16 Within this Zone 16, development that is allowed with consent includes berthing areas, marinas, and watercraft facilities. In accordance with the definitions, a 'marina' that is not used in connection with a business would be an innominate use that is prohibited. However moorings are allowed without consent.
17 Insofar as the planners addressed the relevant issues, Mr Weston declined to deal with the categorisation/permissibility issue. However he indicated that the proposal satisfies the definition of a 'watercraft facility', although he conceded in cross-examination that the proposal presented physically as a 'marina'.
18 Ms Pinfold did address this threshold issue on the basis that planners are usually required to interpret and apply various planning instruments in development assessments. In this case, she says that:
The proposed development in common parlance is a 'private' marina, which is prohibited under SSLEP 2006, particularly because any such structure must be used as a business.
The proposed structure does not fall within the definition of a watercraft facility because:
o It is to be utilised for the permanent mooring of vessels, which is contrary to the definition that imposes a temporal limit on the use to embarking and disembarking.
o The SSLEP excludes permanent mooring of vessels at watercraft facilities but otherwise allows the permanent mooring as a separate form of development such as ' berthing area ' and ' mooring '
o The restriction that watercraft facilities are not to be used for permanent mooring is confirmed in cl 9.6.b.2 of SSDCP, which advises that:
Jetty, suspended ramp and pontoon structures shall be designed to facilitate access to private recreational vessels where a reasonable depth of water is available. The structures are only to be used for short stay embarking and disembarking of passengers and the transfer of personal goods.
o The definition in SSLEP identifies the components of a watercraft facility, specifying that the structure includes a pontoon, whereby the proposal is non - compliant because of its multiple pontoons.
19 Furthermore, Ms Pinfold does not consider the facility falls within the definition of a berthing area because:
Vessels will be berthed utilising the jetty structure, not in a stand alone berthing area adjoining the jetty structure. A berthing area in contrast is positioned adjacent to a jetty, ramp or pontoon, but cannot be an integral part of these structures.
The design of a berthing area is defined as a 'configuration of piles (typically 4)'. Therefore, a berthing area cannot, by definition, be comprised of a series of pontoons.
The reference to the typical configuration of 4 piles suggests that each berthing area is to contain 1 vessel. As the controls do not provide for multi-vessel berthing area or a berthing facility, it is not permissible development.
20 Apart from this, the engineers assessed the technical merits of the proposal. In doing so, they referred to definitions contained in AS 3962 - 2001 - Guidelines for design of marinas. It defines a marina as:
A group of pontoons, jetties, piers, or similar structures designed or adapted to provide berthing for craft primarily used for pleasure and recreation and may include ancillary works such as slipways, facilities for the repair and maintenance of boats and the provision of fuel, provisions and accessories.
21 In joint conferencing they agreed that:
o The proposed configuration of the floating facility for the berthing of 5 vessels is consistent with the description of a marina as defined in cl 1.3.29 of AS3962-2001.
o However the proposal is not consistent with the definition of a marina as stated in the SSLEP 2006.
22 Consequently, the fundamental difference between the parties is that the council submits the proposal is a prohibited development, against which the applicant submits that the development constitutes a watercraft facility and berthing area and accordingly is permissible.
23 Mr Gallasso's submission for the applicant is that the proposal constitutes a watercraft facility and berthing area, which is permissible with consent. This submission is based on the proposal incorporating the defined elements of a suspended ramp and pontoon constituted as 3 fingers, which consequently facilitates access for recreational vessels for embarking and disembarking. Therefore it is characterised as a watercraft facility.
24 Insofar as the proposal involves the permanent storage of vessels, the submission is that this use is encapsulated by the definition of a "berthing area". The permanent parking is to be achieved by the configuration of piles, which are positioned 'adjacent' to the ramp and pontoon.
25 Accordingly, the submission is that this watercraft facility incorporating the 'berthing area' is permissible because:
o There is no reference in the definition of "berthing area" to piles serving only the function of the berthing of boats. Therefore the piles can serve a dual purpose of a berthing area and for the securing the watercraft facility.
o The reference to the number of piles ("typically 4") is not determinative of the characterisation of a berthing area. The reference to typical does not exclude other configurations such as the proposed 5 pile configuration.
o Although the term "berthing area" and phrase "parking of a vessel" is expressed in the singular, nevertheless the usual principle interpretation according to s 8(b) of the Interpretation Act 1987 is that the plural also applies. Therefore the berthing area for the parking of 5 vessels is consistent with the definition.
26 Insofar as the applicant relies on the 2 uses operating in tandem, it is submitted that this is consistent with the "berthing area" definition, which necessarily requires another use. Where there is a jetty, ramp or pontoon that is used for private purposes, then that structure is characterised as a "watercraft facility", and notwithstanding the reference to the 'embarking and disembarking' provision, the 2 uses must inevitably operate in tandem.
27 Against this, the submission for council is that the proposal does not constitute a berthing area because vessels are not to be berthed by tying up to piles, and no piles are positioned adjacent to any jetty, ramp or pontoon for that purpose. Instead, the piles are an integral part of the pontoon structure with the waterside piles being telescopic to allow for water height changes and control the movement of the pontoons. As these piles are not considered to adjoin the pontoon, accordingly they are not proposed for the berthing of vessels.
28 The council submissions also deal with the reference to the typical configuration of 4 piles for the berthing of "a" vessel. It is submitted that extraordinary circumstances apply with this definition because it deals with a berthing area to contain only 1 vessel and there is no such thing as a multi - berthing area. Therefore the applicant's reliance on the berthing area character is not appropriate.
29 With regard to the applicant's complimentary reliance on the "watercraft facility", the council submission is that this definition is not limited to the physical structure of a wharf, jetty or pontoon. Instead, it must also facilitate access to recreational vessels for embarking and disembarking of passengers or loading and unloading of goods. Consequently this purpose does not extend to the parking, i.e berthing or mooring of vessels.
30 Furthermore, the council submission is that the "watercraft facility" use includes a temporal dimension whereby permanent vessel parking is not included. Such facility is to provide a convenience for a temporary or intermittent use for the transfer of passengers or goods to and from the vessel and not operate as a permanent parking area.
31 Having considered the competing evidence and submissions, it seems to me reliance on the council's case is more appropriate in this matter. The initial development application described the proposal as a berthing facility but this is not a defined use in the relevant controls.
32 If then the development is classified as a watercraft facility, it appears to me that this definition does impose a temporal consideration that the facility is primarily for temporary use for embarking and disembarking. By reference to the proposed design of the structure, I do not consider that the inclusion of permanent berthing facilities reasonably satisfies this requirement because such permanent berthing would most likely interfere with the primary embarking and disembarking function.
33 Insofar as the applicant contends that the proposal also satisfies the "berthing area" definition, my assessment is that this definition prescribes a more open stand alone berthing area relying on the piles (i.e. typically 4 for a vessel) for containment. In this case, the containment is the jetty structure of which the piles are an integral part of the structure. It is obvious that the 3 waterside telescopic piles are primarily required to control the jetty structure in water movement situations, rather than for securing the vessel.
34 Furthermore, in my opinion, this arrangement does not adequately comply with the requirement for the berthing area to be adjacent to the jetty, ramp or pontoon. This implies a degree of separation, which I do not consider is incorporated in this proposal.
35 I have also considered the disparate submissions concerning the application of the Interpretation Act 1987, whereby the reference to the singular 'vessel' can be taken as the plural 'vessels'. However, cl 33 of this Act also allows an interpretation that is consistent with the promotion of the objects of Acts. In this case there are specific zone objectives and other controls that seek to limit the environmental impacts of water - based facilities within this Zone No 16. As the 5-berth structure will most likely have greater environmental impacts, I consider that the singular definition, as stated should apply in this case.
36 It also appears to me that the set of definitions for water-based facilities differentiates the size and scale of such facilities. The definition of marina, which is usually for the accommodation of multiple vessels, refers in the plural to pontoons, jetties, moorings for boats, facilities. But the other definitions for generally smaller facilities specifically refer in the singular to berthing area being for the permanent parking of a vessel. Also the watercraft facility definition appears to limit the scale of the structure by its referral in the singular to ramp that connects a pontoon to a jetty, jetty. It specifically excludes a marina facility.
37 For the aforementioned reasons then, I am not persuaded to accept the applicant's case that the proposal satisfies the requisite definitions to permit consent. If however the proposal is otherwise permissible, I have also considered the following merit issues. In this regard, I again particularly note the controls that limit the scale of water-based development.