Captain Cook Cruises Pty Limited v North Sydney Council

16. On 13 September 2002, the Duty Judge granted leave to the Applicant to modify the 2002 modification application by claiming in the alternative to the original amendment of Condition 18 of the development consent, an amendment of the condition by adding the following proviso: …provided that such consent shall not be required for the following access to the Site across Anderson Park: A. Activities associated with the construction component of the development: 18.1 Pedestrian access by any person associated in any way with the construction of the development. B. Activities which are not associated with the construction component of the development: 18.2 Subject to the conditions below, all and any pedestrian access to the Site at any time. 18.3 Deliveries to the Site between the hours of 8.00am to 7.00pm Monday to Friday and 8.00am to 1.00pm on Saturdays. 18.4 Pneumatic wheeled trolleys or similar mode of transport may be used to transport goods and equipment across Anderson Park to the Site provided that the use of any trolley is generally confined to the bitumen path which commences at Clarke Road near the stormwater canal and terminates at an accessway which is located approximately 10 metres to the west of the Site (the Bitumen Path) and from the Bitumen Path to the entrance to the Site. 18.5 If, at any time, the Council or any other authority removes the Bitumen Path or otherwise alters, modifies or obstructs the Bitumen Path, deliveries may continue to be made to the Site by way of any replacement or altered path or by any reasonable deviation around any obstruction or by way of an alternative route agreed to by the Council provided that such agreement shall be given within 28 days of a request being made for such agreement which shall not be unreasonably withheld. 18.6 The number of deliveries to the Site by the use of a trolley or similar mode of transport shall not exceed 15 deliveries per week. 18.7 A maximum of 15 deliveries per annum may be made to the Site by vehicle which may enter onto Anderson Park through the vehicle entrance which is located at the northern end of Anderson Park (the Gate) provided that the operator of the Site gives the Council 7 days notice in writing of such delivery. 18.8 Upon receiving written notice of a delivery by vehicle in accordance with condition 18.7, the Council will ensure that appropriate arrangements are made to allow access through the Gate. 18.9 If, at any time, the Council or any other authority removes the Gate or otherwise alters, relocates or obstructs the Gate, vehicular deliveries may continue to be made to the Site by way of any replacement or altered entry or by reasonable deviation around any obstruction or by way of an alternative route agreed to by the Council provided that such agreement shall be given within 28 days of a request being made for such agreement which shall not be unreasonably withheld.

17. Additionally, the Duty Judge gave the Applicant leave to raise the five questions of law as propounded in the Applicant's Notice of Motion filed on 3 September 2002.

18. He also directed that any additional question of law that the Council wished to raise in the proceedings be served and filed on or before 23 September 2002. Thereafter the Council filed a Statement of Additional Issues dated 23 September 2002 which raised two separate questions of law and a further question of discretion in consequence of the raising by the Applicant of its questions of law.

19. In view of the nature of the questions of law that have been raised by the parties and because of the possible consequences for the merits consideration of the appeals of the determinations of those questions of law, I shall first determine those questions of law before considering the planning merits of the appeals. I should note that some of the questions were determined in the course of the hearing and included in what follows are the reasons for my determinations that were pronounced during the hearing. C. DETERMINATION OF THE QUESTIONS OF LAW RAISED IN THE PROCEEDINGS

20. The following are the five questions of law raised by the Applicant - 1. Whether condition 18 of deferred development consent 156/98 which was issued by North Sydney Council (the Council ) in respect of the property known as 37A Kurraba Road Neutral Bay ( the Site ) is beyond power and is void ? 2. Whether conditions which were imposed by the Council upon deferred development consent 156/98 at the time of the Council's determination of whether the Applicant had provided sufficient information to enable the Council to be satisfied in respect of matters the subject of deferred commencement conditions included in the Consent are beyond power and are void? 3. Whether conditions which were imposed by the Council upon the Consent in the determination of an application to modify the Consent under section 96 of the EPA Act are beyond power and are void? 4. Whether Condition A1 of the Further Conditions and condition 4(1) of the Modification Conditions are severable from that part of the resolution of the Council made on 9 July 2001 pursuant to which the Council resolved that it was satisfied in respect of the deferred commencement conditions contained in the Consent? 5. Whether condition 3 of the Modification Conditions is severable from that part of the resolution of the Council made on 9 July 2001 pursuant to which the Council granted consent to the 2001 Modification Application?

21. The following are the three questions of law raised by the Council - 6. Whether the Court has power to grant consent to an application which relies on access for commercial purposes across Anderson Park which is:

(a) land within the Public Open Space Zone under the North Sydney Local Environmental Plan 2001; (b) is classified under the Local Government Act 1993 (the "LGA") as Community land; and (c) subject to an adopted plan of management under the LGA?

7. Whether there is power to grant consent to the use of Anderson Park for commercial purposes (involving access and deliveries to Neutral Bay Marina) given that Anderson Park is

(a) land with the Public Open Space Zone under the North Sydney Local Environmental Plan 2001; (b) is classified under the Local Government Act 1993 (the LGA) as community land; and (c) subject to an adopted plan of management under the LGA?

8. Whether the Court should in the exercise of its discretion modify the consent by deletion of condition no. 18 of development consent no. 156/98 which modification would achieve a result which would not have been obtained if an appeal had been lodged under section 97 against that condition of consent?

22. The facts relevant to these questions principally derive from the documentary evidence (which is not in dispute). I shall refer to the relevant facts in the course of considering separately each of the questions of law that have been raised.

Question 1 - The validity of Condition 18 of the development consent

The development consent was granted pursuant to the EP&A Act, s 91AA ("Deferred commencement consent") as in force when the consent was granted on 24 August 1998. (Although the development consent was granted after the Environmental Planning and Assessment (Amendment) Act 1997 had come into force on 1 July 1998, the development consent was granted pursuant to the unamended provisions of the EP&A Act by virtue of the savings and transitional arrangements applicable to the Amendment Act. It is for this reason that many of the various provisions of the EP&A Act considered in these reasons are the provisions of the Act as in force immediately before 1 July 1998).

Condition 18 which was one of 31 general conditions imposed on the grant of the development consent in addition to the five deferred commencement conditions is in the following terms: 18. Access across Anderson Park for the purposes of maintenance, construction vehicles or any activity associated with the use of the premises shall not be permitted unless with the prior consent of Council.

The reason given for the imposition of Condition 18 as stated on the Notice of Determination was: "Preservation of Public Open Space".

The development application to which the development consent was granted was an application dated 19 March 1998 "to build a new boatshed to replace shed that burnt down in January 1996" on a defined development site which was already developed by a "public marina and base facility for Captain Cook Cruises". The development application was supported by a Statement of Environmental Effects (S.E.E.) prepared by E R M Mitchell McCotter Pty Ltd which described the proposed development as "the rebuilding of the boatshed at Neutral Bay Marina" being a single storey structure having a floor space of 343 m2 occupying the footprint of the previous boatshed and proposing accommodation for "an engineers workshop, a shipwright's workshop, two cool rooms, storage rooms, flammable liquid store, offices and amenities".

The detailed description of the proposal in the S.E.E. included the following statements: The existing marina and jetty structure will be retained with no changes to these facilities or to the operations of Captain Cook Cruises. This application does not seek to alter the number of vessels moored in Neutral Bay or the servicing and maintenance arrangements. Deliveries to the site will continue in accordance with existing practice. A dedicated walkway across the upper levels of the site is to be provided to improve pedestrian access. The proposed walkway will connect the existing path below Kurraba Road to the foreshore at the eastern end of the property.

In the written town planning assessment of the proposed development submitted to the Council by its Town Planning Department which recommended the grant of a deferred commencement consent, the issue concerning the relationships between the proposed development and the access for the purposes of that development made of Anderson Park was dealt with in the following extracts: (i) whether the proposed means of entrance to and exit from that development and the land to which that development application relates are adequate and whether adequate provision has been made for the loading, unloading, manoeuvring and parking of vehicles within that development or on that land;

This was an issue of contention with the previous proposal, however, does not appear to have been discussed in the judgment in the Land and Environment Court. The subject site has no legitimate land access and the occupiers continues to utilise Anderson Park to the detriment of passive recreation users. The applicant provides in the Statement of Environmental Effects that deliveries to the site will continue in accordance with existing practice. The applicant elaborates no further in this respect, however it can be assumed that the use of Anderson Park will persist. In preparing his Statement of Evidence for the previous Court Matter, Council's consultant expert witness Mr Harvey Sanders concluded that:- The proposed use of Anderson Park for the purpose of access to the development is unlawful given the zoning of Anderson Park and the Adopted Plan of Management. Council's Parks Manager advises that Captain Cook Cruises have previously been advised in writing by Council that access across the reserve is prohibited, rescinding the previous approvals. A sign has been erected stating that access is prohibited for the transporting of goods for a commercial purpose. Given the above comments of the Parks manager, the current operations have no legitimate land access and may be operating utilising Anderson Park. Therefore, Development Consent should not be granted until such time as the applicant can demonstrate the access to the site can be achieved without utilising Anderson Park. Accordingly, it is considered that Deferred Commencement Consent would be the appropriate course of action with the applicant not granted development consent until such time as the applicant can satisfactorily demonstrate that there would be no use of Anderson Park incorporated into the operations of the boatshed.

………….. ………….. …………... (q) the circumstances of the case; (r) the public interest

As detailed throughout, numerous submissions have been received in regards to the proposal. These submissions raise a number of legitimate issues including the access concerns discussed above, the environmental concerns associated with the operations. The bottom line is, that if the proposal can address environmental concerns as detailed in the special conditions, and can demonstrate that Anderson Park will not be utilised as an access point, the proposal would be considered satisfactory given the existing use rights provisions and the taking into consideration the opinion of the Court that the proposal is a legitimate use. …………… …………… …………… Conclusion ……………………… ……………………… The land access is another concern which the applicant's statement of environmental effects does not adequately address. As above, given that Council has written to the operator informing them that land access across the reserve is prohibited, it is disappointing that this issue was not adequately addressed in the submission to Council. Therefore, Council cannot grant approval to the proposal in its current form as the applicant has failed to satisfy Council that all operations associated with the building would be lawful. As such, a Deferred Commencement consent is considered the appropriate course of action. If the applicant can satisfy the access issue, the proposal would be recommended for approval. This recommendation would be based taking into consideration the previous Court Judgement, that the use is a legitimate use.

The Council accepted its Planning Officer's recommendation to grant deferred commencement consent, subject to the deferred commencement conditions and the general conditions imposed on the grant of the development consent.

I interpose that the reference in the quoted passages to the judgment on this Court is a reference to the judgment of Lloyd J (Captain Cook Cruises Pty Ltd v North Sydney Council (No 2) matter 10086/97 - unreported 11 December 1997) dismissing an appeal pursuant to the EP&A Act, s 97 brought by the present Applicant against the Council's determination refusing an earlier development application that had been made to replace the burnt down boatshed on the development site.

It is apparent that both the Applicant and its Consultants, in preparing the further development application, and the Council's Planning Assessments Officer in evaluating the development application paid great attention to the judgment of Lloyd J in that case. In particular, his Honour's decision was seen to have concluded (i) that the present use of the development site was an "existing use" within the meaning of the EP&A Act and that use included the uses carried out in the boatshed which burnt down; (ii) that the zoning provisions of the Council's local environmental plan as they applied to so much of the development site as comprised freehold land situate above mean high water mark relevantly derogated from the "incorporated (existing use) provisions" within the meaning of the EP&A Act, s 108(3) and had "no force or effect" and therefore must be ignored; and (iii) that other relevant heads of consideration under the EP&A Act, s 90 applied to the determination of the development application.

In dismissing the appeal, Lloyd J considered those relevant matters (including most particularly the visual impact of the proposed development) and concluded as follows: In short, whilst it is accepted that the use of the subject land as a marina is a legitimate use which may be continued, the proposed building is simply too big. It should be reduced in height by one storey. If that were done, it would have less of an impact on Anderson Park, it would more readily blend with the surrounding topography and vegetation and it would more readily conform with the objectives of the zone and the guidelines to which I have referred.

Having summarised the relevant facts, the competing arguments on the validity of Condition 18 may now be noted.

For the Applicant, it was submitted that the imposition of Condition 18 was beyond power for the following reasons -

(i) There is no power under the EP&A for the determination of a development application to impose a condition relating to land which is not land to which the development application relates.

(ii) The land to which the development application relates is the identified freehold land situate above mean high water mark and the leasehold land situate below mean high water mark, respectively owned and leased by the Applicant.

(iii) Anderson Park is land to which Condition 18 applies but is not land to which the development application related.

(iv) The development application to which the development consent was granted was an application under the Environmental Planning and Assessment Regulation 1994, cl 42 for the rebuilding of a building used for an existing use - it was not a consent for the use of that rebuilding because the use was otherwise (namely by the EP&A Act, s 107(1)) sanctioned as an existing use.

(v) Condition 18 could not lawfully restrict the right of members of the public to traverse Anderson Park in order to gain access to the development site.

The Council's competing argument is that Condition 18 is within the power expressly conferred by the EP&A Act, s 91(3) (as in force when the development consent was granted). In advancing this argument, the Council conceded that properly construed, Condition 18 only applied to the approved development, namely the proposed boatshed, in contradistinction to all other buildings or installations that exist on the development site providing the waterfront boating facilities eg the marina. To put the concession in another way, the reference in Condition 18 to "the premises" is not a reference to the entirety of the existing and approved waterfront boating facilities established on the development site, but is a reference that is confined to the approved boatshed.

In my judgment, the Council's submissions are correct and should be accepted. In particular, Condition 18 clearly falls within the ambit of s 91(3)(a) ("A condition may be imposed if it: (a) relates to any matter referred to in Section 90(1) of relevance to the development, the subject of the consent").

In this respect, the following matters referred to in s 90(1) are clearly "of relevance to" the approved development - (b) the impact of that development on the environment (whether or not the subject of an environmental impact statement) and, where harm to the environment is likely to be caused, any means that may be employed to protect the environment or to mitigate that harm, (h) the relationship of that development to development on adjoining land or on other land in the locality, (i) whether the proposed means of entrance to and exit from that development and the land to which that development application relates are adequate and whether adequate provision has been made for the loading, unloading, manoeuvring and parking of vehicles within that development or on that land, (o) the existing and likely future amenity of the neighbourhood

I do not think the self-evident relevance of these considerations to the approved development requires detailed exposition. All of the relevant considerations have one thing in common, namely they require an evaluation of what is conventionally referred to as the externalities or external impacts of the approved development. Consideration of the external impacts of a proposed development is an essential part of the pith and essence of the planning evaluation that is required to be undertaken by a consent authority in accordance with s 90 and s 91 of the EP&A Act - cf Bell v Minister for Urban Affairs and Planning (1997) 95 LGERA 86 at 95-100 - because every development site has a physical context and environment extending beyond itself.

The fact that these relevant considerations involve lands other than the land to which the development application relates, does not indicate, as the Applicant's argument would have it, that condition 18 is ultra vires as exceeding the statutory power to impose conditions. On the contrary consideration of the impact of the approved development on Anderson Park (both in its static condition as a place of visual and recreational significance) and in its dynamic condition (as a passive and active recreational resource) is a mandatory requirement of s 90 and the imposition of Condition 18 reflecting the Council's evaluation of the need to mitigate the perceived adverse impact of the proposal on Anderson Park for the reasons articulated in the extracts from the Planning Assessment Report that was submitted to the Council, which I have earlier recited, is clearly within the scope and ambit of the statutory power conferred by s 91(1) and (3).

In so concluding, I would also reject the Applicant's argument that the only development approved by the development consent was the erection of the boatshed and in particular that the use of the boatshed, when erected, was not approved by the development consent because the "use" of the boatshed when erected, was legally and factually unnecessary because that use was sanctioned by s 107(1) of the EP&A Act, as the continuance of the existing use of the development site.

In my judgment, this is a very artificial argument insofar as it seeks to distinguish between (i) the erection of the boatshed; and (ii) the use of the boatshed, when erected. Conventionally when development consent is granted to an application to erect a building that consent is also a sufficient warrant for the use of the building when erected: see the EP&A Act, s 91(4) which provides: (4) A consent to a development application for the carrying out of development, being the erection of a building, shall be sufficient to authorise the use of the building when erected for the purpose for which it was erected where that purpose is specified in the development application.

It is conventional planning practice that when a development application is made for the erection of a building, the application does not in terms describe the proposed development as "the erection and use of a building", it being sufficient to describe the proposed development as "the erection of a building" This is reflected in the requirements for the making of a development application currently prescribed by Part 1 of Schedule 1 to the Environmental Planning and Assessment Regulation 2000.

The only possible justification for the Applicant's argument that the erection of the boatshed was the only development that was approved by the development consent lies in the fact that the boatshed use was held by Lloyd J in the earlier litigation between the same parties to be part of the "existing use" of the development site providing the waterfront boating facilities, and that the continuance of that overall existing use is sanctioned by the EP&A Act s 107(1) which is in the following terms: Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use "

However, it is a very debatable point (both as a matter of construction and as a matter of power) whether the development consent only authorised the erection of the boatshed, and not its use after it is erected.

As a matter of construction, the development consent clearly authorises both the erection and use of the boatshed. For example, whereas the relevant development application form described the proposed development as: Building of a new boatshed to replace shed that burnt down in January 1996

it also described the proposed "use of the building" as: Public marina and base facility for Captain Cook Cruises

Moreover, the S.E.E. which accompanied the development application, although itself describing the proposed development "the rebuilding of the boatshed at Neutral Bay Marina" proceeds to evaluate the environmental impacts of the use and operation of the boatshed, as part of the overall waterfront boating facilities, including providing a detailed consideration of (i) risk assessment; (ii) waste management; and (iii) noise impacts - all of which are clearly addressing the use and operation of the boatshed after it has been erected.

Many of the conditions of the development consent, including Condition 18 itself, deal with the use and operation of the approved boatshed. For example the following conditions all address aspects of the use of the approved boatshed and not its prior erection - 24. The new Flammable Liquids store being designed so as to ensure that no material behind or to either side of the store can fall, flow or be carried by natural forces to the Bay. 25. The provisions of the Clean Waters Act 1970 must be complied with by any person using the slipway. 26. Any work on vessels that generates or may generate wastes must be conducted above the high water level. 27. A system must be installed to collect all the liquid and solid wastes generated by the slipway activities. 28. Liquid and solid wastes collected from the operations must be disposed of without causing pollution of waters. 29. Detergents or chemical cleaning agents must not be used in any position in the operation where the resultant wastes may discharge to waters. 30. Noise levels from operations on the slipway must not exceed the background level by more than 5dB(A), adding 5dB(A) penalty for tonal or impulsive noise, when measured at the nearest affected residence. 31. Limits on operational hours should be set to minimise emissions of offensive noise and possible conflict with neighbouring residential premises. The hours of operation shall be 7.00 am to 6.00 pm Monday to Friday; 8.00 am to 6.00 pm Saturday; and 9.00 am to 6.00 pm Sunday.

Accordingly, there is simply nothing in the terms of the development application (including the supporting documents) or the development consent to suggest that the approved development is limited to the erection of the boatshed. On the contrary, the terms of each of those documents suggests overwhelmingly the contrary, namely that the approved development is the erection of the boatshed and the use of the boatshed following its erection. This is a conventional planning outcome and makes good sense.

The Applicant's argument, which smacks of recent invention or reinterpretation of previously settled facts, cuts right across the clearest impressions otherwise conveyed by the relevant documentation pertaining to the development consent, to assert that it is only the erection of the boatshed that is the subject of the development consent. This argument is obviously advanced to justify the argument that if the development consent did not authorise the "use" of the boatshed, conditions imposed on the grant of the development consent, controlling or regulating use of the boatshed, are not legally sustainable. As I will shortly demonstrate, this argument misconceives the scope of the statutory power to impose conditions on the grant of development consent.

It is in this sense that the argument is transparently artificial and contrived. As I have noted, the argument is solely founded on the proposition that the use of the proposed boatshed has been held to be part of the "existing use" of the development site providing the waterfront boating facilities and since the EP&A Act, s 107(1) protects the "continuance of an existing use" development consent for the use of the boatshed, once it was erected, was unnecessary and accordingly, the development consent should be read down so as to not include consent "to use" the boatshed once it was erected.

In my judgment, this argument itself is uncompelling, being founded upon an unsupportable major premise that although the development consent, properly construed, authorises both the erection of the boatshed and its use following its erection, it is to be read down so as to only consent to the erection of the boatshed because consent to its "use" is legally unnecessary because of the operation of the EP&A Act, s 107(1).

But there is no principle of planning law that precludes the granting of development consent to a development that already enjoys an existing development consent or otherwise does not need development consent because of a relevant existing use entitlement.

Nor is there any principle of statutory construction to the effect that where a grant of authority (eg a development consent) grants more than is necessary for the purposes of the grantee the grant is to be read down so that it only grants that which is necessary.

There is, of course, a principle of statutory construction that avoids the legal consequences of invalidity of a legislative or executive act or action for exceeding the available power, by reading down the act or action under legal challenge so that it accords with, and operates within the sphere permitted by, the available power: cf the Interpretation Act 1987, s 31 and s 32.

However, recourse to that principle of statutory construction only occurs when an act or action is under legal challenge for excess of power etc. In the present case, it is barely conceivable that the Applicant would knowingly assert invalidity of the development consent, which on its face, grants the requisite authority for the erection of the boatshed and its use after it has been erected.

Moreover, in asserting the sufficiency of the EP&A Act, s 107(1) to provide the necessary authorisation for the use of the approved boatshed after it has been erected as part of the existing use of the development site, the Applicant overlooks a number of matters which raise serious doubts as to the correctness of the absolute assertion, namely -

(i) the fact that s 107(2) expressly states that "nothing in subsection (1) authorises (a) any….rebuilding of a building or work";

(ii) the fact that the definition of "existing use" in the EP&A Act, s 106 means "the use of a building….immediately before the coming into force of an environmental planning instrument that would…have the effect of prohibiting that use";

(iii) the fact that s 107(2) expressly states that "nothing in subsection (1) authorises (b) any enlargement, expansion or intensification of an existing use"; (iv) the fact that the Environmental Planning and Assessment Regulation 1994, cl 42(1) requires "development consent for any rebuilding of a building or work used for an existing use"; and (v) the fact that development consent requires the existence of a "development application" for consent to carry out development (see the definitions in s 4(1) of "development", "development consent" and "development application").

These features of the relevant statutory scheme not only raise genuine doubts about the sufficiency of s 107(1) authorising the continued use of a rebuilt building that came into existence after the relevant date for the purpose of the definition of "existing use" in s 106, but they suggest that the relevant statutory scheme recognises the competence of a development consent granted to a development application for the rebuilding of a building used for an existing use, to also authorise the use of that building after it has been rebuilt. This is particularly the case, where there is no proven congruence between the past existing use and the proposed future use.

However, it is not necessary that I express a final view on the important question of principle underlying the Applicant's argument because even if it be assumed that the development consent only authorised the erection of the boatshed (and the use of the boatshed after it had been erected was sustainable by s 107(1) of the EP&A Act as part of the overall "existing use" of the development site) the conditions of the development consent governing the use of the boatshed (including Condition 18) would, in my judgment, clearly be legally sustainable by reference to the powers conferred by the EP&A Act, s 90 and s 91 in respect of the development application which ex hypothesi only sought consent to erect the boatshed. The reason for this conclusion is founded in the legitimacy, nay necessity, for a proper planning evaluation in accordance with the EP&A Act, s 90 and s 91 of a development application to erect a building (which is obviously intended to be put to active uses once built) to consider the impacts of that development (which impacts necessarily include the impacts caused by the use of the development). The fact that the use of the building once it has been erected may be authorised by the EP&A Act, s 107(1) does not render irrelevant or impermissible, the requisite evaluation pursuant to s 90 and s 91 of the external impacts of that development (including the use of the development after the building has been built).

The fallacy of the Applicant's argument lies in the unsubstantiated assumption that if the development consent could by some means be read down so as to only authorise the erection of the boatshed, the evaluation of the proposed development required to be undertaken in accordance with the EP&A Act, s 90 and s 91 must be similarly truncated by ignoring all considerations arising from the use of the boatshed after it has been built.

The Applicant's argument is not only highly artificial, it is highly inconvenient and is obviously counterproductive to a meaningful planning evaluation of any development proposals, the subject of development applications under the EP&A Act.

To require, as the Applicant's argument would have it, that the planning evaluation of a proposed development, being only the erection of a building, be confined to considerations pertaining to the erection of the building simpliciter would be subversive of the clear and beneficial purpose of s 90 which requires a comprehensive and integrated evaluation of all development proposals, and would be counterproductive for any applicant who would be at risk of building the approved building, but failing to subsequently obtain approval for its use.

But even in a case such as the present, where the Applicant in reliance upon s 107(1) would not be at the risk of building the approved building, but subsequently failing to obtain consent for its use, it would be likely to experience a different risk, namely a decision by the consent authority to refuse consent to the erection of the building simply because the consent authority would be shut out from evaluating the proposed development in all of its physical manifestations - both as a built form (the erection of the building) and as an actively utilised built form (the use of the building).

Fortunately, the provisions of the EP&A Act, and in particular the detailed provisions of Part 4 of the Act, give no countenance or support for the Applicant's argument, which would produce a dysfunctional approach to planning and planning decision-making in respect of development applications.

For all of the foregoing reasons, I hold that Condition 18 of the development consent is a valid condition.

Questions 2 and 4: Is it legally possible for the Council to express conditional satisfaction in respect of the deferred commencement conditions?

Section 91AA of the EP&A Act, as in force when the development consent was granted relevantly provided as follows: (1) A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition. ………………….. …………………… …………………… (4) A consent authority may specify the period in which the applicant must produce evidence to the consent authority sufficient to enable it to be satisfied as to those matters. (5) The applicant may produce evidence to the consent authority sufficient to enable it to be satisfies as tot hose matters and, if the consent authority has specified a period for the purpose, the evidence must be produced within that period. (6) If the applicant produces evidence in accordance with this section, the consent authority must notify the applicant whether or not it is satisfied as to the relevant matters. If the consent authority has not notified the applicant within the period of 28 days after the applicant's evidence is produced to it, the consent authority is, for the purposes only of section 97, taken to have notified the applicant that it is not satisfied as to those matters on the date on which that period expires.

As I have earlier noted, the development consent, in its original form contained an endorsement, conformably to s 91AA(4) that evidence to satisfy the Council of the relevant matters must be submitted to the Council within 12 months of the date of the consent (which was granted on 24 August 1998).

Well after the expiry of that stipulated 12 month period, the Applicant sought and obtained a modification of the development consent by substituting 36 months for the original 12 months stipulation (This is the subject matter of the first of the 2001 modifications).

In the course of the hearing, the question arose whether the development consent had already lapsed at the time when the first of the 2001 modification applications was granted (and indeed well before the relevant modification application was made).

Although the Council originally submitted that the development consent had lapsed by virtue of the Applicant's failure to submit within the originally stipulated 12 months period evidence to the Council's satisfaction of the relevant matters, ultimately this submission was withdrawn and the Council conceded that the first of the 2001 modifications had been effective to extend the period from 12 to 36 months for evidence to be submitted as to the satisfaction of the relevant deferred commencement conditions: cf Australand Holdings Pty Ltd v Hornsby Shire Council (1998) 98 LGERA 312; Pulver Cooper and Blackley Pty Ltd v Johnson (1998) 101 LGERA 76; CSR Ltd v Fairfield City Council (2001) NSWLEC 221.

It is only necessary to consider one of the deferred commencement conditions, namely Condition DC1 and the manner in which the Council expressed its satisfaction with it. Condition DC1 was in the following terms: DC1. The applicant shall demonstrate satisfactory access to the site which does not incorporate the use of Anderson Park in any way. Details to be submitted prior to development consent becoming valid, and to the satisfaction of Council's Director of Planning and Environmental Services.

The Council's initial and obviously partial response to the Applicant's proposal that Anderson Park be not used for construction traffic in the course of building the approved boatshed was to accept the Applicant's representations and to impose a new Condition 32 adopting and reinforcing the Applicant's representations (see pars 8 and 9 of these reasons for the precise details of these matters).

However, it has not been suggested (nor could it be reasonably suggested) that this initial response of the Council was its complete response or was a response of the kind that is required by s 91AA.

That kind of response was later communicated by the Council in its letter dated 13 July 2001 which expressed its "satisfaction" with the deferred commencement condition DC1 "subject to the following condition"

1. Access to the site for deliveries shall not incorporate the use of Anderson Park in any way.

It is obvious that in so expressing its qualified or conditional satisfaction with each of the five deferred commencement conditions, the Council intended that the five conditions it stipulated be read distributively in the sense (for example), that condition DC1 was satisfied subject to the stipulated Condition 1. (The other conditions are not relevant to the present proceedings.)

Thus, the Council's total (in the sense of cumulative) response by way of expressing its satisfaction with Condition DC1 was to accept the Applicant's representations as to how construction traffic employed in the erection of the approved boatshed would not use Anderson Park for access to the development site and to stipulate that deliveries to the development site (after the boatshed was built and was being actively used) not use Anderson Park for access purposes "in any way".

Thus, in this cumulative sense, the Council's satisfaction with Condition DC1 was expressed by imposing Condition 32 relating to construction traffic not using Anderson Park for access purposes and by imposing Condition 1 relating to delivery traffic not using Anderson Park for access purposes in the use of the boatshed after it had been erected.

Moreover, although not explicitly stated, it would also appear that the Council's satisfaction in respect of Condition DC1 also relied upon, in part, the fact that it had imposed on the grant of the second of the 2001 modifications, Condition 3 requiring the creation of a foreshore link path to the development site from Kurraba Road (see par 11 of these reasons).

The Applicant submitted that since s 91AA conferred no power upon a consent authority to express its relevant "satisfaction" in relation to deferred commencement conditions in a qualified or conditional manner, the decision of the Council as notified to the Applicant by letter dated 13 July 2001 must be taken to operate as an expression of the Council's requisite "satisfaction" in respect of the deferred commencement conditions, stripped of the conditions or qualifications stipulated by the Council, which were themselves ultra vires.

The Council's competing argument was that it was open to the Council under s 91AA to express a qualified or conditional "satisfaction" in respect of deferred commencement conditions and that the conditional or qualified satisfaction expressed by the Council in its letter of 13 July 2001 neither invalidated its decision nor converted its decision into an unqualified satisfaction for the purposes of s 91AA. If the Court were to hold that s 91AA did not permit a consent authority to express the requisite satisfaction in respect of deferred commencement conditions in a qualified or conditional manner, then the true effect in the present case of the Council's purported expression of qualified or conditional "satisfaction" must be that there has been, both in fact and in law, no satisfaction to the deferred commencement condition DC1 and that the right of appeal available to the Applicant pursuant to s 97(1A) (read with s 91AA(6)) has not been exercised within the prescribed statutory period and is now incapable of being exercised because of the effluxion of the relevant statutory 12 month period for appeal.

It was this last-mentioned submission that prompted the Applicant to seek leave to amend the originating process in proceedings No 10568 of 2001 (being an appeal pursuant to s 96 against the Council's decision granting the second of the 2001 modifications of the development consent) to include an appeal pursuant to s 97(1A) against the Council's determination of 13 July 2001 notifying its conditional or qualified satisfaction in respect of the deferred commencement conditions. That proceeding was commenced on 18 July 2001 and hence is well within the appeal period stipulated in s 97(1A).

The Council opposed this amendment sought to the 2001 proceedings on the ground that the appeal pursuant to s 97(1A), was now statute barred, and to grant the amendment would be to revive a statute barred claim.

In the exercise of the discretion conferred by the Land and Environment Court Act 1979, (LEC Act) s 68 as amplified by the powers conferred by the Rules of Court Part 10 r 1 and r 2, I granted leave to the Applicant to amend the originating process in the 2001 proceeding so as to include an appeal pursuant to the EP&A Act, s 97(1A) against the Council's decision concerning its satisfaction with the deferred commencement conditions. No doubt, the amendment was sought by the Applicant precautionarily in the sense that the appeal would only be prosecuted in the event of the Court's rejection of its primary argument that the Council's decision as communicated in its letter of 13 July 2001 must be held to operate as an unqualified "satisfaction' for the purposes of s 91AA.

In my judgment, there is nothing in the language or purpose of s 91AA that would preclude a consent authority from expressing its satisfaction in respect of a deferred commencement condition in a qualified or conditional manner. The clear purpose of s 91AA is to enable a consent authority to impose a condition on the grant of development consent requiring the applicant to satisfy the consent authority as to "any matter" specified in the condition before the development consent can become operative. Where such a condition is imposed, the applicant is required to "produce evidence to the consent authority sufficient to enable it to be satisfied as to those matters" and where an applicant produces evidence but the consent authority is not so satisfied, there is a right of appeal to this Court (s 97(1A)).

Given this statutory regime and the clear legislative purpose, there does not appear to be any compelling reason why the consent authority's expression of satisfaction should be confined to an absolute satisfaction or dissatisfaction rather than affording the opportunity of the consent authority to express conditional satisfaction. This approach fulfils the statutory function and enables it to be exercised with maximum discretion and flexibility.

The concept of a "conditional" approval, consent or licence is such a familiar concept in everyday experience that to exclude it from operation in the context of s 91AA would seem to be unduly restrictive, especially given the comfort for an applicant of the provision pursuant to s 97(1A) of a full right of appeal to this Court against the consent authority's decision. Thus, in practice, the expression of a conditional "satisfaction" would either be accepted by an applicant who is content to comply with the condition, or be rejected by the applicant and treated as an expression of dissatisfaction in respect of which the applicant enjoyed the statutory right of appeal to this Court.

However, if the contrary construction of s 91AA were adopted so as to require the expression of an unqualified satisfaction or dissatisfaction by the consent authority in response to the production of evidence by the applicant of satisfaction of the deferred commencement conditions, (and reasons of certainty for the commencement of the operation of a development consent would support such a construction, which is also suggested by the employment of the terms "evidence" and "sufficient to satisfy"), then clearly the Council, in the present case, has not expressed its satisfaction with the evidence produced by the Applicant in respect of the deferred commencement condition DC1.

There is simply no warrant in fact or in law, for converting the Council's qualified or conditional satisfaction into an absolute satisfaction. Such a result would involve a clear distortion of the facts.

The position then would be that even at this point of time, well after the expiry of the 36 months stipulated in the development consent, the deferred commencement condition DC1 has not been satisfied and the development consent has still not yet become operative. Hence, the necessity for the Applicant to rely upon its belated appeal against the Council's decision in respect of the deferred commencement condition DC1. (I will consider the Applicant's appeal pursuant to s 97(1A) when I come to consider the cases on the planning merits.)

For all of the foregoing reasons, I would answer Questions 2 and 4 as follows:

It was open to the Council under s 91AA of the EP&A Act to express a conditional or qualified satisfaction in respect of the deferred commencement condition DC1 in the manner set out in its letter dated 13 July 2001 to the Applicant, but it was open to the Applicant to treat that decision as expressing relevant " dissatisfaction " thereby activating the right of appeal conferred by the EP&A Act, s 97(1A) .

Questions 3 and 5: Whether it was within the competence of Council to impose conditions on the grant of the 2001 modifications.

Ultimately, the Applicant has confined this question to the Council's imposition of Condition 32 in granting the 2001 modification to extend the period for compliance with the deferred commencement conditions of the development consent from the original 12 months to 36 months.

This confinement of the question came about as a result of the Applicant's ultimate willingness to accept Condition 3 imposed on the grant of the second of the 2001 modifications requiring the provision of the foreshore link path from Kurraba Road subject to the deletion of the requirement that the link path comply with the standards for access for persons with disabilities that are prescribed by Part D3 of the Building Code of Australia.

The deletion of this particular requirement was not opposed by the Council on the basis that in all other respects, Condition 3 would be maintained. Leave was granted, with the consent of the Council, for the Applicant to further amend the modification application, the subject matter of the 2001 and 2002 proceedings, to delete that particular element of Condition 3, but otherwise to leave Condition 3 in force.

The reason why the Applicant did not press its claim in respect of the other conditions imposed on the second of the 2001 modifications is that the imposition of further Condition 1 to 5 was but a mere replication of the imposition of the same conditions as conditions of the Council's qualified "satisfaction" with the deferred commencement conditions and that Condition 1 of those conditions forbidding access across Anderson Park for the purpose of deliveries to the approved boatshed is, in effect subsumed by the wider proscription on use of Anderson Park for access to the approved development that is imposed by Condition 18.

Accordingly, the relevant questions have been considerably narrowed so as to confine consideration to the imposition of Condition 32 on the grant of the earlier of the 2001 modifications.

Here, the Applicant argued that the imposition of Condition 32 on the grant of the earlier 2001 modification was contrary to the decision of Stein J (when a Judge of this Court) in Benalup Holdings Pty Ltd v Lismore City Council (1993) 81 LGERA 257. In that case, speaking of the scope of statutory modification power conferred by the EP&A Act, s 102 (the legislative antecedent to s 96 expressed in terms not relevantly distinguishable therefrom) Stein J concluded at 260: In my opinion the question posed in the amended notice of motion can best be answered by saying that the Court, as consent authority, (and the Council when it is the consent authority) does not have the jurisdiction or power, when determining an application under s 102 of the Act, to modify a development consent other than in the terms applied for by the applicant unless with the consent of the applicant. The Court cannot modify the consent by imposing conditions not sought by the applicant or in a form other than sought by the applicant. The discretion in s 102 does not extend to such situations. The discretion in the section is confined to s 102(1) as amplified by subs (3A).

In North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 97 LGERA 433 there was more than passing reference made to the decision in Benalup, with Mason P expressing the following views at pages 440/441 under the heading "The Power to grant conditional approval": One further reason advanced by the appellant in support of a narrower construction to s 102(1a) was the incapacity of a consent authority to approve a modification application other than unconditionally. In Benalup Holdings , Stein J held that a consent authority exercising the discretion under s 102 does not have power to modify a development consent other than in the terms applied for by the applicant unless with the consent of the applicant. Neither party to the present appeal challenged the correctness of this decision, although the appellant contended that a close analysis of Benalup reveals that it is authority for the narrower proposition that a consent authority may not make a modification subject to conditions other than those touching those aspects of the development actually modified. I find it unnecessary to resolve this issue in the present appeal. However, I must not be taken to be approving Benalup. I would wish to reserve the point whether as a general principle the power to approve conditionally needs to be conferred expressly where there is a true discretion. In Southern Pacific Co v Olympian Dredging Co 260 US 205 (1922) at 208 Sutherland J, delivering the opinion of the Supreme Court of the united States, said that: The power to approve implies the power to disapprove and the power to disapprove necessarily includes the lesser power to condition an approval; see also Johns v Australian Securities Commission (1993) 178 CLR 408 at 428-429, 469-470; cf R v Windsor Licensing Justices; Ex parte Hodes [1983] 1 WLR 685; [1983] 2 All ER 551. It is true that s 102 does not contain a provision similar to that found elsewhere which expressly arms the Court with power to approve conditionally: see, eg, ss 79(1), 91(1), 92(4) and 101(8). However, given the dangers of applying the expressio unius maxim, this may be insufficient to displace any general principle concerning the conditional exercise of discretionary powers. Of course, any conditions must be reasonably capable of being regarded as related to the purpose for which the discretion is being exercised: see Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) CLR 490 at 499-500; johns (at 469-470).

Stein JA, at 446 added the following observation: The judgment of Mason P has raised the issue of the breadth of my decision in Benalup Holdings Pty Ltd v Lismore City Council (1993) 81 LGERA 257. I accept that the question of whether there is implied in the power to refuse a modification, a power to conditionally approve, should be reserved for another day.

Whereas the Council has invited me to hold, consistently with the reasoning expressed by the President in Michael Standley, that the statutory power to modify a development consent implies the power to modify conditionally, it also argues that there is ultimately no need for me to decide the question which the Court of Appeal expressly reserved for another day because on the facts of the present case it is clear that in imposing Condition 32, the Council was doing no more than adopting and giving effect to the Applicant's representations concerning the non-use of Anderson Park for access purposes to the development site by construction traffic during the erection of the approved boatshed.

In other words, the Council submitted that the Council's modification of the development consent, which modification included the imposition of Condition 32, was tantamount to granting "what was applied for" and hence fell within the scope of the modification power as delineated in Benalup. Accordingly, the Council's decision was not a decision to approve the modification application conditionally, but was to grant the modification that was applied for.

In my judgment, the Council's argument is sustainable by reference to the undisputed primary facts concerning the earlier 2001 modification that I have earlier stated. The application to modify the development consent sought to extend from 12 to 36 months the time stipulation for the production of evidence sufficient to satisfy the deferred commencement conditions. In the Applicant's letter accompanying that modification application, the Applicant specifically addressed the deferred commencement condition DC1 by making the relevant representation that Anderson Park would not be used for access purposes during the construction of the boatshed. By granting the modification and imposing Condition 32, the Council had merely adopted the Applicant's representation and translated its adoption into an appropriate condition of the development consent.

On these undisputed facts, the earlier 2001 modification had merely granted the Applicant that which it had applied for. It did not involve a decision to approve the modification conditionally.

Accordingly, in my opinion, Condition 32 was validly imposed.

However, even if the true effect of the Council's decision was to approve the modification application conditionally, I would hold that the condition was validly imposed for the reasons discussed by Mason P in Michael Standley.

Coming next to the three questions that had been raised by the Council, I am of the opinion that questions 6 and 7 do not truly arise in the present proceedings in view of the concession or accord made by both parties in the course of the hearing that flowed from my decision in Fernance Family Holdings Pty Ltd v Newcastle City Council (2000) 110 LGERA 66, that recognised the fact that even if the Applicant were to be wholly successful, in all of its three appeals before the Court, that success would not, and could not, yield any positive entitlement for any person associated with the approved development, to be granted rights of access across Anderson Park to and from the approved development.

The present case and Fernance are factually similar inasmuch as (i) the relevant proscription on the use of land (in Fernance, the relevant land was the development site whereas in the present case, the relevant land is Anderson Park which adjoins the development site) was imposed by a condition of a development consent for the erection of a building; and (ii) in both cases the relevant proscription on use was sought to be eliminated or relaxed by way of modification application to amend or delete the relevant condition of consent.

In Fernance, development consent had been granted for the erection of a roof structure over an existing hotel carpark. Conditions of consent included the following: 5.4 The existing carparking area, including the roofed area, under no circumstances being used for any purpose other than the parking of staff and visitor cars and the delivery of goods in association with the existing hotel premises.

A modification application was made to add the following exception to Condition 5.4: except that, on Anzac Day and Melbourne Cup Day each year, it may be used to accommodate functions organised by the hotel's licencee.

The council having refused the modification application, the applicant appealed to this Court pursuant to the EP&A Act, s 96(6).

The council then moved for the summary dismissal of the appeal on the ground that the modification could not, as a matter of law, be granted because the development as proposed to be modified was not "substantially the same development" as the development that was the subject of the development consent within the meaning of s 96(2)(a).

My reasons for judgment at par 32 to 40 contain an analysis of the facts and relevant law which concludes that the effect of granting the modification as applied for, namely to remove part of the restriction on use of the approved development, was not tantamount to the grant of development consent sanctioning the propose use. That analysis is applicable to the present case inasmuch as it is now accepted by both parties that even if the Court were to grant the Applicant the maximum relief claimed in all of its appeals, the legal effect of that result would not sanction, in the sense of conferring any relevant positive entitlement, the use of Anderson Park as providing access to and from the approved development. Accordingly, Questions 6 and 7 do not arise in the present proceedings.

Question 8 need not be answered because it is common ground that in determining the modification application appeals, the Court is vested by s 96 with a broad discretion. D. CONSIDERATION OF THE PLANNING MERITS OF THE CASES

My determinations of the questions of law mean that there are three separate matters that now require adjudication on the planning merits - (i) the Applicant's s 97(1A) appeal against the Council's dissatisfaction with respect to deferred commencement condition DC1; (ii) the Applicant's appeal in respect of its amended modification application to modify additional condition 3 of the development consent requiring the provision of the foreshore link pathway from Kuraba Road; and (iii) the Applicant's appeal in respect of its modification application to modify Condition 18 either in the manner originally sought or in the amended form by relaxing the proscription by the inclusion of the proviso.

I propose to separately consider each of these matters. (iv) the s 97(1A) Appeal

An appeal under s 97(1A) is capable of raising but a single issue for adjudication, namely whether the evidence produced by the Applicant to the consent authority is sufficient to enable the consent authority to be satisfied as to the matters specified in the deferred commencement condition. In the context of an appeal to this Court, it is the Court that must decide whether the evidence produced is sufficient for it to be satisfied as to the matters specified in deferred commencement condition DC1: vide the LEC Act, s 39(2).

That condition in terms requires the Applicant "to demonstrate satisfactory access to the site which does not incorporate the use of Anderson Park in any way".

So far as concerns the evidence that was relevantly submitted by the Applicant to the Council, it is confined to the representations that construction traffic would not use Anderson Park for access to the development site during the construction of the approved boatshed.

That evidence is entirely silent on the question of use of Anderson Park for access purposes to the approved development once the boatshed is built and is being used.

The evidence plainly did not satisfy the Council as to the whole of the matter required by Condition DC1. That was clearly demonstrated by the fact that the Council expressed qualified or conditional satisfaction by imposing new Condition 1 ("Access to the site for deliveries shall not incorporate the use of Anderson Park in any way").

To the extent that it is open to the Court to receive additional evidence to that submitted to the Council by the Applicant (see s 39(3) of the LEC Act) the Applicant's evidence on the hearing of the appeal demonstrates the Applicant's desire, if not need, for vehicular and pedestrian access to the approved development across Anderson Park.

Accordingly, far from providing evidence sufficient to satisfy the Court of the matter required by deferred commencement condition DC1, namely, the demonstration of satisfactory access to the development site which does not incorporate the use of Anderson Park in any way (my emphasis) the evidence establishes the contrary proposition, namely that the use of Anderson Park for access to the approved development is both desired by and necessary for, the Applicant in its use of the approved development.

It is obvious that the Applicant has not produced evidence sufficient for the Court to be satisfied of the matter required by deferred commencement Condition DC1. On the contrary, its evidence presents a case for the continued use of Anderson Park for the purposes of access to and from the approved development.

It clearly follows that the Applicant's appeal pursuant to s 97(1A) must fail.

Accordingly, I order that the appeal be dismissed.

The dismissal of the appeal pursuant to s 97(1A) is, and can only be, unaffected by the results that are yielded in the two modification appeals. This is necessarily so, given the nature and function of a deferred commencement condition such as Condition DC1.

Even if the Applicant were to wholly succeed in both modification application appeals, the intractable demands of the deferred commencement condition DC1 would still be required to be satisfied before the development consent could even become operative, and the result would be an apparent impasse between the operation of the deferred commencement Condition DC1 and the operation of the modified conditions, with the former prevailing. Even the possibility of such an outcome in these proceedings only highlights the forensic difficulty posed for the Applicant by the undisturbed operation of the deferred commencement Condition DC1. It also highlights the inappropriateness of an overall result in the current litigation which would simultaneously deliver the modification of the conditions of the development consent that deny or proscribe access to and from the approved development via Anderson Park, but the retention of deferred commencement condition DC1.

The apparent intractability and supremacy of deferred commencement condition DC1 in the present proceedings and its impact on the two modification application appeals, however, is not an immutable state of affairs, because it is itself susceptible to the statutory process of modification of the development consent. So much was established by Australand where I held at p 327 that a deferred commencement consent, while in a non-operative state by virtue of the fact that a relevant deferred commencement condition was not satisfied within the time stipulated in the consent, was capable of being modified pursuant to the EP&A Act, s 102 (now applying as s 96) including a modification by way of change in the content of the deferred commencement condition.

However, unfortunately for the Applicant in the present case, neither of its modification application appeals addresses or touches deferred commencement Condition DC1 and it has failed in its only initiative in response to that condition by way of its appeal pursuant to s 97(1A).

Notwithstanding my fundamental concern at the inappropriateness of modifying conditions of the development consent whilever deferred commencement condition DC1 remains in force (because the most favourable outcome to the Applicant leaves it in a position of not satisfying the requirements of deferred commencement condition DC1 and hence being bound by the condition in any event), I shall nonetheless consider on the planning merits the Applicant's two modification application appeals in deference to the extensive evidence on the merits of the case adduced by the parties, and especially the Applicant. (v) the 2001 modification application

This application is concerned with the provision of the foreshore link path from Kuraba Road.

Ultimately, at the hearing, the Applicant abandoned its case to be relieved of the additional Condition 3 requiring the provision of the foreshore link path. Rather, it was content to provide the foreshore link path subject to the elimination of the particular requirement of the relevant condition that the path comply with the standards for disabled persons' access prescribed by Part D3 of the Building Code of Australia.

The Council's case likewise conceded the inappropriateness (if not impossibility) of the pathway complying with Part D3 of the Building Code of Australia.

Ultimately, there was no contest at the hearing that additional Condition 3 requiring the provision of the foreshore link path from Kuraba Road be maintained, but that there be deleted from the condition the following sentence: Furthermore, the design of the path is to take into consideration the stability of the site and Part D3 Building Code of Australia

Accordingly, I order that the development consent be so modified. (vi) The 2002 Modification Application

Ultimately at the hearing, the Applicant pressed only one of the four modifications sought in the 2002 modification application, namely modification of Condition 18 either as originally proposed of by way of alternative modification in the amended fashion set forth in its Notice of Motion (the terms of which have been earlier recited).

Although the modification application had also sought the deletion of the additional condition 4(1) ("Access to the site for deliveries shall not incorporate use of Anderson Park in any way") since that condition merely replicated the same condition that the Council had imposed in signifying its conditional or qualified "satisfaction" in respect of the deferred commencement condition DC1, I think the condition should remain untouched whilever deferred commencement condition DC1 remains in force (as it currently does in view of the dismissal of the Applicant's appeal pursuant to s 97(1A).

If I have misunderstood this part of the Applicant's case (and there was a degree of uncertainty at the hearing), then in the exercise of my discretion, I would decline to modify additional condition 4(1) whilever the deferred commencement condition DC1 remains in force. If in the future the Applicant were to seek to modify deferred commencement condition DC1 , it should concurrently seek the modification of additional Condition 4(1), and it is appropriate that the two matters be considered in tandem.

In so concluding, I also appreciate that either alternative forms of modification of Condition 18 would, if granted, be at odds with additional Condition 4(1). But even if this conflict could otherwise be eliminated, this same result would apply in respect of the continuing operation of deferred commencement condition DC1, for the reasons that I have earlier given.

The Applicant's case on the planning merits for the absolute or qualified elimination of the proscriptions on the use of Anderson Park created by Condition 18 is founded on the following facts -

(i) the development site is effectively landlocked land except for its water access;

(ii) land access to and from the development site has been available and been utilised over Anderson Park for nearly a century;

(iii) the nature and intensity of the required land access across Anderson Park is such as to involve a relatively minor impact on the recreational use of Anderson Park;

(iv) the Applicant's dependency upon land access via Anderson Park has diminished since the Applicant has acquired in the past two years the right to occupy space at the King Street Wharf, Darling Harbour with the consequence that there is no longer any need for the Neutral Bay waterfront facilities to receive deliveries of ice, linen, food and beverages (except for emergencies) or to be serviced by garbage and paper refuse collections;

(v) there are very limited existing facilities in Sydney Harbour for boat repairing and shipwrighting activities;

(vi) the provision of the foreshore link pathway form Kuraba Road will provide access opportunities from Kuraba Road but because of the number of steps in the pathway and the difficulty of obtaining kerbside parking in Kuraba Road in the vicinity of the development site that opportunity will not facilitate deliveries by trolley etc which will be more conveniently managed by maintaining access across Anderson Park;

(vii) although boat access is theoretically available for deliveries to the development site of boating repair materials etc, such access arrangements present logistical and practical difficulties which are not encountered if access via Anderson Park is maintained;

(viii) without continuing access via Anderson Park, the Applicant's commercial operation of the marina at the development site will become very difficult, involving serious financial consequences for the Applicant. Although the hospitality aspect of the Applicant's business has been successfully transferred to the King Street Wharf facilities, the conduct at the development site of activities for boat maintenance and repairs (especially urgent repairs) is essential for the Applicant's overall business of providing pleasure cruising on Sydney Harbour.

The nature of the boat repair activities conducted at the development site and the types of people and goods accessing the site are described in the statement of evidence of Mr Anthony Haworth, General Manager of the Applicant (Exhibit 17) in the following extracts - 8. The activities carried out at the Marina can be described generally as follows:

……………….. ………………… ……………….. (d)Shipwrights' activities which comprise: · The repair of timber vessels, including replacing decking, fixing deckheads, hull repairs, furniture and general fit out of vessels; · The same activities in respect of vessels of fibreglass or steel construction; · Engineering work including engine repair, engine overhaul, engine maintenance, plumbing, valve and tank repair, adjustment and replacement; · Work associated with the electrical installation on vessels including fit out and repair and maintenance of electrical systems on vessels; · Painting and general maintenance of vessels including cleaning, scrubbing of decks, vacuuming of carpets and cleaning furniture. 8. The shipwrighting activities described above take place on the vessels moored at the Marina and on the Site occupied by Captain Cook Cruises referred to above. . ……………… ……………… 17. There are usually 8 or 9 persons employed full time at the Marina. 18. There is also a caretaker at the Site through the evening and night-time hours. 19. Other persons attend the site who are not employees. These persons include couriers or suppliers of goods, mechanics and contract labour. Contractors also come onto the Marina from time to time to carry out the activities described above. 20. Heavy tools and equipment and bulky goods including furniture, food stuffs, manchester, sails, motors and motor parts are brought to and from the Site. Sometimes this necessitates the use of a trolley to carry these items. When this happens, vehicles are parked in Clark Road where parking is lawful and the items are transported by trolley along the bitumen path which is adjacent to the foreshore and which runs from Clark Road to a point near the entrance to the Marina (the Foreshore Path). 21. Also, from time to time the following types of materials are delivered to the Site: (a) timber (b) Paint (c) Spare parts (d) Electrical goods. 22. The nature of the materials brought to the Marina, either by reason of their volume, bulk or weight requires, a clear path of flat grade for the delivery of these materials. 23. These deliveries are made to the Marina by way of vehicles which park in Clark Road. Those vehicles, from my observations, comprise small trucks and sedans. Deliveries are not made in articulated vehicles. Deliveries are transported along the Foreshore Path to the Marina either by hand or by small trolley.

The level of existing access to and from the development site via Anderson Park was the subject of a survey conducted on Thursday 29 August 2002 from 6 am to 6 pm by the Traffic Consultants retained by the Applicant. In his Report (Exhibit 7). Mr Colston notes the following survey results and provides his interpretation of the results: 2.7 The survey found that, over the 12 hour period about 100 people walked across the park to enter the marina and about 90 people walked across the park to leave the marina. Thirty-seven people walking into the marina were carrying deliveries. Sixteen people leaving the marina were carrying goods. 2.8 These figures were distorted by the delivery of 7 sheets of plywood between 10.00 and 11.00 am. The sheets were each carried by 2 or 4 people and hence involved the movement of 22 people into the marina making deliveries and the same number departing not carrying goods. Thus this one delivery accounted for 60 per cent of all the people crossing the park to make deliveries and about a quarter of all people leaving the marina. 2.9 The result of these deliveries was that, in this hour, a total of 50 people walked to or from the marina across the park. Outside this hour, the maximum number of people walking across the park to or from the marina was some 20 people between 6.00 and 7.00 am and between 3.00 and 4.00 pm. The number was less than 15 movements per hour during all other hours. 2.10 A total of three deliveries involved the use of a wheeled trolley resulting in six movements across the park (three loaded and three empty) with the trolley. Nearly a quarter of all arrivals and departures were via the eastern access off Clarke Road. The balance use the other park accesses, with the majority using the other bridge access off Clarke Road and the at-grade access at the north-western tip of the park. A smaller number used the ramps/steps down from Kurraba Road. 2.11 Overall, the number of people walking across the park to access the marina is small. Typically there are 10 to 20 pedestrian movements (arrivals plus departures) across the park. The majority of these are not making deliveries and only a small proportion, less than 5 per cent of all movements, involved deliveries using small trolley. 2.12 There are occasions when there are short periods of somewhat more intense activity. This is exemplified by the plywood delivery on the day of the survey. However, even at this time there was only 50 movements across the park during the hour, less than one a minute on average. Also, since the delivery involved groups of people, there was in fact only 22 movements of individuals or groups of individuals over the park during this hour, about one movement every 3 minutes on average. 2.13 Finally, it must be remembered that people access the park using the various access points available. This tends to spread the movements, reducing the impact on any given access or section of the park. Overall, other than the plywood delivery, there was not more than about 5 movements per hour at any one access. 2.14 Vehicular access to the park is only available via the gate at the northwestern end of the park off Kurrabba Road. This gate is kept locked and hence no vehicles made deliveries directly to the marina. The applicant has requested that they be permitted to occasionally bring vehicles across the park to the marina. They have requested that this be permitted up to a maximum of 15 times per year. 2.15 It is accepted that it would be necessary to notify Council each time such access was required in order to allow council to arrange to have the gate opened. I do not see any problems with such controlled access. It is clear that Council and other vehicles already access the park to maintain the park, toilets, etc. A small number of vehicles accessing under controlled conditions should not present any difficulties.

Mr Colston's Report then proceeds to appraise the feasibility of alternative access to the development site being provided by (i) the proposed foreshore link path; and (ii) water access before expressing the following conclusions: 2.22 In conclusion, the marina currently only has land access across the park. This results in a modest number of pedestrians walking across the park, typically 10 to 20 movements per hour during the day. Whilst the impact of these movements on the park will be addressed by others, I cannot see that this small number of movements significantly impacts on the park. 2.23 The alternatives of either a foreshore link path or making all deliveries by water do not, in my opinion, provide a reasonable level of access to the marina. I therefore support the application that would see the elimination of the foreshore link path and the maintenance of pedestrian access to the marina across the park.

In his supplementary statement of evidence (Exhibit 8), Mr Colston records the results of two further surveys conducted by his office of pedestrian movements across Anderson Park which were associated with the waterfront facilities established on the development site. One survey was conducted on Saturday 7 September 2002 between 6 am to 6 pm and the other survey was conducted on Tuesday 24 September 2002 between 6 am to 6 pm.

The Saturday survey results recorded in Mr Colston's Supplementary Statement involve a much smaller number of pedestrian movements on the Saturday - 35 persons traversing the park to enter the marina and 30 people traversing the park to exit the marina (compared with 100 and 90 persons respectively recorded in the original survey). In the Saturday survey 5 persons were carrying goods to the marina and six persons leaving the marina were carrying goods (compared with the original survey results of 37 and 16 persons respectively).

The Tuesday survey results were closer to the original (Thursday) results. They recorded 80 persons traversing the park to enter the marina and 75 persons traversing the park exiting the marina (with 25 carrying goods to the marina and 5 carrying goods on exiting the marina).

Mr Colston's consideration of the additional survey results caused him to adhere to his original conclusion that the level of pedestrian movement in Anderson Park, associated with the waterfront facilities established on the development site ("typically 10 to 20 movements per hour during a weekday and 5 to 10 movements per hour on Saturday") was "small" without "significantly impacting upon the park".

Mr Colston's conclusions left it to "others" to evaluate the impact of pedestrian movements on the park and in this respect, the Court received competing opinions in the planning evidence contained in the respective Reports of Mr Czeref and Mr Kennan, Consultant Town Planners.

Mr Czeref regarded the public enjoyment of Anderson Park "to be compromised by deliveries, waste removal and vehicular access", whereas Mr Kennan was of the opinion that "use of Anderson Park for delivery of goods and the like to the development site by pneumatic typed trolley will not have an adverse impact on the Park, nor would the use of the Park by pedestrians accessing the development site, be they employees, consumers, visitors to the development site and the like".

Neither Consultant Town Planner was cross-examined, and I am left with the competing opinions and the reasons advanced therefore in their respective Reports.

There is, however, some obviously discernible area of consensus in the overall opinions of the Consultant Planners, namely that ordinary pedestrian access to and from the development site via Anderson Park is unobjectionable. This means that the only basis for the conflicting opinions concerns the "commercial" association with the development site of pedestrians traversing Anderson Park.

Mr Czeref draws the following distinction between ordinary pedestrians and pedestrians having a commercial association with the waterfront facilities established at the development site: If such access is confined to ordinary pedestrians (the public) and not directly associated with commercial activities carried out on the site, such as provisioning of the marina, then the access by the public should be permitted. The access across the park by the mobility impaired to any moored vessels at the marina (to enable them to board these vessels or to access the tidal rock ledge) will also help to achieve an objective of the plan of management and therefore should not be permitted.

I accept this opinion (which accords with Mr Kennan's like opinion).

I also adopt the following extract from Mr Czeref's Report (Exhibit F) containing his analysis of what constitutes a pedestrian of Anderson Park having a commercial association with the development site and his evaluation of why this type of pedestrian access via Anderson Park is ultimately unacceptable: The use of the foreshore path as the main access for delivery of goods and supplies to the marina is neither consistent with the statutory controls that apply to the zone nor with the plans of management. Anderson Park has no formal association or even any other historically recognised connection with the marina. The use of the foreshore path in Anderson Park by the marina for access to further its commercial operations has no apparent benefit to the community or the park and may cause potential conflict with patrons of the park, including elderly or disabled persons, cyclists, young children, push chairs and the like. I do not consider that the use of laden trolleys, carts (especially for possible garbage removal) and vehicles is sympathetic to the park's use by the public nor to the public expectation for enjoyment of the park. In particular, the use of the path across the open water frontage to the park for removal of waste, deliveries, vehicles etc. would impact most where the view of the foreground waterway is at its best. The path lies where people wishing to take in the foreground water view and experience of the harbour setting tend to congregate for this experience and where pedestrian usage of the path is likely to be at it highest.

In adopting Mr Czeref's evaluation, I exclude from it the reference to garbage/waste removal (which apparently, unknown to Mr Czeref, is now undertaken at the King Street Wharf premises occupied by the Applicant).

In this respect, I accept the fact that since the Applicant has acquired an interest in the King Street Wharf premises, it has been able to transfer to that facility a number of activities associated with its boating hospitality aspect of its business, with the consequent scaling down of the nature and intensity of use of Anderson Park for access purposes to and from the development site.

Despite the significant scaling down in recent times of access to and from the development site via Anderson Park having a commercial purpose and favour, the residual arrangements still result in a degree of "commercial" access over Anderson Park which cannot be fairly regarded as being insignificant from the point of view of the integrity of Anderson Park providing an important public recreational resource.

This conclusion also applies to the amended form of modification to Condition 18 which, if granted, would allow up to 15 deliveries per week by trolley and up to 15 vehicular deliveries per year.

It may readily be accepted that this level of activity is modest in scale and intensity. But it is not modest in terms of its essential incompatibility with Anderson Park being and providing a significant public recreational resource. If it is possible to achieve some measure of overall compatibility, then the Council, which is vested with the management and control of Anderson Park, can take appropriate action to sanction the desired use of Anderson Park by the Applicant, both in pursuance of the relevant Plans of Management applying to Anderson Park and of the express provisions of Condition 18.

However, it is not appropriate that the Court become involved in this management exercise, which is properly within the province and function of the Council This is more especially the case, in my opinion, whilever deferred commencement condition DC1 remains in force.

It follows from the foregoing discussion, that I am of the opinion that a case has been made out to modify Condition 18 so that it does not operate to preclude ordinary pedestrians gaining access to and from the development site via Anderson Park. Ordinary pedestrians include employees of the Applicant working at the development site since their accessing Anderson Park is no different from any other pedestrian traversing the Park as part of their pathway of travel to work or home destinations.

This decision, in respect of Condition 18 has the effect of bringing Condition 18 into perfect alignment with deferred commencement condition DC1 and with additional Condition 4(1).

For all the foregoing reasons, Condition 18 is to be modified by adding the following proviso:

Provided that nothing in this condition shall operate to deny access via Anderson Park to an ordinary pedestrian being a person who is not making a delivery of any goods to or from the said premises. E. CONCLUSIONS AND ORDERS

For all of the foregoing reasons, I make the following orders -

1. In proceedings 10568 of 2001, the appeal pursuant to the EP&A Act, s 97(1A) be dismissed.
2. In proceedings 10568 of 2001, the appeal pursuant to the EP&A Act, s 96(6) be allowed by modifying the deferred development consent granted by the Council on 24 August 1998 (D/A No 156/98) by deleting from additional Condition 3 imposed by modification granted on 16 July 2001 (Application No A156/98/3) the following words: Furthermore the design of the path is to take into consideration the stability of the site and Part D3, Building Code of Australia
3. In proceedings 10090 of 2002, the appeal pursuant to the EP&A Act, s 96(6) be allowed by modifying the deferred commencement consent granted by the Council on 24 August 1998 (D/A No 156/98) by adding to Condition 18 the following proviso: Provided that nothing in this condition shall operate to deny access via Anderson Park to any ordinary pedestrian being a person who is not making a delivery of any goods to or from the said premises.
4. No order as to costs.

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