Gray & anor v Pittwater Council

Site and locality

1. 5 Sturdee Lane is irregular in shape with an area of about 3512sqm and a 58m wide frontage to Elvina Bay, which forms part of the Pittwater Waterway. It is developed with a house that is located towards the centre of the Land within significant vegetation. A timber boathouse adjoins the south west corner of the Land, below MHWM on Crown Land that is leased by the applicant. The house and the boathouse are accessed from the water via other structures below MHWM.
2. The Building Certificate Application relates to the structures below MHWM, which include a timber deck, timber ramp, timber pontoon, two stabilising piles, three free standing concrete berthing mooring piles and a wave baffle. As I understand, no works have been undertaken to the boathouse, which are included in the Building Certificate Application.
3. The adjoining property to the west (7 Sturdee Lane) is developed with a detached dwelling with a ramp, pontoon and boathouse below MHWM near the structures on the site.
4. Surrounding development is detached dwellings on large allotments in bushland settings with water frontages that are accessed by the water and generally have ramps and pontoons to facilitate "commuter access".
5. Elvina Bay is serviced by a ferry from Church Point and has two ferry wharves; North Elvina Wharf (nearest the site) and South Elvina Wharf.

Background and proposal Prior to the Building Certificate Application

1. On 24 April 1987, a development application (87/135) was approved by the then Warringah Council for the land below the MHWM "to construct a jetty, ramp, pontoon, storage shed, walkway and two piles" (1987 Consent). Conditions of consent included a limit on the maximum height of the jetty to 1.25m AHD, the two freestanding piles to 2.5m AHD and the intermediate piles (stabilising piles) to 1.5m AHD (Condition 3). No work or implementation of the proposal was to occur until council had consented to a building application under Part XI of the Local Government Act (LG Act) and until a Permissive Occupancy had been issued (Condition 4).
2. A Permissive Occupancy No. 1987/43 was subsequently granted to the previous owners with a Date of Commencement of 11 May 1987 for the works approved in the 1987 Consent, occupying an area of about 61sqm.
3. In August 2008, the applicant became the owners, the Permissive Occupancy No. 1987/43 was terminated and Licence L430567 with a Commencement Date 8 August 2008 was issued to the applicants under s34 of the Crown Lands Act 1989 (Crown Lands Act) for the purpose of a boatshed, deck, jetty, two piles, pontoon, ramp and walkway occupying an area of 58.5sqm (Licence). A Special Condition of the Licence (Schedule 2, Condition 79) provides: The Holder will ensure that unless the purpose of this Licence provides for "Berthing Area", no vessel shall be permanently berthed on the land
4. The Purpose of the Licence does not provide for a "Berthing Area" or permanent berthing. A further Special Condition (Schedule 2, Condition 83) of the Licence states: This Licence authorises improvements located on Crown Land formerly held under Permissive Occupancy 1987/43. In the event that improvements additional to or extending those formerly authorised now exist on adjoining Crown Land without authority then consideration to a variation of the area of Crown Land presently authorised for occupation will be necessary and shall be considered by the Minister on its merits in accordance with the provisions of relevant legislation and policies.
5. The applicant currently holds a mooring licence for a private swing mooring in Elvina Bay, occupied by the applicant's yacht "Inon", which is registered with "Length overall 19.0m, Beam 5.0m, Draft 2.8m".
6. On 25 June 2012, council issued a Notice of a Proposed Order for unauthorised structures on Crown Land below the MHWM. On 13 November 2012, the council served an Order requiring the applicant to: a. Demolish and remove the unauthorised structures, including the three concrete piles (the south east pile and the south west pile are approved and may remain), the timber picket barrier (wave baffle) that extends from the south west corner of the deck to the south east pile and the deck 'infill' located between the deck and the jetty. b. Relocate the pontoon and restore it to its original approved size and location - namely centred at the end of the ramp, as indicated on the Licence (L 430567) issued by the Department of Lands.
7. There has been no appeal to the Court against the Order. Building Certificate Application (BC0080/14)
8. On 18 February 2014, Sydney Metropolitan Division of Crown Lands advised council that Land Owners consent for the Building Certificate Application would not be provided. Subsequently, on 3 September 2014, the Hunter Division of Crown Lands advised that Land Owners Consent had been granted.
9. The Building Certificate Application was lodged with council on 15 September 2014. It included a survey of the current work, a Structural Adequacy certificate from a structural engineer and copies of letters from Fisheries NSW, a division of NSW Department of Primary Industries (Fisheries) and Roads and Maritime Service (RMS) requested by Crown Lands.
10. The letter from Fisheries of 25 August 2015 states: Fisheries NSW dos not support the retrospective approval of waterfront structures built or modified without consent…. Had the existing unauthorised waterfront structures been referred to Fisheries NSW as a proposal through the development consent process under the Environmental Planning and Assessment Act 1979, Fisheries NSW would not have objected on the basis of the extent and nature of aquatic habitats as described by Cardno in 2012 and reiterated in 2014…, but would have noted that the pontoon exceeds our guideline of 3.6 x 2.4m. …the owner will be seeking a berthing area through the DA process…any such application to Fisheries NSW will need to be accompanied by a new aquatic habitat survey prepared in accordance with section 3.3 of the Policy and Guidelines for Fish Habitat Conservation and Management (2013).
11. The RMS letter of 14 August 2014 states it: has inspected the site of the proposed application and… have no navigational objections provided: ●The facility is used by a commuter type monohull vessel with an overall length of less than eight metres. This is specifically required so that there is clear navigation and no impediment to ferry operations and local traffic transiting to and from the area.
12. The Building Certificate Application was notified to adjoining property owners and 12 objections were received. The key concerns of the objectors were that the works had been constructed without consent and public consultation, the as built structures extend further into the water, have increased in size and could be used by large vessels, which result in increased visual impact as well as impacts on navigation.
13. The Building Certificate Application was refused under the delegation of council on 16 April 2015.
14. On 7 August 2015, the applicant lodged a Class 1 Appeal against the refusal of the Building Certificate Application. A conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) was held. The parties did not reach agreement and the conference was terminated.
15. In response to questions from council's solicitors, the Lands Division of the Department of Primary Industries (Lands) advised on 12 February 2016: 1. NSW Department of Primary Industries - Lands (DPI Lands) does not consider Licence 430567 void. DPI Lands considers that the licensee is currently in breach of the Licence as multiple structures that occupy Crown land outside of the licence area have been constructed. DPI Lands have subsequently issued landowners consent to allow the licensee to apply for a Building Certificate from Pittwater Council (Council) and expect to issue a new Domestic Waterfront Licence if approved by Council. 2. The new licence contemplated by DPI Lands will contain the condition as per the Roads and Maritime Services (RMS) consent letter dated 14 August 2014 that states; "RMS has inspected the site of the proposed application and advises that we have no navigational objection provided the facility is used by a commuter type monohull vessel with an overall length of less than 8 metres. This is specifically required so that there is clear navigation and no impediment to ferry operations and local traffic transiting to and from the area" ……
16. On 19 January 2016, the applicant was granted leave to amend the Building Certificate Application by reducing the height of the three freestanding piles from RL3.7 to RL 3.05 (Application). The works proposed in the Application include: a. timber deck at RL 1.35, extending up to 3.5m seaward of the existing boatshed with a maximum width of approximately 6.6m; b. timber ramp (6.1m x 1.4m) with handrails to both sides; c. timber pontoon (6m x 4m); d. stabilising piles x 2 (height unknown); e. freestanding piles x 3 (top RL 3.05); and f. Wave baffle (9.6m x 1.3m with top RL 1.44).

Statutory framework

1. 5 Sturdee Lane is within the E3 Environmental Management zone under Pittwater Local Environment Plan 2014 (LEP 2014). The adjoining land below MHWM is within the W1 Natural Waterways zone. "Environmental facilities" and "Mooring pens" are permissible with consent.
2. The objectives of the W1 zone that, under cl 2.3(2), the consent authority must have regard to include: • To protect the ecological and scenic values of natural waterways. • To prevent development that would have an adverse effect on the natural values of waterways in this zone. … • To ensure development does not adversely impact on the natural environment or obstruct the navigation of the waterway. • To provide opportunities for private access to the waterway where these do not cause unnecessary impact on public access to the foreshore.
3. Clause 2.5 of LEP 2014 provides that additional uses may be carried out with consent on land described in Schedule 1. Certain land in Zone W1 identified in Area 23 of the Additional Permitted Uses Map of LEP 2014 is within Schedule 1, including the land below MHWM adjoining the site. Development for the purposes of boatsheds, jetties, or water recreation structures is permitted with consent in Area 23.
4. The land below MHWM adjoining 5 Sturdee Lane is identified as being within the Waterways Locality on the Waterways Locality Map of Pittwater 21 Development Control Plan (DCP). Clause A4.15 provides a description of Context and Desired Character for the Waterways Locality which relevantly includes: Context …..the waterway has become a popular recreational boating area. Land adjoining the waterway has largely developed with low­density residential housing, waterfront business and yacht clubs, and areas of public open space. Many residences with waterfront access enjoy private boating facilities including jetties, boatsheds and the like….. Water transport access is possible to the Western Foreshores and to the Hawkesbury River and Brisbane Waters. A public ferry service runs from the public wharf at Palm Beach to Patonga, Ettalong and Gosford. Public ferries can also be caught to Scotland Island and the Western Foreshore communities, as well as a water taxi service. Many waterfront homes also have private watercraft which operate from private boathouse, wharves, jetties, floating ramps and/or pontoons. These should be shared facilities to minimise the number of waterfront buildings and structures. Other commercial traffic that uses the Pittwater waterway include barges for the removal of rubbish from the off­shore communities, and also for the transportation of building materials…… Desired Character The Waterway locality will remain primarily a recreational boating area. Waterfront businesses, yacht clubs and the like will meet the waterway recreational and boating needs of the community. Future development is to be located so as to be supported by adequate infrastructure, including roads, water and sewerage facilities, and public transport. Future development should ensure that access is available at all times to public boating facilities, such as launching ramps. Future development will not restrict public access adjoining the foreshore, or pedestrian access along the foreshore. Future development will maintain a building height limit below the tree canopy and minimise bulk and scale…..Development will be designed to be safe from hazards. Development will co­exist with adjoining residential areas. Development will not restrict public access adjoining the foreshore, and will not obstruct navigation within the waterway. …….
5. Section D15 of the DCP provides outcomes and controls for the Waterways Locality which include Character as viewed from a public place (D15.1), Scenic protection-General (D15.2), Waterfront development (D15.15).
6. The Domestic Waterfront Facility Policy 2014 (Policy) prepared by Lands provides guidance in assessing matters such as applications for owners consent and issuing licences for the occupation of Crown Land.
7. The Policy and Guidelines for Fish Habitat Conservation and Management (2013) prepared by Fisheries includes policies and guidelines for boat ramps, boat sheds, pontoons and slip rails (5.1.7). Given the advice of Fisheries, council did not contend that the works would impact on fish habitat but noted that Fisheries would need to be consulted if a permanent berthing area were proposed.

The evidence

1. The Court visited the site and viewed the adjoining waterfront structures from both the water and the land. The Court also visited the adjoining property at 7 Sturdee Lane and heard the concerns of the objector, which principally relate to the use of the structure by the applicant's yacht, Inon. The objector considered that the works that had been undertaken facilitated the berthing of the yacht and that it had been moored for an extended period. The works increased the size of the facility and adversely impacted on their residential amenity as the structure and yacht can be seen from their house and obstruct their views to the water and the structures are located within the boundary extension of their property in close proximity to their jetty. Furthermore, they consider that when the yacht is moored it is difficult for their boat to access their jetty. Given that the site has an extensive water frontage, the objectors considered that the structure should be relocated away from their boundary so that it is less visible from their property and does not interfere with access to their jetty.
2. The operator of the Church Point Ferry Service considered the wharf structure to be "excessive" as the majority of wharves in the area where the ferry operates are of a size that allows a moderate size boat (around 20-30 feet yacht) or most commonly a smaller commuter vessel to be tied up.
3. The ferry operator stated that the large structure enables the applicant's yacht to be moored, which is larger (60 feet) and this impacts on the passage of the ferry, particularly in a southerly wind combined with the swing of the nearby vessels on moorings. She acknowledged that it was not unsafe but considered that it created an inconvenience as it required greater manoeuvring to avoid vessels and reduced the efficiency of the service. She used the analogy of a narrow road with cars parked on both sides that require passing cars to pull over or weave between the parked cars.
4. The operator noted the increase in number and size of vessels and that overcrowding of Pittwater is an ongoing concern as the route the ferry takes is being constantly pushed out as more moorings are put in. The problem is compounded by large vessels being moored on large wharves, which may result in the ferry service being unable to transport passengers to some wharves in some weather conditions and with reduced efficiency.
5. The Court viewed the ferry route in Elvina Bay as well as other waterside structures within the bay and on the northern shore of Scotland Island.
6. The Court heard evidence from Dr R Lamb and Mr L Doyle, for the applicant, and Ms R Englund, for the council, on visual impacts and planning. Captain G Mathias, for the applicant, and Mr S Nugent, RMS Boating Safety Officer, provided evidence on the maritime and navigation matters.

Visual Impact

1. The experts disagree on aspects of what had been approved under the 1987 Consent and what was actually built. In particular, the distance of the western most free standing pile from the pontoon is un-dimensioned and notated in hand writing on the approved plans (Exhibit E). Ms Englund scaled the distance between the two approved freestanding piles as being 9.1m, whereas the distance between the piles that were built in accordance with the 1987 Consent (As Built) scales at about 11m (Exhibit D). Notwithstanding the inconsistencies between the 1987 Consent and the As Built, the experts agree that, with the exception of the freestanding piles, they are generally consistent and that in assessing the visual impact it is reasonable to compare the As Built with what is now proposed in the Application.
2. Ms Englund notes that each of the elements that have changed does not comply with the numerical requirements for waterfront development in cl D15.15 of the DCP and exceed what was approved in the 1987 Consent. While Mr Doyle and Dr Lamb acknowledge the numerical non-compliance they consider the outcomes of the DCP are met.
3. The key disagreement between the experts was whether the increase in the height, number and location of the free standing piles was acceptable. Particularly, as these would facilitate the berthing of a large vessel. The experts agree that the 1987 consent does not limit the length, beam or overall size of a vessel that can use the facility and that the Licence does not permit "permanent berthing" to occur. Mr Doyle considers that the two approved free standing piles with a height of 2.5m AHD would have enabled a yacht of the size of Inon to be moored parallel to the shore. However, he notes that the three free standing piles proposed in the Application with a height of RL3.05m are necessary to prevent hull damage to vessels with a freeboard of this height or similar. Further, he considers that the eastern free standing pile is required to minimise the risk of vessels hitting the wave baffle and its height is needed to assist navigation (visibility) for boats approaching from the north east. He acknowledges that under cl D15.15 of the DCP, free standing piles are generally not favoured but the proposed piles meet the criteria for a variation as they do not have a detrimental visual effect and are in an area subject to heavy wave exposure. Further, despite the non-compliance with the permissible height of 2.67m AHD permitted under the variation, the piles achieve the outcomes sought by cl D15.15.
4. Ms Englund considers that while it may have been feasible to berth a large vessel using the two free standing piles approved under the 1987 Consent, it would be unlikely to occur on a regular basis due to the concerns raised about the potential damage to the vessel, which could result from the approved height of the piles. The height and number of piles is not necessary to facilitate access to the site by commuter type vessels and that Lands and the RMS do not support the use of the waterfront facilities by vessels greater than 8m in length. In her opinion, the three free standing piles are not required for reasonable access and consequently would not minimise the visual impact of the structure, as required by the DCP. She accepted that the location is exposed to southerly and south-easterly winds and wave action of passing vessels and that a variation to cl D15.15 is warranted but that three piles, which exceed the maximum height of the variation are not required to berth a commuter style vessel, regardless of the weather conditions and therefore do not meet the outcomes sought by cl D15.15.
5. Dr Lamb and Ms Englund agree that when viewed in isolation, none of the individual components of the Application would result in a detrimental impact on the scenic quality of the foreshore. However, they disagree on whether the cumulative visual impact of the development is acceptable. Ms Englund states that each of the components exceed what was approved under the 1987 Consent and what was constructed and the maximum requirements of the DCP. When considered as a whole the development is not consistent with the objectives of the DCP as the extent, scale, visual impact have not been minimised as the structures are beyond what is reasonably required to meet the needs of the occupants to provide access to their dwelling.
6. Dr Lamb considers that a cumulative impact would only result if there is a negative contribution for the individual elements. He prepared a visual analysis of Elvina Bay and the north and north west shoreline of Scotland Island. Overall, he considered that the facility would be residential in character and consistent with the residential use of the land and of other properties in Elvina Bay and the wider locality, which have mooring facilities that vary considerably in their scale, character and appearance. In his opinion, the structure in the Application would not have a significant visual impact on the desired future character of the locality and the bushland setting would remain the dominant feature.

Navigation

1. Captain Mathias and Mr Nugent agree that an average of 17m is a safe channel width for the navigation of vessels and that the width of the channel adjoining the site would be 26m, without a vessel moored on the structure. The experts generally agreed that even with a vessel moored there would not be safety issues provided users of the waterway were experienced and complied with the relevant navigation regulations. However, Mr Nugent maintained his position that: The navigational channel directly in front of the location where the rebuild and improvements had taken place would be physically obstructed and visual restrictions would be created for other vehicles at any time, should a vessel in excess of 8 metres in length with a beam in excess of approximately trailer sized widths of generally 2.5m, be secured to piles, pontoon, jetty or by other means, to facilities at 5 Sturdee Lane, Elvina Bay. Three large springer piles for berthing are outmost to the channel at the location of the rebuild and may concern was that local ferries would be unreasonably impeded with the amount of room available between that facility with a large berthed vessel alongside, and the moored vessels on swing moorings located on the other side of that channel. The width of the channel and the available water space would be compromised if berthing of a large vessel occurred at the facility.
2. Mr Nugent considered that the height (freeboard) of a vessel above the waterline is the main issue because of the physical obstruction and visual restriction that it is capable of producing. A large vessel moored at the facility would be an "obstruction" in the channel similar to the obstruction of a bus parked in a long narrow road with cars parked. In his opinion, not all users of the waterway are experienced, or even require a licence and that adverse weather can affect conditions in the channel.
3. Mr Nugent noted that the size of vessels using the waterway, jetties and swing moorings had generally increased since 1987 and that the extent of the structure approved under the 1987 Consent would be of concern if assessed under current requirements. Furthermore, he accepted that the two piles and pontoon approved under the 1987 Consent could accommodate a vessel longer than 8m but would be unlikely to have been used by a larger vessel, such as Inon, on a regular basis due to the height of its freeboard. He accepted that the works to the facility would provide benefits to the owner such as increased stability to board Inon.
4. In Capitan Mathias' opinion, the 1987 consent would have enabled a larger vessel, such as Inon to be moored even without an intermediate pile, as fenders could have been used. He therefore considered that there would be no increased obstruction to the channel. In his opinion, it is unnecessary to restrict the length of a vessel moored at the facility to 8m as the channel width was of sufficient width for the ferry and other users to safely use the waterway without obstruction.

Findings

1. The parties agreed that the Application should be assessed as a "notional development application" (see Ireland v Cessnock [1999] NSWLEC 250, (1999) LGERA 311 and Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276) and that the relevant matters under s79C of the EPA Act should be considered, including the planning controls that would have applied to such a development application.
2. The DCP includes existing and desired character, outcomes and controls for the Waterways Locality that seek to minimise the number of waterfront buildings and structures, not restrict public access adjoining the foreshore and not obstruct navigation within the waterway (A4.15); minimise the bulk and scale of structures below MHWM (D15.1); and minimise any visual impact on the natural environment when viewed from the waterway (D15.2). In particular, D.15.15 applies to Waterfront development and relevantly provides: Outcomes …..Public access along the foreshore is not restricted. (S) Waterfront development does not encroach on navigation channels or adversely affect the use of ferries and service vessels or use of the waterway by adjoining landowners. (S, Ec) Structures blend with the natural environment. (S) Structures are not detrimental to the visual quality, water quality or estuarine habitat of the Pittwater Waterway. (En, S) ….. Waterfront development which does not comply with the outcomes of this clause are removed. (En, S, Ec)
3. D15.15 includes controls for Jetties, Ramps and Pontoons, berthing areas and piles. The proposal does not comply with some of these controls. Including that "handrails are to be constructed only on one side of the structure", maximum pontoon dimensions of 6m x 2.4m and "Freestanding or end piles are not favoured". D15.15 also provides variations to these controls which include: b) Piles Council may consider freestanding or end piles where structures are unlikely to have a detrimental visual effect when viewed from the waterway, or in areas subject to heavy wave exposure to stabilise jetties, pontoons and berthed vessels. In such instances, the following criteria shall apply: i. Structures shall not have a height greater than indicated in the following table: Type of Pile Above MHWM (metres) AHD Above HAT (metres)* (metres) Jetty end 2.16 2.67 1.5 Pontoon Stabilisation 2.16 2.67 1.5 Berthing 2.16 2.67 1.5 Intermediate (jetty) 0.75 1.26

• Highest Astronomical Tide which is 2.1 metres above zero Fort Denison Tide Gauge or 1.17 AHD. ii. Structures shall be of timber or fibre reinforced concrete. Timber piles shall have a minimum diameter of 250mm and be stripped bare of bark above mean high water mark and be bound at the top by a metal ring to prevent splitting and be capped to prevent long term deterioration. iii. Structures shall be treated in dark, natural colours above mean high water mark. End piles or free standing piles shall be painted white along the top 1 metre of the pile to facilitate visual prominence when viewed from the water at night and minimise any hazard to navigation. The use of alternative measures, such as reflective materials, to facilitate visual prominence may also be supported. …...

1. The principle elements that have changed between the As Built structure and the Application are a change in the size and shape of the timber deck, an increase in the size of the pontoon, the location, number, height, dimension and materials of the free standing plies, the location, height and dimension of the stabilising poles, an additional handrail on the ramp and a new wave baffle. Council did not raise concerns about the visual impact of each of these changes if considered in isolation, but considered that the cumulative effect would be have an unacceptable visual impact as the size of the structures were not minimised to meet the purpose for which they are constructed.
2. While there are discrepancies between the 1987 Consent and the As Built structure, the experts agree that it is appropriate to compare the works in the Application against the As Built. This is best illustrated by comparing Photo 26 (As Built) in Dr Lamb' Statement of Evidence (Exhibit B) with the Photos 23-25 and Exhibit F, which represent the Application, noting that the height of the free standing piles would be reduced by about 0.26m to that shown in these photos. A comparison between these "before and after" photos illustrates that overall the application will result in an increased bulk and scale and greater visual impact. I accept Ms Englund's evidence that the structures are beyond what is required to provide adequate access to the dwelling and consequently they are not minimised. The visual impact is unacceptable and not what is envisaged under the planning controls.
3. Furthermore, Dr Lamb's assessment of visual impact relies on the variety of existing structures in the locality and, in particular, those on the north and north west shoreline of Scotland Island. There is a variety of structures and this variety has different visual impacts, which is illustrated by the number and size of structures on the north and north west shoreline of Scotland Island. However, it is unclear why this area of Scotland Island was selected as it is not in the visual catchment of the site. The character of Scotland Island is different to the character of Elvina Bay and illustrates the visual impacts of larger structures in close proximity to each other. The photos in Dr Lamb's assessment were also taken at around hide tide which would minimise the extent of structure visible above the water level.
4. Ms Englund's main concern relates to the number and height of the free standing piles which are "not favoured" and exceed the height permitted in the variation under D15.15 of the DCP. A consideration of the impact of the piles involves a consideration of what they would be used for. The piles are required to facilitate the safe berthing of larger vessels, such as Inon. The increased height is necessary principally because of the freeboard of such vessels, rather than the length. While the distance between the two As Built piles would enable a longer vessel to be moored, such as a barge, the approved and As Built height of these piles would not facilitate a larger vessel with a higher freeboard, such as Inon to be moored on a regular basis without potential damage or reduced stability. Even, if this was the case, and the 1987 Consent envisaged the regular mooring of larger vessels, then the additional pile and the additional height of the piles in the Application would be unnecessary. On this basis, the piles in the application are beyond what is required to moor a boat, principally to provide access to the property and do not minimise structures below MHWM or visual bulk.
5. The Licence does not provide for a "berthing area" or "permanent berthing". Although, it is not clear what "permanent berthing" means, it is defined under the Policy as: Berthing of a vessel at a domestic waterfront facility for a total period greater than six hours.
6. A reasonable interpretation would be six hours per calendar day and the berthing of Inon could occur on this basis. It may be more convenient for the applicant to be able to board Inon from the structures in the Application rather than at its mooring in Pittwater. However, it is not reasonable that the design of the mooring structures should be to accommodate such a use as it requires piles of greater height and number. It consequently results in greater visual impact from not only the structures but from the potential that Inon could be moored on site for up to six hours per day.
7. Furthermore, the adjoining owners were concerned about the proximity of the structure to their property and the resultant visual impact and manoeuvring of their boat. The inconvenience to the owners of this property, if Inon is regularly berthed, may be similar to the inconvenience to the applicants, if is not.
8. I accept the evidence of the ferry operator, which is supported by Mr Nugent that while it may not be a safety issue the application encroaches on the navigation channel and affects its ease of use by ferries and other users of the waterway. The structures encroach marginally further into the channel than what was approved in the 1987 Consent, and even the extent of encroachment into the waterway approved under the 1987 Consent was of concern to Mr Nugent based on contemporary standards. This encroachment would be exacerbated when Inon is moored, particularly if this were to occur on a regular basis. The analogy provided by both the ferry operator and Mr Nugent that this is would be similar to a narrow road with cars parked on both sides with a large vehicle and would require greater manoeuvring and inconvenience for traffic. Similarly, the evidence of the ferry operator is that when Inon is moored it results in reduced efficiency for the ferry service.
9. The works in the application, including the wave baffle, have effectively provided a "pen" for the applicant's commuter boat, which was moored there during the site visit. While this may not be used for permanent berthing, it clearly provides convenient access to and from the property.
10. The additional benefits provided to the applicant and the potential inconvenience that may result from removal of part of the structure is outweighed by the greater inconvenience that may result to the ferry operator, the adjoining owners and other users of the waterway, as well as the increased visual impact that results from the proposal.
11. Council accepted that not all the structures that had been constructed without consent should be removed and that the Application could be issued once the following works had been undertaken: a. demolish, alter or rebuild the 3 free-standing berthing piles so that there are no more than 2 free-standing berthing piles not greater than 2.67m AHD in height and no more than 9m apart and paint the top 1m of the resultant free-standing piles white; b. demolish, alter or rebuild the pontoon so that it is no more than 6m x 2.4m; c. remove one handrail from the ramp; d. if the SE free-standing pile is removed, paint the top 1m of the southern most end pile of the wave baffle white.
12. For the above reasons, it is reasonable to reduce the number of free standing piles to two and the height to comply with the maximum height of 2.67m AHD permissible under the variation in D15.15 of the DCP and that the circumstances of this case do not warrant further variation or flexibility in applying the DCP. However, the requirement that the piles be no more than 9m apart is unnecessary as it will not achieve a reduction in visual impact or navigation benefits. The reduction in the size of the pontoon is also unnecessary as, although it exceeds the depth of 2.4m in the D15.15(a) of the DCP, its length complies and its visual impact is acceptable.
13. Subject to the amendments above, I accept that the changes to the Application sought by council are reasonable and would achieve greater compliance with the requirements of the DCP and further consistency with the zone objectives for the W1 Natural Waterways zone in LEP 2014.

Orders

1. The Orders of the Court are: 1. The appeal is upheld in part. 2. The Council is directed to issue Building Certificate (BC0080/14) for the deck, ramp, pontoon, piles and wave baffle constructed below MHWM at 5 Sturdee Lane, Elvina Bay in respect of the Works the subject of these proceedings, within 14 days of the Applicant providing a survey by a Registered Surveyor and confirming, to council's satisfaction, that the following works have been done: a. demolish, alter or rebuild the 3 free-standing berthing piles so that there are no more than 2 free-standing berthing piles not greater than 2.67m AHD in height and paint the top 1m of the resultant free-standing piles white; b. remove one handrail from the ramp; c. if the south east free-standing pile is removed, paint the top 1m of the southern most end pile of the wave baffle white. 1. The exhibits, except Exhibits 1 and J, are returned. Annelise Tuor Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 May 2016