Ground 3: denial of procedural fairness
58The Applicant contends that the principal basis upon which the Commissioners refused its project application was the impact upon Cronulla Ferries in operating cruises that, as part of the cruise route, entered Dolans Bay. That impact was not identified as an issue in the proceedings. Had the impact from the Marina extension upon cruise boats entering Dolans Bay been identified as an issue, the Applicant submits that it would have addressed it by evidence.
59As a general principle, I accept that if a court contemplates deciding a case on a basis that differs from that on which the parties conduct that case, before so doing the parties must be advised by the court of that prospect so as to afford them the opportunity to address any new or changed issue (Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [78]). In the context of a merit appeal to this Court, such as the present appeal, each party is entitled to conduct its case on the basis that the statement of facts and contentions that has been filed in accordance with the Court's requirements identifies the substantive issues upon which the Court's decision will be made. If the Court proposes to consider an issue as potentially relevant to its determination that has not been so identified, procedural fairness requires that the parties be so advised and afforded an opportunity to be heard in relation to that additional issue (Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147 at [101]; Boral Cement Pty Ltd v SHCAG Pty Ltd; Minister for Planning and Infrastructure v SHCAG Pty Ltd [2013] NSWLEC 203 at [35]). Failure so to do, should the additional issue be shown to bear upon the decision ultimately made, will result in a denial of procedural fairness. Such a denial will constitute an error of law that is amenable to appeal under s 56A of the Court Act (Pet Carriers at [100]; Boral at [34]).
60The principle requiring that procedural fairness be accorded can readily be stated. Its application, particularly the identification of an issue said to fall outside that joined by the parties to proceedings and the content of the new issue to be disclosed, is not so readily articulated. As the High Court stated in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152; 231 ALR 592 at [48]:
"Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment."
61Having identified the relevant principles, it is necessary to return to the manner in which the Applicant sought to support its submission on this ground. First, the premise of its submission is, as I have indicated, that the decision to refuse the application and dismiss the appeal turned upon the "determinative issue" of impact upon the capacity of Cronulla Ferries to continue to enter Dolans Bay with its cruise boats if the Marina was extended in the manner proposed. While the balancing issue is initially identified by the Commissioners in terms set out at [77], earlier quoted by me at [47], the Applicant submits that the issue "has escalated" by [93] of the judgment where the two aspects of public use of Dolans Bay are said to be "the purely local use of the bay and ... that of the operation by the commercial ferry company."
62Ultimately, the Applicant described the issue formulated by the Commissioners on which they determined the application adversely to the Applicant as being:
"The balancing of public benefit [77] where the impact on the ferry operator (paragraphs [93] and [96]) was the more substantive issue with respect to navigation". (Written submission at [46]).
That issue was described by the Applicant as "its issue" referring to the Court. In respect of that issue it submitted (written submissions at [63]):
" ... where the Commissioners:
did not identify it as a substantive, and potentially determinative, issue with respect to navigation; and
where they did not raise the matter with the planners; and
where they did not raise the matter with the navigation experts
the Applicant has been denied procedural fairness."
63Although the Applicant seeks to state the issue as being one directed to navigation, the context of the judgment from which the synthesised issue is said to emerge does not address "navigation" in the sense identified as a separate issue in the judgment. Matters directed to the issue of "navigation" are identified at [65]. In essence, "navigation" was addressed by expert evidence directed to the capacity of vessels moving in proximity to the Marina to use what is described as the eastern channel, the western channel and the fairway between the proposed arms of the Marina. That is not the sense in which the term "navigation" is used in [96], the context, as I have earlier indicated, being one in which competing benefits are being weighed. That distinction in the use of the term "navigation" is made at [94] of the judgment. It is a distinction apparently accepted by the Applicant's counsel in submissions, as is evidenced in the following exchange (Tcpt 20/12 pp 5:41 - 6:13):
"HEMMINGS: ...Can I deal with the navigation issues. The navigation issue, as I understand it, is one that directs its attention to the use of the western arm and the potential impacts that might be imposed upon users of the private jetty, ramps and pontoons along that western arm.
SENIOR COMMISSIONER: I don't think it is so confined.
HEMMINGS: There is a separate issue that I don't categorise as the navigation issue which is and there will now be a marina in the middle of the bay and so boats that were previously able to traverse the bay cannot, and rather than a navigation issue I clump that into -
SENIOR COMMISSIONER: So you would say exhibit 21, for example, relates to let me call it traffickability [sic] as opposed to navigational safety or ability?
HEMMINGS: Is 21 the -
SENIOR COMMISSIONER: The ferry part ['path'?].
HEMMINGS: Yes, that's part of what I would call the private public debate."
64At [12] I have referred to the Minister's Statement of Facts and Contentions filed and served as part of the process in preparing for the hearing before the Commissioners. That document was tendered as an Exhibit before the Commissioners as was a Statement of Facts and Contentions filed and served on behalf of the Council. The Council adopted the contentions framed by the Minister as well as adding others of its own. As those documents indicate, the issue identified by the Minister, together with the particulars given in support of it, make abundantly clear that an issue to be determined in the proceedings was the extent to which the enlarged Marina would impact upon the use of Dolans Bay as a public waterway. That issue, in turn, necessitated consideration of all those who competed for use of that waterway. So much is acknowledged by the Applicant. Its complaint is that the issue, so articulated, did not identify, as a particular, that one use specifically so affected was that of Cronulla Ferries in the operation of its regular cruises.
65Prior to the hearing, the Minister served upon the Applicant a bundle of documents that included written submissions received as a consequence of the public exhibition of the project application. That bundle included the letter from Cronulla Ferries to which I have earlier referred. That bundle was tendered, without objection, as Exhibit 2. Also served prior to the hearing was a list of lay witnesses who were to be called to give evidence during the course of the site inspection on the first day of hearing. Among those listed was Mr David Ward who was identified in the list as associated with Cronulla Ferries.
66Mr Ward gave evidence at the Marina carpark on the first day of hearing. His evidence was to the effect earlier summarised at [14]. The legal representatives of all parties were present while that evidence was given. In the course of his evidence, Mr Ward was asked to mark on an aerial photograph the route followed by his Company's cruise vessels upon entering Dolans Bay. That document, as marked by him, was subsequently tendered without objection as Exhibit 21. No questions were asked of Mr Ward by the Applicant's legal representatives, nor was he requested then or subsequently to attend the hearing in Court for the purpose of cross-examination on his evidence. Some eight other objectors were heard at that time who not only articulated their objections but provided photographs that were subsequently tendered. A number of those photographs showed Dolans Bay with a ferry in the vicinity of the existing Marina.
67Expert town planners were called to give evidence both by the Applicant and the Council. Apart from individual reports, those town planners had prepared a joint report addressing the contentions contained in the Statement of Facts and Contentions filed on behalf of both the Minister and the Council. That joint report was tendered at the hearing and became Exhibit 13. Its authors were Ms D Pinfold, a town planner employed by the Council, and Mr L Fletcher, a consultant retained by the Applicant.
68In Exhibit 13, the planners expressed their disagreement "as to whether the proposal results in an unacceptable alienation of the public waterway for private use". In summarising her position on this issue, Ms Penfold said (Exhibit A4 tendered before me at p 1160):
"DP considers that most weight needs to be given to the impact on the public domain within Dolans Bay, given the scale of public uses that are affected. The identified uses are generally of smaller scale such as paddle powered watercraft, which benefit from the small, sheltered bay and the users of which may be more localised ... The proposal also restricts opportunities for water based sight seeing of Dolans Bay by members of the public either in private watercraft or public vessels (such as Cronulla and National Park ferries which operate 10 services a week into the northern arm of Dolans Bay), by physically and visually privatising the northern arm of bay."
69Ms Pinfold was cross-examined on behalf of the Applicant. The general thrust of her cross-examination was directed to the competing benefits between an extended marina as proposed by the Applicant, affording an opportunity for a claimed demand for further mooring facilities within Dolans Bay to be met, as against the limitation that would be imposed upon other users of that Bay by that extension. Having identified that the combination of the Marina in its present form and swing moorings in Dolan's Bay ensured a balance of public and private use because of the capacity to move between swing moorings and the Marina, Ms Penfold was asked whether there were "very limited public viewing locations" available for the Marina. She replied (Tcpt 18/12 at p 58:33):
"WITNESS PINFOLD: Yes, I do. I think that the main public viewing locations are from the waterway itself from people in boats or on the cruises that occur there and the only other area really is that Gannons Bay Reserve, but that would be fairly localised, yes."
When asked to identify which members of the public were "losing out" by reason of the proposed Marina extension, she replied (Tcpt 18/12 at p 59:1):
"WITNESS PINFOLD: The members of the public who are losing out are the people who are in their watercraft trying to use that part of the bay who also have a visual alienation from views from their watercraft and the people who would view that from the ferry and the like. There is also a very small public loss from that public viewing area, so it is not - I agree that it's not an extensive public - well there's no extensive public views from around the bay."
70The parties also engaged maritime experts to address navigational issues. Mr G Britton and Mr G Blumberg were retained by the applicant while Mr P Burge was retained by the Minister and Mr P Fielder was retained by the Council. They participated in the preparation of a joint report that became Exhibit 15. One of the topics discussed in that report was the existence of swing moorings within Dolans Bay and the capacity for vessels to navigate among boats fixed to those moorings. Relevantly, the report stated (Exhibit A4 p 1187):
"4.8 The experts discussed the navigational space occupied by vessels secured at swing moorings with Mr Fielder and Mr Burge both being of the opinion that this should focus upon the space actually occupied by the length and beam of a vessel at a particular point in time.
4.9 Mr Fielder demonstrated his opinion by producing a photograph which showed that there was currently no dedicated navigational channel leading into or out of Dolans Bay from Port Hacking and that vessels doing so were required to navigate between and around the numerous vessels secured to swing moorings.
4.10 He also produced a photograph of a fairly large charter vessel which conducted regular 'coffee cruises' from Cronulla into Dolans Bay and other bays and coves in the Port Hacking area. (Mr Blumberg later established that this vessel was the TSVM Gunnamatta, a 14.9m catamaran operated by Cronulla Ferries).
4.11 He stated that the cruise vessel certainly navigated through the moored vessels and through the space that the Project is proposed to occupy."
71Mr Britten is recorded as responding to this observation by indicating that the swept area of a vessel at any point in time should be taken as being the area of the Bay occupied by the vessel attached to a swing mooring. Mr Fielder is further recorded as indicating that the proposed extension to the Marina "would exclusively occupy waterway that is presently shared by moored vessels and active and passive maritime recreational navigation."
72In oral evidence before the Commissioner, Mr Fielder repeated what was attributed to him in Exhibit 15 when he said (Tcpt 19/12 p 57:16):
"WITNESS FIELDER: I'd be happy to go first on that. In our joint conclave review the vessel [Gunnamatta] which is a 40-50 ft catamaran pleasure boat that's, I think you have been given the photos of it in the bay and in the channel, at the moment it can safely navigate up to the end of the marina doing the river cruise turn around and come back without any impediments. With this development its movement in that area would be very restrictive."
73It must be remembered that when each of the planning experts and navigation experts gave evidence, the Commissioners had already received evidence not only from local objectors who had expressed concern about the limitation of use of Dolans Bay brought about by the extended Marina, but also from Mr Ward on behalf of Cronulla Ferries, not only indicating the extent to which cruise vessels use the Bay, but also demonstrating the route taken by the Company's vessels within that Bay by reference to Exhibit 21. Notwithstanding this evidence, the Applicant contends that the impact upon the use of the Bay by cruise vessels had not been identified by the Commissioners as a determinative issue. Added in support of that contention is what in substance is said to be a failure on the part of the Commissioners to raise the issues with each set of experts.
74The complaint seems to be that there were particular matters upon which questions were asked of witnesses by the Commissioners but the topic that is said to be decisive of the matter was not put, in terms, to those witnesses. Indeed, reference is made to the transcript where, so it is said, the Commissioners were afforded an opportunity to ask further questions but chose not to do so. In particular, reference is made to an exchange that took place between the advocates and the Commissioners at the commencement of evidence given by the navigation experts. Having identified the process of concurrent evidence to those witnesses, the Senior Commissioner posed to the advocates a question as to the topics upon which the experts were to be questioned. In so doing the Senior Commissioner indicated that he wished to deal "with the question of boat sizes in the western passage." In response to that question and statement, the transcript records the following (Tcpt 19/12 p 21:36):
"HEMMINGS: That's one of the topics I want to deal with. I want to deal with boat sizes in the western passage. I want to explore in order to properly understand exhibit 25 and to the extent there's general navigation matters concerned with those two issues, to address those.
SENIOR COMMISSIONER: I think we will also be wishing to address Exhibit 21, the ferry transit markings ... ".
75After lengthy cross-examination of the experts, the Senior Commissioner enquired of counsel appearing before him as to whether their examination was complete. In response to that question, the transcript records that the Commissioner was asked by counsel either for the Applicant or the Minister (there is disagreement as to who it was) whether the Commissioners "had a question about a ferry." The transcript does not record any response to that question and the evidence that then continued did not directly address it. However, the tender of the joint reports and the oral evidence of Mr Fielder to which I have already referred, had preceded that question. After further evidence from the navigation experts, the Senior Commissioner then enquired as to whether there was "anything further about anything?" (Tcpt 19/12 p 74:4), to which counsel for the Council responded, "not unless you have a question about ferries". No further question was then posed to the navigation experts and they were excused.
76The Applicant contends that at the conclusion of the evidence, it reasonably anticipated (written submissions at [49]):
"(1) an issue (not being a Contention in the proceedings) had been raised by objectors;
(2) that issue ultimately transformed into the Commissioner's issue ... ;
(3) that was not a concern shared by the planners, nor one which the Court needed the planners to address; and
(4) that was not a concern shared by the navigation experts, nor one which the Court needed the navigation experts to address."
Had it not been of that understanding, the Applicant says that it would have dealt with the evidence differently.
77First, it would have identified what could only have been a minimal impact upon Cronulla Ferries or its cruises as its cruise operations were identified as operating on Port Hacking, a waterway having an area of about 11km² whereas Dolans Bay had an area of about 12.4ha and the Marina extension would only impede navigation "deep" into that Bay as a component of the overall cruise. Further, there was evidence available that could have been led to address "the Court's issue" had it been identified to the Applicant.
78I do not accept the Applicant's submission directed to "the Court's issue" at the conclusion of the evidence. The Statement of Facts and Contentions served by the Minister and the Council had identified the issue of alienating the waterway of Dolans Bay by the proposed extension of the Marina. The Applicant had acknowledged by the manner in which it prepared its evidence and ran its case that the issue so identified raised a question of competing public interests in the use of that waterway. The terms in which the evidence had been prepared, particularly the expert evidence, had identified the issue by reference to those competing interests.
79Further, the bundle of objections made available to the Applicant prior to the hearing had clearly identified the perceived competing interests in the use of the Dolans Bay waterway. Importantly, the applicant had available to it not only the written submission prepared by Cronulla Ferries but was made aware of the evidence to be led from and on behalf of that Company at the hearing before the Commissioners. That evidence was clearly perceived by the expert town planning evidence and the expert navigational evidence as a reflection of the manner in which the use of part of Dolans Bay would be alienated by the Marina extension. In the case of the experts, the thrust of the evidence was directed to the qualitative impact that the extended Marina would have. The fact that the Applicant's expert witnesses did not accept the impact for which the other witnesses contended or even that Ms Pinfold may not have considered the impact to be "major' is irrelevant to the present issue. For this same reason, it is incorrect for the Applicant to assert that the limitation on cruise boats to enter Dolans Bay was not "a concern shared" by either the planners or the navigation experts. As my recitation of the evidence reveals, both Ms Pinfold and Mr Fielder had addressed the "alienation" issue by making reference to the impact on cruise ferries entering Dolans Bay.
80The parties in the present case were required to proceed to the hearing "knowing (or being deemed to know)" that the Commissioners were not bound to reach the same conclusion as any particular witness giving evidence before them on an issue of the present kind (187 Kent Pty Ltd v Council of the City of Sydney [2007] NSWLEC 382 at [21]). Particularly is this the case as expert evidence was not required to compare the plan of the proposed Marina extension with Exhibit 21 in order to conclude that the extension would impede the present path of ferry travel. Having had the benefit of a detailed site inspection and heard the lay evidence, the Commissioners were able, without the need for expert evidence, to make both a quantitative and a qualitative assessment of that impact.
81Furthermore, I am not persuaded that the Applicant is assisted in supporting its present submission by reference to the absence of questions to the experts by the Commissioners when, so it is said, they had an opportunity so to do. The Commissioners clearly knew of the issue as framed by the Minister and the Council and of the manner in which it was being addressed both in the written and oral evidence. They were entitled to assess the expert evidence in the context of the issue to which it was directed. As the High Court said in SZBEL, the Commissioners were not obliged to provide "a running commentary" on what they thought of the evidence as it evolved.
82Mr Standen, the manager of the Applicant, was called to give evidence on the third day of hearing. His evidence was given after the written submissions by way of objection had been tendered, the evidence of Mr Ward had been given on the first day of hearing and Exhibit 21 tendered. Mr Standen did not give any evidence responding to the material contained in the written objection from Cronulla Ferries, the evidence of Mr Ward or Exhibit 21. No doubt the absence of that evidence was a consequence of a forensic decision made on behalf of the Applicant.
83In further support of its submission, the Applicant also points to the "manner in which" the evidence said to be relied upon by the Commissioners, came before the Court. The submission continues (written submissions at [57]):
"There was a letter of objection, and unsworn evidence taken on site from an employee of an objector. Clearly, that unsworn evidence was not able to be satisfactorily tested standing in the proponent's carpark."
84The practice of this Court in hearing evidence from lay witnesses onsite is a practice that has been followed in the determination of almost all merit appeals for many years. Although those giving evidence onsite are not sworn, the evidence has always been treated as if given in court and intending witnesses are usually so advised. As in the present case, witnesses in that category are almost always called by the consent authority. Representatives of any other party present onsite are entitled to question each witness whose evidence is given. Assuming both counsel and solicitors for the parties to be present, each solicitor notes the evidence given by each witness, compares those notes with those taken by his or her counterpart and upon agreement being reached between them, the summary of evidence is later tendered in the course of the hearing. That is what occurred in the present case.
85If the content of the evidence so given or the circumstances in which it is given warrants further consideration, that witness can be requested to give or continue his or her evidence when the formal hearing resumes in court. A request that this should occur is usually accommodated. It is accepted by the Applicant that no such request was made in the present case in respect of any of the evidence given onsite. The Applicant also accepts that it did not seek to question Mr Ward at the onsite hearing.
86Contrary to its submission, I am satisfied that at the conclusion of the evidence the Applicant ought reasonably to have appreciated that the issue of competing public benefits was raised by the contention that the Marina extension would have the consequence of "alienating" or further "alienating" the use of Dolans Bay as part of the public domain. The evidence sufficiently disclosed that an aspect of the public benefit potentially weighing against further alienation of the head of the Bay was the effect that the extension would have in limiting the capacity of cruise ferries to enter that Bay.
87In light of the Applicant's submissions, it is necessary to return to the terms of the judgment. While the effect upon cruise ferries is clearly identified in the judgment, a fair reading does not demonstrate that the impact on cruise ferry passengers was an impact that solely informed the decision to refuse the application.
88As I have earlier recorded, at [93] the Commissioners identified two aspects of the "public benefit" issue being local use and operation of the commercial ferry company. At [94] the Commissioners said:
"94 One of the resident's submissions says, amongst other things, on the topic of navigation issues - navigation issues being raised in a much broader sense than that dealt with by the navigation experts - was in the following extract taken from p 46 of the resident objector bundle under the heading, Navigational Routes.
Dolans Bay is a small bay that is occupied by a relatively large number of swing moorings and their attendant vessels. In theory these vessels might create navigational impediments. In reality, because of wind and tide vessels tend to align themselves such that there are numerous navigational channels that allow easy ingress and egress.
This is not the case with the fixed structure being proposed. It would create an impenetrable barrier for much of the western side of the bay. Boats trapped on the western shore (such as those of residents) would be forced to travel a lengthy and narrow route along the shore.
Many private boat owners and users are imperfect boat-handlers, the restricted route that they would be forced to take constitutes a significant hazard, particularly as a marina-generated traffic will be considerably increased."
89The Applicant places reliance upon the terms in which [96] of the judgment commences. The first sentence of that paragraph needs to be noticed. It says:
"The more substantive issue, with respect to navigation of the bay, was raised on behalf of the Cronulla and National Park Ferry Cruises."
Reference is then made in the two succeeding paragraphs of the judgment to the evidence of Cronulla Ferries both in the written objection, the evidence of Mr Ward and Exhibit 21.
90The discussion in those paragraphs is not directed to an assessment of the impact upon the ferry operator. Rather, it is directed to the impact upon the number of passengers or patrons carried on the services provided by that operator. The limitation upon the "trafficable" area of Dolans Bay by ferries is identified as potentially affecting a greater number of members of the public in their enjoyment of the waterway than the number of people whose use falls under the description of "purely local use", notwithstanding the relevance of impact upon the latter. That understanding of the judgment is made apparent by reading together [99] and [100], the terms in which the latter paragraph is expressed having been earlier quoted by me.
91The Applicant's counsel was first to address the Court. Prior to his address commencing, the Senior Commissioner identified "topics" that need not be addressed in chief but could be left to reply. The Senior Commissioner then continued (Tcpt 20/12 p 4:21):
"You should pay attention to whether or not you say standing in the shoes of a Minister we should disregard or give little attention to the SEPP, the LEP or the Port Hacking plan and then particularly the question of if you like the public benefit, private benefit, public navigation, private navigation conflict issues."
92I have quoted at [62] an exchange that took place early in the Applicant's submissions between its counsel and the Senior Commissioner. In that exchange the Senior Commissioner expressly adverted to Exhibit 21 depicting the present path of travel of ferries within Dolans Bay. After the Applicant's counsel had identified that Exhibit as part of what he called "the private public debate", the following was said (Tcpt 20/12 p 6:12):
"SENIOR COMMISSIONER: That's fine, I just didn't want you letting that go past as it were. Wherever you deal with it, it needs to be dealt with.
HEMMINGS: I do attempt deliberately to separate them because they fall into as I would understand it different categories for the purposes of the Court's consideration. One is dealing with the potential alienation of the waterways and then competition between different potential users of the waterways, the other is in fact as a consequence of this conflict is there a different limitation which is a limitation strictly caused by navigation issues, and as I would understand the contentions, the joint reports and most recently the evidence given yesterday, to the extent there is a navigation issue it's one which directs its attention to this western arm."
93Further reference either to the ferry service or to Exhibit 21 is made in the course of the Applicant's submissions to the Commissioners. Those submissions, in terms, recognise that there is an issue as to competition "between the different potential uses [sic] of the waterway who want to use it either because they need to or have the desire to ... there is without doubt a balance that the Court is being asked to carry out between favouring one of the potential users and there [sic] desire/need over others" (Tcpt 20/12 p 13:12-16). Later, in the context of the competition identified by the Applicant, the submission continues (Tcpt 20/12 p 14:47):
"HEMMINGS: ... The Court will look at it to say, however, in my alienation balancing exercise at the moment there is a private ferry company who may provide services to members of the public who have a desire to pass over the waters of Port Hacking and in particular Dolans Bay and there was a competition now between those two but it's not one that's informed by a permissible use debate, it's one that's informed by that competition.
SENIOR COMMISSIONER: And each of them, at least as I understand the broad proposition you're putting to us, that is, the applicant in these proceedings and the ferry operator are seeking to further their private interests which you accept are private interests but in the doing so they provide potentially conflicting public benefits, that is, the benefit of being able to berth your boat compared to the benefit of being able to travel on a regular ferry operation that follows the route shown on exhibit 21?
HEMMINGS: The short answer to that is, yes, but I can give a more detailed answer ... ."
94Finally in the course of submissions in chief, the Applicant's counsel returned to address what was referred to as the "actual balancing exercise that the Court needs to carry out" for the competition among users of the waterway (Tcpt 20/12 p 21:32). Impact is then addressed with specific mention being made of "the ferry boat users" followed by a submission that the impact would be minimal, if any, because those ferry boat users have the entirety of Port Hacking to enjoy, with Dolans Bay forming only a "minute proportion of that part of the users' ability to enjoy the waters of Port Hacking" (Tcpt 20/12 p 22:1).
95The evidence, the submissions and observations from the bench, as exemplified in the transcript references I have made, make two points clear. First, that the Court was considering the question as to whether there was a public benefit in permitting the alienation of the waterway that would occur should the Marina extension be approved which outweighed any detriment that might arise as a consequence of any approval that was given. Second, the Senior Commissioner clearly identified as being relevant to that question the impact of the proposed extension on the public benefit afforded to passengers or patrons using the ferry operator's vessels. The transcript references also make clear that the issues having been defined in that way, were addressed by the Applicant's counsel.
96However, the issue was not left for exchange between the bench and those representing the Applicant. In the course of his final submissions, counsel for the Minister made reference to the written submission from Cronulla Ferries and Exhibit 21 in the following terms (Tcpt 20/12 p 29:9):
"One of the other matters that Dr Lam [sic] and Mr Fletcher thought it was important to note was there were no public ferry routes that passed the marina. But you've got the evidence in the bundle, which is the last document from the Cronulla Ferries that says - and Mr Ward gave the evidence - there's many regular ferry trips into Dolans Bay, which travel up to the existing marina and you've got exhibit 21 that shows you the ferry route. And that exhibit, which is at tab 27, exhibit 2 indicates at least 1500 passengers in November to December alone were on ferries that went into Dolans Bay."
That reference was part of the submission made on behalf of the Minister that the impact from the proposed Marina extension was unacceptable. The impact upon ferry users is repeated at Tcpt 20/12 p 31:34 and p 33:36. In his submissions in reply, counsel for the Applicant sought to respond to the submissions that had been made on behalf of the Minister directed to the ferries that entered Dolans Bay. In directing submissions to the ferry service, reference was made to the evidence of Mr Ward both by the Applicant's counsel and by the Senior Commissioner.
97Quite apart from the position that pertained at the conclusion of the evidence, there can be no doubt that by the conclusion of final submissions, a significant issue in the case was the potential alienation of part of the public waterway. It is also clear that one of the identified impacts of alienation was impact upon ferry users. Relevantly, observations from the bench during the course of submissions made apparent that both the issue and all the identified impacts directed to that issue, including the impact upon ferry users were matters that were considered to be important to the Commissioners in considering the manner in which the proceedings should be determined.
98Contrary to the position taken by the Applicant, an objective assessment of observations from the bench demonstrated that it was not a navigation issue that was of concern; rather it was a trafficable issue within Dolans Bay, as was made clear by the Senior Commissioner to the Applicant in the course of submissions. As I have earlier observed, expert evidence was not required to demonstrate that vessels presently entering Dolans Bay, including ferries, would be prevented from traversing the waterway area to be occupied by the proposed Marina extension.
99The Applicant was not denied the opportunity to address the competing public benefit issue, properly described, upon which the decision of the Commissioners ultimately turned. For reasons earlier given, that issue is not accurately described at [46] of the Applicant's outline of submissions.
100I reject the Applicant's third ground of appeal.