Addenbrooke Pty Ltd v Woollahra Municipal Council

5 The main issue, as on the previous occasion, is the impact on views in the context of the planning controls. In that regard, the proposals are an improvement over the previous rejected proposal. The view impact issue now focuses mainly on three aspects: loss of Harbour views from the Rose Bay Promenade as far as Manly caused by the proposed RBM; loss of views from the Wunulla Residences caused by the proposed PPM; and the impact of both proposed marinas on views from Rose Bay beach.

6 I acknowledge the assistance of Acting Commissioner Adam. THE DEVELOPMENT PROPOSALS 7 The development proposal in the earlier appeal was described in my earlier judgment at [8] - [21] and in the plan annexed to that judgment. The new RBM proposal is substantially changed. The new PPM proposal incorporates five important changes made at the hearing, summarised at [11] below. 8 The proposals are indicated in the following plans annexed to this judgment and marked as follows: "A" a plan showing the proposed marinas overlaid over the existing marinas. "B" a plan showing details of the proposed RBM. "C" a plan showing the proposed PPM incorporating the important changes made by the applicant at the hearing, summarised at [11] below. 9 By removing swing moorings between the two proposed marinas, a clear channel about 50 metres wide at its narrowest point is proposed to be created between them, beyond the remaining swing moorings, in front of Rose Bay beach and south and south-east of the PPM. This channel is narrower than that proposed in the earlier proposal due to the new north-south alignment of the three arms of the RBM compared with their east-west alignment in the earlier proposal. Rose Bay Marina Proposal 10 The main features of the new RBM proposal are said by the applicant to be responsive to the Court's judgment in the previous appeal, as follows:

(a) number and orientation of boats. In my earlier judgment at [108] I said "…the proposal is likely to have a substantial impact. This is largely caused by the number, density and size of boats accommodated at Rose Bay Marina in berths, which are viewed parallel to the Esplanade from a public space". At that time, the proposed RBM design aligned three arms in an east-west direction roughly parallel with the Promenade. Under the new RBM proposal, a gangway will provide access from the northern end of the hardstand to the main floating walkway, which will be roughly parallel to the seawall and at a distance of approximately 60 metres from it. Three perpendicular arms will extend off the northern side of this walkway. The eastern arm, 80 metres long and 130 metres to the east of the marina building, will accommodate berthing pens on both sides and at the northern end for a total of 27 boats. The middle arm, 150 metres long and 50 metres to the east of the marina building, will accommodate berthing pens on both sides and at the northern end for a total of 44 boats. The western arm, 70 metres long and aligned with the western side of the marina building, will accommodate berthing pens on the eastern side and at its northern end for 11 boats plus tender berths. On its western side casual berthing and a fuelling berth are proposed. The boat storage on the eastern arm will accommodate 15 x 15 metre boats, 10 x 20 metre boats and 2 x 30 metre boats. The boat storage on the middle arm will accommodate 4 x 15 metre boats, 36 x 20 metre boats and 4 x 30 metre boats. The boat storage on the western arm will accommodate 8 x 20 metre boats and 3 x 30 metre boats. The proposed number of boats have been reduced to 119, comprising 82 berths and 37 swing moorings, compared with the previous proposal for 124 berths and no swing moorings; (b) Harbour views. In my earlier judgment at [94] I said, "For a significant distance along the Promenade and New South Head Road the boats will obscure prime views extending as far as Manly". The new RBM proposal, by the orientation and width of its aisles, has reduced the extent to which the proposed marina will interrupt views to the open Harbour as far as Manly. It also incorporates a viewing location for the public along the walkway parallel to the Promenade, between the middle and eastern arm. Nevertheless, the impact on views to the open Harbour remains a highly contentious issue; (c) size. In my previous judgment at [71] I said, "The existing marina berths, particularly at the Royal Motor Yacht Club, are significant elements in the western part of Rose Bay. However, they are of a size and scale that is compatible with Rose Bay and are not dominant structures." The new RBM proposal is for 82 berths compared with the previous proposal for 124 berths and the RMYC's 90 berths. However, the RMYC is not located in as sensitive an area as the RBM; (d) Shark Island/Woollahra Point viewline. In response to my previous judgment at [111], the new proposal, by reducing the size of the proposed RBM and moving it further to the west, does not obstruct views of Shark Island from the point where it visually separates from Woollahra Point. Point Piper Marina Proposal 11 At the commencement of the hearing the PPM proposal was the same as the proposal in the earlier appeal: two parallel east-west arms roughly perpendicular to the shore, linked by a walkway. However, five important changes were made during the hearing as depicted on a plan annexed to this judgment, as follows: (a) the north-south walkway connecting the two east-west arms is moved about 40 metres further east to a point about 114 metres from the shore in front of the Wunulla Residences; (b) the tender berth and work berth on the northern side of the southern arm are relocated to the southern side of that arm. That leaves the northern side of that arm unoccupied except for one berth at the very end. (c) the casual berth at the western end of the northern arm, where it was rather confronting for the Wunulla Residences, is relocated to the southern side of the southern arm. On this side there is not to be a dedicated casual berth. Rather, there is to be a dedicated fuel berth nearest the channel between the marinas but otherwise it is designated, without differentiation, for a tender berth, work berth, slipway holding berth and casual berthing; (d) one 10 metre berth at the south-western end of the northern arm was eliminated; (e) in response to navigation issues, the fuel berth was moved from the very eastern end of the southern arm just around the corner to the south-eastern end. 12 The first four changes significantly reduce visual impact and improve privacy for the Wunulla Residences. The relocation of the tender and work berths is particularly beneficial for the aspect from Nos 5A and 7 Wunulla Road. The relocation of the casual berth is also more visible to, and handier for, visiting boats. 13 In my judgment in the earlier appeal at [66], I expressed the view that the proposed PPM will not have an unreasonable visual impact but will impact on views from properties in Wunulla Road. This requires complete reconsideration in light of the changes made to the proposal during the hearing of the current appeal and the new evidence and submissions, particularly from the Wunulla Residents. Boat Storage 14 The current and proposed boat storage capacities are as follows: Berths Swing Moorings Total Current: RBM 29 72 101 PPM 23 100 123 Total 52 172 224 If both RBM 82 37 119 marinas approved: PPM 35 24 59 Total 117 61 178

15 The current and proposed berth sizes are as follows: Point Piper Marina Berth size Proposed Proposed Current Current Up to 10m 7 5% 3 2% Up to 15m 6 4% 16 10% Up to 20m 13 9% 4 2% Up to 25m 8 6% 0 0% Up to 30m 1 1% 0 0% Swing Moorings Point Piper Marina 65 45% 100 60% Total 100 70% 123 100%

Rose Bay Marina (If Point Piper Marina DA Approved) Berth Size Proposed Proposed Current Current Up to 10m 0 0% 5 3% Up to 15m 19 13% 20 12% Up to 20m 54 38% 4 2% Up to 25m 0 0% 0 0% Up to 30m 9 6% 0 0% Swing Moorings Rose Bay Marina 37 26% 72 43% Swing Moorings Point Piper Marina 24 17% 65 39% Total 143 100% 166 100%

Rose Bay Marina DA (If Point Piper Marina DA refused) Berth Size Proposed Proposed Current Current Up to 10m 0 0% 5 3% Up to 15m 19 13% 20 12% Up to 20m 54 38% 4 2% Up to 25m 0 0% 0 0% Up to 30m 9 6% 0 0% Swing Moorings Rose Bay Marina 37 26% 72 43% Swing Moorings Point Piper Marina 59 41% 100 60% Total 178 124% 201 100%

16 Further details of the current swing mooring capacities are as follows:

Point Piper Marina Rose Bay Marina Swing Moorings Swing Moorings

Occupied 58 Occupied 45 Vacant 24 Vacant 19 Missing (Not Laid) 18 Missing (Not Laid) 8 TOTAL 100 TOTAL 72

CONTENTIONS Council 17 The council contended that matters of ecology, noise, lighting, navigation and safety may be resolved by conditions of consent and withdrew its contentions in relation to parking. Its remaining contentions are as follows:

(a) visual Impact. The visual impacts from the Rose Bay Promenade, New South Head Road and Wunulla Road will be unacceptable with regard to: * Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (Harbour REP) clauses 2(1) & (2), 17(2) W5 zone (d) & (g), 25 & 26. * Sydney Harbour Foreshores & Waterways Area Development Control Plan for SREP (Sydney Harbour Catchment) 2005 (Harbour DCP), clauses 3.2, 4.2 & 4.7. The particulars for the RBM are that there will be an adverse effect on views to Manly from the Rose Bay Promenade, views from Rose Bay Beach, and views from New South Head Road and adjacent residences. The particulars for the PPM are that there will be an adverse effect on views from Rose Bay Beach, views from Wunulla Road residences, and views from the footpath adjacent to Wunulla Road. (b) access to the waterway. The reduction in the number of swing moorings will unreasonably restrict access to the waterway and would be contrary to: * the Harbour REP cll 2(1)(f), 22(b) and 27(a). * the Harbour DCP cll 4.2 and 4.7 - Location. (c) heritage. The proposal will block views from the Rose Bay Promenade and New South Head Road to Shark Island which is a heritage item, contrary to cl 59 of the Harbour REP. This contention is factually incorrect and I reject it. (d) Public interest. The proposal is not considered to be in the public interest as the disbenefits in terms of loss of amenity to public areas in the vicinity of the marina and to the users of those public areas outweigh the public benefits that the proposal would create. Committee 18 The Committee supported development consent for both marinas, subject to conditions to the following effect:

(a) the maximum length of vessels should be 20 metres and their maximum height 5.75 metres above the waterline, in order to mitigate the overbearing impact of the larger vessels. This would reduce the length of eighteen berths (these restrictions also appear in the council's conditions of consent); (b) mooring piles should be reduced to 3.2 metres above mean high water mark, carry a 50 mm diameter, 1.6 metre high guiding rod to assist berthing, and be painted in a recessive colour to blend with the landscape. This contention ultimately appears to have been abandoned.

19 The Committee contended for the following conditions of approval for the PPM:

(a) the southern arm should be reduced in length by 15 metres, that is, no further eastward than the existing marina structure, in order not to encroach on existing public views of the Harbour from the northern portion of Rose Bay Park; (b) the existing star mooring, which accommodate six boats, should be removed and substituted by a single swing mooring, because the concentration of boats in the area presents a major visual bulk and obstructs Harbour views from the shore; (c) the north-south walkway should be placed 50 metres further east and access to all 15 metre berths should be limited to the northern arm. This is in order to ameliorate the intrusion on the privacy of the Wunulla Residences, as with proposed conditions (d) and (e) below. As indicated earlier, during the hearing the applicant substantially accepted this proposal by proposing that the walkway be moved about 40 metres to the east. There is only one permanent berth proposed on the southern arm: a 15 metre berth on its northern side adjacent to its end; (d) no casual berths be provided on the western side of the marina. As indicated earlier, the applicant adopted this proposal during the hearing; (e) a maximum length of 10 metres be applied to vessels on the western side of the marina. 20 The Committee contended for the following conditions of approval for the RBM:

(a) reduce the length of the middle arm by deleting four 20 metre berths, for two reasons. First, to achieve visual separation between the RBM and the RMYC so that they are not perceived as a single unit from the Rose Bay Promenade; as proposed by the applicant, the RBM would overlap and blur into the visual catchment of the RMYC, so that the two marinas present a visual unity of overwhelming bulk and scale. Secondly, to reduce the impact of the proposal on the Harbour views of the Wunulla Residents; (b) the middle and eastern arms be orientated 4 degrees to the west, for two reasons. First, in order that eastbound car occupants at the Cranbrook Road traffic lights have a clear view to the eastern shore of Rose Bay, north of Lyne Park, and northbound car occupants in Cranbrook Road have a clear view to the northern shore of Sydney Harbour. Secondly, in order to enhance views of Sydney Harbour from the Rose Bay Promenade. During the hearing, the applicant indicated that it would be amenable to such a change although it acknowledged that it would require an assessment before it could be approved; (c) reduce the length of the western arm by 45 metres by deleting seven berths and restricting the length of vessels to 15 metres, in order to reduce obstruction of public views to the Harbour from Rose Bay Park and beach and to not infringe the riparian rights attaching to the Rose Bay Park grasslands. (d) maintain a 15 metre wide passage under the gangway to the marina having an average height of 1.4 metres and a minimum height of 1.2 metres above AHD. This would require removal of three berths proposed at the northern side of the existing office structure. (e) it is said that the scale of the hardstand adjacent to the marina is excessive and visually unsympathetic to the scale of the marina office/restaurant structure. A condition is proposed that the area of hardstand supporting the fuel store be reduced by approximately 50 per cent; and that the hardstand be constructed with timber decking and furnished with planter boxes at the perimeter and public seating, and be designed in conformity with current NSW Government Department of Environment and Climate Change guidelines relating to sea levels. The last point is said to be because it is unclear that the hardstand area is adequately responsive to the implications of expected rise in sea levels. Wunulla Residents 21 The Wunulla Residents (the third respondents in the PPM appeal) contended as follows:

(a) they generally adopt the council's contentions; (b) the development is inconsistent with the aims and principles of the Harbour REP generally; (c) the development is inconsistent with the planning principles for land within the Foreshores and Waterways Area as defined in the Harbour REP, particularly as the application would have the effects stated in (e) below; (d) the development is inconsistent with the objectives of W5 Zone, particularly as the application would have the effects stated in (e) below; (e) the following are additional reasons for refusal: (i) the change in character of the waterway and setting of the Harbour as viewed from surrounding vantage points and private properties; (ii) alienation of public waterway for private commercial use; (iii) the change in character of adjacent residential properties, to a more commercial character, contained by the expanded marina and RMYC: currently waterfront, they will effectively become marina fronted; (iv) amenity impacts from the operations associated with the PPM; (v) amenity impacts from the layout of the proposed marina; (vi) the cumulative impact of the marinas upon the setting of the waterway as viewed from residential properties with the development of the proposal: (a) in the light of the existing development of the RMYC, which already diminishes this outlook and the bay character; (b) with the Rose Bay Marina proposal; and (c) all three operational together; (vii) view impact from private residences; (viii) visual enclosure of open waterway and foreshore of existing residential properties; (ix) further intensification of commercial operations associated within the marina; and (x) inconsistency with the equitable use of the waterway and the division of waterway. 22 The Wunulla Residents submitted that the PPM appeal should be dismissed because:

(a) the proposal unreasonably moves the substance of its bulk from an area in front of its land based component to an area in front of private residences; (b) the consequences include an unreasonable visual impact on the Wunulla Residences; and (c) the character of openness gives way to a sense of enclosure and feeling of exclusion from the general waterway. 23 As regards the relative importance of the public and private domain, the Wunulla Residents submitted that to the extent that the planning controls emphasise the importance of the public domain and the public interest, that is a matter of heightened sensitivity and priority rather than a downgrading of impacts on the private domain. 24 As regards zoning, the Wunulla Residents submitted that:

(a) the zoning anticipates that there may be a commercial marina, which may comprise fixed berth or swing moorings or a combination of the two, subject to an appropriate design and consistency with zone and plan objectives and s 79C considerations. (b) the word "minimal" in W5 zone objective (c) means that a commercial marina must be designed with as little impact as possible. Mr Moody's design demonstrates that a redevelopment of PPM is possible with less impact, and that the division of waterway guide in the Harbour DCP can be exploited with an appropriate result. It follows that the PPM proposal is inconsistent with zone objective (c). 25 As regards visual impact and view loss, the Wunulla Residents submitted:

(a) is necessary to determine what the view impact will be: Addenbrooke at [68]. Of assistance in undertaking the task, is the Court's decision in Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140, 134 LGERA 23 at [25] - [29]; (approved in Taralga Landscape Guardians Inc v Minister for Planning [2007] NSWLEC 59, 161 LGERA 1 at [149]); (b) the applicant failed to carry out the visual assessment in accordance with the DCP because the DCP requires the typical largest vessel of each relevant length in the berths. Mr Rowan carried out the assessment required by the DCP and measured the impact from the foreshore level of the Wunulla residences at 2.8 (3.0 represents a high visual impact); (c) the division of waterway control in cl 4.2 of the Harbour DCP is relevant as a point of reference for a planning decision. NSW Maritime's Domestic Leasing Procedure is irrelevant because it relates to a different matter (the decision-making process about landowner's consent). There is no specific distance into the waterway to which the division is measured. The division goes as far as it is logical to go in the circumstances of a particular case - to the point where the existing character of the waterway is retained (as Mr Rowan described it); (d) the views from the Wunulla residences are superb and are framed by the existing marinas rather than dominated by them; (e) the conclusion of the visual experts as to the actual impact on the views from the Wunulla residences are stated in the joint report. The assessment from the foreshore level is high or medium; it is misguided to dwell on the fact that the visual impact is reduced at higher levels; (f) the photographs are telling while the photomontages disguise the real impact (see council's submission); (g) a movement of the bulk to the centre of the space in front of the Wunulla Residences combined with the walkway is a radical change to the outlook and character; (h) the opening up of the south-eastern view by lesser bulk where the present PPM is located, is a misconceived benefit. It is the shortest of the available views, at an angle, and is not a prime outlook. 26 The Wunulla Residents submitted that the character of Rose Bay is made relevant by the Harbour REP cl 17 W5 zone objectives (d) and (g) and the DCP visual impact assessment provisions; that the PPM proposal changes the character of this part of Rose Bay by introducing a real sense of enclosure due to the walkway and the wall of boats and by creating a feeling of exclusion; that this part of Rose Bay becomes the preserve of the marina; and that this outcome is contrary to the zone objectives, particularly cl 17 W5 zone (d) and (g) and cl 25(b) of the Harbour REP. This is interwoven with the visual impact issue with which the hearing was largely concerned. 27 The Wunulla Residents submitted that any public benefit is illusory. The availability of an improved marina to sufficiently well heeled members of the public is said not to be a general public benefit. There is no plan to upgrade the inclinator and there is difficulty in accessing the PPM, especially by disabled persons. Pedestrian access to the marina is a modest benefit. Access for refuelling and waste disposal for a fee is said to be the same as saying a service station on Parramatta Road is a public benefit. A limitation on the use of the refuelling facility by condition because of its new location further reduces the asserted benefit. 28 The Wunulla Residents submitted that the present traffic situation is unacceptable, the PPM proposal fails to provide for parking or to alleviate the parking problem; and this is sufficient reason to refuse the development application. I do not accept this submission. It ignores the contrary, unchallenged report of the parking experts. 29 The Wunulla Residents submitted that the PPM proposal is unequitable because it provides a benefit to some at the expense of many. Objectors 30 Many residents of the area (in addition to the Wunulla Residents) wrote objections to the council and several voiced their concerns on the view and in court. Their main objections related to the impact of the development on the public domain, particularly, loss of character of Rose Bay, view loss, traffic/ parking issues, noise, water and air pollution, and risk to smaller crafts such as kayaks and canoes: 31 Twelve objectors gave evidence. Jill Sailer was concerned with the visual impact of the decrease in swing moorings and an associated increase in fixed berths, which she considered resulted in irreparable loss of charm for Rose Bay. She was concerned about the regional view from Bellevue Hill. Karin Olah expressed concerns relating to noise from parties on vessels, fuel deliveries at all hours, effluent draining and light pollution. She was also concerned that as parking in the area was already at a premium the proposals would exasperate an already unacceptable situation.

32 June Poland emphasised that Rose Bay has one of the finest publicly accessible views to Sydney Harbour. The area is frequently visited by people from other areas, including from overseas. The Promenade was recently refurbished and is the area where locals and visitors alike enjoy the views. Such enjoyment is not limited to walkers but also motorists and tourist coaches. She considered that the proposals will replace the present views with a wall of boats. Peter Poland, of the Woollahra History and Heritage Society, stated that New South Head Road was popular with tourists since the time of its construction in 1930. The Promenade is the finest of its type in Australia and a heritage item. The proposals would not enhance views as required by the DCP. If approved, there would be a permanent blockage of views by boats. There has been a consistent approach by the Council and NSW Maritime to protect the area.

33 Helen Sharwood was concerned that the Rose Bay proposal would result in loss of views from the Cranbrook Road traffic lights. She considered that the marinas would overwhelm the area. She also expressed concerns as to traffic, parking and pollution. Stephen Tait was concerned that the RBM would jeopardise kayak and dinghy safety. In particular there would be more conflict between large vessels and small craft, leading to a greater opportunity for accidents. He provided a diagram that highlighted the area of high risk. Con Kotis was concerned with the overdevelopment of Rose Bay. The loss of views from Rose Bay beach and the enclosure of the bay were of great concern. This would result in a loss of amenity at Rose Bay beach. Mr Kotis provided 10 photographs of the activities that take place on the beach. Janet Barlow outlined the recreational use of Rose Bay beach, including as an area to walk dogs and allow children play. She was concerned that the proposals would adversely affect the amenity of the beach, including a feeling of enclosure.

34 Patricia Horsley was concerned with the changing character of Rose Bay and of the loss of views to be experienced from her unit on New South Head Road. Mary Burns was particularly concerned with the loss of views from her unit on New South Head Road. She thought that the block of boats also altered the character of the bay.

35 Maureen Clark raised a number of matters but highlighted the need to protect the bay. Sue Donato raised concerns as to the changing character of Rose Bay. She emphasised the recreational uses of the shoreline of the bay, both organised and informal. She also questioned the fairness of the proposals, which she said benefit such a small fraction of the community.

PLANNING CONTROLS 36 I addressed the planning background and controls in my judgment in the earlier appeal at [42] to [64].

37 On this appeal, expert planning evidence was given by Mr James Harrison for the applicant, Mr Tony Moody for the council and Mr Anthony Rowan for the Wunulla Residents.

38 Section 79C of the Environmental Planning and Assessment Act 1979 requires consideration of, among other things, the Harbour REP, the Harbour DCP, the likely impacts of the development and the public interest. That means they must be given weight as fundamental elements in, or focal points of, the decision-making process: Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales & Raymond Sewell [2009] NSWCA 198 at [73] per Spigelman CJ (Macfarlan and Young JJA agreeing). 39 In 2005 the Harbour REP lifted a moratorium on commercial marina development on Sydney Harbour. The reasons for the moratorium and for the government's intention to lift it to permit marina development and the expansion of existing commercial marinas in suitable locations were explained in the governmental Boat Storage Policy for Sydney Harbour of June 2004, from which I quoted at length in my earlier judgment at [43]. The Boat Storage Policy stated that there was a clear trend towards larger and motorised boats rather than sailing boats, suggesting a future growth in demand for fixed berth storage rather than moorings; that many marina operators were looking to convert commercial swing moorings to fixed marina berths to meet the anticipated demand; that there are a number of precincts including Rose Bay in which demand for change may be most pronounced; that "the Government will lift the moratorium to permit marina development and the expansion of existing commercial marinas in suitable locations"; and that commercial marinas will be generally allowable in certain locations if (among other things) the visual impacts of the development are "acceptable", subject to proper consideration through the development assessment process. Harbour REP 40 The Harbour REP places an extraordinary emphasis on the environment of Sydney Harbour and the priority of the public good over the private good. However, although it places the impact of development on private views, such as those of the Wunulla Residences, at a lower level of importance than the impact on public views, the impact on private views remains of importance.

41 The council, supported by the Wunulla Residents, contends that the visual impacts of the proposals are unacceptable with regard to cll 2(1) and (2), 17(2) Zone W5 objectives (d) and (g) and 25 and 26 of the Harbour REP.

42 Clause 17(2) of the Harbour REP provides: " 17 Zoning objectives

… (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." 43 The "aims of this plan" are set out in cl 2 of the Harbour REP and include the following: " 2 Aims of plan

(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, … (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." 44 The Harbour REP zone in which it is proposed to carry out the marina development is Zone W5 - Water Recreation. Commercial marinas are permitted with consent in that zone, and are defined as follows: " commercial marina means a permanent boat storage facility (whether located wholly on land, wholly on the waterway or partly on land and partly on the waterway) together with any associated facilities, including:

(a) any facility for the construction, repair, maintenance, storage, sale or hire of boats, and (b) any facility for providing fuelling, sewage pump-out or other services for boats, and (c) any facility for launching or landing boats, such as slipways or hoists, and (d) any associated car parking, commercial, tourist or recreational or club facility that is ancillary to a boat storage facility, and (e) any associated single mooring,

but does not include a boat repair facility or a private marina."

45 In Rose Bay, Zone W5 extends from west of Lyne Park to north of the RMYC. A narrow strip of water along the shoreline north of the RMYC is zoned W6 Scenic Waters: Active Use, in which commercial marinas are permissible with consent. However, consent for a commercial marina of the type proposed here is unlikely in Zone W6 because its objectives suggest that large boats are discouraged. The only location in Zone W5 in Rose Bay that would accommodate commercial marinas of the type proposed here is in the western part of Rose Bay, in the general area in which the existing marinas are located. 46 The objectives of Zone W5 are as follows: "(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." 47 Zone objective (d) allows a marina where (among other things) it is demonstrated that it meets a justified demand. There is a trend toward larger and more motorboats, generating a demand for berths (as distinct from swing moorings) (referred to at [39] above). I would characterise the demand as justified. There are benefits to the general and boating public: see [72] below. The visual outcome has to harmonise with the planned character of the locality which, in the present case, includes the DCP's applicable Landscape Character Type 10 (discussed below at [58]). 48 As regards W5 zone objective (g), the appropriateness of the size and scale of the proposed development to the locality should be assessed in the context of the pre-existing marinas. The W5 Zone objectives do not contain any provision equivalent to objective (d) of Zone W6, which specifically relates vessel size to impact on scenic values: "(d) to minimise any adverse effect on views to and from waters in this zone and on the scenic values of the locality as a result of the size of vessels capable of being accommodated within the development".

49 As held in my earlier judgment at [97], a commercial marina of some sort in this part of Rose Bay is consistent with the planning controls.

50 The council submits that the W5 zoning, rather than specifically promoting commercial marinas in this area of Rose Bay, simply restates what presently exists having regard to the fact that this is the only part of Rose Bay where fixed berth marinas could be located. I think that the submission goes too far, having regard not only to the W5 zoning provisions but also to the context of the lifting of the moratorium on the development of commercial marinas.

51 The permissibility under the zoning of new marinas in this area is a neutral factor. However, in my opinion, there is an assumption that they will be permitted if they are consistent with the aims of the Harbour REP and the objectives of the zone and are appropriate having regard to the planning controls. The definition of "commercial marina" in the Harbour REP indicates that it may be in a built form (as distinct from swing moorings) since four of the five illustrations are of a built form: see [44] above. 52 Under cl 17(2) of the Harbour REP, the Court must be satisfied that the proposed development is consistent with the aims of the plan and the objectives of the W5 zone. In contrast to cl 17(2), there is a raft of other matters for "consideration" in Part 3 Division 2 (cll 20-27), which I have considered. They include cl 22(b), which requires consideration of public access to and from the waterways for recreational purposes such as boating, which I think the proposals improve. Clauses 24-27 include the following provisions: " 24 Interrelationship of waterway and foreshore uses

The matters to be taken into consideration in relation to the interrelationship of waterway and foreshore uses are as follows: (a) development should promote equitable use of the waterway, including use by passive recreation craft…

The matters to be taken into consideration in relation to the maintenance, protection and enhancement of the scenic quality of foreshores and waterways are as follows: (a) the scale, form, design and siting of any building should be based on an analysis of: (i) the land on which it is to be erected, and (ii) the adjoining land, and (iii) the likely future character of the locality, (b) development should maintain, protect and enhance the unique visual qualities of Sydney Harbour and its islands, foreshores and tributaries, (c) the cumulative impact of water-based development should not detract from the character of the waterways and adjoining foreshores.

26 Maintenance, protection and enhancement of views The matters to be taken into consideration in relation to the maintenance, protection and enhancement of views are as follows: (a) development should maintain, protect and enhance views (including night views) to and from Sydney Harbour, (b) development should minimise any adverse impacts on views and vistas to and from public places, landmarks and heritage items, (c) the cumulative impact of development on views should be minimised.

The matters to be taken into consideration in relation to boating facilities are as follows:

(a) development should increase the number of public boat storage facilities and encourage the use of such facilities, … (e) boat storage facilities should be as visually unobtrusive as possible, (f) in the case of permanent boat storage, the safety and utility of the development should not be adversely affected by the wave environment, and the development should avoid adverse impacts on safe navigation and single moorings." 53 There is some tension between the cl 26(a) consideration ("maintain, protect and enhance views"), on the one hand, and the cl 26(b) consideration (that development should "minimise any adverse impacts on certain views") and considerations under cll 25 and 27, on the other. I think that there has to be a balanced consideration of all the matters that are prescribed for consideration. 54 As regards cl 27(a), if both proposals are approved, the number of swing moorings will be reduced from 172 (occupied and unoccupied) to 61 (from 72 to 37 at RBM and from 100 to 24 at PPM). However, a substantial proportion of the current swing moorings are unoccupied and some are missing (not laid). Whilst the increase in fixed berths will provide greater storage opportunities to one sector of the boating public, the reduction in swing moorings reduces existing storage opportunities for another sector of the boating public, generally smaller boat owners. The change in proportions is justifiable in terms of the trend towards larger boats and more power boats identified in the Boat Storage Policy and the substantial proportion of vacant swing moorings at the current RBM and PPM. The replacement of swing moorings with more expensive fixed moorings will change the demographic of those seeking to moor their boats in the Rose Bay area, but will more accurately reflect demand. I agree with the planners, Mr Moody and Mr Harrison, that the reduction in swing moorings is not, of itself, a reason for refusal. Harbour DCP 55 The council contends that the visual impacts of the proposal will be unacceptable with regard to cll 3.2, 4.2 and 4.7 of the Harbour DCP. 56 Clause 3.2 provides: " 3.2 GENERAL AIMS All development should aim to: + minimise any significant impact on views and vistas from and to: - public places, - landmarks identified on the maps accompanying the DCP, and - heritage items…" 57 This aim is refined in cl 3.3 by reference to "landscape character types", which "provide a statement of character and intent for each landscape character type; and sets out the performance criteria that are to be met for development within each landscape character type." The relevant character type is Type 10: cl 3.4. A map in the Harbour DCP shows that landscape character Type 10 covers almost the entire sweep of Rose Bay between a point a little to the south of Woollahra Point in the west and a point just to the south of Sacred Heart Convent in the east. Clause 3.4 provides that development is suitable for these areas providing consideration is given to two elements: first, preserving the special natural features (including shorelines and beaches); secondly, "the role of commercial activities within these areas is recognised as providing an important recreational resource and improving public enjoyment of the harbour". The current proposal does not infringe the first element as it preserves "natural" features, including views of natural features such as Shark Island and the foreshores of Rose Bay. The second element recognises the public interest of facilitating commercial recreational activities and enjoyment of the harbour.

58 The performance criteria in cl 3.4 for landscape character Type 10 require satisfaction as follows: (a) it does not obscure, detract from or destroy special natural elements that are significant within the local context of the area; (b) the open nature of the bays is not lost by overdevelopment of the foreshores; and (c) it is demonstrated that the commercial activities proposed within and adjacent to the foreshores are necessary and that their proposed use is compatible with existing and likely future land uses. 59 Clause 4.2 of the Harbour DCP sets out objectives and requirements that must be considered for water-based and land/water interface developments including the following: o "public access to waterways and public land is maintained and enhanced; o … o the demand for the development has been established; o … o development is setback at least 2.5 metres from the division of the waterway as established by the NSW Maritime Authority and illustrated in Figure 4.

The following sections set out guidelines for particular types of development that generally must also be observed. Any variations to these requirements will only be permitted where it can be established that the objectives are met and that it is, therefore, unnecessary or unreasonable to comply with the requirements." 60 Clause 4.7 addresses visual impact as follows: " Visual Impact Note: For detailed provisions on how to undertake a visual impact analysis see Appendix D in this DCP. + the visual contrast (derived from an analysis of form, line, colour and texture) between the marina and the existing or planned future character of its setting is to be minimised; + the visual impact of the marina on people in the visual catchment (derived from an analysis of the potential number of viewers, their location within the landscape, distance from the marina, and duration of view) is to be minimised; + any visual analysis shall consider the impact of the largest motor vessel(s) capable of being berthed at the marina; + the largest vessels (motorised or otherwise) to be berthed at the marina are to be located as far from shore as possible; + waterside structures and berthed vessels associated with marinas are not to block views from foreshore public open space or views to foreshore public open space from the waterway…"

61 The detailed provisions on how to undertake a usual impact assessment in Appendix D of the DCP were considered in some detail in my earlier judgment at [74] - [80] and will not be repeated here. 62 Although the Harbour REP gives priority to the public good over the private good, Figure D4 in the Harbour DCP (an example of a completed View Analysis Matrix) supports the conclusion that the private good remains of importance. Figure D4 indicates that the numbers going into the matrix are objective measures of actual impact unaffected by private status. Figure D4 is for a small marina in a narrow bay with adjoining residences, park and local street. The highest potential visual impact was on a view from an adjoining private residence; and the caption to the figure states, "The Matrix indicates the marina design should address the visual impacts on the adjoining residence and to a lesser degree the views from the public domain (park and street)." The site characteristics for Figure D4 in the Harbour DCP are not the same as at Rose Bay and the numbers could be different for the proposed PPM. The overall visual assessment, for which the DCP View Analysis Matrix is but one input, takes a wider range of factors into consideration, including the aims of the Harbour REP and the objectives of the zone. 63 The Wunulla Residents' submissions placed emphasis on the minimisation of adverse visual impacts, given that that concept is a matter for consideration in various provisions of the planning controls.

64 The planning experts disagreed as to the effect of the setback provision in cl 4.2 of the DCP. The question is one of construction. Clause 4.2 of the DCP sets out a number of objectives and requirements that must be considered for "all water-based and land/water interface developments" (see [59] above). The last of these is: "development is setback at least 2.5 metres from the division of the waterway as established by the NSW Maritime Authority and illustrated in Figure 4." 65 Figure 4 is marked "Equitable division of waterways". That label may be compared with the expression "equitable use of the waterways" in cl 24 of the Harbour REP. I see Figure 4 as an attempt to introduce some specificity into the broad concept of "equitable", on which reasonable minds might otherwise hold widely differing views. Figure 4 shows four structures on four adjoining waterfront properties with dotted lines extending only a little way into the water as extensions, more or less, of the property boundaries. They are shown on a curved waterfront area such that if the dotted lines were extended much further they would intersect. 66 Mr Moody and Mr Rowan interpreted Figure 4 to impose a restriction on the proposed PPM notwithstanding that it is more than 114 metres (as amended during the hearing) from the mean high water mark in front of the Wunulla Residents' properties. I disagree for the following reasons. 67 The DCP defined "division of the waterway" to mean "a line, as defined by the Waterways Authority, which equitably delineates the waterway fronting respective properties". Plan No W02035 published by NSW Maritime, formerly called the Waterways Authority, establishes the division of the waterway (referred to in cl 4.2 of the DCP) at Point Piper by dotted lines extending about 15 metes into the water from high water marks, as criteria of the boundaries of the waterfront properties including those of the Wunulla Residents. In some cases the dotted lines are convergent, but in others they are divergent.

68 The question is whether the dotted lines should be construed as extending beyond where they are shown in Figure 4 in the DCP and in the plan published by NSW Maritime. If so, then the proposed PPM, which is substantially further to the east from where the dotted lines finish, will not comply with that setback. If not, the setback provision is irrelevant in the present case.

69 In my opinion, the question should be answered in the negative. In the first place, neither in the DCP nor in the plan is there any statement that the dotted lines are intended to continue indefinitely. Further, to construe them as continuing indefinitely leads to results that are irrational and difficult to reconcile with the notion of an "equitable" division of waterways to which Figure 4 in the DCP is expressly directed. For example, the dotted lines extending from the boundaries of 5A Wunulla Road are convergent such that before long they will intersect and thus a marina beyond the intersection would appear not to be subject to the setback. In contrast, the dotted lines from the boundaries of 7 Wunulla Road diverge and will never meet so that no structure in the entire Rose Bay could be put in that cone. There is no equitable division of the waterways in that example as between 5A and 7 Wunulla Road.

70 It is therefore necessary to identify some limit to the division of waterways. That limit is identified by the definition itself: the division is one defined by the Waterways Authority. The plans provided by the NSW Maritime (previously the Waterways Authority) define the extent of the division. The division extends only as far as the dotted lines shown in the plans, which is not as far as the end of the jetties to the Wunulla Road properties. The setback provision seems to be essentially about equitably managing potential conflict where a waterfront structure, such as a jetty associated with one property, can affect the opportunity for an adjoining property from benefiting from a similar structure. There can be no expectation based on the setback requirement that development of the waterways in the W5 zone for the purposes of a commercial marina would not be able to extend in front of their properties beyond their leased area.

71 It is unnecessary to go further, but, to the extent that they are relevant, this conclusion is reinforced, as the applicant submits, by the Domestic Leasing Procedures produced by NSW Maritime. Consistently with these Procedures, the DCP aims, in cl 4.2, to avoid conflicts on the land/water interface area. Clause 5.1 of these Procedures defines "Division of waterway" as "a line which has been determined by NSW Maritime and is plotted on plans to equitably apportion the areas of a waterway relative to the frontages of foreshore land parcels. The DoW is entirely administrative in nature and used to avoid disputes and is not intended to confer any rights upon any adjoining landowner." The Domestic Leasing Procedures indicate that the ·area of a domestic lease can be expected to be limited to the length of any structure below mean high water mark, plus a five metres area beyond the furthest extent of the structure. This suggests that, in the case of the Wunulla Residents, the division of waterway that they can reasonably expect extends only for the length defined, but may extend, upon application, to the length of any jetty, plus an additional five metres at the end. GENERAL BENEFITS 72 General benefits of the proposals include public access to the walkways of the marinas during normal business hours; a public viewing platform at the RBM; casual berthing for the general boating public; toilets available to the general public during business hours; fuelling and pump-out facilities for the general boating public; upgraded boating facilities; the provision of a navigation channel between the marinas; a reduced marina "footprint" through a reduction in swing moorings (although there is a greater concentration of boats creating a greater visual mass), and reduction in the ecological impact of swing moorings (chain drag impact on sea grasses). For the RBM only, the development will also provide benefits for improved (unassisted) disabled access including to Rose Bay Park and disabled access to vessels through the provision of a person hoist. 73 The council submits that the experts do not appear to have considered that there was a waiting list for swing moorings and that they are cheaper than fixed berths. Assuming that is so, I do not attach much weight to the submission because the evidence of waiting lists for swing moorings relates to public moorings made available by NSW Maritime. In contrast, there is a substantial proportion of unused available swing moorings at the existing RBM and PPM marinas; and there is evidence of a trend towards more and larger motorboats, which require an increase in fixed berths. VISUAL IMPACT 74 The important matter is to determine whether the visual impact of the proposal is acceptable given the planning framework. 75 Expert evidence as to visual impact and loss of views was given by Mr Allan Wyatt for the applicant and Mr Tony Moody for the council. Mr Anthony Rowan for the Wunulla Residents participated as regards the visual impact of the PPM and the cumulative impact of both proposals. The evidence of the applicant's expert planner Mr Harrison also touched on this issue.

76 Photomontages prepared by Mr Wyatt were tendered in evidence at various viewpoints along the Promenade, intersections along New South Head Road and from the PPM. This assessment found that visual impact was highest on locations along the Promenade within 150 metres of the RBM and that the proposed RBM blocks some harbour views. He considered the visual impact generally low and acceptable. 77 The visual experts agreed: (a) that the existing and proposed marina development in some form is permissible under the W5 zoning; (b) that swing mooring are generally responsible for lesser visual impact and loss of views compared to fixed berths; (c) that the existing marinas cause loss of views and visual impact; (d) that a high impact can be expected from a new or extended marina in front of existing residential development but that a higher impact can be expected from a new or extended marina in front of public open spaces. 78 One of the tools for making a visual impact assessment is the Harbour DCP cl 4.7 guidelines and its Appendix D matrix assessment which is specifically for marinas on Sydney Harbour. Mr Wyatt and Mr Rowan each purported to carry out such a matrix assessment. Another tool is the four step process introduced as planning principles for view sharing in Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140, 134 LGERA 23 at [25] - [29]; approved in Taralga Landscape Guardians Inc v Minister for Planning [2007] NSWLEC 59, 161 LGERA 1 at [49]. In APP Corporation Pty Ltd and City of Perth [2008] WASAT 291 at [55] these principles were found to be of assistance in a case involving interruption of views. The visual assessment experts did not expressly approach the matter by reference to the Tenacity four step process, but in substance they probably did. In short summary, the four steps are: (a) assess the views to be affected (eg. water views are valued more highly than land views); (b) consider from what part of the property the views are obtained; (c) assess the extent of the impact for the whole of the property (the impact on views from living areas is more significant than from bedrooms); (d) assess the reasonableness of the proposal (including whether a more skilful design could provide the same development potential and reduce the impact on views of neighbours). For example, as discussed below, in the case of the impact of the proposed PPM on the Wunulla Residences: (a) the views are valuable whole water views; (b) within the rooms the major views are front on and there are angled views to the side from some vantage points, (c) the major impact is on the foreshore (lowest) levels; and (d) the reasonableness of the proposal is the crucial question. 79 Mr Rowan and Mr Moody expressed concern that Mr Wyatt's photomontages relating to both marinas did not show the largest vessels that could be accommodated in all berths and therefore did not comply with one of the guidelines in cl 4.7 of the Harbour DCP that "any visual analysis shall consider the impact of the largest motor vessel(s) capable of being berthed at the marina". 80 Mr Wyatt explained that the photomontages were prepared to demonstrate the likely visual impact, based on his brief that both marinas would not be used solely for motorboats and were expected to have 20 to 40 per cent of sailboats. Sailboats have a much lower profile than motorboats. The visual qualities of the existing RPM are a result of this mixture and contrast with the boats at the RMYC, which are all motorboats. The vessels modelled in the photomontages comprised approximately 72 per cent motorboats and 28 per cent sailboats for the PPM, and approximately 81 per cent motorboats and 19 per cent sailboats for the RBM. Mr Wyatt provided details of their dimensions. He considered that his photomontages are conservative and give a realistic impression of the likely composition of the proposed marinas. He believed that in reality the level of visual impact will be less then shown on the photomontages. He said he had shown the maximum size of vessels that can be accommodated, but that to literally factor into every berth the highest motor vessels capable of being berthed would seriously distort the analysis. Mr Wyatt also argued that to literally use the highest vessel for every berth would involve scouring the world for the highest vessels. As to the last point, the council and the Wunulla Residents submit that it would be sufficient to pick the largest typical size. 81 Notwithstanding that, according to Mr Rowan, the boats currently within the RMYC (all motorboats) appeared to be between 5 and 6 metres in height, Mr Rowan took the extreme position that because the highest motorboat shown in the RPM montages was 9.1 metres, the Harbour DCP required that the photomontages should depict all boats at that height, to demonstrate the worst case scenario. His own Harbour DCP matrix assessment was created on that basis. 82 The "largest" boats scenario has the benefit that it shows the worst case scenario in a marina where the size of boats can change. On the other hand, although Mr Wyatt's assessment did not literally comply with that requirement, I accept that his selection of boats for the visual analysis was conservative as an assessment of what is expected. I do not propose to reject the proposal merely because of this controversy. 83 Criticism was also made of the fact that the photographs were taken at close to low tide. I take that into account although it does not appear to be contrary to any provision of the Harbour DCP. Rose Bay Marina 84 The perpendicular arms design of the RBM has been driven by two important views from the Promenade across Rose Bay and the Harbour and by the avoidance of a continuous line of boats parallel to the foreshore. One important view is from the Promenade towards Shark Island, where the form of Shark Island separates from Woollahra Point. This viewline is preserved as the eastern arm of the RBM does not interrupt it. Its preservation represents a considerable improvement in design compared with the horizontal arms design the subject of the previous appeal under which that viewline was lost. 85 The other important view is immediately east of the existing RBM where a viewline approximately eight kilometres in length is available across the Harbour to Manly. This viewline is substantially diminished by the proposed RBM, notwithstanding a view corridor between the middle and eastern arms and a public viewing platform and seating area incorporated into the walkway. This loss of view is the main controversy concerning the RBM proposal. 86 There are also some adverse visual impacts on parts of the adjacent New South Head Road and ground floor units on the opposite side of that road, but the expert evidence and submissions do not suggest refusal of the proposal on that ground alone. 87 The substantial loss of Harbour views to Manly is largely caused by the eastern arm of the proposed RBM. Notwithstanding a viewing channel between the middle and eastern arms, the loss can be measured as somewhere around 31 per cent of those existing views from various points on the Promenade and as a higher percentage of the more complete views. Therefore, the proposed RBM does not maintain views to and from the Harbour, which is a consideration under cl 26(a) of the Harbour REP. Given that the Promenade is a much used public asset of considerable aesthetic and heritage importance, the loss of these views is a considerable public detriment. 88 It is an insufficient answer to say that at present there is some loss of the same views caused by boats on swing moorings which the proposed RBM will replace. Berths tend to be occupied by larger, higher profile motorboats and are densely grouped, whereas boats on swing moorings present a moving spectacle and have a substantially less visual impact.

89 There was debate as to how Manly should be defined and as to whether particular features of Manly could be identified from the Promenade. I do not think that those matters are of much significance. However Manly is defined, particular features may not be apparent from the Promenade by day (at night when there are lights in buildings particular features might be more identifiable). What is important, in my opinion, is the expansive view of the Harbour and its headlands as far as Manly, rather than a view specifically of particular features of Manly, however Manly is precisely defined.

90 In my opinion, the loss of these important views to the large extent proposed, is unreasonable. Consequently, consent should not be granted to the proposal in its current form.

91 The Committee suggested that the views to Manly could be improved if the eastern arm were to be rotated some degrees. That was described by Mr Wyatt as a minor improvement and by Mr Moody as a very minor improvement. I do not think that it is a sufficient answer to the problem of loss of such views.

92 Mr Moody proposed a solution to maintain views to Manly: remove the eastern arm or shift the proposed RBM further westward. The council submits that, assuming this has acceptable impacts on other matters, including the view from Rose Bay beach, it demonstrates that the applicant has not done everything to maintain, protect and enhance views with its current proposal. I disagree that the proposed RBM should be moved further westward because I think that would unacceptably enclose the waterway in front of Rose Bay beach.

93 In my opinion, subject to consideration of the impact on Rose Bay beach and conditions, the RBM proposal would be acceptable if the eastern arm (including the portion of the walkway in front of it) were removed, the middle arm shortened by four twenty metre berths (i.e two on each side of that arm), the western arm shortened by two twenty metre berths, and a maximum height imposed for berthed boats as discussed at [135] - [140] below. The removal of the eastern arm reduces the loss of views to Manly from the Promenade to about 14.5 per cent, which is further reduced by the shortening of the middle arm as I have indicated. The shortening of the middle arm also assists in achieving visual separation between the RBM and the RMYC viewed from the Promenade, and reduces the visual impact of the RBM on the Wunulla Residences. The shortening of the middle and western arms reduces the visual impact on Rose Bay beach, as discussed below. 94 That leads to the question whether the Court has power to grant conditional development consent for the proposed RBM except for the eastern arm, or to grant approval subject to a condition that the eastern arm be deleted. The proposed RBM is modular and easily adapted to removal of the eastern arms and berths. The applicant submitted that the eastern arm should not be excepted; but that the Court has power to except it by a condition under s 80A(1) or under s 80(4) of the EPA Act; and that the Court should exercise the power if the Court decides that the eastern arm should be excluded.

95 The council submitted that the Court does not have power to impose a condition deleting the eastern arm, but subsequently put forward conditions to delete it and the associated walkway and to reinstate the swing moorings previously deleted to accommodate the eastern arm. As to the question of absence of power, the council relied on the principle in Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 737 per Priestley JA that "if a condition imposed upon a purported consent to a particular development application has the effect of significantly altering the development in respect of which the application is made, then the purported consent is not a consent to the application". The council points out that the deletion of the eastern arm would result in the loss of the walkway to that arm and the viewing platform and approximately a one third reduction in fixed berths at the RBM.

96 In Mison the Court of Appeal held invalid a development consent for a dwelling-house because it included the condition: "Overall height of the dwelling-house being reduced to the satisfaction of Council's chief town planner": at 736. The approved height remained to be determined and might fall at any point within an undefined range. Mison decided, in terms of s 91(1) - now s 80(1) - of the EPA Act, that the condition there under consideration was not a "consent" because of the significance of the issue left for further determination, and the consent was not a "consent to the application" because it left open the possibility that the further determination would significantly alter the development for which the application was made: see the analysis in Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17, 130 LGERA 508 at [16]. More generally, Mison decided that there are two potentially overlapping categories of conditions which may invalidate a development consent. First, a final and certain condition that significantly alters the development in respect of which the application is made. The consent is invalid because it is not a consent to the development for which approval was sought. Secondly, a condition which lacks finality or is uncertain so that, in substance, there is no effective consent to the application. The second category includes a condition that is final in that it does not foreshadow any further judgement but is in terms that are uncertain: Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23, 143 LGERA 277 at [24] - [28] and [54] - [55]. 97 There has been much statutory water under the bridge since Mison was decided, including the addition of ss 80(4) and (5) and 80A(1) of the EPA Act. Sections 80 and 80A relevantly provide: " 80 Determination

(1) General A consent authority is to determine a development application by: (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application. … (4) Total or partial consent A development consent may be granted: (a) for the development for which the consent is sought, or (b) for that development, except for a specified part or aspect of that development, or (c) for a specified part or aspect of that development.

(5) The consent authority is not required to refuse consent to any specified part or aspect of development for which development consent is not initially granted under subsection (4), but development consent may subsequently be granted for that part or aspect of the development.

(1) Conditions - generally A condition of development consent may be imposed if: (a) it relates to any matter referred to in section 79C (1) of relevance to the development the subject of the consent, or (b) it requires the modification or surrender of a consent granted under this Act or a right conferred by Division 10 in relation to the land to which the development application relates, or (c) it requires the modification or cessation of development (including the removal of buildings and works used in connection with that development) carried out on land (whether or not being land to which the development application relates), or (d) it limits the period during which development may be carried out in accordance with the consent so granted, or (e) it requires the removal of buildings and works (or any part of them) at the expiration of the period referred to in paragraph (d), or (f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 79C (1) applicable to the development the subject of the consent, or (g) it modifies details of the development the subject of the development application, or (h) it is authorised to be imposed under section 80 (3) or (5), subsections (5)-(9) of this section or section 94, 94A, 94EF or 94F." 98 A condition will be invalid if it falls outside the class of conditions permitted by the EPA Act. The addition, since Mison, of s 80A requires that that question be answered primarily by reference to its terms: Kindimindi at [57].

99 Prior to 1997, the provisions of s 80(4) were found in s 91AB(1) (inserted in 1993), which was headed "Staged Development". That heading was inappropriate, I think, since these provisions in their terms are not confined by the concept of staged development. The heading could be ignored: s 35(2)(a) Interpretation Act 1987. In 2005 the heading was removed from these provisions, which became subsection (4) of s 80, and staged development was dealt with separately in ss 83A - 83D.

100 The addition since Mison of s 80(4) is a qualification to the general principle that a consent must be a consent to the development application because it provides that a consent may be granted except, or for, a specified part or aspect of that development.

101 By reason of ss 80(4) and 80A(1)(a) and (g), the development approved may be substantially different from that applied for: Warehouse Group (Australia) Pty Ltd v Woolworths Ltd [2005] NSWCA 269, 141 LGERA 376 at [86] - [90] per Hodgson JA. The effect of such later statutory provisions on the Mison principles were considered in my judgments in Seyffer v Shoalhaven City Council [2006] NSWLEC 564, 149 LGERA 19 at [31]; GPT Re Ltd v Wollongong City Council [2006] NSWLEC 303, 151 LGERA 116 at [84] - [90]; Walker v Minister for Planning [2007] NSWLEC 741, 157 LGERA 124 at [178] - [189]; and Aldous v Greater Taree City Council [2009] NSWLEC 17 at [17] - [19].

102 The language of s 80(4) is plain. In my opinion, it empowers the Court to approve the RBM proposal except for the eastern arm and specified berths.

103 The same view of the predecessor to s 80(4) and an analogous course were taken in Lend Lease Development Pty Ltd v Manly Council (1997) 92 LGERA 420. That was a merit appeal against a council's deemed refusal of development consent to one application for residential subdivision and development of four areas of an estate, each area being in excess of one hectare. Pearlman J granted development consent under s 91AB(1) (now s 80(4)) in respect of one of the areas, modified by excision of two of the lots proposed thereon, and a second area but refused development consent in respect of the other two areas. Her Honour held that there was power to do so under s 91AB(1) and that this provision was plain and unambiguous: at 436.

104 The council submits that there is contrary authority in Carr v Minister for Land and Water Conservation [2000] NSWLEC 89, 109 LGERA 175. That was also a decision of Pearlman J. In that case application was made for development consent to clear native vegetation from a large area of land. The Minister's development consent was framed in a peculiar way. Although at first glance it granted consent for the development as proposed, that impression was dispelled by the conditions of consent which approved less than two thirds of that area and approved other areas for which no development consent had been sought. The strange situation followed where the applicant appealed on the merits to the Court seeking an order that his development application be refused because the consent was not of benefit to him as it related to development significantly different from that for which he applied. Pearman J determined to refuse consent on the merits. However, her Honour went on, obiter I think, to express the opinion, by reference to Mison per Priestley JA and s 80A(1), that it was not open to the Minister to do what he had done. The case is distinguishable. The Minister did not grant development consent in terms contemplated by s 91AB(1) (now 80(4)) but granted development on conditions including approval of areas for clearance for which no consent had been sought, which did not fit within s 80A(1). Nor was there reliance on s 91AB(1) in submissions to the Court. This probably explains why her Honour did not refer to that equivalent provision nor to her own earlier decision in Lend Lease.

105 I consider that it is appropriate to exercise the s 80(4) power by granting approval for the proposed RBM except for the eastern arm (including the walkway in front of it) and the berths to which I have referred on the middle and western arms, subject to conditions including a maximum height for berthed boats and subject to consideration of the visual impact on Rose Bay beach (discussed below). Point Piper Marina 106 The PPM proposal has now changed in five important respects from that proposed in the earlier appeal, as described at [11] above. Such is their importance and the light they cast, that I would decline to grant consent to the proposed PPM without those changes. 107 The visual experts agreed on the following in relation to the Harbour REP and DCP: (a) the proposed marina redevelopment is permitted under the current W5 zoning in some form consistent with the zone objectives: Addenbrooke at [55]. As examples, they referred to objectives in cl 17 (a), (b) and (g) of Zone W5; (b) cl 26(a) of the Harbour REP requires development to "maintain, protect and enhance views (including night views) to and from Sydney Harbour"; (c) in most cases it could be expected that the Court will approve an application to use the site for which it is zoned, provided the design results in acceptable environmental impacts: BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399, 138 LGERA 237 at [118] per McClellan CJ; (d) in terms of what are acceptable environmental impacts, "all impact assessment, including visual impact assessment is to be undertaken in a principled manner, recognising the weight to be accorded to visual considerations is particularly informed by the provisions of the relevant instruments, assisted by review of the studies and policy documents underlying them": Milne v Minister for Planning (No 2) [2007] NSWLEC 66 at [73] per Jagot J; (e) consistently with the Harbour DCP, swing moorings are generally responsible for lesser visual impacts and loss of views than fixed berths. Other known characteristics of marinas are noted in Appendix D to the Harbour DCP; (f) view loss and visual impact must take into account the context set by the planning instruments and policies, the available information about the significance of views and the observable attributes of the view: Milne at [78]. 108 The visual experts agreed on the following in relation to Mr Wyatt's visual assessment under Appendix D of the Harbour DCP, which was in the environmental impact statement accompanying the PPM development application:

(a) they agreed with the figures under "Overall Potential Visual Impact" for Wunulla Road being "low" but Messrs Rowan and Moody disagreed with the rating of "medium" for the Wunulla Residences; (b) the visual impact and loss of views from the PPM proposal alone on the public domain do not, of themselves, warrant refusal; (c) the existing PPM causes visual impact and loss of views that have to be taken into account in assessing the impacts of the proposal; (d) Figure D1 of Appendix D to the Harbour DCP indicates "that a high impact can be expected from a new or extended marina in front of existing residential development but that a higher impact can be expected from a new or extended marina in front of public open spaces": Addenbrooke at [76]; (e) the "proposed development will, however, impact on views from properties in Wunulla Road": Addenbrooke at [66]. 109 On the expert evidence, the visual impact of the PPM proposal on private residential properties is confined to the five multi-storey Wunulla Residences located between the existing PPM and the RMYC, particularly at the lowest foreshore level. The foreshore is somewhat less than 100 metres from the proposed PPM.

110 The Wunulla residences have extensive views across Rose Bay. All have indoor/outdoor recreation or living areas or swimming pools at the lowest foreshore level; and four have a private jetty, two with boatsheds. No 7 has a particularly large dining room at the lowest level. 111 There was debate as to whether the lowest levels of the Wunulla Residences should be classified as the "principal" living spaces. That may depend on their pattern of usage, which could vary between seasons, over time (for example, as children grow up), according to whether it is day or night, and according to the mix of people and the occasion (eg an informal family gathering or a formal dinner engagement). A particular Residence could have more than one "principal" living space, according to how residents from time to time choose to use it.

112 In considering the impacts for the Wunulla Residences, a different factor needs to be considered than for analysing impacts of the RBM on users of the Promenade or passers-by on New South Head Road, in that for the Wunulla Residences the proposed PPM will be a constant presence.

113 On the other hand, it should be taken into account that the current views from the Wunulla Residences at the foreshore level are not of Rose Bay in its natural state and are partly obstructed by their own or each others' jetties, boathouses and boats, the existing PPM laterally to the south, the RMYC laterally to the north, and boats on swing moorings in fairly close proximity in front. The more distant view of the Vaucluse shore of Rose Bay shows the natural landform but built form is also prominent. 114 Under the proposed PPM the major visual mass of boats at fixed berths experienced by the Wunulla Residences will be moved from the right (south) of the view to the centre and left (north) of the view and will be larger.

115 Mr Wyatt and Mr Moody, with whom I agree in this respect, considered that from the upper levels of each residence the visual impact would be low and insufficient to warrant refusal. Mr Rowan considered the impact would be medium. 116 Mr Rowan and Mr Moody considered that the proposal would unreasonably impact on the Wunulla Residences at the foreshore level. Mr Wyatt held the opposite view.

117 Three features of the proposed PPM development were identified by Mr Moody as bringing about, in his opinion, unsatisfactory visual impact on the Wunulla Residences, at least at the foreshore level:

(a) the general setback requirement of cl 4.2 of the Harbour DCP; (b) the Wunulla Residences at their lowest level enjoy a very positive aspect characterised by modest jetties, boat sheds and boats on swing moorings, with the existing PPM and RBM not being overly intrusive elements. The current proposal will introduce a significantly increased density of boats and other structures in the existing view; (c) the reduction of swing moorings and replacement by fixed berths and associated structures will increase the sense of enclosure. 118 Mr Rowan considered the same matters. He prepared his own visual assessment matrix under Appendix D of the Harbour DCP to show an overall high potential visual impact from the foreshore level or lowest level of the Wunulla Residences. Mr Wyatt, the applicant's visual expert, did not do a matrix for the Wunulla Residences. Mr Rowan considered that his rating should be raised and that the term "devastating" was apt because the proposal was "unexpected". In that regard, he referred to dicta in Double Bay Marina v Woollahra Council [2009] NSWLEC 1001 at [61] per Roseth SC, "… better accommodation for one's boat is a convenience, whereas the loss of water views is a devastating (and, in a waterfront dwelling, unexpected) experience". Mr Rowan argued that (a) there was no expectation from the planning controls for a commercial marina development to be extended in front of the Wunulla Residences; (b) the visual enclosure of the foreshore and the containment of the outlook of the Wunulla Residents behind built structures is excessive and outweighs the benefits of the development (identified by the parties' planners); and (c) the development does not adequately "maintain, protect and enhance views" appreciated from the Wunulla Residences and physically encloses the waterway adjacent to them. 119 In my opinion, the planning history relating to the lifting of the moratorium on commercial marinas and the zoning are inimical to any expectation that the Wunulla Residents might have of permanent open water views in front of their residences. Insofar as Mr Rowan's opinions assumed that expectation, they go too far. 120 Mr Rowan expressed concern that the new PPM will "privatise" a large area of public waterway. However, he conceded that the Wunulla Residents' jetties, which extend a substantial distance into the Harbour, effectively "privatised" their location and the areas between them (because of their proximity). Mr Harrison disagreed with the notion or significance of privatisation, saying that the marinas provide a public benefit and provide boat owners with enhanced and improved access to the Harbour. This has some force when coupled with the fact that this area of Rose Bay is zoned W5 in which built marinas of some sort are permitted. 121 In a report filed before the commencement of the hearing, while agreeing that the highest level of visual impact (loss of views and a sense of enclosure) is at the lowest (ie foreshore) level of each of the Wunulla Residences, the experts disagreed as to the degree of impact at that level. Mr Wyatt considered it was acceptable while Mr Rowan and Mr Moody considered it was unreasonable such that a redesign was required.

122 To my mind, the applicant's changes to the design made during the hearing, summarised at [11] above, substantially diminish the visual impact of the proposal in its pre-hearing form and improve privacy for the Wunulla Residences. The walkway is relocated 40 metres further to the east. The relocation of the tender berth, work berth and casual berth to the southern side of the southern arm significantly improves their aspect, particularly for Nos 5A and 7. There is only one berth left on the northern side of the southern arm and then only at the far end, as far away as possible from the Wunulla Residences. The boats on the southern arm are bow to the shore whereas at the current PPM they are parallel with the shore. The importance of these changes should not be underestimated, particularly when coupled with, first, the opening up of the view to the south-east as a result of relocation of berths on the exiting PPM to the northern arm (even though that is not the primary view); and, secondly, the height limit condition that I would impose as a condition of any consent (discussed below). 123 It is the new northern arm with its greater concentration of boats that has the main visual impact on the Wunulla Residences. There is also an element of framing from the southern arm and the walkway, mitigated by the opening up of views to the south-east.

124 The visual experts' assessments of the impact on views from the lowest levels, as indicated in their joint report, and my own assessment (assisted by my inspection) taking account of the changes made during the hearing and the other matters to which I have referred, are as follows: (a) 5A Wunulla Road is immediately adjacent to the existing PPM. It looks out at a line of boats berthed sideways to that view on a fixed height structure. Under the proposal, that line of boats gets moved to the north and added to; the new southern arm, although some metres to the north of the existing PPM, has nothing on its northern side except for one boat berthed as far from the shore as possible; and the tender, work and casual berths on the southern side are aligned bow on to the shore. The consequential opening up of the view to the south-east is, to my mind, a benefit for the Wunulla Residences, particularly Nos 5A and 7. Mr Moody and Mr Rowan considered there would be a high level of impact from the lowest level of 5A. Mr Wyatt considered it would be low. Mr Harrison considered the aspect would be better. I consider it would be medium. (b) 7 Wunulla Road has its view from the lowest level obstructed by its existing very large boatshed in the centre and framed by a hedge on the left and a hedge and the existing PPM on the right. Under the proposal the boats on the existing PPM are moved to the left beyond or behind the boatshed. Mr Moody and Mr Rowan considered that there would be a high level of impact from the lowest level. Mr Wyatt considered it would be low. Mr Harrison considered the aspect would be better. I consider the impact would be medium;

(c) 9 Wunulla Road has its view from the lowest level view framed by its existing boatshed towards the left and the existing PPM on the right. Under the proposal, the boats on the existing PPM are moved largely behind that boatshed. I agree with Mr Moody and Mr Rowan that from the lowest level there would be a medium level of impact. Mr Wyatt considered it would be low; Mr Harrison considered it would be a neutral impact;

(d) 11 Wunulla Road the boats are moved from the right hand side of its view to the left hand side and the boats on swing moorings in between are removed. I agree with Messrs Moody and Wyatt that from the lowest level there would be a medium level of impact. Mr Rowan considered it would be high. Mr Harrison considered it would be neutral;

(e) 15 Wunulla Road directly faces the new northern arm which will directly impact on its lowest level view. However, it is the most elevated of the Wunulla Residences and at the lowest level there is only a swimming pool. I agree with Mr Moody and Mr Rowan that from the lowest level there would be a high level of impact. Mr Wyatt considered it would be low; Mr Harrison considered it would be worse. However, as it has only a swimming pool at the lowest level, the significance of the impact is less than for the other Wunulla Residences at that level. 125 Mr Moody proposed a hook shaped redesign of the PPM proposal, as shown in a concept diagram that he produced, similar to the design of the adjacent RMYC. The long east-west arm almost overlaps the existing PPM. Mr Moody considered that the hook design would ensure a much more reasonable outcome both for the waterways generally and the Wunulla Residences in particular. By increasing the separation distances to the Wunulla Residences, he thought it would not create an unreasonable sense of enclosure for the Wunulla Residences.

126 Mr Rowan said that the difficulty he had with the current PPM proposal was that it removed the bulk of the boats from behind the existing PPM boathouse into the middle of the view from the Wunulla Residences. He noted that, in contrast, Mr Moody's hook design concentrates the bulk of the boats where they are at the moment, behind the PPM boat line; the boats at the furthest end of the hook are diminished in size when viewed from the Wunulla Residences; and there is a general overlap between that arm and the northern extent of the proposed RBM viewed from the Wunulla Residences. Ultimately, Mr Rowan said that he could see some merit in Mr Moody's hook design, that he did not oppose the principle of a hook design, and that if the hook is sufficiently far into the waterway such that the open character is maintained he would not have the same concerns regarding the view impact or changing character of the waterway.

127 The Wunulla Residents say that, while they do not embrace a particular design, the hook design establishes that a new marina can be designed with less impact than that which the applicant currently proposes, and that the hook design demonstrates that the division of waterway guide in the DCP can be exploited with an appropriate result. The Committee considers that the currently proposed PPM design is preferable, at least in part because it would be more in the shadow of the RMYC. The applicant submits that the hook design is not preferable to the applicant's proposal.

128 I have three major difficulties with this hook design proposal: (a) it is so close to the western arm of the RBM (less than 40 metres) as to create a dog leg along which boats would have to wend their way before reaching fuel berths, the south side of the southern arm of the PPM, the western side of the western arm of the RBM, and the swing moorings in front of Rose Bay beach. This was not directly addressed at the hearing, perhaps because Mr Moody's concept hook diagram was overlaid over the proposed PPM but did not show the relative location of the proposed RBM; (b) if boats are moored on the long arm of the hook parallel with the shore, I think they will create a substantially greater obstruction to the views from Nos 5A and 7 Wunulla Road. The applicant's submissions and cross-examination were alert to this point. If, on the other hand, boats are moored perpendicular to the shore on the long arm of the hook, the number of boats that could be berthed on the hook would appear to be only about half that currently proposed;

(c) the hook proposal moves the bulk of the berthed vessels, which are in the shadow of the RMYC under the current proposal, significantly closer to Rose Bay beach, thus having a greater visual impact on that location.

129 For these reasons, I take the view that the hook proposal is not a preferable alternative to the current proposal.

130 In my opinion, the PPM proposal as changed during the hearing is acceptable, subject to conditions including a maximum height for berthed boats and subject to consideration of the visual impact on Rose Bay beach (both discussed below). Rose Bay Beach 131 From Rose Bay beach the visual experts agreed that the impact was low from the PPM proposal alone, but that it was medium from the PPM and RBM proposals together. Mr Moody and Mr Wyatt considered that this was insufficient reason of itself, to refuse the development application; Mr Rowan took the opposite view. The council submits that Mr Wyatt's photomontages of views from Rose Bay Beach demonstrate a devastating impact on views from that location brought about by enclosure of the beach by the arms of the two proposed marinas. This submission is contrary to the opinion of the council's visual expert Mr Moody; indeed he suggested that the proposed RBM could be moved further west.

132 Given the creation of a clear channel between the proposed marinas, I consider that the visual impact on Rose Bay beach would be acceptable if the western arm of the proposed RBM were shortened by two 20 metre berths, the middle arm of the proposed RBM shortened by four 20 metre berths (as discussed above), and a height limit imposed for berthed boats (as discussed below).

133 Apart from Rose Bay beach, I agree with Messrs Moody and Wyatt that the impact of the PPM, alone or in conjunction with the RBM, on publicly accessible locations, including adjoining roads and footpaths is insufficient to refuse the application. CONDITIONS 134 At the conclusion of the hearing, the parties submitted draft conditions of consent for the proposed RBM and PPM. A number of the conditions were disputed and, in some cases, alternative conditions proposed. Except to the extent indicated below, I adopt the agreed conditions and the conditions proposed by the council. Size of berthed boats RBM and PPM 135 When considering conditions, the most important question concerning visual impact is whether there should be a height limit for berthed motorboats. To minimise visual impact, the council and the Committee propose a condition imposing a height limit for berthed boats of 5.75 metres, measured from the waterline to the top of the superstructure but excluding any antennas to motorboats or masts to yachts or the like. The proposed maximum height of 5.75 metres is higher than the heights of all motorboats currently at the existing RBM, PPM and RMYC (with the exception of some boats at the RMYC on account of their tuna towers). 136 Mr Rowan said that a maximum height of 5.75 metres for motorboats would in part address some of the concerns that had been raised. In a report to the owner of 5A Wunulla Road prior to the hearing, he had anticipated that the larger boats would be 10 metres high and his DCP matrix assessment for the PPM was modelled on a supposed worst case scenario of all boats at a height of 9.1 metres. 137 The Wunulla Residents contend for a height limit of 5.35 metres at the proposed PPM except for the sole 30 metre berth at the PPM where they agree to 5.75 metres. In support, they refer to a pre-hearing submission to the council on behalf of the Wunulla Residents that the berthed boats are expected to be ten metres high and to the following response by the applicant in a letter to the council: "Height of the vessels to be berthed at the marina will not be 10m. For example the largest Sunseeker which will be accommodated at the marinas will be 90ft (27.4m) long and the height above the waterline to the top of the superstructure (excluding mast or antennas) will be 5.395m (see CAD profile Appendix C). Therefore the submission exaggerates the actual height by 85%". The Wunulla Residents submit that this indicates that the highest berthed motorboat would be 5.395 metres, if the example is of general application. There is force in the submission. 138 However, the applicant submits that there should be no height limit; that the applicant's pre-hearing example referred to by the Wunulla Residents is not of general application over the life of the marina; and, if there is to be a height limit, that there should be the same height limit of 7.5 metres for all berths which it suggests corresponds with a 30 metre long motorboat. 139 Almost all the boats in berths up to 25 metres in Mr Wyatt's photomontages do not exceed the 7.5 metre maximum height alternatively proposed by the applicant, and most do not exceed 6 metres in height. Mr Wyatt said, and I accept, that his photomontages are conservative and that in reality he believed that the level of visual impact will be less than that shown on the photomontages. 140 Having regard to the location, beauty, character and public significance of Rose Bay and the unique legal status of Sydney Harbour as well as the potential impact on the public and private domain, I am persuaded that it is appropriate to impose a height limit for berthed boats. I propose to impose a maximum height condition of six metres for berthed boats at both marinas, except for the four 30 metre berths at the end of the middle arm of the RBM where I proposed to adopt a maximum height of seven metres. The differential is because those 30 metre berths are furthest from the shore such that the views from the shore are less sensitive to their additional height. This condition allays apprehension about the potential for very high boats (such as Mr Rowan addressed). In reality, the height of boats in the berths closer to the shore (the 10, 15 and 20 metre berths) should generally be substantially less than the six metre maximum. 141 The council also proposes a condition imposing a maximum berthed boat length of 20 metres rather than the 30 metres proposed by the applicant. I do not agree. Such a maximum length was not supported by the expert witnesses called at the hearing. The real visual impact is from the height of berthed boats, not their length. For example, a 30 metre berthed yacht has a relatively low visual impact because, apart from its mast, its height is low. Casual sales berth RBM 142 Located at the existing RBM and only about 5 metres west of its proposed gangway, is a casual sales berth for which development consent has been granted but which has not yet been constructed. When constructed, it will substantially impede clear access for kayaks, rowboats and dragonboats proceeding close to the foreshore and under the gangway. That clear access is important for the convenience and safety of those craft. I propose to impose a condition on the RBM consent for the surrender of the development consent for that berth, as permitted by s 80A(1)(b) of the EPA Act. Noise management plan RBM and PPM 143 The council proposes a number of deferred commencement conditions, as permitted by s 80(3) of the EPA Act and cl 95 of the Environmental Planning and Assessment Regulation 2000. One is for the noise management plan in the Environment Management Plan of April 2008 to be amended, submitted and approved by council before the consent becomes operational, the amendments to accord with conditions specified in a joint report of the acoustic experts with certain exceptions. This requires in relation to the PPM the imposition of conditions on the slipway and workshop. The applicant submits that they should not be imposed because the slipway and workshop do not form part of the development application. It seems to me that they do form part of the development application: see plan 5635-301 revision 2.

144 The Wunulla Residents submit that the noise management plan should be finalised before the grant of consent because a deferred development consent would deprive them of the opportunity to comment on it. I propose to address that point by amending the deferred commencement condition so that the council gives the owners of the Wunulla Residences the opportunity to comment on the noise management plan before the council decides whether to approve it.

145 The council proposes that the hours of operation of the inclinator at the PPM be limited to 8am to 5pm for deliveries. The applicant submits that the current hours for delivery of 7am to 5pm should be maintained as the inclinator does not form part of the development application. In my opinion it does and, given that the inclinator is next to the Wunulla Residences, the council's proposed condition is reasonable and should be adopted.

146 The Wunulla Residents request, and the council and the applicant oppose, a condition that the use of the existing inclinator cease unless it can be demonstrated that no vibration occurs outside the boundary of 5 Wunulla Road and that the noise at the boundary with 5A Wunulla Road does not exceed an ambient background level of 48 dBA. There is no expert evidence on this proposal and I do not propose to adopt it. Entertainment and music PPM 147 The proximity of residences to the proposed PPM raises special night noise considerations. The council proposes the deletion of a condition for the PPM proposed by the joint experts that, "No onboard entertainment is allowed after sunset. All vessels must be vacated by 10pm". Instead, the council proposes a condition that, "No onboard entertainment including amplified music and public address systems is permitted on moored boats after 10pm. At 10pm all moored boats must be vacated in a quiet and orderly manner within 30 minutes". The Wunulla Residents support the condition proposed by the experts, arguing that the use of amplified music up to 10pm is not acceptable having regard to the proximity of residences. I propose to meet that concern by adopting a middle ground condition that, "No amplified music and public address systems are permitted after sunset. No onboard entertainment is allowed after 10pm. At 10pm all moored boats must be vacated in a quiet and orderly manner within 30 minutes". Fire safety study RBM and PPM 148 The council proposes that a fire safety study addressing specific issues should be a deferred commencement condition and should be submitted to council within one year of determination. They propose that the consent will become operative when council notifies the applicant in writing that the matters have been addressed to the council's satisfaction. The council refers to cl 95(4) of the EPA Regulation, which provides: "The applicant may produce evidence to the consent authority sufficient to enable it to be satisfied as to those matters and, if the consent authority has specified a period for the purpose, the evidence must be produced within that period". The applicant submits that it should be a general condition and that the appropriate time for the study is at practical completion or before occupation certificates are issued. The Wunulla residents submit that it is inappropriate to undertake this study at practical completion as all works would then have been undertaken and the study may find the works inadequate such as to require a redesign. I accept the submissions of the council and the Wunulla Residents and will adopt the condition proposed by the council. Width of mooring pen fingers RBM and PPM 149 According to the applicant's environmental impact statements, the proposed fingers from the walkways range in width from 1.2 to 2 metres depending on the nominated size of each berth (although a width of 1.7 metres was also referred to during the hearing).

150 The council proposes that the width of mooring pen fingers be reduced to 0.9 metres (and that the walkway arm lengths be reduced accordingly. The council says that this width should be adopted having regard to the Harbour REP cl 17 Zone W5 objective (c), the Harbour DCP cl 4.7 (Design and Layout second and fifth dot points) and AS 3962 - 2001 Guidelines for Design of Marinas - section 3, dimensional criteria. That provision of the Harbour REP speaks of minimising the scale and extent of artificial structures. Those provisions of the Harbour DCP speak of dimensions that are not excessive and minimising development over water. That Australian Standard provision prescribes a minimum width for fingers of 0.9 metres.

151 The Committee submits that the width of the fingers should be 1.2 metres (rather like a standard footpath) so that people can pass on it, given that it is a marina that is open to the public. I find this submission persuasive and propose to adopt a width of 1.2 metres for the fingers.

152 I accept the council's proposal that for the RBM the middle arm and walkway be reduced in width to 1.8 metres and 2.4 metres respectively, and that for the PPM the northern walkway be reduced in width to 2.4 metres. Star mooring between PPM and RBM 153 The Committee and the council submit that the existing star mooring, which accommodates six boats, between the PPM and the RBM be deleted and a single swing mooring be provided in its place. The applicant opposes this condition. I agree that the concentration of boats in this area presents a major visual bulk and obstructs Harbour views from the shore. Accordingly, I propose to impose a condition that the star mooring be deleted and a single swing mooring substituted. Swing moorings reinstated for RBM eastern arm 154 The council formulated a condition deleting the eastern arm of the RBM and the associated walkway and reinstating the swing moorings previously deleted to accommodate the eastern arm. As discussed earlier, I prefer to except the eastern arm of the RBM from development consent under s 80(4) than to impose a condition that it be deleted. I will impose a condition that the swing moorings previously deleted to accommodate the eastern arm of the RBM be reinstated. A map should be prepared as part of the conditions showing the area to be occupied by these and other swing moorings to reflect this judgment. BCA upgrade for PPM 155 The council and the Wunulla Residents propose a condition that, pursuant to cl 94 of the EPA Regulation, (a) the PPM marina building shall be upgraded in relation to fire safety to meet the performance requirements of CP1, CP2, CP6 and CP9 of the Building Code of Australia; and (b) the residential portion of the marina building shall be provided with a smoke alarm system in accordance with specification E2.2a clause 3 of the Building Code of Australia. The applicant opposes the condition on the basis that the building does not form part of the development application. I disagree. The applicant also opposes it on the basis that the building has regular fire and safety inspections. I accept the council's submission that the condition should be imposed as the building forms part of the marina and is subject to a fire risk, and I accept the Wunulla Residents' submission that it is particularly appropriate in view of the proximity of the marina building to residences. Waste storage RBM and PPM 156 The council, supported by the Wunulla residents, proposes that the Construction Certificate plans and specifications detail provisions for waste management in accordance with the approved waste management plan, and that waste storage areas meet specified requirements. The applicant submits there is already a suitable waste storage area. In my opinion, the council's proposed condition is reasonable and I propose to adopt it. Use of jet washers at PPM 157 The council proposes a condition that to protect the acoustic privacy of surrounding residential properties, the use of jet washing equipment is not permitted to clean or wash boats at the PPM. This was recommended in the joint acoustics report. Opposing the condition, the applicant points out that the existing marinas currently use jet washers with no record of complaints about noise, that the acoustic report proceeded on the erroneous basis that they are not presently used at the PPM, and that that report notes that the council has advised that they are unaware of any strong history of complaints regarding maintenance work. The Wunulla Residents make no submission on this point. Given the matters to which the applicant has drawn attention, I am not satisfied that this is a significant noise consideration and therefore do not propose to adopt this condition. Use of marinas by commercial vessels RBM and PPM 158 The council proposes a condition that, to protect the amenity of surrounding residential properties, each marina "shall not be used by commercial vessels such as charter boats or the like with the exception of the use of the fuel berth. Any commercial vessels using the fuel berth are not permitted to pick up passengers". The applicant proposes an alternative: "To protect the amenity of surrounding residential properties, the marinas shall not be used for the pick up or drop off of passengers as part of charter or commercial boating businesses". The Wunulla Residents propose another alternative: "To protect the amenity of surrounding residential properties, the marina shall not be used by commercial vessels such as charter boats or the like, including, without limitation, to pick up or drop off passengers as party of charter or commercial boating businesses". The Wunulla Residents point out that it was not previously suggested by the applicant that commercial vessels would use the PPM. Given the proximity of residences to the PPM, I think that the condition proposed by the Wunulla Residents is reasonable and should be adopted in relation to the PPM, subject to adding a sentence at the end, "This condition does not apply to water taxis."

159 I do not propose to adopt this condition in relation to the RBM because, as the applicant submits, there are not houses in close proximity as there are with the PPM.

Environmental Management Plan RBM and PPM 160 This is a condition that "Any Caulerpa taxifolia should be disposed of within an appropriate refuse tip". At the suggestion of the Committee, the council proposes adding the words "and reported to and recorded by marina management". The applicant opposes the additional words as they were not recommended by the ecology experts or otherwise. In the absence of further evidence or argument, I am disinclined to accept the addition of these words. Modification of details of the development RBM 161 The council, supported by the Committee, proposes a condition for the RBM that "The finished, exposed surfaces of the hardstand and main walkway should comprise of timber decking. This condition is imposed having regard to the aesthetic appearance of these elements". The applicant proposes an alternative that it should require a high quality and non-reflective material. The aesthetic appearance of these elements is important, in my view, such that I propose to adopt the council's proposed condition. Security deposits RBM 162 The council proposes a condition requiring a property damage security deposit of $95,390 and a tree damage security deposit of $60,000. These deposits would be returned if no damage occurs. They have been recommended by a council officer and the former deposit is calculated in accordance with a council Plan. The applicant submits that the amounts are excessive, particularly when read with the securities required for the PPM and given that most construction will occur from the water. In the absence of more information, I am not persuaded that they are excessive and propose to adopt the council's proposed condition CONCLUSION 163 In my opinion, taking all matters into consideration, each proposal, on the basis that I have indicated, is consistent with the aims of the Harbour REP and the objectives of the zone, and is otherwise acceptable having regard to the planning controls. 164 I propose to grant conditional consent to:

(a) the Rose Bay Marina development application except for: (i) the eastern arm and the associated walkway providing access to the eastern arm; and (ii) four twenty metre berths on the middle arm and two twenty metre berths on the western arm. (b) the Point Piper Marina development application with the important changes made during the hearing summarised at [11] above. 165 The conditions will be as I have determined above. They include an important condition for both marinas that the maximum height of boats is six metres, except for the four 30 metre berths at the end of the Rose Bay Marina where the height limit is seven metres. 166 The matter will be listed before me to make final orders at 9 am on 25 August 2009. By 4pm on the preceding day, the parties are to bring in agreed or competing draft orders, including conditions, to give effect to this judgment.

"A" plan showing the proposed marinas overlaid over the existing marinas.

"B" plan showing details of the proposed Rose Bay Marina. (before elimination of the eastern arm and shortening of the middle and western arms, as determined in the judgment).

"C" plan showing the proposed Point Piper Marina incorporating important changes made by the applicant at the hearing, summarised at [11] of judgment.

27/08/2009 - Slip rule amendment "ten metre berths on the western arm" changed to "twenty metre berths on the western arm" - Paragraph(s) 164

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