Royal Motor Yacht Club NSW Port Hacking v Sutherland Shire Council

Royal Motor Yacht Club NSW Port Hacking v Sutherland Shire Council - [2008] NSWLEC 1126 - NSWLEC 2008 case summary — Zoe

[13]

6 Residential dwellings adjoin the sites northern and southern boundaries and the foreshore is extensively developed with private facilities including slipways, wharfs, jetties and pontoons, and berthing areas. This foreshore area is also developed with private swimming pools, boatsheds and retaining walls located below the Foreshore Building Line and also some below Mean High Water Mark. The Proposal. 7 This proposal involves: o The demolition of the existing 57 berth marina and replacement with the new 74 berth floating marina. o The new marina is to employ a y-shaped configuration. The 74 permanent berths comprise 4 x 9m berths, 7 x 10m berths, 14 x 11m berths, 15 x 12m berths, 30 x 15m berths, 2 x 16m berths and 2 x 18m berths. o The proposed marina structure, compared to the existing marina, will extend approximately 3m to the north and approximately 7m further to the south. It will extend into Gunnamatta Bay a further 31m on the southernmost arm (which incorporates a wave attenuator) and 13.2m on the northernmost arm, as compared to the existing structure. o The proposed marina will have a wet footprint of 9900 sq m, compared to the current marina, which has a wet footprint of 6500 sq m. o Reducing the current 6 swing moorings to 5 swing moorings. o The overall area covered by the new lease is approximately 1.01 ha compared to the existing lease area of approximately 0.87 ha. o The new marina is to consist of floating pontoons rather than fixed height jetties and does not propose any dredging or reclamation works. o Power, water and the lighting reticulation will be provided to the berths. A fuel berth is also proposed on the northern side of the marina, together with a sewerage pump out system. o The reconfiguration of the existing car parking area to provide a total of 103 parking spaces, including 10 car/trailer spaces, for the Stage 1 development. Planning Controls. 8 The planning framework comprises: .i State Environmental Planning Policy No 71 -Coastal Protection. This SEPP contains aims and associated controls to protect and manage the natural, cultural, recreational and economic attributes of the NSW coast. The proposed development is subject to these controls.

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72 Therefore, Mr Cole's submissions that the level of modelling in the circumstances is inadequate has merit. I accept Mr Cole's submission that a cautious approach should be adopted and detailed modelling undertaken of the actual proposal, to enable its assessment prior to the grant of any consent. This is consistent with the SEPP 71 aims, particularly (j). 73 In this regard, he refers to the matter of Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133, wherein the Chief Judge in dealing with the precautionary principle said: Conditions precedent or thresholds to application of the precautionary principle 128 The application of the precautionary principle and the concomitant need to take precautionary measures is triggered by the satisfaction of two conditions precedent or thresholds: a threat of serious or irreversible environmental damage and scientific uncertainty as to the environmental damage. These conditions or thresholds are cumulative. Once both of these conditions or thresholds are satisfied, a precautionary measure may be taken to avert the anticipated threat of environmental damage, but it should be proportionate: N de Sadeleer, Environmental Principles: From Political Slogans to Legal Rules, Oxford University Press, 2005 at p.155. Threat of serious or irreversible damage 129 Two points need to be noted about the first condition precedent that there be a threat of serious or irreversible environmental damage. First, it is not necessary that serious or irreversible environmental damage has actually occurred - it is the threat of such damage that is required. Secondly, the environmental damage threatened must attain the threshold of being serious or irreversible. 74 As this part of Gunnamatta Bay is environmentally sensitive to siltation, I consider it reasonable that accurate, detailed modelling be undertaken, prior to any approval to model the impacts on this enlarged marina, to predict possible changes avoid potential environmental damage.

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