Harbour Port Constructions Pty Limited v Sutherland Shire Council

CASES CITED: Thorncraft & Anor v Bathurst Regional Council [2005] NSWLEC 571; Goldin v Minister for Transport (2002) 121 LGERA 101

APPLICANT: Mr T G Howard, barrister, instructed by Mr S M Freidman, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Harris Freidman Hyde Page, Lawyers RESPONDENT: Mr J A Cole, solicitor SOLICITORS: Abbott Tout

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11085 of 2005 - Harbour Port Constructions Pty Limited v Sutherland Shire Council

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Sutherland Shire Council, (the council) to refuse a development application to erect two fender piles on the seaward face each side of an existing pontoon below the Mean High Water Mark, (MHWM), within the waterway of Port Hacking on Crown land adjacent to Lot 1, DP 556405, being No 86 Parthenia Street, Dolans Bay. The Department of Lands has given owner's consent to the lodging of the development application. 2 I visited the land in company with the parties on the morning of the hearing and heard from the owner Mr Talbot, who is a game fisherman with a 37-foot 'Riviera' power boat displacing around 10 to 12 tonnes depending on fuel and water loads. 3 I have concluded that the natural and manmade balance of the waterfront would be better served if the fender piles were not permitted. The land 4 The land in Dolans Bay where the proposed fender piles would be situated is on the eastern side of Parthenia Street between Wentworth and Wistaria Streets. Existing waterfront structures at this property include a jetty, ramp and pontoon, a boatshed, a concrete deck, steps, stonewall and a boatshed with sliprails. Relevant planning controls Sutherland Shire Local Environmental Plan 2000, (SSLEP) 5 Under the provisions of the SSLEP the land is zoned 7(a) Environmental Protection (Waterways) and the proposal as a 'watercraft facility' is permissible with consent. The land is also within a foreshore protection area, (FSPA). 6 The relevant objectives of the SSLEP are, [Note: Exhibit 2, Tab 10, p 4]: (a) … (b) a sustainable Sutherland Shire through the efficient and equitable management of land uses; (c) … (d) … (e) … (f) an environmentally appropriate balance of development that is ecologically sustainable, socially equitable, and economically viable and leads to a more sustainable outcome of Sutherland Shire; (g) … (h) … (i) to protect environmentally sensitive areas; (j) … (k) … 7 The objectives of the 7(a) zone under the SSLEP are, [Note: Exhibit 2, Tab 10, p 70]:: (a) To recognise the importance of the waterways of Sutherland Shire, as an environmental and recreational asset for residents of the area and the Sydney region. (b) To ensure development does not adversely affect the ecology, scenic value or navigability of the waterways. (c) To ensure aquatic environments are not adversely affected by the recreational use of the waterways. (d) Development that requires development consent includes development for the purpose of watercraft facilities.

8 'Watercraft facility' under the SSLEP means '…a pontoon, suspended ramp or walkway, jetty, mooring, wharf, slipway, watercraft landing and launching facility or the like, but does not include a marina'. 9 Under cl 19 of the SSLEP, the purpose of the Foreshore Scenic Protection Area, (FSPA) is explained:

1. The objective of the foreshore scenic protection area is to limit the scale of development and protect the landscape and visual character of foreshore areas of Sutherland Shire.
2. A foreshore scenic protection area is shown on the maps by hatching. It applies to land within a number of zones next to Bate Bay, Port Hacking, the Georges River and Woronora River.
3. Buildings in a foreshore scenic protection area are required by the development control tables to have more landscaped area than buildings outside the area. 10 Under cl 20 of the SSLEP the foreshore building line is described. Development Control Plan for Waterfront Development, (DCPWD) 11 On 21 October 2002, the council adopted DCPWD and it came into effect on 12 November 2002. 12 The purpose of the DCPWD is set out in cl 2. … is to provide a series of standards and objectives that are intended to guide the form of development in the waterfront areas of the Shire. The Shire's waterways and foreshore areas have both local and regional significance as they represent a valuable estuarine environment that provides the community with opportunities for passive and active recreation. The maintenance of the natural beauty of the waterways and the foreshores is important to the scenic quality of the Shire. Consequently, the development of these areas by individuals for private purposes carries with it a responsibility to ensure that the visual and environmental quality of these foreshore areas is maintained. This plan seeks to allow development that is in harmony with the natural surrounding, which minimises the impact on the natural environment and acknowledges the importance of the waterways as natural public resource. 13 The objectives of the DCPWD are found in cl 3: …are to: (a) … (b) minimise the visual impact of development when viewed from adjacent land and waterways; (c) blend developments into the foreshore and waterfront environment by using designs and materials which complement the natural landscape; (d) minimise the disruption to the shoreline; (e) retain and enhance endemic native vegetation along the foreshore and ensure that development does not adversely affect any estuarine flora or fauna habita; (f) maintain and improve public access of the intertidal area of the waterfront, which is public land; (g) achieve an appropriate balance between private development and the alienation of waterways, which is a public resource, from public use; (h) phase out non-conforming structures and restore the foreshore and waterfront area to a natural state; (i) … (j) minimise the obstruction of water views; (k) ensure that any development does not obstruct or interfere with navigation within the waterway; (l) … 14 Clause 10 elaborates on the type of development, which may be allowed below Mean High Water Mark (MHWM). Pursuant to SSLEP 2000 'watercraft facilities' are a permissible form of development within the 7(a) Environmental Protection zone below M.H.W.M. Watercraft facility means a pontoon, suspended ramp or walkway, jetty, mooring, wharf, slipway, watercraft landing and launching facility or the like, but does not include a marina. Shared and communal arrangements for structures will be encouraged, where appropriate, in order to minimise the number of structures and their cumulative impact. Any development below M.H.W.M should be setback a minimum 2.5m from the prolongation of the common lot boundary unless there is explicit provision for shared use of the facility by neighbouring properties. Generally, any waterfront development that causes or has the potential to cause damage (includes shading) to marine vegetation, macro-algae, sea grass or mangroves will not be approved. 15 Clause 10.1 Jetties, Ramps and Pontoons of the DCPWD outlines the specific controls that apply to particular types of development. Jetty, ramp and pontoon structures are designed to facilitate access to private recreational vessels where a reasonable depth of water is available. The structures are intended only to be used for short stay embarking and disembarking of passengers and the transfer of personal goods. The following controls apply to jetties, ramps and pontoons: (a) A fixed jetty is not to exceed a length of 9 m from M.H.W.M and any existing reclamations are included in the 9 m. The jetty may have a maximum width of 2 m and a maximum height of 750 mm above M.H.W.M (1.29m AHD). (b) A ramp is not to exceed a length of 6m. (c) A ramp and pontoon extension to a jetty may be permitted provided that the total length of the ramp and jetty does not exceed 15 m from M.H.W.M. (d) In all cases, the length of the structure is to be only the minimum needed to reach usable water which is 600 mm depth at 00 low tide (-1.53m AHD). (e) Pontoons are to be a maximum of 3.6m x 2.4m constructed to the appropriate standard and used as a facility to provide access to the water. (f) Stabilisation and fender piles are used for reinforcing pontoons and facilitating access in areas exposed to high tidal run outs, strong currents and large wind waves. If proposed, stabilisation piles must be an integral part of the pontoon (not free standing). Applications for stabilisation or fender piles must be supported by a report from a civil engineer demonstrating their need. (g) … (h) … Draft Sutherland Shire Local Environmental Plan 2004, (DSSLEP) 16 The DSSLEP zones the waterway as Environmental Protection (Waterway) and applies to the whole of the Shire (except for the Kurnell Peninsula) and was originally exhibited from 18 February to 3 May 2003 as Draft Sutherland Shire Local Environmental Plan 2003. 17 The council considered submissions received during the exhibition period in September 2003 and, following amendments to the draft instrument, a s.65 Certificate was issued by the Department of Infrastructure, Planning and Natural Resources (now the Department of Planning) to re-exhibit the Draft LEP. It was again exhibited, this time as Draft Sutherland Shire Local Environmental Plan 2004, from 1 December 2003 to 18 January 2004. 18 The council adopted the DSSLEP, with amendments, on 15 March 2004 and a report in accordance with s 68(4) of the EP&A Act was forwarded to the Department of Planning on 24 March 2004 for consideration and gazettal. 19 On 4 June 2004 the Department wrote to the council expressing 6 areas of immediate concern with the draft plan and requested Council to reconsider these specific aspects. 20 On 6 September 2004 the council resolved to carry out a limited review of the draft Plan. This review has taken place and has addressed the issues raised by Department and a number of other specific issues identified by the council. 21 At the council meeting held on Monday 11 April 2005 it was decided to make further amendments to the Draft Plan Local Environmental Plan and forward it to relevant public authorities for consultation pursuant to s 62 of the Environmental Planning and Assessment Act 1979. It was also decided that the Department of should be requested to issue a s 65 certificate to enable further public exhibition of the Draft Plan. 22 Under the provisions of the DSSLEP 'watercraft facilities' are permissible with consent and the controls applying to Jettys, Ramps and Pontoons currently embodied in the Development Control Plan for Waterfront Development Cl 10.1 are reiterated in the DSSLEP. The proposal and its history 23 Development application No 04/1134 was lodged with the respondent council on 2 August 2004 to erect '…two fender piles adjacent to an existing pontoon below the MHWM fronting a residential property'. 24 The proposal is described in plans prepared by Harbour Port Constructions Pty Limited and No DWG 01 and DWG 02, dated January 2004. The statement of environmental effects by Harbour Port Constructions sets out full details of the development application. 25 During the course of the hearing it became clear that the around 400mm in diameter, white painted fender piles, would stand around 3.5m above the level of the top of the pontoon at low tide and 1.5m above the top of the pontoon at high tide. The piles would be positioned 100mm forward (waterside) of the edge of the pontoon at high tide and 400mm forward of the edge of the pontoon at low tide. The centre of the piles would be positioned 600mm off the sides of the pontoon and thus around 4m apart. A vertical rubber buffer would be attached to each pile. 26 Mr Talbot has an occupation licence in Dolans Bay near the pontoon ramp and jetty for the permanent mooring of his 37-foot vessel. For around 5 years Mr Talbot has been using the swing mooring and pontoon to access either his present boat or a former 35-foot boat by the name of 'Bandit'. 27 Development above the MHWM in the vicinity comprises detached dwellings and ancillary structures. Below the MHWM and in the vicinity of the subject site most properties have waterway access structures. Foreshore structures characterise the location. Pontoons without fender piles are found nearby and there is a private marina to the north of the subject land. 28 The owner indicated that he would use the pontoon and fender piles for embarking and disembarking and for maintenance. On occasions when the pontoon was used for maintenance it was expected that it might be alongside for a full day to allow for the oil to be changed, filters renewed, engine anodes replaced and boat cleaned and polished. He agreed that the boat was sometimes brought alongside the pontoon for a day or two over the weekend. He said that he could moor the boat on the swing mooring in the bay but there are difficulties with this in bad weather. He also conceded that coming alongside the pontoon in bad weather was also fraught with difficulties. Subsequently the owner agreed to a condition prohibiting permanent berthing. Notification 29 On 31 August 2004, the application was notified to nearby owners and occupants under cl 12 of the SSLEP and under the council's notification of development applications DCP and the council received no objections. 30 On 13 October 2004 the council received advice from Dept of Infrastructure, Planning and Natural Resources, (now the Department of Planning) that the proposal is not supported. The Department explained that it is opposed to a proliferation of waterfront structures and was concerned about the environmental impact of fender piles in Dolans Bay. [Note: Exhibit 3, Tab 5]. The Department expressed surprise that the Department of Lands had granted owner's consent given the presence of Posidonia seagrasses. 31 The Department of Fisheries raised no objection to the proposal to erect two fender piles, provided that a vessel was not permanently moored at the pontoon as the shade of the moored vessel might harm marine vegetation. The council's decision 32 By notice dated 20 June 2005 the council refused the application for three reasons that are reflected in the issues. The hearing 33 The appeal was filed on 19 September 2005. 34 At the hearing the court received evidence on behalf of the respondent council from: · Mr M Adamson, town planner of the council; · Ms F Thomson, Maritime Services, and · Dr D E Roberts, marine ecologist. 35 On behalf of the applicant evidence was given by: · Mr P Talbot, owner; · Mrs Pam Talbot, owner; · Mr C Turner, applicant's representative and marine contractor; · Mr L M Fletcher, consultant town planner; and · Dr M Lincoln-Smith, marine ecologist. 36 Mr A Patterson was the Court-appointed consulting engineer. 37 Mr Adamson, town planner Sutherland Shire Council, prepared the statement of basic facts. The issues 38 On 9 December 2005 the council filed a statement of issues.
4. The need for stabilisation/fender piles has not been sufficiently established in accordance with clause 10.1(f) of the Waterfront Development DCP (DCPWD).
5. The stabilisation/fender piles will adversely affect the scenic value of the waterway, having regard to: a) Objective (b) of the 7(a) Environmental Protection (Waterways) zone. b) Objective (b), (e) and (i) of clause 2 of SSLEP 2000. c) The purpose of the DCPWD contained in clause 2. d) Objectives (b), (c), (d), (e), (g), (h), (j) and (k) of clause 3 of the DCPWD.
6. Whether the proposed fender piles are consistent with the waterfront character of the location.
7. Whether the provision of fender piles will result in an undesirable precedent in the location, having regard to the number of existing and potential future similar developments in this section of the foreshore/waterway.
8. Whether the proposal will adversely effect [sic] existing or potential sea grass in the immediate vicinity. This is particularly a concern with the likely long term berthing of the applicant's vessel at the proposed facility.
9. The proposal does not provide the information required in clauses 8(b), (c) and (d) of the Waterfront DCP.
10. Whether the provision of fender piles will provided [sic] for permanent berthing of the applicant's vessel. This is in contrary to clause 10.3 of WDCP. Permanent berthing has adverse visual impact on the waterway/waterfront. There are no private berthing areas in the bay other than the marina. Council has previously opposed private berthing areas in Dolans Bay.
11. The proposal is contrary to the following aims of SEPP 71 having regard to cl 8(a) of SEPP 71: Particulars 8.1 Clause 2(a): the proposal does not have regard to the aim of protecting and managing the natural attributes of the NSW coast. 8.2 Clause 2(e): the proposal will adversely affect the visual amenity of the waterway. Regard must also be had to the undesirable precedent that approval of the proposal will set. 8.3 Clause 2(k): the proposed fender piles are inappropriate for the location and will adversely affect, rather than protect and improve, the natural scenic quality of the surrounding area. 8.4 Clause 2(l): the proposal is inconsistent with the Council's long term and consistently applied policy, which does not favour fender piles/berthing areas. Also see 7 above.
12. The proposal is also contrary to the following provisions of SEPP 71: 9.1 Clause 8(d): the proposed fender piles are unsuitable having regard to the adverse visual impact upon the waterway. 9.2 Clause 8(e): the proposal will have a detrimental impact on the amenity of the coastal foreshore, particularly with respect to visual impact. 9.3 Clause 8(f): the proposal will reduce the scenic qualities of the waterway, rather than protecting and improving these qualities. 9.4 Clause 8(p): The proposal will set an undesirable precedent and lead to cumulative impacts in the locality.
13. Any matters raised by the Director -General having regard to Part 3 of SEPP 71 - Significant Coastal Development. These matters are unknown at this stage. 39 The following emerged as the salient issues: · Clause 10.1(f) civil engineering justification. · Whether the proposal would adversely impact on the scenic value and character of the waterfront. · Precedent. · Health and vigour of Posidonia. The evidence and findings Clause 10.1(f) civil engineering justification 40 Mr Howard submitted that the applicant was content to rely on the civil engineering justification of Mr Patterson in Exhibit 4. Although there are some faint words of support for the structural necessity of fender piles in this report, these are few, qualified and seem to be predicated on activities other than embarking or disembarking. 41 I am satisfied that the existing jetty, ramp and pontoon is sufficient to provide for 'short stay embarking and disembarking of passengers and the transfer of personal goods'. The report of Mr Patterson makes it clear that the subject site is not in an area exposed to high tidal run outs, strong currents and large wind waves, and as such he cannot as a civil engineer demonstrate their need. 42 In support of my finding I refer to the statements of Mr Patterson that: "There is no basis to support the contention that the fender piles will aid in the resistance of the pontoon to wave loads" as the piles are not connected to the pontoon, [Note: Exhibit 4, p 3] "…if the pontoon is only to be used for the setting down and picking up of passengers" , substantial built up of storm winds could be avoided "…with plenty of warning, sufficient to move a vulnerable vessel off the pontoon berth to its normal mooring" , [Note: Exhibit 4, p 3]. " There is no documentation regarding the capacity of the pontoon to resist horizontal [berthing and mooring] loads, and no details of the member sizes and connection sizes (bolt diameters, hinge sizes). However, on telephone enquiry to Mr Turner it was learnt that the connections between the jetty and ramp, and ramp and pontoon are designed with 24mm diameter steel hinge pins. In the case of narrow ramps (1.5 metres wide), there are two hinges top and bottom. With a 1.8 metre wide ramp, which has three timber bearers, there are three pairs of hinge brackets. This arrangement permits vessel impacts up to a certain magnitude to be resisted by the pontoon alone. In the event of large vessel impacts or environmental loads on vessels, eg large vessel berthing under adverse weather conditions, such a system may have insufficient capacity, and the use of fender piles would be required. The …site in Dolans Bay is well protected, with quite short fetches and high surrounding ground. There are several pontoons of similar design and construction adjacent… It was noted that none of these had fender piles, so that it can be assumed that in terms of surviving the design storms, the pontoons themselves are adequate. Furthermore, it was noted that at Dolans Bay, a 10 metre long motor cruiser appeared to be permanently moored at a similar pontoon, without mooring piles. (I surmise that it was permanently moored because the vessel was closed up and unattended at the time of my inspection)", [Note: Exhibit 4, p 4]. "…the actual structural need for the pontoon fender piles is not clearly established", [Note: Exhibit 4, p 7]. "The pontoons are able to permit vessels up to about 10 metres to 12 metres to approach and berth at the pontoons in good weather, for the purpose of setting down and picking up passengers. This assumes attended vessels and short stays (ie vessels would not be subjected to storm conditions while at the pontoon," [Note: Exhibit 4, p 7]. 43 I am satisfied that as Mr Talbot's 37-foot 'Riviera' power boat would come within the range of 10m (33-foot) or 12m (39-foot) and would not be permanently moored, there is no civil-engineer-demonstrated-need for the fender piles at Dolans Bay. I am satisfied the need for the fender piles has not been justified sufficiently established in accordance with cl 10.1(f) of the DCPWD. Scenic value and character of the waterfront 44 The council suggests that the proposed fender piles would adversely affect the scenic value of the waterway, under objective (b) of the 7(a) Environmental Protection (Waterways) zone, and under objectives (b), (e) and (i) of cl 2 of SSLEP, and objectives (b) and (g) of cl 3 of the DCPWD. Mr Adamson supports the council's contention. 45 Mr Fletcher stated the proposal would not be "inconsistent or antipathetic to the objectives or provisions of these documents." He added, [Note: Exhibit C, pp 3-4]: Obviously, the fender piles will be visible from the water and, to varying degrees from adjoining properties. However, watercraft facilities are common on waterfront properties and therefore, in my opinion, although visible are not necessarily visually intrusive. However, in my view people are not offended by the presence of watercraft facilities on or adjacent to the waterway and indeed it is an expected part of the suburban waterfront environment. In this context, providing there is a demonstrated need for them, the addition of two fender piles at the edge of the existing pontoon, ramp and jetty would, in my view, not constitute an unacceptable visual intrusion… 46 Contrary to the evidence of Mr Fletcher, I am satisfied that the scenic value would be adversely affected if the fender piles were erected. This is because each would stand around 3.5m above the level of the pontoon at low tide and 1.5m above at high tide and would be around 4m apart. At the top the piles would be around 400mm in diameter and painted white and would add to the visual clutter in Dolans Bay. Also, I am not convinced that there is a demonstrated need for the piles, which was one of the provisos of Mr Fletcher. The corollary of that is if there is no need, they should not be approved. The applicant might want the piles to provide for convenient use of his vessel but that is not the test set under the DCPWD, which is more specific. The DCPWD seeks to limit the proliferation of fender piles. 47 The existing pontoon is a low, horizontal element in the waterway and less visually intrusive than a pontoon with flanking fender piles. 48 I am satisfied that by limiting these privately owned fender piles the council would tend to achieve its objectives of: · a sustainable Sutherland Shire and efficiently and equitably manage waterfront resources. · an environmentally appropriate balance of development that is ecologically sustainable, socially equitable, and economically viable and leads to a more sustainable outcome for Sutherland Shire. · protection of environmentally sensitive areas. · development that does not adversely affect the scenic value of the waterways. · minimisation of the visual impact of development when viewed from adjacent land and waterways; · an appropriate balance between private development and the alienation of waterways, which is a public resource, from public use. 49 Under the requirements of the DCPWD, the council seeks to minimise the visual impact of development when viewed from adjacent land and waterways; blend developments into the foreshore and waterfront environment by using designs and materials, which complement the natural landscape. With fender piles this is not possible, as they are required by Maritime to be painted white for safety and navigational reasons. This makes them stand out and as a result the fender piles become to some a visual disruption to the shoreline. 50 On merit I consider the modification application fails for this reason. Precedent 51 I am also satisfied having regard to existing and potential future developments of a similar kind in this section of the foreshore and waterway that were fender piles to proliferate in Dolans Bay, an undesirable precedent would result. 52 As was noted with approval by his Honour Lloyd J in Thorncraft & Anor v Bathurst Regional Council [2005] NSWLEC 571, and as stated in Goldin v Minister for Transport (2002) 121 LGERA 101 if a development application is objectionable and there is sufficient probability that further applications of a like-kind, are likely, the precedential effect should be taken into consideration. 53 Just as the applicant seeks to justify the present proposal by reference to others nearby and also by virtue of the presence of the private marina so too would other applicants be likely to refer to the present application were it approved. Health and vigour of Posidonia 54 The ecologists were in agreement there was no Posidonia australis seagrass likely to be directly impacted upon by the driving of the proposed fender piles. They were also agreed that the silt thrown up by the drilling process could be successfully controlled. Both ecologists were particularly concerned that if the applicant's vessel were permanently berthed at the proposed watercraft facility in the long-term the shade cast over the seagrass would have an adverse impact. Thus if there were no long-term berthing permitted at the pontoon, the parties were agreed that the proposal would not adversely affect existing or potential sea grass in the immediate vicinity. I accept that position of the parties. Permanent berthing 55 During the course of the hearing the applicant agreed to be bound by a condition ensuring that there would be no permanent berthing of the applicant's vessel. This would be consistent with cl 10.3 of DCPWD. The council maintained that permanent berthing of vessels would have adverse visual impact on the waterway/waterfront and that the council has previously opposed private berthing areas in Dolans Bay. I note there are no private waterfront berthing areas in Dolans Bay other than at the private marina. 56 For the above reasons, the appeal is dismissed.

Orders 57 My orders are:

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.

2. Development application No 04/1134 lodged with the respondent council on 2 August 2004 to erect two fender piles on the seaward face each side of an existing pontoon below the Mean High Water Mark, (MHWM), within the waterway of Port Hacking on Crown land adjacent to Lot 1, DP 556405, being No 86 Parthenia Street, Dolans Bay, is refused consent.

3. The exhibits except for Exhibits A and 1 are returned.

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