conditions for vessels sailing to and from the clubs rigging area. Additional maneuvering will also be required to depart the beach fronting the club during the prevailing sea breezes. The additional maneuvering will be in the form of additional tacking.
4. Mr Glenn states that this is the normal act of sailing, and that there is sufficient space in the waterway, particularly with the removal of seven swing moorings, to conduct these manoeuvres. Mr Glenn is of the view that there is ample space for learner sailors from the local clubs to practice manoeuvres from the beach to open waterways and that is normal practice for clubs to have motorised safety vessels to assist when conditions are particularly bad.
5. Mr Fielder contends that off the beach sailing craft leaving the beach are not set up for tacking immediately as the crew have to board the craft, set the rudder and centre board and establish command of the craft. Mr Fielder states that development will prevent the Skiff Club's use of Pawirri Beach south of the proposal for off the beach rigging areas. Mr Glenn notes that any impact on the use of Pawirri Beach south will primarily be on the Yacht Club, and that this club has written confirming its support for the proposal.
6. The concerns expressed by Mr Fielder were supported by Mr Tinworth, Mr Chris Wise and Mr Kinsley Forbes-Smith, all experienced sailors with a good knowledge of the Skiff Club and the conditions that sailors face at the site.

Findings

1. Clause 17(2) imposes a precondition on the Court in exercising the power to grant consent to the proposed development. It requires the Court to form the opinion that the proposed development is consistent with the aims of SEPP Sydney Harbour.
2. In considering the question of consistency, I have adopted approach of the former Chief Judge, Justice Pearlman in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 where, Her Honour expresses the following opinion [at 27]: The guiding principle, then, is that a development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible.
3. A negative finding for the precondition must see the appeal dismissed and a positive finding would enliven the power to grant development consent subject to a merit assessment.
4. In Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190, Biscoe J made the following relevant comments: 60 The council submits that the proposal is not consistent with W5 zone objective (d) because it does not provide benefits to the general and boating public. I do not accept the submission. It clearly provides some benefits to the general and boating public. For example, disabled sailors will have better facilities and boat owners generally will have improved and more accessible fuelling facilities. Furthermore, the general public will benefit from being able to promenade on the marina axis walkways. More to the point is whether those benefits are outweighed by other considerations. (my emphasis)
5. In this case, the Skiff Club provides the opportunity to access the harbour for a range of people. The President of the Skiff Club, Mr Tinworth provided the following details of the activities conducted by the Skiff Club: 1. The Middle Harbour 16'Skiff Club has been situated at the same site for over 114 years. 2. It is a volunteer run, not for profit, "off the beach" sailing Club meaning the craft sailed from it are "rigged" on the beach and then sailed from the beach to the main harbour channel. 3. The Club conducts regular racing on Saturdays and Sundays from end August through to early April each year. The adults boats (skiffs) sail on Saturdays and the junior fleet sail on Sundays. The Club owns a number of dinghies which it allows its junior sailors to utilise at no charge so as to encourage their participation in the sport which can be cost prohibitive in some circumstances. 4. Saturday sailing comprises racing upwards of 12-15 16' skiffs and Sundays sees upwards of 30-40 junior dinghies taking part in either learn to sail or racing programs. The age range of the sailors is from 5 to 70 years. Sailors progress from the Optimist/Manly Junior levels as beginners through to 13' and 16' Skiffs as their skill set improves. 5. In addition to the "regular" sailing programs the Club also hosts both State and National Championship events during the sailing season. These competitions attract upwards of 45-50 boats (90-100 children or 135-150 adults competing) of a particular class and the regattas can run for 7 consecutive days. The Club currently scheduled to host a 16' Skiff NSW Championship (40-50 boats) and a Manly Junior NSW Championship (45 boats) on consecutive weekends in November 2016. 6. The Club also provides facilities for the storage and launching of not only sailing boats but Kayaks, Surf Skis and Windsurfers as well. Currently there are 25 of these type of craft stored on site. These are utilised by their owners most days of the week on a year round basis 7. The Club runs training course in rescue boat safety aimed at keeping its volunteers fully trained in all aspects of boat handing and rescue techniques. 8. The Club offers a Bistro and Bar service to its members and guests which goes towards the funding of its sailing activities.
6. The activities of the Skiff Club provide a high level of access to the harbor for a range of persons to undertake a range of activities in a range of vessels for the purposes of competition, training, recreation and pleasure and education. The persons who participate in these activities can be broadly classified as the "public' and the activities are a "public good" for the purposes of SEPP Sydney Harbour. No details of the likely use of the proposed marina were provided although it must be accepted that it would have a relatively low use compared to the activities of the Skiff Club.
7. In considering the different evidence on the navigation and safety issue, I am not satisfied that Mr Glenn was a suitable witness notwithstanding his experience as a sailor and his position as the Chief Executive Officer of the Boating Industry Association. The evidence indicated that a letter of support (Exhibit 3, p 15) was submitted to the council from the Boating Industry Association, albeit not from Mr Glenn but from Mr Privett, the General Manager. Given the existence of this letter which expresses clear support for application, I cannot be satisfied that Mr Glenn could be reasonably seen as having an overriding duty to assist the Court impartially on matters associated with navigation and safety as required by the Expert Witness Code of Conduct in Sch 7 of the Uniform Civil Procedure Rules (2005) due to the supportive position taken by the Boating Industry Association where he is the Chief Executive Officer.
8. In any event, I would have preferred the evidence of Mr Fielder over Mr Glenn even if Mr Glenn's evidence was taken into consideration. I accept that the proposed marina will encroach upon the use of the public of open and relatively open water currently available who launch small craft from the beach to the north and south of the subject site and from the Yacht Club and the Skiff Club. The evidence of Mr Fielding and the lay witnesses was convincing in that I am satisfied that the current activities of the Skiff Club would likely be reduced and consequently the current level of access to the public would also be reduced. I accept the comments of Mr Pagan that "the use of the beach, the clubs' facilities and the open water by a large number of people represents a public good that should have precedence over the private good represented by the relatively small number of people who would use or otherwise derive benefit from the proposed development" even if some public good is attached to the proposed marina for disabled sailors.
9. I agree with Ms Schivella states that no single boating group should be given preference and even accepting that a marina can provide a public good (see Addenbrooke, par 60), I do not accept that in balancing the public and private benefits that the the public good will have precedence over the private good if the marina proceeds.
10. I do not accept that the proposed development is consistent with aims (e) and (f) being: (e) to encourage a culturally rich and vibrant place for people, (f) to ensure accessibility to and along Sydney Harbour and its foreshores,
11. In coming to this conclusion I have relied on the principles (a) and (b) in cl 2(2), being: (a) Sydney Harbour is to be recognised as a public resource, owned by the public, to be protected for the public good, (b) the public good has precedence over the private good whenever and whatever change is proposed for Sydney Harbour or its foreshores,
12. As the proposed development is inconsistent with aims (e) and (f), the appeal must be dismissed and development consent refused.

Is the proposal consistent with the objectives of the W5 zone?

1. The W5 zone objectives are: (a) to give preference to and increase public water-dependent development so that people can enjoy and freely access the waters of Sydney Harbour and its tributaries, (b) to allow development only where it is demonstrated that the public use of waters in this zone is enhanced and will not be compromised now or in the future, (c) to minimise the number, scale and extent of artificial structures consistent with their function, (d) to allow commercial water-dependent development, but only where it is demonstrated that it meets a justified demand, provides benefits to the general and boating public and results in a visual outcome that harmonises with the planned character of the locality, (e) to minimise congestion of and conflict between people using waters in this zone and the foreshore, (f) to protect and preserve beach environments and ensure they are free from artificial structures, (g) to ensure that the scale and size of development are appropriate to the locality, and protect and improve the natural assets and natural and cultural scenic quality of the surrounding area, particularly when viewed from waters in this zone or from areas of public access
2. The council maintains that the proposed development is inconsistent with the following zone objectives: (a) to give preference to and increase public water-dependent development so that people can enjoy and freely access the waters of Sydney Harbour and its tributaries, (b) to allow development only where it is demonstrated that the public use of waters in this zone is enhanced and will not be compromised now or in the future, (c) . (d) to allow commercial water-dependent development, but only where it is demonstrated that it meets a justified demand, provides benefits to the general and boating public and results in a visual outcome that harmonises with the planned character of the locality,
3. For the reasons in the preceding paragraphs, I find that the proposed development is inconsistent with zone objectives (a) and (b) and the appeal could be dismissed and development consent refused for this reason.
4. Given the finding on the aims and zone objectives, it is not necessary to address the other matters in dispute.

Orders

1. The orders of the Court are:
2. The appeal is dismissed.
3. DA 8.2014.115. for the demolition of an existing three berth commercial marina and the construction of a 17 berth commercial marina at the Catalina Anchorage Marina, 235 Spit Road, Mosman is refused.
4. The exhibits are returned with the exception of exhibits 1 and C.

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G T Brown Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 June 2016