Rose Bay Marina Pty Ltd v Woollahra Municipal Council

Land and Environment Court (NSW)|2015-04-08|Before: Biscoe J

Solicitors: Mr G Green of Pikes & Verekers Lawyers (Applicant) Ms V Mcgrath of Norton Rose Fulbright (Respondent) File Number(s): 10956 of 2014

Judgment

This is an appeal under s 97AA of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Woollahra Council (council) of an application under s 96AA of the EPA Act (the application) to modify Development Consent 682/2008 for the redevelopment of Rose Bay Marina (RBM) at 594-596 New South Head Road, Rose Bay (site).
The application seeks approval to modify the Development Consent to permit the length of vessels in berths 1, 2, 3 and 4 at the northern end of Arm B to be 37m rather than the approved 30m. The maximum height of the vessels would remain as 7m (Condition C.1(i)) and no physical change to the marina structure is proposed.
The Contentions raised by council in relation to parking and traffic, environmental impacts and navigational safety have been resolved by conditions, including that three swing moorings near the Rose Bay Marina owned by the applicant are relinquished (Condition A11). The key issue in dispute is the visual impact of the proposal and impact on public views from Rose Bay Beach and Park (beach/park) and Rose Bay Promenade (the Promenade).

Background

On 26 August 2009, Biscoe J granted conditional consent for the redevelopment of the berthing facilities at the RBM (the Development Consent). The approval consisted of 49 floating berths on two marina arms (Arm A and Arm B) accommodating 4x15m vessels, 38x20m vessels and 7x30m vessels (Addenbrooke Pty Ltd v Woollahra Municipal Council (No.2) [2009] NSWLEC134).
On 7 December 2009, the council approved a s 96 application to modify Condition C.1(a) of the Development Consent to increase the width of the walkway of Arm B to be 3.2m.
On 16 April 2013, Moore SC and Adams AC approved development application DA136/2012 for nine additional 10m berths on Arm A (Rose Bay Marina Pty Limited v Woollahra Municipal Council and anor [2013] NSWLEC 1046).
A development application (DA282/2014) has recently been approved for alterations and additions to Point Piper Marina (PPM), which will remove 24 swing moorings to the north of Rose Bay Park and provide an additional 18 berths to Arm A of that marina (approved PPM).
The application before the Court was lodged on 27 June 2014. Council considered an assessment report on 3 November 2014, which recommended refusal of the application principally because of the view impacts from the beach/park resulting from the narrowing of the gap between RBM and PPM. Council deferred its determination and the applicant indicated it would accept a condition which retained the western berth (Berth 1) at 30m. The Applicant lodged an appeal against the deemed refusal of the s96 application on 21 November 2014. Council considered a further assessment report which recommended approval of the application subject to a condition that Berth 1 is limited to a 30m boat. The council refused the application on 24 November 2014, generally for the reasons that were contentions in the proceedings.
A conciliation conference under s34 of the Land and Environment Court Act 1979 (LEC Act) commenced on site on 13 February 2015. The parties did not reach agreement and the conciliation conference was terminated. The parties agreed to my disposing of the proceedings at a hearing under s34(4)(b)(i), which was held on 8 April 2015 and that the site view and evidence at the conciliation conference would be admissible as evidence in the hearing.

Site, locality and planning controls

The site, locality and planning controls are described in detail in the previous decisions of the Court and the Statement of Facts and Contentions. The key planning controls which relate to the proposal and the issue in dispute between the parties are in Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP).
Clause 17(2) of SREP provides: (2) Except as otherwise provided by this plan, the consent authority must not grant development consent to any development unless satisfied that it is consistent with the aims of this plan and the objectives of the zone in which it is proposed to be carried out.
The aims of the plan relevantly include: 2 Aims of plan (1) This plan has the following aims with respect to the Sydney Harbour Catchment: (a) to ensure that the catchment, foreshores, waterways and islands of Sydney Harbour are recognised, protected, enhanced and maintained: (i) as an outstanding natural asset, and (ii) as a public asset of national and heritage significance, for existing and future generations, (b) to ensure a healthy, sustainable environment on land and water, …… (2) For the purpose of enabling these aims to be achieved in relation to the Foreshores and Waterways Area, this plan adopts the following principles: (a) Sydney Harbour is to be recognised as a public resource, owned by the public, to be protected for the public good, (b) the public good has precedence over the private good whenever and whatever change is proposed for Sydney Harbour or its foreshores, (c) protection of the natural assets of Sydney Harbour has precedence over all other interests.
The part of Rose Bay in which the RBM is located is zoned W5 - Water Recreation. The proposal is permissible with consent within this zone. The objectives of the zone relevantly include: (d) to allow commercial water-dependent development, but only where it is demonstrated that it meets a justified demand, provides benefits to the general and boating public and results in a visual outcome that harmonises with the planned character of the locality, and (g) to ensure that the scale and size of development are appropriate to the locality, and protect and improve the natural assets and natural and cultural scenic quality of the surrounding area, particularly when viewed from waters in this zone or from areas of public access.
Division 2 of SREP is entitled Matters for consideration. Clause 20 requires relevantly that: The matters referred to in this Division (together with any other relevant matters): (a) are to be taken into consideration by consent authorities before granting consent to development under Part 4 of the Act
Of the clauses within Division 2, cl 26 deals with Maintenance, protection and enhancement of views. It provides: 26 Maintenance, protection and enhancement of views The matters to be taken into consideration in relation to the maintenance, protection and enhancement of views are as follows: (a) development should maintain, protect and enhance views (including night views) to and from Sydney Harbour, (b) development should minimise any adverse impacts on views and vistas to and from public places, landmarks and heritage items, (c) the cumulative impact of development on views should be minimised.
Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005 (the DCP) is also relevant and includes general aims for Landscape assessment (s 3.2) which include: All development should aim to: • minimise any significant impact on views and vistas from and to: - public places, - landmarks identified on the maps accompanying the DCP, and - heritage items;
The site is Landscape character type 10 (s3.4) which includes the following performance criteria: Any development within this landscape is to satisfy the following criteria: • it does not obscure, detract from or destroy special natural elements that are significant within the local context of the area; • the open nature of the bays is not lost by overdevelopment of the foreshores; and • it has been demonstrated that the commercial activities proposed within and adjacent to the foreshores are necessary and that their proposed use is compatible with existing and likely future land uses.
Part 4 of the DCP contains Design Guidelines for Water-Based and Land/Water Interface Developments, including marinas (commercial and private) The objectives and guiding principles for visual impact of marinas include: • waterside structures and berthed vessels associated with marinas are not to block views from foreshore public open space or views to foreshore public open space from the waterway

Evidence

As part of the conciliation conference, the Court visited the site and surrounding area and heard evidence from objectors whose principle concern was that the proposal does not satisfy the requirements of SREP which aims to protect the harbour for the public good which takes precedence over the private good. In particular, the proposal will not "protect, maintain and enhance views to and from Sydney Harbour". The additional bulk from an increase of 7m in length together with the permitted 7m in height has the potential to obscure an additional 49sqm of view which adds to the cumulative impact of the development. They contend that the approved marina and other developments have already resulted in an impact on public views and that for the development to be approved it must improve views not further detract. From the beach/park and Wunulla Road there will be a reduction in the gap between RBM and PPM and a loss of views, not an enhancement, as well as from the Promenade. The proposal does not demonstrate that there is a demand for the larger boats, particularly given that a survey of marinas in Sydney found that boats remained at their marina berths for about 84% of the time. Furthermore, they raised issues with the impact of the proposal on the marine environment, safety, manoeuvring of boats, increased traffic and demand for parking and noise impacts.
The Court heard planning evidence from Mr J Harrison, for the applicant, and Mr A Rowan, for the council.
The experts assessed the visual impact of the proposal on the basis of the approved PPM and that Berth 1 would remain at 30m. They agree that the impact of a 37m boat in Berth 3 is acceptable as it would not impact on the view from the beach/park or the Promenade. However, they disagree on the view impacts of Berth 2 on the beach/park and of Berth 4 on the Promenade.

Visual impact of Berth 2

Mr Harrison and Mr Rowan held different opinions on the extent to which the increase in length of a boat at Berth 2 results in the visual enclosure and the further reduction of the available width of outlook to open water from the beach/park.
The experts agree that the minimum physical "gap" between a boat berthed at PPM and Berth 1 (with a 30m boat) would remain 61m. The length of beach and promenade in front of Rose Bay Park is about 310m and prior to the redevelopment of the marinas a view arc to the open water was available for its entire length. With the redevelopment of RBM and the approved PPM the available view arc was reduced to about 211m, which will be further reduced by the increased length of a boat at Berth 2 to 207m. This means that for a distance of about 4m at the western end of the beach the visual "gap" between the marinas would be removed. Additionally, part of a 37m boat at Berth 2 would progressively be able to be seen as the viewer moves from east to west along the beach behind a 30m boat at Berth 1 for approximately 67m of the available view arc.
Mr Harrison considers that "an increase in the length of a boat in Berth 2 will have no discernible impact when viewed by a person either walking along the beach or from a static position". The view from the beach/park is to other parts of Rose Bay with boats, rather than open water and the additional length of a 37m boat on Berth 2 behind a 30m boat on Berth 1 would be limited and would not result in an "appreciable sense of any additional enclosure" of the beach. In his opinion, there is a clear demand for berthing of "Superyachts" which is recognised by NSW Transport in its Sydney Harbour Boat Storage Strategy (Strategy).
Mr Rowan considers that the outlook to open water has been reduced by the existing approvals and that the application would result in a further view reduction and increased enclosure of the beach/park. In his opinion, this was an unreasonable cumulative impact. Furthermore, the decision of Biscoe J in Addenbrooke required a reduction in the length of Arm A and Arm B to maintain the "clear open channel between the marinas", which he considers relates not only to the physical width but also to the available view arc.

Visual impact of Berth 4

The experts disagree on the visual impact from the Rose Bay Promenade as a result of the increase in the boat length in Berth 4. They provided a series of photos from view points (VP) along the Promenade.
Mr Harrison considers the impact will be negligible given that for most of the 1.08m km length of the promenade the increased length of a boat in Berth 4 is either not visible or is viewed against the backdrop of the other marinas and does not impact on the views to Manly. For the 57m length of the Promenade where Berth 4 is visible, the additional length of a 37m boat will have an "imperceptible" visual impact. In his opinion: There is no appreciable difference in the extent of land water interface, view of Manly, the headlands or Shark Island that can be seen between the current approved development and the proposal.
Whereas, Mr Rowan did not agree that the impact was "imperceptible". The impact should not be considered in isolation but in the context that the outlook to the opposite side of the Harbour that has already been reduced by RBM and will be further reduced by the proposal. In particular, he was concerned that the perceived distance between the end of Berth 4 would appear closer to Steele Point and the visual gap between these two point would be more quickly reduced between VPs 5 -16 along the Promenade. He acknowledged that the additional closure of the gap would occur for about 2-3m of the Promenade. In his opinion, the further loss of these iconic views across the harbour was unacceptable and not consistent with the decision in Addenbrooke, particularly that Arm B be reduced to maintain these views.

Findings

The key disagreement between the parties is whether the visual impact of the proposal is consistent with the planned character of the locality and the requirements of SREP and the DCP, in particular cl 26 of SREP.
I accept Mr Rowan's evidence that the assessment of visual impact should not be limited to a comparison between the development consent and the application, but the cumulative impact must be considered, as required by SREP.
The visual impact of the redevelopment of RBM was found to be acceptable by Biscoe J in Addenbrooke, subject to conditions, which included the reduction in length of Arm B to maintain views to Shark Island and the other side of the Harbour and the open channel between PPM and RBM, which is not limited to the physical distance but also the ability to view the water beyond. The question before the Court is whether the proposed increased length of boats to 37m would render what was found to be an acceptable visual impact to now be unacceptable.
In considering the evidence of the experts and objectors, as well as the submissions of Mr Green, for the applicant, and Mr Flanigan, for the council, I am satisfied that there would be no material visual impact from the proposal, as amended by the proposed condition, which limits boats at Berth 1 to the approved 30m.
The planning reports to council undertook a visual assessment of the application in accordance with the planning principle identified in Rose Bay Marina. The reports also considered the application in the context of the visual impact resulting from the development approved in Addenbrook and Rose Bay Marina and the concerns of the objectors. The reports concluded that subject to Berth 1 being conditioned to accommodate a 30m boat, the visual impact of increasing the maximum length of boats at Berths 2, 3 and 4 was acceptable.
I am not persuaded by the evidence of Mr Rowan that a different conclusion should be reached. There is no dispute that the Promenade provides an "expansive view of the harbour and its headlands as far as Manly" (Addenbrooke at [89]), which is significant as it is the only location where this occurs. Similarly, the physical and visual channel between RBM and PPM is important and should be retained. However, there is no material change in impact on these views between three boats that can be 30m long with a height up to 7m and three boats that can be 37m long also with a maximum height of 7m.
The approved 30m boats are large and, even though they are some 200m from the shore, they have a visual impact, which was found to be acceptable by Biscoe J. However, as stated by His Honour in Addenbrooke at [141] "the real visual impact is from the height of berthed boats, not their length. For example, a 30 metre berthed yacht has a relatively low visual impact because, apart from its mast, its height is low". While this may be the case, the approved height of the 30m boats is 7m, which accommodates motorised "superyachts" that have significantly more impact than a yacht of the same length. Given that the four berths at the end of RBM are the only location in RBM which permits 7m high boats, this is where "superyachts" are likely to be located. Within this context there is no material difference in impact resulting from the increased boat length, being primarily the bow of the boat. This would not be the case if the increase in length were to also involve an increase in height or if the boats were to be parallel to the shore or involved physical changes to the marina structure.
Biscoe J found that the visual impact of RBM would be acceptable with changes, including that Arm B be shortened by about 15m (two 20m berths on either side of the arm). The additional length of Berth 1 would conflict with these findings as it would intrude into the physical and visual channel between RBM and PPM. Whereas, the additional length of boats on Berths 2, 3 and 4 is visible from limited vantage points and, where it is visible, the additional length has no material impact on the overall views from the marina. The additional berths which were required to be removed by Bisco J were parallel to the shore and are likely to have intruded further into the view from more vantage points.
Mr Flanigan submits that the applicant has not demonstrated that there is a justified demand for the 37m boats. However, this was not specifically raised as a contention by the council. The information provided by the applicant is adequate and this would not be reason to refuse the application. Nor does it contradict the comments of Biscoe J in Addenbrooke at [39] and [47] regarding the demand for berths for "superyachts" with reference to the Strategy.
In Addenbrooke at [53] Biscoe J stated that there is "some tension between the cl 26(a) consideration ("maintain, protect and enhance views"), on the one hand, and the cl 26(b) consideration (that development should "minimise any adverse impacts on certain views") and considerations under cll 25 and 27, on the other. I think that there has to be a balanced consideration of all matters that are prescribed for consideration." In adopting this balanced approach to the provisions, I accept that the visual impact of the proposal adequately addresses the considerations in cl 26 of SREP and the requirements of the DCP

Conditions

As a consequence of this decision the conditions of consent are amended to approve plan No 4204-SK.16 (Condition A.3) subject to the conditions that the western most berth located at the northern end of Arm B shall have maximum boat length of 30m and the remaining berths shall have a maximum boat length of 37m (Condition C.1.(l))
Consequential amendments to the conditions have been agreed to by the parties, which include that three swing moorings are relinquished (Condition A.11), deep draft vessels that do not comply with the underkeel clearances set out in s3.2(f) of AS3962-2001 shall not enter the marina (Condition C.1 (n)) and that no person shall be permitted to reside on any boat at the marina (Condition I.21)
The applicant sought changes to conditions to permit 37m boats to use the fuel berth. The council opposed this change on the basis of navigational safety, it was not part of the application and had not been considered by its consultant and the change should not be made without further evidence. The applicant has agreed not to press this change.

Orders 1. The appeal is upheld; 2. Modification Application No. 682/2008/3 to modify Development Consent No. 682/2008 for the redevelopment of Rose Bay Marina at 594-596 New South Head Road, Rose Bay, is determined by approving the modifications as set out in Annexure A; 3. As a consequence of order (2), Development Consent No. 682/2008 is now subject to the consolidated, modified conditions of development consent set out in Annexure B; and 4. The exhibits, except Exhibits 3 and B, may be returned. Annelise Tuor Commissioner of the Court 10956 of 2014 Tuor (C)(Annexure A) (19.8 KB, pdf) 10956 of 2014 Tuor (C)(Annexure B) (439 KB, pdf)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 May 2015

At a glance

Court

Decision date

Before

Source

Judgment (11 paragraphs)

Parties

Cases Cited (1)