Brooklyn Resort Pty Ltd v Hornsby Shire Council and Anor

Land and Environment Court (NSW)|1999-08-16|Before: Pearlman J, Mr J

Introduction 1 to 6 The site 7 to 12 Background 13 to 15 The proposal 16 to 22 Relevant planning controls 23 Sydney Regional Environmental Plan 20 - Hawkesbury-Nepean River (No 2 - 1997) ("SREP 20") 24 Hornsby Local Environmental Plan 1994 ("LEP 1994") 25 Brooklyn Development Control Plan ("the Brooklyn DCP") 26 Public representations 27 to 35 The issues 36 to 38 Visual impact 39 to 54 Vehicular access and parking 55 to 60 Disposal of sewage and stormwater 61 to 67 Impact on the marine environment 68 to 78 Tidal flows and sedimentation 79 to 80 Water quality 81 to 84 Seagrasses 85 Mangroves 86 to 87 Oyster leases 88 Overall assessment 89 to 90 Compliance with planning controls SREP 20 91 to 98 The Brooklyn DCP 99 to 104 Lack of adequate information 105 to 111 Is it a tourist facility? 112 to 114 The "master plan" 115 to 120 Noise disturbance 121 to 123 Internal amenity 124 to 125 Economic impact 126 Conclusion 127

IN THE LAND AND 10432 of 1998 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 21 September 1999

This is an appeal against the refusal by Hornsby Shire Council ("the council") of a development application to construct a tourist resort near Brooklyn.

The proposed development has a number of special or unique features: (a) The site is situated in an area of high scenic quality, in the Sandbrook Inlet of the Hawkesbury River, and is in a sensitive marine environment;

(b) Almost all of the proposed development is to be built over the water;

(c) The architect and project designer, Mr T S McDonald, has proposed two innovative and creative responses to the features of the site: first, a moiré effect to be achieved by floating painted canopies over each building and, secondly, a curved glass wall and ornamental pond on the eastern side of each building intended to reflect the water. All those matters give rise to severe constraints. In four major respects, the development application has failed to meet those constraints or to overcome its inherent deficiencies.

Firstly, the visual impact of the proposed development is unacceptable because of its considerable bulk and its location over a relatively unspoilt bay which has outstanding scenic beauty and may be seen from many vantage points. Secondly, its impact on mangroves and seagrasses, on and near the site, is unacceptable. Damage to water quality and marine life is likely to be high. Thirdly, the documentation does not provide adequate details to allow a proper assessment of impacts. In the circumstances of this development application, located as it is on a highly sensitive site, the level of detail required for an adequate assessment is far greater than it would be in the case for a land based location with less severe constraints. Fourthly, the proposed development does not comply with the relevant planning controls.

Much of the applicant's case was based on what was contended to be an innovative and creative approach to dealing with the visual impact of placing 17 relatively large buildings on top of water. The Court is not against innovation and creativity. Indeed, innovation and creativity should be encouraged and applauded. The fact that the proposed visual devices have not been tried on buildings before is no reason not to try them now. However, where a new approach is suggested, its success cannot just be taken on faith. The applicant must demonstrate that it will work, and it has failed to do so.

I have concluded, therefore, that the appeal must be dismissed. I turn now to set out in detail my reasons for coming to this conclusion.

Before doing so, I wish to acknowledge the assistance provided to me by Commissioner Roseth who sat with me to hear and dispose of this appeal.

The site (being lot 100 in DP 865149) is located on the eastern side of the Pacific Highway, between Brooklyn Road and Kangaroo Point, Brooklyn and is within Sandbrook Inlet. It commences about 100 m south-east of the southern end of the Pacific Highway bridge over the Hawkesbury River and it extends southwards for about 500 m along the river bank. The site's area is 11.8 ha; however more than 90 per cent of it is covered by water. Opposite the site is Long Island, which is a nature reserve.

The site is roughly rectangular in shape. It extends some 150 to 250 m from the shoreline into the inlet, stopping about 70 m short of Long Island. Most of the land below mean high water mark is covered by shallow depths of water at low tide. At such times a broad swath of mud flats are exposed near the shore.

There is a sizeable seagrass bed near the north-western corner. The land component of the site, which is mainly a narrow strip along the shoreline, consists mainly of the batter of the embankment supporting the Pacific Highway and Brooklyn Road each of which was relocated when the Sydney to Newcastle Freeway was constructed in the 1960s. Along the shoreline is a row of mangroves. At the northern end of the site is the Kangaroo Point wharf complex consisting of a jetty and several small structures. At the southern end of the site is the Dolphin Marina. About 20 swing moorings are located on the site.

About 3.5 km along Brooklyn Road is the township of Brooklyn. A small number of houses exist on either side of the road between the site and Brooklyn. There are also several marinas and private jetties.

The most prominent man-made structures in the vicinity are the two road bridges over the river. The backdrop to the site, when viewed from the water, is either national park or nature reserve.

The Court had the benefit of an extensive site inspection, both on the land and from the water.

In 1979 the council identified the western end of Sandbrook Inlet as a potential site for marina and tourist development. In 1988 the Minister for Tourism resumed the site, formerly Crown land, and lot 100 was created. In the same year a development application for a marina and tourist development was lodged with the council. The proposal included dredging and reclamation.

In 1989 the council requested the Minister for Planning to refer the development application to a Commission of Inquiry. The Commission recommended refusal of the development application. However, it concluded that "Kangaroo Point has potential for future tourist and marina development subject to the comments and findings of the Commission of Inquiry report". The Minister refused the development application in 1990.

The current development application was lodged with the council in December 1997. The council refused it in May 1998. The applicant commenced this appeal in June 1998. In June 1999 Save Hawkesbury's Unique River Environment (SHURE) was joined as second respondent to the proceedings.

The applicant proposes to erect a tourist resort on the site, to be constructed in three stages. Stage 1 is to contain: (a) 100 two-bedroom apartments in six two-storey buildings and three three-storey buildings;

(f) the first stage of a sewerage treatment plant ("STP") at the southern end of the wharf.

Stage 2 is to contain 84 two-bedroom apartments in four two-storey buildings and three three-storey buildings, the balance of one carparking structure, a conference facility and swimming pool on the top of the central building and a floating restaurant projecting about 200 m from the shoreline.

The only part of the proposal which is on land is the access way which connects the wharf with Brooklyn Road. Additional parking for 96 cars in stage 2 and for 160 cars in stage 3 is to be provided on a rectangular platform located between the northern part of the wharf and the shoreline. This structure and a second similar one are proposed in subsequent stages to be converted to a multi level car park using mechanical stack parking.

The buildings containing the apartments are to be connected to the wharf by piers. Each buildings is to consist of two parts, one on either part of the pier which connects it to the wharf. The water-side part of the building is to contain the living rooms, while the rear part is to contain the bedroom. The living room and the bedroom section of each apartment are to be connected by stairs crossing each other in the shape of scissors.

The buildings are to be built on metal piles. Once these are driven in, the building will be constructed in pre-cast white concrete. The eastern elevations will feature large sections of curved glass as well as 300 mm deep ornamental ponds, intended to reflect the water. Several of the apartments will have floating balconies which will move with the tide.

Undoubtedly the most novel feature is the proposal to attach floating canopies to each building. The canopies are to be metal structures resting on buoys and they are to be attached to the buildings by sleeves. The top of the canopy structures are to be curved and covered with wire mesh. The flat concrete roofs of the buildings and the wire mesh of the floating canopies are to be painted in colours which reflect the water and the eucalypt forest in the background. The floating canopies are intended to move with the tide and to create a pattern of moving colours and shapes when seen in conjunction with the painted flat concrete roofs below them. This visual effect was referred to as the "moiré effect" , a kind of shimmer most often seen on materials such as silk or taffeta. The resort is to be called the Moiré Resort.

The construction of an STP is designated development under the Environmental Planning and Assessment Act 1979 ("the EP&A Act") and accordingly the development application was accompanied by an environmental impact statement relating to the STP part of the proposal.

Two environmental planning instruments and a development control plan are relevant to the site. They are:

Sydney Regional Environmental Plan 20 - Hawkesbury-Nepean River (No 2 - 1997) ("SREP 20")

The current version of SREP 20 was made in 1997. SREP 20 applies to those local government areas in the Sydney Region through which the Hawkesbury Nepean River passes. The aim of the plan is to protect the river's environment.

LEP 94 zones the above high water mark component of this site Business D (Aquatic Service Centre). LEP 94 does not indicate any zoning for the below mean high water mark part of the site. It was common ground between the parties that the Business D zone may be considered to extend over the whole of lot 100. Car parks, marinas, multi-unit housing, office premises, restaurants, tourist facilities and utility installations are permissible with consent in the Business D zone. Hotels and shops are prohibited.

Brooklyn Development Control Plan ("the Brooklyn DCP")

The Brooklyn DCP was adopted by the council in 1996. It establishes detailed development guidelines for the Brooklyn area, including specific guidelines for this site.

The Court heard the evidence of one supporter of the proposal and of a number of objectors.

Mr T Lavidis, a tour operator in the Brooklyn area, told the Court that he considered the proposal to be of great benefit to Brooklyn. In his opinion Brooklyn was very short of tourist accommodation. At present only holiday houses were available for such accommodation. He considered the proposal to be an example of eco-tourism.

Ms W R McMurdo, a full-time resident of Dangar Island and the president of SHURE, told the Court that she did not consider the site suitable for any development. In her opinion, the proposal was inconsistent with SREP 20. While she commended the fact that the proposal did not include dredging and reclamation, she was concerned that the driving in of over 600 piles would do a great deal of damage. She did not think that the moiré effect would be successful in integrating what were essentially concrete structures into a landscape of sandstone, eucalypts and water.

Mr R J Frith is the co-owner of the Dolphin Marina. He objected to the access way in so far as it will involve a relocation of the access to the marina. He was concerned that it might hinder traffic coming to the marina, particularly hauliers and vehicles pulling boat trailers. He did not think that the proposed development would increase his marina business opportunities and thought that the proposed development would "devalue the whole area".

Mr R Clark, the president of the Oyster Farmers Association, who owned and managed an oyster farm in the river, told the Court of the importance of the Hawkesbury oyster in the State's total oyster production. He said that clean water was the most important resource of his industry. His main concern was that pollutants would enter the water from the development through inadvertent spills or leaks.

Dr J A Eggins, who is a science educator and who takes study groups around the Muogamarra Reserve, provided the Court with a series of photographs from which the site was clearly visible. The photographs were taken from the Reserve and from the Cowan to Brooklyn section of the Great Northern Walk. In Dr Eggins' opinion, the proposed development would spoil those scenic views.

Mr T S Richmond, a historian who lives at 58 Brooklyn Road, told the Court of the site's historic and scenic importance. A picture of the site appeared on the Five Pound note from 1913 to 1932. It is also within the first view of the river from the Northern Railway line.

Mr K S Shadie, of 20 Brooklyn Road, Mrs M Kearney-Kibble, of 49 Brooklyn Road, and Mrs I Haydon, of 26 Brooklyn Road, were three objectors who could see the site from their houses. They objected to placing buildings on what they considered to be part of the river. They did not think that the proposed roof canopies would improve the appearance of the proposed development.

Other objectors were Mr S P Curtis, a permanent resident on Dangar Island, Mr I S Judd who has a holiday house on Dangar Island; Mr L A Reedman who is a permanent resident of Dangar Island; Mr J L Gamble and Mrs M F Jennings who live at Cheero Point; Mr B J McGrath and Mr M R Fish who live at Mooney Mooney; Mr R Bolton who is a member of the Association for Berowra Creek; and Mr R J Hoddinott who visits the area on week-ends. They had three main concerns: (a) the proposal will impact adversely on the marine environment;

(b) the proposal will diminish the beautiful river scenery by filling in with buildings a large area of water in a relatively unspoilt part of Sandbrook Inlet;

The council submitted a statement of issues containing 28 issues, with a further 18 sub-issues. SHURE submitted its own statement of issues containing 11 issues, bringing the number of issues to 57.

During the hearing, those issues were refined into the following salient issues: (a) Is the proposal's visual impact acceptable?

(b) Are the arrangements for access and parking acceptable?

(d) Is the proposal's impact on the marine environment acceptable?

(e) Does the proposal comply with SREP 20 and the Brooklyn DCP?

(f) Does the Court have adequate information to assess the proposal?

The following issues were discussed but do not appear to be critical to the success of the application: (a) Is the proposal correctly described as a tourist facility?

(b) Is approval sought for the three stages of the development or only for stage 1?

(d) Will the internal amenity of the proposed resort be acceptable?

(e) Will the proposal have an unacceptable economic impact on the locality? Visual impact

Three experts gave evidence on visual impact and urban design: Mr M W Harrison for the council; Dr R J Lamb for SHURE; and Mr G P Webber for the applicant. In addition, Mr McDonald gave evidence.

Mr Harrison, a planner and urban designer, had concerns with the proposal's visual impact, its compatibility with its surroundings and its architectural design. His concerns may be summarised as follows: (a) The site has outstanding natural beauty and may be viewed from many places, including the Pacific Highway, the Northern Railway, the Reserve and National Park to the south as well as numerous locations on the water.

(b) The proposal will intrude upon a large part of the inlet immediately south of Kangaroo Point and will be highly visible. It covers a much larger area of water than suggested by the Brooklyn DCP.

(c) Currently the main structures and man-made items on the water are wharves and boats. These are small scale elements. The boats move with the tide and provide a changing scene of visual interest.

(d) The man-made elements along the foreshore are mainly small scale. By contrast the proposal will comprise much larger structures that will occupy a vast area of the waterway. The three-storey buildings will be up to 13 m above water level at low tide. They will be in stark contrast to most of the buildings in Brooklyn which are less than half that height.

(e) The scale of the wharf has no visual transition to smaller scale elements such as boats.

In relation to architectural design, Mr Harrison had two main criticisms: First, the buildings are spaced too close together. From many vantage points the proposed development will appear as one long unarticulated structure. A person on the water passing in front of the proposed development will not be able to catch glimpses of the foreshore, nor of the mangroves, nor of the hill behind.

Second, the buildings lack variety, being essentially 16 oversized boxes. The attempt to soften them with the floating canopies will not be successful, mainly because most viewpoints are not from above. In any case, the canopies will need larger structural members than shown and this will negate their intended light visual effect.

Dr Lamb, whose expertise is in the assessment of visual impact, had carried out the work for the Scenic Quality Study which underlies SREP 20. For the assessment of the proposed development he identified several view points from which the site can be seen. He considered that the site's "visual absorption capacity" was low and its "visual sensitivity" was high. (I assume that he meant that any structures on the site would be highly visible and that they would diminish its scenic appeal).

Dr Lamb said that, while the development would be highly visible, the designer has not attempted to fit it into the landscape, but instead resorted to "optical illusion devices" . He did not think that the floating canopy would achieve the moiré effect, even if it could be constructed as shown on the drawings, because it relied on the eye of the observer moving fast in relation to the two coloured surfaces. He believed that from most viewing points the dominant visual experience would be of a series of essentially similar prismatic shapes placed in two rows, sufficiently close together that there would be no effective visibility between them.

Mr Webber, an architect, planner and urban designer, took issue with Dr Lamb's opinions. He said that he did not consider the site pristine. It was dominated by large structures such as the two road bridges. He agreed that a similar design had not been done anywhere that he knew of. It was for that very reason that he considered the proposal innovative and creative. He believed the ornamental ponds, the reflective glass and the moiré effect on the roof would be successful in integrating the proposal visually into the natural landscape of land and water.

Mr Webber placed major weight on the Brooklyn DCP. While he agreed that the proposed development does not comply with the Brooklyn DCP, he believed that its visual impact would be less than a project designed in compliance with the Brooklyn DCP. Mr Webber saw three major differences between what is proposed and the Brooklyn DCP. First, a second row of buildings has replaced the marina suggested in the Brooklyn DCP. The outer row of structures in the proposal extends 50 m less into the water than the area for the marina shown in the Brooklyn DCP. Second, the proposed design is detached from the land and attempts to evoke a nautical imagery. Third, the car parks are not cut into the land form but placed over the water. In Mr Webber's opinion, these departures are justified and result in a visually more satisfying project than would be the case if the Brooklyn DCP had been followed.

Mr McDonald drew the Court's attention to the degraded state of the site, illustrating it with photographs of dumped cars and other detritus left among the mangroves. He rejected Mr Harrison's criticism that the proposal was a repetition of bland boxes. He took issue with Mr Harrison's opinion about the scale of development, saying that scale did not equal size, and that the scale of the development was not out of character with the surroundings of the site. He believed that the viewer would be presented with a "very dynamic vista" . He said that the overriding principle that drove his design was ecologically sustainable development.

Mr McDonald said that the project would blend into the landscape of water, sandstone and eucalypts. The tinted curved glass facade and the ornamental ponds of the units would reflect light in a way akin to the surface of water. The "organic form" of the floating canopies would create a moiré effect, thus integrating the building with the colours and textures of the water and the eucalypt forest in the background.

I find the evidence of Dr Lamb and Mr Harrison more persuasive than that of Mr Webber and Mr McDonald. Any project which is proposed to be built over water has a great visual hurdle to overcome: namely, people's expectations of what they might see on water. The man-made features people expect to see on water are structures which must be there for functional reasons, namely, bridges, wharves, marinas and boats. They are not accustomed to seeing a complex of 16 apartment blocks on top of a body of water.

The fact that there are many boats moored in Sandbrook Inlet and that they are closely spaced does not assist in making this proposal part of the water scenery. Boats do not have a visual impact remotely resembling the impact of this proposal. They are much smaller than any of the structures in this proposal and they sway with the movement of the water. Moreover, the buildings along the shoreline are also relatively small. This is true even if one includes Brooklyn township, which is not visible from the site.

I take into account the fact that Mr McDonald has attempted to reduce the project's impact by integrating it into the landscape. The gist of his evidence was that the proposed development, containing 184 apartments and accommodating nearly 400 cars, built on top of an undeveloped inlet, will recede into the landscape of water and trees as a result of his innovative design. On the evidence presented to me, however, I am in considerable doubt about whether this desired effect will be achieved or indeed whether it is achievable.

I take, as an example, the visual device on which Mr McDonald appears to have relied most heavily, namely, the floating canopies intended to achieve a moiré effect. This effect has, according to the evidence, never before been used on buildings. There is real doubt in my mind about whether the proposed structures will produce a moiré effect. Mr Webber suggested that the floating canopies will move with the wind and the waves, both vertically and laterally. However, the engineering evidence (which I deal with below) was that the canopies would move only up and down with the tide, and only about 300 mm. Will this restricted vertical movement without horizontal swaying produce the desired effect? Nothing in the applicant's evidence convinces me that it will.

The likely effect (as distinct from that intended by the applicant) of the other visual features, like the curved glass wall and the ornamental ponds, is equally uncertain. Numerous questions arise. Is a 300 mm deep pond along the facade of a three-storey apartment building sufficient to make it fade into the landscape? Which way will the light be reflected or refracted? Most importantly, how will the proposed development look during the afternoons when no sunlight falls on the eastern facade?

I accept, of course, that it is not practicable to solve every technical detail at the development application stage. However, when an applicant proposes a visual device that has never been tested on a building, relying to a large extent on it for the justification of its design, then it must demonstrate that the device will achieve the desired visual effect. As Dr Lamb said in his evidence: "if it is not feasible and believable, then it is not approvable".

The proposal provides for a ramped access road over the mangroves leading to a wharf. Parking in stage 1 is for 138 cars on the wharf and on the first level of the carparking structures. Stage 2 will accommodate 96 cars, and stage 3, 160 cars, the latter two stages by mechanical stacking. The total number of cars to be accommodated is 394.

Mr C E Hallam, a traffic consultant, gave evidence in the council's case. He agreed that the design of the access road to the site was adequate to allow reasonable movement by vehicles, buses and trucks. He also agreed that there were no critical issues in relation to the traffic impact on Brooklyn Road. Nevertheless, he had two main criticisms of the proposal. Firstly, the drawings did not show the method of construction of the access road and its relative levels. As a result the impact on the mangroves could not be assessed. Secondly, the information on the mechanical stacking of cars was so generalised and vague, no conclusion could be drawn on whether or not it would operate satisfactorily. In addition, according to Mr Hallam the time it would take to stack each vehicle would be likely to result in long delays and even longer queues.

Mr R Varga, a traffic consultant retained by the applicant, disagreed with Mr Hallam about delays. He said that two pallets (each of which is the platform on to which the car is initially parked before being stacked by the system) could be used for each mechanical stacker. He conceded, however, that he had not prepared a queuing analysis. He argued that the stacked parking was part of stage 2 and stage 3 and did not need to be designed in detail at this time. He agreed that the construction of the ramped access had not yet been designed, though he thought most of it would be on columns. He recommended that the wharf should include a pedestrian path and agreed that this would add 2 m to its width.

A report from Mr C Barksby, the business development manager of Rigsby Jones Engineering Pty Ltd, dealing with mechanical stacking of cars, was tendered as evidence.

Two conclusions may be drawn from all the above evidence: (a) Vehicular access and the parking arrangements for stage 1 of the proposed development could be made to work. However, the design of the access ramp had not progressed sufficiently to allow an accurate assessment of its impact on land form and especially on the mangroves over which it is proposed to span.

(b) The parking arrangements proposed for stage 2 and stage 3 are too vague to allow any conclusions whether or not they would result in unacceptable delays. There is also uncertainty about the height of the parking structure. That height, in turn, would affect the visual impact of the proposed development.

In my opinion, the lack of certainty about the impact of the access road on the mangroves is a serious deficiency of the application. The potential problems with stack parking relate to stage 2 and stage 3 and are not fatal to this development application.

Mr G Frougas, a water, wastewater and environmental engineer, gave evidence in the applicant's case. His report included a preliminary design of the proposed STP. The STP will include: (a) an extended aeration activated sludge treatment plant;

Treated effluent is to be recycled for toilet flushing and filling the ornamental ponds. The remainder will be removed, necessitating one truck movement per day. Eight kilo litres of sludge will be removed once a month.

Mr Frougas was confident that the STP would not emit any odours. He agreed that the plans do not at this stage include an alternative source of power required for operation of the STP. He identified one of the bus parking bays as the best place for parking the trucks when collecting effluent. He agreed that the parking place would need bunding and a sump for collecting any spillage, but he did not supply details as to how the bunding and sump were to be constructed, nor how they would operate to avoid spills.

The applicant tendered a report by Mr A Jolly, a plumber, containing a general description of the vacuum system by which the sewage would be collected from the apartments and conveyed to the STP. However, the report did not include a design for this proposal.

The applicant also tendered a report by Mr W Harris, a director of Harris Page and Associates who are hydraulic and fire services consultants, on the design of the stormwater treatment. The report indicated that the runoff from roofs will enter the water directly, while runoff from the carpark and pedestrian walkways will go through gross pollutant removing devices before entering the water. The report included brochures on a device manufactured by CDS Technologies, though it did not provide information on the size. location, form or operation of the device to be used for this particular proposal.

Mr L Gomes, a civil engineer, gave evidence in the council's case. In his opinion both the sewage and stormwater treatment strategy were incomplete. He calculated the number of truck movements in stage 1 to be two per day. In stage 3 five tankers will be required. He was critical of Mr Frougas' report for not providing information on water balance. He agreed that engineering solutions could ultimately be found for all aspects of the proposed development, but he noted that no solutions have yet been presented.

It is clear from the above evidence that the design of the sewage and stormwater disposal systems for the proposed development have not reached the kind of finality necessary to demonstrate that there will be minimal risk of polluting Sandbrook Inlet. Whilst I accept that the STP suggested by Mr Frougas could work, matters like the collection of effluent, the reticulation of the sewage to the STP, emergency plans for electricity stoppage and dealing with accidental spillage have not been worked out. In a land based development such shortcomings may not be critical because malfunctions and accidents, while inconvenient, may not cause serious harm. For this proposal even a small amount of effluent or untreated stormwater finding its way into the water may have serious environmental consequences. The applicant's evidence has not persuaded me that the risk of harm is within acceptable limits.

The respondents' concern was with the proposal's impact on tidal flows, water quality, seagrasses, mangroves and oyster leases.

Two experts from NSW Fisheries gave evidence. The first, Dr A K Smith, a senior manager, said that NSW Fisheries opposed the proposed development, since it did not comply with its strategic document Policy and Guidelines for Aquatic Habitat Management and Fish Conservation . The main points of non-compliance were: (a) The policy restricts development on or adjacent to waterways to only structures which need to be located there, eg boat ramps, wharves and jetties. Resorts do not need to be on water.

(b) NSW Fisheries will not approve any structures within 50 m of subtidal or intertidal marine vegetation such as mangroves and seagrasses because of the impact from shading and the associated damage caused by vessels using the structures. The proposal comes within 41 m of the seagrass bed for stage 1, and 21 m for stage 2. It comes within a few metres of the mangroves. 70. Under s 205 of the Fisheries Management Act 1994 any activity which may harm marine vegetation can be carried out only with the permission of the Minister administering that Act. Dr Smith said that NSW Fisheries would not recommend that permission be given for this development.

Mr P Schuetrumpf, the District Fisheries Officer, said that he was concerned about the proposal causing additional sedimentation in an already shallow inlet.

Mr M I Hughes, the program leader of Catchment Planning, Hawkesbury-Nepean Catchment Management Trust, said that he believed the proposed development would harm water quality, marine life, the seagrass bed and mangroves.

SHURE submitted a report by Dr P J Cowell, a senior lecturer in the Coastal Studies Unit of the Marine Studies Centre, University of Sydney, on the assessment of potential pollution by the proposed development. Dr Cowell was not required for cross examination and did not give oral evidence. The substance of his report was that water quality in the Sandbrook Inlet was poor; tidal circulation and flushing were inadequate for the clearing of pollutants; and up to 70 per cent of the inlet was not subject to tidal flushing at all. However, Dr Cowell's assessment did not address the question of what pollutants would be generated by the proposed development.

The applicant's evidence was supported by a number of scientific surveys and reports. It included a study of tidal currents and a hydrographic survey of the site. The former indicated that current speeds in the estuary are quite low under tidal conditions. The latter indicated that shallow rock and mud areas along the western shoreline between Kangaroo Point and Dolphin Marina were interspersed by dense mangroves extending from approximately 3 m to 8 m out from mean high water mark.

The applicant tendered a report by Mr A F Nielsen, the section leader of the Coastal Engineering Unit, Water Research Laboratories, UNISEARCH, University of New South Wales, dealing with the hydrodynamic impact of the proposed development. Mr Nielsen was not required for cross examination and did not give oral evidence. The gist of his report was as follows: (a) The installation of piles in stage 1 would result in a reduction to the tidal flow over the site of about 50 per cent. However, the site is already depositional and the installation of the piles would not increase the amount of deposition at the site. There would be no increase in sedimentation.

(b) The 50 per cent reduction in tidal velocities would increase tidal velocities in the main channel or fairway. The velocities in the fairway are well below those velocities navigated in the main channel of the Hawkesbury River and the development would have no adverse impact on navigation. The changes to the velocities and flow distribution would not induce increased turbidity or sedimentation under tidal flows.

(c) The construction would generate turbidity. During construction steps would have to be taken to ensure that increased turbidity would not spread beyond the site.

(d) Following construction there is likely to be local scouring around the piles under extreme wave action. However, scouring of the muddy bed occurs at present under severe wave conditions. The increase in turbidity would not be noticeable. Once the scour formation around the piles is established, no additional scour would be evident.

(e) Siltation is occurring already and the development would not bring extra silt to the site.

(f) The development would have no noticeable impact on the geomorphology of Sandbrook Inlet.

(g) Changes caused by the proposed development would be local to the site.

Dr M P Lincoln Smith, a marine ecologist, gave evidence in the applicant's case on the proposal's impact on marine life. According to Dr Lincoln Smith: (a) No pollutants will enter the water from the proposal.

(b) The proposed development will cause some temporary damage to benthic communities during construction, some permanent loss of benthic invertebrates in the position of the piles and there will be some effects due to shading.

(c) The precautionary use of silt and run-off containment devices will ensure that there would be minimal impact on water quality. The disturbance will be small, contained within the site and will avoid important habitats such as seagrasses and mangroves.

(d) A minimum buffer of 10 m should be adequate to preserve the seagrass bed, providing care is taken during construction to prevent inadvertent damage.

(e) Mangroves are tolerant of structures as demonstrated by board walks passing through them without causing damage. The presence of structures adjacent to the mangroves at the site would have small, localised ecological effects, if the construction were managed properly.

(f) There are 26 oyster leases within Sandbrook Inlet. The oyster industry has suffered from the effects of past pollution. Because water quality management will be high, there will be no impact on oyster leases.

(g) There is no commercial fishing in the Sandbrook Inlet. The proposal would have a small localised effect on fish habitat by creating new surfaces on which many species of fish could live, feed and shelter.

(h) The proposal complies with the principles of ecologically sustainable development.

Mr G Britton, a consultant in coastal, maritime and environmental engineering, submitted a report on water quality control during piling operations, access for pick up and set down by charter craft and navigation control around the seagrass bed. Mr Britton was not required for cross examination and did not give oral evidence. The substance of his report was as follows: (a) The proposed piling would have no significant adverse impact on water quality, since the sediment disturbance would be short term and less in scale than episodes of natural turbidity.

(b) All tide access to the proposed development for pick up and set down would be available only to craft having a draft of about 0.5 m or less. There are charter craft and water taxis which satisfy this requirement.

(c) Suitable measures could be taken, in consultation with the NSW Waterways Authority, to control navigation near the seagrass bed.

I turn to evaluate this evidence in relation to tidal flows and sedimentation, water quality, seagrasses, mangroves and oyster leases.

The experts on both sides agreed that tidal velocities in Sandbrook Inlet were low, though they disagreed on how critical this was to the health of the inlet. Dr Cowell believed that the flushing characteristics of Sandbrook Inlet were inadequate to maintain high water quality while Mr Nielsen did not consider that water quality was poor. The experts agreed also that the proposed development would result in a reduction to tidal flow. Mr Nielsen calculated the reduction to be around 50 per cent over the site. He believed, however, that this would not lead to additional sedimentation, provided sufficient care was exercised during construction. There was no evidence to contradict Mr Nielsen on this, though the respondents' experts feared that any development involving construction over water would increase sedimentation.

It is clear that the greatest risk of sedimentation comes from the piling operation. The total proposal requires the transporting to the site and the driving into bedrock or other suitable base, of over 600 piles, possibly up to 40 m long. The use of silt and run-off containment devices around the site may avoid serious impact. On the basis of the evidence, all that can be said is that extreme caution during construction would need to be exercised to avoid harm to the marine environment through sedimentation and turbidity. The need to exercise such caution would not, by itself, justify refusal of consent.

The threat to water quality comes from the impact of construction, possible leaks and malfunctioning of the sewage treatment and stormwater removal system and careless behaviour by people using and operating the proposed development.

The applicant's evidence suggested that precautionary measures can be taken during construction to minimise risk to water quality. I accept that this is possible, though it would probably be expensive and require extreme vigilance.

As regards the proposed sewage treatment, I have already concluded that it involves unacceptable risks of pollution finding its way into the water. The evidence on stormwater collection was sketchy and did not give me confidence that polluted stormwater will not enter Sandbrook Inlet. Similarly, there is a risk that detritus associated with the use and operation of such a large resort will find its way into the water.

In my opinion the proposal poses a significant risk to water quality.

Dr Lincoln Smith's evidence was that seagrasses can flourish within 10 m of the proposed development. This is in stark contrast to Dr A K Smith's evidence that NSW Fisheries would not permit development within 50 m of a seagrass bed. The proposal involves structures within 41 m (stage 1) and 21 m (stage 2) of the seagrass bed, making it necessary for driving piles close to the seagrass. In addition, chartered craft and water taxis would no doubt come to the development. I accept Dr A K Smith's evidence that the seagrass bed would be under threat. I have reached this conclusion because, in my opinion, the protection of the seagrass would require a level of care in the construction and operation of the proposal that is unlikely to be achievable.

Dr Lincoln Smith told the Court that mangroves can flourish adjacent to man made structures. Dr A K Smith, in contrast, said that NSW Fisheries would not permit structures within 50 m of mangroves. Dr Lincoln Smith was not aware of the detailed design of the access way and therefore could not estimate the extent of damage to the mangroves.

Although the applicant contended that the provision of the access would require only the trimming of some mangrove trees, it is clear that the access would require the removal of a significant section of the mangroves. As regards the effect of the carparking structures close to the mangroves, the evidence is inconclusive. Dr Lincoln Smith said that board walks through mangroves are compatible with their survival, but this development involves a lot more than pedestrian board walks. In my opinion the proposal involves some risk of damaging the mangroves.

There was little evidence in relation to impact on oyster leases. What emerged clearly was that the flushing characteristics of Sandbrook Inlet mean that any pollutants entering the water would remain there for a long time.

This proposal has two kinds of potential impact on the marine environment. The first is the impact on the mangroves and the seagrasses. In the case of the seagrass bed, the impact arises from the proximity of the proposed development, particularly the piling operations associated with it. Expert opinion on the potential damage differed. In the case of the mangroves, however, it appears certain that some will be damaged, though the extent of damage could not be measured because of lack of precise information about the access way. In addition to the damage by the access way, there is potential damage through the extreme proximity of the carparking structures to the mangroves. It is hard to reconcile the 50 m buffer required by NSW Fisheries with the multi-level parking structure which is shown on the drawings as actually touching the mangroves.

The second kind of impact is associated with inadvertent damage arising out of accidents or malfunctions. In most cases it would be unreasonable to refuse development approval merely because the proposed development could cause damage if operated with carelessness. In the case of Sandbrook Inlet, however, the river bed is shallow and the tidal flows are slow. Accidental damage to the water quality would take a long time to clear and could bring long term harm to the oyster leases. I note that the development application did not include plans for dealing with matters such as accidental spills, nor did it include an environmental management plan for the resort. Given all these factors, in my opinion, the impact on the marine environment is unacceptable.

91 . It was common ground that the proposed development was permissible with consent. However, the parties disagreed as to whether or not it is consistent with SREP 20.

The general aim of SREP 20 is "to protect the environment of the Hawkesbury-Nepean River System by ensuring that the impacts of future land uses are considered in a regional context"(cl 3).

Clause 4 of pt 2 of SREP 20 provides that the general planning considerations set out in cl 5, and the specific planning policies and related recommended strategies set out in cl 6 which are applicable to the proposed development must be taken into consideration by a consent authority determining a development application.

94 . There are a number of relevant policies in cl 6, such as the policy relating to environmentally sensitive areas and the policy relating to water quality, but one of the particular policies which I note is riverine scenic quality (cl 6(7)), which provides that "The scenic quality of the riverine corridor must be protected". One of the strategies for implementing that policy is to "Ensure proposed development is consistent with the landscape character as described in the Scenic Quality Study".

The landscape character of the area in which the site is situated is summarised on p 54 of the Scenic Quality Study, and included in the section on "Suggested Response" on p 55 are the requirements to "Limit new buildings on waterfront sites to existing settlements. Encourage new buildings on conspicuous sites to be of forms broken up into smaller elements, rather than simple prismatic shapes".

Another policy which I particularly note is "Recreation and Tourism" (cl 6(11)), which provides that "The value of the riverine corridor as a significant recreational and tourist asset must be protected" . One of the strategies for implementing that policy is as follows: Plan and manage recreational and tourist developments, and associated access points, cycleways and footpaths, so as to minimise any adverse environmental impacts on the river. Locate them where river banks are stable, away from river shallows, major beds of attached aquatic plants or fish breeding areas, where the proposed activities do not conflict with surrounding recreational activities and where significant flora and fauna habitats will not be adversely affected. The upgrading of existing public access to the river is to be preferred over the creation of new access points.

Part 3 of SREP 20 sets out various development controls, and cl 3(5) provides that a consent authority must not grant development consent until it has considered certain items. In relation to "Land uses in riverine scenic areas" (cl 16), a matter for consideration is: The need to prevent large scale, high density or visually intrusive development on waterfront land or on slopes or ridgetops which are visible from the river or the surrounding visual catchment".

Mr G W Smith, a consultant planner retained by the council, considered that the proposed development did not comply with SREP 20, and that opinion was shared by Mr Harrison. It seems clear that, at the very least, the proposed development is inconsistent with those parts of the SREP 20 which I have outlined. It is not consistent with the landscape character as described in the Scenic Quality Study, it is a visually intrusive development on waterfront land, it is located right on top of river shallows, near a bed of aquatic plants and it creates a new access point to the river. I note that Mr I Cady, a town planner retained by the applicant, disagreed that the proposed development is inconsistent with SREP 20. However, he based his contention on the fact that the site has been suggested for development in the Brooklyn DCP. This may be an argument for the proposition that the Brooklyn DCP is inconsistent with SREP 20, but not that the proposed development complies with SREP 20. In any event, cl 12(3) of SREP 20 provides that, to the extent of any inconsistency, SREP 20 prevails over other environmental planning instruments.

The Brooklyn DCP contains a section on Kangaroo Point that establishes guidelines specifically for the development of the site. The guidelines consist of a written part (objective, performance criteria and prescriptive measures), a conceptual plan, elevations and sections. The principal features of the plan are: (a) parking on the site's land component, with the suggestion that it "should appear as continuation of landscape buffers behind mangroves";

(b) a single row of gable-roofed two and three storey buildings with space between them following the contour of the foreshore;

(d) the majority of the remainder of the site is shown within dotted lines as "area for marina should respect requirements of navigation channel" . 100. Ms P G Samios, a town planner with Department of Urban Affairs and Planning, said that her main objection to the proposal was that it did not comply with the Brooklyn DCP. If the proposed development consisted only of a single row of buildings and the central two storey element did not exist, she would find it acceptable.

Mr Cady and Mr Webber agreed that the proposal was different from that shown on the Brooklyn DCP. They submitted, however, that the impact was less than if the Brooklyn DCP had been followed. Moreover, the Brooklyn DCP was not practicable and could therefore not be followed.

Criticism of the Brooklyn DCP (or at least the Kangaroo Point section of it) was the only matter on which the applicant's and the respondents' experts agreed. Dr Lamb thought the Brooklyn DCP was inconsistent with the Scenic Quality Study referred to in SREP 20. Mr Smith did not think it was a basis for feasible development.

In my opinion, the Brooklyn DCP is of no assistance as a guide for the future of this site. It suggests that parking be accommodated "behind mangroves" . This could not be physically done on the site without destroying the mangroves. It suggests the majority of the site as an area for a marina. This would require dredging and would certainly spell the end of the seagrass bed. Finally, it suggests a series of buildings without giving the slightest suggestion as to what their function would be.

The proposed development is inconsistent with the Brooklyn DCP but I do not think that any feasible development could be consistent with the Brooklyn DCP.

I have already dealt with information in relation to visual impact and the disposal of sewage and stormwater. However, a significant aspect of the respondents' case was that the development application was deficient also in architectural, engineering and construction detail. The applicant tendered a number of documents to rebut this criticism.

A copy of a geotechnical investigation of the site carried out by the firm Jeffery and Katauskas in 1989 was tendered. Mr B F Walker, a geotechnical engineer who works with that firm, gave evidence. He said that the findings of the 1989 report were still applicable.

Mr A J Hamilton, a structural engineer, gave evidence on the construction methods to be undertaken. The major structural and building services components constructed above deck level will be prefabricated off site. The movement of the floating canopies would be restricted from moving with the full extent of the tide to about 300 mm. Building materials could be brought in by road or by barge. Pile driving could be from a piling rig mounted on a barge or on piles already driven in. He agreed that the maintenance procedures for this project were essential and that they have not yet been prepared. He also agreed that there was as yet no wind study or bracing design and that this could affect the appearance of the floating canopies.

Also tendered in the applicant's case were the following reports: (a) a report by Mr G K Lester, an engineer, dealing with the proposed sequence of construction;

(b) a report by Mr G Robinson, an engineer experienced in project management, dealing with such things as site amenities and first aid facilities during construction;

(c) a report by Mr M W Hiley, an expert in underwater piling, dealing with pile installation which would be subject to environmental management. Mr Lester, Mr Robinson and Mr Hiley were not required for cross examination and did not give oral evidence.

Despite the above evidence, two of the council's experts believed the application was grossly deficient in essential information. Mr Harrison provided a list of matters on which the applicant's drawings were either unclear or unworkable. An example of his concerns was that the stairs leading from the living rooms to the floating balconies would be too steep at low tide to allow access. Another related to the horizontal distance between the living room and the bedroom sections of the units which he felt would not be sufficient to allow for a flight of stairs to connect them. Mr McDonald did not rebut any of these detailed criticisms.

Mr Gomes' evidence contained a list of engineering matters which were, in his opinion, unresolved. The following sentence sums up his concerns: This (Mr Hamilton's) report does not indicate that any substantive preliminary structural engineering design has been undertaken to develop or support the current proposal.

The applicant submitted that, while certain aspects of the proposal have yet to be settled, this could be left until after development consent is granted. I do not accept this submission. I agree that certain detailed aspects of a proposal can be worked out at a time when the proponent is assured of development consent. However, in the case of this development application the matters which have been left unresolved are basic to any competent architectural or engineering design. They have an impact on the appearance and the environmental performance of the proposed development. They should be resolved at the development application stage. That is all the more so with a site of severe constraints. In my opinion the application is so poorly documented that it cannot be properly assessed.

Mr Smith did not think that the proposal was a tourist facility. He pointed out that the proposed dwellings were to be sold to individual owners who might live permanently in their apartments. He noted, however, that multi-unit housing is permitted in the Business D zone, though hotels and shops are prohibited.

Mr Cady said that, while the applicant intended to sell the 100 apartments in stage 1 under strata title, owners may not occupy their dwellings permanently. Moreover, he pointed out that the design of the proposal (with cars parked a long way from the apartments) did not encourage permanent occupancy. He said that the development would not contain a hotel.

Nothing much seems to turn on this evidence. I accept Mr Cady's evidence that the proposal does not lend itself to permanent occupancy. However, if some of the owners did occupy their dwelling for long periods or even permanently, and the development thus becomes a multi-unit project, it would remain a permissible use. The visual and environmental impact of the proposed development would be the same.

The development application purported to seek consent for a "master plan" and for stage 1 of the proposed development. There is an issue as to whether the Court is empowered to grant consent to a "master plan".

The applicant submitted that the Court's power to grant consent to a "master plan" is to be found in s 91AB of the EP&A Act (which section, after the amendments to that Act which came into force on 1 July 1998, remains unamended but is re-numbered as s 80(4)). That section is headed "Staged Development" and states: 91AB (1) A development consent may be granted - (a) for the development for which the consent is sought; or (b) for that development, except for a specified part or aspect of that development; or (c) for a specified part or aspect of that development. (2) Such a development consent may be granted subject to a condition that the development or the specified part or aspect of the development, or any thing associated with the development or the carrying out of the development, must be the subject of another development consent.

In my opinion, s 91AB does not allow the Court to grant development consent to a "master plan" as such. The Court is empowered, however, to grant development consent for a tourist resort upon the site, and to impose a condition that stage 2 and stage 3 of the proposed development must be the subject of another development consent.

That construction follows, I think, from the reference in s 91AB to "the development for which the consent is sought" , which is later referred to as "that development" or "the development" . A "master plan" is not "development". The term "development" is defined in s 4 of the EP&A Act and, so far as is presently relevant, means, in relation to the site, the use of the site, or of a building or work on the site. What the applicant seeks is to use the site for the purposes of a tourist resort. In other words, the development for which consent is sought in this case is the use of the site for a tourist resort.

It may be that the applicant is seeking, not merely development consent for a tourist resort on the site, but some form of "in-principle" development consent to the buildings and other development the subject of stages 2 and 3 on the condition that the detail of those stages is to be the subject of a further development consent. I do not interpret s 91AB is empowering the Court to grant a development consent in that form, but even if the power was available, there is simply insufficient information and material available at this point for the Court adequately to assess the potential impacts of stages 2 and 3.

In accordance with the foregoing I have assessed the development application upon the basis that the it seeks development consent for use of the site for a tourist resort and for stage 1 but subject to a condition that stage 2 and stage 3 of the proposed development must be the subject of another development consent.

The council's acoustic expert was Mr B J Murray, while the applicant's was Dr R Tonin, both acoustic consultants. The experts agreed that the only source of noise was from construction activities, in particular the driving in of over 400 piles during stage 1 alone. The main area of disagreement between Mr Murray and Dr Tonin was in relation to the criterion that should apply to construction noise. Mr Murray considered that it should be background noise + 5 dB(A), while Dr Tonin adopted background noise + 10 dB(A). He assured the Court that it was possible to keep the noise levels within that criterion. Dr Tonin had assumed that the piling would take less than 26 weeks.

Some evidence was given about the length of time the piling could take, given that the three stages together contained over 600 piles. The council's case was that it would take much longer than 26 weeks. On the other hand, tidal conditions would allow only about 3 to 4 hours a day for piling, whereas construction noise normally occurs from 7 am to 6 pm.

In my opinion, the noise generated by piling and other construction works would not be a reason for refusing this application. Noise would be heard at the Dolphin Marina and Kangaroo Point. However, the site is 400 m from the nearest house and 3.5 km from the township of Brooklyn. The noise impact is unlikely to be significant.

Mr Harrison was critical of the project's internal amenity. His main concerns were: (a) the balconies are too small (about 6 - 8 m 2 which is a third of what is desirable).

(b) the balconies are overlooked from other balconies and from living rooms.

(e) the multitude of open decks make the development unsuitable for children.

I accept that the above criticisms are valid. However, provided safe balustrades are included to stop children from falling into the water, these negative features have no external impact and do not threaten the health or safety of future occupants. I do not think that they would, by themselves, justify refusal of the development application.

The economic impact of the proposed development on Brooklyn was raised as an issue by the council. Mr M A M Hill, a land economist, gave evidence in relation to this issue on behalf of the applicant. He concluded that the proposed development would not have an adverse economic impact, instead it would bring positive economic benefit to the town of Brooklyn. However, although he was cross-examined as to the basis of his assumption and conclusions, the council did not call any oral evidence on the issue, and it did not loom large in the matters for consideration. It is not a matter which is fatal to the development application.

In summary, I have concluded that development consent should be refused because of visual impact, impact upon the mangroves and seagrasses, inadequate information and documentation, and non-compliance with SREP 20. My formal orders therefore are as follows: (1) The appeal is dismissed.

(2) Development application to construct a tourist resort on lot 100 DP 865249, Brooklyn is refused.

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

Land and Environment Court of New South Wales CITATION: Brooklyn Resort Pty Ltd v Hornsby Shire Council and Anor [1999] NSWLEC 214

At a glance

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