Captain Cook Cruises Pty Limited v North Sydney Council

Captain Cook Cruises Pty Limited v North Sydney Council - [2002] NSWLEC 243 - NSWLEC 1997 case summary — Zoe

[5]

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.

[105]

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).

[157]

……………….. ………………… ……………….. (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.

[158]

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.

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