Rose Bay Afloat Pty Ltd v Woollahra Council

Rose Bay Afloat Pty Ltd v Woollahra Council - [2003] NSWLEC 191 - NSWLEC 2003 case summary — Zoe

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JUDGMENT 1 This is an appeal pursuant to s97 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) against the refusal by Woollahra Council (the Council) of a development application to construct a fixed restaurant at Rose Bay. The proposal would replace the existing floating restaurant, known as "Rose Bay Afloat" which has been moored at Rose Bay off Lyne Park for approximately the past 30 years and is subject to a lease from the Waterways Authority that expires in 2005. 2 The manner in which the parties have presented their respective cases reflects their common view that the evaluation of the development proposal required by s79C of the EP&A Act involves quintessentially a subjective and impressionistic judgment on the part of the Court of the visual impact of the proposal in its significant public setting, but nonetheless informed by the express objectives and criteria contained in the complex of relevant planning instruments later detailed. 3 To this end the Court was considerably assisted by the expert opinions contained in detailed written appraisals of the several eminent experts, supplemented by joint expert statements reflecting the outcomes of conferencing by the experts. The parties mutually agreed that cross-examination of the experts was unlikely to clarify or change the positions as stated in the experts reports (including the joint report statements). Accordingly cross-examination of many of the experts was mutually foregone and the cross-examination of Mr Johnson (called by the Council) and Mr Tzannes and Mr Harrison (both called by the Applicant) was very limited. 4 However the parties recognised that a view of the development site and its environs (both the waters of Rose Bay and Lyne Park and the promenade skirting the foreshore of the bay) would be of considerable assistance to the Court in its evaluative task. 5 To that end a very comprehensive view was undertaken in the presence of the parties and many of their experts. The view included the relevant waters of Rose Bay. Again the parties mutually co-operated to optimise the view process by the attendance of their experts who were permitted to illustrate their various opinions on the view and were available to assist the Court in its understanding of the case with the benefit of the view. 6 Finally I should note that I have had the benefit of the assistance provided by Commissioner Tuor pursuant to s37(1) of the Land and Environment Court Act 1979. 7 In the result my evaluation of the development proposal in accordance with s79C of the EP&A Act has led me to conclude that the development proposed should be refused principally because it adversely impacts on, and hence unreasonably detracts from, the outstanding scenic, visual and public significance of the waters of Rose Bay and the adjacent Lyne Park and the promenade skirting the foreshores when experienced and appreciated from both water and land (including New South Head Road). My detailed reasons for so concluding and my detailed consideration of the competing opinions of the experts are set forth in what follows. 8 In reaching that ultimate conclusion I have proceeded on the parties' assumption that the proposal, if approved, would replace the existing floating restaurant. This desirable feature of the proposal, I think was uniformly acclaimed by both the expert and lay witnesses. The question whether the existing floating restaurant will continue to exist into the future, in the event that the present development proposal fails to obtain development consent is more problematical. All that the evidence reveals is that the current lease in respect of the floating restaurant will expire in 2005. What happens after that date is not revealed in the evidence. It remains possible of course that the existing lease will be renewed. However that may be, I do not think that that possibility impacts significantly on the required evaluation of the present development proposal. The Applicant, rightly in my judgment, advances the present proposal on its own merits and that is how I have evaluated it, without the benefit of any trade off, wrought by the elimination from Rose Bay of the existing floating restaurant.

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52 I am persuaded by the evidence of Mr Johnson and Professor Weirick that the wharf type structure, while it is well designed, will appear incongruous in this location. It is not a location in which this type of structure was traditionally located for functional reasons. It is in the shallow waters of the Bay rather than extending from the shore into deep water. While I accept Mr Harrison's opinion that new typologies need to evolve to respond to changing demands, this is not a new typology but a traditional form set in a different context. While of itself this may not be unacceptable, the size of this proposal, its position in the Bay and its proximity to a foreshore promenade are factors, which in combination result in the location being unsuitable for this type of development. The corner of the bay is a sensitive location as it has two public land water interfaces. The interface of the western end of the structure with Lyne Park is acceptable as it is only 8m wide and is at right angles to the shore. It is in a location that the experts generally agreed was "degraded" being a car park opposite public toilets. 53 However, the interface of the structure with the southern side of the Bay is not acceptable as it extends some 46m parallel to and within 25m of the shore line and the promenade along New South Head Road. It places a substantial structure in close proximity with a promenade that is one of the major public foreshore walks on Sydney Harbour and is extensively used. This changes the character of this corner of the Bay from that of a wide-open expanse to a foreCourt space between the restaurant and the promenade. I accept that this is an intrusion into this space and I do not accept Mr Tzannes opinion that the creation of a foreCourt will be a positive addition to the Bay. For the reasons that I will discuss below, I find that position of the restaurant in this location is not only incongruous but will create an adverse impact on the scenic quality of the Bay. (ii) Visual Impact

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immediate views (<250m) - highly significant impact. Particularly views from the ferry approach to the public wharf, Rose Bay Promenade at the entry to Lyne Park, the War Memorial, foreshore walkway in Lyne Park, the boat ramp and the public ferry wharf. b. Views blocked by the proposal Views of the bay and the harbour from the Rose Bay Promenade, at the main entry point to Lyne Park, and in the immediate vicinity. 59 The key difference in opinion between the experts is extent to which the proposal will block views and whether its presence will enliven the landscape and waterscape and thereby have a positive visual impact. I accept that from some view points the proposal will be a positive form in its setting, particularly when viewed from the east west where its narrow façade and curved roof will result in little view loss to or from the Harbour and the Park, particularly when compared with the impact of the current floating restaurant. However, I accept the evidence that the restaurant when viewed from the north south, will obstruct views and will have an adverse visual impact. In reaching this conclusion, I am influenced by the length of the structure and its proximity to the promenade. While I accept that the structure will have a degree of transparency, I do not accept that this will prevent the perception that there is a very long structure over the water which blocks views to and from the Harbour and the Park. This will have an adverse impact on the scenic quality of Rose Bay, particularly from the harbour when the structure is read in conjunction with other structures in Lyne Park and Rose Bay. As such the proposal does not satisfy the guiding principles in SEPP 56 relating to visual impact or objective (a) of the Waterways Zone in SREP23 to permit development that maintains or enhances important, natural and visual attributes of the Harbour. Nor does it satisfy objective (f) for the open space zone in LEP 1995 to protect the visual and environmental attributes of the foreshore.

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60 The heritage experts, Mr G Brooks for the Applicant and Mr D Logan for the Council, prepared a joint statement. The main area of disagreement that remained was the impact that the proposed structure was likely to have on the setting and visual curtilage of the pine trees, the stone sea wall to Lyne Park and the esplanade wall. 61 The experts agreed that "the introduction of a new, typical jetty style structure, without any building envelope on it, on the approximate 'footprint' of the existing floating restaurant, would not adversely affect these views or the significance of the items of heritage significance." 62 However, in Mr Logan's opinion, the introduction of a building structure above the wharf level "would detract from views from New South Head Road, from the Harbour, and from areas of the adjacent Park behind the western water's edge of the Park". Mr Brooks considered that a new building envelope would not have negative impacts on these views. Both experts agreed that in the absence of any other issues, this heritage issue would not warrant refusal of the application. 63 The other area of disagreement between the experts was that the existing floating restaurant is part of the "cultural heritage, identity and character of Rose Bay". Mr Brook's opinion was that part of the significance of Rose Bay and Lyne Park was its history of the various uses and structures and that, as a restaurant had existed in this location for almost 30 years, it was part of this significance. He stated that the proposal "will continue the evolutionary development of a rich complexity of water's edge and over-water structures that have long characterised the western edge of Lyne Park and by so doing link the park activities to the harbour." Mr Logan strongly disagreed and said " the logical extension of Mr Brook's argument would be that any further proposal for restaurants or other similar structures would be acceptable as they would also be part of the 'evolutionary development' of the western edge of Lyne Park". 64 I accept Mr Logan's opinion that the existence of a restaurant in this location for a lengthy period of time cannot be used to as an argument for the continuation of the use on heritage grounds. As pointed out in Mr Brook's evidence, uses in the Park and the Bay have evolved over time. Part of that evolution has been the changing attitude of the public to the use of open space and the foreshore. This is exhibited by the construction of the sea plane base within Lyne Park and its later removal. The establishment and subsequent removal of a restaurant from this location in the park could be equally argued on heritage grounds to demonstrate the evolution of the park and foreshore and social attitudes to development within such areas. (iv) Public Access 65 The proposal provides a boardwalk that is available for use by the public. The experts agreed that the boardwalk was likely to be viewed as a public access way but they disagreed as to whether it satisfied the requirements for public access in the planning instruments and provided sufficient public benefit to compensate for what the Council's experts considered to be the negative aspects of the proposal. 66 Mr Colman and Professor Weirick were of the opinion that there would be "potential conflict between restaurant use and public domain use" of the boardwalk. As the boardwalk also provided access to the restaurant, was at the same level as the restaurant, was only four metres wide and was between the restaurant and the view, it would be perceived as an extension to the restaurant, as private space, and would not form part of the public domain that would be easily utilised by the public. 67 Mr Harrison held the contrary view that the boardwalk would be an extension to the public domain as it is directly connected to the water side promenade of Lyne Park, is on the sunny, north side of the restaurant with extensive views and provides an opportunity for the public to walk out over the water. He also considered that the proposal would "help to reinforce the safety of the public domain in this active part of Lyne Park, through casual surveillance". 68 I accept that the boardwalk is a positive feature of the development but that it does not provide such public benefit as to justify the proposal. Its use as an extension to the public domain would need to be carefully managed to avoid potential conflicts between it and the restaurant. (v) Use of public foreshore land

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76 Professor Weirick did not support the view that as the Park had historically been used for commercial purposes it was appropriate that this should continue. He stated that the core value of the park was expressed in the POM as "Retention of this parkland character is identified as a primary value to be retained". Professor Weirick was of the opinion that there were already a number of commercial uses in the park and that the location of the proposal was at the critical entry point to the park and that it was inappropriate for a commercial use to be located at this point. In his opinion, "restaurants overlooking the Harbour have some value, however the acceptable 'type' in a large 'green' foreshore park such as Lyne Park is a pavilion set back from the water's edge, amongst substantial tree, with views to the water over the public promenade and the foreshore". 77 The residents who gave evidence on behalf of their respective community committees shared the view that a commercial use of this location was inappropriate. They also were strongly opposed to the replacement of a temporary floating structure with a permanent structure. 78 The use of public land, particularly foreshore public land, for commercial purposes is an issue which is of concern to the community and is expressed in the planning framework that applies to this site. While restaurants are a permissible use within the Waterways zone under SREP23, this zone applies to large areas of the foreshore and SREP 23 includes criteria that must be addressed in the assessment of any proposal, including whether the proposal warrants a foreshore location. Further that part of the DCP that applies specifically to Rose Bay requires that it must be demonstrated that commercial uses are necessary. I find that the necessity for a commercial restaurant in this location has not been demonstrated. The argument that the proposal will replace a temporary floating restaurant is not sufficient justification for a permanent commercial structure in this location. Nor do I find that the proposal is specifically supported by the POM for the park which while it recognises the contribution of restaurants and other commercial activity to the park, it states that the core value to be retained is its landscaped character. While, I accept Mr Harrison's evidence that the restaurant is likely to be commercially successful I do not accept that this is sufficient justification to locate a restaurant in a sensitive location at the corner of Rose Bay at the entry to the park. As I have discussed above this location and the proposal itself impact on the scenic quality of the Bay.

At a glance

Court

Decision date

Before

Source

Judgment (52 paragraphs)

Parties

Cases Cited (1)