Addenbrooke Pty Lty v Woollahra Municipal Council

BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237 Gillespies v Warringah Council (2002) 124 LGERA 147 CASES CITED: Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190 Milne v Minister for Planning [No 2] [2007] NSWLEC 66 Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 Town Planning Board v Society for the Protection of the Harbour Ltd [2004] HKDC 33

DATES OF HEARING: 15/04/08 (onsite view), 16-18/04/08, 21/04/08

APPLICANT: Mr A. Galasso SC and Mr A. Pickles SOLICITORS: Mallesons Stephen Jaques

RESPONDENT: LEGAL REPRESENTATIVES: Mr N. Hutley SC and Mr S. Flanigan SOLICITORS: Deacons

SYDNEY HARBOUR AND FORESHORES COMMITTEE (objector) Mr M. Rolfe (agent) SOLICITORS: N/A

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

ADDENBROOKE PTY LIMITED v WOOLLAHRA MUNICIPAL COUNCIL

JUDGMENT INTRODUCTION 1 HIS HONOUR: This is a merits appeal under Part 4 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by Addenbrooke Pty Ltd (the applicant) against Woollahra Municipal Council's deemed refusal of its development application dated 6 November 2006. I acknowledge the substantial assistance provided by Commissioner Tuor in this matter. The development application is for redevelopment of two adjoining commercial marinas, the Rose Bay Marina and the Point Piper Marina. It proposes a great increase in the number of berths from 29 to 124 on three berthing arms at Rose Bay Marina, and a lesser increase from 23 to 35 at Point Piper Marina, accompanied by the removal of all existing swing moorings and the creation of a navigation channel between the two marinas.

2 The main issue before the Court is whether the visual impact of the proposed development at Rose Bay Marina would be acceptable.

3 Rose Bay Marina is located just east of the south-western corner of Rose Bay. In that corner Rose Bay Park and Beach are located. Land access to Rose Bay Marina is from New South Head Road. To the east and north of Rose Bay Marina are many private swing moorings licensed to users by NSW Maritime. Point Piper marina is located on the western shore of Rose Bay. A little to its north is the Royal Motor Yacht Club. Land access to Point Piper Marina is from Wunulla Road.

4 The development is designated development under the EPA Act. As provided for in s 97(4), one objector, the Sydney Harbour and Foreshores Committee (Foreshores Committee), on application, was heard at the hearing of the appeal as if it were a party to the appeal.

Rose Bay 5 Sydney Harbour is one of the most beautiful harbours in the world. It provides pleasure not only to local residents and mariners but to many visitors from Australia and abroad. Rose Bay is a significant part of that experience. Consequently, the impact of the proposed commercial marina on Rose Bay is of unusually wide public significance.

6 Rose Bay is a north-facing bay located on the southern foreshore of Sydney Harbour in Sydney's eastern suburbs. Its visual catchment is defined by the headlands of Woollahra Point with its residential suburb of Point Piper to the west and Steele Point with its residential suburb of Vaucluse to the east. The headlands comprise sloping hillsides. The bay extends in a roughly half round shape. Located between and beyond the 1.5 kilometre line between its headlands is Shark Island, an uninhabited, tree covered, heritage listed island whose dimensions are about 200 metres by 50 metres. The sweep of Rose Bay is broken by the Lyne Park reclamation which includes sports fields, tennis courts, a restaurant, a sailing club, an RSL club and a ferry wharf. The waterway of Rose Bay is mainly used for recreational boating. There are numerous private jetties along the foreshore of Point Piper. Seaplanes operate from a base at Lyne Park.

7 Rose Bay is located about eight kilometres east of the Sydney CBD. It is the widest bay between Sydney and the suburb of Watsons Bay, located at the harbour entrance from the Pacific Ocean. Rose Bay on the south is separated from the suburb of the same name by a heritage listed waterfront esplanade between Point Piper and Lyne Park (the Esplanade) - a distance of about 800 metres - and New South Head Road, which is the main road connecting Sydney to Watsons Bay. Along the entire length of New South Head Road from the city to Watsons Bay, only at Rose Bay is there a panoramic view of the harbour and its north shore, including Manly far to the north-east.

The Development Proposal 8 The aerial views annexed to these reasons for judgment depict the existing and proposed developments. 9 The proposed redevelopment includes: (i) removal of the existing fixed timber walkways, berthing structures and swing moorings at the Rose Bay and Point Piper Marinas; (ii) removal of the existing slipway at Rose Bay Marina; (iii) installation of floating pontoon berths and walkways held in position by piers at both marinas; (iv) construction of a new suspended concrete hardstand on the eastern side of the Rose Bay Marina building in place of the slipway. The hardstand is designed to accommodate a storage chamber for diesel fuel (replacing the existing fuel tank). Access to the hardstand will involve demolishing a one metre section of the existing balustrade on the Esplanade; (v) installation of a new electricity substation at the southern end of that hardstand; (vi) installation of a new electricity substation at Point Piper Marina; (vii) upgrade of fuel pumping facilities at Rose Bay and Point Piper Marinas; (viii) upgrade of sewage pumpout facilities at Rose Bay Marina and new sewage pumpout facilities at Point Piper Marina; (ix) upgrade of disabled access; (x) provision of casual berthing facilities; and (xi) construction of a new slipway at Point Piper Marina. 10 There will be no change to the existing marina buildings, offices and restaurant at Rose Bay Marina. No dredging is required. 11 The existing Rose Bay Marina extends 113 metres from the Esplanade. The length of the proposed Rose Bay Marina to the end of the access boardwalk is 249 metres. The proposed Rose Bay Marina would have three berthing arms east of the access boardwalk. Their lengths would be: Arm A (the furthest from the shore) - 146.2 metres; Arm B - 162.8 metres; and Arm C - 162.9 metres.

12 By removing all swing moorings, the redevelopment would create a 90 metre wide channel between the two marinas and reduce the waterway area they occupy from 9.2 to 6.2 hectares.

13 The proposed marinas would operate everyday from 7 am to 5 pm and 7 am to 6 pm during daylight saving. Marina customers would have 24 hour access to their marina berth seven days per week. The public would have 24 hour access to the floating pontoons except for the arms where the boats are berthed. At night, this access would be through security gates which staff will open. The proposed marinas will employ about six full time and two part time staff.

Existing and Proposed Boat Storage 14 Under the applicant's current lease of berthing structures and license of swing moorings from NSW Maritime, the permitted boat storage capacity is 224, comprising 52 marina berths (29 at Rose Bay and 23 at Point Piper) and 172 commercial swing moorings (72 at Rose Bay and 100 at Point Piper). There is also a temporary berth at Rose Bay which is often used.

15 All berths at both marinas are normally occupied. Not all the commercial swing moorings at both marinas are, or have been, occupied. As at September 2007, 101 swing moorings were occupied: 45 at Rose Bay and 56 at Point Piper. As at March 2008, 120 swing moorings were occupied: 53 at Rose Bay and 67 at Point Piper.

16 To the north and east of Rose Bay Marina are numerous private swing moorings licensed to users by NSW Maritime. All are occupied and there is a long waiting list.

17 The proposed redevelopment would result in 159 marina berths: 124 at Rose and 35 at Point Piper. All the commercial swing moorings at both marinas would be relinquished. However, 15 of the commercial swing moorings would be relocated and become private swing moorings licensed to users by NSW Maritime.

18 Most of the proposed berths would accommodate both power and sail boats. Some of the proposed berths have insufficient water depths for yachts.

19 The following tables compare the existing and proposed boat storage capacities:

Location Boat Storage Type Existing Permitted Proposed Permitted Net Change Rose Bay Marina Berths 29 124 + 95 Swing Moorings 72 0 - 72 Point Piper Marina Berths 23 35 + 12 Swing Moorings 100 0 - 100 RMYC Berths 90 90 0 Swing Moorings 18 18 0 Private Swing Moorings Swing Moorings 102 117 +15 Water Police Swing Moorings 2 2 0 Total Boat Storage Spaces Berths 142 249 + 107 Swing Moorings 294 137 - 157 All 436 386 -50

Berth Size Category (metres) Proposed (No of Boats) Proposed Existing Existing (%) (No of Boats) (%) <10.0 17 11% 112 50% 10.1 - 15.0 45 28% 105 47% 15.1 - 20.0 76 48% 7 3% 20.1 - 25.0 8 5% 0 0% 25.1 - 30.0 9 6% 0 0% 30.1 - 37.0 4 3% 0 0% Total 159 100% 224 100%

Berth Size (Metres) Berth Size (Feet) Rose Bay Point Piper (Up to) 10 33 10 7 15 50 39 (29 p/s) 6 (1 p/s) 20 66 63 (63 p/s) 13 (2 p/s) 25 82 0 8 (7 p/s) 30 98 8 (8 p/s) 1 (1 p/s) 37 121 4 (4 p/s) 0 TOTAL 124 35

" p/s " - power or sail; otherwise number nominated is power boat

20 In summary, the proposed accommodation of boats at the Rose Bay and Point Piper Marinas: (a) roughly approximates the actual used accommodation of the existing marinas, which fluctuates from time to time; (b) is significantly less than the permitted occupancy under the applicant's current arrangements with NSW Maritime; (c) would consist entirely of berths whereas the existing permitted and used accommodation consists mainly of swing moorings; and (d) mainly caters for large boats over 15 metres in length and reduces the existing permissible percentage of smaller boats from 97 percent to 39 percent.

21 Large boats typically do not move from their berths very often according to a report entitled Review of Large Boat Operations and Implications for Traffic and Parking by Mr Christopher Hallam. He reported that surveyed boats over 20 metres accounted for an average of 47.9 engine hours per year and 5.1 engine hours per trip. The average annual engine hours for smaller craft were higher. Thus, the proposal will result in boats of larger sizes which are likely to stay at their berths nearly all the time. On the other hand, more stay at home boats may help to address fears about the impact of the proposal on parking. Council's Contentions 22 The council contends in its Further Amended Statement of Facts and Contentions as follows: 1. The application should be refused as, when assessed against the relevant matters under section 79C of the Environmental Planning and Assessment Act the proposed development is considered to be unsatisfactory. Those relevant matters are: · 79C(1)(a)(i) - environmental planning instruments, being: - Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 clauses 2, 17 W5 zone, 21, 22, 24, 25, 26, 27, 59 & 63 - Woollahra Local Environmental Plan 1995 clauses 2(2)(d), (g), (h) & (j) · 79C(1)(a)(ii) - development control plan, being: - Sydney Harbour Foreshores and Waterways Area Development Control Plan for Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 clauses 2(2), 3.2, 4.2, 4.7 - Woollahra Municipal Council Development Control Plan for off-street car parking provision and servicing facilities clause 2 · 79C(1)(b) - the likely adverse impacts of the development on public views, traffic and parking, ecological sustainability of the development, noise, light, access to waterway, heritage, waterway management and navigation · 79C(1)(c) - the suitability of the site for the development · 79C(1)(d) - any submissions made in accordance with the Act or the regulations · 79C(1)(e) - the public interest 2. The issues in dispute are categorised as follows: · Visual impacts · Parking impacts · Ecological sustainability of the development (ESD), including global warming · Noise impacts · Lighting impacts · Access to the waterway · Heritage · Waterway management and navigation issues, including safety and equity The reasons for each contention are then set out. 23 The council accepts that noise and lighting impacts may be resolved through the preparation of a suitable noise management plan and lighting management plan. Contentions of Objectors and Supporters 24 In accordance with the requirements of the EPA Act and the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation), the application was publicly exhibited as designated development. 25 The Foreshores Committee generally supported the submissions made by the council and also made a number of discrete submissions which I take into account in these reasons for judgment.

26 The council received 1,429 written submissions comprising 750 objections and 679 submissions in support. Petitions were also received, both supporting and objecting to the proposal. The council assessment report summarised the grounds for objection into the following categories: · Visual impact · Traffic and parking · Public interest · Pollution (air, noise, water and light) · Waterways management and navigation · Environmental impacts · Fuel storage · Marine ecology impacts · Heritage · Planning controls · Security · Privacy · Other

27 The council assessment report summarised the reasons for support as being: · The marina will accommodate more boats · Disabled access · Availability of public toilets · Increase in open water space/decrease in total water area occupied by the marinas · Modern, attractive, low profile floating pontoon system · Decrease in parking demand · Public access to marinas · Medivac access for harbour emergencies · Aesthetic improvement · Environmentally compliant · Replacement of outdated marina infrastructure · Greater accessibility to the water for small craft

28 The Court viewed the site and heard evidence from a number of people in support and in opposition to the application. The principal concerns of those opposed to the development reflected the contentions raised by council and the Foreshores Committee and are addressed in these reasons for judgment. 29 Objectors were concerned that the existing character of the area would be altered by the development. They perceived the proposal to be too big and to have an unacceptable visual impact particularly when viewed from the Esplanade, compared with the existing character. 30 Objectors also considered Rose Bay to be a public resource, which is heavily utilised and provides enjoyment for many people who use the water, the foreshore, New South Head Road and the surrounding residential properties. They considered that the visual exposure of Rose Bay is unique, that the proposal would alienate Rose Bay, and that it would place private interests above those of the public. 31 Representatives of the Eastern Suburbs Dragon Boat Club, Cranbrook Master Rowers and a kayak operator in Rose Bay were concerned about the potential conflict between large powerboats and smaller craft. In particular, the increased intensity of use of Rose Bay by large vessels would result in safety issues such as wash from the boats, speed, lack of visibility of smaller craft, and "intimidation" by larger boats due to their size and presence. The representatives explained that smaller craft are attracted to the waters of Rose Bay because of the protection it affords, particularly from southerly winds when manoeuvring along the shore. They stated that they use the whole length of Rose Bay, often using the western end for turning their boats. They considered the proposed Rose Bay Marina would impede access along the Bay and restrict manoeuvring. They also felt that small craft would no longer be able to use the western end of Rose Bay as it would be too hard for them to go around the proposed Rose Bay Marina, and that there would be conflict with larger boats around the marinas and using the navigation channel. 32 A number of residents expressed concern that the proposal would increase the demand for on street parking and result in adverse traffic impacts. They considered that parking in the area was already scarce due to the many activities that occur in and around Rose Bay. They considered the proposal would exacerbate this situation. 33 The Court's inspection of the site included viewing it from the apartments of Ms M Burns and Ms P Horsley on New South Head Road. They were concerned that the marina proposal would alter the outlook they currently enjoy from their apartments due to the change from swing moorings to marina berths. They considered the proposal to be private use of a public waterway and to be unacceptable. 34 Mr H Finger expressed the concerns of residents of Wunulla Road that the extension to Point Piper Marina parallel to the road would impact on the views of open water and the privacy currently enjoyed by these properties. 35 Objectors raised issues with the likely impacts of noise and light spill from the 24 hour operation of the proposed marinas, as well as impacts on the marine ecology and safety issues from the operation of the marina and the use of Rose Bay.

36 The main reason for the support of the proposal is that it will provide greater facilities for the boating community. The marina will meet the need generated by the trend for larger boats, as well as providing services such as fuel, food, toilets and free casual mooring for all boats. The supporters considered that the marina would not result in adverse visual impacts as the removal of swing moorings would free up water space which, combined with the public access to the main arm of the marinas, would improve the views of, and access to, the water. The supporters did not agree that the proposal would result in conflicts with smaller craft or unacceptable impacts such as noise. 37 Mr M Chapman, President of the Boat Owners Association, stated that he had provided advice on the proposal and that it would provide a net increase in clear water space of 60 square metres in front of the park, an extra 180 metres of public promenade over the water, and 120 metres of casual public mooring. 38 Ms J Kay spoke on behalf of the International Foundation of Disabled Sailors. She stated that access to the waters of Sydney Harbour is difficult for disabled people, particularly in the Woollahra area. Ms Kay supported the proposal as it provided facilities for disabled people, including access to the marina walkway and to boats for disabled sailors. Such facilities are greatly needed, she said, due to the aging population and the increase in disabilities.

Land Owner's Consent 39 The land owner, NSW Maritime, is the lessor of the existing marina berths and licensor of the existing swing moorings at the Rose Bay and Point Piper Marinas. It also has the control of navigation and safety of the waterways of Sydney Harbour. The development application provides for the removal of swing moorings at the Rose Bay and Point Piper Marinas to create an open channel to Rose Bay Beach in the south-western corner. As part of the land owner's consent for development application, NSW Maritime imposed certain conditions including that "the management of the open water space between the Point Piper and Rose Bay Marinas by NSW Maritime shall not be restricted by the proposed marinas". It appears that its intention was to keep that area free of swing moorings or built structures. Environmental Planning and Assessment Act 1979 40 Section 79C(1) of the EPA Act prescribes the mandatory considerations insofar as they are relevant:

(1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any draft environmental planning instrument that is or has been placed on public exhibition and details of which have been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the draft instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. Environmental Planning Instruments 41 Relevant planning instruments are: · Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 ( Harbour REP ) · Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005 for Sydney Regional Environmental Plan (Sydney Harbour Catchment) ( Harbour DCP ) · Woollahra Local Environmental Plan 1995 ( Woollahra LEP ) · Woollahra Residential Development Control Plan 2003 ( Woollahra DCP ). Planning Background 42 The historical background to the Harbour REP and Harbour DCP may be gleaned from the Boat Storage Policy for Sydney Harbour of June 2004 (Boat Storage Policy), prepared by the Department of Infrastructure, Planning and Natural Resources and the Waterways Authority. It anticipated the preparation of the Waterways Authority Rose Bay West Framework Plan 2006 (Framework Plan), which is not a statutory plan. The Framework Plan proposed that any expansion of Rose Bay Marina occur to the east to preserve views and that any expansion of Point Piper Marina occur to the north.

43 In 2005 the Harbour REP lifted a moratorium on commercial marina development in Sydney Harbour which had been imposed in the form of a prohibition of large marinas (more than 30 berths) under the Sydney Regional Environmental Plan No 23 - Sydney and Middle 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 Boat Storage Policy as follows: 4.1 Moratorium on marina development

There is currently a moratorium on commercial marina development in Sydney Harbour and its tributaries owing to:

· The prohibition of large marinas (more than 30 berths) under Sydney Regional Environmental Plan 23 - Sydney and Middle Harbours (SREP 23), AND · Waterways Authority deferring consideration of all applications for land owner's consent for the lodgement of development applications relating to large marinas until it has completed the review of its Land Owner's Consent Manual .

A key reason for the moratorium was growing community perception of the potential adverse impacts, especially visual impacts, of large boat storage facilities such as marinas around the harbour. Other environmental issues which have also raised concern include ecological impacts (eg impacts on water quality and aquatic flora and fauna), amenity (eg noise, traffic and parking), and a reduction in public access to and use of the foreshore and waterway.

Consequently, there are demands for tighter controls and performance criteria for marinas and related facilities to address these issues and provide clearer guidance to both applicants and consent authorities.

The moratorium has limited the opportunity for marina operators from expanding their existing marinas (in some cases to meet the environmental standards and Workcover requirements) and developing new marinas. There is significant pressure from the boating industry to resolve the moratorium and provide a more strategic and certain approach to future marina development.

While there is minimal growth in the overall number of registered boats, there is a clear trend toward larger boats and a shift in composition toward motorised rather than sailing boats. Sailing vessels are more likely to be stored on moorings while larger motor cruisers are more likely to be stored on marina berths. This trend suggests a future growth in demand for fixed berth storage rather than moorings.

Many marina operators are now looking to convert commercial swing moorings to fixed marina berths to accommodate this anticipated demand and improve the financial viability of their businesses.

In addition, there are a number of precincts in the harbour, such as The Spit and Rose Bay that currently accommodate high levels of boating activity and infrastructure and in which demands for growth and change may be most pronounced. A more detailed and localised understanding of such precincts would assist all stakeholdings in working together to ensure that growth and change in these areas occurs in the most appropriate manner.

The Government will lift the moratorium to permit marina development and the expansion of existing commercial marinas in suitable locations around the harbour. This delivers on the Government's commitment to supporting a prosperous working harbour that provides a variety of commercial activity and employment opportunities and to providing improved public access to and recreational use of the foreshores and waterways.

Commercial marinas will be generally allowable in certain locations around the harbour where:

· Foreshores are already modified through development, including existing maritime commercial and recreational activities · Conflicts with other land and water uses are minimised · Public access to and use of the foreshores and waterways is not reduced · The visual impacts of the development are acceptable, and · There are no adverse impacts on wetlands or flora and fauna habitats

subject to proper consideration through the development assessment process. Aims of the Harbour REP 44 The aims of the Harbour REP are set out in clause 2: 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 , (b) to ensure a healthy, sustainable environment on land and water, (c) to achieve a high quality and ecologically sustainable urban environment, (d) to ensure a prosperous working harbour and an effective transport corridor, (e) to encourage a culturally rich and vibrant place for people, (f) to ensure accessibility to and along Sydney Harbour and its foreshores, (g) to ensure the protection, maintenance and rehabilitation of watercourses, wetlands, riparian lands, remnant vegetation and ecological connectivity, (h) to provide a consolidated, simplified and updated legislative framework for future planning.

(2) For the purpose of enabling these aims to be achieved in relation to the Foreshores and Waterways Area, this plan adopts the following principles: (a) Sydney Harbour is to be recognised as a public resource, owned by the public, to be protected for the public good, (b) the public good has precedence over the private good whenever and whatever change is proposed for Sydney Harbour or its foreshores, (c) protection of the natural assets of Sydney Harbour has precedence over all other interests .

(emphasis added) 45 Clause 17(2) of the Harbour REP prohibits the grant of development consent unless the consent authority is satisfied that the development is "consistent with the aims" of the Harbour REP and the "objectives of the zone" in which it is proposed to be carried out. The definition of "consistent" in the Macquarie Dictionary (third edition) is: "agreeing or accordant; compatible; not self-opposed or self-contradictory". In a similar context to the present it has been said that "consistent" means not antipathetic: Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 at 27 and Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190 at 264, both decisions of Pearlman CJ. In Gillespies v Warringah Council (2002) 124 LGERA 147 at [70], [74] Bignold J considered that the word "consistent" is not confined to the notion of the proposed development not being antipathetic and is synonymous with compatible. I agree.

46 In its aims and supporting principles, the Harbour REP attributes significance to Sydney Harbour as a whole and looks to its protection, enhancement and maintenance as an outstanding natural asset and a public asset of national and heritage significance for existing and future generations. Protection means to keep from harm, defend and guard.

47 The Harbour REP accords to Sydney Harbour a unique legal status. It is comparable to the unique legal status accorded to Hong Kong's Victoria Harbour by the Hong Kong legislature, which was considered in Town Planning Board v Society for the Protection of the Harbour Ltd [2004] HKDC 33. The Hong Kong Protection of the Harbour Ordinance provided that Victoria Harbour was "to be protected and preserved as a special public asset and a natural heritage of Hong Kong people, and for that purpose there shall be a presumption against reclamation in the harbour". The Town Planning Board decided to submit a plan which proposed reclaiming 26 hectares from Victoria Harbour. The respondent brought successful judicial review proceedings on the basis that the Board had misinterpreted the Ordinance. The Hong Kong Final Court of Appeal (which included a former Chief Justice of Australia, Sir Anthony Mason) dismissed the appeal, holding at [33] - [35]: As was observed at the outset, the harbour is undoubtedly a central part of Hong Kong's identity. It is at the heart of the metropolis both physically and metaphorically. The statute characterises this in the most distinctive terms. It is recognised not merely as a public asset but as a special one. It is something extraordinary. The recognition does not stop there. It is further acknowledged to be a natural heritage. Natural in that it was not created artificially by man but is part of nature. A heritage in that it is inherited as a legacy from previous generations and is to be transmitted from generation to generation. The harbour as a special public asset and natural heritage is declared to belong to Hong Kong people. This reinforces its character as a public asset. It is a community asset and as such, is to be enjoyed by the people of Hong Kong. By representing the harbour in such special terms in the statute, the legislature was giving legal recognition to its unique character.

It is because of its unique character that the harbour must be protected and preserved. The meaning of these words in the statutory principle is plain. There must be protection, that is, it must be kept from harm, defended and guarded. And there must be not merely protection. There must also be preservation. Preservation connotes maintenance and conservation in its present state. What must be emphasised is that under the principle, what is to be protected and preserved is the harbour as a special public asset and a natural heritage of Hong Kong people.

It is manifest that in enacting the statutory principle, the legislature was giving legal recognition to the great public need to protect and preserve the harbour having regard to its unique character. The principle is expressed in clear and unequivocal language. The legislative intent so expressed is to establish the principle as a strong and vigorous one. By prescribing such a principle, the legislature has accorded to the harbour a unique legal status. 48 These words apply similarly to Sydney Harbour, of which Rose Bay is part, under the Harbour REP.

Aims of the Harbour DCP 49 Clause 3.2 of the Harbour DCP states its general aims including the following: All development should aim to:

· minimise any significant impact on views and vistas from and to: - public places, … - heritage items…

50 After considering the visual impact of the proposed development, I state below at [109] - [110] my opinion as to whether the proposal is consistent with the aims of the Harbour REP and the aims of the Harbour DCP. Zoning and Zone Objectives 51 The Harbour REP removes the prohibition of large marinas and permits, with consent, commercial marinas in four of the eight water zones around the harbour: W1 - Maritime Water, W4 - Aviation, W5 - Water Recreation, and W6 - Scenic Waters: Active Use. Most of Rose Bay west of Lyne Park to roughly half way along Point Piper is zoned W5 - Water Recreation. Zone W5 is where the existing Rose Bay and Point Piper Marinas are located. Most of the rest of Rose Bay is zoned W4 but is almost entirely separated from the land by zone W2 Environmental Protection. Thus, zone W5 is the only zone in Rose Bay where a commercial marina can be developed. 52 In BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237 at [117] - [118] McClellan CJ held (citations omitted): In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor, planning decisions must generally reflect an assumption that, in some form , development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects. Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.

In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.

(emphasis added) 53 As Jagot J said in Milne v Minister for Planning [No 2] [2007] NSWLEC 66 at [32], absent such an assumption that, in some form, development which is consistent with the zoning will be permitted, the parameters for resolution of appropriate land uses would not be known.

54 The Harbour DCP recognises the important role of commercial marinas in the area. The Harbour DCP states that "Landscape Character Type 10" applies to Rose Bay, which it relevantly describes as follows: Development is suitable for these areas providing consideration is given to:… · the role of commercial activities within these areas is recognised as providing an important recreational resource and improving public enjoyment of the harbour.

55 Although a commercial marina is permissible in zone W5 in some form, the form has to be consistent with the zone objectives: Harbour REP cl 17(2). The council and the Foreshores Committee submit that this proposal is not consistent with some of the objectives.

56 The objectives of zone W5 are set out in clause 17 of the Harbour REP as follows: Zone No W5 Water Recreation

(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.

57 The applicant submits that it is of importance that the moratorium on commercial marinas was lifted as recently as 2005; that the W5 zoning is to promote commercial marinas which are to be more anticipated in that zone than other zones in Rose Bay; and that, in terms of the Harbour REP, the promotion of commercial marinas in this locality is undertaken not only with a visual aspect in mind but also other aspects. I accept that those matters should be taken into consideration.

58 As noted above at [21], the larger boats proposed for the marinas are likely to stay at their berths almost all the time. The Foreshores Committee submits that it is difficult to see how this would "enhance" the public use of waters in the zone or "increase" public water dependent development, as provided for in W5 zone objectives (a) and (b). That is true as far as it goes. Nevertheless I consider that the proposal is consistent with objectives (a) and (b) particularly having regard to the public access and equitable use considerations analysed at [132] and [136] below.

59 As regards zone objective (d), the council submits that justified demand for the larger berths has not been proved. This was not identified as an issue in the council's Statement of Facts and Contentions, the council's own assessment report, or in the joint report by the planning experts. Indeed, in that report the council's planning expert Mr Kauter focused upon the shift towards meeting demand for larger vessels at the expense of smaller vessels. The issue was not contested in evidence. In the circumstances, I consider that it would be unfair to the applicant to allow it to be contested in the council's final submissions. In any event, in my view there is sufficient evidence of strong demand for such larger berths, as demonstrated by the boat storage policy, the environmental impact statement, correspondence from NSW Maritime and evidence of waiting lists. In my opinion, the demand is justified by the shortage and is reasonable.

60 The council submits that the proposal is not consistent with W5 zone objective (d) because it does not provide benefits to the general and boating public. I do not accept the submission. It clearly provides some benefits to the general and boating public. For example, disabled sailors will have better facilities and boat owners generally will have improved and more accessible fuelling facilities. Furthermore, the general public will benefit from being able to promenade on the marina axis walkways. More to the point is whether those benefits are outweighed by other considerations. 61 The council also submits that the proposal is inconsistent with W5 zone objective (d) because the visual outcome does not harmonise with the planned character of the locality. The council submits that it is inconsistent with W5 zone objective (g) because the scale and size of the Rose Bay Marina development are inappropriate to the locality and do not protect and improve the natural assets and natural and cultural scenic quality of the surrounding area, particularly when viewed from areas of public access. I consider that these submissions have substance having regard to my analysis below of the visual impact.

62 In my opinion, the proposal is consistent with the zone objectives, leaving aside for the moment the visual factors in objectives (d) and (g) which I address below at [109] after considering the visual impact. Considerations under Harbour REP 63 Division 2 of Part 3 of the Harbour REP (cll 20-27) prescribes matters which must be taken into consideration by a consent authority before granting development consent. Clause 20 provides: The matters referred to in this Division (together with any other relevant matters): (a) are to be taken into consideration by consent authorities before granting consent to development under Part 4 of the Act, and (b) are to be taken into consideration by public authorities and others before they carry out activities to which Part 5 of the Act applies. 64 The matters referred to in Division 2 include visual impact. Visual Impact 65 The visual impact of the proposal is the principal issue between the parties and the major concern raised by residents. The main focus of the visual impact inquiry is the Rose Bay Marina development.

66 In my opinion, the proposed Point Piper Marina will not have an unreasonable visual impact. The impact of the proposed Point Piper Marina on views from the public domain will generally be mitigated. It replaces an existing marina. It is viewed from the south against the backdrop of the Royal Motor Yacht Club. It is viewed from the east against the backdrop of Point Piper and is partly shielded by Rose Bay Marina. It represents a relatively modest increase in size. The Royal Motor Yacht Club does impact on views from the public domain but, in my opinion, the proposed Point Piper Marina will not unreasonably exacerbate this impact. The proposed development will, however, impact on views from properties in Wunulla Road.

67 The inquiry focuses on the 124 boats on three berthing arms proposed for the Rose Bay Marina. It is the number, density and size of those boats viewed from the shore that is at the heart of the case.

What views will be affected? 68 It is necessary to establish what is the view to be affected. A great deal of hearing time was occupied with the impact of the proposal on views to Shark Island. While Shark Island is one element in the view it is not the only item to be considered. Rose Bay is expansive and its visual catchment extends from Woollahra Point in the west to Steele Point in the east. However, the principal visual catchment is West Rose Bay, between Lyne Park and Woollahra Point. The views, including views of Shark Island, from slightly less than a quarter of the 800 metre length of the Esplanade, are the most highly affected by the development. This is the area behind the proposed Rose Bay Marina. 69 The views within this catchment are primarily from users of the Esplanade and New South Head Road and from the residential development which fronts New South Head Road west of Lyne Park. There are of course other views, including those from Rose Bay Beach, Lyne Park and Wunulla Road. However, the views of greatest significance are those where the full expanse of Rose Bay is viewed from the public domain. This full expanse includes the foreshore, the water, the land/water interface, the land mass of Point Piper and Lyne Park and the extensive views of the harbour to the bush reserves on the north side, including landmarks such as Shark Island. The perception of this view changes as one moves through it or from different vantage points. Its importance is emphasised not only by the wideness of the bay and the expansiveness of the views to the harbour but also because it is the only location when one travels from the city to Watsons Bay that the harbour can be appreciated in this manner. 70 Boats on swing moorings and the existing marina structures and private jetties are important elements within this view. The nature of a swing mooring is that it needs a large area of water around the boat to enable it to move with the wind. It is therefore a constantly changing image and one in which the built element is secondary to the water. Swing moorings are characteristic of Rose Bay and an important and pleasant part of the view. The applicant extols the visual effect of the proposed navigation channel between the proposed marinas as opening up the line of sight from the Rose Bay Park and Beach. Not everyone considers that to be a visual improvement. The opinion of the Foreshores Committee is that the existing dynamic aspect of bobbing, moving boats on swing moorings in this area is pleasant, that the proposed open channel vista is relatively boring, and that the creation of two visually unrelated water bodies is undesirable.

71 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.

Submissions 72 The council and the Foreshores Committee submit, and the council's visual assessment expert Mr Angelo Candalepas is of the opinion, that the development at Rose Bay Marina creates unacceptable visual impacts and does not adequately address the requirements of the planning instruments. The applicant submits, and its visual impact expert Mr Dennis Williamson is of the opinion, that the visual impacts are acceptable and adequately address the requirements of the planning instruments. The applicant submits that this is supported by the Harbour DCP visual assessment matrix assessment in the alternate assessment methodologies adopted by Dr Richard Lamb in his report which accompanied the development application, and then adopted by Mr Williamson. Mr Williamson gave evidence. Dr Lamb did not.

73 Although no competing Harbour DCP matrix was proffered on behalf of the council, the council challenged Mr Williamson's use of the Harbour DCP visual assessment matrix and other aspects of his evidence. Provisions of Harbour DCP relating to visual impact assessment 74 It is necessary to consider the Harbour DCP provisions relating to visual impact assessment. Section D1.3 of Appendix D to the Harbour DCP states that a visual impact assessment shall be carried out for changes to or expansion of an existing mooring. Section D1.2 of Appendix D states that: A visual impact assessment is an analysis of the potential detrimental or negative impacts a building or structure or use of building or structure may have on views from the public or private domain and to the foreshore from the waterway. The overall objective is to identify the potential level of visual impact as well as measures to mitigate those potential impacts.

A visual impact assessment should quantify as much as possible those aspects of marinas that can be measured. This includes:

· the scale and type of the facility and boats that will use it; · adjoining land uses; · visibility of the facility; · approximate number of potential viewers.

75 The Harbour DCP Appendix D is entitled "D1.1 Known characteristics of various types of boat storage facilities". It summarises the findings undertaken by URS consulting engineers in 2003 for the Waterways Authority which included an examination of 60 existing boat storage facilities within Sydney Harbour. Some of the key findings were as follows: · The visual character of boats stored on swing moorings can differ from an equivalent number of boats stored in a marina, because boats on swing moorings are more dispersed, allowing visibility between and around vessels. On the other hand, vessels stored in marinas can appear as a single visual element forming a visual extension of the adjoining land-based development. · Marinas which contain a higher proportion of power boats and swing mooring facilities can create greater visual bulk than yachts of similar length because the greater height to length ratio of powerboat hull and cabin compared to yachts.

· Marinas have a greater potential to block harbour views from adjoining foreshore public open space when compared to the equivalent number of boats stored on swing moorings.

· Marinas located in narrow bays and inlets have a higher potential to block views from open space and residences located at the head of the bay or inlet. …

· The potential visual impact on adjoining public open spaces and residential areas resulting from moored or berthed boats is strongly influenced by the relative size of the boat and distance from the viewer. For example a large power boat moored close to the shoreline will have a significantly higher visual impact than if it was moored on the waterway side of the marina. …

· The potential visual impact of marinas is reduced by the retention of view corridors from foreshore public open space to open water and from waterways back to sections of shoreline.

· The potential visual impact of marinas on adjoining residential development is strongly influenced by the degree of landform elevation with significantly less visual impact on elevated residences that have views over the top of marinas compared to residences located at elevations similar to the foreshore that have views blocked by boats and marina structures. 76 Section D1.1 states that the typical level of potential visual impact resulting from marinas and associated with various adjoining land uses is illustrated in Figure 1 [sic D1] and that: "While this figure provides a general indication of likely potential visual impact it should be noted that it is indicative only and the actual visual impact will depend on the particular combination of factors associated with each individual situation". Figure D1 is entitled "Indicative Potential Visual Impact of Various Development Scenarios". It 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. Section D1.1 states that while the overall potential visual impact for a proposed development will result from a complex combination of factors that are unique to each situation, Figure D2 provides an indication of the likely relative contribution that the various factors can be expected to make. 77 Figure D2 is entitled "Indicative Contribution to Potential Visual Impact" and sets out a number of factors including the scale or relative size of power boats or yachts. It characterises power boats or yachts less than 10 metres as low visual impact, 10 to 30 metres as medium impact, and 30 to 50 metres as high impact.

78 Section D1.4 of Appendix D provides guidance as to the carrying out of the view analysis. This results in the preparation of "a matrix that characterises the full range of viewer situations including context of view, approximate number of viewers, approximate period of view, distance of view, location of viewer in the landscape etc using Tables [sic Figures] D1 and D2 to assist in determining the potential visual impact, ie high, medium or low for each view situation and an overall potential visual impact (see Figure D3). See also example at Figure D4".

79 Section D1.5 of Appendix D provides that a view analysis matrix should be lodged as part of the development application and be supported by a visual impact assessment.

80 Figure D3 sets out a "View Analysis Matrix". Figure D4 sets out an "Example of a Completed View Analysis Matrix" to measure the overall potential visual impact. In the matrix the degree of impact of each factor is measured as high = 3, medium = 2 and low = 1. Figures D3 and D4 suggest that the view analysis should be conducted from a number of view situations and that the five factors to be assessed are the location of the viewer, distance of view, approximate period of view, scale or relative size (boat numbers and mix of vessel types) and boat storage type/spatial relationship - all leading to measurement of the overall potential visual impact expressed as an average score.

Visual impact assessment evidence 81 Dr Lamb's report accompanying the development application stated that his assessment of visual impacts had been carried out on the basis of the guidelines given in D1.2, D1.3 and D1.4 of Appendix D of the Harbour DCP. He concluded that overall the proposed marina facility would have the potential for "medium impacts". He prepared a view analysis matrix which incorporated various view situations.

82 Visual impact evidence was given by Mr Williamson for the applicant and Mr Candalepas for the council. In Mr Williamson's opinion, the visual impacts of the proposed development are only slightly greater than existing impacts from most viewpoints except for immediate and direct foreground views and there would be additional visual benefits from opening of views to and from Rose Bay Beach and Park. Mr Candalepas considered that impacts would vary, depending on the location of the viewer, from negligible to devastating (the council's description is minor to devastating). He considered that the proposal would block views from the Esplanade and New South Head Road to Shark Island, which is a heritage item.

83 The applicant criticised Mr Candalepas' evidence on the basis that it was difficult to determine with any degree of certainty whether his montages were representative of the proposed development and that he attached undue weight to the obscuring of views to Shark Island when concluding that the development was unacceptable. I think the montages are of some assistance. However, perhaps Mr Candalepas did over-emphasize the views of Shark Island as they are not the only visual consideration, existing marinas already affect views of Shark Island, and development of marinas in this location is logical under the planning controls. Nevertheless, the obstruction of views of Shark Island is a significant consideration.

84 Mr Williamson stated that the "marina structures proposed for modest increase in size". That is incorrect. The structures proposed for Rose Bay Marina are a great increased in size. When challenged in cross-examination, Mr Williamson acknowledged that under the proposal Rose Bay Marina would be four times larger and the proposed Point Piper Marina would be twice as large.

85 Having purported to carry out an assessment in accordance with the Harbour DCP visual impact assessment matrix, Mr Williamson concluded that the development would have very little visual impact. He concluded in his matrix assessment that the mean total score for the existing scenes is 27, while that for the proposed scenes is 28.2, an increase of only 1.2. In his matrix he assessed the impact from 14 ground level shore viewpoints on the rating of 1 (low), 2 (medium) and 3 (high) by reference to the five factors in the matrix, viz, location of viewer, distance of viewer, approximate period of view, scale or relative size, and spatial relationship of boat storage to shoreline/bay setting. The first three are constants in both the current and the proposed development situation. Consequently, the matrix assessment is sensitive to the fourth and fifth factors. The criteria Mr Williamson adopted for the fourth factor were criticised by the council in cross-examination and in submissions.

86 In relation to the fourth factor of scale or relative size (boat numbers and mix of vessel types), in his matrix Mr Williamson selected as criteria 100 plus vessels of less than 10 metres as 1 (low impact), 100 plus vessels of 10 to 30 metres as 2 (moderate impact) and 100 plus vessels of 30 to 50 metres as 3 (high impact). The council criticises Mr Williamson for this on the basis that it removed the matrix from any reasonable examination of the impact of the proposed development. The criticism is that the selection of over 100 vessels for each category means that high and low impacts would never be considered. In other words, the impact on each view of vessel size and type would always render a 2 or moderate impact.

87 There is no guidance in the DCP as to the number of boats that should be selected for this factor in the matrix. There is therefore difficulty in dealing with this factor because it requires, without guidance, an exercise of judgment in selecting the number of boats. Nevertheless, there is substance in the council's criticism of the number selected by Mr Williamson.

88 Mr Williamson's matrix showed a moderate impact on views from only three of his 14 viewpoints. In cross-examination, he conceded that the visual impact assessment from one of the other viewpoints should be increased from 1 to 2.

89 Eventually in cross-examination Mr Williamson disclosed that he did not make his assessment by reference to 100 (or any particular) number of boats in the fourth factor of the matrix. Rather, he said, he made his assessment simply on the basis of his "professional judgment". He also disclosed in cross-examination that he regarded the Harbour DCP matrix procedure as "senseless". Thus, the ostensible objectivity of his matrix assessment masked a subjective assessment.

90 The council submits that there is no visual impact assessment that provides a matrix undertaken in accordance with the Harbour DCP. Even if that is so, the matrix is undertaken to provide guidance, not as a mandatory requirement. As Jagot J said in Milne v Minister for Planning [No 2] [2007] NSWLEC 66 at [78]: "The DCP appendix is a guideline only and states that visual impacts will arise from a complex combination of circumstances unique to each proposal". The important matter is to determine whether the visual impact of the proposal is acceptable given the planning framework.

91 Mr Williamson in his report concluded in his key findings that: The proposed marinas, particularly Rose Bay Marina, would create an alteration that would be of greatest visual magnitude compared to the existing situation when viewed from a limited number of viewpoints along the Promenade and to a lesser extent from residences along the south side of New South Head Road.

The most highly affected viewpoints are located in an east west section limited to approximately 200m long within a section of foreshore between Point Piper Marina and Lyne Park that is approximately 800m to 900m long.

92 Despite these conclusions, only two viewpoints in Mr Williamson's Harbour DCP matrix are taken from the viewpoint of a pedestrian on the Esplanade standing behind the Rose Bay Marina arms. On Mr Williamson's own admission, this is the area most affected by the proposal, for about 200 metres.

Visual impact: conclusion 93 In my opinion, in that area of about 200 metres, the proposal will significantly diminish the views currently enjoyed by reason of the number, density and size of the berthed vessels at the three berthing arms of the proposed Rose Bay Marina and the size of that marina. The current views are predominantly of small boats spaced to facilitate views between and over the top of boats and the interface between the water and the land.

94 Having bifurcated the existing marinas, the proposal will create at the Rose Bay Marina three berthing arms and the impression of a wall of boats, many of them very large. 75 of the 124 boats at Rose Bay Marina will be larger than 15 metres, whereas at present 92% of boats at both marinas are less than 15 metres. For a significant distance along the Esplanade and New South Head Road the boats will obscure prime views extending as far as Manly. In contrast, the proposed development of Point Piper Marina is relatively modest and is buried visually in the shadow of the existing structure and the Point Piper backdrop. The size and scale of the proposed Rose Bay Marina will dominate west Rose Bay. In my opinion, it will have a very adverse visual impact. 95 This adverse visual impact of the proposed Rose Bay Marina is made more serious because along the entire 11 kilometre length of New South Head Road from the city to Watsons Bay, only at Rose Bay is there a panoramic view of Sydney Harbour. The view takes in the full sweep of Rose Bay between its headlands, including Shark Island and the north shore of Sydney Harbour with Manly Cove far to the north-east.

Is the visual impact acceptable given the planning controls? 96 Having found that the proposed development will have a significant adverse visual impact, the question becomes whether the visual impact of the proposal is acceptable given the planning controls.

97 A commercial marina of some sort in this part of Rose Bay is consistent with the expectations of the planning controls. Clause 26 of the Harbour REP provides: 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. 98 Clauses 25 of the Harbour REP provides: 25 Foreshore and waterways scenic quality 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.

99 The "locality" (referred to in cl 25(a)(iii)) includes the adjoining land area. The Woollahra DCP includes desired future character objectives and performance criteria for the adjoining land area. They are contained in the Part 4 "Precinct controls". The relevant precincts are Point Piper and Bellevue Hill North. The Point Piper Precinct includes Wunulla Road. The Bellevue Hill North Precinct includes the Esplanade at Rose Bay. For Point Piper an objective for the future character is to "protect important views from the public spaces of the precinct to the harbour and to the surrounding districts". A similar objective for the future character of Bellevue Hill North is to "protect important views from the public spaces of the precinct to the harbour, the city skyline and to the surrounding district". Having regard to my earlier visual impact assessment, I do not think that the proposal is consistent with the latter objectives.

100 An element of the future character of the locality is the protection of the Esplanade which I have considered at [124] below.

101 The Woollahra DCP identifies "significant views" out through the bay from a point proximate to the western end of Rose Bay Beach. The applicant says that the development would preserve those significant views by reason of the channel between the two marinas. The council submits to the contrary that the viewing point is much closer to the Point Piper Marina building and is not a point which would give one an unobstructed view of the channel. The state of the evidence is such that I am left in doubt as to which submission is correct. However, even if the applicant's submission were to be given the benefit of the doubt, it would not affect the decision which I ultimately make in the case.

102 In my opinion, the development will not maintain, protect and enhance the unique visual qualities of Sydney Harbour, Rose Bay, Shark Island and the foreshores of Rose Bay when viewed from the public spaces of the precinct to the harbour at Rose Bay, as required by cl 25(b) of the Harbour REP. Rather, it will damage these unique visual qualities. This is based on my visual impact assessment set out earlier. Some views of Shark Island, a heritage item, will be lost or diminished. The visual setting in which the Esplanade, a heritage item, appears will be altered. The enlarged Rose Bay Marina will obscure views for a significant length of the Esplanade. This will detract from the character of the foreshore. It is an insufficient answer to say there will still be three marinas and a significant number of boats and swing moorings. Nor is the detrimental loss of views sufficiently offset by the vista opened from the western end of Rose Bay to the water by virtue of the creation of a navigation channel.

103 On the basis of the visual assessment analysis set out earlier, in my opinion the Rose Bay Marina development would not maintain, protect and enhance views to Sydney Harbour as required by cl 26(a) of the Harbour REP. Nor would it reasonably minimise any adverse impacts on views and vistas from public places and to the heritage item of Shark Island: cl 26(b).

104 Part 4 of the Harbour DCP contains design guidelines for water-based and land/water interface developments. Under the heading "Visual Impact", cl 4.7 of the Harbour DCP states that: · 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…

105 While acceptable marina development would have some visual impact on people and the visual catchment, in my opinion the visual impact of the proposed Rose Bay Marina on the many people in the visual catchment comprising a substantial part of the adjacent Esplanade, New South Head Road and adjacent residences, is not reasonably minimised.

106 Clause 4.2 of the Harbour DCP prescribes the objectives and requirements which must be considered for all such developments, including that "development does not dominate its landscape setting". It is the council's submission that the Rose Bay Marina will dominate its landscape setting. The applicant submits that, in any case, it should be acknowledged that this part of Rose Bay is already associated with fixed marina berths, commercial marina development has been specifically made permissible there, and the development is consistent with the existing preponderance of fixed berths. Acknowledging the matters referred to by the applicant, nevertheless, in my view, the proposed Rose Bay Marina will dominate its landscape setting by reason of its size and the number, density and size of the boats that will be berthed there.

107 Clause 4.5 of the Harbour DCP requires that buildings and other structures should generally be of the same scale and of a design sympathetic to their surroundings. The council submits that the marina structures alter their surroundings by increasing the bulk or scale of the existing marinas. This is true, but the real problem is not with the structures, as such, but with the number, density and size of the boats that will occupy the berths.

108 The Harbour DCP provides principles that assist in visual assessment, as noted at [74] - [75] of these reasons. They include principles that swing moorings have less visual impact than berths, the bigger a boat the greater the visual impact, the smaller the bay the greater the impact, and if the marina is viewed from a public space the greater the impact. On all those principles, except for the small bay, 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.

109 In my opinion, the visual impact of the Rose Bay Marina development would be so substantial that it would not be consistent with the aim in cl 2(1)(a) of the Harbour REP set out at [44] above, the aims of cl 3.2 of the Harbour DCP set out at [49] above, and the W5 zone objectives (d) and (g) set out at [56] above. On balance, I consider that because of the visual impact of the Rose Bay Marina, the proposal is not in the public interest.

110 As regards the aim in cl 2(1)(a)(ii) of the Harbour REP, the Foreshores Committee submits that the beneficial outcomes of the proposal are not outweighed by the adverse impact of the greater visual mass created by the clustering of larger boats that divides Rose Bay and effectively creates two visually unrelated water bodies. The benefits of the proposal include access to the 200m north-south board walk which provides access to the berthing arms at Rose Bay Marina. This access will be available to people with a disability and will be accessible 24 hours (through security access). Similar access will also be provided to the Point Piper Marina. This public access is clearly a positive feature of the proposal. In addition, the proposal removes the swing moorings within the navigation channel to provide uninterrupted views of the harbour from the beach. While this can be viewed as a positive feature, the existing view with the boats on swing moorings is characteristic of Rose Bay and does not offend the view from the beach. The removal of the boats will also facilitate use of this area by boats accessing the Point Piper Marina and refuelling. There is currently proposed no limitation on boats using this area or dropping anchor. Nevertheless, in my opinion, the benefits of the proposal do not outweigh the disbenefits.

111 The council's assessment report paragraph 17.1.10 concluded that "providing marina berths to the west of a line formed from Woollahra Point, the eastern extremity of the Royal Motor Yacht Club marina and New South Head Road would allow a north easterly extension of marina berths with significantly less visual impact as viewed from New South Head Road. This is the type of approach that can produce satisfactory outcomes in the context of [the Harbour REP and DCP] and which the applicant should be encouraged to investigate". The Foreshores Committee, as I understand it, made a similar submission. Although such a proposal has not been tested and it is not possible to express a concluded view, as a matter of initial impression it would have significantly less visual impact and may be acceptable.

Heritage 112 Although the heritage provisions of the Harbour REP appear in Part 5 of the Harbour REP, rather than Division 2 of Part 3, it is convenient to deal with them at this point because they are relevantly concerned with visual impact.

113 The council contends that the proposal would block views from Rose Bay Esplanade and New South Head Road to Shark Island which is listed as a heritage item under the Harbour REP. This would be contrary to cl 59 of the Harbour REP. The council also contends that the proposal would block views of Strickland House from the Rose Bay Esplanade and New South Head Road.

Legislative context 114 Clause 59 of the Harbour REP relevantly provides: 59 Development in vicinity of heritage items

(1) Before granting development consent to development in the vicinity of a heritage item, the consent authority must assess the impact of the proposed development on the heritage significance of the heritage item.

(2) This clause extends to development: (a) that may have an impact on the setting of a heritage item, for example, by affecting a significant view to or from the item or by overshadowing… (3) The consent authority may refuse to grant development consent unless it has considered a heritage impact statement that will help it assess the impact of the proposed development on the heritage significance, visual curtilage and setting of the heritage item. 115 The Dictionary to the Harbour REP defines heritage item as follows: heritage item means: (a) a building, work, archaeological site or place: (i) that is specified in an inventory of heritage items prepared for the purposes of this plan, being an inventory that is available at the head office of the Department, and (ii) that is situated on a site described in Schedule 4 and identified on the Heritage Map, or (b) a place: (i) that is specified in an inventory of heritage items prepared for the purposes of this plan, being an inventory that is available at the head office of the Department, and (ii) that is described in the inventory as a place of Aboriginal heritage significance.

Note: The items listed in paragraph (a) include only those that are not otherwise heritage items under some other environmental planning instrument. 116 Strickland House is listed as a heritage item on the State Heritage Register. The Esplanade and its concrete balustrade are listed as a heritage item on the Woollahra LEP. To the extent that these items are not listed as a heritage item on the Harbour REP the provisions of cl 59 of the Harbour REP do not apply. Impact of proposed development on heritage significance of Strickland House and Shark Island 117 The heritage experts Mr Candalepas and Mr Staas agreed, and I accept, that there is no significant impact on views to and from Strickland House.

118 The main disagreement between the experts concerned the impact of the Rose Bay Marina development on the heritage significance of Shark Island. They agreed that there would be some areas of obscured views of Shark Island from the Esplanade and New South Head Road. The experts recognised that the views of Shark Island from the Esplanade and New South Head Road added to the setting of Rose Bay and its visual relationship with the harbour. They agreed that there would be no significant impact on views from Shark Island to other parts of the harbour. 119 Mr Staas considered that such "obscured views" are not "significant views" referred to in cl 59, and consequently there is no impact on the heritage significance of Shark Island. 120 Mr Candalepas was of the opinion that the aim of the Harbour REP in cl 2(1)(a)(ii) (set out above at [44]) requires the "maintenance of all present views to Shark Island" from the public domain. He considered that the interrelationship of Shark Island with its surroundings is an important component of its significance. He was particularly concerned about the ability of Shark Island to be seen as a separate entity from surrounding landforms. He noted that existing development impacted upon the enjoyment of views of Shark Island and in his opinion these views could not be further decreased without impacting on its heritage significance.

121 The first step in determining the extent of impact is to establish the heritage significance of Shark Island. The State Heritage Register Inventory Sheet provides little guidance as it is incomplete and does not include a Statement of Significance. Mr Staas referred to the Statement of Significance in the Sydney Harbour National Park Shark Island Conservation Management Plan, which states: Shark Island has regional historic value because of its diverse range of uses by local aborigines, as a human and stock quarantine station and its ongoing use as a recreation area.

It has rare aesthetic significance as a dominant landmark, by virtue of its location and vegetation, as well as the diverse group of early Twentieth Century structures scattered across the island. It is of significance to the whole of NSW.

It has the ability to demonstrate the use of the island by indigenous peoples, as well as the means of organisation of a late 19th Century stock quarantine station.

For the people of the Sydney Region, Shark Island is an integral part of Sydney Harbour, and continues to be a popular destination for public recreation. 122 The Statement of Significance does not refer to particular views that are of importance. Rather, Shark Island is a dominant landmark that can be viewed from various locations around the harbour. From some locations the view of Shark Island as a separate landform will be obscured by the proposal and it will appear as a continuation of Point Piper. From other locations separateness will be maintained. Obstruction of the view of Shark Island as a separate landform already occurs, although to a lesser extent, as boats on swing moorings move with the wind to obscure parts of the island or to link it to the mainland. 123 The proposal will impact on significant views of Shark Island but I do not accept that the degree of impact or the loss of significance is such that, of itself, it would warrant refusal of the application. Impact on the Esplanade and its concrete balustrade 124 The Esplanade and its concrete balustrade are listed as heritage items in the Woollahra LEP in Schedule 3.

125 The experts considered that the primary identified significance of Rose Bay Esplanade is "as a work of engineering and as a landscape item as stated in the Statement of Significance in the State Heritage Inventory". The proposal involves the demolition of a small section of the concrete balustrade adjacent to the eastern side of Rose Bay Marina to provide access to the hardstand.

126 Under cl 26 of the Woollahra LEP, an assessment of the impact on the heritage significance of the item is required. The council raised no issue with these proposed works. The experts agreed, and I accept, that: The proposed physical changes to the existing sea wall in the current application are acceptable in heritage terms with limited impact on the existing fabric and limited impact on any understanding of the Rose Bay Esplanade. 127 Clause 27 of the Woollahra LEP provides: 27 Development in the vicinity of heritage items, heritage item groups, heritage conservation areas, archaeological sites or potential archaeological sites

The Council must take into consideration the likely effect of the proposed development on the heritage significance of a heritage item, heritage item group, heritage conservation area, archaeological site or potential archaeological site, and on its setting, when determining an application for consent to carry out development on land in its vicinity.

128 A number of residents were concerned about the impact of the proposal on the setting of the Esplanade, which they considered to be part of its significance. For example, Mr P Poland, the President of the Woollahra History and Heritage Society, was of the opinion that the impact on the setting and heritage significance of the Esplanade was unacceptable.

129 There is a question whether "land" in cl 27 includes land outside the area of the Woollahra LEP. The marinas are outside that area. It is unnecessary to express an opinion on that question because the impact on views of Shark Island and the setting of the Esplanade are appropriately dealt with as part of the assessment of visual impact rather than as a determinative heritage issue.

Public Access 130 One of the aims of the Harbour REP in cl 2(1)(f) is to "ensure accessibility to and along Sydney Harbour and its foreshores". Clause 22 of the Harbour REP relevantly provides:

22 Public access to, and use of, foreshores and waterways The matters to be taken into consideration in relation to public access to, and use of, the foreshores and waterways are as follows: (a) development should maintain and improve public access to and along the foreshore, without adversely impacting on watercourses, wetlands, riparian lands or remnant vegetation, (b) development should maintain and improve public access to and from the waterways for recreational purposes (such as swimming, fishing and boating), without adversely impacting on watercourses, wetlands, riparian lands or remnant vegetation…

131 The council submits that the proposal does not improve public access "along" the foreshore. That may be so because of the nature of the development but nothing turns on that fact.

132 The council submits that the proposal does not improve access to and from the waterways for recreational purposes. The council submits, and its planning expert Mr Kauter is of the opinion, that access to the waterway would be reduced by the smaller boat storage capacity of the marinas, the removal of all the swing moorings, the number of berths restricted to power boats only and the increase in vessels over 20 metres. I agree. In addition, a proposal that provided a mix of marina berths and swing moorings would provide greater access for the range of boat users. On the other hand, I also agree with the applicant's planning expert Mr Harrison that the proposal would improve access by providing the navigation channel between the marinas, disabled access to Rose Bay Marina, public access to the main marina arms and the requirement that a tender service be provided to private swing moorings greater than 300 metres from the Rose Bay sea wall. The marina will also provide facilities for the boating community who use larger boats and powerboats. While this will displace smaller sail boats, it is meeting the needs of a sector of the boating community for which there is a demand. On balance, this consideration is not sufficient to reject the proposal and, in my opinion, the marina is consistent with the objective of the Harbour REP "to ensure accessibility to and along Sydney Harbour and its foreshores".

Working Harbour 133 Clause 23 of the Harbour REP includes the following provisions: 23 Maintenance of a working harbour The matters to be taken into consideration in relation to the maintenance of a working harbour are as follows: (a) foreshore sites should be retained so as to preserve the character and functions of a working harbour, in relation to both current and future demand... 134 The applicant submits and the council disputes that cl 23 is relevant. Clause 23 relates to a "working harbour". That expression is not defined in the Harbour REP. The Boat Storage Policy Chapter 2 states that it promotes four themes, one of which is "working harbour - a prosperous working waterfront and an effective transport corridor". It states that it aims to ensure that those objectives are met by "a viable working harbour which promotes commercial marinas in appropriate locations". Thus, under the Boat Storage Policy commercial marinas are within the notion of a "working harbour". That does not dictate, but I propose to adopt, the same interpretation of "working harbour" in cl 23 of the Harbour REP. Clause 23 is therefore relevant and I take it into consideration. It is not, however, sufficient to warrant approval of the application.

Equitable Use 135 Clause 24 of the Harbour REP relevantly provides as follows: 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… 136 The council submits that, contrary to cl 24(a), the proposal does not promote equitable use of Rose Bay because it excludes a larger number of existing yacht owners to the benefit of a lesser amount of power boat owners and takes up a substantial amount of the bay. While those facts are correct, it is difficult to conclude that they establish that the development does not promote equitable use of the waterway. It can be said that the development promotes equitable use of the waterway in that, for example, the general public will be able to promenade on the marina arms, disabled sailors will have better facilities and boat owners generally will have improved and more accessible fuelling facilities. The fact that a significant number of existing yacht owners will be excluded from berths does not, I think, negate this proposition.

137 The council also submits that the exclusion referred to in its submission means that there is potential for conflict of users in the channel and basin formed by the development in conflict with cl 24(b). This submission is too elusive to be engaged.

138 I do not consider that these considerations lead to rejection of the development application. Boat Storage Facilities 139 Clause 27 of the Harbour REP relevantly provides as follows: 27 Boat storage facilities 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…

140 The council submits that the development reduces the number of public boat storage facilities. In this context, in my opinion, "public" boat storage facilities includes facilities at commercial marinas. The meaning of the word "facilities", in my view, is not restricted to the number of marinas but includes the number of berths or moorings. Hence, the proposed development does reduce the number of boat storage facilities.

141 The council further submits that the development is not as visually unobtrusive as possible, as provided by cl 27(e). For a facility of its size and scale I do not see how it could be significantly less obtrusive. More to the point is whether it is visually acceptable having regard to the planning controls.

142 In my view, these considerations are insufficient of themselves to warrant refusal of the application. 143 In considering boat storage facilities, cl 4.7 of the Harbour DCP is also relevant. Under the heading "Location", cl 4.7 provides that: Marinas are not to reduce the number of publicly available single (swing) moorings, jeopardise safe navigation or adversely impact other water users including small craft… 144 The council submits that the proposed development will not satisfy this requirement.

145 In my view, in cl 4.7 "publicly available single (swing) moorings" includes moorings available for use by the public from a commercial marina.

146 The Boat Storage policy in s 5.3 states: As a means of freeing up water space for navigation, the Government also considers the conversion of commercial swing moorings (associated with commercial marinas) to marina berths to be appropriate in suitable locations. This will also potentially facilitate greater public access to the waterway for recreational boating. 147 The proposed marina has publicly available berths; otherwise it would not meet the objects of the zone. However, the proposal will reduce the number of publicly available swing moorings.

148 The Foreshores Committee notes that under the proposal users of commercial swing moorings in relatively shallow water close to shore east of the Rose Bay Marina will be relocated some 300 metres offshore under licences from NSW Maritime. The proposal involves the marina operator providing a tender service to them during marina operating hours. The Foreshores Committee submits, first, that these access arrangements do not engender confidence that the new location will be suitable for users and, secondly, do not improve public access for them. There is some weight in those submissions. However, they are insufficient in themselves to lead to rejection of the development application. 149 In considering boat storage facilities, cl 4.7 of the Harbour DCP under the heading "Design and Layout" is also relevant. It states: The depth and width of berths and fairways of commercial marinas shall accommodate either a yacht or motor vessel. Restricted berths are to be nominated only where this will lead to an optimal environmental outcome…

150 The third table set out at [19] above shows that a significant number of berths can accommodate a motor vessel but not a yacht. That is because they are of inadequate depth. The planning experts agree that a condition be imposed to designate that all berths can moor either a yacht or a powerboat. However, it seems that the condition would not satisfy this Harbour DCP requirement as some berths are unable to accommodate yachts without dredging. On the other hand, cl 4.10 provides that dredging should be minimised and the proposal proposes no dredging for berths. I consider that no dredging is a more sensible environmental outcome than requiring dredging to accommodate some more sailing boats. I do not think that this consideration should lead to rejection of the development application. Ecology 151 Clause 21(b) of the Harbour REP provides: The matters to be taken into consideration in relation to biodiversity, ecology and environment protection are as follows: … (b) development should protect and enhance terrestrial and aquatic species, populations and ecological communities and, in particular, should avoid physical damage and shading of aquatic vegetation (such as seagrass, saltmarsh and algal and mangrove communities)…

152 The council submits that the application is inconclusive in that it is not established that the proposed development either protects or enhances aquatic species.

153 The ecology experts Mr Anink and Dr Lincoln Smith agreed that: [S]ome quantitative data provided in the Marine Ecology Report (Appendix L of EIS - Marine Pollution Research 2006 in Appendix B) could not be used to provide statistically valid conclusions for impact assessment and that these data are not suitable as baseline data for future monitoring. 154 Nevertheless, Mr Anink maintained that the data that had been provided to council in the Supplementary Report (Marine Pollution Research 2007) dealt satisfactorily with marine ecology issues. The Marine Pollution Research 2007 report concluded: The marina as proposed would not have any significant impact on the aquatic ecology of the locality.

This report was not addressed by the council or Dr Lincoln Smith. It seems to me that it should lead to rejection of the council's submission. Lighting 155 A question was raised concerning whether adverse impacts of lighting on neighbours can be minimised as required by cl 4.7 of the Harbour DCP, which provides: The adverse impact of lighting on night navigation and neighbours are to be minimised through appropriate design and management measures.

156 As described by Dr Richard Lamb in his 2006 and 2007 reports accompanying the development application, night lighting for the proposed marinas would primarily be of low intensity and directed downward to the wharf walkways from low pedestal fixtures with limited spillage into surrounding areas. The lighting would add to the effect of existing lighting in the area, including that which was recently installed by the Council along the Esplanade walkway. Dr Lamb states that the proposed lighting would be similar to the lighting installed at Walsh Bay and Rushcutters Bay. He concludes that "the lighting for the marinas is so proposed that it would only be sufficient for safe access and safe working and functioning of the marinas. The lighting arrangement is not considered to result in any unacceptable visual impacts on both high and medium sensitivity zones".

157 As Mr Williamson stated in section 8.5 of his 2007 report: The current marina lighting is of an old style and design, while modern lighting applications will reduce the light emissions of the marina. The standard berthing agreement and marina rules refer to the use of lighting on vessels whilst berthed and restricts lighting accordingly. The proposed lighting (with proposed mitigation measures) would be subtle, primarily directed downward and minimised during after-dark hours, achieving the recommended Visual Performance Standard and government policy objectives.

Night-time light emissions from artificial sources should be minimised in the following ways:

· Spot lights and flood lights should be used only where required and shielded where necessary to prevent light from being directed into residential areas, public roadways and the surrounding waterways; · Feature lighting of the proposed marinas should be minimised or avoided completely where possible; · The use of shielded down lighting, instead of uplighting, is preferable; · The use of coloured neon and flashing lights on the walls of structures, in windows or attached to posts or other supports should not occur.

158 Mr Williamson says that if development approval were to be given under such conditions, the proposed lighting would be acceptable, particularly given the effect of relatively new lighting that has been installed along the Esplanade walkway. He is not sure what standards council applies to the lighting of public sports fields and outdoor recreation areas within the municipality. However, if more stringent controls than those already suggested are required, he suggests the application of Australian Standard AS 4282 - 1997, which would provide measurable threshold standards and guidelines to control any obtrusive effects of light at night associated with the marina activities. This, he says, is a highly technical standard that would require light measurements to be established and monitored in all residential and commercial areas potentially affected, as well as along any vehicular, train and water-based transport routes. It would require the setting of lighting curfew and non-curfew periods daily, with different light emission standards for each period. It would also likely require adjustments to the lighting equipment, the brightness and angle of lighting and baffling of light to prevent adverse effects. These standards are very rigorous and would require the services of a specialist lighting engineer. However, he says, if the applicant agrees to this application, the night lighting issue should be very well managed and acceptable for approval of the development application.

159 Mr Candalepas' opinion on lighting is that any unacceptable increased mass of development in the harbour carries with it by default an unacceptable lighting outcome. Mr Candalepas agrees with Mr Williamson's opinion on how the matter of lighting might be considered. Mr Candalepas therefore agrees that a condition on the consent or a deferred commencement condition on the consent is an appropriate way to deal with the management of lighting issues. Mr Candalepas' opinion, which I accept, is that such condition or deferred condition ought to be drafted by a lighting expert, and not a visual expert, and should include amongst other more technical matters: · the hours when lights are allowed to be operational; · a consideration of the existing lighting on the Rose Bay Esplanade; · the night-time view of the Rose Bay Esplanade from the Harbour as assessed against the Harbour REP, Harbour DCP and Woollahra LEP; · the comfort of all adjoining residents; and · the sustainable environmental factors possible such as the saving of electricity by use of solar-powered lighting. Marine Safety and Navigation Issues 160 The experts Mr Burge and Captain Mathias agreed that the waterway area occupied by the proposal is a reduction of about 3 hectares, from the current 9.2 hectares to 6.2 hectares. The reduction is a result of the conversion of swing moorings to marina berths and the establishment of a navigation channel between Rose Bay Marina and Point Piper Marina. The entrance to this channel is about 90 metres wide and is directly exposed to north-east winds. The experts agreed that there may be an increased navigational risk arising from the effects of wind exposure at the proposed new marina entrance channel due to its funnel-like design. 161 Mr Burge raised concerns over a number of other aspects of the proposal, which he considered had not been adequately addressed. They included fire safety, oil or chemical spillage and the potential for conflict between powerboats and other users of the bay. However, both experts agreed that a plan of management incorporating a code of conduct could address these matters and the safety of the navigation channel.

162 Plans of management were submitted by the applicant as part of the development application. However, the experts agreed that these plans are inadequate. The experts provided a framework for a proposed plan of management and considered the matters that could be addressed in it, including: · The imposition of appropriate speed limits in specified areas, channels and fairways if this possibility is acceptable to NSW Maritime. · Local safety rules, if necessary. · A Code of Conduct for users, including the general boating public, in certain conditions. · Training and planning for high risk and emergency situations. · Identification of the specialised equipment and trained personnel required to effectively manage safety aspects of the Marina.

163 In relation to conflict between users of the marina and smaller craft, the experts noted that there is no study accompanying the proposal that examines the levels of marine usage in Rose Bay and which predicts the extent and effects of any potential increase in marine traffic in and around the area at any time. Mr Burge considered that such a study should be carried out. Captain Matthias held the contrary opinion that existing regulations and education programs are already in place to address safety issues when small craft and large vessels interact.

164 A number of objectors were concerned that there would be potential conflict between power boats and kayaks, dragon boats, rowing boats and other small craft. The particular concern related to the impact of the increased intensity of use of the bay by large vessels, which would result in safety issues such as wash from the boats, speed, lack of visibility of smaller craft and "intimidation" by larger boats due to their size and presence.

165 Representatives of boating associations and business explained that smaller craft are attracted to the waters of Rose Bay because of the protection it affords, particularly from southerly winds when manoeuvring along the shore. They stated that they use the whole length of the Bay, often using the western end for turning. They considered the proposed Rose Bay Marina would impede access along the bay and restrict manoeuvring. They felt that the western end of the bay would no longer be able to be used by small craft as it would be too hard to go around Rose Bay Marina and there would be conflict with larger boats around the marinas and using the navigation channel.

166 A benefit of the proposal for smaller boats is that the closest berthing arm is further from the shore than the existing swing moorings. The minimum distance of a moored boat is proposed to be 64.4 m from the shore. This will provide a sheltered area close to the shore for small boats.

167 The experts agreed that the "Alternative Design" submitted by Worley and Parsons appears to address the concerns about access for kayaks. This design provides access for kayaks under the Rose Bay Marina gangway at certain times depending on the tide. It appears to increase kayak access compared to that available under the existing fixed timber jetty structure. However, it is unclear whether it improves access for other small craft such as dragon boats.

168 NSW Maritime considered the navigation and waterways management aspects of the proposal. Its letter of 11 September 2007 includes the following comments in relation to potential for traffic congestion and conflict between users of Rose Bay: If approved, the proposed redevelopment may result in a change to the way the waters of Rose Bay are used.

It is considered the proposed redevelopment of the Marinas is likely to result in a greater separation in use of the waters of Rose Bay West with general recreational and public use being concentrated within the water corridor between the two Marinas.

East-West movement across the Bay will be restricted due to the extension of built form associated with Rose Bay Marina. However, no conflict is anticipated with approved kayak hire and training sessions operating from the beach at Rose Bay Park.

If approved, the proposed redevelopment may introduce a relatively higher number of larger vessels into Rose Bay West (76 vessels up to 20m long, 8 vessels up to 25m long, 9 vessels up to 30m long, and 4 vessels up to 37m long). NSW Maritime considers there is sufficient water space for these larger vessels to access berths and shared facilities (fuel/pumpout berths etc). The open waters will be shared with others and there is a requirement that skippers abide by all maritime safety regulations including distance off requirements and no wash regulations.

NSW Maritime has no navigation objection to a seaward expansion of the Rose Bay West water space allocated for boat storage purposes.

NSW Maritime is of the view that the proposed redevelopment of the Marinas will:

· Have a generally neutral impact on the recognised aquatic activities of Lyne Park boat ramp users, Woollahra Sailing Club or approved hire businesses operating from Tingara Reserve; and

· Have a neutral impact on current congestion within the swing mooring area to the east of the proposed Rose Bay Marina. 169 I accept the evidence of the experts that the proposed development may result in an increased navigational risk. I also accept that there is a potential conflict between large powerboats and small craft, even if it is only one of perception, which may result in different use of Rose Bay West. I note, however, that NSW Maritime does not envisage that there will be a conflict in this area.

170 I consider that a plan of management, including a code of conduct, should be finalised prior to any approval of an application such as this to ensure that the measures required to ensure navigation safety and mitigate conflict are reasonably achievable. In the absence of more research on the extent of the existing and proposed users of the Bay, it may be insufficient to assume that all boat users will "do the right thing". Impact on parking 171 The council's contention is that the proposal would increase the demand for on street parking. Both the existing marinas and the proposed development provide no on site parking and the demand is met by the availability of on street parking within the surrounding road system. The objectors also raised parking as a key concern and considered that there were already problems with the availability of parking due to the extensive use of Rose Bay and the surrounding area for various activities, particularly on weekends.

172 The parking experts Mr Hallam and Mr Burns considered the council's contention and stated that: The Contentions rely on parking calculations based on the NSW Roads & Traffic Authority Guide to Traffic Generating Developments and on Woollahra Municipal Council's (Development Control Plan) for Off-Street Parking Provision and Servicing Facilities. [The experts] both agree that these documents provide a guide only and should only be considered if surveys were not undertaken at other appropriate marina developments. [The experts] both agree that there have been adequate and sufficient surveys undertaken of parking demand at other appropriate marinas. [The experts] agree the results and analysis of these surveys should be used in the assessment of parking issues, rather than the RTA and Council guidelines. 173 The assessment of the existing marinas was based on 100 percent occupancy of the 224 licensed moorings with all boats being less than 20 metres. A higher parking generation rate was applied to the swing moorings than to the berths due to the greater usage of boats on swing moorings.

174 The experts both undertook surveys at Rozelle Bay marina to determine the likely parking to be generated by boats over 20 metres in length. They reached different conclusions on rates to be applied to the proposal. However, they agreed that although larger boats have a higher parking rate, they are generally used less than boats on swing moorings. The proposal would therefore generate less parking demand than the current marina due to the reduction in swing moorings.

175 Surveys of on street parking within 300 metres of both Rose Bay Marina and Point Piper Marina were undertaken on days in both winter and summer periods. The experts agreed that the marina would generate the most parking demand in the summer period on weekends and public holidays although the lowest amount of on street parking was surveyed during the winter, which Mr Hallam observed is likely to result from activities at the nearby schools. 176 The demand for parking and the on street supply was assessed for Rose Bay Marina and Point Piper Marina combined as well as separately. Although employing different figures, the experts concluded that, using the "standard" rate, the demand for parking within 300 metres of the proposed Rose Bay Marina would increase, but there would be sufficient parking spaces within the vicinity of Rose Bay to accommodate this demand in both summer and winter. The demand for parking within 300 metres of the proposed Point Piper Marina would decrease and there would therefore be a net increase in parking availability. 177 Presently, Point Piper Marina has the largest number of swing moorings and the least capacity in the surrounding streets for the provision of on street parking. The proposal will correct this imbalance as the largest number of boats are proposed to be within the Rose Bay component of the marina which has the greater availability of on street parking. 178 The only residual dispute between the experts related to the sensitivity analysis undertaken by Mr Burns whereby he assumed that all the 76 berths allocated for boats 15.1 metres to 20 metres in length would be occupied by 20 metre boats. Boats greater than 20 metres generate a greater demand for parking. Mr Burns concluded that: This scenario indicated that the proposal would generate the need for an additional 6 parking spaces (approximately 13%) over the existing marina parking demand assuming the 'standard' parking rates. 179 If the figures were disaggregated and the marinas assessed separately, Mr Burns concluded that for Rose Bay Marina: The sensitivity test (where boats up to 20m in length were located in the 15.1 to 20m berths) shows that parking demand would increase between 16.59 spaces and 24.13 spaces. Under this scenario there would be a shortfall of between 3-10 spaces within 300m of the marina over winter and between 13-20 surplus spaces over the summer period. Parkers would therefore be required to park more than 300m from Rose Bay Marina during the winter period. 180 There would be a net increase in the supply of parking within 300 metres of Point Piper Marina even under the disaggregated sensitivity analysis. 181 Mr Burns recognised that the sensitivity analysis "is unlikely to occur in practice but was undertaken as a theoretical absolute worst case parking demand scenario". Mr Hallam also considered scenario to be very unlikely to occur. 182 Based on the evidence of the traffic experts, the proposal will not generate an unacceptable demand for parking which cannot be met by the availability of on street parking. The sensitivity analysis conducted by Mr Burns is an absolute worst case scenario and is unlikely to occur. Even if the analysis is accepted, its results indicate that if the marinas are combined there would be adequate parking in the vicinity in both summer and winter. If disaggregated there would be a shortfall of parking for Rose Bay Marina only in the winter months, which is not the period of greatest marina use. Nonetheless, this shortfall could be avoided by placing as a condition of consent a limitation on the number of boats 20 metres and over that can be accommodated at the marina. This would limit the traffic generation of the proposed marina. Noise 183 The principal concern of the council is the 24 hour operation of the marina. The noise experts Mr Cooper and Mr Gross identified that the operation of certain activities, such as workshop maintenance, would need to be restricted to certain hours and/or operational measures employed to ensure compliance with the noise criteria. They agreed that the matters raised could be addressed by a noise management plan incorporating a code of conduct for boat owners and their guests, the requirement for 24 hour security and a process to review the plan. The experts also proposed conditions to address operational and construction noise to meet the criteria. I accept the evidence of the experts but consider that the noise management plan, incorporating a code of conduct, should be considered prior to any approval of an application such as this to ensure that the measures required to mitigate noise impacts are reasonably achievable. Conclusion 184 My conclusions in respect of the visual impact of the proposed Rose Bay Marina are sufficient to lead to dismissal of the appeal and refusal of the development application. The orders of the Court are as follows: (1) The appeal is dismissed. (2) Development application (DA 766/2006/1) proposing redevelopment of the Rose Bay and Point Piper Marinas is refused. (3) The exhibits may be returned.

17/06/2008 - Omitted annexure of aerial photograph - Paragraph(s) last page at end of judgment 15/06/2009 - Formatting error in Table 2 and 3 of para 18 - Paragraph(s) 18 15/06/2009 - Formatting error on tables 2 and 3 para 19 - Paragraph(s) 19

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