Pathold No. 176 v Waterways Authority

Sydney Regional Environmental Plan No. 23 - Sydney and Middle Harbour State Environmental Planning Policy No. 56 - Sydney Harbour Foreshores and Tributaries LEGISLATION CITED: Development Control Plan for SREP 22 and SREP 23 Draft Sydney Regional Environmental Plan (Sydney Harbour Catchment 2004) Environmental Planning and Assessment Act

Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; CASES CITED: Architects Heywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138

APPLICANT Mr P Tomasetti, barrister SOLICITORS Colin Biggers & Paisley LEGAL REPRESENTATIVES: RESPONDENT Ms J Jagot, barrister SOLICITORS Minter Ellison

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11046 of 2004 Pathold No. 176 Pty Ltd v Waterways Authority NSW

1 This is an appeal against the partial refusal by the Waterways Authority (the Authority) of DA 593/04 for the construction of a jetty, ramp and pontoon and a single mooring pen for the owners of the property at 12 Shellbank Parade, Cremorne. The Authority determined the application by refusing the permanent mooring pen but approving the jetty, ramp and pontoon but reducing its length from 12.6 m to 7.8 m.

2 The site is the public waterway abutting 10 and 12 Shellbank Parade, Cremorne, and is part of the bed of Long Bay. The existing development below mean high water mark includes the stump of a mooring pile abutting 12 Shellbank Parade and two short wooden jetties and single mooring pile abutting 10 Shellbank Parade.

3 The site is characterised by a relatively shallow area close to the sea wall where the bed of the bay is rock rubble overlaid by silty sand. Beyond this area in deeper water, the silty sand and mud bed of the bay do not support any marine vegetation.

4 The site is located on the southern side of Long Bay. Long Bay is the south west extension of inner Middle Harbour and contains a number of small coves including Quakers Hat Bay, Willoughby Bay and Saltpan Cove. The adjoining land is primarily developed for private residential purposes and has a relatively flat foreshore. The land water interface is primarily defined by sea walls and private landing facilities abut many of the private properties. Immediately to the north-east of the site is the unformed section of Wyong Road where the foreshore retains a natural interface with the water.

5 The proposed development involves the construction of a jetty, ramp and pontoon measuring 12.6 m in length from mean high water mark and a single mooring pen for the permanent berthing of a 12.19 m vessel. This requires the installation of four freestanding piles for the exclusive use of the owners of 12 Shellbank Parade.

6 Sydney Regional Environmental Plan No. 23 - Sydney and Middle Harbour (SREP 23) is a relevant consideration. Clause 2 provides aims for the plan. Relevantly cl 2(f) provides the following objectives in relation to the visual environment:

(i) to protect and enhance the landscape and special scenic qualities of the harbours (ii) to ensure that adequate consideration is given to the visual impact of development and (iii) to preserve the natural foreshores of the harbours and to ensure development does not detract from the natural character. 7 Clause 10(3) provides that consent must not be granted unless the proposal is generally consistent with the aims and objectives of the plan and the zone in which it is located. In this regard the proposal falls within Zone No. W1 - General Waterways. The objectives for this zone are: (a) to maintain and enhance important natural and visual attributes of the harbours and (b) is compatible with the existing or planned future character of the waterway and adjoining foreshores. 8 Clause 18 provides specific matters for consideration in determining development applications.

9 State Environment Planning Policy No. 56 Sydney Harbour Foreshores and Tributaries (SEPP 56) also applies. The aims of the policy are set out at cl 2. Clause 7 provides guiding principles that are to be considered in the consideration of development applications. The relevant principles are:

( g) the protection and improvement of the unique visual qualities of the harbour, its foreshores and tributaries: (j) the scale and character of any development derived from an analysis of the context of the sites. (k) the character of any development as viewed from the water and its compatibility and sympathy with the character of the surrounding foreshores. 10 Development Control Plan for SREP 22 and SREP 23 (the DCP) also applies. The plan provides design requirements for water based and land water interface developments at s 4.

11 The site is also subject to Draft Sydney Regional Environmental Plan (Sydney Harbour Catchment 2004)(the draft REP). The draft REP has been placed on exhibition by the Department of Infrastructure Planning and Natural Resources (DIPNR). Under the draft REP the site below the mean high water mark is within Zone No. W7 Scenic Waters : Casual Use. Private landing facilities are a permissible use within this zone, however mooring pens are prohibited. Once gazetted the draft REP will repeal and replace SEPP 56 and SREP 23. The draft REP is also accompanied by an amended DCP and the Boat Storage Policy for Sydney Harbour.

12 The Authority filed a Statement of Issues and raised three separate issues. These can be grouped in the following areas: (1) whether the single mooring pen including the vessel to be permanently berthed in it, is contrary to the requirements of SREP 23, SEPP 56 and the draft REP, particularly in relation to its impact on the landscape and scenic qualities of the locality. (2) whether the demand has been established for the single mooring pen. 13 In considering the principal issue in the proceedings, that is the visual impact of the mooring pen and the vessel, the numerous controls provide a range of requirements although all seek to protect the foreshore area from visually intrusive or unsuitable development.

14 An important consideration in determining this issue is the weight that should be attributed to the draft REP. Section 79C(a)(ii) of the Environmental Planning and Assessment Act ( the EPA Act) requires the Court to take into consideration the provisions of any draft environmental planning instrument that has been placed on public exhibition. In this case the draft REP is a relevant consideration and the Court is required to determine the amount of weight to be placed on its provisions in the assessment of the proposed development. This requires a consideration of whether the making of the draft REP is imminent and certain and also the savings and transitional provisions.

15 The weight to be attributed to a draft environmental planning instrument will be greater if there is a greater certainty that it will be adopted. In Terrace Tower Holdings Pty Limited v Sutherland Shire Council 2003 NSWCA 289 at par 5. Relevantly in Terrace Tower, Spigelman CJ states at par 6 and 7:

6. Notwithstanding certainty and imminence a consent authority may of course grant consent to a development application which does not comply with the draft instrument, the different kinds of planning controls will be entitled to different levels of consideration and of weight in this respect.

7. Where a draft instrument seeks to preserve the character of a particular neighbourhood that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre-existing instrument which would in a substantial way undermine that objective. 16 In Architects Heywood and Bakker Pty Limited v North Sydney Council 2000 NSWLEC 138 Pearlman J addressed the question of imminence and certainty. In this case a development application for attached dwellings was the subject of a draft environmental planning instrument. It was agreed that the proposed development took the form of carriage development although the draft environmental planning instrument contained objectives to avoid carriage development. Her Honour found that this non compliance was critical and that the proposed development did not accord with the planning approach adopted by the draft environmental planning instrument.

17 In this case the draft REP has been advertised and the most recent advice from DIPNR was that a final parliamentary counsel opinion had been obtained and that the relevant DIPNR Deputy Director General has endorsed the draft REP, however the Director General has not formally recommended to the Minister that the plan be made.

18 If the circumstances in Architects Heywood and Bakker are compared to the subject application two significant points emerge that support the council's position that significant weight should be given to the draft REP. Firstly, the consideration of the draft REP has reached a more advanced stage in the draft environmental planning instrument considered by Her Honour. The council in Architects Heywood and Bakker were still considering the submissions from a second round of advertising. Secondly, the proposed development is prohibited by the draft REP whereas the development proposed in Architects Heywood and Backer was still permissible under the draft environment planning instrument, although not in the same form provided by the existing environmental planning instrument.

19 If the comments of Spiegelman CJ in Terrace Tower are considered it would be reasonable to conclude that the draft REP will create a different character through the W7 Scenic Waters : Casual Use zone than the existing W1 - General Waterways zone. If the objectives are compared it is clear that the draft REP seeks to limit water dependent development close to the shore. The draft REP seeks to allow development that achieves a predominantly open and unobstructed waterway (Objective (b)), restrict development for permanent boat storage in certain locations, (Objective (c)), and minimise the number and extent of structures over waters in this zone (Objective (f)). REP 23 contains no such restrictions but provides more general objectives for water dependant development.

20 The draft REP is a significant document in the ongoing planning for the foreshores of the harbour as it seeks to control development through more comprehensive zonings than are provided in REP 23. It provides the long term planning outcomes for the foreshore. 21 The Court was taken on a view of nearby waterways and the type of development existing in this area. The basis for the different zonings in the draft REP was clear from the site view although I readily accept that all existing development did not necessarily comply with the requirements of the draft REP. I am not however convinced that these examples should be given any substantive weight in the Court's assessment. As explained on the site view, the leasing arrangements for foreshore structures provide the opportunity for the removal of some existing structures under certain circumstances so that there can potentially be compliance with the draft REP.

22 It was also suggested that the zoning under the draft REP was inconsistent with the existing development and therefore inappropriate however it is not the role of the Court to question the appropriateness of the zones created by the draft REP.

23 In my view, the difference in objectives between REP 23 and the draft REP is significant and would lead to a different character on the foreshore. In accepting that the draft REP could be seen as having a high likelihood of gazettal in the form presented to the Court, I find that it should be given significant weight in these proceedings, to the point where it should be preferred to REP 23 as the appropriate planning document for assessing the application. I accept that the approval of this application could frustrate the long term planning objectives for the foreshore.

24 The savings provisions in cl 11(2) of the draft REP provide that any development application lodged before the commencement of the plan but not finally determined before its commencement is to be determined as if the plan had not been made but had merely been exhibited pursuant to s 47 of the EPA Act.

25 The matter of savings provisions is addressed in Architects Heywood and Backer, at par 34 where Her Honour states,

The savings provisions do not require a different approach. The effect of cl 5(3) is to place the Draft LEP in precisely the same position so far as concerns this development application whether it had formally come into force or still remained as a draft currently pertains. In either case it is to be taken into consideration as if it had been placed on public exhibition, and accordingly given some weight in the assessment of the planning implications of the development application. 26 While the savings provisions in the draft REP are written in different terms, the intent is very similar, that is the draft REP is to be considered as if it had been placed on public exhibition. The savings provisions did not disturb Her Honour's findings on the immanency and certainty argument in Architects Heywood and Bakker and I see no reason why this should change as the circumstances are similar in this particular case.

27 The word "merely" in cl 11(2) was the subject of submissions from Mr Tomasetti, for the applicant, and Ms Jago, for the Authority, as to its importance in interpreting this clause. In accepting that the word was purposely included, I am not convinced that it adds a substantively different meaning to the interpretation of the clause than if it was not included.

28 Having found that a substantial weight should be given to the draft REP, I find that the proposed mooring pen is inappropriate because of its inconsistency with the form of development contemplated in the W7 Scenic Waters - Casual Use zone.

29 As the applicant has indicated that if the Court's determination on the mooring pen was unsuccessful then an approval in the terms of the authority's approval for the deletion of the mooring pen and the reduced length of the jetty would be acceptable. I understand this was acceptable to the Authority. Findings on the merits were provided to the parties on 1 July 2005.

30 There was agreement between the parties on the draft conditions proposed by the Authority with the exception of condition 6. This condition requires the jetty, ramp and pontoon to be shared with other land owners. The parties agreed to provide written submissions on this condition.

If the owner(s) of No. 10 Shellbank Parade, Cremorne seeks the shared issues of the facility, the owner is to grant a right of way across the property but only to the minimum extent necessary to provide direct access to the private landing facility from No. 10 Shellbank Parade. 32 Ms Jago submits that the applicable planning controls place significant and consistent emphases on the requirement that water-based facilities be shared. She cites cl 18(f) of REP 23, cl 4.2 of the DCP, cll 4.2 and 15 of the draft REP and the Boat Storage Policy for Sydney Harbour as supporting this submission. The facility is located entirely in front of 12 Shellbank Parade although abutting and in part encroaching over the division of waterway. It will therefore be necessary for the neighbouring property owner to walk over private land to gain access to the shared facility. The proposed condition aims to ensure that when sharing is desired there is no physical impairment to sharing, such as a fence and acting neighbour is legally allowed, by the establishment of a right-of-way or similar to reach the facility. Any such illegal access needs only extend to a small area immediately adjacent to the facility.

33 When the current or future owner of the adjoining property seeks to share the facility it will be necessary for that owner to agree to a reasonable sharing of costs and responsibility for operation and maintenance of the facility. The public land owner, through its property management role, is able to facilitate sharing should problems arise between the neighbours.

If the owner(s) of No. 10 Shellbank Parade, Cremorne seeks the shared issues of the facility, the owner is to grant that use provided the owners of No. 10 Shellbank Parade pay the applicant 50% of the following costs: * procurement costs associated with obtaining approval of the facility; * construction cost of the facility; Nothing in the above arrangement requires the applicant to provide any easement burdening the applicants land and benefiting No. 10 Shellbank Parade to provide access to the jetty 35 Mr Tomasetti submits that the adjoining neighbour has previously rejected attempts for joint use of facility. On this basis, it is unreasonable for the applicant to pay for the facility and provide a right-of-way over privately owned land in favour of the neighbour at no cost. He submits that the approach taken by the Authority is contrary to the principle that people should not have to surrender interests in land without compensation or consideration.

36 On this matter, I accept Mr Jago's submission that the shared use of facilities is an important component of the planning controls for the harbour however I not convinced that it is reasonable that the applicant be put to the expense of planning and constructing the facility and facilitating access for other people without some compensation.

37 While Ms Jago submits that the Authority as the public land owner and through its property management role, is able to facilitate sharing of the facility should problems arise between the neighbours, the Court is unaware of what this facilitation involves and particularly if any form of compensation is provided. Based on the condition proposed by the Authority, I presume that compensation does not form part of the facilitation procedure. Conversely, I do not accept the applicant's condition that denies any legal access to the facility even if it is jointly funded by the adjoining neighbour. In this case, the sharing of the facility is not an issue at this time although it may be in the future. It would seem appropriate that as the sharing of facilities is seen to have a high priority by the Authority then proper procedures should be put in place to facilitate this process. 38 I propose to delete the condition as the conditions proposed by the Authority and the applicant are both unsuitable. In the event that the sharing of the facility is required in the future (and the absence of any more formal procedures) the opportunity exists for the Authority as the public land owner to facilitate a more equitable outcome. 39 The Orders of the Court are:

1. The appeal is upheld. 2) DA 593/04 for the construction of a jetty, ramp and pontoon for the owners of the property at 12 Shellbank Parade, Cremorne is approved subject to conditions in Annexure A. 3) The exhibits are returned with the exception of exhibits 1, 3 and 9.

      G T Brown
      Commissioner of the Court

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