Addenbrooke Pty Lty v Woollahra Municipal Council

Addenbrooke Pty Lty v Woollahra Municipal Council - [2008] NSWLEC 190 - NSWLEC 2008 case summary — Zoe

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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.

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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.

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(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.

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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.

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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.

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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.

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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.

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