H & J Standen Pty Limited v Minister for Planning and Infrastructure & Sutherland Shire Council

Judgment 1SENIOR COMMISSIONER: Dolans Bay is a subsidiary inlet of Burraneer Bay, part of the major waterway of Port Hacking which, in effect, forms the southern boundary of the Sydney urban area. Although there was some dispute between a number of the witnesses, Mr Fielder, Ms Pinfold and Mr Fletcher (in their Joint Town Planning Report) and Mr Chesterman (in his visual impact report that was tendered by the respondents) about precisely what constitutes Dolans Bay, how big it is and where we might locate the boundary of its mouth, it is not necessary for us to determine that to be able to deal with the matters requiring our attention in these proceedings. 2Similarly, although there is some difference as to the extent of the marina proposal and the existing marina (either individually or in total), an area that itself underwent a degree of revision during the course of the hearing as a consequence of two amendments that were permitted to the application, we are also satisfied that it is unnecessary to provide some determined numerical precision on this point. 3Dolans Bay hosts a marina. The marina has been there for in excess of twenty-five years. At the present time, it comprises twenty-nine wet berths and twenty-one swing moorings in the remainder of the bay (to which need to be added, for our consideration, a number of public swing mooring that are managed by New South Wales Roads and Maritime Services [NSW RMS]). There are some limited land facilities of the existing marina - comprising ten onsite parking spots, a ramp and an access inclinator and two slipways that are operated under lease to a third party. 4The slipways are operated primarily, on the evidence, by a single shipwright and an assistant/apprentice. There are also two fuelling bowsers incorporated on the seaward side of the marina, although on the evidence of Mr Standen given during the course of the proceedings, they have not been used for fuelling for a number of years. 5It is fair to say that the present state of the marina facilities could be described as "tired." 6The slipways and marina facilities also were described during the course of the initial Statements of Facts and Contentions as incorporating a fitness centre, a centre that no longer operates and whose past existence we disregard, in its entirety, for the purposes of these proceedings. 7The applicant made a major project application No10-0017 to the Minister (through the Department of Planning) to expand the present marina significantly. 8As a consequence of the scope of the expansion proposed for the marina, it fell within the then provisions of Part 3A of the Environmental Planning and Assessment Act 1979 (EPA Act) and came to be assessed by the Department of Planning and determined by the Minister - the Minister using the Planning Assessment Commission (PAC) as his delegate for this purpose. 9The matter was exhibited. A wide range of objections were made including objections by Sutherland Shire Council, one of which we note is in a letter received by the Department on the 1 March, dated 23 February that particularly objected to the proposal on the basis of: The extent to which the proposal occupies the waterway: - the size of the marina indicated monopolises a large amount of public waterway, which would restrict the ability of the community to use the waterway for various recreational purposes. 10The Department undertook an assessment and the DirectorGeneral's assessment report was eventually furnished for consideration by PAC. 11It is fair to say that at a variety of points during the course of the assessment process, including in some earlier discussions prior to the lodgement of the major project application, the Department expressed concern about the size of the proposed marina extension. Nonetheless the matter was assessed on the application as made, although there was some intermediate changes of modest dimensions made to reduce the size of the marina during that discursive process. 12PAC considered the matter and, on 20 April 2012, gave a determination. That determination is the subject of the present appeal. Under the heading "Commission's Consideration", PAC, constituted by Mr Payne and Dr Roseth, said as follows: The Commission gave serious consideration to the proponent's request; however decided against agreeing to it. In the Commission's view, a proponent should be asked for additional information only where it is likely that, should that information be satisfactory, the application will be approved. In this case, however, the Commission considers that the main reason for the refusal of the application is the scale of the proposed extension to the marina. The additional two arms proposed would have the effect of more or less filling in, visually and practically, the end section of Dolans Bay. This would result in alienating a large section of what is now public open domain. Therefore, even if matters such as water quality and water ecology could be satisfactorily resolved, the Commission would not approve a marina of the scale proposed. 13The PAC then made a formal determination and refused the application on three grounds that could be summarised as follows: