Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council

Land and Environment Court (NSW)|2017-02-15|Before: Preston CJ, Talbot J

n [1949] VLR 150 Garbacz v Morton (1999) 108 LGERA 251; [2000] NSWLEC 17 Grace v Thomas Street Cafe Pty Ltd (2007) 159 LGERA 57; [2007] NSWCA 359 Grozier v Tate (1946) 64 WN (NSW) 1 Holster v Director-General of National Parks and Wildlife Service [1999] NSWLEC 102 Inland Revenue Commissioners v Smyth [1914] 3 KB 406 Jambrecina v Blacktown City Council [2009] NSWCA 228 James v Brecon County Council (1963) 15 P & CR 20 Jojeni Investments Pty Ltd v Mosman Municipal Council (2015) 89 NSWLR 760; [2015] NSWCA 147 Kismet Engineering Pty Ltd v Brisbane City Council [1959] 102 CLR 574 Lismore Municipal Council v Williams (1931) 10 LGR (NSW) 58 Minister for Planning v Rose Bay Marina Pty Ltd (2003) 126 LGERA 181; [2003] NSWCA 119 Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302 Newcastle City Council v Royal Newcastle Hospital (1957) 96 CLR 493 Noarlunga City Corporation v Fraser (1986) 61 LGRA 324 North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 67 LGRA 344 O'Brien v Shire of Rosedale (1968) 22 LGRA 262 Parramatta Municipal Council v Chamberlain (1938) 14 LGR (NSW) 21 R v Berghofer [1997] 2 Qd R 459 R v Lowe (1954) 19 LGR (NSW) 348 Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 Shire of Perth v O'Keefe (1964) 110 CLR 529; [1964] HCA 37 Skaventzos v Vander-Lee (1974) 30 LGRA 395 Steedman v Baulkham Hills Shire Council (No 2) (1993) 31 NSWLR 562 Stevens v Gourley (1859) 7 CBNS 99; 141 ER 752 Strong v Taylor (1890) 16 VLR 202 Tange v Drummoyne Municipal Council (1955) 20 LGR (NSW) 229 Vumbaca v Baulkham Hills Shire Council (1979) 141 CLR 614; [1979] HCA 66 Wagga Wagga Municipal Council v Sullivan (1931) 10 LGR (NSW) 77 Waratah-Wynyard Council v Fairbrother [1994] TASSC 185 Warringah Shire Council v Raffles [1979] 2 NSWLR 299 Category: Principal judgment Parties: Royal Motor Yacht Club (Broken Bay) Pty Ltd (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: Mr P Tomasetti SC with Ms A Hemmings (Applicant) Mr L Waterson (Respondent)

Solicitors: Allens (Applicant) King & Wood Mallesons (Respondent) File Number(s): 2016/158192 Publication restriction: Nil

TABLE OF CONTENTS A recreational boating club proposes to expand its use of a waterway - paragraph 1 RMYC appeals the deemed refusal of its development application - paragraph 6 Outcome of the appeal - paragraph 9 Whether there is an existing use - paragraph 12 RMYC's current use of the land and the waterway - paragraph 15 The purpose of RMYC's use of the land and waterway - paragraph 18 PLEP 2014's regulation of use for the purpose of recreational boating club - paragraph 30 The lawfulness of RMYC's use for the purpose of recreational boating club - paragraph 35 Was installation and use of the swing moorings unlawful? The Council's argument that the use of the swing moorings was unlawful - paragraph 105 RMYC's response that the use of the swing moorings was lawful - paragraph 113 Installation of the swing moorings before consent was required - paragraph 114 A swing mooring is not a building - paragraph 135 Use of swing moorings for a lawful purpose - paragraph 170 The use of the swing moorings rendered lawful by Amendment No 1 to PLEP 1993 - paragraph 174 The use of the swing moorings rendered lawful by development consent - paragraph 186 RMYC's use is an existing use or other lawful use - paragraph 207 The impacts of the proposed development are acceptable - paragraph 215 Traffic and parking - paragraph 217 Safe navigation of the waterway - paragraph 224 Environmental degradation of the waterway - paragraph 233 Impact on visual amenity of neighbouring properties - paragraph 241 Fire safety - paragraph 244 Public interest and cumulative impacts - paragraph 249 Development consent should be granted - paragraph 252 Conditions of consent - paragraph 254 Orders - paragraph 270

A recreational boating club proposes to expand its use of a waterway

Since 1926, the Broken Bay branch of the Royal Motor Yacht Club ('RMYC') has used waterfront land at 46 and 46A Prince Alfred Parade, Newport ('the land') and the adjacent waterway known as Pittwater for recreational boating activities. RMYC has constructed various land and water-based facilities, including berthing and mooring facilities for yachts and power boats in the waterway.
The berthing facilities infrastructure comprises a floating system attached to fixed piles. It provides accommodation for 217 vessels. The land comprising the part of the waterway within which the existing berthing facility is located is Crown land property identifier 329/824292 and 330/824292. This land is the subject of a 40 year lease from the State of New South Wales to RMYC, expiring on 1 September 2026 ('the leased area').
In addition, RMYC maintains and uses 49 swing moorings in the waterway immediately adjacent to the berthing facility but to the west of the leased area. RMYC has occupation licences for the swing moorings granted by the Roads and Maritime Services ('RMS').
RMYC wishes to alter and extend the existing berthing and mooring facilities for club members' yachts and power boats. On 10 September 2015, RMYC lodged a development application with the then Pittwater Council but now Northern Beaches Council ('the Council') for consent to relocate and reconfigure part of the existing floating berthing structures (referred to as an attenuator) on the west side to form a new, realigned attenuator. The proposed reconfiguration will result in the removal of 28 existing fixed berths and the installation of 67 fixed berths, resulting in a net increase of 39 fixed berths. The relocation and reconfiguration of the attenuator will intrude further west into the waterway where some of the existing swing moorings are located. Some of the swing moorings (later determined to be 11) will need to be relinquished. The area within the leased area and to the west of the leased area proposed to be developed was referred to as the 'expansion area'.
RMYC did not propose any works to the existing club premises and associated land-based facilities.

RMYC appeals the deemed refusal of its development application

The Council has not yet determined, and is taken to have refused, RMYC's development application. RMYC appealed against the deemed refusal of the Council under s 97(1) of the Environmental Planning and Assessment Act 1979 ('the EPA Act').
In its Amended Statement of Facts and Contentions, the Council raised a legal reason and a merit reason for the refusal of RMYC's development application. The legal reason was that the proposed development is prohibited under the relevant environmental planning instrument, Pittwater Local Environmental Plan 2014 ('PLEP 2014'). The Council contended that RMYC's use immediately before the coming into force of PLEP 2014 was not an existing use under s 106(a) of the EPA Act so as to enable a development application to be made to enlarge, expand and intensify the existing use. The merit reason was that RMYC had not demonstrated that the parking arrangements on the club site will adequately service the proposed intensified development. This merit issue was able to be resolved during the hearing of the appeal.
At the hearing of the appeal, the Council called a number of local residents and club members who were opposed to the proposed development. These people raised further merit issues that they said justified refusing consent, including the impact of the proposed development on the safe navigation of the waterway, the environmental degradation of the waterway, the impact on the visual amenity of neighbouring properties, fire safety, public interest and cumulative impact. The Council did not contend that these further merit issues warranted refusal of RMYC's development application.

Outcome of the appeal

I have determined that the Council's legal contention should be rejected. The part of the proposed development in the near shore waterway within the leased area is permissible with consent under PLEP 2014. RMYC's development application seeks consent to carry out development in the near shore waterway. The part of the proposed development in the waterway to the west of the leased area is prohibited under PLEP 2014. However, RMYC's use of that waterway for the purpose of recreational boating club is an existing use under s 106(a) of the EPA Act. RMYC is authorised to make the development application to enlarge, expand and intensify the existing use and alter and extend any building or work used for the existing use, under s 108 of the EPA Act and cll 41-44 of the Environmental Planning and Assessment Regulation 2000 ('EPA Regulation').
I have also determined that RMYC's proposed development will not cause unacceptable environmental impacts on the natural or built environments. The issue of traffic and parking can be satisfactorily resolved by the imposition of appropriate conditions of consent, including requiring implementation of a traffic plan of management. The further merit issues raised by objectors have been, or will be able to be by the implementation of the conditions of consent, satisfactorily addressed.
I have determined, therefore, that RMYC's appeal should be upheld and that development consent should be granted on conditions.

Whether there is an existing use

The Council's legal contention was that there is not an existing use of the land and adjacent waterway as defined in s 106(a) of the EPA Act. The Council's reasons for this contention vary depending on the land being used. The Council contended that the use of the land and the near shore waterway within the leased area was for a purpose that has not been prohibited by PLEP 2014. The Council contended that RMYC's use of the buildings and works on the land and the near shore waterway was for the purpose of "marinas", which purpose is permitted with consent in the applicable zone, W2 Recreational Waterways, under PLEP 2014. Hence, use for this purpose cannot be an existing use as defined in s 106(a) of the EPA Act.
The Council contended that RMYC's use of the swing moorings in the waterway to the west of the leased area was also for the purpose of marinas. The Council accepted that use for that purpose is prohibited by PLEP 2014 in the applicable zone, W1 Natural Waterways. However, the Council contended that the use of the swing moorings was not for a lawful purpose because the swing moorings were installed unlawfully. At the time the swing moorings were installed, consent was required to erect a building (which includes a structure) below the high-water mark. RMYC did not obtain consent to install the swing moorings. The unlawful use of the swing moorings precludes the use being for a lawful purpose and hence an existing use as defined in s 106(a) of the EPA Act.
In order for RMYC to have an existing use under s 106(a) of the EPA Act, there needs to have been a use of the buildings or works on and of the land and the waterway for a lawful purpose immediately before the coming into force of PLEP 2014, which would have the effect of prohibiting that use. I will address this question in four steps: first, RMYC's use of the land and the waterway immediately before the coming into force of PLEP 2014; second, the purpose of the use of the land and the waterway; third, the prohibition by PLEP 2014 of the use of the land and the waterway for that purpose; and fourth, the lawfulness of the use of the land and the waterway for that purpose. The fourth step involves two questions: whether, in general planning terms, the use was for a lawful purpose and, in particular, whether the installation and use of the swing moorings in the waterway was unlawful, causing the use of the waterway not to be for a lawful purpose.

RMYC's current use of the land and the waterway

RMYC has carried on development on the land and the adjacent waterway at Pittwater since 1926. Currently, RMYC's activities comprise both land and water-based facilities.
The land-based facilities include a 3-4 storey building used for club activities, being those activities associated with a registered club, including administration, a restaurant, bars, function rooms and clubhouse facilities. The land-based facilities also include boat brokerage and boat maintenance facilities (including slipway and workshops), recreational facilities (swimming pool and children's playground), and onsite parking for 282 cars.
The water-based facilities comprise the berthing and mooring facilities. The existing berthing facility in the leased area provides fixed berths for 217 vessels. RMYC provides 49 swing moorings, licensed by RMS, for club members' yachts and power boats. These are located to the west of the leased area. The berthing and mooring facilities are operated 24 hours a day, 7 days a week.

The purpose of RMYC's use of the land and waterway

RMYC submitted that the use carried out on the land and the waterway was for the purpose of a club. RMYC accepted in final submissions that it might be appropriate to qualify the purpose of the use by the type of club, such as a recreational boating club. RMYC submitted that this purpose of recreational boating club was the purpose of RMYC's use of the land and the adjacent waterway from the date when the use commenced in 1926 until the date immediately before the coming into force of PLEP 2014 and indeed to the present day.
RMYC submitted that the characterisation of the purpose of the use is not to be done through a meticulous examination of the details of the activities undertaken on the land and the waterway, but rather by having regard to the purpose served by those activities. The purpose is the end to which use of the land and the waterway is seen to serve. It describes the character which is imparted to the land and the waterway on which the use is pursued: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534-535; [1964] HCA 37; Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 at [27], [33], [35]; Abret Pty Ltd v Wingecarribee Shire Council (2011) 180 LGERA 343; [2011] NSWCA 107 at [51]; Jojeni Investments Pty Ltd v Mosman Municipal Council (2015) 89 NSWLR 760; [2015] NSWCA 147 at [75].
The appropriate characterisation of the purpose of the use of the land and the waterway should be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on, and not in terms of the detailed activities, transactions or processes: Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 at 310, 311; North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 67 LGRA 344 at 353; Abret Pty Ltd v Wingecarribee Shire Council at [52]; Jojeni Investments Pty Ltd v Mosman Municipal Council at [75]-[76].
RMYC submitted that the use for the purpose of recreational boating club inspired, and comprised all of, the different activities carried on by the club on the land and the adjacent waterways. The fact that the nature of the activities may differ is not necessarily of importance. The nature of the use needs to be distinguished from the purpose of the use. Uses of different natures can still be seen to serve the same purpose: Shire of Perth v O'Keefe at 534-535; Warringah Shire Council v Raffles [1979] 2 NSWLR 299 at 301; Chamwell Pty Ltd v Strathfield Council at [33]-[34].
RMYC submitted that it also matters not that the activities comprising the use may have undergone change. The law recognises that there can be natural evolution in a use without necessarily causing a change in the purpose of the use: Grace v Thomas Street Cafe Pty Ltd (2007) 159 LGERA 57; [2007] NSWCA 359 at [89], [143].
RMYC submitted that, although there have been changes in the activities carried on by the club on the land and the waterway, the purpose of the activities has remained the same, namely recreational boating club.
The Council approached the characterisation of the purpose of RMYC's use differently. The Council primarily concerned itself with characterising the purpose of RMYC's use of the waterway. The Council submitted that the purpose of the use of the waterway in which the development was proposed to be carried out immediately before the coming into force of PLEP 2014 was "marinas" as that term is defined in PLEP 2014. "Marina" is defined in the Dictionary to PLEP 2014 as meaning: "a permanent boat storage facility (whether located wholly on land, wholly on a waterway or partly on land and partly on a waterway), and includes any of the following associated facilities: (a) any facility for the construction, repair, maintenance, storage, sale or hire of boats, (b) any facility for providing fuelling, sewage pump-out or other services for boats, (c) any facility for launching or landing boats such as slipways or hoists, (d) any car parking or commercial, tourist or recreational or club facility that is ancillary to the boat storage facility, (e) any berthing or mooring facilities."
The Council noted that this definition of "marina" includes "any berthing or mooring facilities" associated with a "permanent boat storage facility". The Council submitted that RMYC's swing moorings in the expansion area meet this description. RMYC's use of the expansion area was, therefore, for the purpose of "marinas" as defined in PLEP 2014.
The Council submitted that the use of the waterway by RMYC members to access the swing moorings, including by means of RMYC's tender service, and to access land-based facilities provided by RMYC from these moorings and elsewhere in the waterway, does not result in a different character being imparted to the expansion area in the waterway other than "marinas". All of these activities are embraced by the purpose of "marinas".
I find that the purpose of RMYC's use of the land and the waterway, including that part proposed to be developed and referred to as the expansion area, from the date when the use commenced in 1926 until the date immediately before the coming into force of PLEP 2014 and indeed to the present day, was recreational boating club. I adopt RMYC's submissions that the purpose of recreational boating club is the appropriate characterisation of the purpose of the use carried out on the land and the waterway. That purpose inspired and describes the end being served by all of the land-based and water-based facilities and activities of RMYC. The land-based and water-based facilities and activities of RMYC may properly be regarded as being species of the genus of recreational boating club; they are the ways in which RMYC carries out the purpose of recreational boating club. It matters not that the facilities and activities differ in nature; what matters is that they serve the same purpose of recreational boating club.
In determining whether land is used for a particular purpose, an inquiry into how that purpose can be achieved is necessary: Newcastle City Council v Royal Newcastle Hospital (1957) 96 CLR 493 at 499-500. The use of land involves the "physical acts by which the land is made to serve some purpose": at 508.
In the case of the use of the land and the waterway for the purpose of recreational boating club, the purpose can be achieved through providing the land-based and water-based facilities and activities that RMYC has in fact provided on the land and the waterway. These include the berthing and mooring facilities for club members' boats. The nature of these facilities might fall within the definition of "marina" in PLEP 2014, but that does not mean that these facilities are properly to be characterised as being used for the purpose of marinas. The provision of berthing and mooring facilities for club members' boats is an important means by which RMYC makes the land and the waterway serve the purpose of recreational boating club. This purpose of recreational boating club describes the character which is imparted to the land and the waterway used by RMYC.

PLEP 2014's regulation of use for the purpose of recreational boating club

As has been noted, RMYC carries out its use for the purpose of recreational boating club on the land and the adjacent waterway.
The land is zoned RE2 Private Recreation by PLEP 2014. The development control table for the RE2 Private Recreation zone permits with consent "registered clubs", which is defined in the Dictionary to PLEP 2014 to mean "a club that holds a club licence under the Liquor Act 2007". RMYC is a club that holds a club licence under the Liquor Act 2007. Development for the purpose of recreational boating club can be a use carried out by registered clubs.
The adjacent waterway used by RMYC falls within two zones under PLEP 2014. The near shore waterway, within the leased area, is zoned W2 Recreational Waterways. The existing berthing facilities are located within this zone. The development control table for the W2 Recreational Waterways zone permits with consent a variety of water-based recreational facilities and activities, including marinas. The definition of "marina" has earlier been set out. Development of a recreational boating club is not specified as a development permitted with consent. Development for that purpose would, therefore, be prohibited, although the carrying out by a recreational boating club of the water-based recreational facilities and activities specified as being permitted with consent, such as marinas, would be permissible with consent.
The waterway beyond the leased area is zoned W1 Natural Waterways. The development control table permits with consent mooring pens, which means "an arrangement of freestanding piles or other restraining devices designed for the purpose of berthing a vessel". RMYC does not have any mooring pens in this part of the expansion area in the W1 Natural Waterways zone. The reconfigured and relocated berthing facility in the expansion area also would not meet the description of a mooring pen. The development control table for the W1 Natural Waterways zone provides that any other development not specified as being permitted without consent or with consent is prohibited. Development for the purpose of recreational boating club is, therefore, prohibited in the W1 Natural Waterways zone. Equally, even if the purpose of the proposed development could be said to be marinas, as the Council contended, marinas is also a prohibited development in the W1 Natural Waterways zone.
The result is that PLEP 2014 had the effect of prohibiting the use of the waterway immediately to the west of the leased area for the purpose of recreational boating club.

The lawfulness of RMYC's use for the purpose of recreational boating club

In order for RMYC's use of the land and the waterway to be an existing use, the use needed to be for a lawful purpose immediately before the coming into force of PLEP 2014. In this case, this issue of the lawfulness of RMYC's use for the purpose of recreational boating club involves two questions. The first is the general planning question of ascertaining whether the commencement and continuance of the use was for a purpose that was lawful. This involves tracing the history of the use back in time to establish that when the use commenced it was for a lawful purpose and that the use continued to be for a lawful purpose up to the point in time immediately before the coming into force of the environmental planning instrument that has the effect of prohibiting that use: see Steedman v Baulkham Hills Shire Council (No 2) (1993) 31 NSWLR 562 at 567, 569; BYT Nominees Pty Ltd v North Sydney Council (2008) 161 LGERA 77; [2008] NSWLEC 164 at [27].
The second question in this case is a particular one of whether the installation and the use of the swing moorings in the waterway was unlawful, causing the use of the waterway not to be for a lawful purpose.
I will address the first question of lawfulness in this section and the second question in the next section of the judgment.
RMYC's use of the land and the waterway commenced in 1926. At that time, the Local Government Act 1919 ('LGA 1919') was in force. Part XI of LGA 1919 concerned building regulation. Section 311, within Pt XI, provided that "a building shall not be erected or altered unless the approval of the Council is obtained therefor beforehand." However, although Pt XI applied automatically to municipalities, it only applied to shires by proclamation (see s 305(2) of LGA 1919).
Warringah Shire Council became a shire on 7 March 1906 following the passage of the Local Government (Shires) Act 1906. The boundaries of the Shire of Warringah were fixed by proclamation published in the NSW Government Gazette No 121, 7 March 1906. The boundaries described in the proclamation enclosed the waterway of Pittwater and the land of RMYC at Horseshoe Cove.
The Governor, by proclamation published in the NSW Government Gazette on 7 June 1940, applied Pt XI of LGA 1919 to the Shire of Warringah (applying it to the whole of the Shire, excluding a defined portion within Ku-ring-gai Chase).
RMYC's records show that the clubhouse and jetty were constructed in 1928. This clubhouse was destroyed by fire in May 1935. A larger clubhouse was constructed further back from the sea wall, comprising a wooden building located above the current slipway, and opened in December 1935.
In September 1936, RMYC received permission from the Navigation Department to erect a starter's tower on the seabed of the waterway off the western point of Horseshoe Cove. The starter's tower was the first permanent structure to be erected on land below high-water mark.
In December 1936, a block of land adjacent to the north side of the clubhouse was purchased to allow for extensions for car parking, boat storage and water access.
At the time of the construction of these buildings and works, Pt XI of LGA 1919 did not apply to the land. The erection of the buildings and the carrying out of works on the land were, therefore, lawful.
During this period, there was no town and country planning law that required development consent to be obtained to erect a building, carry out a work or use land for any purpose. The erection of buildings on and the use of the land and the adjacent waterway for the purpose of recreational boating club was, therefore, lawful.
On 5 April 1945, Pt XIIA Town and Country Planning Schemes was inserted into LGA 1919 by the Local Government (Town and Country Planning) Amendment Act 1945 ('1945 Act'). This authorised for the first time the making of planning schemes for regulating and controlling the use of land and the purposes for which land may be used (see s 342G(2) of LGA 1919).
Division 7 of Pt XIIA of LGA 1919, comprising ss 342S to 342Z, provided for "interim development". "Interim development" was originally defined in s 342T(1) to mean development of land to which a scheme applies between the date on which a resolution of a council or two or more councils to prepare a planning scheme has taken effect or "the date on which notice of the fact that the Minister directed the council or two or more councils to act together to prepare a scheme was published in the Gazette", and the date of the coming into operation of the scheme. Section 342AB(2) of LGA 1919 provided, that for the purposes of Div 7 of Pt XIIA, the date on which the Minister directed the council or councils to prepare a scheme was to be construed as a reference to the date upon which notification of the first election of delegates to the Cumberland County Council was published in the Gazette. That date was 12 July 1946: see NSW Government Gazette No 75 of 12 July 1946.
Accordingly, the interim development provisions of Div 7 of Pt XIIA applied to the land for the period whilst the Cumberland County Council was preparing its scheme and up to the date when that scheme could be prescribed. Interim development could not be carried out except in accordance with Div 7 of Pt XIIA, and especially s 342U.
As noted, "interim development" was development of land in this interim period. "Development" in relation to land was defined in s 342T(1) to include: "the erection of any building, and the carrying out of any work, and any use of the land or building or work thereon for a purpose which is different from the purpose for which the land or building or work was last being used". This definition limiting development not to be simply use of land but rather to be use of land for a different purpose was important: see Vumbaca v Baulkham Hills Shire Council (1979) 141 CLR 614; [1979] HCA 66.
On 21 March 1947, the Minister for Local Government gave notice of his approval of the resolution of Warringah Shire Council, dated 7 January 1947, deciding to prepare a scheme in respect of all land within the Shire (see NSW Government Gazette No 39, 21 March 1947).
In the interim period between 12 July 1946 and the coming into force of the County of Cumberland Planning Scheme on 27 June 1951, there is no evidence in the Council's files of building activity or approval being sought for building activity on the land or the waterway.
On 27 June 1951, the County of Cumberland Planning Scheme ('CCPS 1951') was made, by s 2 of the Local Government (Amendment) Act 1951 ('1951 Act'). CCPS 1951 was, notwithstanding Pt XIIA, deemed to be the scheme required by the 1945 Act in respect of the County of Cumberland (s 2(1) of the 1951 Act) and further deemed to be an ordinance made by the Governor prescribing the scheme under s 342K (see s 2(2) of the 1951 Act) and to be a prescribed scheme (see s 2(3) of the 1951 Act).
CCPS 1951 zoned the land "Living Areas". The land use table to cl 26 of CCPS 1951 specified that the purposes for which buildings may be erected in the Living Areas zone with consent were certain nominated purposes and any other purpose not referred to as being permitted without consent or prohibited. The purpose of recreational boating club would have been an innominate purpose permitted with consent.
Clause 28(1) of CCPS 1951 provided that a building could not, without consent, be erected or used in a zone for a purpose specified in the land use table as requiring consent. Clause 29(2) of CCPS 1951 provided that land in a zone could not be used, without consent, for a purpose for which a building in the same zone may be erected or used only with consent.
The waterway of Pittwater was not included in any zone under CCPS 1951. Accordingly, there was no regulation of the erection or use of a building or the use of land within the unzoned waterway.
Clause 32 of CCPS 1951 provided that: "An existing building or existing work may be maintained and may be used for its existing use and an existing use of land may be continued…"
Clause 32 operated so that the existing buildings and existing works on the land immediately before the coming into force of CCPS 1951 could be maintained and used for their existing use and an existing use of the land for the purpose of recreational boating club could be continued.
On 7 June 1963, Warringah Planning Scheme Ordinance ('WPSO 1963') was gazetted (NSW Government Gazette No 52, 7 June 1963). WPSO 1963 embodied the planning scheme prepared by Warringah Shire Council pursuant to its resolution dated 7 January 1947, which was approved by the Minister and notified in the NSW Government Gazette on 21 March 1947 (cl 1(2) of WPSO 1963). WPSO 1963 varied in certain respects CCPS 1951 and incorporated all such provisions of CCPS 1951 relating to land in the Shire of Warringah as were not inconsistent with the provisions of CCPS 1951 (cl 2 of WPSO 1963).
WPSO zoned the land 2(a) Residential A. The waterway of Pittwater remained unzoned. The land use table at cl 26 of WSPO 1963 specified the nominate purposes that were permitted without consent and that were prohibited, none of which were applicable to RMYC's use of the land. Use of the land for any purpose other than those permitted without consent or prohibited were permitted only with consent. The purpose of recreational boating club would have been an innominate purpose permitted with consent.
Clause 27(1) of WPSO 1963 provided that a building or work could not, without consent, be erected, carried out or used in a zone for a purpose specified in the land use table as requiring consent. Clause 28(a) of WPSO 1963 provided that land in a zone could not be used, without consent, for a purpose for which a building or work in the same zone may be erected, carried out or used only with consent.
Clause 30 of WPSO 1963 provided that: "an existing building or an existing work may be maintained and may be used for its existing use and an existing use of land may be continued."
This provision protecting an existing building, an existing work and existing use of land did not apply, however: "to an existing building or work or to an existing use of a building, work or land which was erected or carried out or commenced after 12th July 1946, in contravention of the provisions of the Town and Country Planning (General Interim Development) Ordinance, or of the County of Cumberland Planning Scheme, or of any approval granted under such Ordinance or Scheme" (cl 34(1) of WPSO 1963).
Clause 30 of WPSO 1963 operated so that the existing buildings and works on the land immediately before the coming into force of WPSO 1963 could be maintained and used for their existing use and the existing use of the land could be continued. There was no evidence that any existing buildings and works and any existing use on the land were in contravention of the interim development provisions of Div 7 of Pt XIIA of LGA 1919 or CCPS 1951.
Clause 31 of WPSO 1963 permitted the responsible authority to consent to the alteration, enlargement, rebuilding or extension (including the erection of new buildings or the carrying out of new works of an ancillary character) of any existing building or existing work for its existing use.
Clause 59 of WPSO 1963 introduced, for the first time, regulation of development of land below the high-water mark: "A building or work shall not, without the consent of the responsible authority, be erected or carried out on any land below high-water mark or on land within the boundaries of Narrabeen Lake, as indicated on the scheme map."
The land indicated on the scheme map included the land and the adjacent waterway of Pittwater.
A "building" was defined in cl 4 of WPSO 1963 to include "any structure or any part thereof".
The Council relied on cl 59 of WPSO 1963 for its argument that consent was required to install swing moorings in the waterway. I will deal with this argument in the next section of the judgment.
In 1960, RMYC resolved to undertake works to reclaim the bay 60m out to the starting tower and 82m to the north back to the northern boundary of the site. The work would also include a modest extension to the clubhouse, new parking for up to 150 cars or trailers, a new launch ramp and a marina. On 20 November 1961, Warringah Shire Council resolved to recommend to the Cumberland County Council and Lands Department that it did not object to the reclamation proposal provided that, amongst other things, the westerly retaining wall of the reclamation was delineated by a line drawn from the starter's box to the edge of reclamation fronting the land on the north side of Lot 4A and the elimination of all structures to the west of the reclamation wall.
On 28 October 1963, Warringah Shire Council granted building approval A539/63 for additions to the clubhouse.
Work began in 1964 and the reclamation was completed on 1965. By the end of 1966, the new marina area was nearing completion extending south into Horseshoe Cove.
On 18 January 1967, Warringah Shire Council granted building approval A64/67 for the extension of the marina facilities. This included retrospective approval of the substantial additions to the jetty that had already been erected. RMYC was reprimanded by the Council for carrying out the work without first obtaining the Council's approval.
The official opening of the new clubhouse took place in August 1968. The new clubhouse more than doubled the accommodation of the 1935 building, with modern dining, lounge and bar facilities, as well as a large ballroom/function room along the western side of the building. The old clubhouse was converted to serve as an enclosed boatshed and slipway.
On 6 August 1969, Warringah Shire Council granted building approval 52/69 for a new entrance gate box. Also on 6 August 1969, Warringah Shire Council granted building approval 796/69 for a new dinghy storage area and racks, on the southern side, adjacent to the then location of the existing slipway.
In 1978, work began on a new western arm to the marina. This new marina section would include an outer attenuator to reduce wave heights coming into the marina and to be used for temporary berthing, drop-offs and pick-ups on its western side. The eastern or inner side would act as berths for boats, with another four floating berth arms, running perpendicular to the shore to allow for more berths, protected from the prevailing weather by the attenuator. Work was completed on the new marina by 1981, adding an extra 103 berths. There did seem to have been a development application dated 21 March 1979 for the additional 103 marina berths, but the evidence did not establish how the Council determined it.
On 20 March 1980, Warringah Shire Council approved development application 733/495 for a sewerage pumping station, 8m from the new high water mark, to allow for landscaping and service access.
On 1 September 1980, the EPA Act commenced. WPSO 1963 was deemed to be an environmental planning instrument under the EPA Act. The provisions of Div 10 of Pt 4 of the EPA Act apply to protect use of a building, work or land for a lawful purpose that is an existing use (under ss 106 and 107 of the EPA Act) or other lawful use (under s 109 of the EPA Act).
On 11 October 1985, Warringah Local Environmental Plan 1985 ('WLEP 1985') was gazetted (NSW Government Gazette No 141, 11 October 1985). WLEP 1985 repealed WPSO 1963.
WLEP 1985 zoned the land 2(a) (Residential A). The waterway of Pittwater remained unzoned. The development control table to cl 9 for zone 2(a) (Residential A) specified the nominate purposes for which development may be carried out without consent and which were prohibited, none of which were relevant to RMYC's use of the land. Development on land in zone 2(a) (Residential A) for any purpose other than the purposes permitted without consent or prohibited was permitted only with consent. The purpose of recreational boating club would have been an innominate purpose of development permitted with consent.
By s 109 of the EPA Act, nothing in WLEP 1985 operated so as to require consent to be obtained for the continuance of RMYC's use of the buildings and works on the land or the use of the land for the purpose of recreational boating club. However, a development application could be made to seek consent to carry out new development on the land for a purpose permitted with consent.
Amendment No 19 to WLEP 1985, gazetted on 5 May 1989, corrected identified zoning anomalies in the Shire of Warringah under WLEP 1985.
Clause 10(c) of WLEP 1985 continued the regulation of development below high water mark introduced by cl 59 of WPSO 1963. Clause 10 provided that: "A person shall not, without the consent of the Council, carry out any of the following development: … (c) development in respect of - (i) land below high water mark; (ii) the bed of a creek, lagoon, river, bay or other natural watercourse shown uncoloured on the map; or (ii) any reclaimed or accreted land."
"Development" in relation to land was defined in s 4(1) of the EPA Act at the time to mean: "(a) the erection of a building on that land; (b) the carrying out of a work in, on, over or under that land; (c) the use of that land or of a building or work on that land; and (d) the subdivision of that land…"
A "building" was defined in s 4(1) to include "a structure of part of a structure". The Council also relied on cl 10(c) of WLEP 1985 for its argument that consent was required to install and use the swing moorings in the waterway. I will deal with this argument in the next section of the judgment.
On 24 September 1987, Warringah Council granted development consent No 87/337 and, on 30 September 1987, building approval No 2361/87 to erect a retaining wall. On 29 September 1988, Warringah Shire Council granted development consent No 88/322 and building approval 1241/89 for relocation of slipway No 3 and minor reclamation adjacent to the existing wharf.
On 4 February 1994, Pittwater Local Environmental Plan 1993 ('PLEP 1993') was gazetted. PLEP 1993 incorporated the provisions of WLEP 1985 into a local environmental plan for the area of Pittwater (cl 2 of PLEP 1993). Pittwater had by this time separated as a local government area from Warringah.
PLEP 1993 continued to zone the land 2(a) (Residential A). The development control table to cl 9 for zone 2(a) (Residential A) specified the nominate purposes for which development may be carried out without consent (there were none specified) and for which development was prohibited, none of which were relevant to RMYC's use of the land. Development on land in zone 2(a) (Residential A) for any purpose other than those purposes permitted without consent or prohibited was permissible with consent. The purpose of recreational boating club would have been an innominate purpose of development permitted with consent.
By s 109 of the EPA Act, nothing in PLEP 1993 operated so as to require consent to be obtained for the continuance of RMYC's use of the buildings and works on the land or the use of the land for the purpose of recreational boating club. However, a development application could be made to seek consent to carry out new development on the land for a purpose permitted with consent.
At the time PLEP 1993 came into force on 4 February 1994, it left unzoned the waterway of Pittwater. This omission was corrected by Pittwater Local Environmental Plan 1993 (Amendment No 1) ('Amendment No 1'), which was gazetted on 29 July 1994 (NSW Government Gazette No 99, 29 July 1994). Amendment No 1 divided the waterway adjacent to the land into two zones. The near shore waterway, within the leased area, was zoned W3 (Recreational Boating Facilities). The waterway to the west of the leased area, in which the swing moorings were located, was zoned 6(a1) (Waterways Recreation).
The development control table to cl 9 for zone W3 (Recreational Boating Facilities) specified the nominate development that may be carried out without consent (being "recreational activities") and the development that may be carried out only with consent, being "development ordinarily incidental or subsidiary to clubs associated with recreational activities on the waterway". Development for a purpose other than a purpose that was permitted without consent or only with consent was prohibited.
Development for the purpose of recreational boating club would have been embraced within the nominate purpose for which development may be carried out only with consent in the W3 (Recreational Boating Facilities) zone. However, by s 109 of the EPA Act, nothing in PLEP 1993 (as amended by Amendment No 1) operated so as to require consent to be obtained for the continuance of RMYC's use of the buildings or works in the waterway or the use of the waterway for the purpose of recreational boating club.
The development control table to cl 9 for zone 6(a1) (Waterways Recreation) specified the development that was permitted without consent, only with consent and prohibited: "ZONE NO. 6(a1) (WATERWAYS RECREATION) 1. Without development consent Aids to navigation; moorings in existence at the date of coming into operation of Pittwater Local Environmental Plan 1993 (Amendment No. 1) (where such moorings are the subject of an occupation licence issued under the Maritime Services Act 1935); recreational activities; replacement or relocation within the same mooring area of such moorings or of moorings which have been located and either erected or laid with the consent of the council. 2. Only with development consent Moorings (other than moorings permitted without consent by item 1); public wharves, jetties, pontoons and boat launching ramps; transport services and facilities associated with the waterway (other than helipads, heliports or helicopter landing areas); utility installations. 3. Prohibited Any purpose other than a purpose for which development may be carried out without development consent or only with development consent."
Development for the purpose of recreational boating club was not a purpose for which development may be carried out without consent or only with consent and would therefore have been prohibited. However, by s 107 of the EPA Act, nothing in PLEP 1993 (as amended by Amendment No 1) prevented the continuance of a use of the waterway for the purpose of recreational boating club, provided that use was an existing use under s 106(a) of the EPA Act.
Amongst the development that the development control table for zone 6(a1) (Waterways Recreation) specified as development which may be carried out without consent was: "moorings in existence at the date of coming into operation of Pittwater Local Environmental Plan 1993 (Amendment No. 1) (where such moorings are the subject of an occupation licence issued under the Maritime Services Act 1935)". RMYC relied on the commencement of Amendment No 1 which permitted the use of such moorings without the necessity for consent under the EPA Act being obtained therefor in answer to the Council's argument that the use of the swing moorings in the waterway was unlawful. RMYC argued that, if the installation and use of the swing moorings in the waterway had been unlawful (which RMYC did not concede), Amendment No 1 and s 109A(1)(a) of the EPA Act rendered the use of the swing moorings lawful. I will address this argument in the next section of the judgment.
Amendment No 1 not only introduced zoning of the waterway, but also amended cl 10(c) of PLEP 1993. Clause 10(c) of PLEP 1993 was originally expressed in the same terms as cl 10(c) of WLEP 1985 and required consent to be obtained to carry out development in respect of land below high water mark. Amendment No 1 amended cl 10(c) so that the clause did not apply to "development on land to which Pittwater Local Environmental Plan 1993 (Amendment No. 1) applies". The rationale for the amendment was obvious. Land below high water mark in the waterway was included by Amendment No 1 in the new zones for the waterway. Development on land below high water mark in these waterway zones was regulated by the development control table for the zone. Clause 10(c) no longer needed to regulate development below the high water mark.
On 24 September 1999, Pittwater Local Environmental Plan 1993 (Amendment No 37) was gazetted (NSW Government Gazette No 111, 24 September 1999). This amendment maintained the zoning of the waterway as zone W3 (Recreational Boating Facilities) for the near shore waterway within the leased area and zone 6(a1) (Waterways Recreation) for the waterway to the west of the leased area in which the swing moorings were located.
On 17 January 1997, Pittwater Council granted development consent No 96/160 in response to development application No 1996/113 for alterations and additions to the existing yacht club. On 12 May 1997, Pittwater Council granted development consent No 97/45 in response to development application No 1997/12 for the replacement of existing underground fuel tanks. On 6 November 1997, Pittwater Council approved the modification of development consent No 96/160 by deleting condition 21 concerning amendment of a stairwell.
On 13 October 1999, Pittwater Council granted development consent No 862/99 for construction of a rigging deck and a launching ramp.
On 7 December 2000, Pittwater Council granted consent No 733/00. The consent was subsequently modified on 8 May 2001 to modify the amenities shed for general storage in association with the existing club building and dinghy racking, and installation of a new sewer waste pump station to the amenities shed.
On 27 February 2001, Pittwater Council granted development consent No 900/00 for a proposed bistro, open terrace lounge and single storey facilities. A modification was approved to the awning on the southern side of the amenities block.
On 16 September 2003, the Minister for Infrastructure and Planning approved development application no 133-3-2003-i to carry out development described in the consent as: "The refurbishment and minor additions to part of the existing marina, involving the removal of the fixed walkways and berths and replacement with floating pontoon marina berths, an increase in the number of berths from 204 to 218, an additional fuel facility and 11 additional car parking spaces" The extended marina was opened in 2004.
On 27 June 2014, PLEP 2014 came into force. As earlier stated, PLEP 2014 zoned the land RE2 Private Recreation and permitted with consent development of registered clubs. PLEP 2014 zoned the near shore waterway within the leased area W2 Recreational Waterways and permitted with consent a variety of water-based recreational facilities and activities, but not specifically development for the purpose of recreational boating clubs. PLEP 2014 zoned the waterway to the west of the leased area, in which the swing moorings are located, W1 Natural Waterways. In that zone development for the purpose of recreational boating clubs was an innominate prohibited development.
The result of this tracing of the history of the use of the land and the waterway up to the date of the coming into force of PLEP 2014 may be summarised as follows: 1. The use of the buildings and works on the land and the use of the land for the purpose of recreational boating club was commenced lawfully and continued to be lawful, including as another lawful use under s 109 of the EPA Act. 2. The use of the buildings and works in the near shore waterway, within the leased area, and the use of that waterway for the purpose of recreational boating club was commenced lawfully and continued to be lawful, including as another lawful use under s 109 of the EPA Act. 3. The use of the waterway to the west of the leased area, in which the swing moorings are located, was commenced lawfully and continued to be lawful, including by existing use rights. This use of this part of the waterway meets the definition of existing use in s 106(a), being a use for a lawful purpose in town planning terms.
It is now necessary to address the Council's argument that, nevertheless, the use of the waterway to the west of the leased area was unlawful because the installation and the use of the swing moorings in this waterway was unlawful.

Was installation and use of the swing moorings unlawful?

The Council's argument that the use of the swing moorings was unlawful

The Council contended that the swing moorings were installed in the waterway to the west of the leased area after the coming into force of WPSO 1963. As a consequence, cl 59 of WPSO 1963 operated to prohibit the installation of the swing moorings without obtaining consent. Clause 59 provided that a building could not, without consent, be erected on any land below high-water mark. A "building" was defined to include "any structure or any part thereof".
The term "structure" was not defined in WPSO 1963 or LGA 1919. The Council referred to the Macquarie Dictionary definition of "structure" as follows: "1. Mode of building, construction, or organisation; arrangement of parts, elements or constituents. 2. Something built or constructed; a building, bridge, dam, framework, etc"
The Council observed that dictionary meanings of "structure" tend to support a wide meaning corresponding to "anything constructed" (see R v Berghofer [1997] 2 Qd R 459 at 463). If given its full and literal meaning, "structure" has a wide operation (Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302 at 305). The Council submitted the nature of a swing mooring as a physical thing is aptly described as consisting of a number of interconnected physical elements or parts comprising a heavy weight placed on the seabed, a chain, a rope and a buoy. The Council submitted that a swing mooring is, therefore, a "structure" in the ordinary meaning of that term.
The Council submitted that, although it appears that swing moorings and the boats they store may move with the tide and currents in certain circumstances and have been relocated by RMYC to accommodate other boats, it is erroneous to contend that this makes the swing moorings "portable" and akin to the portable marquee in Garbacz v Morton (1999) 108 LGERA 251; [2000] NSWLEC 17, which was held not to be a structure. It is plain that the weight of the elements of the mooring structure is designed to prevent or minimise movement while the marquee in Garbacz was to be removed following the event; it was not to be relocated to another part of the premises.
The Council noted that a pontoon connected by chains to weights in the Pittwater waterway was held to be a structure in Aquatic Airways Pty Ltd v Warringah Shire Council (1990) 71 LGRA 10. In Holster v Director-General of National Parks and Wildlife Service [1999] NSWLEC 102 at [16], Lloyd J accepted that a swing mooring was a 'structure' that, if unauthorised, could be removed under s 160A of the National Parks and Wildlife Act 1974.
For these reasons, the Council submitted that each swing mooring was a "structure" and therefore a "building" for the purpose of cl 59 of WPSO 1963. Consequently, from the time WPSO 1963 took effect on 7 June 1963 until it was repealed on 2 October 1985 by the enactment of WLEP 1985, RMYC was required to obtain consent under cl 59 to erect swing moorings below the mean high water mark in Pittwater, including in the area now zoned W1 Natural Waterways under PLEP 2014.
The Council submitted that the erection of the swing moorings without obtaining consent was in contravention of WPSO 1963. The subsequent use of the unlawfully erected swing moorings was also unlawful. The words "use…for a lawful purpose" in the definition of existing use in s 106(a) of the EPA Act require that the actual use must be a lawful use: Steedman v Baulkham Hills Shire Council (No 2) at 570, 580. The actual use of the swing moorings was not lawful because the swing moorings were erected unlawfully.
As a consequence, the use of the swing moorings on the waterway was not for a lawful purpose and cannot be an existing use as defined in s 106(a), howsoever the purpose of the use might be characterised.

RMYC's response that the use of the swing moorings was lawful

RMYC rebutted the Council's argument and contended instead that the use of the swing moorings in the waterway was for a lawful purpose. RMYC gave five reasons. First, the swing moorings were installed before WPSO 1963 came into force requiring consent to be obtained to erect a building below high-water mark. Second, a swing mooring is not a structure and hence not a building and was not caught by cl 59 of WPSO 1963. Third, the use of the swing moorings was still lawful even if the swing moorings had been installed unlawfully. Fourth, the use of the swing moorings, if unlawfully commenced, was rendered lawful under s 109A(1)(a) of the EPA Act by the commencement of Amendment No 1 to PLEP 1993 which permitted the use of the swing moorings without the necessity for consent being obtained therefor. Fifth, the use of the swing moorings, if unlawfully commenced, was rendered lawful under s 109A(1)(b) of the EPA Act by the grant of development consent by the Minister on 16 September 2003 to development that included the use of the swing moorings. I will address each of RMYC's reasons.

Installation of the swing moorings before consent was required

RMYC's first response to the Council's argument that the swing moorings were erected unlawfully is a factual one: the swing moorings were installed in the waterway in what is now the leased area and an area to the west of the leased area before cl 59 of WPSO 1963 came into force and regulated the erection of a building on land below high-water mark. Insofar as the installation of the swing moorings could be said to involve the erection of a building on land below high-water mark, the swing moorings were existing buildings and the use of the swing moorings was an existing use. Clause 30 of WPSO 1963 authorised the maintenance and use of these existing buildings for their existing use and the continuance of the existing use of the land.
RMYC referred to the evidence of a historian, two club members, club records and photographic evidence to establish that swing moorings were installed in the area of the waterway now referred to as the expansion area proposed to be developed.
Mr Mark Dunn, a historian, provided historical advice regarding the development of the club and its use of the waterway. RMYC's Minute Book for January and September 1927 noted that the club had applied to the Navigation Department for the first 8 swing moorings which were permitted in the front of the club in Horseshoe Cove, with a further 15 swing moorings added by September, with some placed in Horseshoe Cove and others placed in bays around Pittwater.
In December 1927, RMYC held its first motor yacht race. RMYC laid out moorings around the cove from its western end. Moorings appeared to be placed around the cove and off the point from this period onwards as required.
The minutes of the club's general committee meeting on 8 December 1929 noted issues with concrete block delivery for moorings and the use of swing moorings by non-members.
In 1938, a further 10 moorings were approved by the Maritime Services Board (RMYC Minute Book of 16 November 1938). By 1941, there were 31 boats on moorings, with a new speed boat annex and the wharf extended to allow cruisers to berth at the club (RMYC Minute Book of 20 January 1941).
During the 1950s, the activities that the club offered its members began to intensify. By 1950, RMYC was running a tender service, transferring members from shore to their boats at moorings in Horseshoe Cove or to boats moored west of the clubhouse close to the deep water channel (RMYC Broken Bay Bulletin No 175, June 1950).
The increasing popularity of the club was further reflected in the number of swing moorings offered by the club rising to a total of 55 by the end of 1959 (RMYC 34th Annual Report 1959-60). More swing moorings were added in the 1960-1961 season, which increased the revenue the club earned for moorings (RMYC 35th Annual Report 1960-61).
The Boathouse Manager's Report for 1960-61 stated that "a positive programme of progressive moorings maintenance has been carried out and all our moorings are in excellent condition".
A 1961 aerial photograph showed boats moored in Horseshoe Cove, including along the western side of the point in the area of the present berthing facility in the leased area and further to the west out towards the deep water channel.
Mr Albert Taylor was a club member who attended the club almost every weekend from 1948 until the mid-1960s. Mr Taylor recalled that, for the whole period he attended the club, the club had swing moorings available for a fee to club members to secure boats and to let out to casual users to generate income for the club. Mr Taylor noted that in the RMYC Bulletin No 175 of June 1950, the club is stated to have "20 first class moorings". Mr Taylor said these were swing moorings because the pontoons (for berthing boats) were only built in approximately the late 1950s.
Mr Taylor said that during the period he attended the club, the number of swing moorings and their position changed over time. On three or four times each year during the racing period, because of special race days and the large numbers of boats participating in the races, the club needed to move four or five motor cruiser boats from the swing moorings southwest and northwest of the club to accommodate the boat races. The club returned the cruisers to their original swing moorings after the races were finished.
Mr Taylor referred to the 1961 aerial photograph showing boats on swing moorings to the west and south of the point, most within what is now the leased area. In his affidavit evidence, Mr Taylor said that these photographs accorded with his recollection of the position and number of swing moorings around 1961. In his oral evidence at the hearing, however, Mr Taylor said there were in fact more swing moorings in the area to the west of what is now the leased area than were shown in the 1961 aerial photograph. Mr Taylor said that there were swing moorings located in the area between the clubhouse and the deep water channel marked by the port channel marker to the west. Mr Taylor recalled having to dodge swing moorings when driving his boat from the north to the south back to the club. When he passed the pylon on Salt Pan Cove (to the north of the club), he knew there were swing moorings.
Mr Taylor said that there was a club tender used to pick up and drop off people wanting to access boats moored on the swing moorings. The tender was also used by club staff to service the swing moorings and the holding lines which attached boats to the swing moorings during the week. The use of the tender was regular during the whole of the day and use of it increased substantially on weekends.
Mr Miles Felstead is a club member who first started attending the club in about 1955. His father was a foundation member of the club and moored a boat on a swing mooring quite close to the shoreline east of Horseshoe Cove.
Mr Felstead recalled that the presence of moored vessels west of the starter's box (which was originally built in the waterway west of the clubhouse before land was reclaimed) meant that the racecourse was required to be located about 200m west of the starter's box to enable a course clear of the swing moorings. The course of the race ran in a north to south direction between two anchored buoys located on the east side of the middle of the deep water channel and about 200m west of the club starter's box.
Mr Felstead said that, for as long as he could remember, including during the racing period, there had been swing moorings used by the club located in the waterway just off the club premises. The swing moorings were made available for a fee by the club for club members and casual users to secure their vessels. The number and location of swing moorings changed over time.
During the period 1958 to 1964, Mr Felstead worked with volunteers to conduct the races. He remembered that during this period there were many swing moorings located in the area west of the club between the club and the deep water channel. He estimated that there would have been about 20 swing moorings in this area. The main mooring area was in Horseshoe Cove (to the south of the club) where it was more protected and there was a greater number of moorings in that area. The area outside the club premises was used also but was less protected from the weather. The moorings were to the northwest of the starter's box.
I find on this evidence that swing moorings were installed, in that part of the waterway referred to as the expansion area proposed to be developed, both in the area within what is now the leased area as well as in an area to the west of the leased area towards the deep water channel, prior to the coming into force of WPSO 1963 on 7 June 1963. The location of the moorings in these areas was changed from time to time. The swing moorings in these areas of the waterway were used by club members and casual guests of the club to moor their boats. The club provided a tender service to take members to and bring members from their boats on the swing moorings. The club had a programme of maintenance of the swing moorings. Club members moved boats moored on the swing moorings located towards the channel in order to create a clear racecourse. Club members' boats travelled between the swing moorings and any boats moored to them in order to undertake various club boating activities. I find that the actual and physical use of parts of the waterway for the swing moorings and boat movements associated with the swing moorings and the club's boating activities constituted a use of the whole of these areas of the waterway: see Minister for Planning v Rose Bay Marina Pty Ltd (2003) 126 LGERA 181; [2003] NSWCA 119 at [37]-[41].
In summary, RMYC installed the swing moorings in the expansion area proposed to be developed before there was any restriction on erecting a building below high-water mark. On this factual finding, the installation and use of the swing moorings in the expansion area was lawful.
Moreover, if the installation of the swing moorings could be said to involve the erection of buildings, the swing moorings were existing buildings, and the use of the swing moorings and the waterway in which they were located was an existing use, to which cl 30 of WPSO 1963 applied. Clause 30 permitted an existing building to be maintained and used for its existing use and an existing use of land to be continued. Clause 59 of WPSO 1963 did not operate so as to require consent to be obtained for existing buildings or existing uses.

A swing mooring is not a building

RMYC's second response to the Council's argument of unlawfulness was that, if the swing moorings in the expansion area were installed after cl 59 of WPSO 1963 commenced operation, the installation of swing moorings was not caught by cl 59 of WPSO 1963 as it does not involve the erection of a building.
RMYC noted that a "building" was defined in cl 4 of WPSO 1963 in the usual manner of including "any structure or any part thereof". Neither the noun "structure" nor the verb "erect" was defined in WPSO 1963.
RMYC submitted that a swing mooring is not a structure. RMYC referred to the evidence of Mr John Leman, an engineer with experience in marina facilities, and Mr Steven Euers, the general manager of RMYC.
Mr John Leman described the various types of moorings, including a swing mooring. A swing mooring is a single point mooring. With a single point mooring arrangement, the vessel is free to swing around its mooring point depending on which way the wind and/or tide is pushing it.
The swing mooring has no fixed linkage to the seabed, shore, jetty or pontoon structure and requires the user to gain access to the moored vessel by a smaller vessel (typically a dinghy or vessel tender) which is launched from or stored at a suitable nearby foreshore area.
The equipment that typically comprises a swing mooring is a mooring block, a chain and a buoy. A heavy weight, known as a mooring block, is laid on the seabed (without any affixation) to which is attached, in order, a chain, an upper section of rope, and a floating mooring buoy. Typically, the chain is divided into a heavy ground chain at the bottom of the chain section then a lighter riser chain section and finally to a rope section leading to a floating buoy. The vessel is either secured to the buoy by a short rope line or the buoy is brought aboard and the connection is made to the rope below the buoy. The primary purpose of the chain section is to add weight to the mooring line system to reduce the potential uplift on the mooring block (to ensure the block is not dragged along the seabed during storm events), to dampen the shock load as the vessel pitches up and down due to (storm event) waves and to pull the vessel back towards the mooring block during calmer conditions. The latter is of more importance when trying to achieve minimal spacing between moorings without potential clash of vessels when not lying in the same direction.
Swing moorings can shift in location over time due to being lifted and re-laid during regular maintenance checking or may move during storm events. They can also be relocated if there is a requirement to rearrange a group of swing moorings to accommodate changes in the number of moorings or vessel sizes.
Mr Euers, the general manager of the club, described the swing moorings used by the club in similar terms. Swing moorings are a portable form of mooring used to secure boats in the water. They consist of a heavy weight, which is commonly concrete, placed on the seabed but which is not fixed to the seabed. Attached to the weight is generally a chain sometimes attached to a chain of smaller gauge then to a rope which is attached to the buoy. The buoy is taken by the boat owner from the water and the rope to which it is attached is then secured to the bow of the boat on a cleat.
The chain(s), rope and buoy and any boat attached to the rope all move with the tide, with the wind and the force exerted by the attached boat. When there is little or no wind, the moorings of an attached boat still move with the current and tide. When there is a strong wind the moorings and attached boats will move straining with the tide and the wind.
The circumference of the movement of swing moorings is prescribed by the stern of the vessel where its bow is attached to swing mooring buoy rope and will then depend on the depth of the water, the length of the boat and the strength of the wind and current.
The club's swing moorings have 5m of chain and 12m of rope. For a 12m boat, the total circumference of the chain and rope would be 58m, being twice the total length of the rope and chain and boat. For a 15m boat, the total circumference of the chain and rope would be 64m.
In addition to movements of swing moorings caused by weight, wind and tide, club staff responsible for the club mooring facilities also move swing moorings as required to accommodate different size boats. Sometimes a mooring will have to be lifted to a different spot to allow for the swing of a new larger nearby vessel.
RMYC submitted that swing moorings, as so described, do not constitute a "structure". RMYC submitted that a purposive construction of the words "building" and "structure", as those words are used in cl 59 of WPSO 1963, would not include a swing mooring within the scope of a structure or building. RMYC referred to Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302 at 307-308 where Mahoney JA said that a purposive construction of terms such as structure would require the Court to: "determine the purposes which the legislature sought to achieve by prescribing that no structure be erected without council approval…The court would then adopt from among the possible meanings of 'structure' and 'erect' that meaning which would give effect to that purpose. It would not give to the terms a meaning which had no relevance to the achievement of that purpose."
In Cariste Pty Ltd v The Council of the City of Blue Mountains [1996] NSWCA 92, Simos AJA said at p 12: "In my opinion, the 'dam' actually excavated in the present case was not a structure within the meaning of the Act because it does not, in my opinion, fall within the ordinary, natural meaning of the word 'structure', and because giving the relevant provisions a purposive interpretation, as is required to be done (see Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302 at 305-308 per Mahoney JA), this particular dam, intended to be a macrophytic pond, to the extent to which it had been constructed in the particular circumstances of this case, prior to the lapsing date of the development application (23 November 1992) was not of such a kind or nature as was intended by the legislature to be regulated by the relevant provisions of the Act relating to 'buildings', and which involve concern for such matters as, inter alia, drainage, ventilation, lighting, health and other matters inapplicable to that particular 'dam'."
In Mulcahy v Blue Mountains City Council, Mahoney JA stated at 308, by way of oversimplification, that the purpose of the planning legislation was to address safety and stability of structures and adopted a meaning of "structure" which would give effect to that purpose. A gate across a road was held not to be a structure for the purposes of the EPA Act.
In Bowyer v Manly Council (Land and Environment Court (NSW), Talbot J, 28 February 1997, unrep), Talbot J accepted Mahoney JA's approach in Mulcahy and Simos AJA's approach in Cariste and held that a road was not a structure. Similarly in Garbacz v Morton, a large marquee erected on the foreshore of Sydney Harbour was held to be neither a building nor a structure because the marquee had none of the features of a fixture.
RMYC submitted that it is ill-fitting to describe the placement of a mooring on the seabed as the erection of a building. A gate affixed into the ground in a rural setting (in Mulcahy) is not a building. A fortiori a swing mooring could not be considered a building. WPSO 1963 simply did not regulate the placement of swing moorings as that was something covered by a different regime.
I find that the installation of the swing moorings in the waterway did not involve the erection of a building, including a structure, on land below high water mark.
First, I find that a swing mooring was not a building, including a structure, to which cl 59 of WPSO 1963 applied. It is true that in a wide sense a structure can refer to a "framework of material parts put together" or "something…built up of component parts": R v Lowe (1954) 19 LGR (NSW) 348 at 351. However, courts have construed the concepts of "building" and "structure", for local government and planning purposes, as involving, first, a structure of considerable size or substance, and second, a structure intended to be permanent or at least endure for a considerable time. In an early English case involving the Metropolitan Building Act 1955 (UK), Byles J in Stevens v Gourley (1859) 7 CBNS 99 at 112-113; 141 ER 752 at 757-758 said that: "by a 'building' is usually understood a structure of considerable size, and intended to be permanent or at least to endure for a considerable time. A church, whether constructed of iron or wood, undoubtedly is a building. So a 'cowhouse' or 'stable' has been held to be a building…On the other hand it is equally clear that a bird-cage is not a building: neither is a wig-box, or a dog-kennel or a hen-coup - the very value of these things being their portability."
In Australian Gaslight Co v Valuer-General (1940) 14 LGR (NSW) 149, Jordan CJ at 156-157 and Halse Rogers J at 166 approved the definition of "structure" given by Roper J of the Land and Valuation Court at first instance as: "a substantial erection necessarily constructed in situ and forming and intended to form a permanent feature of the land, having substantially the characteristics of a building or of a permanent framework affixed to the land and not being a machine". Davidson J at 162-163 preferred the definition of Scrutton J in Inland Revenue Commissioners v Smyth [1914] 3 KB 406 at 421 that: "a 'structure' is something artificially erected, constructed, or put together, of a certain degree of size or permanence, which is still maintained as an artificial erection, or which, though not so maintained, has not become indistinguishable in bounds from the earth surrounding".
In O'Brien v Shire of Rosedale (1968) 22 LGRA 262 at 267, Gillard J identified characteristics commonly associated with a structure. The first characteristic was that: "the structure is something which is constructed, involving the notion of bringing together a number of distinct and separate physical components which, when constructed or brought together, form or make some other substantial object at a fixed site and having some utility value". The second characteristic was that: "the mere fact that the new physical object so constructed rested by its own weight on the soil did not necessarily and of itself alter its character as a structure". The third qualified the first two characteristics: "there must, however, be an intention on the part of the builder at the time of the erection that the new object brought into existence will remain permanently on its site on a permanent foundation…Thus a tent erected on a wooden floor or a caravan, if placed on a site temporarily for occupation, would not ordinarily be called a structure."
These criteria that the structure needs to be of some considerable size or substance and to be sufficiently affixed to the land and to remain permanently or indefinitely on the land explain most of the cases holding a structure either to be or not to be a "structure".
As to the first criteria that the structure needs to be of some considerable size or substance, small structures have been held not to be buildings, including structures: see the small structures referenced in Stevens v Gourley quoted above and in Noarlunga City Corporation v Fraser (1986) 61 LGRA 324 at 331-332 and in Mulcahy v Blue Mountains City Council at 306, 308. Hence, a slipway with a wooden cradle on which small boats could be brought from the river for servicing was held not to be sufficiently substantial to be a "building": Tange v Drummoyne Municipal Council (1955) 20 LGR (NSW) 229 at 233. A gate erected on private land preventing public access along a road constructed on the private land was held not to be a structure: Mulcahy v Blue Mountains City Council at 305-308.
The decision in Holster v Director-General of National Parks and Wildlife Service that the swing moorings in that case were structures that could be removed under s 160A of the National Parks and Wildlife Act 1974 is distinguishable. It concerned different legislation and the finding in [16] lacked detailed reasons and did not address the arguments raised in the present case.
As to the second criteria, structures that are sufficiently affixed to the land, by whatever means, to be capable of remaining there for an indefinite period have been held to be "structures". Hence, caravans or mobile homes that are placed on the land in such a way that they will remain where they stand indefinitely have been held to be structures. This might involve halting their mobility, such as by the wheels resting in excavations or placing supports under the structures, and connecting the structures to utility services such as electricity supply mains or water and drainage systems: see, for example, Wagga Wagga Municipal Council v Sullivan (1931) 10 LGR (NSW) 77 at 78; Parramatta Municipal Council v Chamberlain (1938) 14 LGR (NSW) 21 at 24; Forster v Shire of Mornington [1949] VLR 150 at 153; Crease v Hay Shire Council (No 2) (1973) 28 LGRA 38 at 39-40; Skaventzos v Vander-Lee (1974) 30 LGRA 395 at 399; and Waratah-Wynyard Council v Fairbrother [1994] TASSC 185 at [15], [16]. Similarly, sheds of a sufficient size and bulk, although prefabricated, that were sufficiently affixed to the land, by whatever means, to be capable of remaining there for an indefinite period were held to be "structures" and "buildings": Jambrecina v Blacktown City Council [2009] NSWCA 228 at [42]-[43]. In these situations, there is a sufficient degree of affixation to the land and permanence of the structures to satisfy the ordinary meaning of a structure and a building.
However, other structures that were mobile and not intended to remain permanently on the land on which they were placed have been held not to be structures: see, for example, Lismore Municipal Council v Williams (1931) 10 LGR (NSW) 58 at 60 (movable fruit stall on wheels); Ex parte Hunter; re Doig (1934) 12 LGR (NSW) 38 at 39, 40 (moveable galvanised iron amusement tank); Noarlunga City Corporation v Fraser at 331, 337 (a yacht on a moveable cradle with wheels); Garbacz v Morton at [50] (a portable, temporary marquee).
I find that the swing moorings installed by RMYC in the waterway were not structures and hence not buildings to which cl 59 of WPSO 1963 applied. The swing moorings did not satisfy the two criteria of being of some considerable size or substance and sufficiently affixed to the land and remaining permanently or indefinitely on the land. The swing moorings were not of a sufficient size or bulk to be a structure for the purpose of the regulation of the erection of buildings on land under cl 59 of WPSO 1963. Swing moorings were not affixed to the land below the waterway, by any means, and did not remaining indefinitely at the locations where they had been placed from time to time. The swing moorings were simply placed on the seabed and remained in that general location by reason of the weight of the mooring block. However, the swing moorings did move with the tide and the wind. The swing moorings were deliberately moved from time to time to accommodate different sized vessels or to clear a passage for boating activities. The swing moorings were also removed and replaced for maintenance purposes.
Second, the placement of the swing moorings in the waterway did not involve the "erection" of a structure. A building, including a structure, must be capable of erection. Clause 59 of WPSO 1963 provided that a building was not to be "erected" on any land below high-water mark.
The ordinary meaning of "to erect" is "to raise, set upright, build": Kismet Engineering Pty Ltd v Brisbane City Council [1959] 102 CLR 574 at 582. The word has this ordinary meaning in WPSO 1963.
The concept of erecting a structure on land involves the raising, setting upright or building of the structure on the land. It involves putting a new structure on the land. Hence, to move a structure already on the land from one part of it to another is not to erect it upon the land. It does not put a new thing there; it moves an old thing from one position to another on the same land: Kismet Engineering Pty Ltd v Brisbane City Council at 580, 582.
Third, the swing moorings were not structures that were erected "on any land below high-water mark". Clause 59 of WPSO 1963 required that the erection of the building take place on the land below high-water mark. This required affixing the building, including a structure, to the land below high-water mark in some substantial way so that it was capable of remaining there for an indefinite period. A structure that merely physically rests on land has not been erected on the land. In some circumstances, a structure may be of such a considerable size and weight that it might be considered to be a structure on the land even though it is not affixed to the soil: see Noarlunga City Corporation v Fraser at 328. Ordinarily, however, a building will be considered to have been erected on the land by some affixation to the soil or by its sheer size and weight.
Hence, if a structure is erected at one place and is moved to another place, it will not have been erected at the other place, unless it is affixed in some substantial way to the land at the other place. In Strong v Taylor (1890) 16 VLR 202, the building regulation prohibited the "construction" of buildings made of combustible materials within a certain distance of the building line of the street. The defendant constructed a wooden office on wheels at a place not within the prohibited distance and, after it was constructed, wheeled it to a place within the prohibited distance. The Court held that the building had not been constructed within the place prohibited and there had been no breach of the regulation: at 204. In James v Brecon County Council (1963) 15 P & CR 20, the defendant installed a battery of six fairground swing-boats. The entire battery could be lifted and taken away by six men or it could be dismantled in about an hour. The Court held that the defendant had not erected a building (which was defined to include a structure) and the swing-boats were not "in the nature of a building or erection which changed the physical character of the land at all": at 24.
However, it is a question of fact and degree whether there has been the erection of a building. In Aquatic Airways Pty Ltd v Warringah Shire Council at 19, the Court of Appeal held that a large pontoon used as a landing pad for helicopters in the waterway of Pittwater was a building (structure). The pontoon was secured by chains at two points to concrete weights placed on the bed of Pittwater and at a third point to a steel locomotive wheel which was also placed on the seabed. The Court held that "the placing of weights on the bed of Pittwater and the securing of those weights to a pontoon by means of chains amounts to the erection of a building": at 19. The pontoon used as a landing pad for helicopters in that case was, however, of a considerably greater bulk and size than a swing mooring. Moreover, the Court did not address the question of relevance in the present case of whether that structure of the pontoon with its attached chains and large weights was erected "on any land below high-water mark." In one sense, the only parts of that structure that were erected on the seabed were the three weights; the great bulk of the structure floated in the water above the land and was not held upright by the weights on the seabed.
The swing moorings in this case were not "erected…on any land below high-water mark" within cl 59 of WPSO 1963. The swing moorings were assembled onshore, that is to say, the component parts of the mooring block, chains, rope and buoy were assembled onshore. The assembled swing moorings were taken out into the waterway in a suitable vessel (such as a barge with a winch) and the mooring block of the swing mooring was lowered into the desired position on the seabed. There was no affixation of the mooring block to the seabed. No part of the swing mooring other than the mooring block was placed on the seabed; the floating buoy kept the chains and rope above the seabed. The mooring block on the seabed did not hold upright the chains, rope and buoy. The size and weight of the swing moorings were not so substantial that they could not readily be moved and they did not remain in the same position indefinitely. In the circumstances, there has not been an erection of the swing mooring on the land below high-water mark. Instead, there has been the movement of an already assembled apparatus from one place (the club's land onshore) to another place (the position on the seabed where the mooring block of the swing mooring was placed). This did not involve the erection of a structure on the land below high-water mark.
For these reasons, any swing moorings that were installed by RMYC in the waterway after the coming into force of WPSO 1963 did not involve the erection of a building on any land below high-water mark in breach of cl 59 of WPSO 1963.

Use of swing moorings for a lawful purpose

RMYC's third response to the Council's argument of unlawfulness was that, even if the installation of the swing moorings was in breach of cl 59 of WPSO 1963, the use of the swing moorings was nevertheless for a lawful purpose. RMYC submitted that the land of Pittwater below high-water mark was unzoned under WPSO 1963. Accordingly, there was no regulation by WPSO of the use of land in Pittwater for any purpose: see Aquatic Airways v Warringah Shire Council at 15, 17. Clause 59 of WPSO 1963 only regulated development involving the erection of a building or the carrying out of work on land below high-water mark; it did not regulate development involving the use of land below high-water mark. Accordingly, RMYC argued, even if the erection of a building on land below high-water mark without consent breached cl 59, the use of the building so erected and the land upon which it was erected did not involve a breach of cl 59 and could be a use of land for a lawful purpose within the definition of "existing use" in s 106(a) of the EPA Act.
I do not agree with this third response. The Court of Appeal's decision in Steedman v Baulkham Hills Shire Council (No 2) established that the words "use…for a lawful purpose" (in s 106(a) and s 109(1) of the EPA Act) should be taken to mean that the actual use must be a lawful use: at 570, 572, 580.
Earlier, in Grozier v Tate (1946) 64 WN (NSW) 1, Owen J held that an unlawful use could not be continued by virtue of s 309(2) of the LGA 1919. That subsection did not protect an unlawful use. It was "designed to save rights, not to perpetuate wrongdoing"; "the use to which s 309(2) refers means 'lawful use', that is to say, a use which is not prohibited by statute or regulation or proclamation validly made under statute": at 3. See also Vumbaca v Baulkham Hills Shire Council at 620.
Hence, the use of the swing moorings had to be a lawful use. It could not be a lawful use if the swing moorings that were used were buildings that had been erected on land below high-water mark in breach of cl 59 of WPSO 1963. It matters not that the use of those unlawfully erected buildings could be said to be for a purpose that was lawful. An unlawful use cannot be a use for a lawful purpose under s 106(a) of the EPA Act. I reject RMYC's third response.

The use of the swing moorings rendered lawful by Amendment No 1 to PLEP 1993

RMYC's fourth response to the Council's argument of unlawfulness was that the use of the swing moorings, if unlawfully commenced, was rendered lawful by Amendment No 1 to PLEP 1993. Amendment No 1 zoned the part of the waterway of Pittwater to the west of the leased area in which RMYC's swing moorings were located 6(a1) (Waterways Recreation). Amongst the development that Item 1 of the development control table for the 6(a1) (Waterways Recreation) zone permitted without development consent was: "moorings in existence at the date of coming into operation of Pittwater Local Environmental Plan 1993 (Amendment No 1) (where such moorings are the subject of an occupation licence issued under the Maritime Services Act 1935)". Amongst the development that Item 2 of the development control table permitted only with consent was "moorings (other than moorings permitted without consent by item 1)".
A "mooring" was defined in cl 5(1) of PLEP 1993 (as amended by Amendment No 1) to mean: "any apparatus located on or in the waterway capable of securing a vessel and which does not have support facilities on nearby land and includes the site of such an apparatus which is temporarily unoccupied."
RMYC noted that all of its current swing moorings in this part of the waterway (Horseshoe Cove) were in existence at the date of coming into operation of Amendment No 1 (29 September 1994) and were the subject of an occupation licence issued under the Maritime Services Act 1935. Mr Stephen Euers, the General Manager of the Club, provided letters from the Maritime Services Board granting an occupation licence for RMYC's swing moorings on 27 June 1973, corresponding about the occupation licences for the swing moorings (through 1973-1975), advising that RMYC should show on each mooring apparatus the number allocated for RMYC's Commercial Occupation Licences (letter of 17 June 1975) and requesting payment of annual fees for the Club/Commercial Occupation Licences (in 1975-1981 as well as requests by the Waterways Authority and RMS in later years). RMYC tendered evidence from the Roads and Maritime Services that RMYC has had Commercial Mooring Licence 2177 ('CML 2177') since 30 June 1981. Under CML 2177, RMYC occupies 49 out of 64 commercial moorings in Horseshoe Cove. A RMS map showed the locations of all moorings in the Horseshoe Cove mooring area, including the 49 moorings held by RMYC under CML 2177. Many of these are located in an area of the waterway west of the berthing facility in the leased area and east of the deep water channel marked by the RMYC pile or port channel marker.
RMYC submitted that all of its swing moorings in this part of the waterway are "moorings" within the definition of PLEP 1993. The swing moorings are located on or in the waterway, are capable of securing a vessel, and do not have support facilities on nearby land. RMYC submitted that the third requirement of the definition of "mooring" distinguishes swing moorings from other types of moorings that have an attachment or connection to the nearby land. Mr Leman described the various mooring types. Mr Leman's description of a swing mooring has earlier been set out. Of importance to the definition of "mooring" in PLEP 1993, a swing mooring has no fixed linkage to the seabed, shore, jetty or pontoon structure and requires the user to gain access to the vessel moored at the swing mooring by a smaller vessel which is launched on or stored at a suitable foreshore area. A swing mooring does not have, in the words of the definition of "mooring" in PLEP 1993, "support facilities on nearby land".
In contrast, the mooring types of a fixed jetty mooring, piled pontoon mooring and non-piled pontoon mooring all have connection to the nearby land. A fixed jetty mooring is a (single) vessel mooring to a fixed jetty on support piles driven into the seabed, with the jetty having attachment to the land for access. A piled pontoon mooring is a (single) vessel mooring to a floating pontoon that is held in position by piles driven into the seabed. Access is by a gangway between the land and the pontoon, with a hinge at the land end to allow for tidal movements. A non-piled pontoon mooring is similar to a piled pontoon mooring except that rather than the pontoon being restrained by piles, it is held in position by the gangway, struts and diagonal wire bracing from the land. Each of these mooring types has, in the words of the definition of "mooring" in PLEP 1993, "support facilities on nearby land".
RMYC submitted, therefore, that its swing moorings were a "mooring" as defined in PLEP 1993, were in existence at the date of coming into operation of Amendment No 1, were the subject of an occupation licence issued under the Maritime Services Act 1935, and became permissible without consent by Amendment No 1. Accordingly, RMYC submitted, the use of the swing moorings, if unlawfully commenced, was rendered lawful by the commencement of Amendment No 1 which permitted use without the necessity for consent under the EPA Act being obtained therefor (s 109A(1)(a) of the EPA Act).
The Council contested that Amendment No 1 rendered RMYC's use of its existing swing moorings permissible without consent. The Council submitted that RMYC's swing moorings were not a "mooring" as defined within PLEP 1993 because they had support facilities on nearby land. The Council submitted that the support facilities on nearby land for RMYC's swing moorings comprised the club's car park and slipway, dinghy storage and tender service facilities.
I agree with and adopt RMYC's submissions that the RMYC's use of its existing swing moorings was rendered lawful under s 109A(1)(a) of the EPA Act by Amendment No 1 permitting use of the existing swing moorings without the necessity for consent being obtained therefor.
I find that RMYC's swing moorings were moorings within the definition in PLEP 1993. The phrase "support facilities on nearby land" is referrable to the "apparatus located on or in the waterway capable of securing a vessel", i.e. the mooring itself. It distinguishes between moorings that do, and moorings that do not, have support facilities on nearby land. Mr Leman's evidence explained the mooring types that do have support facilities on nearby land (including a fixed jetty mooring, piled pontoon mooring and non-piled pontoon mooring) and moorings that do not have support facilities on nearby land (including swing moorings).
The phrase "support facilities on nearby land" does not refer to the use of the mooring. Hence, it is irrelevant that RMYC provides facilities on its land nearby to the swing moorings in order to assist members to access vessels at the swing moorings, such as a tender service or facilities to store and launch dinghies.
The Council's interpretation of the definition of moorings would in fact result in swing moorings being prohibited in the 6(a1) zone. On the Council's interpretation, swing moorings do not fall within the definition of "mooring" in PLEP 1993 and hence do not fall within any type of mooring permitted without consent or with consent in the 6(a1) zone. This cannot have been the intention. The development control table expressly specifies that one of the developments permitted without consent is the replacement and relocation within the same mooring area of moorings which have been located and either erected or laid with the consent of the Council. A swing mooring would evidently be a type of mooring to which this development could apply.
Furthermore, Amendment No 1 uses as a criterion for distinguishing between moorings permitted without consent and with consent whether the moorings are subject to an occupation licence under the Maritime Services Act 1935. Swing moorings were capable of being the subject of such an occupation licence and many of the swing moorings in existence at the date of coming into force of Amendment No 1 (including RMYC's existing swing moorings) were actually the subject of such an occupation licence. This supports a construction of the definition of "mooring" in PLEP 1993 as including swing moorings.

The use of the swing moorings rendered lawful by development consent

RMYC's fifth response to the Council's argument of unlawfulness was that the use of the swing moorings was rendered lawful, under s 109A(1)(b) of the EPA Act, by the granting of development consent to development that included that use in 2003.
On 16 September 2003, the Minister for Infrastructure and Planning granted development consent to development application DA-133-3-2003-i for development described as: "The refurbishment and minor additions to part of the existing marina, involving the removal of the fixed walkways and berths and replacement with floating pontoon marina berths, an increase in the number of berths from 204 to 218, an additional fuel facility, and 11 additional car parking spaces."
The consent was subject to conditions. Condition 2 required the applicant to carry out the development in accordance with the documents specified in the condition, including: "(a) Development Application (DA-133-3-2003-i) lodged with the Department on 28 March 2003; (b) SEE [Statement of Environmental Effects], titled Refurbishment & Additions Royal Motor Yacht Club Prince Alfred Parade Newport prepared by Planning Ingenuity Pty Ltd dated 26 March 2003"
Condition 12 required the relocation of swing moorings affected by the development: "The Applicant shall consult the Waterways Authority in relation to the relocation of swing moorings that are affected by the development. Any swing moorings that are required to be relocated shall be at the expense of the Applicant."
Condition 23 required the applicant to provide 11 additional car parking spaces: "The Applicant shall provide 11 additional car parking spaces in accordance with AS2890.1 1993 Parking Facilities - Off-Street Car Parking."
RMYC submitted that the development to which development consent was granted included the use of RMYC's existing swing moorings. Although the description of the proposed development in the development consent did not expressly specify the use of the existing swing moorings, RMYC submitted that nevertheless the consent did approve the use of the swing moorings.
First, condition 2(b) of the consent required the applicant to carry out the development generally in accordance with the SEE. The SEE included, at Annexure A, the Traffic Report dated September 2002 prepared by Masson, Wilson and Twiney. In section 2, Existing Situation, the Traffic Report stated that: "The site contains recreational and club facilities, a marina with 204 wet berths, 50 swing moorings and the current approved parking provision of the site is 244 spaces." In section 3, Parking Implications of the Proposed Development, the Traffic Report noted the parking rate guidelines for marinas in the Council's Development Control Plan No 14 included 0.2 car spaces per swing mooring (as well as 0.8 cars per wet berth for boats 10-15m long). The Traffic Report calculated that an additional 11 spaces were required to serve the proposed development under the Council guidelines and these were to be provided for by modifying the parking space layout.
Condition 23 of the consent required 11 additional car parking spaces to be provided, as recommended by the Traffic Report. RMYC submitted that it followed from the Minister imposing condition 23 that he must have considered the fact of the existence of the swing moorings as part of the (to be approved) development and the parking demand generated by them and the berths and other amenities offered by the club.
Second, the Minister imposed condition 12 requiring the applicant to consult with the Waterways Authority and relocate swing moorings that are affected by the development. The Minister did not require the relinquishment of any of the club's swing moorings. The fact of the swing moorings was relied upon in setting the parking demand of the refurbished development.
Accordingly, RMYC submitted that the development consent did in fact approve the use of the existing swing moorings. By doing so, the use of the swing moorings was rendered lawful under s 109A(1)(b) of the EPA Act.
The Council contested that the development consent granted by the Minister approved the use of the existing swing moorings. On a proper construction of the development consent, the development that was approved did not include the use of the swing moorings. The description of the proposed development in the consent accurately summarised the development proposed to be carried out and to which consent was granted.
Reference to the development application, SEE and annexed Traffic Report did not assist RMYC. In section 3, Description of the Proposal, the SEE expressly limited the details of the proposed renovations and additions (section 3.1) and parking and servicing facilities (section 3.2). In section 3.1, the SEE stated, in part: "The additions and renovation works to the marina are limited to the areas shown shaded on the drawings. All of the works will be contained within the same water space boundaries as the present marina. All of the repaired and renovated components will comply with the appropriate design, materials and construction standards relating to marinas. Upon the completion of the works, a maximum number of 220 berths will be provided. The additions and renovation work relates to the following components: ● The floating perimeter breakwater (Arm C) and associated inside marina berths; ● The two floating walkways (Arms A & B) and the associated marina berths; ● The access gangways to the marina walkways and the floating breakwater; ● The piles securing the floating structures in place and springer piles; ● A new suspended timber deck, ramp and pontoon at the eastern end of the site for use by junior sailors; and ● The existing services reticulation and outlet modules. … The existing car parking arrangements are to be reconfigured to provide an additional 11 spaces as indicated in Figures 3, 4, 5 & 6 of the Masson, Wilson & Twiney Report (see Annexure A)."
In section 3.2 the SEE stated in part: "The proposed repairs and renovations will result in only a minor change to the present car parking or servicing requirements. There is a total of 244 car parking spaces provided for the RMYC facilities including the marina. The marina parking spaces will have 24 hours, 7 days per week access. A minor rearrangement of the existing car parking layout is proposed which will result in the provision of 11 additional car parking spaces as shown on the Masson, Wilson & Twiney drawings (see Annexure A Figures 3, 4, 5 & 6).'
Section 5 of the SEE assessed the proposed development as described in section 3 of the SEE. There was no particular assessment of the continued use of the existing swing moorings.
The Traffic Report annexed to the SEE also described the proposed development. This did not include the use of the existing swing moorings. The Traffic Report stated in section 3, Parking Implications of the Proposed Development: "The development proposes to introduce 14 new berths which fall in the range of 10-15m long. As 0.8 cars/berth are required to conform with DCP No. 14, for these berths 11 new car parking spaces will be required (14 berths @ 0.8 = 11.2). … To provide the 11 required spaces required by the Council DCP it is proposed to modify the layout of sections of the lower and upper car park. The existing car park layouts are shown in the accompanying figures. The proposed layout will provide 11 new spaces which meets that required by the Pittwater DCP and exceeds the Australian Standard."
Accordingly, the Council submitted that the Minister's consent in 2003 did not grant development consent to the use of the existing swing moorings.
I agree with and adopt the Council's submissions. The development application did not seek development consent to use the existing swing moorings. The description of the proposed development in the development application, SEE and Traffic Report did not include the use of the existing swing moorings. The development consent described expressly the proposed development to which the consent was granted. This did not include use of the existing swing moorings.
Condition 2 of the consent required the applicant to carry out the development generally in accordance with the documents specified in the condition, including the development application and SEE. But "the development" that was to be carried out generally in accordance with those documents was the development described in those documents, including the development application and SEE, and in the development consent, as the proposed development. The use of the existing swing moorings was not included as part of the development described to be the proposed development.
Condition 23 of the consent required the applicant to provide 11 additional car spaces. As the Traffic Report made plain, those 11 additional car spaces were generated only by the 14 new berths which the development proposed. The 11 additional car spaces were not provided to serve the existing swing moorings.
Condition 12 of the consent required the relocation of such of the swing moorings that were affected by the development - this was the proposed development reconfiguring the berthing facilities. This condition might have authorised those affected swing moorings to be relocated and then used in their relocated position. But it did not authorise the use of the unaffected swing moorings.
Accordingly, the use of the existing swing moorings, if commenced unlawfully, was not rendered lawful under s 109A(1)(b) of the EPA Act, by the development consent granted by the Minister on 16 September 2003, as that consent did not grant development consent to the use of the existing swing moorings.

RMYC's use is an existing use or other lawful use

The upshot of the foregoing analysis is that RMYC was lawfully able to make the development application that it did make seeking consent to carry out the proposed development on the land and the adjacent waterway.
RMYC's use of the buildings, works and land in the area of the waterway, within the leased area, zoned W2 Recreational Waterways under PLEP 2014 was a use for the lawful purpose of recreational boating club. By s 109(1) of the EPA Act, nothing in PLEP 2014 operated to require consent to be obtained to continue that use for that lawful purpose or prevent the continuance of that use except with consent under the EPA Act being obtained.
Insofar as RMYC proposed to alter, extend or rebuild any building or work comprising the existing berthing and mooring facilities within that area of the waterway, increase the area of the use made of such building or work, or enlarge, expand or intensify the use, RMYC was able to make a development application seeking development consent for such development. The proposed development fell within one or more of the nominate developments permitted with consent in zone W2 Recreational Waterways (including marinas).
RMYC's use of any building or work or land in the area of the waterway to the west of the leased area zoned W1 Natural Waterways under PLEP 2014 was a use for the lawful purpose of recreational boating club. That use was an existing use within the definition of s 106(a) of the EPA Act. By s 107(1) of the EPA Act, nothing in PLEP 2014 prevented the continuance of the existing use.
Insofar as RMYC proposed to alter, extend or rebuild any building or work comprising the existing berthing or mooring facilities within that area of the waterway, increase the area of the use made of any such building or work, or enlarge, expand or intensify the use, RMYC was able to make a development application seeking development consent for such development. Under s 108(1) and (2) of the EPA Act and cll 41-44 of the EPA Regulation, RMYC was authorised to make the development application that it did make to the Council seeking development consent to the proposed development in this area of the waterway.
RMYC's use of the buildings and works on and of the land zoned RE2 Private Recreation under PLEP 2014 was a use for the lawful purpose of recreational boating club. By s 109(1) of the EPA Act, nothing in PLEP 2014 operated to require consent to be obtained to continue that use for that lawful purpose or prevent the continuance of that use except with consent under the EPA Act being obtained.
Insofar as RMYC proposed to alter, extend or rebuild the car park on the land and enlarge, expand or intensify the use of the buildings, works and the land, RMYC was able to make the development application that it did make to the Council. The proposed development fell within one or more of the nominate developments permitted with consent in zone RE2 Private Recreation (including marinas and registered clubs).
For the foregoing reasons, I reject the legal contention that RMYC was not lawfully able to make the development application that it did make seeking consent to carry out the proposed development.

The impacts of the proposed development are acceptable

The Council did not, in the end, contend that the proposed development should be refused on the merits. The Council had raised a contention that RMYC had not demonstrated that the existing parking arrangement at the club would adequately service the proposed intensified development. However, at the hearing of the appeal, the Council accepted that that parking issue was able to be satisfactorily resolved by imposing appropriate conditions of consent.
The Council did call many residents of the local area and club members to give evidence at the hearing. They objected to the proposed development and raised a number of concerns which they said justified refusing consent. Apart from traffic and parking issues, the concerns were the impacts of the proposed development on the safe navigation of the waterway, environmental degradation of the waterway, impacts on the visual amenity of neighbouring properties, impacts on fire safety, and the public interest and cumulative impacts. I will address each of these concerns.

Traffic and parking

The Council and residents who objected to the proposed development expressed concern that the club has insufficient car parking spaces for its members and guests, especially during special events held at the club. This insufficiency of onsite car parking results in members and guests parking offsite along Prince Alfred Parade. Local residents expressed concern that the overflow parking on Prince Alfred Parade sometimes was illegal but, in any event, posed a safety risk to pedestrians who are forced to walk on the road.
RMYC disputed the extent and frequency of illegal parking on Prince Alfred Parade and that RMYC was responsible for any illegal parking.
The traffic engineers called by RMYC and the Council agreed, in their joint expert report, that sufficient onsite parking can be provided to meet the demand generated by the club's activities after the proposed development is carried out. The proposed development would result in a net increase of 39 fixed berths and a reduction of 11 swing moorings.
The club's car park currently provides 285 car parking spaces. With some reorganisation, the car park can provide 289 car parking spaces, including 4 disabled spaces. This number of car parking spaces will be sufficient to meet the demand generated by the use of the 256 fixed berths and 38 swing moorings that would result after the proposed development is carried out, and the demand generated by other functions and activities held at the club. The traffic experts agreed that the draft traffic management plan, prepared by the club's traffic expert, was satisfactory and generally addressed the Council's requirements. The traffic experts agreed that during major events and functions at the club, the measures in the draft traffic management plan will need to be in place. The traffic experts recommended that a condition be imposed requiring RMYC to submit a final traffic management plan prior to a construction certificate being issued.
The traffic experts also recommended other conditions be imposed including: 1. the removal of signs restricting the use of certain car parking spaces (such as for club directors and officers), thereby making these spaces available for use by members and guests; 2. restricting the period of time that casual berths at the marina can be used, thereby minimising the demand for car parking by users of the casual berths; 3. prohibiting commercial vessels (such as those offering entertainment or recreational tours) picking up or dropping off passengers at the club's marina, thereby avoiding such passengers parking at the club.
RMYC and the Council also agreed on conditions limiting the number of people attending an event held in the function rooms at the club (to 270 people) and restricting the holding of any additional event in the function rooms at the same time as club events are held on the opening of the sailing season, the Timber Boat Show, New Year's Eve (pm functions) and Christmas Day.
On this evidence of the traffic experts, I am satisfied that, with the imposition and implementation of these conditions of consent, the traffic and parking issues can be adequately addressed.

Safe navigation of the waterway

Residents and club members expressed concern that the proposed extension of the marina will restrict the navigable area of the waterway because existing swing moorings will be replaced by fixed berths, which will create a solid barrier. This reduction in the navigable area available to sailors will increase the danger of collision between vessels, in particular on race days, after nightfall or during poor weather conditions. Paddlers, kayakers and junior sailors often use the areas between swing moorings to take refuge from high speed vessels and larger vessels. This will no longer be possible with the extension of the fixed berths. Safety risks will be exacerbated by the increased number of vessels using the waterway due to the proposed 39 additional berths. Junior sailors will be particularly vulnerable in the context of the reduction in the navigable area of the waterway and increased number of vessels using the waterway.
The Environmental Impact Statement accompanying the development application undertook a Navigational Assessment to address the impacts of additional vessels within the waterway, finding that: "● The proposed area for the expansion of the marina is within an existing area of swing moorings. While providing a more structured vessel arrangement, it will not reduce the available area of open water used for general navigation by other vessels navigating to/from waters to the south and west of the marina. It will, however, provide a greater level of navigational certainty due to the permanent location of structures that are not otherwise affected by wind and wave conditions, as is the case with swing moorings. ● The navigation area (available for vessels navigating around or past the marina) from the port hand marker, approximately 60 metres outside the south-west corner of the proposed extension, to the opposite starboard hand marker, is approximately 800 metres. This distance, compared with other, similarly trafficked harbours, provides ample manoeuvring space, without impeding general access within the waterway. ● By comparison with these more heavily trafficked harbours, some having significantly more restricted access (as little as a 50-metre channel), the net addition of 39 berths, without any reduction to the existing open water area, will not have any discernible influence on vessel navigation in the Pittwater, nor will the addition of this number of berths have any discernible overall effect on the waterway. The size of the waterway, and its navigation routes, is of ample size to allow this increased number of total vessels. ● There will be no discernible influence on vessel navigation in the Pittwater for vessels navigating past the marina from the north or south. It is understood from the plans that the expansion does not extend any further to the south than the existing marina, and makes negligible alteration to the northwest corner of the structure, following the proposed pivot in the angle of Arm C. In this regard, vessel navigation will not be altered. ● The internal marina navigation fairways have been designed in accordance with the Australian Standard AS3962." (emphasis in original)
RMS advised the Council, on 8 October 2015, after being notified of RMYC's proposed development, that an inspection and assessment had been conducted by the local Boating Safety Officer and there were no navigational concerns regarding the proposed development. In response to a request by the Council for further information, RMS advised the Council on 21 October 2015: "The club and its various configurations of marinas have projected out at the current location for almost a century so it is not as if any major impediments to passage are about to be introduced for kayakers, sailors or others. Salt Pan Point and the sandbar to the north and the RPAYC to the south, project out further so 'passive' movements would still need to roughly transit more or less in a straight line between those two points with the RMYC marina breakwater located inside that transit line. It is considered that any inconvenience that may arise would be of a very minor nature. There is sufficient room for the proposed marina extension which should not have an impact on any immediate neighbours as the frontage is well away from local residences. It is projected that between 6 and 12 commercial moorings may need to be relinquished to facilitate the installation of the extension. There is no room for these moorings to be installed elsewhere at present. These are all owned by the RMYC. There are no private moorings affected. No objection on navigational grounds."
RMS later advised RMYC that: "In relation to the Development Application recently lodged with Pittwater Council by RMYC, RMS as the State's Navigational Authority was requested to advise on the proposal. RMS supports the proposal. The proposal, if approved and developed, would open up the navigation fairway and provide a more space efficient boat storage management system in what is a relatively confined area. In the opinion of RMS Boating Safety Officers, the public waterway would have increased unobstructed area and create better vision and navigation space for masters of vessels upon approach from downstream and upstream."
At the hearing, Mr Jayson McDonald, the marina and facilities manager of the club, gave evidence that swing moorings create a greater safety risk than fixed moorings because they move in an erratic and unpredictable way in response to wind and tide. It is considered to be an unsafe practice to travel under sail through mooring areas made up of swing moorings due to the limited space and the unpredictability of the vessels moored on the swing moorings. Accordingly, most vessels move through these mooring areas under motor power. By contrast, fixed moorings such as those proposed by RMYC pose a much lower level of risk as the moored vessels are fixed in their location and are easier to manoeuvre around.
Mr McDonald also addressed the concern about the safety of junior sailors. Royal Prince Alfred Yacht Club ('RPAYC') has a junior sailors' training programme called "Tackers". RMYC has no such junior sailing programme. The children participating in the "Tackers" programme at RPAYC do not sail through the club's mooring field to access the channel as RPAYC has a cleared pathway with no swing moorings to enable safe and easy traversing of the waters for the children between the RPAYC and the channel.
Mr McDonald noted that it is possible for a junior sailor to be blown into RMYC's area, in which case this would be identified by one of RPAYC's safety boats supervising the training session and assistance would be provided. The ratio of junior sailors' boats to adult safety boats in the "Tackers" sailing sessions is approximately 6:1.
RMYC tendered a letter from the general manager of RPAYC. RPAYC had been asked by RMYC to assess the impact of RMYC's new marina plans on RPAYC's training and dinghy sailing activities. RPAYC responded: "The RPAYC has consulted with its coaching staff and many who sail from this area and the club advises that it does not foresee that the proposed development will pose issues for the club's centreboard sailing activities."
Having regard to this evidence, particularly that of RMS, I find that the proposed development will not unacceptably reduce the navigable area of the waterway and will not increase safety risks to young sailors, kayakers and other users of the waterway.

Environmental degradation of the waterway

Residents and club members who gave evidence expressed concern that the proposed development might damage seagrass beds in the waterway and increase siltation or pollution of the already polluted waterway. Concern was raised that the extension of the marina might cause additional disturbance of contaminated seabed sediments due to propeller thrusts from boats and additional discharge of exhaust into the waters. Any increased water pollution would be a health risk to people who swim at Horseshoe Cove.
RMYC tendered evidence of Mr Paul Anink of Marine Pollution Research who had prepared the Aquatic Ecology Report, which was part of the Environmental Impact Statement accompanying the development application, assessing the waterway, seabed and aquatic ecology in the area of the proposed development. Mr Anink found that no areas of seagrass plants or beds are within the area of the proposed works and the closest seagrass beds are located more than 100m away from the proposed works.
Mr Anink addressed the community concern that the extension to the marina might mobilise contaminated sediments in the seabed. He stated in his letter of 18 January 2016: "The seabed sediments in the vicinity of the proposed existing marina works are located in water depths greater than -9m at lowest chart datum, and, as stated in the Aquatic Ecology Report, it is concluded that there is a low risk of mobilising contaminants from the sediments to the water column associated with the construction works (mainly piling works) and accordingly there is no risk to existing biota arising from the construction works. The depth for the new outer marina arm (north to south) ranges from -10.5m to -12.5m chart datum (i.e., greater than the depths around the existing outer arm), and accordingly, the risk of seabed sediment contaminants being mobilised to the water column is considered very low and there is a consequently low risk of adverse impact on existing biota. Operationally, the main potential mechanism for disturbing sediments such that sediment contaminants could be mobilised into the water column from use of the new marina arm is via propeller thrust or vessels bottoming out. However given the depths of the new marina are all greater than 10.5m off the bottom (at the lowest tides) there is no risk of sediment disturbance from vessel propeller thrust or from vessels bottoming out. As the sediments are unlikely to be disturbed owing to the depth around the facility, there is even less likelihood of contaminants mobilised from the bottom sediments reaching the surface such that they could be ingested by people in or on the water surface (see also water quality impact assessment below)."
Mr Anink also addressed the community concern that the extension of the marina might increase water pollution and decrease water quality: "As per the general discussion of elevated sediment contaminants provided above, the water quality data provided in the Meinhardt report are consistent with water quality for the Sydney urbanised waterways. In regard to the expressed concerns about risk to human health for recreational use of the waters adjacent to the marina, the Meinhardt report results for copper (3 to 6µg/L) and lead (8µg/L) are both well below the respective ANZECC (2000) trigger guideline values for protection of recreational waterways (i.e., 1000µg/L copper, 50µg/ L lead). For the chemicals that the Meinhardt report conservatively included as possibly elevated (due to laboratory detection limits being greater than the ANZECC (2000) trigger levels for aquatic biota), the laboratory detection limits reported were also well below the trigger values for recreational uses of the waters (i.e., cyanide < 5µg/L reported compared to 100µg/L trigger for recreational use, endrin < 0.1µg/L measured compared to 1µg/L trigger for recreational use). It is concluded that the present water quality of the waters around the marina (as measured) do not pose a health risk for recreational users and the risk to recreational users of the waters around the marina are not likely to change from the present low risk as a result of the proposed marina expansion."
The Environment Protection Authority reviewed RMYC's development application and accompanying information for the proposed development and advised the Council on 26 October 2015 that: "EPA has reviewed the information provided and has determined that it is able to incorporate the new works in the development application in the existing environment protection licence (licence number 10820) issued for the premises, under the Protection of the Environment Operations Act 1997 (POEO Act) subject to a number of conditions. The general terms of approval for this proposal are provided at attachment A. If Pittwater Council grants development consent for this proposal these conditions should be incorporated into the consent."
The EPA identified a number of environmental issues that should be considered by the Council in its overall assessment of the development application, including: identification of sediment and surface water samples which exceed the adopted ANZECC (2000) criteria and, if necessary, the development of a remedial action plan; preparation of a Site Management Plan and Health and Safety Plan; and use of appropriately qualified contractors to carry out the development. The draft conditions of consent address these environmental issues and incorporate the EPA's advised general terms of approval.
The Environment Protection Authority also advised RMYC on 6 April 2016 that it had undertaken: "a risk assessment of the day-to-day operations at your site, the pollution incident risk at your premises and the environmental management performance associated with your licensed activity. The results of the risk assessment, which are attached, have been used to determine an overall risk level for the licensed activity. The overall environmental risk level for licence number 10820, issued to Royal Motor Yacht Club Broken Bay New South Wales, is Level 1." A Level 1 overall environmental risk level is the lowest level of environmental risk.
On this evidence, I find that, with the imposition and implementation of the conditions of consent, there is a low environmental risk that the proposed development will cause environmental degradation, including damage to aquatic ecology, including seagrass beds, water pollution or mobilisation of contaminated seabed sediments.

Impact on visual amenity of neighbouring properties

Residents of neighbouring properties expressed concern about the visual impact of the proposed extension of the marina. Residents considered that the visual impact of the boat storage facility and car park of the club is already significant and that the extension of the marina will make it more visually unattractive. Specifically, they expressed concern that the glare from the additional boats moored at the fixed berths will be offensive and difficult on the eye and that the view across to the other side of Pittwater will be obscured by additional large boats and mega yachts. The proposed extension will dominate the surrounding environment and contribute to the general deterioration of natural heritage, beauty and the environment.
The Environmental Impact Statement accompanying the development application included a visual impact analysis (Appendix 14). The analysis demonstrated that the visual change resulting from the proposed extension of the marina will be limited. From some viewing locations, an increased number of vessels may be visible. Views to the foreshore area, waterway and the other side of Pittwater to the west will still be available. Any interruption of the views that might occur will be by boat masts. The proposed development will not cause any additional increase in the appearance of vessels at water level that would be offensive to anyone in either the public or private domain. The analysis concluded that, from a private domain perspective, the impact of the proposal was considered negligible and did not compromise the views from these properties, given the available advantage from these properties.
Having regard to this visual impact analysis and the photographs of views from the neighbouring properties provided by the residents, I find that the visual impact of the proposed extension of the marina on views from neighbouring properties will be limited. Some change will be discernible, by the increase in the number of vessels and perhaps their size and the extension of the berths to the west, but it will be more in the nature of a variation in the composition of the view rather than a change in the nature and components of the view. The change in the view will be marginal.

Fire safety

One of the residents expressed concern that the proposed extension of the marina will increase the risk of a boat fire and the risk of loss of life. If the marina is extended, it is estimated that 1 million litres of fuel will be stored in boat tanks moored in the marina. If the marina caught fire, the surrounding residential properties will be at risk of instant ignition due to the extreme heat that would be generated from the blaze. Access points to the marina are steep and narrow, which will increase the time it will take to respond to a fire. A fire risk assessment by an approved qualified marine fire risk assessor should be conducted to determine if, and how, this risk can be adequately managed.
Mr Jayson McDonald, the marina and facilities manager of the club, responded to this concern about fire safety. Fire safety at marinas is governed by the Australian Standard AS3962-2001 Guidelines for Marina Design. A condition of consent will require the marina to be designed in accordance with this Australian Standard. Mr McDonald said that RMYC complies with all requirements of the Australian Standard and also has additional fire safety equipment in place, including an additional fire cart with foam, a fire shed with additional hoses and equipment to make fast burning vessels, being a grappling hook with a steel wire.
RMYC sits within two fire districts, namely Avalon and Mona Vale. Employees at both fire stations attend RMYC regularly to familiarise themselves with the location, facilities, staff and fire safety equipment. In the case of fire at RMYC, the policy is to first ring 000 then take appropriate fire reduction measures. Mr McDonald noted that the response to a fire at a marina would generally be different to the response to a fire at an airport because the nature of the fuel used, physical layout and location of the premises. For example, if a boat caught fire, and it was not possible to immediately extinguish the flames, the next response would be to remove all other boats in the facility to effectively remove fuel for the fire, rather than attempting to remove the burning boat which would further the risk of a blaze spreading.
As a result of discussions about the proposed development during the regular visits from the fire brigade to RMYC, RMYC has agreed to put in place a further fire safety measure as part of the proposed development, being an additional fire hydrant at the water side of the proposed extension to the attenuator next to the fuel wharf. The proposed development also includes 30m reels of fire hose next to the hydrant to facilitate a speedy response to fire.
I am satisfied that these further fire safety measures, in addition to the existing policies and equipment in place, together with the conditions of consent, will provide an adequate response to the risk of fire at the marina.

Public interest and cumulative impacts

Some residents were concerned that the proposed development was not in the interests of the public and future generations because it excludes the public from accessing an even greater segment of Pittwater and that it serves the interests of a profit driven minority. Residents were also concerned that the approval of the expansion of this marina would be followed by the approval of subsequent incursions into the waterway, both on this site and in other parts of Pittwater, and that this would have a devastating cumulative impact on the waterway.
RMYC submitted that the proposed extension of the marina is for the benefit of its (approximately 3,500) members and is not motivated by private profit.
I find that the proposed extension of the marina does not exclude the public from accessing a greater segment of Pittwater because the proposed extension will not go beyond the area in which swing moorings are currently located. Accordingly, the concern regarding the cumulative impacts of this and subsequent incursions into the waterway does not apply. The evidence before the Court does not establish that the proposed extension is not in the public interest.

Development consent should be granted

In determining RMYC's development application, I have considered the matters of relevance in s 79C of the EPA Act, including: 1. the relevant environmental planning instruments, including PLEP 2014, and development control plans, including Pittwater 21 Development Control Plan (particularly relating to traffic and parking requirements); 2. the likely impacts of the proposed development, including environmental impacts on both the natural and built environments; 3. the suitability of the site of the proposed development; 4. the submissions made in response to the exhibited development application and environmental impact statement, including by the many residents and club members who made submissions; and 5. the public interest.
I find that the proposed development is an appropriate use of the land and the waterway and the impacts of the development will be acceptable and can be managed satisfactorily by appropriate conditions of consent. The development should therefore be approved.

Conditions of consent

RMYC and the Council largely agreed on the conditions on which consent should be granted. There were, however, some items of disagreement.
Condition B2 restricted the use of casual berths to a particular period of time. The Council sought for the period to be "28 days in any six month period" while RMYC sought for the period to be "28 consecutive days in any six month period".
RMYC submitted that: "that the use of the word "consecutive" is required to allow the Club to provide the most effective service to the wider boating community. The nature of marine tourism is that it is seasonal and people will often require the use of casual berths going to and from their final destinations. By way of example, a person travelling south from Brisbane to Melbourne may choose to stay at the Club's casual berth for 15 days at the beginning of summer on the way south and again for 15 days at the end of summer on the way back north. This would clearly put the Club in breach of the Conditions of Consent despite the significant passage of time between the two stays. To restrict the use of the casual berths, as suggested by Council, ignores the demand created by both national and international boat owning tourists that want to stop over Pittwater. The parking assessment has taken into account the use of the casual berths in this manner. The Applicant further notes that a condition to the effect was suggested by the Traffic Experts in the Parking Joint Expert Report dated 13 February 2017."
The Council contended that: "the word 'consecutive' should not be included in the condition. This would allow boats to berth for 28 days, leave for a short period of time and come back for another 28 days, effectively enabling permanent berthing. The parking assessment has not accounted for permanent berthing."
I find that RMYC's wording is acceptable. This was the wording used in the recommended condition of the traffic experts in their joint expert report. The parking assessment of the traffic experts did account for use of the casual berths for 28 consecutive days in any 6 month period.
Condition B5 prohibited the storage of boats, equipment or garbage/waste in car parking spaces. RMYC sought, but the Council opposed, the insertion of the adjective "permanent" to describe the storage. RMYC submitted: "the use of the word "permanent" is required in this context as the Applicant will be in breach of the Conditions of Consent if a bin, boat or other equipment is left in a parking space even for a short period of time during the day to day running of the Club. It is entirely reasonable, for example, that a Club staff member would use an empty car space to move a boat trailer while accessing another trailer stored in the designated trailer storage area; the alternative to this would be to block the access ways, which is an impractical and absurd outcome."
The Council contended: "that the word 'permanent' should not be included. The storage of boats should not be allowed at any time as the parking assessment has not accounted for the use of car spaces for boat storage. Very short usages, such as suggested by the Applicant below, would not, in the Council's view, constitute "storage" which connotes more than momentary placement."
I agree with the Council's submission that the word "permanent" need not be included. The very short use of a car parking space suggested by RMYC would not involve storage.
Condition C10: the Council sought to insert a condition that: "evidence is to be provided by Roads and Maritime Services to confirm that at least 11 moorings had been relinquished by the Royal Motor Yacht Club and removed from the waterway."
RMYC submitted that: "the Club is committed to the removal of the 11 swing moorings and will provide evidence of the removal to Council. The reliance by the traffic experts on the removal of the 11 swing moorings related to the increased parking demand created by the additional berths to be constructed as part of the development. Because the demand for additional parking does not arise until the development is completed and all of the additional berths are capable of occupation, there is no reason to remove the 11 swing moorings prior to the issue of a construction certificate. Prior to the issue of a Final Occupation Certificate, the Club's total number of moorings will be the same as is presently the case which means that the parking demand is unchanged."
The Council submitted that: "This condition should not be removed as Council requires confirmation that the moorings have been relinquished, which the expert traffic evidence relied upon. For the reasons outlined below, the Council does not accept conditions referring to Final OCs."
I agree with RMYC that the condition does not need to be included. Conditions B4 and E4 will have the effect of limiting the number of swing moorings that RMYC can hold to 38 (being the current 49 less the 11 that will be relinquished). RMYC should not need to relinquish swing moorings until the stage of issuing the occupation certificate.
Condition D10 restricts the use of the new berthing facilities until the issue of the occupation certificate. RMYC sought to amend the reference to the occupation certificate to be instead "an Interim or Final Occupation Certificate". RMYC similarly sought to amend other conditions in section E of the consent, namely conditions E2, E3 and E4 and the note to section E, to change the reference to the occupation certificate to be a "Final Occupation Certificate".
RMYC submitted that: "the issue of an Interim Occupation Certificate is permitted by s109H of the Act. Given the nature of the Club's operations and the works being carried out, it is reasonable that the Club should be permitted to use the partially completed marina. The first phase of the construction works to be carried out is the realigning of the existing wave attenuator and structured berths into the position shown on the plans. Boat storage in Pittwater is very limited and permitting the occupation of this part of the marina while the remaining works are being completed will allow the Club to store members' boats without having to overly rely on neighbouring marinas for assistance. The Club is not seeking to complete the development in stages but rather to use the completed section of the marina to store members' boats while the balance of the development proceeds. This will remove the need to use other available moorings in Pittwater which those boats would otherwise be required to occupy. The Club currently has a waiting list for all the new berths that the new marina extension will create. Given the Club's need for the berths that the development will create and pressure that the Club will be under to moor some of its members' boats during the construction phase of the development, it is in the Club's interests to complete the development in its entirety and to do so as quickly as possible. The completion of the development in its entirety is critical to the Club's development. The Club will not be entitled to occupy all of the proposed development until a Final Occupation Certificate issues (EP&A Act s109M(1))."
The Council submitted that: "The word Final should not be inserted and all marked amendments above and below to Condition E should be rejected. Council does not draft consent conditions to allow for staging of construction and occupation, particularly when the applicant has not sought approval to construct the development in stages. There is no requirement under the EP&A Act for an applicant to obtain a Final Occupation Certificate once an Interim Occupation Certificate has been issued, and premises can be occupied under an Interim Occupation Certificate. As such the obligation noted above may never come into effect."
I agree with the Council's submissions. RMYC should complete the development before it should be permitted to use the new berthing facility. The demand for berths exists now. That demand can be met when the whole of the development is completed. Conditions E2, E3 and E4 should be satisfied prior to the issue of the occupation certificate, not a final occupation certificate.

Orders

The Court orders: 1. The appeal is upheld. 2. Development consent is granted to development application No 379/15 for alterations and additions to the Royal Motor Yacht Club at 46 and 46A Prince Alfred Parade, Newport, involving the removal of 28 existing berths and the incorporation of 67 new berths, resulting in a net increase of 39 berths, on the conditions in Annexure A.

ANNEXURE A 158192 of 2016 (187 KB, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 May 2017

(2011) 180 LGERA 343

(2007) 151 LGERA 400

(1999) 108 LGERA 251

(2003) 126 LGERA 181

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (31 paragraphs)

Parties

Cases Cited (25)

Cited By (8)