57 The Avenue Pty Ltd v Northern Beaches Council

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 8.7, 8.15
Fisheries Management Act 1994 (NSW), Pt 7
Land and Environment Court Act 1979 (NSW), s 39
Water Management Act 2000 (NSW)
Pittwater Local Environmental Plan 2014, cll 4.1, 5.7, 7.1, 7.2, 7.6, 7.8, 7.10, Sch 1 cl 23
State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11, 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Texts Cited: Northern Beaches Community Participation Plan (Plan Making and Development Assessment), December 2019
Office of Environment and Heritage on behalf of Sydney Metropolitan Catchment Management Authority, Environmentally Friendly Seawalls: A Guide to Improving the Environmental Value of Seawalls and Seawall-lined Foreshores in Estuaries, June 2009
Pittwater 21 Development Control Plan, December 2023

Category: Principal judgment

Parties: 57 The Avenue Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation: Counsel:
F Berglund and C Collett (Applicant)
A Seton (Solicitor) (Respondent)
Solicitors:
Shaba & Thomas Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2025/107342

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: To the south east of Pittwater lies the waters of Winji-Jimmi Bay in the Sydney suburb of Newport. An existing commercial marina formerly known to some as the Newport Marina is proposed to be demolished to make way for the construction of a new 9-berth marina, floating pontoon walkways, a new seawall, landscaping works and subdivision into 8 lots at a site known as 122A Crescent Road, Newport.

2. It is relevant to note at the outset that the Newport Marina has been operating on land adjoining the subject site, known as Nos 122, 124, 126, 128 Crescent Road and 55 and 57 The Avenue (the adjoining site), also in the ownership of the Applicant in these proceedings, 57 The Avenue Pty Ltd (The Avenue).

3. On 6 December 2023, Northen Beaches Council granted consent to development application DA/2022/2152 for demolition works and subdivision of land into 8 lots, tree removal and infrastructure works on the adjoining site.

4. The development the subject of these proceedings is that development described in development application DA2024/1409, lodged by The Avenue with Northern Beaches Council on 21 October 2024 seeking consent for the following:

5. Reconfiguration of the existing Marina to a nine-berth marina and subdivision into 8 lots;

6. Concept building envelopes for boat sheds on Proposed lots 5 and 6;

7. Associated landscaping and demolition removal of existing vertical slipway and boat ramp and extension to an existing seawall; and

8. Subdivision of the site.

9. Given the chronology of development consent, and the arrangement of the lots comprising the adjoining site and subject site, it is helpful to describe the site in a little more detail, assisted by a figure reproduced from the Statement of Facts and Contentions (Exhibit 2) below.

10. The Council notified the development application in accordance with the relevant Community Participation Plan from 31 October 2024 to 28 November 2024, in response to which a number of public submissions were received.

11. The Council also provided preliminary feedback to The Avenue in February 2025. However, as the development application was otherwise undetermined, The Avenue appealed its deemed refusal on 19 March 2025 under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).

12. On the eve of the hearing, The Avenue sought to further amend the development the subject of the development application by Notice of Motion that sought, unopposed, to amend the proposal as follows:

13. Reduce number of berths from 9 to 8 – 6 of which are to be marina berths and 2 identified as water recreation structures.

14. Reduce the size of boat proposed, and reduce the lateral extension of structures into the waterway to reduce the development footprint and increase the area of rehabilitation of the foreshore.

15. Improve foreshore treatment and enhance visual amenity due to smaller hardstand area and foreshore repatriation, creation of intertidal benches and coastal riparian planting.

16. The Court granted The Avenue leave to amend the development application by relying on the following amended plans and other documents contained in the Notice of Motion:

17. Amended Draft Plan of subdivision (Exhibit B).

18. Amended architectural plans prepared by Scott Carver (Exhibit C).

19. Amended Landscape Plans prepared by Site Image (Exhibit D).

20. Amended Aboricultural Impact Assessment prepared by RainTree Consulting (Exhibit E).

21. Materials Investigation Report prepared by BG&E (Exhibit F).

22. In opening submissions, the Council advised the Court that as a result of the amendments to the development, being more than minor, those matters originally contended for by the Council in the Statement of Facts and Contentions filed 2 May 2025 are resolved other than the impacts on overhead electricity wires and a power pole located nearby but not within the site the subject of these proceedings.

Development is permitted with consent

11. The Council initially contended that the proposed development was not permissible as is it located partly within Zone W1 Natural Waterways zone within the Pittwater Local Environmental Plan 2014 (PLEP) and therefore constitutes prohibited development.

12. However, in opening submissions, the Council took the Court to Sch 1 of the PLEP in which Additional Permitted Uses are identified within an area marked Area 23. Clause 23(2) of Sch 1 provides that, within Area 23:

23 Use of certain land in Zone W1 Natural Waterways

…

(2) Development for the purposes of boat sheds, jetties or water recreation structures is permitted with development consent.

13. The two proposed structures within the W1 zone are nominated as water recreation structures, defined in the Dictionary of the PLEP in the following terms:

water recreation structure means a structure used primarily for recreational purposes that has a direct structural connection between the shore and the waterway, and may include a pier, wharf, jetty or boat launching ramp.

14. As such, it is commonly held that the two water recreation structures proposed within the W1 zone are development permitted with consent.

The site and its context

15. That area shown in blue on the aerial image at [5] is legally described as Lot 295 in DP 820302, with an area of 2,498m2. There is also an additional parcel of land that also comprise the site.

16. That additional parcel of land, and water for that matter, is to the north west of Lot 295 that is Crown Land below the mean high water mark (MHWM) for which Licence Holding number 460612 was issued by NSW Department of Planning, Housing and Infrastructure.

17. The site is located in an area identified in the PLEP as part W1 Natural Waterways and W2 Recreational Waterways. The site adjoins, and is generally surrounded by, land zoned C4 Environmental Living.

18. The objectives for development in the W1 zone are as follows:

1 Objectives of zone

• To protect the ecological and scenic values of natural waterways.

• To prevent development that would have an adverse effect on the natural values of waterways in this zone.

• To provide for sustainable fishing industries and recreational fishing.

• To ensure development does not adversely impact on the natural environment or obstruct the navigation of the waterway.

• To provide opportunities for private access to the waterway where these do not cause unnecessary impact on public access to the foreshore.

19. The objectives for development in the W2 zone are as follows:

1 Objectives of zone

• To protect the ecological, scenic and recreation values of recreational waterways.

• To allow for water-based recreation and related uses.

• To provide for sustainable fishing industries and recreational fishing.

• To provide for amateur and professional recreational yachting or boating clubs and the like that serve Pittwater and the wider region.

• To ensure development does not adversely impact on the enjoyment and use of the waterway or adjoining land.

• To provide for a variety of passive and active recreational pursuits and water-based transport while preserving the environmental setting of the waterway.

• To ensure that public access to the waterway and foreshore areas suitable for public recreational and transport purposes is maintained.

20. The site is identified at Section A4.15 of the Pittwater 21 Development Control Plan (Pittwater DCP) to be within the Waterways Locality, in which the following desired future character is described:

“The Waterway locality will remain primarily a recreational boating area. Waterfront businesses, yacht clubs and the like will meet the waterway recreational and boating needs of the community.

Future development is to be located so as to be supported by adequate infrastructure, including roads, water and sewerage facilities, and public transport.

Future development should ensure that access is available at all times to public boating facilities, such as launching ramps. Future development will not restrict public access adjoining the foreshore, or pedestrian access along the foreshore.

Future development will maintain a building height limit below the tree canopy and minimise bulk and scale. Existing and new native vegetation, including canopy trees, will be integrated with the development. Contemporary buildings will utilise facade modulation and/or incorporate shade elements, such as pergolas, verandahs and the like. Building colours and materials will harmonise with the natural environment. Development will be designed to be safe from hazards. Development will co-exist with adjoining residential areas. Development will not restrict public access adjoining the foreshore, and will not obstruct navigation within the waterway.

A balance will be achieved between maintaining the landforms, landscapes and other features of the natural environment, and the development of land. As far as possible, the locally native tree canopy and vegetation will be retained and enhanced to assist development blending into the natural environment, and to enhance wildlife corridors. Future development will include measures to ensure protection of the water quality and estuarine habitats of the locality, including mangroves, sea grasses, intertidal sand/mud flats, rocky shorelines, and beaches.

Heritage items and conservation areas indicative of the Guringai Aboriginal people and of early settlement in the locality will be conserved.”

21. Section D15.1 of the Pittwater DCP sets out the following outcomes for development sought in this locality when viewed from the public domain:

“To achieve the desired future character of the Locality.

To ensure new development responds to, reinforces and sensitively relates to the spatial characteristics of the existing built and natural environment. (En, S, Ec)

To enhance the existing streetscapes and promote a scale and density that is in scale with the height of the natural environment.

To ensure the visual impact of the built form above mean high water mark is secondary to landscaping and vegetation, or in commercial areas and the like, is softened by landscaping and vegetation. (En, S, Ec)

High quality buildings designed and built for the natural context and any natural hazards. (En, S)

Buildings do not dominate the streetscape or waterway and are at human scale. (S)

To preserve and enhance district and local views which reinforce and protect the Pittwater's natural context.

To enhance the bushland vista of Pittwater as the predominant feature of the landscape with built form, including parking structures, being a secondary component.

To ensure that development adjacent to public domain elements such as waterways, streets, parks, bushland reserves and other public open spaces, compliments the landscape character, public use and enjoyment of that land. (En, S)

Built structures are minimised below mean high water mark. (S)

A balance between use of the waterway and conservation of the natural environment is achieved. (En, S, Ec)”

22. For development on the seaward side of the MHWM, Section D15.12 contains controls that relevantly provide:

“Controls

…

Only structures associated either with the accommodation, servicing or provision of access to boats shall be permitted seaward of mean high water mark.

In instances where it is proposed to alter, extend or rebuild existing buildings seaward of mean high water mark, any further encroachment of such buildings onto the waterway is to be minimised. Where development seaward of mean high water mark is proposed to occur, especially during the refurbishment of existing structures, proponents need to ensure that the structure will not harm marine vegetation, and must consult with the Department of Primary Industries.

…”

23. To ensure that fair and equitable enjoyment of the waterway is achieved between neighbouring waterfront landowners, controls at Section D15.13 of the Pittwater DCP apply to what is termed the lateral limits and setbacks, including the setback of any vessel in the water.

24. Controls relating to waterfront development at Section D15.15 state that ramp and pontoon structures are preferred in place of jetties, where practicable, and provide for berthing areas and orientation.

25. Finally, for reasons that will become evident, Section D15.18 of the Pittwater DCP is also relevant to the development proposing seawalls. For completeness, these provisions at Section D15.18 are in the following terms (excluding diagrams):

“Outcomes

Any adverse impact upon the marine flora, fauna or water quality of the locality is minimised. (En)

Development has due regard for other existing water based activities in the locality, particularly those which have recreational, residential or economic significance. (S, Ec)

Alienation of public foreshore land below mean high water mark is minimised. (S)

The impact of development may on the physical processes acting in the locality is minimised. (En)

Development is sympathetic to the natural character of the Pittwater Waterway. (En, S)

The occurrence of dredging in the Pittwater Waterway other than for general navigation purposes is minimised. (En)

Controls

Seawalls shall not be permitted.

Variations

Council may consider the construction of seawalls where there is potential for erosion from coastal process and protection of property is necessary.

In such instances, the following criteria shall apply:

i. where possible, maintain the curvature of the existing shoreline;

ii. incorporate low profile walls, battered or stepped back from the foreshore wherever practicable, with a maximum recommended height of 1 metre above mean high water mark. (1.5 metres AHD);

iii. constructed of or faced in rectangular shaped sandstone, being either dressed or rough-cut in order to promote a uniform treatment along the foreshore. Alternative building materials, such as reconstructed sandstone concrete blocks or similar, which reflect a sandstone character shall also be suitable, particularly where greater structural strength may be required. Materials such as timber, concrete (including nylon mattress structures) gabions or other materials not in keeping with the character of the area shall not be permitted. Concrete/nylon mattress structures may be suitable for public drainage and associated bank stabilisation works where it can be demonstrated that such structures will not detract from the visual amenity of the locality.

iv. only clean fill is to be used behind sea walls.

v. where practicable, sandy beach areas should be incorporated in front of seawalls.

vi. be designed so that the existing footprint is maintained (i.e. does not encroach any further into the intertidal zone) and the seawall is sloped back towards the property. There must be no additional reclamation of water land (requires a permit from the Department of Primary Industries) or replacement of the existing wall with a vertical seawall;

vii. that there is no mortaring of the seawall and a geotextile fabric is used behind the seawall to prevent loss of sediment through the seawall;

viii. should be rock rip rap, boulders or similar complex structures, and where possible incorporate further vertical and horizontal complexity.

ix. maximise the incorporation of native riparian and estuarine vegetation;

x. create low sloping seawalls and/or incorporate changes of slope; and

xi. it is recommended that proponents consult with both the Coasts & Estuaries section of the Office of Environment and Heritage, and with the Aquatic Habitat Protection unit of the Department of Primary Industries.

xii. compliance with Environmentally Friendly Seawalls – A Guide to Improving the Environmental Value of Seawalls and Seawall-lined Foreshores in Estuaries (2009) available at the Office of Environment & Heritage website.

Within the Crystal Bay Foreshore area, the following controls shall specifically apply:

i. only dwarf seawalls shall be permitted along the foreshore of the Bay.

ii. be wholly constructed or faced in regular dressed sandstone blocks, reconstructed sandstone face blocks or reconstructed sandstone tiles; and

iii. have a battered slope located in front of it constituting the intertidal beach zone; and

iv. be flush to the top of the seawall with the reclamation located behind it (Diagram 1); and

v. not have a height greater than 0.75 metres above mean high water mark (1.26 AHD); and

vi. be aligned generally in a position which accords with the physical high water mark (Diagram 2) and form a continuous and uniform alignment with any existing adjoining, approved seawall.”

Foreshore Impacts are considered

26. A number of the contentions initially pressed by the Council deal with the likely environmental impacts of development proposed on or in the vicinity of the foreshore of Winji-Jimmi Bay.

27. In considering those contentions, the Court was assisted by experts in planning, Mr Stephen Gouge on behalf of The Avenue and Mr Nic England on behalf of the Council who conferred, along with Mr Rohan Dickson, expert on visual impact on behalf of the Applicant, in the preparation of a joint expert report filed with the Court on 17 February 2026 (Exhibit 4).

28. The Court was also assisted by Mr Mark Kokot, expert in arboriculture on behalf of The Avenue and Mr Torin Calf, Landscape expert on behalf of the Council who conferred in the preparation of a joint expert report filed with the Court after close on 12 February 2026 (Exhibit 6).

29. In considering those matters in respect of the environmental impacts on, and natural character of, the Pittwater waterway, the Court was assisted by Ms Katie Smythe, expert in ecology on behalf of The Avenue and Mr David Hellot, water management expert on behalf of the Council who conferred in the preparation of a joint expert report filed with the Court on 13 February 2026 (Exhibit 5).

30. In short, the experts reached agreement on all matters in contention.

31. In broad terms, the experts agree the demolition of the existing concrete hardstand and the alternative interface with the water by means of low-sloping rock revetment incorporating intertidal benches, varied rock sizes, habitat features and estuarine vegetation is an appropriate treatment when regard is had to the provisions at ss 2.10 and 2.11 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) that apply to the development (Exhibit 4, pars 46-47).

32. In particular, Mr England considers the reinstatement of around 28m of the foreshore, measured at the MHWM, to be an enhancement consistent with the objectives of the W2 zone that allow for water-based recreation and related uses (Exhibit 4, pars 49-51).

33. Likewise, the amendments summarised at [8] are agreed to be both an appropriate footprint and lateral extension into the waters of Winji-Jimmi Bay and serve to improve the potential access to the foreshore by the public (Exhibit 3, par 62).

34. The reduction of that extension and in the number of berths, and the configuration of the berth areas to accommodate smaller vessels perpendicular to the shoreline, also significantly reduce the visual impact such that the objectives and outcomes sought by relevant provisions at Section D15 of the Pittwater DCP are achieved.

35. The Council initially contended that fill associated with a retaining wall proposed to the north of the site would adversely impact three trees within the foreshore area, requiring their removal contrary to provisions dealing with development on foreshore area at cl 7.8 of the PLEP.

36. However, the Council also accepts that no development in this application is proposed between the foreshore building line and the MHWM. As such, the provisions of cl 7.8 do not apply to the proposal. This is because foreshore area is defined as the land between the foreshore building line and the MHWM of the nearest natural waterbody shown on the Foreshore Building Line Map.

37. Nevertheless, the affected trees are identified in the Amended Arboricultural Impact Assessment Report prepared by Raintree dated 20 February 2026 (Exhibit E) as follows:

38. Tree 64: a Eucalyptus capitallata or Brown Stringbark (T64).

39. Tree 66: Eucalyptus paricul**ata, or Grey Ironbark (T66).

40. Tree 69: Eucalyptus pariculata, or Grey Ironbark (T69).

41. The experts considered amended plans that showed the removal of proposed fill and retaining structures, and the area naturalised instead using soil, plantings, rocks and boulders. As a result of the amended plans, the experts agree the impacts on Tree 64 are minor and acceptable and while the impact on Tree 66 is classified as major, it is not necessary to remove it.

42. However, the experts agree the impact on Tree 69 is such that it will need to be removed. The Avenue proposes to replace it with two of the same species, Eucalyptus pariculata, or Grey Ironbark.

43. Taken together, the experts agree that the naturalisation works proposed to the foreshore and tree replacement will provide a better landscape character for the locality (Exhibit 6, par 27).

44. The issues on which the environmental experts conferred are set out in their joint expert report under three headings:

45. Estuarine habitat.

46. Natural character.

47. Seawall design, slipway.

48. Firstly, in respect of the estuarine habitat, the experts agree that the amendments incorporate measures that collectively enhance the habitat value of the site by virtue of the rock revetment mimicking natural shoreline conditions, providing intertidal benches to allow the colonising of this area by various ‘biodiverse assemblages’ and because of the enhanced visual amenity and stability of the shoreline provided by the riparian planting proposed.

49. Secondly, in respect of the natural character, the experts once again rely on the rock revetment and riparian vegetation as the basis for agreement that the visual presentation is a significant improvement on the existing presentation and so improves the natural appearance of the foreshore.

50. Thirdly, in respect of the seawall design and slipway, the experts cite conformity with a document titled Environmentally Friendly Seawalls: A Guide to Improving the Environmental Value of Seawalls and Seawall-lined Foreshores in Estuaries, Office of Environment and Heritage on behalf of Sydney Metropolitan Catchment Management Authority (June 2009) as the basis for agreement that the proposal is consistent with the provisions of Section D15.18 of the Pittwater DCP, set out at [25].

51. The Avenue proposes to retain a portion of the existing concrete hardstand area and retaining wall below the MHWM. The Council initially contended that inadequate investigation had occurred to verify that the structures retain sufficient useful life to be reused as proposed.

52. The Court was assisted by experts in engineering, Ms Irene Susanto on behalf of The Avenue and Mr Robert Barbuto on behalf of the Council who conferred in the preparation of a joint expert report filed with the Court on 12 February 2026 (Exhibit 7).

53. The experts agree that the results of non-destructive testing documented in the Materials Investigation Report at [9(5)] concludes the existing hardstand on which the proposal relies, in part, has a useful life of 35 years for the slab, and 50 years for the beams.

54. I note the conclusions summarised at Section 4 of the Materials Investigation Report include results from carbonisation testing, core samples for chloride ion analysis and visual inspection of the steel sheet pile walling.

The Transmission Wires and power pole

49. Development is proposed in the vicinity of an electricity power pole and under existing transmission wires that traverse the south eastern corner of the site.

50. Accordingly, on 19 November 2024 the Council gave written notice of the proposal to the electricity supply authority, Ausgrid in accordance with s 2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021.

51. In reply, Ausgrid sought additional information in respect of two aspects (Exhibit 9), being:

52. The height of the selected tree species that had the potential to grow to a mature height of 20m, in the vicinity of the transmission wires.

53. A boatshed structure depicted on the architectural plans.

54. While the amended development application has been further advised to Ausgrid, the parties advised the Court that no response had been received at the time of the hearing. Nevertheless, The Avenue submits that those amendments relevant to satisfying Ausgrid’s response at [51] include:

55. Substitution of the tree species to a dwarf variant expected to grow to a mature height of 6m to remain clear of transmission wires.

56. Additional dimensions now marked on architectural plan titled ‘0102 Site Plan Proposed’ (Dwg No DA_0102V) confirming the footprint proposed for future boatsheds is more than 10m from the in-ground transmission easement, and a provision contained in the agreed conditions of consent that there is no approval granted or implied for any boat shed as part of this approval, nor for any conceptual boatshed despite such refence on the approved plans. A separate approval is required for any boatshed.

57. The parties agree that as Ausgrid’s response has now been addressed, a lack of response by Ausgrid to the amended development application does not represent a jurisdiction bar to the grant of consent, and that the Court can exercise its power under s 39(6) of the Land and Environment Court Act 1979 (NSW) to determine the appeal whether or not consultation has taken place with Ausgrid, and whether or not the concurrence or approval has been granted by Ausgrid.

The development is integrated development

54. The development application form completed by The Avenue nominates the proposed development to be integrated development, invoking the Fisheries Management Act 1994 (NSW) (Fisheries Act) and the Water Management Act 2000 (NSW) (Water Act).

55. In respect of the Fisheries Act, General Terms of Approval were issued by the Department of Primary Industries and Regional Development dated 22 November 2024 (Exhibit 3, Tab 11).

56. In respect of the Water Act, correspondence issued by the Department of Planning and Environment dated 4 December 2024 sets out the basis of an exemption that applies to Crown Land such that The Avenue does not need to obtain a controlled activity approval (Exhibit 3, Tab 13).

Jurisdictional preconditions to the grant of consent

57. The relevant map at cl 4.1(2) of the PLEP does not impose a minimum lot size on the site.

58. As the site is located below the MHWM, the provisions at cl 5.7 of the PLEP apply to require development consent so that the objective to ensure appropriate environmental assessment for development carried out on land covered by tidal waters is achieved.

59. The site is identified on the relevant map at cl 7.1(2) of the PLEP as Class 1 Acid Sulfate Soils, and an Acid Sulfate Soils Management Plan prepared by EIAustralia dated 28 October 2022 accompanies the development application.

60. Earthworks are limited to the removal of fill referred to at [38], and the piling required to secure the pontoons. The Aquatic Ecology and Marine Sediment Assessment prepared by Ocean Environmental dated 2 July 2024 (Aquatic Ecology Report) cites a review by the Department of Primary Industries to assert that no seagrass or other aquatic vegetation is present on the site. As such, there is no Permit to Harm Marine Vegetation required under Pt 7 of the Fisheries Act. Impacts arising from the piling are expected to be limited to increased turbidity in the water, which is likely to be no more than that expected in the waterway. Having considered those matters to be considered at cl 7.2 of the PLEP, I conclude those matters are satisfactorily addressed.

61. Relatedly, a Detailed Site Investigation prepared by Aargus dated 1 March 2023 (DSI) records the results of laboratory testing for heavy metals and other contaminants at Section 12 of the DSI. I accept the explanation of those results at Section 13 and the recommendations at Section 15 that are reflected in conditions of consent, including the preparation of a Remediation Action Plan to address the findings of the DSI. As such, I am satisfied the site can be made suitable for the development proposed to be carried out in accordance with s 4.6 of Resilience and Hazards SEPP.

62. According to the relevant map at cl 7.6(2) of the PLEP, a portion of the site is mapped as land identified as ‘biodiversity’. That portion of the land to which the designation applies is the south east corner where the landscape plans show a concentration of native planting comprising a tree, shrubs, grasses and ground covers. The area is currently existing concrete hardstand. As such, I have considered whether there is any adverse impact on the condition, ecological value and significance of the fauna and flora on the land, and any adverse impact on the importance of the vegetation on the land to the habitat and survival of native fauna. I am satisfied, and the parties agree, that the removal of concrete hardstand and replacement with the native landscape planting is indicative of development that is designed, sited and will be managed to avoid any significant adverse environmental impact.

63. The site is currently served by those essential services as are relevant to the proposed development identified in cl 7.10 of the PLEP and I am satisfied those services will be available when required.

64. As cited briefly at [31], the site is located within the Coastal environment area, and the Coastal Use area as defined at ss 2.10 and 2.11 of the Resilience and Hazards SEPP. On the basis of the following, I am satisfied that the development is designed, sited and will be managed to minimise those impacts that may arise due to the development in accordance with s 2.10(2)(b) of the Resilience and Hazards SEPP:

65. The agreement reached between the Environmental experts summarised at [42]-[Error! Reference source not found.] as to the adaptive reuse of the existing seawall minimises the impact on the integrity and resilience of the biophysical, hydrological, and ecological environment, and the coastal environmental values in the area.

66. The Estuarine Risk Management Report prepared by Horton Coastal Engineering dated 26 July 2024 that describes the relevant natural coastal processes within the 60 year design life of the development, and the replacement of piles as “inconsequential to estuarine processes” and would not adversely impact water quality subject to appropriate construction environmental controls (Exhibit A, Tab 10, p13).

67. As stated briefly at [60], the Aquatic Ecology Report identifies little marine vegetation or habitat on the site and at [33], the relevant experts agree the proposal improves, and does not adversely impact, public access to the foreshore.

68. Finally, no Aboriginal archaeological site records are identified within the study undertaken by Archaeological Management & Consulting Group in preparing the Aboriginal Due Diligence Archaeological Assessment dated October 2023.

69. I note the site is not located within the surf zone to which s 2.10(1)(g) is directed, and does not currently provide access to the foreshore which is a matter for consideration at subs (1)(e), and at s 2.11(1)(a)(i) of the Resilience and Hazards SEPP.

70. While no overshadowing or wind tunnel impacts are identified, to the extent the waterway of Winji-Jimmi Bay is a public place (s 2.11(1)(a)(ii)), it is relevant to record that no views to the foreshore are lost by the development and that the experts in this matter agree that those views to the foreshore are improved by the proposal such that the visual amenity of the coast may be enhanced (s 2.11(1)(a)(iii)).

71. On the basis of the above, I am satisfied that the development proposed in the coastal use area is designed, sited and will be managed to avoid an adverse impact of a kind set out in s 2.11(1)(a) of the Resilience and Hazards SEPP.

Public submissions

68. Written submissions received by the Council in response to the public notification of the development are contained in the bundle of documents tendered by the Council (Exhibit 3).

69. In addition, four oral submissions were heard at the onsite view from residents of properties in the immediate vicinity of the site. Notes relied on by those residents form part of Exhibit 1.

70. A recurring concern of residents arises from what may be characterised as poor design and technical compliance of the berth locations and layout, and the risks associated with variables like wind, tide, depth and turning circles of vessels in the vicinity of the proposed berths.

71. A Navigation Impact Assessment Report prepared by Royal Haskoning DHV dated 31 May 2024 assesses the proposal in the form it was when filed with the Court on 19 March 2025 (Navigation Report) (Exhibit A, Tab 8).

72. The Navigation Report describes the berth geometry, water depth, wave climate and the navigation access distances between the water recreation structure proposed to Lot 8, and prior to the amendments summarised at [8], by reference to the relevant Australian Standard, AS3962:2020 Marina Design.

73. A careful read of the Navigation Report reveals references to wind and wave conditions, the required navigable water depth for entrance channels, internal channels and berths including provision of under-keel clearances of 500mm. Specifically, the Navigation Report notes the berth at Lot 8 may be exposed to a relatively narrow wind fetch to the north north-west that could generate a wind wave height of 0.4m and peak wave period of 1.6 seconds in a 50 year average recurrence interval. Otherwise, the Navigation Report assesses Winji-Jimmi Bay to be reasonable sheltered.

74. The Navigation Report concludes that the proposed development is generally compliant with AS3962:2020.

75. To the extent one submission expresses concern at the proximity of the proposed development to that of the berthing area at 50 The Avenue, I note the Navigation Report includes this vessel in its assessment and that subsequent amendments propose vessels of no more than 9m x 5m to those water recreation structures at Lots 7 and 8.

76. In respect of those safety concerns held by a resident opposite the site, the Court observes that fire service requirements are contained in Section 6 of AS3962:2020, and the Court is advised the Rural Fire Service operates fire fighting vessels.

77. I note the response provided by Ausgrid at [51] does not share the concern expressed by one resident that the transmission wires may “drape over boats and properties”, nor does the Materials Investigation Report at [47] identify deterioration in the sheet metal piling that would result in contaminated backfill leaking in to Winji-Jimmi Bay.

78. Where objection is taken to the visual appearance of the proposal, I accept the consensus of the experts that the low-sloping rock revetment incorporating intertidal benches, varied rock sizes, habitat features and estuarine vegetation is an appropriate treatment for the foreshore and that care has been taken to retain T64 and T66, and that replacement planting will compensate for the removal of T69.

Conclusion

79. Having considered the evidence of the experts, those matters that are jurisdictional pre-conditions to the grant of consent, and the public submissions received in respect of the proposal, I find the development deserving of the grant of consent, subject to conditions that are agreed between the parties.

Orders

80. The Court orders that:

81. The Applicant is to pay the Respondent’s costs thrown away as agreed or assessed as a result of the amendment of the development application in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW).

82. The appeal is upheld.

83. Development application DA2024/1409 for the partial demolition and removal of an existing marina, subdivision into eight lots, construction of a six berth marina on Lots 1-6, and construction of two water recreation structures (piers) on Lots 7 and 8, associated landscaping, works to the existing seawall and reinstatement of the natural foreshore within the W1 Zone is determined by the grant of development consent, subject to those conditions of consent at Annexure A.

T Horton

Commissioner of the Court

Annexure (384 KB, pdf)

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