Royal Motor Yacht Club NSW Port Hacking v Sutherland Shire Council

DATES OF HEARING: 27-28/09/2007, 02/10/2007, 19/10/2007, 13/12/2007, 16-17/01/2008

APPLICANT Mr P. Tomasetti, SC instructed by Mr J. Hannaford of Hannaford Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Mr J. Cole, solicitor instructed by Mr Ph. Brown of Home Wilkinson Lowry Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10483 of 2007 Royal Motor Yacht Club NSW Port Hacking v Sutherland Shire Council

JUDGMENT Background. 1 RMYC has appealed against Council's refusal of a development application for the demolition of an existing 57 berth marina and the construction of a new 74 berth floating pontoon marina and associated parking located at the Port Hacking Royal Motor Yacht Club. The club is located at 228 - 232 Woolooware Road, Burraneer.

2 The issues identified for the Court are summarised as: o Marina design suitability relative to its size and scale, the subsurface conditions and possible contamination effects, local wave climate and, likelihood of increased siltation. o Alienation of public access to areas of the waterway. o Visual amenity and scenic quality. o Adequacy of car parking. o Amenity impacts on neighbouring properties. 3 A number of previous development applications have been lodged and approved for this site and some aspects implemented. Of significance in 1992, Mr Justice Stein upheld an appeal in the LEC (Appeal No 10093 of 1992), which allowed an effective 2-stage development of the property for alterations and additions to the clubhouse and the provision of a function room. The conditions of consent required the provision of 160 car spaces and 10 trailer spaces.

4 However, it now appears that as the existing marina has suffered storm damage and is dilapidated, so the club wishes to replace it with a larger and more efficient one. The Site. 5 This site is described as Lot 20 DP 4871 and includes a Permissive Occupancy (1965/106), together with a Schedule 3 Lease, resulting in a usable area in the order of 1.01 ha. It has a frontage of 46.87m to Woolooware Road and depth of approximately 210m.

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.

.ii Sutherland Shire Local Environmental Plan 2000. This is the primary local control for the development. Under this LEP the site is zoned part 6(b) Private Recreation and part 7(a) Environmental Protection (Waterways) and it is within a Foreshores Scenic Protection Area. A 20 m Foreshore Building Line also applies to the site.

The proposed development is permissible with development consent.

.iii Sutherland Shire Local Environmental Plan 2006 . The site is affected by the provisions of this LEP, which came into effect on 29 November 2006. Under this LEP, the proposed development is permissible with consent. For the purposes of this development application, this LEP is deemed to be a draft LEP.

.iv Development Control Plan for Waterfront Development.

.v Car parking Development Control Plan. The Evidence. 9 Detailed evidence for council was presented by: o Mr K Nash; Consulting town planner, o Mr G Pindar; Traffic consultant, o Mr P Fielder; Consulting engineer.

10 Evidence for the applicant was presented by: o Mr L Fletcher; Consulting town planner, o Dr P Treloar; Consulting marine engineer, o Mr A Patterson; Coastal engineer, o Mr C McClaren; Traffic consultant,

11 Other evidence was presented by a number of residents, who expressed concerns about: o Inadequacy of car parking and traffic problems on Woolooware Road, o Loss of navigable waterway, o Impact on vegetation. Proposed marina. 12 There are a number of complimentary controls in the various planning documents, which would allow the construction of an appropriate new marina, providing it protects the amenity of the area and represents a reasonable balance between the private interests of the club of the other waterway and foreshore users. The primary controls are contained in SEPP 71 and the following aims are relevant:

(a) to protect and manage the natural, cultural, recreational and economic attributes of the New South Wales coast, and (e) to ensure that the visual amenity of the coast is protected, and (f) to protect and preserve beach environment and beach amenity, and (j) to manage the coastal zone in accordance with the principles of ecologically sustainable development (within the meaning of section 6 (2) of the Protection of the Environment Administration 1991) and (k) to ensure that the type, bulk, scale and size of development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area, and … 13 Clause 8 of SEPP 71 lists the matters that consent authority is to take into consideration when determining a development application and includes: (d ) the suitability of development given its height, location and design and its relationship with the surrounding area, (f) the scenic qualities of the New South Wales coast, and means to protect and improve these qualities, (j) the likely impact of coastal processes and coastal hazards on development and any likely impact of development on coastal processes and coastal hazards, … 14 With regard to the proposed marina, the relevant objectives for the 7 (a) Environmental Protection Zone are: (a) To recognize the importance of the waterways of Sutherland Shire, as an environmental and recreational asset for residents of the area and the Sydney region. (b) To ensure development does not adversely affect the ecology, scenic value or navigability of the waterways. (c) To ensure aquatic environments are not adversely affected by the recreational use of the waterways… 15 Taking into account that this proposal is basically replacing an existing marina, which has served the local community for a long time and boating is an important recreational asset for residents of the area, I am satisfied that an appropriately designed marina can reasonably satisfy objectives (a) and (c).

16 With regard to the other objective (b), the evidence presented to the Court is that the un-resolved design aspects concerning an appropriate marina are: o Impacts on the surface bed, including the exposure of acid sulphate material. o The size and scale of the proposed marina, including its encroachment into the waterway. o Impacts of wave action. 17 The demolition of the existing marina requires the removal of existing wooden piles. Consequently, concerns were raised initially by Council that this work could disturb the seabed and cause the release of acid- sulphate material. A sediment contamination assessment by Hyder Consulting (Ex T) identified the presence of some contaminants, including acid sulphate soils. Hyder recommended appropriate environmental controls to be implemented.

18. The engineers jointly considered this matter and agreed that if the marina support piles are non-displacement steel tube piles, there should be no pile driving issues related to acid sulphate soils. Based on this agreement, I am satisfied that conditions of consent, particularly a detailed construction management plan, can address this concern.
19. The next critical concern is that the floating marina will cause an adverse impact on the coastal processes of Gunamatta Bay. According to Mr Fielder's interpretation of the estimated wave action, he says that the wave action will generate a "high water pressure" shadow in the north and west corner of the bay, which will contribute to the significant shoaling problem currently occurring that requires remedial dredging. In support of this position, Mr Fielder says that this shoaling appears to have occurred since 1992 when the existing marina was constructed. Accordingly he considers the new marina will exacerbate this problem.

20 In the joint engineering conference there was agreement of the change in the beach environment, particularly on the eastern side of Gunnamatta Bay, which coincided with the existing marinas establishment in 1992. However the engineers were uncertain if the marina was the sole, part, or any cause to the change to the processes in the bay because the processes have not been studied to that level of detail. 21 The engineers agreed that the impact of the existing and proposed marina on the processes in Gunnamatta Bay to an appropriate level of detail of sediment transport, could be studied using a calibrated wave current morphological system model. The Council submissions are that this detailed modelling should be undertaken prior to the granting of consent.

22 Notwithstanding this, Dr Treloar said that he had developed an alternative wave and current modelling system and investigated the change in effects of the proposed marina on currents (tide and wind caused) and waves. From this he found the likely changes quite localised. He says this level of modelling is quite detailed and set with physically realistic parameters, which are adequate in the current circumstances to enable model-to-model comparison. Consequently, his opinion was: "the existing RMYC facility has had no effect on sediment transport along the eastern shoreline where waves more local to that region of the Bay affect sediment transport." 23 When questioned on the possible causes of the current siltation, Dr Treloar said it could be from: o changes to stormwater entry conditions at the head of the bay, o dredging, o changes in wind conditions as measured from records at Botany Bay.

24 However Mr Fielders enquiries revealed that there was no significant changes to the stormwater entry arrangements and no dredging occurred during the period. Therefore it seems the changes and siltation in the Bay geomorphology is attributed to wind changes, according to my understanding of Dr Treloar's evidence.

25 Nevertheless, Mr Fielder maintained his opinion based on the existing details of tidal movements (Ex11), that the more detailed modelling was required. Furthermore, he expressed concern that the 'wave and current model' was not accurately calibrated in terms of the northern pontoons extension into the bay, its width or depth. He conceded however, that if the proposed marina did not encroach significantly further in the bay, the impact of the new marina could be expected to maintain existing impacts. 26 In cross examination, Mr Fielder ultimately acknowledged Dr Treloar's pre-eminence in coastal modelling processes. Accordingly, the Court accepts this position, but with some reservations on the reliability of the model, due the co-incidence of the apparent wind changes in 1992, apparently being the main cause of the silting and inaccurate dimensions of the new marina being used in the model.

27 Following on from this, evidence was presented regarding the suitability of the site for the particular marina design. The issues identified relating to the performance of the marina are: o Water depth; providing safe depths at all stages of the tide with waves superimposed. o Safe haven for berthing in all storms up a designated storm event (eg 1:50 storm event). o Survivability of the marina structure itself in the design 50-years storm.

28 The wave climate is one of the critical design factors that caused concern for council. The engineers agreed that the significant wave height Hs is 0.8m for the 50 years ARI storm, which exceeds the recommended height of 0.75m in AS 3962 for moderate wave conditions. AS 3962 suggests that the most severe wave climate should not exceed the "moderate" rules.

29 The berths predominantly exposed to these waves are berths 11 to 24 on the southern arm. This arm is to be designed as a wave attenuator (floating breakwater) and incorporate additional mooring piles.

30 Mr Patterson has extensive experience in the design of coastal structures and also served on the committee who formulated AS 3962. He says that the AS provisions are only guidelines and pertain essentially to vessels berthed in conventional marinas. He pointed out that there are many locations where the use of different mooring systems and marina systems permit safe berthing outside the guidelines. An example is that additional mooring points are provided at each quarter of the vessel, resulting in the addition of a mooring pile in the centre of each double berth. This system is incorporated in the current application.

31 Therefore, in supporting the proposal, both Mr Patterson and Dr Treloar say that other "rough" berths (with Hs exceeding 0.8m) have been approved in Sydney Harbour, including the NSW Maritime approved berths at Walsh Bay. Although, in cross-examination it appears this level of exposure is to wave action of other vessels and not storm events. Dr Treloar also referred to the marina he designed for the St George Motor Boat Club, that was able to successfully withstand the effects of the 2007 storm event. 32 Mr Fielder is familiar with the St George marina and says it provides an excellent environmental wave barrier. However he says that there are no berths on the weather (rough water) side of the barrier.

33 This appears to be in contrast to the subject proposal, which contains berths (11 - 24) on the weather side. Despite Dr Treloar and Mr Patterson expressions of support for the proposal, the examples referred appear to be subject to different circumstances. Therefore in my assessment, these examples do not provide support for a cautious assessment approach to the marina, particularly when due allowance is made for the restricted modelling undertaken. Visual impact and alienation of part of the waterway 34 This issue covers the visual impact and scenic quality of the extended form of the new marina due to its additional protrusion of 13m on the northern arm and 31m on the southern arm into the bay. Also, the impact on other waterway users, in terms of utility and navigability restrictions.

35 A visual assessment of the proposal was undertaken from the water and other land vantage postions, including the public wharf near Lugano Ave. From the waterway, a dynamic and static assessment indicated that the extended marina would mostly be within the backdrop of the existing marina footprint. Although, from the Lugano Ave viewing point and most land positions to the south of the club, the extended southern arm of the marina would noticeably encroach into the open waterway view corridor.

36 As the scale of the new marina incorporates a significant number of larger berths than currently exist, I accept it is likely the larger vessels will be berthed in the outer, deeper water positions, as stated by Mr Fielder based on his survey of comparative boat surveys. My assessment is that this is then likely to result in a noticeable increase in the visual impacts of the density of boats, which is compounded by the fact that the usable waterway area for the club can increase by 50%.

37 Accordingly, I consider the scale and size of this amount of expansion involved with the marina will not protect or improve the existing scenic qualities of the bay as required by the controls and therefore is a negative aspect of the proposal. This is consistent with the opinions expressed by a number of the objectors and does not represent a reasonable balance between the private interests of the RMYC and public interest of the general public.

38 The impact on navigability is one of the specific objectives to be considered. Mr Fielder, who is a local resident and sailor in the bay says the marina extension will restrict sailing navigability in certain weather conditions and cause some restrictions for the Bundeena Ferry. This concern was also expressed by Mr Kelly on behalf of the Cronulla Sailing Club, which is located in the head of the bay. He said the marina extension would likely cause some undesirable hazards for the juniors learning to sail on the bay.

39 Against this however, on 15 September 2006 the NSW Maritime advised that it 'has no navigational objection to the proposal'. In the interests of safe navigation it requested that consideration be given to providing illumination of the ends of each T Head that protrudes into the channel so they are clearly distinguishable to the boating public.

40 In balancing these competing positions, I note Mr Tomasetti's submission that this authorities advice should be relied upon in the circumstances. However in an overall assessment on the use of the bay, the southern arm will protrude some 30m further into this relatively narrow section of the bay, which will inevitably reduce navigability options, particularly for the sailors. As the basis for the NSW Maritime position was not stated, I do not consider it should be given determinative weight in respect of the navigation considerations. Presumably a shorter extension, which achieves other desired planning objectives, would also satisfy the NSW Maritime. 41 Accordingly, it is obvious that the extended marina will encroach further into the waterway and consequently restrict to some extent navigability. This is not a positive outcome for many waterway users and therefore it is not an enhancement, or of neutral impact, in my opinion. Instead, it is more likely to create a degree of adverse impact, which is not consistent with the provisions of objective (b) of the 7(a) zone objectives.

Carparking 42 The other significant issue concerns the proposed car parking. This arises because when an earlier consent was granted by His Honour Justice Stein in Appeal No 10093 of 1992, for the licenced premises/clubhouse building, the consent conditions required provisions of car parking spaces for 160 cars + 10 car/trailers. That consent has been partially implemented with Stage 1 club house, although the separate Function Room (Stage 2) on the upper level of the site has not been commenced.

43 Accordingly, there is no change proposed to the current operations of the club from the current application. The club is currently subject to a POPE licence that limits the number of people on the premises to a maximum of 250 people. Therefore, the parking requirements for the club will not alter as a consequence of the current development application.

44 However, the additional marina berths create the need for 6 additional car spaces.

45 Consequently, the current development application allows overall for 166 spaces + 10 car/trailer spaces with 103 spaces available for Stage 1. But Mr Nash says that spaces 1 - 5 should be deleted to avoid the visual impact of car parking areas so proximate to the waterfront and replacement and additional landscaping for these spaces would be a better planning outcome. Also, space 18 is unattractive because it restricts access to the garbage and storage area.

46 The assessment of adequate car parking spaces became confused because of alterations to the original consent allowed by Council, which incorporated a reduction of 11 car parking spaces, the dual use of some spaces for trailers and the intention to supply additional parking for Stage 2 in the basement area of the future function room.

47 Part of the confusion arose because the number of spaces shown on the approved Building Application plans for Stage 1, reduced that required by Stein J. The applicant contended that this the appropriate number of spaces council was satisfied with at the time and this effectively reduced the overall demand for parking.

48 This matter was reviewed by the planners, who presented the attached table (Attachment 1), which highlights their different understandings of the parking approval requirements.

49 In assessing these disparate positions, it seems reasonable to me to now consider the needs of the existing development and incremental changes arising out of the current marina development application. Under these circumstances, the existing Stage 1 generates the need for 103 spaces + trailers and this is able to be provided in the current proposal. 50 Insofar as the overall development is likely to require at least the original 160 spaces + 10 trailer, together with the additional 6 spaces arising from the enlarged marina, this may cause some restrictions on Stage 2. However, Mr Tomasetti acknowledged that the club could address this by a s 96 modification, or new development application in the future. The merits of the application, in the context of the overall approval could then be assessed.

51 This conclusion that the car parking is now adequate for the subject development is consistent with the traffic expert's opinions. They noted that the Stein J consent was 'open-ended' and not based on patronage demand. Accordingly they say that assuming 2.5 persons/car, then the Stage 1 development could accommodate a maximum of 270 patrons (subject to the POPE licence), relying on 98 car spaces + 10 trailer spaces (this is less than the proposed 103 + 10 trailer spaces). Whilst Mr Pindar says this is more than adequate, he also says the applicant needs to demonstrate how the limit will be practically supervised. Mr McClaren noted there would be potential to introduce valet parking, which would result in increased capacity and efficiency.

52 As I have stated previously, the imposition of conditions limiting the number of patrons to a maximum of 270 for Stage 1, satisfies the traffic experts' assessment of car parking spaces requirements and their concerns about any overlapping demands from different uses within the site.

53 Ms J Woods, the Secretary/Manager of the Club gave an overview of the operations in terms of patronage. It seems that during the week nights, there may be up to 40 - 50 patrons. Then on weekends, the maximum numbers are in the order of 60. This may increases for special event or wedding occasions, with a summer time peak of 150 people, when security personnel are engaged. In any case, the Club adheres to its POPE licence, which limits patrons to a maximum of 250.

54 Ms Woods said the Club runs a courtesy bus to reduce private car reliance/parking and disamenity to neighbours at the club. She was not aware of any traffic complaints, including overflow into Woolooware Road and considered that adherence to the Club's management plan would achieve satisfactory traffic control and management.

55 Part of the traffic management measures discussed concern the revised entry and exit gates and fence, which form part of the Stage 2 parking arrangements. Mr Nash prefers this to occur as part of the Stage 1 works because: o it increases the available parking in the short term by 5 spaces, o it consolidates the car trailer parking into two locations generally adjacent, thereby enabling more efficient use of the`area for parking after the cars/trailers have vacated the area, and o there are no extenuating circumstances which prevent the realignment of the gates as soon as possible as part of Stage 1.

56 Insofar as Mr Fletcher disagreed with this, nevertheless the confusion over car parking revealed in this appeal, suggests that the car parking should be rationalised at the earliest time, so that the merits of the long-delayed Stage 2 can be properly assessed in the future. This course was supported by Mr Pindar, who said that updated traffic surveys should be undertaken.

57 Accordingly, I am satisfied it would be reasonable to require installation of entry/exit gates and associated supervision in busy periods, as a condition of any consent. Amenity impacts on adjoining properties. 58 A number of objections were lodged by neighbours regarding disamenity from car park users and unsafe parking from regular overspill in Woolooware Road. However these objections were somewhat countered by contrary evidence from neighbours on the southern side of the Club property. In my assessment, implementation of the aforementioned traffic control improvements as conditions of consent should result in a satisfactory level of traffic and parking amenity.

59 Other objections were lodged from the waterfront neighbours regarding beachfront damage exacerbated by the marina and associated concerns arising from the proposed expansion. The evidence indicates to me that this can be covered by the outcome of the expert evidence on the coastal processes.

Conclusions 60 Having considered the evidence, the submissions and undertaken a view, it is apparent that the raft of planning controls that apply to this development emphasise that coastal developments are restricted so they protect and do not adversely impact on the coastal amenity, including scenic quality of the area. Notwithstanding this, I am satisfied that SEPP 71 and the LEP allow appropriate marinas and watercraft facilities in the 7(a) zone, as proposed.

61 The stated aim in cl 2(1) (k) of SEPP 71 is to ensure that the type, bulk, scale and size of development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area. However the proposed marina represents a significant increase in scale and size with its increased wet footprint in the order of 9900 sq m, compared to the existing 6600 sq m, representing an increase in the order of 50%. 62 This increased wet footprint is to be achieved by a significant extension of the marina arms into the bay, particularly the southern arm by approximately 31m. The proposed design configuration then facilitates the berthing of more larger vessels.

63 Consequently, I am satisfied to rely on the council's evidence and submissions that the proposal is of excessive size and scale in the restricted width of Gunnamatta Bay. The proposal is likely to result in the berthing of more, larger vessels in the deeper water. My understanding of the controls is that in the relative balancing exercise, priority is given to maintence of the natural water, scenic quality environment. Accordingly, I consider the size of the new marina represents opportunities for an excessive number of boats in this area, resulting in negative visual impacts and consequential reduction in scenic quality. 64 An associated concern I have is that the 31m protrusion of the southern arm will have a negative impact on the navigability of the adjacent waterway for a significant number of residents of the area. As such, it will lead to the alienation of an important part of the bay used by these residents, which is not in the public interest. I consider the application should fail because of its excessive scale.

65 In this regard, I have carefully considered Mr Fielders detailed evidence, including his local knowledge of the bay over a considerable period. Of particular interest is his assessment of a number of options for a new marina configuration, which does not protrude to such an extent into the bay. The options also include less of the larger berths to reduce the protrusion. 66 Reference to Appendix D in his statement shows the NSW Maritime Map with the existing and proposed marinas depicted. From this, the line of moorings has been projected, which indicates to me that the proposed southern arm noticeably extends into the existing recreational waterway.

67 I accept that the line of mooring is a useful reference parameter in assessing the balance between the private interests of the club and reasonable maintenance of the recreational water area for the many other waterway users. Accordingly, it seems to me that a more reasonable balance could be a smaller marina, whose outer boundary on the northern arm is about the line of the permissive occupancy, that could be projected to the southern arm to allow an extension of the order of 10m. This better coincides with the southern moorings line. This would likely result in the deletion of some 8 berths. But that is an option that has not been presented in detail to the Court.

68 In this regard, I am mindful that the club has the benefit of the extended Schedule 3 water area, but consider any entitlement to maximise the development in this area is dependent on a satisfactory merit consideration of all relevant matters. In any case, it seems that an expanded marina with improved facilities such as the fuel pump and effluent disposal is likely to increase boat activity in the immediate environs of the marina and this can occur within the Schedule 3 area.

69 Apart from this, another critical issues concerns the adequacy of the details to assess the impact of the extended marina on the coastal environment of Gunnamatta Bay. Whilst Dr Treloar is pre-eminent in this field, his investigation was based on report reviews, assessment of aerial photographs and a "SWAN" wave model, which produced a wave shadow behind the marina. But this was not accurately correlated to the local conditions in the bay, because no Waverider bouy was deployed to calibrate the wave model with a current meter .

70 Whilst Dr Treloar says the changes in effects of the proposed marina are likely to be quite localised, nevertheless no satisfactory explanation for the actual changes to the coastal processes that have resulted in the actual beach conditions and shoaling was given, except for the co-incidental change in wind conditions in 1992, when the current marina commenced use. The engineers acknowledged in the joint engineering conference that they did not know if the existing marina is the sole, part, or any cause of the change to the processes in Gunnamatta Bay that resulted to the change in the beach condition, as the processes have not been studied to sufficient level of detail.

71 An associated problem concerns the modelling parameters used in the wave model. While it models the pontoons, it apparently does not replicate the actual dimensions of the proposed marina, particularly the deeper attenuation arm, or the effective changes in wind/wave action arising from the different boats to be berthed.

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.

75 An associated concern is that the bay periodically experiences rough weather, which has caused considerable damage to property in past storm events. Under these circumstances, where the initial assessment shows that the design wave height (Hs) of 0.8m exceeds the AS 3962 standard, then in my assessment, a cautious approach would be to adopt "common practice" and restrict berths on the extended "weather" side of the new marina. As the applicant does not accept this, it seems the proposal introduces additional risks associated with the proposed size of the new marina, notwithstanding the provision of the additional mooring poles and this is a negative aspect in my opinion. Although, considered alone it probably would not result in the refusal of the application. 76 Whilst a number of other detail issues were presented and the Court referred to other cases, I do not consider them of such relevance to the circumstances of this application, which would result in the approval of this marina. In the ultimate, the evidence indicates to me that the size and scale of the new marina, with its 31m protrusion into the bay is excessive and not consistent with the objectives and controls in SEPP 71, or the LEP to merit consent.

77 Whilst I have considered the evidence that other possible marina options may be appropriate, they are not part of this application and could be assessed in some other application. Likewise, I have presented part findings on the proposed car parking, but they are not determinative because of the failure of this application on other grounds.

Court Orders 1 The appeal is dismissed. 2 Development application No DA06/0421 for a 74 berth marina and associated parking at the RMYC, 228 - 232 Woolooware Road, Burraneer is refused. 3 The exhibits may be returned except for 1, A and B.

      R Hussey
      Commissioner of the Court
      ljr/mp

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