Royal Motor Yacht Club of New South Wales Port Hacking Branch v Sutherland Shire Council - [2024] NSWLEC 1355 - NSWLEC 2024 case summary — Zoe

NSWNSWLEC

Royal Motor Yacht Club of New South Wales Port Hacking Branch v Sutherland Shire Council

[2024] NSWLEC 1355

Land and Environment Court (NSW)|2024-06-26

View original source

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2024-06-26

Source

Original judgment source is linked above.

Judgment (81 paragraphs)

[1]

JUDGMENT

COMMISSIONER: The Royal Motor Yacht Club of New South Wales Port Hacking Branch (the Club) has appealed against the decision of Sutherland Local Planning Panel (the Panel) to refuse its modification application, referenced as MA21/0070.
MA21/0070 seeks to modify an existing development consent (DA08-1349) which applies to the Club's land-based property off Woolooware Road in Burraneer and adjacent leased Crown land to the east within the waterway known as Gunnamatta Bay. When referring to the site in this judgement I am referring to both the land-based property and leased waterway area. The central element of the modification of DA08-1349 proposed with MA21/0070 is to extend the existing floating marina further eastwards.
The Club has subsequently appealed this decision under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). Sutherland Shire Council (Council) is the respondent to the appeal by virtue of s 8.15(4) of the EPA Act.

[2]

Site and setting

The land-based western half of the site, at 228-232 Woolooware Road, comprises a registered club premises, accessways, carparking, landscaping, along with some marina services. This area is zoned RE2 Private Recreation under Sutherland Shire Local Environmental Plan 2015 (SSLEP). The eastern half of the site, on Gunnamatta Bay within Port Hacking and comprising the leasehold land, is occupied by an existing floating marina and is zoned W2 Recreational Waterways. Henceforth I will refer to this part of the site as the leased waterway.

[5]

Introducing contentions and coming to the key issues in dispute

Council nominated a total of around 20 contentions in Ex 8, including matters relating to insufficient information. However, many of the nominated contentions involved duplication in relation to substance, were subsequently resolved to the satisfaction of experts or parties or were readily manageable by conditions of consent. Here I first refer to Contentions 10 (impacts on coastal processes) and 11 (implications of wave heights in the marina), I am satisfied that each of these matters has been resolved satisfactorily through the provision of further evidence and via conditions of consent as proposed by the relevant experts.
I am similarly satisfied with respect to neighbour amenity (Contention 9 and concerning insufficient information claims relating to noise). This is essentially because of the expert planning evidence on the topic (Ex 4a) and associated conditions of consent as proposed.
On a different vein, I do not see Contention 1 (relating to suggested unauthorised works in the floating marina construction) as within the general ambit of the evaluation exercise I am required to undertake here. The point Council sought to pursue is captured in this quote (Ex 8 par 1(b)) DA08/1349 approved plans which provided for 64 berths and show a maximum distance of 139.4m from the shoreline and arms B & C at the same distance. The development has been constructed to have 70 berths and a maximum distance of 143.6m.
While I think the matter is not entirely clear, I accept the arguments of the Club that the construction certificate (CC) drawings can be taken to represent the essential layout approved with DA08/1349. This is because the drawings approved with DA08/1349 (here I refer specifically to drawing 2540-SK5 (Ex 3A folio 73)) did not indicate external dimensions and that the CC drawings can be accepted as a bringing forward of the berthing configuration approved in DA08/1349; along with the spacing (between berths) associated with relevant standards and consent conditions. Council's photographic evidence suggesting additional boats were moored at a point in time would be a matter for enforcement provisions rather than for my consideration in the evaluation of a modification application.
I can also note I, generally, do not see Contention 6 (relating to cl 6.9 of SSLEP and development in the "foreshore area") as a significant factor in these proceedings. The foreshore area is defined to mean "land between the foreshore building line and the mean high water mark of the nearest bay or river" (SSLEP Dictionary). The focus of the clause is the foreshore area. Modifications proposed in this area are limited to the fuel pipeline (Joint Report Navigation, Safety and Waterway Occupation Ex 6 par 102), and can generally be seen as of quite low scale and of low impact having regard to cl 6.9.
Contentions relating to parking are not so clearly resolved. It does seem clear enough that the parking arrangements proposed with the application are satisfactory of themselves. That is to say that in light of the further material provided by the applicant in the course of the proceedings there seems to be a capacity for sufficient parking to be provided. But there were submissions from Council that, on the evidence, some of this parking was proposed in areas previously approved as landscaping areas (Council written outline of submissions received by the Court on 2 April 2024 (RCS) par 62). There were different points of view expressed by the parties on this matter. Ultimately, it is not necessary for me to rely on this question of parking and landscaping, one way or the other, in the determination I make below.
Further, and mostly as a point of reference in things considered further below, I do not see the prospective visual impacts of the proposed extension from the foreshore (either on the western or eastern side) as a substantive factor in my determination. From the western foreshore, and nearby private residences, the views of the extension would be substantially masked by the existing marina or filtered by swing moorings. At the invitation of the parties, I undertook a view from the park at the end of Lugano Street and my impression was that due to the narrow relevant field of view, distance attenuation and existing swing moorings there would not be an unreasonable adverse visual impact associated with the proposal. I would find similarly, from the eastern foreshore, noting the added factor of the existing marina acting as a visual backdrop already.
There is an additional question relating to whether the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, mindful of s 4.55(2)(a) of the EPA Act. Here, I would simply agree with the Planning Panel that it not appropriate to look to this test as justification for refusal of the application (CCS par 67).
What remains are contentions relating to the extension of the marina into Gunnamatta Bay, of itself. This broader topic is a consideration in the following contentions of the Council:

Contention 4 (relating to State Environmental Planning Policy (Resilience and Hazards) 2021, and in particular Chapter 2 relating to coastal management);
Contention 7 (claiming an unacceptable impact on public waterway from private marina operations);
Contention 8 (claiming an unacceptable impact on public recreational use of Gunnamatta Bay through additional protrusion of the marina);
Contention 12 (claiming further extension of the marina unreasonably alienates public land);
Contention 13 (claiming adverse impact on navigability of the waterway).

I generally accept the position outlined by the Club in regard to the additional extent the marina would protrude into the bay with the proposed modification, as follows (CCS par 74(f) and (g) and as indicated in Figure 2):

The northern arm (Arm B) would extend eastward by 13m;
The southern arm (Arm C) would extend eastward by 18m.
The overall length of the structure (from a given benchmark near the shoreline) would increase from 133.5m to 151.5m or some 13.4% in length. Figure 2 - Existing marina and proposed marina extension shown in white outline (source: Ex 4b p 12)

The navigation experts agree that the minimum channel width past the Club is currently 140-145m and this would reduce to 122-127m with the proposed marina extension (Ex 6 p 22).
I also note the Club's argument that DA08/1349 does not specifically restrict mooring of vessels along the eastern side of the T-head (something which would be sought to be prevented under the proposed consent conditions). I will return to this later.
The essential remaining issues in dispute between the parties, in one way or another, relate to questions around the balancing of public and private interests in relation to water-based recreation. In this particular matter, I can synthesise the essential dispute between the parties into five more applied topics, as follows: 1. The implications of the existing waterway lease 2. Navigation implications 3. The implications for public's general "on-the-water" experience 4. Intergenerational equity 5. Planning or beneficial outcomes of the development.

[8]

State Environmental Planning Policy (Resilience and Hazards) 2021

Chapter 2 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP), concerned with coastal management, applies to the proposal. The aims of the chapter are as indicated below: The aim of this Chapter is to promote an integrated and co-ordinated approach to land use planning in the coastal zone in a manner consistent with the objects of the Coastal Management Act 2016, including the management objectives for each coastal management area, by - (a) managing development in the coastal zone and protecting the environmental assets of the coast, and (b) establishing a framework for land use planning to guide decision-making in the coastal zone, and (c) mapping the 4 coastal management areas that comprise the NSW coastal zone for the purpose of the definitions in the Coastal Management Act 2016.
Given the direct reference to the objects of the Coastal Management Act 2016, I have also had regard to them, but they are lengthy and there is no need for me reproduce them here.
There is no dispute that the bulk of the site and the area of relevance to the topic at hand falls within the 'coastal environment area'. Section 2.10 is concerned with such areas and sets out certain controls, as follows: 2.10 Development on land within the coastal environment area (1) Development consent must not be granted to development on land that is within the coastal environment area unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on the following - (a) the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment, (b) coastal environmental values and natural coastal processes, (c) the water quality of the marine estate (within the meaning of the Marine Estate Management Act 2014), in particular, the cumulative impacts of the proposed development on any of the sensitive coastal lakes identified in Schedule 1, (d) marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms, (e) existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability, (f) Aboriginal cultural heritage, practices and places, (g) the use of the surf zone. (2) Development consent must not be granted to development on land to which this section applies unless the consent authority is satisfied that - (a) the development is designed, sited and will be managed to avoid an adverse impact referred to in subsection (1), or (b) if that impact cannot be reasonably avoided - the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised - the development will be managed to mitigate that impact. …
I must also consider s 2.12, as the western portion of the marina is within the coastal use area. The changes here are very limited and will not have an adverse impact.

[11]

Expert evidence

In these proceedings the expert evidence relating to the issues that I have suggested are critical to the determination of the matter were provided as follows:

In relation to town planning matters: K Hodgkinson (appointed by the Club) and K Nash (appointed by Council). The report by these experts of most relevance to this judgement was marked Ex 4b.
In relation to navigation, safety and waterway occupation: R Plain (appointed by the Club) and P Fielder (appointed by Council). As already indicated, the report by these experts of most relevance to this judgement was marked Ex 6.

A matter arising in the proceedings was the weight that should be afforded to the evidence of Mr Fielding. Among the submissions of the Club was that Mr Fielder's evidence should be given little or no weight. My understanding of the Club's submission was that Mr Fielder acted outside the Code of Conduct for expert witnesses set out at Schedule 7 to the Uniform Civil Procedure Rules 2005 (UCPR) in relation to duties of disclosure, in that matters of significance to the fact of partiality were not disclosed by Mr Fielder in his input to Ex 6. As put by the Club (CCS par 9(c)): Notwithstanding [Mr Fielder's] understanding of his obligation, he did not disclose to the Court any time before his oral evidence: (i) that he made a submission objecting to the development in his personal capacity during the Council assessment period; or (ii) that he was a member of the Board of the Cronulla Sailing Club during the relevant period and resigned his position to 'cure' what he understood to be a conflict of interest in September 2023; or (iii) that he was engaged by the applicant and addressed the Council's IHAP on 1 June 2009 in support of development application DA08/1349; (iv) that he did not make an objection to DA08/1349 because the structure did not 'encroach further' into Gunnamatta Bay. [original footnote references are not reproduced]
On this point, the Club made particular mention of Council's contentions 12 and 13, relating broadly to the question of the alienation of public land (associated with the extension of the floating marina to the east) and impact on navigability of the waterways, respectively, suggesting that (CCS par 157): The Court would be particularly cautious of Mr Fielder's evidence in relation to contention 12 (and 13) given his personal objection and association with the Cronulla Sailing Club which seeks a navigation channel which protrudes into the lease area and to which Transport for NSW have expressed no objection in relation to navigation of the channel.
The Club referred to Aitchison v Leichhardt Municipal Council [2002] NSWLEC 226 (Aitchison), as follows, in support of its position (CCS par 157): In [Aitchison], Talbot J considered how expert evidence should be treated in circumstances where there is an apprehension of bias in class 1proceedings. In that case, the expert was the applicant to the proceedings (agent for the applicant) and the project architect. After considering the historical authorities, Talbot J ultimately found that the 'fact of partiality has a bearing on the probative value of this evidence, particularly where it is contrary to the evidence of another expert'. [original footnote references are not reproduced]
I agree with the Club that it is relevant, for example, that in the very recent past, Mr Fielder was a director of the Cronulla Sailing Club. It would have assisted if this and some of the other points referenced above were better referenced in Ex 6. In hand with this, I think that by the end of the extended cross-examination of Mr Fielder by the Club, on this point relating to partiality and especially his relationship with Cronulla Sailing Club, there was a good understanding on the part of the Court of Mr Fielder's connection with the Cronulla Sailing Club and its interests. It was also my opinion, based on this extended cross examination and his other in-Court evidence, that Mr Fielder's testimony was open and honest. He presented as a very able expert in the witness box in his openness to this examination and the directness of his replies. As did Mr Plain. Moreover there was little in the way of differences between Mr Fielder and Mr Plain in regard to much of this evidence.
There was a difference on the part of the experts on these questions relating to the balancing of public and private interests insofar as the use of the bay is concerned. There does also seem to be a relationship between the navigation channel within Gunnamatta Bay at least practically available for the Cronulla Sailing Club and the proposed extension of the marina into Gunnamatta Bay. I go to this question of the implications of the waterway lease below, but what I am getting to here is whether there is potential for a partiality, even if subconscious, in the evidence of Mr Fielder on this matter of the effects on the Cronulla Sailing Club activities; as contrasted with the wider public interest. The Club did not allege anything intentional on that front (Tcpt 02/04/24 53(12)). My impression was that Mr Fielder's evidence was working at a level of generality above the Cronulla Sailing Club, or any individual group of waterway users. However, I have determined, in all of the circumstances here, including the subjective nature of some of the key factors in this decision, to not rely on Mr Fielder's evidence in instances where he is at odds with Mr Plain on this matter of the potential effects on the Cronulla Sailing Club including where there is a related association with the wider public interest. It will be seen that this has not been a particular concern for me given the considerable agreement of these two experts on certain related matters, and what I believe to be the fact that the particular concern around this question of balancing public and private interests has a subjectivity to it which can only partially be addressed as a topic relating to technical expertise.

[13]

Waterway lease implications

In relation to the broader question of whether an appropriate balance of public and private interest was achieved, there was disagreement between the parties as to the implications of the existing lease. While this does not only relate to Council's contention 12, the Club's commentary in regard to that contention sets the scene (CCS par 153-155): 153. Contention 12 is more repetition of the earlier contentions and seeks to extend the 'navigation' contention to a more general approach that the 'private' good should not be preferred over the public interest. 154. There is a fundamental flaw in the Council's approach. That is, the area of the marina extension has already been formalised in a lease agreement . The Lease was granted under the (then) Crown Lands Act 1989. Clause 30 of the Lease permits the Club to occupy the whole of the lease area for the purposes of a marina. The Crown also gave owners consent to the Modification Application as it was required to do under clause 35 of the Lease . Clause 94 of the Lease entitles the Club to 'quiet enjoyment' of the Lease area, that is exclusive use. 155. The Club pays a not insubstantial rent for the rights conferred by the Lease. Whilst the application of the funds is a matter for the Minister, it is reasonable to assume that the rent would [fund] other aspects of the public interest. 156. It is not appropriate for the Council to seek to review the decision of the Minister in terms of what is the equitable division of the public resource in these proceedings. 157. The Court would be particularly cautious of Mr Fielder's evidence in relation to contention 12 (and 13) given his personal objection and association with the Cronulla Sailing Club which seeks a navigation channel which protrudes into the lease area and to which Transport for NSW have expressed no objection in relation to navigation of the channel . 158. Mr Fielder's evidence assumes that the Lease has not been granted to the Club and that it is available for the 'public' without constraint. 159. Consistent with the advice from Transport for NSW and the detailed assessment that Mr Plain makes of the impacts on navigation in the channel, the Court would be satisfied that the proposal is acceptable.
It seems to me reasonable to understand that, as put by the Club, there has already been alienation of the waterway, most relevantly for me, extending out beyond the existing T-heads in accordance with the existing waterway lease boundary. The Club argues this provides for "exclusive use", which I would think should be seen to be true in law (notwithstanding Council's arguing the "fact" of existing public use of the lease area (RCS par 12)). However, it is the case (by vent of the lease but also under the planning laws of the State) that the particulars of use occurring within the waterway lease are (generally) limited to that available through the grant of development consent. While I don't assume the Club was arguing this directly, any relevance of "equitable division of public resource(s)" associated with the waterway lease, and lease payments, does not impel, or even have relevance to a decision in support or otherwise of the application for modification of a development consent under the planning laws of the State.
Notwithstanding there has been alienation of public waterway associated with the waterway lease, it is reasonable to understand that there are degrees of alienation in regard to such public land. While access across the leased waterway may not be legally available, that area of Gunnamatta Bay remains physically unaffected by floating structures or permanent moored boats. It seems rational to adopt a prima facie view that at least at some level on-water physical and visual openness would be diminished were the proposed structures and permanent boat storage to come about. While in my opinion not anything of the scale of impact as in that case, similar in principle to the findings in Stannards Marine Pty Ltd v North Sydney Council [2022] NSWLEC 99 [274], the proposed development in this waterway lease area has potential to "exacerbate" the existing alienation of the waterway from the public. This is an area for consideration below.
A factor in this consideration is to understand the status quo. During the site visit there appeared to be some boats being worked-on on the outer (eastern) side of the T-heads. The Club argues that that there is no current restriction on boats along the outer edge of the T-heads. The proposal would have a condition whereby signage would prohibit berthing on the outer T-heads. It would follow, for the Club, that the extent of any loss of on-water physical and visual openness should more or less assume boats at the eastern side of the existing T-heads (thus reducing the perceived impact and any exacerbation of alienation associated with the proposal). I give only a little weight to this argument. The status quo in terms of the extent of alienation should generally adopt the position of the existing development consent. The consent indicates the mooring locations. That is, the places where boats are to be moored were purposively indicated in relevant plans and therefore, it would be understood, determined in the consent. There was no argument as I understood it to suggest there was an approval for boat mooring or maintenance on the outer side of the existing T-heads. I agree with Council that if, for example, there was extensive commercial use of the outer T-head as a hub for boat servicing and maintenance, lawfully this would require development consent (RCS par 16). While it will be seen that this is not a determinative factor in any event, to the extent that boats are sometimes located along the outer side of the existing T-heads, this should be considered as occasional and subsidiary to the extent that it warrants little weight in the determination of the "status quo". Were it to be moreso, I think it would make sense for it to have been factored into the operational consent, as modified.

[14]

Navigation

Council was concerned that the proposal would adversely impact upon navigability of the waterways and increase pressure on crowded portions of the bay. With the proposal, and the extension of Arm C by 18m, the navigation experts agree that the minimum waterway width would be 122-127m in the Club vicinity. This would occur when "the moorings on the eastern side of the bay are lying to the west of the mooring blocks" (Ex 6 p 30). Mr Plain indicates a waterway width of about "100m is sufficient to provide two way navigation". His explanation factored in what Council sometimes referred to as the "30m rule" relating to separation. Mr Plain referred to cl 40 of the NSW Marine Safety Regulation, as follows: The operator of a power-driven vessel that is travelling at a speed of 6 knots or more must ensure that the vessel, and any towing equipment and any person being towed by the vessel, maintain a distance of not less than 30 metres from any vessel, land, structures and other things or, if that is not practicable, a safe distance and speed.
Clause 39 is also referenced defining safe distance and speed: For the purposes of this Division, a safe distance and speed, in relation to a person or thing, means a distance and speed that will ensure that the vessel will not cause danger or injury to the person, or damage to the thing, having regard to all relevant safety factors, including weather conditions at the time, visibility, speed of the vessel and obstructions to navigation that are present.
This demonstrates the confines and non-mandatory nature of this 30m provision, as put by Mr Plain, the provision (Ex p 30): Only applies to power driven vessels (not sail powered vessels). Notwithstanding, a waterway width of ~100m is sufficient to provide two way navigation, with 30m between the vessels and 30m between the vessels and a moored vessels or marina, noting that the waterway between the marina and the moored vessels would be reduced to approximately 122-127m (refer Contention 13b).
In oral evidence Mr Fielder agreed that safe navigation was not a contention. Nonetheless it was agreed by Mr Plain that congestion on the waterway "could increase" (Ex 6 p 6) and maintaining safe distance would be "less practicable", with the proposal going ahead (Tcpt 02/04/24 25(42-46)): COLE: Yes. My question was, if the proposal goes ahead, Mr Plain, you would agree with me that it would become less practicable to be able to maintain that distance? WITNESS PLAIN: Yes.
I note that this is not to say that there are not other more narrow areas of Gunnamatta Bay, both to the north of the Club and certainly in the channel into main arm of Port Hacking.
What I take from this is that, generally, navigability would be available, certainly when two boats were passing the confines of the leased waterway. This seems to be confirmed by the position of Transport for NSW raising no objections on navigation grounds (Ex 6 p 35). There would also be a some more congestion in this area of Gunnamatta Bay as a consequence of the proposal, which I return to below.
It also seems to me that the NSW Marine Safety Regulation provisions referenced above weaken the argument that the lease boundary is more than a neutral consideration. That is to say, the distance safety parameter (30m as the "first glance" indicator applying to power boats) applies to vessels, land and structures, but not lease boundaries.

[15]

Implications for public's general "on-the-water" experience

I have already indicated that I am not concerned about the visual impact of the proposal from on-land viewers, either the nearer western foreshore or the eastern foreshore [17]. However, Council's contentions do extend beyond this. I note Contention 8's direct reference to impacts on public recreational use of the bay, including in relation to the balancing of public and private interests. I also note, relating to alienation of public land, referring to findings of the Sutherland Shire Local Planning Panel (Ex 8 p 15): … Gunnamatta Bay itself represents a substantial public open space and amenity the worth of which or impact upon which cannot be evaluated by the measure of what is safe to navigate.
Certain of the particulars of this contention also warrant mention: … b) The proposal involves the further extension of the marina into waters presently open to the public for passive and active recreation navigation and recreational activity by residents of the area and the Sydney region. c) The effect of the extension will be to alienate a further portion of the Gunnamatta Bay waterway to private interests of 8 vessels, making it unavailable for general public use and enjoyment. …
There was agreement from the relevant experts in regard to the grouping of navigation and active recreational users of Gunnamatta Bay (Ex 6 p 24). The user groups which the experts seemed to be referring to were as referenced in Ex 8 (p 15), as follows: i) Cronulla-Bundeena Ferry, regular public transport. ii) Cronulla Charter Ferries , ferry and sightseeing services to the upper Port Hacking iii) Fishing charter vessels operating out of the public wharf at the head of Gunnamatta Bay iv) NSW Marine Rescue. v) Bate Bay Surf Clubs vi) Sailability vii) Cronulla Sailing Club program: (i) junior sail training, (ii) dinghy racing, (iii) sailboard racing, (iv) keel boat racing and (v) twilight racing. (vi) Canoe, dragon boat and outrigger clubs operate in the bay. (vii) General recreational vessels The boat ramp at Tonkin Avenue is one of the busiest in Sutherland Shire and provides small craft launching for many and varied craft. a. Canoers and rowers boat's b. General power and sail boating c. Water skiers and waker boarders d. Day trippers e. PWC (personal water craft) operations viii) Gunnamatta Bay is a designated seaplane landing area ix) Gunnamatta Bay boat ramp, is the busiest of 5 public boat ramps on the Port Hacking Waterway.
The experts added to these users the Cronulla Water Activities Scout Hall.
While Ms Hodgkinson was less concerned, Mr Nash describes the "conflict" the proposed extension of the marina would bring upon other users of the bay and visual impacts of the marina extension on the visual experience of users of the regular Bundeena Ferry (Ex 4b par 2.3.2).
There is also the matter of some proportionate increased "congestion" for boaters, associated with the physical narrowing of this section of the bay. I note the navigation experts gave some attention to the Cronulla Sailing Club's sailing events and courses. On this point, Mr Plain notes certain regulatory restrictions on such sailing events. He submits that, even during easterly winds, when the channel width past the Club is narrowest (Ex 6 p 35): …sail powered vessels could reach from the entrance channel, past RMYC, without needing to tack or gybe. This ensures that sailing vessels are travelling parallel to other traffic transiting from the public ferry wharf or Calico Marina to the entrance channel, which significantly reduces the potential for any collision to occur.
Mr Plain also notes that in other wind directions, the waterway width past the Club would be increased due to the swing of the moored vessels.
Attention is also given by Mr Plain to the risk of collision, indicating this as a combination of considering "likelihood" and "consequence", and finding as follows (Ex 6 p 36): Following extension of the marina, I would expect the likelihood rating to be similar to other areas in Gunnamatta Bay (i.e. 1 rare), given the remanent waterway width will be similar to the northern portion of Gunnamatta Bay. Minor/insignificant collisions between sailing vessels may occur more frequently. However, due to the low consequence, the risk rating would generally be lower that the assessment in the CSC's Aquatic Activity Operational and Risk Management Plan.
I will consider this topic further in my conclusions.

[16]

Intergenerational equity

Contention 7, concerned with "impact on public waterways from private marina operation" raises intergenerational equity directly. Mr Nash indicated the proposal would be unfair for future generations of recreational waterway users of Gunnamatta Bay in providing for private mooring facilities for 8 vessels (Ex 4b s 2.5.2). At the same reference point, Ms Hodgkinson indicated that: "…the footprint of the marina extends to the existing lease line and not the boundary of the existing infrastructure. This forms the area over which the RMYC has the right to use the waterway and which they are charged for the use of. … … while the new berthing infrastructure may take up part of an area that is perceived for public purpose currently, this area, in effect, forms part of the marina currently, such that the extension does not compromise intergenerational equity".
I have given consideration to the matter of lease boundary vs physical occupation of the waterway, as referred to by Ms Hodgkinson some attention above: [40]-[42]. I found that the waterway lease does establish a certain alienation of public land, but that there was potential further exacerbation of this alienation with the proposal. In turn, there are limitations to my acceptance of Ms Hodgkinson's evidence that the marina extension has no potential to further compromise intergenerational equity. Mr Nash's evidence could be thought to go too far if it excluded the fact of the extent of public land alienation already accommodated by the waterway lease.
In consideration of this topic, I was not persuaded by the Club's closing submissions which seemed to seek to narrow what might be considered under the topic of intergenerational equity, in particular seemingly seeking to exclude public vs private interest-related considerations (CCS par 117-119).
Under s 6(2)(b) of the Protection of the Environment Administration Act 1991 (POEA Act), the principle of intergenerational equity is that: "…the present generation should ensure the health, diversity and productivity of the environment are maintained or enhanced for future generations"
The definition could be read in a narrow or more open manner. The findings of Preston CJ in Stannard included quotations from sourced material of relevance relating to the "conservation of access" principle, argued as one of three principles underpinning the concept of intergenerational equity: " '…Third, the "conservation of access" principle requires each generation to give its members "equitable rights of access to the legacy of past generations and should conserve this access for future generations' … ."
While the reference is not perfectly direct, mindful of the above, it seems to me reasonable to consider any diminished capacities in regard to use of Gunnamatta Bay for current users, as associated with the proposal, as a factor in the consideration of intergenerational equity. For me the question can be put more simply as when considering the affectation on Gunnamatta Bay and its use by the public, it is reasonable to consider both present and future generations. This seems to line up with the framework adopted by the planning experts and would fall within the ambit of a public interest consideration in any event. While DA08-1349, as modified with approval of the proposal, would not have a time limit, I do also note here the capacity for the lease to be terminated over time by the Crown, although there cannot be seen as any certainty associated with this.

[17]

Planning or beneficial outcomes of the proposed development

An evaluation of the proposal also needs to consider its positive aspects. Here I note the fact that those who might benefit from the increased on-water boat storage are themselves members of the public and they and those they invite to use their boats can be considered in the group of recreational waterway users who might be affected by the proposal.
I also note the evidence of Mr Plain referencing the need for a "whole of waterway management approach" in the underlying consideration of the achievement of a good balance between public and private use of waterways. Mr Plain refers to expected increased demand for on-water storage and cited a series of benefits (and some disbenefits) associated with commercial marinas beyond the more obviously important factors of offering high density boat storage when compared to swing moorings. These include (Ex 6 p 17): 1. cost of a swing mooring vs commercial marina berth, with marina berths costing more granted there is strong demand for marina berths due to the convenience and safety offered by a marina berth; 2. safe waterway access. Marina berths offer safer access and do not require passenger transfer from a tender to the vessel; 3. occupation of public land. Swing moorings may require storage of tenders on land, whereas marinas do not; 4. alternate activities. Waterways occupied by swing moorings can be used for other activities such as paddling. Conversely, activities such as water-skiing and sailing require open waterway space and would benefit from less swing moorings and higher density on water boat storage at marinas; and, 5. publicly accessible facilities (including fuel) offered at marinas. The proposal at RMYC includes a fuel facility, which would be accessible to the public and provides a benefit to the public. Alternate re-fuelling options, including the use of jerry cans (portable fuel containers) increases the risk of injury and/or environmental damage through fuel spills.
In this section of the report, Mr Plain included aerial photographs showing: (1) a swing mooring field in 2010, and the associated clear waterway; and (2) a 2023 depiction showing a "proliferation of moorings, outside of the mooring field demarcated in 2010" and into the confines of the previous navigable waterway (Ex 6 p 16). This "proliferation" was suggested to be "a direct response from Transport for NSW for the provision of suitable on water storage for vessels, particularly in the southern half of the bay".
Mr Plain indicated that "demand for on-water storage is expected to increase in the future, in response to boat ownership" (Ex 6 p 16).
I understood Mr Plain's underlying point here to be that it is almost unavoidable that there will be increased on-water boat storage into the future and that marinas had significant advantages over swing moorings, in regard to public waterway access, generally. There were also direct safety and convenience benefits for those storing boats within marinas.

[18]

Conclusion

While there is no requirement for a proposal to be consistent with the objectives of pertinent legislation or environmental planning instruments or the relevant zone objectives, consideration of such matters can assist in the evaluation process; and indeed is a requirement in some instances.
Certain of the W2 zone objectives under SSLEP [25] have considerable pertinence. There is an interest in "allowing" water-based recreation in the zone including through provision of "suitable" mooring facilities. There is also a direct reference to the consideration of the "cumulative impact of mooring facilities" and "protecting" public access to recreational waterways. The zone objectives also directly raise the ambition of achieving a balance between public and private use of the waterways, which I have found to be the central framing question in this matter.
The Resilience SEPP also provides matters for consideration and I will give consideration below to s 2.10(1)(e), concerned with whether the proposed development is likely to cause an adverse impact on existing public open space, which can be considered to include Gunnamatta Bay.
Ultimately, this proposal's evaluation is a matter of assigning weight to the competing claims for waterway use. While there is a considerable degree of subjectivity to this, there are some more objective points that warrant attention. First is the setting of Gunnamatta Bay. From the site inspection and otherwise through the air photo evidence, physically, the bay can be considered relatively narrow in form. Presently, with existing marinas and moorings in the site vicinity, the minimum channel width past the Club (in the critical easterly wind) is 140-145m. This would narrow to about 122-127m with the proposed 18m protrusion of Arm C. It is agreed that this is sufficient for two vessels to pass. My concern is not about the formal capacity for a navigation passage and more about the depletion of experience for users of the bay.
It is also objectively evident that this is a busy bay. Apart from the obvious Bundeena ferry, there are numerous more or less regular users: [53]. Many of which are likely to have cause to find themselves in the waterway near the marina. It seems to me clear that the extension of the marina would have an adverse effect on such users. This adverse effect is associated with the fact that boats and engineered structures would be closer to those on the water.
I did appreciate Mr Plain's frank analysis of the proposal in risk management terms: [58]. I understood Mr Plain to be indicating that he believed there was a relationship between waterway width and the risk of collision, but that even with the narrowing of the waterway width (associated with the proposal) the associated risk was acceptable, given that it would be similar to the northern portion of Gunnamatta Bay (where the waterway is already narrower than in front of the Club) and was within the parameters adopted by the Cronulla Sailing Club. The acceptability of what I must interpret to be an increased risk (and what might be thought of as apprehension of risk of collision by waterway users) is subjective and a matter for weighting against the benefits of the proposal. Similarly, when Mr Plain finds that "sail powered vessels could reach from the entrance channel, past RMYC, without needing to tack or gybe": [56], and even if this is theoretically the safest travel path generally, this does not mean that instances may not sometimes arise when a preferred navigation line may be constrained by the narrowing of the bay near the Club.
I am mindful of Mr Plain's reference to a "whole of waterway management approach" to considering the balancing of public and private interests: [67]. There is a sense to this argument but for it to be fully prosecuted it seems to me necessary for there to be a broader examination of the "waterways" under investigation. That is to say, I would not understand such an approach to limit itself to the investigation of busy Gunnamatta Bay as a point of supply for boat berthing or storage in the wider area.
There are limited public benefits associated with the marina. Mr Plain refers to demand associated with increased boat ownership and there can be a public interest in allowing additional on-water storage in suitable areas associated with this. For public waterway users the provision of the fuel service can be seen as a positive. However, I found the evidence on the comparable benefits of the marina extension over the alternative of further swing moorings as unconvincing. I found these arguments were more general in nature than applied to the site circumstances. It can be agreed that marina berths take up less space than swing moorings, for the same number of boats, but there was no proposal to offset the proposed berths with the freeing up of swing moorings ("decluttering" as put by Mr Plain Ex 6 p 16). Nor was there particular evidence of a relationship between approval of the proposal and a lessening of the likelihood of the release of more swing moorings in Gunnamatta Bay into the future. Indeed there were some suggestions from Council that the opposite was the case (the marina would open the door to a further narrowing of the channel and additional swing moorings), although the evidence on that was inconclusive. I also found the arguments which might be thought to suggest the current lease boundary also provided certain development rights as incorrect: [60-61]. It is true that there is considerable alienation of public land already associated with the lease, but this alienation would be exacerbated, in relation to public use of the bay, were the proposal to go ahead.
The tangible aspects of this exacerbation relate to increased visual confinement for ferry riders and other waterway users when in this general area of the bay, and reduced waterway access and associated increased congestion for motor-powered craft particularly due to the new structure in the waterway and for sail and other craft as they seek safe or convenient navigation lines. Together this results in diminished public enjoyment of the more open, nature-oriented experience of being out on Gunnamatta Bay. While the change associated with the proposal cannot be thought of as in any sense grand in scale, it can reasonable be said that there would be reduced enjoyment of this part of the bay as experienced by the everyday boating public and ferry users.
In regard to this already confined and well-used waterway, when I weigh the provision of seven additional albeit good quality berthing arrangements for a small selection of boat owners against what I see to be tangible effects on the use of Gunnamatta Bay by wider members of the public now and into the future, I find against the proposal. In my opinion this finding is quite clear out. I can note here that my finding against the proposal is clear enough to conclude that it would not be altered were there to already be approval for boat berthing along the eastern side of the T-heads (ie at least in part having a mind to the Club's arguments relating to existing boat storage on the outer T-arms).
I can further note that, while not a jurisdictional question in regard to this modification application, I am not satisfied in regard to s 2.10(2) of the Resilience SEPP. Essentially here, simply as a consequence of the proposed extension of the marina's physical form out into Gunnamatta Bay, I am not satisfied that the development is designed, sited and would be managed to avoid an adverse impact on existing public open space, in the form of Gunnamatta Bay. Further in this instance, it seems to me that this impact can be reasonably avoided by the extension of the marina not proceeding.

[37]

I agree with the Club that it is relevant, for example, that in the very recent past, Mr Fielder was a director of the Cronulla Sailing Club. It would have assisted if this and some of the other points referenced above were better referenced in Ex 6. In hand with this, I think that by the end of the extended cross-examination of Mr Fielder by the Club, on this point relating to partiality and especially his relationship with Cronulla Sailing Club, there was a good understanding on the part of the Court of Mr Fielder's connection with the Cronulla Sailing Club and its interests. It was also my opinion, based on this extended cross examination and his other in-Court evidence, that Mr Fielder's testimony was open and honest. He presented as a very able expert in the witness box in his openness to this examination and the directness of his replies. As did Mr Plain. Moreover there was little in the way of differences between Mr Fielder and Mr Plain in regard to much of this evidence.
There was a difference on the part of the experts on these questions relating to the balancing of public and private interests insofar as the use of the bay is concerned. There does also seem to be a relationship between the navigation channel within Gunnamatta Bay at least practically available for the Cronulla Sailing Club and the proposed extension of the marina into Gunnamatta Bay. I go to this question of the implications of the waterway lease below, but what I am getting to here is whether there is potential for a partiality, even if subconscious, in the evidence of Mr Fielder on this matter of the effects on the Cronulla Sailing Club activities; as contrasted with the wider public interest. The Club did not allege anything intentional on that front (Tcpt 02/04/24 53(12)). My impression was that Mr Fielder's evidence was working at a level of generality above the Cronulla Sailing Club, or any individual group of waterway users. However, I have determined, in all of the circumstances here, including the subjective nature of some of the key factors in this decision, to not rely on Mr Fielder's evidence in instances where he is at odds with Mr Plain on this matter of the potential effects on the Cronulla Sailing Club including where there is a related association with the wider public interest. It will be seen that this has not been a particular concern for me given the considerable agreement of these two experts on certain related matters, and what I believe to be the fact that the particular concern around this question of balancing public and private interests has a subjectivity to it which can only partially be addressed as a topic relating to technical expertise.

[41]

It seems to me reasonable to understand that, as put by the Club, there has already been alienation of the waterway, most relevantly for me, extending out beyond the existing T-heads in accordance with the existing waterway lease boundary. The Club argues this provides for "exclusive use", which I would think should be seen to be true in law (notwithstanding Council's arguing the "fact" of existing public use of the lease area (RCS par 12)). However, it is the case (by vent of the lease but also under the planning laws of the State) that the particulars of use occurring within the waterway lease are (generally) limited to that available through the grant of development consent. While I don't assume the Club was arguing this directly, any relevance of "equitable division of public resource(s)" associated with the waterway lease, and lease payments, does not impel, or even have relevance to a decision in support or otherwise of the application for modification of a development consent under the planning laws of the State.
Notwithstanding there has been alienation of public waterway associated with the waterway lease, it is reasonable to understand that there are degrees of alienation in regard to such public land. While access across the leased waterway may not be legally available, that area of Gunnamatta Bay remains physically unaffected by floating structures or permanent moored boats. It seems rational to adopt a prima facie view that at least at some level on-water physical and visual openness would be diminished were the proposed structures and permanent boat storage to come about. While in my opinion not anything of the scale of impact as in that case, similar in principle to the findings in Stannards Marine Pty Ltd v North Sydney Council [2022] NSWLEC 99 [274], the proposed development in this waterway lease area has potential to "exacerbate" the existing alienation of the waterway from the public. This is an area for consideration below.
A factor in this consideration is to understand the status quo. During the site visit there appeared to be some boats being worked-on on the outer (eastern) side of the T-heads. The Club argues that that there is no current restriction on boats along the outer edge of the T-heads. The proposal would have a condition whereby signage would prohibit berthing on the outer T-heads. It would follow, for the Club, that the extent of any loss of on-water physical and visual openness should more or less assume boats at the eastern side of the existing T-heads (thus reducing the perceived impact and any exacerbation of alienation associated with the proposal). I give only a little weight to this argument. The status quo in terms of the extent of alienation should generally adopt the position of the existing development consent. The consent indicates the mooring locations. That is, the places where boats are to be moored were purposively indicated in relevant plans and therefore, it would be understood, determined in the consent. There was no argument as I understood it to suggest there was an approval for boat mooring or maintenance on the outer side of the existing T-heads. I agree with Council that if, for example, there was extensive commercial use of the outer T-head as a hub for boat servicing and maintenance, lawfully this would require development consent (RCS par 16). While it will be seen that this is not a determinative factor in any event, to the extent that boats are sometimes located along the outer side of the existing T-heads, this should be considered as occasional and subsidiary to the extent that it warrants little weight in the determination of the "status quo". Were it to be moreso, I think it would make sense for it to have been factored into the operational consent, as modified.

[80]

While there is no requirement for a proposal to be consistent with the objectives of pertinent legislation or environmental planning instruments or the relevant zone objectives, consideration of such matters can assist in the evaluation process; and indeed is a requirement in some instances.
Certain of the W2 zone objectives under SSLEP [25 ] have considerable pertinence. There is an interest in "allowing" water-based recreation in the zone including through provision of "suitable" mooring facilities. There is also a direct reference to the consideration of the "cumulative impact of mooring facilities" and "protecting" public access to recreational waterways. The zone objectives also directly raise the ambition of achieving a balance between public and private use of the waterways, which I have found to be the central framing question in this matter.
The Resilience SEPP also provides matters for consideration and I will give consideration below to s 2.10(1)(e), concerned with whether the proposed development is likely to cause an adverse impact on existing public open space, which can be considered to include Gunnamatta Bay.
Ultimately, this proposal's evaluation is a matter of assigning weight to the competing claims for waterway use. While there is a considerable degree of subjectivity to this, there are some more objective points that warrant attention. First is the setting of Gunnamatta Bay. From the site inspection and otherwise through the air photo evidence, physically, the bay can be considered relatively narrow in form. Presently, with existing marinas and moorings in the site vicinity, the minimum channel width past the Club (in the critical easterly wind) is 140-145m. This would narrow to about 122-127m with the proposed 18m protrusion of Arm C. It is agreed that this is sufficient for two vessels to pass. My concern is not about the formal capacity for a navigation passage and more about the depletion of experience for users of the bay.
It is also objectively evident that this is a busy bay. Apart from the obvious Bundeena ferry, there are numerous more or less regular users: [53 ]. Many of which are likely to have cause to find themselves in the waterway near the marina. It seems to me clear that the extension of the marina would have an adverse effect on such users. This adverse effect is associated with the fact that boats and engineered structures would be closer to those on the water.
I did appreciate Mr Plain's frank analysis of the proposal in risk management terms: [58 ]. I understood Mr Plain to be indicating that he believed there was a relationship between waterway width and the risk of collision, but that even with the narrowing of the waterway width (associated with the proposal) the associated risk was acceptable, given that it would be similar to the northern portion of Gunnamatta Bay (where the waterway is already narrower than in front of the Club) and was within the parameters adopted by the Cronulla Sailing Club. The acceptability of what I must interpret to be an increased risk (and what might be thought of as apprehension of risk of collision by waterway users) is subjective and a matter for weighting against the benefits of the proposal. Similarly, when Mr Plain finds that "sail powered vessels could reach from the entrance channel, past RMYC, without needing to tack or gybe": [56 ], and even if this is theoretically the safest travel path generally, this does not mean that instances may not sometimes arise when a preferred navigation line may be constrained by the narrowing of the bay near the Club.
I am mindful of Mr Plain's reference to a "whole of waterway management approach" to considering the balancing of public and private interests: [67 ]. There is a sense to this argument but for it to be fully prosecuted it seems to me necessary for there to be a broader examination of the "waterways" under investigation. That is to say, I would not understand such an approach to limit itself to the investigation of busy Gunnamatta Bay as a point of supply for boat berthing or storage in the wider area.
There are limited public benefits associated with the marina. Mr Plain refers to demand associated with increased boat ownership and there can be a public interest in allowing additional on-water storage in suitable areas associated with this. For public waterway users the provision of the fuel service can be seen as a positive. However, I found the evidence on the comparable benefits of the marina extension over the alternative of further swing moorings as unconvincing. I found these arguments were more general in nature than applied to the site circumstances. It can be agreed that marina berths take up less space than swing moorings, for the same number of boats, but there was no proposal to offset the proposed berths with the freeing up of swing moorings ("decluttering" as put by Mr Plain Ex 6 p 16). Nor was there particular evidence of a relationship between approval of the proposal and a lessening of the likelihood of the release of more swing moorings in Gunnamatta Bay into the future. Indeed there were some suggestions from Council that the opposite was the case (the marina would open the door to a further narrowing of the channel and additional swing moorings), although the evidence on that was inconclusive. I also found the arguments which might be thought to suggest the current lease boundary also provided certain development rights as incorrect: [60 -61 ]. It is true that there is considerable alienation of public land already associated with the lease, but this alienation would be exacerbated, in relation to public use of the bay, were the proposal to go ahead.
The tangible aspects of this exacerbation relate to increased visual confinement for ferry riders and other waterway users when in this general area of the bay, and reduced waterway access and associated increased congestion for motor-powered craft particularly due to the new structure in the waterway and for sail and other craft as they seek safe or convenient navigation lines. Together this results in diminished public enjoyment of the more open, nature-oriented experience of being out on Gunnamatta Bay. While the change associated with the proposal cannot be thought of as in any sense grand in scale, it can reasonable be said that there would be reduced enjoyment of this part of the bay as experienced by the everyday boating public and ferry users.
In regard to this already confined and well-used waterway, when I weigh the provision of seven additional albeit good quality berthing arrangements for a small selection of boat owners against what I see to be tangible effects on the use of Gunnamatta Bay by wider members of the public now and into the future, I find against the proposal. In my opinion this finding is quite clear out. I can note here that my finding against the proposal is clear enough to conclude that it would not be altered were there to already be approval for boat berthing along the eastern side of the T-heads (ie at least in part having a mind to the Club's arguments relating to existing boat storage on the outer T-arms).
I can further note that, while not a jurisdictional question in regard to this modification application, I am not satisfied in regard to s 2.10(2) of the Resilience SEPP. Essentially here, simply as a consequence of the proposed extension of the marina's physical form out into Gunnamatta Bay, I am not satisfied that the development is designed, sited and would be managed to avoid an adverse impact on existing public open space, in the form of Gunnamatta Bay. Further in this instance, it seems to me that this impact can be reasonably avoided by the extension of the marina not proceeding.

Royal Motor Yacht Club of New South Wales Port Hacking Branch v Sutherland Shire Council

At a glance

Court

Decision date

Source

Judgment (81 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (2)