Clippers Anchorage Pty Ltd v Port Stephens Council

[2018] NSWLEC 1029

Land and Environment Court

New South Wales

Medium Neutral Citation:

Clippers Anchorage Pty Ltd v Port Stephens Council [2018] NSWLEC 1029

Hearing dates:

3, 4 and 5 April, 1, 2, 3 November 2017; further written submissions 13 and 21 November 2017

Date of orders:

25 January 2018

Decision date:

25 January 2018

Jurisdiction:

Class 1

Before:

Martin SC

Decision:

The Orders of the Court are:

(1) The Appeal is dismissed.

(2) Development Application 16-2015-586-1 for Marina and car parking – extension to Soldiers Point Marina (additional 59 berths), relinquishment of seven swing moorings, line marking to existing car parking, and Car parking (change of use to existing industrial warehouse to provide 33 valet car parking spaces off-site) is determined by refusal.

(3)The Exhibits, save for Exhibits 1, 25, N (that part comprising the SIS), O, Q and U, are returned.

Catchwords:

DEVELOPMENT APPLICATION - appeal – actual refusal - extension to Marina – transitional arrangements for new Biodiversity conservation legislation - threats to ecology – critically endangered species – endangered species – threatened species - hydrodynamic and sediment transport processes – visual impact - Aboriginal Culture and heritage – adequacy of car parking – off-site valet car parking – adequacy of ecological assessment – site suitability - precautionary approach – appeal dismissed

Legislation Cited:

Biodiversity Conservation Act 2016
Biodiversity Conservation (Savings and Transitional) Regulation 2017
Environmental Planning and Assessment Act 1979 ss 5A, 77, 77A, 91, 97, 107
Environmental Planning and Assessment Regulation 2000
Environmental Protection and Biodiversity Conservation Act (Cth) 1999
Fisheries Management Act 1994 s 205
Land and Environment Court Act 1979 ss 39, 79C
Marine Estate Management Act 2014
National Parks and Wildlife Act 1974 ss 80D, 84, 90
National Parks and Wildlife Regulation 2009
Port Stephens Development Control Plan 2014
Port Stephens Local Environmental Plan 2013
Protection of the Environment Operations Act 1997
State Environmental Planning Policy 71 (Coastal Protection)
State Environmental Planning Policy 62 (Sustainable Aquaculture)
Threatened Species Conservation Act 1995 ss 94, 110

Cases Cited:

NSW Land and Housing Corp v Campbelltown City Council (2002) 126 LGERA 348 at [73] – [76]

Category:

Principal judgment

Parties:

Clippers Anchorage Pty Ltd (Applicant)
Port Stephens Council (Respondent)

Representation:

Counsel:
Mr Michael Astill (Applicant)
Mr Michael Staunton (Respondent)

  Solicitors:
Rankin Ellison (Applicant)
Local Government Legal (Respondent)

File Number(s):

2016/159034

Publication restriction:

No

Judgment

1. This is an appeal brought under s 97 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against a decision of the Hunter and Central Coast Joint Regional Planning Panel to refuse DA 16-2015-586-1 for extension of an existing Marina known as Soldiers Point Marina (the Marina), and use of a building off-site for valet parking.

2. For the reasons set out in this judgment, the decision of the Court is that the appeal be dismissed.

The Site and its environs

3. Soldiers Point sits within a beautiful part of Port Stephens. It is located at the north-western end of the peninsula between Everitt Park and Sunset Beach. Dowardee Island is located directly opposite the Marina, and is owned by the Worimi Local Aboriginal Land Council. The Soldiers Point area has great significance to the Worimi people. The Marina itself is positioned within the Port Stephens estuary within the Karuah River and Great Lakes Catchment area. The area is also home to a number of vulnerable, threatened or endangered species.

4. It is these same attractions which mean that any increase in use of the Marina would need to be subject to stringent requirements.

5. The Marina’s environs are already significantly impacted by development. Existing development includes the Marina; the pier and jetty to the south of the Site; the breakwater/groyne constructed into the waterway from the point to the east of the Site; an oyster lease (and associated infrastructure) located to the north of the Marina in proximity to Dowardee Island; residential development, including drainage structures emptying waters along the foreshore, including Sunset Beach; the Port Stephens Yacht Club; the Thou Walla Sunset Retreat; and swing moorings.

6. The Marina and its location at Soldiers Point, and its relationship to Dowardee Island, appears below.

The Proposal

7. The following description of the proposal is drawn from the Statement of Facts and Contentions (Ex 1).

8. The Marina is located at Sunset Boulevard, Soldiers Point. The Application seeks an extension to the existing Marina (an additional 59 berths), including minor demolition works and piling for the new pontoons; relinquishment of seven swing moorings; line marking to the existing car parking area, to provide 23 spaces; and car parking at an existing industrial building (off-site at some 3.8 km removed) for valet parking.

9. No earthworks will be required for the on-shore components of the proposed activity. Offshore, excavation will be required for installation of the piling for the new pontoons. It is proposed to use hollow steel piles that are hydraulically spun into the seabed (Ex A p 20). This method is intended to limit soil disturbance, largely in order to avoid exposure of acid sulphate soils. Some additional excavation within the seabed is likely to be required for relocation of the swing moorings. Conditional approval for these works would be specified by the Roads and Maritime Services (RMS).

10. The extension of the Marina protrudes into the waterway located to the west of the existing berths and would have a total area of 9,619 sqm. Following construction of the extension the Marina would have an area of 25,979 sqm. The extension of an additional 59 berths would lead to a total of 149 berths. The following extensions are proposed for each arm:

1. Arm A would be extended by 51 m in order to accommodate seven berths catering for 15m vessels to its southern side and nine berths to cater for 10 m vessels to its northern side;

2. Arm B is proposed to be extended by 65 m to accommodate an additional eleven berths catering for 12 m vessels along its southern side and six single multi-hull berths for 15m vessels to its north; and

3. Arm C would extend 77 m to accommodate an additional 13 berths for 12 m vessels to its southern side and ten berths catering for 20 m vessels to the north.

4. The three T-heads of each arm would provide berthing for vessels up to 20m, providing a further 3 berths.

11. The proposed extension is shown below, with the three Arms highlighted in blue. The outline of Dowardee Island is shown in shadow to the left, immediately adjacent to the oyster lease.

12. There is a gloss on the proposal insofar as it relates to Arm C. Following the Applicant’s expert’s consultation with Aboriginal stakeholders, a preference was indicated for the proposed extension to Arm C to be reduced from 77 m to 65 m, to increase the distance between it and Dowardee Island. The Applicant has indicated that it would be prepared to accept that change if it were necessary for consent to be granted. The reduction in length of Arm C would result in a reduced increase in capacity, to 45 boats (instead of 52 boats): Applicant’s written submissions at [9].

13. There would be a further impact arising from the length of Arm C, in the context of the coastal process modelling, discussed further below. The Council’s advocate, Mr Staunton, had assumed that the further modelling would be performed on the basis of the shorter arm: [T p.330, l14].

14. Part of the Application includes the Marina’s relinquishing of seven swing moorings leased by the Marina from RMS. As the extension would protrude within the waterway, resulting in a reduced navigation channel, a number of existing public swing moorings would also be required to be relocated, which relocation would be at the discretion of the RMS.

15. The navigation channel from the western edge of the Marina infrastructure to Dowardee Island would be reduced to 50m, with the resulting navigable channel being 40 m wide between Dowardee Island and the Marina footprint due to the berthing of the vessels on the T-heads of each arm.

16. The proposal for car parking for the development is that there be 63 spaces in total provided: 30 on-site, and 33 valet spaces to be provided off-site, to cater for both the existing shortfall of spaces and the increased demand that the Applicant says that the proposal generates.

The Application

17. The Application was lodged with the Council on 15 September 2015. A 30 day public exhibition period ran from 24 September 2015 to 24 October 2015, with an extension of time for submissions granted to 7 November 2015. During the exhibition period the Council provided drop-in sessions and information sessions. A total of 214 submissions, made by 174 people, were received in response to the notification.

18. During the assessment period, the Applicant continued to provide additional information following requests from the Council, including a request for further information as the Species Impact Statement (SIS) prepared in June 2015 which had been submitted was not adequate, according to the Office of Environment and Heritage (OEH). A request for the preparation of an Aboriginal Cultural Heritage Assessment was also made by OEH (which resulted in the production of an Aboriginal Community Consultation Report, Ex A in this proceeding).

19. A notice of determination was issued by the Hunter and Central Coast Joint Regional Planning Panel (JRPP) on 25 February 2016 to refuse the Application, the grounds for refusal of which found the basis of this appeal, which was filed on 23 March 2016. A similar application had been lodged which was also refused by the JRPP on 12 June 2014.

20. A section 34 conciliation conference was held on-site on 1 August 2016, and did not resolve the dispute. The matter then proceeded to hearing which took place for six days over a seven month period.

The Legal Framework

Transitional Arrangements for new Biodiversity Conservation Legislation

21. It is important to note the very substantial amendments which have been made with respect to biodiversity protection legislation. I do this to explain why this appeal is to be dealt with under a now-repealed legislative framework.

22. On 25 August 2017 a series of legislative reforms regarding land management and biodiversity conservation came into effect. As a result of these legislative reforms, and the commencement of the Biodiversity Conservation Act 2016 (BC Act) and the amended Local Land Services Act 2016, several existing Acts were repealed or amended, including the repeal of the Threatened Species Conservation Act 1995 in its entirety, as well as some provisions of the Environmental Planning and Assessment Act 1979 (EPA Act) relevant to this appeal.

23. The Biodiversity Conservation (Savings and Transitional) Regulation (BCR) 2017 (BCR), which also commenced on 25 August 2017, sets out savings and transitional arrangements. The determination I must make is not interrupted by these reforms as a result of those savings and transitional provisions. The net effect of these provisions is that an application made for approval before the commencement of the BC Act is “saved” and can continue to be assessed as if that assessment were being made under the previous legislative provisions.

24. For the purposes of this Application, the critical provision is clause 28 which states that: [t]he former planning provisions continue to apply (and Part 7 of the new Act does not apply) to the determination of a pending or interim planning application.

25. The definition of “former planning provisions” means the provisions of the Environmental Planning and Assessment Act 1979 that would be in force if that Act had not been amended by the BC Act, while a “pending or interim planning application” means an application for planning approval (or for the modification of a planning approval) made before the commencement of the new Act but not finally determined immediately before that commencement: cl 27, BCR.

26. Both for ease of reference, and in light of the savings provisions made by the BCR which cover this precise situation, throughout this judgement I shall refer to all the previous legislation under which the proposal was originally assessed and against which this proceeding has been framed.

Relevant Applicable Statutory Provisions

27. Given the number of vulnerable, threatened or endangered species, and due to the sensitivity of the area, there is a comprehensive set of planning and environmental controls applicable to the proposed development.

28. The Marina is zoned W2 Recreational Waterways and Part B1 Neighbourhood Centre under the Port Stephens Local Environmental Plan 2013 (PSLEP). The proposed extension is located on land zoned W2 Recreational Waterways. Marinas are a permissible land use in the zone. The objectives of the W2 zone are:

• To protect the ecological, scenic and recreation values of recreational waterways.

• To allow for water-based recreation and related uses.

• To provide for sustainable fishing industries and recreational fishing.

29. The Marina’s car park site is zoned R2 Low Density Residential. While a car park is prohibited in this zone, the site maintains existing use rights in respect of the present car parking arrangements in accordance with s 107 of the EPA Act.

30. The valet parking site is zoned B5 Business Development, with car parks permitted with consent.

31. Other relevant provisions of the PSLEP are cl 5.1: classification and reclassification of public land; cl 5.5: objectives and heads of consideration with respect to development within the coastal zone; cl 5.7: heritage conservation; cl 7.1: acid sulphate soils; cl 7.6: essential services.

32. The Port Stephens Development Control Plan 2014 (PSDCP) contains requirements regarding traffic at B9: Road Network and Parking. The objectives of on-site parking provisions are to ensure that development provides adequate on-site parking spaces: B9.B. The parking requirements for a Marina are set out at BQ, and require 0.6 spaces per wet berth; 0.2 spaces per dry storage berth; 0.2 spaces per swing mooring; 0.5 spaces per employee and 1 bike space per 15 employees.

33. Where parking requirements cannot be provided on-site, Council may consider alternative off-site arrangements for parking demands such as parking provision on another site in proximity (emphasis mine): B9.2. Reductions will be considered in the number of spaces required.

34. The Threatened Species Conservation Act 1995 (TSC Act) at s 110 requires that proposals for development likely to affect threatened species, populations or ecological communities must be accompanied by a species impact statement. This development has the potential to impact upon threatened species, populations or ecological communities including: Beach Stone-curlew; Pied and Sooty Oystercatchers; marine turtles and posidonia australis (seagrass meadows).

35. Section 78A(8)(b) of the EPA Act requires a determination of whether the proposal is “on land that is, or is part of, critical habitat”, or is “likely to significantly affect threatened species, populations or ecological communities, or their habitats”.

36. Section 94 of the TSC Act, read together with s 5A of the EPA Act, requires the concurrence for the development of the Director General (DG) of the Office of the Environment and Heritage (OEH). This is because the application has the potential to affect threatened species, populations or ecological communities.

37. The objects of the TSC Act (at s 3) are as follows:

(a)  to conserve biological diversity and promote ecologically sustainable development, and

(b)  to prevent the extinction and promote the recovery of threatened species, populations and ecological communities, and

(c)  to protect the critical habitat of those threatened species, populations and ecological communities that are endangered, and

(d)  to eliminate or manage certain processes that threaten the survival or evolutionary development of threatened species, populations and ecological communities, and

(e)  to ensure that the impact of any action affecting threatened species, populations and ecological communities is properly assessed, and

(f)  to encourage the conservation of threatened species, populations and ecological communities by the adoption of measures involving co-operative management.

38. The development is subject to the Marine Estate Management Act 2014, as the Site is within the Port Stephens – Great Lakes Marine Park. The Site is zoned “special purpose”, which provides for vessel-related facilities including marinas and associated facilities.

39. The NSW Coastal Policy 1997 is a prescribed matter pursuant to s 79C of the EPA Act. The effect of this is to require a consent authority to consider the relevant strategic matters contained within the policy during assessment of a development application.

40. The development would result in alterations or additions to a marina which would significantly increase the environmental impacts, and is therefore characterised as designated development in accordance with s 77A of the EPA Act, pursuant to schedule 3 of the EPA Regulations. The development is also categorised as “Regional Development”.

41. The development is integrated development under s 91 of the EPA Act, as approval is required under the following legislation:

1. S 90 of the National Parks and Wildlife Act for the grant of an Aboriginal heritage impact permit (AHIP) (this characterisation is not without controversy, as the Applicant is of the view that an AHIP is not required)

2. S 43(a), 43(b), 47, 48 and 55 of the Protection of the Environment Operations Act 1997 (POEA Act): Marinas which can accommodate 80 or more vessels are defined as scheduled activities, and the proposed construction works are classified as scheduled activity work.

3. Under s 205 of the Fisheries Management Act 1994, a permit is required to harm marine vegetation in a protected area.

42. Several State Environmental Planning Policies (SEPPs) also apply to the development:

1. SEPP 62 (Sustainable Aquaculture) as the proposed development is located within proximity to existing oyster leases. Cl 15B requires that prior to determination the consent authority must consider if the development would have any adverse impacts on oyster aquaculture development.

2. SEPP 71 (Coastal Protection) applies, as parts of the development lie within the coastal zone. Under cl 7, the consent authority is required to take into account the matters set out in cl 8 when it determines a development application to carry out development on land to which the policy applies.

The Director General’s Requirements for a Species Impact Statement for Proposed Soldiers Point Marina Expansion

43. Given the criticality of the Director General’s Requirements (DGR) to these proceedings, I have set out key aspects of these in some detail below.

44. The DGR are framed around the assessment required under s 110 of the TSC Act which requires a Species Impact Statement (SIS) to be prepared for developments which area likely to affect threatened species, populations or ecological communities. The DGR are set out in a document dated 5 August 2014 [Appendix 3 of SIS, Ex N at tab 3]. That document is 36 pages in length and provides considerable detail as to what is required from the SIS.

45. The purpose of an SIS include the following matters: to allow the Applicant (emphasis mine) to identify threatened species issues and provide appropriate amelioration for adverse impacts resulting from the proposal; to assist consent and determining authorities in the assessment of a Part 4 application or Part 5 approval under the EPA Act; and to assist the CEO of OEH in the assessment of licence applications lodged under the TSC Act: DGR p.3.

43. Amongst other things, the SIS study area must be defined. The DGR defines the “study area” to mean “the subject site and any additional areas which are likely to be affected by the proposal, either directly or indirectly”. It will “generally be larger than the development site as it includes any adjacent areas that will be directly or indirectly affected by the proposal… the study area should be established before the list of likely impacted threatened species, populations, ecological communities (including their habitat) is determined so species that are less obviously affected are also included (emphasis mine). The study area must be clearly defined… clearly showing the development site boundary and any additional areas facing indirect impact, and included in the final report”: DGR [2.1.2].

44. The DGR provide examples of direct impacts as including removal of habitat, while indirect impacts “occur when project-related activities affect species, populations or ecological communities in a manner other than direct loss”. Examples of indirect impacts include impacts to channel and other nearby coastal features; changes to sand movement; noise; light pollution and increased human activity: DGR [2.1.2].

45. Threatened species to be considered by the Applicant for inclusion in the list of species for assessment include the Loggerhead Turtle and Green Turtle (both listed on the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), and a lengthy list of birds, many of which have been the subject of assessment in this proceeding (including the Beach Stone-curlew, the Sooty Oystercatcher, the Pied Oystercatcher and the Little Tern): DGR [3.1.1].

46. The DGR sets out survey requirements, which include all subject species which have been determined in accordance with the DGR. Surveys are to be recent (less than five years old). Not all recent surveys will be accepted: there is a prohibition against surveys undertaken in seasons or conditions when the target species is unlikely to be detected or present. Likewise, surveys which have used methodologies or timeframes that are not the most appropriate ones for detecting the target species will not be accepted, unless the differences can be clearly demonstrated to be likely to have had an insignificant impact upon the outcome of the surveys: DGR 4.1.

The Council’s Contentions

50. The Council contends that the Application should be refused for the following reasons.

1. Ecology: the proposed development would have an unacceptable impact upon the environment, particularly critically endangered, threatened or vulnerable species.

2. Aboriginal culture and heritage: the development may adversely impact Aboriginal culture and heritage.

3. Hydrology and coastal processes: the proposed development would result in changes to the hydrological and coastal processes occurring within the adjacent waterway and may impact on the adjacent oyster leases, the shorelines of Dowardee Island and the depth of the remaining navigation channel.

4. Car parking: the proposed development does not comply with the car parking requirements of the PSDCP.

5. Visual impact: the development would result in an unacceptable visual impact to the scenic quality of the locality.

6. Site suitability: the site is not suitable for the development.

7. Public interest: the development is not in the public interest.

8. Compliance with SEPP 71 and Cl 5.5 PSLEP: the development is inconsistent with the aims under cl 2 and provisions, particularly cl 8, of the State Environmental Planning Policy 71 (Coastal Protection) and cl 5.5 PSLEP.

9. Compliance with SEPP 62: the development is inconsistent with the aims and provisions of State Environmental Planning Policy 62 (Sustainable Aquaculture) as it has the potential to significantly impact upon nearby oyster aquaculture.

10. Insufficient information: the Council identified matters about which insufficient information was available to make an assessment: Statement of Facts and Contentions, Ex 1 at pp 12-17.

51. During the course of the hearing, as a result of further information provided, the following contentions were resolved in terms of insufficient information: owner’s consent; coastal processes and visual impact assessment. Merit issues with respect to those matters remained.

The Site Visit

52. On 3 April 2017, I had the benefit of a visit to the site, accompanied by the parties, their legal advisers and experts. In company with these participants we undertook a boat trip around the nearby waterways, with the Applicant indicating the approximate location of the proposed extension. The ecology experts also pointed out potential habitat of various bird species on Dowardee Island and its surrounds. The experts on coastal processes also indicated that further modelling would be required to be able to provide sufficient information for an assessment to be made of the impact of the proposal. On land, we walked along the foreshore from the Marina north to the tip of Soldiers Point, and south along Sunset Beach.

53. Expert evidence was also given with respect to the visual impact of the proposal. Traffic evidence was given, and the off-site valet car parking proposal was explained, in conjunction with an inspection of the current car parking arrangements at the Marina.

Objector Evidence

54. Eleven objectors gave evidence regarding the development at the Soldiers Point Community Hall. The proposal has elicited strong community interest and involvement. Concerns raised by objectors include the following matters:

• Environmental impacts, including flora and fauna; sedimentation; sea-bed health; reduced clean water for oysters; increased contamination from boats and the slipway; non compliance with the Director-General’s requirements;

• Unacceptable visual impact;

• Aboriginal culture and heritage issues, including criticism of the assessment undertaken; insufficient consultation; Marina design not reflecting the comments of traditional owners; no survey information with respect to archaeological impacts to the sea floor;

• Car parking and traffic safety, including insufficient provision of car parking spaces; inappropriateness of valet parking; impacts to surrounding properties due to increased traffic movements;

• Excessive scale of the proposal, given site constraints and an overdevelopment of the Site;

• Impact to the existing waterway and navigational channels, including loss of public swing moorings being detrimental to the community and restricting access to the waterway by the wider public not being in the public interest;

• Criticisms about accuracy of data in the EIS, SIS and associated reports.

55. All these issues are encompassed in matters raised by the Council in its contentions.

56. Mr Diemar, a fourth-generation oyster famer, raised concerns about the proposal insofar as it may affect his oyster leases, which are located within a priority oyster area. He is concerned that any encroachment of the Marina into the channel may interfere with the current rate of dilution. He is also concerned about the increase in pollutants from boats that may arise from the increase in the number of boats. In the event of an oil spill, his operation must close and not be permitted to recommence until it has passed retesting.

57. It is the Council’s submission that there has been no analysis of the potential impacts of pollution in the EIS or SIS, leaving Mr Diemar’s concerns insofar as they relate to pollution unaddressed.

58. Although Mr Diemar’s concerns are genuine, it is noted that Fisheries NSW did not object to the proposal, on the basis that the minimum distance of 50 m from the extended Marina to the oyster lease be maintained: Letter from DPI to Council, 9.10.2015.

Expert Evidence

59. For the Applicant, evidence was provided by Dr Sandra Wallace (Aboriginal Heritage) (Ex A and Ex B); Ms Kirsty Hodgkinson (Visual Impacts) (Ex C); Mr Gary Blumberg (Coastal processes and navigation) (Ex D); Mr Dominic Fanning (Ecology) (Ex E and F); Mr Ken Hollyoak (Traffic) (Ex H); Mr Andrew Slocombe (Photomontage) (Ex J). Mr Fanning also prepared the Species Impact Statement and the Addendum to that SIS in October 2016 (Ex G).

60. The Council’s experts were Ms Cindy Dickson (Town Planning) (Ex 4); Ms Carly McClung (Ecology) (Ex 5); Dr Greg Clancy (Ecology) (Ex 6); Mr Adam Stewart (Car Parking) (Ex 7 and Ex 23); Dr Richard Wainwright (Ex 8); Dr Richard Lamb (Visual Impact) (Ex9).

61. The experts participated in joint conferencing processes which sought to address the issues in contention. As a result of the conferencing processes, they prepared the following joint expert reports: Planning (Ms Hodgkinson and Ms Dickson) (Ex 10); Visual Impacts (Ms Hodgkinson and Dr Lamb) (Ex 11 and Ex 18); Ecological Joint Report A – Ecological Issues (Mr Fanning, Dr Clancy and Mrs McClung) (Ex 12); Ecological Joint Report B – Threatened Birds (Mr Fanning and Dr Clancy) (Ex 13); Ecological Joint Report C – Council Issues (Mr Fanning and Mrs McClung) (Ex 14); Traffic (Mr Hollyoak and Mr Stewart) (Ex 15); Coastal Processes (Mr Blumberg and Dr Wainwright) (Ex 16); Coastal Processes Addendum (Mr Blumberg, Dr Wainwright and Dr Symons) (Ex 17); Updated Sediment Transport Modelling (Mr Symonds and Mr Donald) (Ex R); Coastal Processes Addendum Report No 2 (Mr Blumberg, Dr Wainwright and Dr Symons) (Ex S) and supplementary Ecology Report (Mr Fanning, Dr Clancy and Mrs McClung) (Ex T).

62. Dr Wallace, Mr Stewart, Mr Hollyoak, Dr Clancy, Mrs McClung and Mr Fanning provided oral evidence in the hearing. Several experts spoke to their reports at the site visit.

Car Parking

63. The matters in dispute between the parties go both to the quantity of parking required, and the nature of the parking proposed, specifically the acceptability of the valet parking arrangement.

Existing Car parking Arrangements

64. The proposal for car parking for the development is that there be 63 spaces in total provided: 23 through reconfiguring and properly line marking the spaces at 2 Ridgeway Avenue (freehold land of the Applicant) to provide for 23 spaces; continued use of 7 existing spaces across the front of the Marina; and 33 valet spaces to be provided, to cater for both the existing shortfall of spaces and the increased demand that the proposal generates.

65. There is an existing car parking shortfall at the Marina. The consent under which the Applicant is currently operating – DA 872/94 – was approved for 45 car spaces, based on 0.5 spaces per wet berth. In the event, that full complement of spaces was never provided. In September 2011 the Council advised the Applicant of a 17 car space shortfall based on the DCP Parking- code requirements. The experts agreed that a shortfall of 17 cars exists, as 45 spaces were required in 1994, but currently only 28 are provided: [Ex 15 p. 6]. Notwithstanding this shortfall, the Council has not sought to require the Applicant to make up the car park shortfall, as it is not practical for it to do so.

66. The Traffic Impact Assessment in the EIS, undertaken by Mr Hollyoak, shows that people using the Marina and the other facilities at the Marina are parking in the streets. Mr Stewart’s report [Ex 7] refers to a survey undertaken in 2011, which “generally aligns with [his] observations” that demand for all public parking within 200m of the Marina is at, or exceeding, capacity [Ex 7 at [14]].

How much car parking is required?

67. The experts agreed on the car parking generation per berth, being a peak rate of 0.3 spaces per berth: Ex 15, p. 2. This rate is a conservative one, derived from a parking survey, and allows tolerance for higher boat usage. They also agree as to the split of cars that can be off-site, which is 40% of demand. The remaining 60% is to be on-site. Significantly, the experts also agreed that the use of the valet car parking arrangement has merit: Ex 15 at p.12. As is evident from discussions below, that support is not unqualified.

68. The experts did not agree on the amount of parking demand generated by the development. This included a differing view as to employee parking requirements, consideration of other land users reliant upon the on-site car parking and whether to apply the car parking demand rate to the redeveloped Marina or the net increase in berths: Ex 23 at [8].

69. Mr Stewart is of the view that with the proposed reconfiguration, modernisation of the Marina and parking reconfiguration, that parking demand ought to consider the redeveloped Marina rather than the extension alone: Ex 15 p. 6. Mr Hollyoak states that 17 spaces are being provided, as well as 16 spaces when the parking surveys show only 12 are needed: Ex 15 at p.6. The proposal provides 33 new spaces (17 plus 16).

The Applicant’s Calculations

70. The Applicant submits that the number of berths to be used as a basis for the parking calculation is 52. This is because while 59 berths are proposed, the relinquishing of 7 swing moorings leads to a net increase of 52.

71. The Applicant’s submission is that the most straightforward way to calculate the demand is as follows:

• 0.3 x 52 additional boats = 15.6 (rounded up to 16)

72. To cater for this number plus the existing shortfall of 17 spaces, 33 spaces would be required. The valet parking proposes 33 spaces.

73. If the extended Marina is taken as a whole, the figures are:

• 0.3 x 142 (comprising 90 plus 52 additional moorings) = 43.

• 63 spaces in total are proposed (23 plus 7 plus 33) which gives a surplus of 20 spaces.

74. As for Mr Stewart’s calculation that the extended Marina might as a whole generate demand for 69 spaces, the Applicant’s submission is that this is incorrect, because there is an additional (incorrect) amount added for staff car parking, when the staffing figure is already included within the rate of 0.3; no credit is allowed for the relinquishment of the swing moorings; and Mr Stewart adds 2 spaces for the valet cars as well as 2 spaces for courtesy cars, when there are no valet cars: Applicant’s written submissions at [125].

The Council’s Calculations

75. Depending on the situation with respect to valet or courtesy cars, the number of spaces available on-site will either be 23 plus 7, less one or two courtesy cars, leading to a net availability of 29 or 28 (depending on the courtesy car). The Plan of Management (Ex Q) reveals that there will be one space used by a courtesy car.

76. The shortfall is then either 16 or 17: 16 if there are to be two courtesy cars, and 17 if there is to be only one. Of the 33 spaces offsite, the Applicant has not allowed for courtesy cars. If there are two of these vehicles, the number of car parks available off-site is 31, not 33.

77. Mr Stewart (at Ex 15, p.7) notes that parking should be provided for four staff at 0.5 spaces, equating to 2 spaces. That takes the total parking demand to 35 spaces, leading to a deficit of 2 spaces. He has not agreed with Mr Hollyoak that the employee parking is included in the rate of 0.3.

78. Taking a holistic approach to parking, which is Mr Stewart’s preference, the figures emerge thus:

• 149 berths x 0.3 = 44.7 (say 45)

• 6 employees x 0.5 = 3

79. The number of car parking spaces required is 48 for the Marina land use, excluding the provision for other land uses.

80. Mr Stewart’s approach is to consider the on-site parking deficiency by calculating the demand associated with the proposed development plus the existing approved parking supply. The calculation thus becomes:

• 59 x 0.3, added to

• 4 employees x 0.5, added to

• approved car parking space, catering for the original 90 berths and approved land uses.

81. His calculation is thus: 59 new berths sought through the expansion multiplied by the agreed rate of 0.3 spaces per berth, plus 4 new employees multiplied by 0.5, plus the approved 45 parking spaces catering for the original 90 berths and approved land uses. On the basis of those inputs, Mr Stewart says there is a total demand of 65 spaces, with only 28 spaces proposed for customers and staff: Ex 15 at p.7. This figure does not include provision for valet or courtesy spaces.

82. Turning to the question of what the split should be, between on-site and off-site parking, it is Mr Stewart’s position that user demand of 149 berths x 0.3 equates to 45 spaces. Applying the agreed figure of 40%, 18 spaces can be provided off-site, with the balance of 47 spaces to be provided on-site.

83. Further, Mr Stewart raises the concern that due to the use of boom gates at the on-site car parking (in place for the lower and upper areas, amounting to 19 car spaces) only boat owners and restaurant users will be able to access the car park, leading to an adverse impact on the other businesses and the surrounding residential properties: Ex 23 at [11].

Plan of Management and Valet Parking

84. The Applicant’s Plan of Management (POM) sets out the arrangements for valet car parking. The Applicant submitted that the valets will use the owners’ cars to drive them backwards and forwards between the Marina and the off-site car parking area. The courtesy cars will be taken back to the off-site parking area once the owners have been taken to the Marina [T p.307 at l 22]. Marina staff will collect the courtesy cars using scooters that will be parked at the Marina for that purpose.

85. I note that as currently expressed, the POM does not make the operational arrangements entirely clear, particularly with respect to movements to and from the Marina. This may well be because there are “all sorts of permutations about this”, as described by the Applicant’s counsel, Mr Astill: [T p.308 at l 5].

86. According to Mr Stewart, the valet aspect of the proposal is unacceptable. The use of the valet parking arrangement remains voluntary. It is Mr Stewart’s opinion that “self-regulation of offsite parking should not be used to justify a decrease in on-site parking supply”: Ex 23 at [13]. Mr Stewart also raises a concern about the legality of the scooter parking bay, not currently available. In answer to this, in submissions the Applicant says that arrangements will be made to secure the requisite permission.

87. Mr Stewart also raises a concern that the two courtesy cars do not have a parking space allocated for them, reducing the number of off-site car parks available from 33 to 31, leading to a further shortfall of two cars: Ex 23 at [15].

88. Mr Stewart is also critical of the valet arrangement in that it does not positively contribute to the existing land uses as they are for Marina users only, and the valet arrangement is impractical in any case: Ex 15 p.8. Notwithstanding that the valet service is in operation, Mr Stewart remains concerned that there are two spaces allocated both to valet services as well as staff parking: Ex 15 at p.9. By contrast, Mr Hollyoak holds the view that the spaces operate as a dual function, with staff members using the space also picking up people from the off-site parking facility: Ex 15 at p.9.

89. Notwithstanding the experts’ agreement that the valet parking arrangement has merit, it should be to a maximum of 40% of the parking demand. Mr Stewart says that this should lead to the off-site component being 18 car parking spaces: Ex 15 p.12.

90. Mr Stewart adheres to the position that the parking facilities at the Marina site should not be reduced to less than the 45 currently approved for shared Marina and ancillary land uses: Ex 15 at p. 13.

91. Mr Stewart’s calculation is that there is a shortfall of at least five spaces. Even if Arm C of the Marina were reduced in length, there remains a shortfall, and particularly a shortfall for parking on-site.

Discussion and Finding

92. Both parties in their submissions pointed to the confusion surrounding the required number of parking spaces, particularly the situation with respect to swing moorings. It is not contested that there are 90 berths, and an additional 59 berths are sought, leading to a total of 149 berths. The discussion above illustrates the complexity in this.

93. The parties’ experts take a different position with respect to the car parking implications of the swing mornings. Mr Hollyoak proposes that the number required is 34 spaces, after a discount is applied to the swing moorings. Mr Stewart does not apply that credit (of 2 car parks).

92. In any event, the matter of credit is in my view colored by the requirement of RMS (in proposed conditions) that existing leased moorings be relinquished (and the Applicant is not to acquire any new commercial moorings in Soldiers Point in the future): Ex 3 Tab 10. The relevance of this is that, notwithstanding that the relinquishment of 7 swing moorings could potentially drive down demand, the Council has submitted that the Applicant has no control over whether or not the moorings are reallocated, and if they are, they will continue to generate a parking demand in the locality: [T p.340 at l 27]. Given this uncertainty, there are difficulties in an approach which applies a discount to those swing moorings. Even if a discount were applied, at some point in the future, the car parking problem would be further exacerbated by the need to find car parking for the users of the swing moorings.

93. Regardless of the discount for the swing moorings, even at the most favourable interpretation of any of these calculations for the Applicant, provision has not been made within the calculations for the two courtesy cars which “are kept at the [offsite] car parking facility”: Ex Q [4(a)]. On any view, there is at the very least a deficit of two car parking spaces. If they are to be provided offsite, the number of car spaces available is reduced from 33 to 31. (Regardless of whether those cars are parked at the offsite facility or at the Marina, provision must be made for them.)

94. Adopting the holistic approach proposed by Mr Stewart, which I prefer, there is a shortfall in the number of car parks provided.

95. It is a matter of fact that by providing the existing shortfall car park spaces (17) off-site (through the valet parking arrangement), the (current) approved on-site parking provision is reduced from 45 spaces to 28, with all localised off-street parking to be shared between Marina users and restaurant patrons: Ex Q [2/4(a),(b) and 2.5].

96. Mr Stewart holds the concern, which I find to be a reasonable one, that this “is envisaged to prejudice the businesses within the complex and further increase the fully-subscribed demand for on-street parking into the adjoining residential area”: Ex N p.68.

97. I accept Mr Stewart’s argument that parking demand ought to consider the redeveloped Marina rather than the extension alone. I prefer Mr Stewart’s approach to that of Mr Hollyoak with respect to inclusion of the parking requirements of the other users of the Marina: the administration offices, boat sales office, boat workshop, laundry, beauty establishment and amenities, which have not been taken into account in calculating the car parking. This is because it would be a poor planning outcome to reassess the parking needs for the Marina and the proposal, and not include the needs of land uses in the immediate proximity. Mr Stewart founds his opinion in the enhanced asset life, contemporary community expectations and observed and surveyed congested on-street parking in the locality [Ex 15 p.6].

98. Given the existing conditions in and around the Marina, I accept that there are (and will continue to be) difficulties in providing the requisite amount of parking required by the operations of the Marina. However, what is proposed by the Applicant does not resolve this problem. The Applicant presses the point that unless the proposal proceeds, the parking shortfall will continue. That is not a reason such as to justify the granting of consent.

99. Even taking the Applicant’s position on car parking demand at a position which is most favourable to the Applicant, which results in a shortfall of two car parking spaces at the very least, I must consider matters of practicality, given the distance of the valet parking from the Marina.

100. I do not see a logical difficulty (as asserted by the Applicant) in Mr Stewart’s approach, in finding merit with a valet car parking system on the one hand, and being concerned about the operation of the actually proposed arrangements, on the other.

101. The proposed valet parking is located 3.8km from the Marina. Given that, for the present Marina operations, there is significant utilisation of on-street parking  in its vicinity (clearly a matter of convenience to Marina patrons in the absence of sufficient on-site parking), and the somewhat cumbersome arrangements proposed for the operation of the valet parking, I cannot be satisfied that, as a matter of convenience, patrons of the Marina will not continue, for  those same reasons of convenience, to avail themselves of on-street parking in comparative proximity to the Marina.

102. Although Mr Hollyoak and Mr Stewart agree that valet parking is a potentially available option, neither of them gave any evidence that would give me any comfort that the valet parking would operate in a fashion to remove pressure on street parking in the vicinity of the Marina.

103. True it is that a condition of consent can mandate the provision of valet parking. However, there is no realistic way, through conditions of consent, that use of the valet parking can be mandated so as to bind the patrons of the Marina, as opposed to the operators of the facility. While the Marina operator may be pleased by the take-up of the valet parking, which is the evidence that he gave on-site, for the proposal to be acceptable the valet car parking must work seamlessly.

104. The PSDCP has the objective of providing adequate on-site parking, loading and servicing spaces. The proposal is sub-optimal with respect to this objective.

105. For the reasons I have set out above, I am satisfied that what is proposed by the development is not acceptable from a car parking perspective. What is proposed does not meet car parking demand. I am also satisfied that shortcomings remain with the proposed operation of the valet parking service.

106. On the basis of the impact that would arise from a failure to provide adequate car parking, consent is refused.

Ecology

The Contentions

109. Contention 1 is that the proposed development would have an unacceptable impact upon the environment, particularly critically endangered, threatened and vulnerable species. The species in question, and the concerns, are:

1. A breeding pair of Beach Stone-curlew (critically endangered species), in proximity to the Marina site. They are considered to be the southern-most breeding pair of this species in Australia. Any impact to the breeding pair is unacceptable.

2. Pied and Sooty Oystercatchers (threatened species), potentially impacted by the proposal as they have breeding habitat on Dowardee Island.

3. Loggerhead Turtles (threatened species), recorded within proximity to the development site. There is also a risk of boat strike due to increased traffic.

4. Posidonia australis (seagrass meadows of the Manning-Hawkesbury ecoregion ecological community), occurring within the environs of Soldiers Point and Dowardee Island. Construction of the Marina may result in disturbance.

5. The proposal is contrary to the zoning under the PSLEP, as it does not ensure the protection of the ecological value of the waterways.

6. The proposal is inconsistent with the PSDCP as it may adversely impact on threatened species and their habitat.

110. Contentions with respect to ecology are also raised in the context of site suitability, compliance with SEPP 71 and insufficient information: Ex 1.

111. In terms of adequacy of information, the Council’s case was pleaded on the basis which included that although an SIS had been provided, it provides “insufficient information and assessment of threatened species matters such that the SIS does not adequately address the Director General Requirements (DGR) issued by OEH”: Ex 1 B.2 [12(a)]. A further contention is that the SIS fails to address all threatened species and their habitat at the development site and does not take into account appropriate consideration of known records of species or likely impacts: Ex 1 B.2 [12(b)]. The SIS also fails to provide a significance assessment in accordance with the Significant Impact Guidelines 1.1 – Matters of National Environmental Significance for the EPBC Act: Ex 1, B.2 [12 (c)]. (These matters were subsequently addressed in Ex O.)

The Key Species

112. The key species which were ultimately identified for assessment under the TSC Act are:

1. Beach Stone-curlew

2. Pied Oystercatcher

3. Sooty Oystercatcher

4. Osprey

5. White-bellied Sea Eagle

6. Marine turtles

7. Eastern Curlew

8. Little Tern

9. Koala

113. The key species identified under the EPBC Act for assessment are:

1. Koala

2. Green Turtle

3. Loggerhead Turtle

4. Posidonia Seagrass Meadows

5. Migratory Species.

114. The SIS was prepared for the Applicant by Mr Fanning, an ecology expert. The original SIS was prepared in June 2015: Ex N. It was followed up by a report dated 28 March 2017 entitled “Supplementary Section 5A Assessments of Significance”: Ex O. Further material and reports continued to be produced.

115. A primary point of contest between the experts was the extent to which Mr Fanning was required to, and in fact did, conduct appropriate surveys in order to locate and map all relevant flora and fauna.

116. The original SIS (Ex N) concluded the following:

1. It is NOT “likely” that a “significant effect” would be imposed upon any “threatened species, populations or ecological communities, or their habitats” as a consequence of the Soldiers Point Marina expansion project.

2. There is NO requirement for the preparation of an SIS for the Soldiers Point Marina expansion project: Ex N p.5 at [9].

117. Mr Fanning’s second conclusion above was the source of some consternation, as notwithstanding that conclusion, Mr Fanning did in fact prepare an SIS on behalf of the Applicant, for an abundance of caution.

118. Mr Fanning derived those conclusions from the following findings he made:

1. Vegetation and flora: the development will have no impact on terrestrial flora or vegetation. No seagrass beds will be removed, and there are no threatened ecological communities present in any areas to be affected by the development.

2. Threatened fauna: the species of greatest potential significance is the Beach Stone-curlew. A breeding pair of these species resides on Dowardee Island, and utilises the beaches and mudflats on each side of Soldiers Point for foraging purposes. However

The proposed Soldiers Point Marina expansion project will have little, if any, adverse impact on the Beach Stone-curlew – given the distance from Dowardee Island, the presence of the existing Marina facilities, the avoidance of any direct impact on the species or its habitat, and the apparent tolerance of this species to human activities: Ex N, p.2 at [3].

3. Other threatened bird species potentially of relevance – the Osprey and Pied and Sooty Oystercatchers – will not experience adverse effects, “given the minute area of potentially suitable habitat that will be affected and the high mobility and wide ranging habits of those species”: Ex N,p.2 at [3].

4. Affected species: the only species for which there is a real potential for any impact is the Beach Stone-curlew. Other threatened species have been identified by others as of potential concern, including the Pied and Sooty Oystercatchers, the Osprey, the Dugong, and the Green and Loggerhead Turtles. “The likelihood of adverse impacts upon these species, or their habitats, is vanishingly small.” Despite that conclusion, they have been considered in detail in the SIS “on a precautionary basis”.

5. The potential for direct impacts upon those affected or potentially affected species is extremely limited.

6. Potential indirect impacts: this potential is extremely limited, as there will be no significant increase in noise, light, pollution; no changes in sand movements, and no significant increase in boat washes and waves.

7. The likelihood of a significant effect: Mr Fanning concludes that the project is not likely to impose a significant effect on any of the threatened species known, or likely, to occur at Soldiers Point or around Dowardee Island: Ex N, p.4 at [7].

119. Mr Fanning then sets out his assessment of relevant factors to be taken into account, when considering the potential impact, drawing on matters prescribed in s 5A of the EPA Act.

120. The adequacy of the SIS was criticised as not adequately addressing the DGR, for reasons including that the SIS failed to adequately address all threatened species and their habitat at the proposed development site, not taking appropriate consideration of known records or species and/or likely impacts on such species: letter from OEH to the Council, 10.11.2015.

121. Mr Fanning then prepared The Supplementary Assessment [Ex O], which lists each of the relevant species, and applies the factors against each species.

122. That report [Ex O] also sets out the “matters to be considered in assessing the likelihood of a ‘significant impact’ being imposed on listed biota” in the EPBC Act, set out at [111] above. There are significant impact criteria for each of the following categories: critically endangered and endangered species (Loggerhead Turtle); vulnerable species (Koala and Green Turtle); critically endangered and endangered ecological communities (posidonia seagrass meadows); and listed migratory species.

123. Applying the relevant assessment criteria to each of the listed biota, Mr Fanning concludes that “there is no possibility or likelihood of the proposed development imposing a ‘significant impact’ upon [each of the listed biota]”: Ex O pp iii –vi.

124. The differing opinions of the Ecology experts is helpfully illustrated by the various Joint Expert reports prepared by Mr Fanning with Mrs McClung and Dr Clancy over the life of the assessment of the proposal (such as Ex 12, 13 and 14).

125. In terms of consistency with SEPP 71 and cl 5.5 of PSLEP, Mr Fanning held the view that the proposal would not impose such adverse impacts on any element of the natural environment such as to be inconsistent with those planning instruments [Ex 12 at 4.1(v)]. Mrs McClung did not agree.

126. In terms of the potential to significantly impact critically endangered and vulnerable species (raised in the context of Particular 8(c) – the development having the potential to significantly impact critically endangered and vulnerable species), Mr Fanning accepted that the proposal had such potential, but did not accept that the potential was such as to significantly impact those species: [Ex 12, 4.1.1, Fanning (i) and (ii)]. Such potential is mostly very limited, and would not be likely to be significant. Reasons for his view, common in the case of the Beach Stone-curlew, the Pied Oystercatcher, the Sooty Oystercatcher and migratory shorebirds include that no bird habitat will be physically removed; the Marina will not materially, if at all, increase disturbance to the birds; and no significant changes to the eastern beach of Dowardee Island are likely (based on hydrological evidence): Ex 12 p.5.

127. Mr Fanning also set out his views with respect to the Eastern Osprey (having witnessed foraging to the south of Dowardee Island, but not in the channel): the Little Tern (which regularly fish between the existing Marina arms, and have a large foraging habitat); the White-bellied Sea Eagle (the Marina occupies but a tiny proportion of foraging habitat for this bird) and marine turtles (the operations will not materially, if at all, increase disturbance to the marine turtles): [Ex 12 at [4.1.1] pp 4-6].

128. A key criticism from Dr Clancy and Mrs McClung is that Mr Fanning did not carry out any appropriate surveys so as to locate and map all relevant flora and fauna. Dr Clancy pointed to the DGR at 3.1 where it is stated that a fauna and flora survey must be conducted in the study area. Targeted surveys must be conducted for all subject species determined in accordance with section 3.1 of DGR.

129. The matter of adequacy of the SIS was explored in more detail in Dr Clancy’s individual statement of evidence [Ex 6]. Dr Clancy opined that

no flora and fauna survey and no targeted surveys were carried out. A number of site inspections were carried out but these were not designed to gather data on threatened species in a manner that could be used to determine whether a significant impact would occur and what ameliorative measures could be taken”: Ex 6 at p.4.

130. Not only was there a problem with the methodology, opined Dr Clancy, but also with the timing:

the field inspections were carried out mostly in January with an initial inspection in May. These dates are outside of the usual spring-early Summer breeding dates of the Beach Stone-curlew and Australian Pied Oystercatcher…. As the Beach Stone-curlew has been identified as the main species of concern that surveys would have been carried out at a time where the exact location of the breeding site could be determined”: Ex 6 at p. 5.

131. Dr Clancy pointed to the fact that the Beach Stone-curlew, Pied Oystercatcher and Osprey nest on Dowardee Island, and the encroachment of the Marina towards the island would increase the potential for direct impacts: Ex 6 at p. 5. He also noted the reduction in channel width which may be significant for the Osprey and Little Tern, as it would reduce the area of foraging habitat close to the island. Mr Fanning’s assessment of this loss he describes as “miniscule”. However,

[he] provides no data to support this idea. The presence of a large area of potential foraging habitat does not mean that the Osprey will use it. Ospreys have specific feeding habitat requirements and the area to be impacted may be essential to the survival of the species as a breeding species on Dowardee Island. We don’t know because Mr Fanning has not produced any survey results on which to base his assumptions but merely assumes that there is plenty of foraging habitat available to this pair of breeding Ospreys”: Ex 6 p. 5. (italics mine)

132. Dr Clancy’s opinion is that the proposed development does have the potential to significantly impact on the critically endangered Beach Stone-curlew and endangered Pied Oystercatcher and as such, there is likely to be a significant impact on these species: Ex 12, 4.1.1, Clancy (i). His view is based on his opinions as to the following matters:

• The SIS does not provide evidence that the development will not significantly impact on these species;

• The impacts do not involve the physical removal of habitat although some habitat could be affected by changes to hydrology;

• The potential impacts would occur from the extended Marina projecting considerably closer to Dowardee Island than at present, with the movement of boats and additional impacts of lights and noise potentially disrupting threatened species “at critical periods of the breeding cycle causing the failure of nesting attempts”;

• The reduction in channel width would cause small craft to be driven closer to the island, increasing the chances of disturbance from the movement and noise of the boats. It would also increase the likelihood of people landing on the island;

• The reduced channel width would also remove potential foraging habitat of the Osprey, Little Tern and Common Tern. These birds have favoured foraging sites based on water depth, turbidity and fish movements so rely on specific areas within Port Stephens and cannot forage “just anywhere”.

133. For the Council’s experts, these concerns were not addressed by the further evidence submitted. For example, Ex R – Updated Transport Sediment Modelling – remained of concern to Dr Clancy, as while he accepted that the potential for changes to eastern beach on Dowardee Island was low, as that area was likely to produce the most suitable breeding habitat for the Beach Stone-curlew, “the potential for change needs to be zero”: Ex T p.2. In Dr Clancy’s opinion, a condition to address these concerns is not appropriate, as the approach to be taken to modelling is a precautionary one, as while modelling is predictive, it does not provide a guaranteed outcome: Ex T p.2.

134. Dr Clancy rejected the basis on which Mr Fanning came to various of his conclusions regarding impact, citing deficiencies in the SIS as being “based on speculation and assumption”, without being sufficiently rigorous and impartial, and with too much concentration on the direct impacts and not enough on the indirect impacts: Ex 6 at p.5.

133. Despite the increasing amount of evidence, the experts continued to be at odds with respect to the “insufficient information” contention. Mrs McClung was critical of what she described as the focus of the SIS and SIS Addendum on direct impacts on habitat which overlooked consideration of indirect impacts, which need to be considered given the context of the high sensitivity of the study area and the surrounding environment: Ex 12 p. 6.

134. Mrs McClung opined that the SIS should have included a detailed ecological survey to identify the ecological values of the entire study area. The emphasis should have been on the local, not regional, environment. This is because (according to the TSA Guidelines) “the long term loss of biodiversity at all levels arises from the accumulation of losses and depletions of populations at a local level”: Ex 5 at [25].

135. Mrs McClung opined that indirect impacts to be considered should include as a minimum: indirect modification of natural habitat or changes to the nature of important periodic disturbances, including a reduction in an isolation buffer, an increase in human activity (including access, boat activity, noise and light) during key breeding periods, contracting of navigational channels leading to a higher risk of boat strike for marine animals (Dugongs, Dolphins and sea turtles), increase in road traffic and risk of vehicle strike for koalas: Ex 5 at [35(a)]. There should also be consideration of indirect modification to the aquatic environment: Ex 5 at [35(b)].

136. Mrs McClung concluded that, based on her experience, to meet the requirements of the relevant guidelines and to allow for the adequate assessment of potential direct and indirect impacts of the proposed development, “a detailed ecological survey would be conducted to identify the ecological values of the entire sturdy area. The SIS only includes the area of direct impact of the proposed extension within the channel and the seagrass habitat within the extent of the Marina. The SIS does not provide an adequate ecological description of the entire study area and quickly disregards the ecological value of the habitat within the study area and its surrounds”: Ex 5 at [37].

137. Further reports were prepared (Ex L, O, R and S) to address Mrs McClung’s concerns. With respect to concerns about seagrasses, Ms McClung conceded that the impact of the development can be dealt with by condition, but remained critical of the application for failing to provide consolidated mapping. The impact on seagrass as a reason to refuse development therefore falls away.

138. Mr Fanning did not agree that there is insufficient information regarding the relevant species, and set out what is known about the breeding and roosting habits of various species. Moreover, Mr Fanning pointed to the breeding of the Beach Stone-curlew on Dowardee Island since 2011, “despite the regular and frequent presence of boats, people and dogs on the eastern beach”: Ex 12 at p.7.

139. Mr Fanning rejected the suggestion that the “study area” should include the western part of Dowardee Island, nor that it was necessary to be absolutely certain of the nesting site of the Beach Stone-curlew or Pied Oystercatcher, as the assessments were made on the basis that the Beach Stone-curlew was likely to breed (sometimes at least) at the south-eastern corner of Dowardee Island: Ex 12 p.9.

140. Mr Fanning also vigorously disputed Dr Clancy’s views regarding the development’s impact on the Beach Stone-curlew and threatened birds, in the Joint Expert Report on Threatened Birds (Ex 13). For example, Mr Fanning stated that “in the absence of any evidence to the contrary, I do not accept the assertion that any speculative ‘potential’ impacts on the relevant ‘critically endangered, threatened and vulnerable species’ as a consequence of the proposal would be ‘unacceptable’ [as is put by Dr Clancy]”. Moreover, Mr Fanning is of the opinion, having considered all the facts and taking a precautionary approach, that “there is no likelihood of a ‘significant effect’ being imposed by the proposal on any ‘critically endangered, threatened and vulnerable species”, and “I do not believe there is any credible evidence to the contrary”: Ex 13 at p.3.

141. I observe that the difficulty with Mr Fanning’s argument, if the Council’s position is accepted, is that it was Mr Fanning’s job to collect the necessary evidence, and he did not do so to the degree necessary to be able to provide what I describe as a satisfactory level of comfort.

142. In summary, the Council’s position is that in the absence of sufficient information to allow a determination to be made as to whether there is likely to be a significant impact on these species, a precautionary approach should be applied, the likelihood of a significant impact should be assumed and development consent refused. The Applicant took the opposing position, as set out above.

Finding

145. The heart of this dispute can be found in the differing opinions of the parties’ experts as to the impact of the development on ecology, and the manner in which that impact is to be assessed.

146. At the outset, it is appropriate to observe that there is no formal burden of proof in Class 1 proceedings. That said, there is nonetheless a persuasive burden, such that the Applicant needs to persuade the approval authority to exercise the power to grant the approval. That burden does not lie with the Council. It was not the role of Dr Clancy to undertake an SIS or carry out an assessment of significance; rather, the role the Council (not unreasonably, in my view) chose to assign to him was to assess the information provided by the Applicant through Mr Fanning, and offer his expertise with respect to birds in order to assist the Court to consider the adequacy of documentation provided by the Applicant.

147. A key question to ask when undertaking this aspect of the assessment is this: what assessment was required to be undertaken? Having determined that, the next question to ask is: did that assessment occur?

148. As to the first question, the Council contends that the assessment required studies which focussed more on indirect impacts, and which had a defined study area, with data collected at the appropriate time (as set out in the discussion above).

149. As to the second question, the Applicant says yes; and the Council says no, with the result that a precautionary approach should be applied and consent refused. I prefer the Council’s position, for the reasons set out below.

150. The statutory test to be applied in conducting the required assessment is this: whether the proposal is likely to significantly affect species, populations or ecological communities. The effect which will cause concern is one which is significant: it is not any effect, no matter how slight. Thus from an ecology perspective, a proposal will not run into difficulty unless there is a likelihood of a significant impact for particular species, populations or communities.

151. The direct and indirect impacts each informs the extent to which the effect (or impact) is likely, and the degree to which it is significant. Failure to explore fully, or at least adequately, the direct and indirect impacts leads to an inability to assess both the matters of likelihood and significance.

152. The Applicant contended that there was an incorrect premise brought to the cross-examination of Mr Fanning. That premise was that targeted surveys were required, and had not been undertaken. Rather, the DGR call for the author of the SIS to determine the Study Area, having regard to the knowledge of species in the area and the nature of the proposal. Whether or not Dr Clancy would have chosen a different study area, or studied different species, is beside the point, says the Applicant.

153. I do not find this to be a compelling rebuttal to the challenges raised by the Council. I am also unpersuaded by the Applicant’s challenge based on the Council’s experts not providing evidence of impact, nor undertaking assessments. That is a task for the Applicant.

154. I find that the field investigations conducted were not sufficient to determine the breeding and foraging sites of vulnerable, endangered or critically endangered species. Turning to the DGR (referred to at [41 ff] above), surveys will not be accepted if they are taken at a time when a species is unlikely to be detected or present, or where timeframes are not the most appropriate ones for detecting target species.

155. The Council was critical of the “evolutionary” nature of Mr Fanning’s assessment, submitting that his assessment appeared to be an evolution in response to criticisms provided by the Council, OEH and the objectors. While making no finding on this aspect, I observe that the iterative nature of the evidence (Mr Fanning’s in particular, such as the additional material prepared with respect to EPBC matters) created an additional layer of complexity to the assessment task.

156. The Applicant submitted that the real question is whether there is enough information before the Court to allow it to assess the proposal, particularly given the presence of the ecologists in Court giving evidence, and being subject to cross-examination, for two days. Given the uncertainty concerning the adequacy of the study site, the lack of examination of indirect impacts and the challenge to the adequacy of the surveys (including their timing) on which all other conclusions are founded, I do not have that information.

157. The purpose of the rigorous assessment required of developments such as this is, amongst other things, to provide a level of comfort for decision makers, and the community at large, that vulnerable, threatened, endangered and critically endangered species are not likely to be significantly affected by that development. If that level of comfort cannot be given because the key question is unable to be answered by me as the decision-maker, the development cannot proceed.

158. For the reasons I have set out above, I am unable to answer that question. For example, I am unable to find that the extension of the Marina to a location which is considerably closer to Dowardee Island, with changes to movement of boats, and increased lights and noise, would not disrupt threatened species at critical periods of the breeding cycle, thereby causing the failure of nesting attempts of the Beach Stone-curlew.

159. The Applicant says that there is no allegation that the SIS is legally invalid. The test for legal validity of the SIS is that there be substantial compliance with the requirements of the legislation and DG requirements: NSW Land and Housing Corp v Campbelltown City Council (2002) LGERA 348 at [73] – [76]. That may be so, but I have not considered the SIS on the basis of whether or not it is invalid, nor have I understood the Council to present its argument on that basis. What is in fundamental issue is the adequacy of the information provided. Dr Clancy and Mrs McClung have convincingly spelt out the deficiencies in Mr Fanning’s approach.

160. Because of this, I therefore find that insufficient and inadequate information has been provided by the Applicant to enable me to be satisfied in relation to the potential impacts to threatened species, populations or ecological species. In the absence of my being able to reach such satisfaction, development consent is not able to be granted.

Aboriginal Cultural Heritage

161. The contention raised by the Council was framed within the context of an assessment of the Site for possible gazettal as an Aboriginal Place as a result of its cultural and archaeological significance: Ex 1 p.13 [2(b)].

162. In answer to a concern raised by OEH that the potential for harm to Aboriginal culture and archaeological significance had not been adequately addressed in the original application as required by s 80D of the National Parks and Wildlife Act 1974, a report was prepared by Dr Wallace for the Applicant to address these issues: Ex B and A. Exhibit A was prepared following concern expressed by OEH (in a letter dated 1 February 2017 to the Council) that the additional information contained in Ex B (an earlier document) did not meet its requirements, which meant that Terms of Approval could not be provided: Ex 4, Ann B.

163. The criticisms raised by OEH included that the Aboriginal community consultation did not comply with OEH Guidelines, as Registered Aboriginal Parties had not had an opportunity for their comments on the draft report to be considered. Another criticism included that an Aboriginal cultural heritage assessment had not been undertaken. Such an assessment is “a written report detailing the results of an investigation and assessment of Aboriginal cultural heritage, to explore the harm of a proposed activity on Aboriginal objects and Aboriginal places”: Ex 4, Ann B at [2].

164. The study area adjacent to Soldiers Point Aboriginal Place, is within the area covered by the Worimi Local Aboriginal Land Council. Dowardee Island to the west of the proposed development is owned by the Worimi Aboriginal Land Council under the Aboriginal Land Rights Act 1983 (as a result of a successful claim).

165. The Soldiers Point Aboriginal Place (SP Aboriginal Place) covers much of the land which is adjacent to the Marina, and to the northern tip of Soldiers Point. Its location is shown at Ex A, p.6, Figure 2. SP Aboriginal Place has been declared under s 84 of the National Parks and Wildlife Act 1974. Such declarations are given to areas of cultural significance to the Aboriginal community. Areas are only gazetted as Aboriginal Places if the Minister is satisfied that sufficient evidence exists to demonstrate that the location is or was of special significance to Aboriginal culture: Ex A, 2.1 (p.3).

166. The whole of SP Aboriginal Place is of high cultural significance. Soldiers Point is a place of burials and was used for ceremonial purposes. Included within the SP Aboriginal Place are midden sites; burial areas and an area of Aboriginal Ceremonial Significance: Ex A, p.7.

167. The report states that Aboriginal community consultation was conducted in accordance with the OEH guideline Aboriginal Cultural Heritage Consultation Requirements for Proponents 2010: [Ex A p.16]. Dr Wallace contacted various organisations to request the names of Aboriginal people who may hold cultural knowledge relevant to determining the significance of Aboriginal objects and/or places within the local area. An advertisement was also placed in the local paper.

168. The conclusion of Dr Wallace’s assessment is that:

1. potential impacts to the cultural significance of the Soldiers Point Aboriginal Place were not identified during consultation; and

2. the impact to the sea floor has the potential to impact submerged archaeological material.

169. The recommendation arising from her report was for an underwater survey of the proposed development to be undertaken prior to development in order to assess the potential for underwater archaeological material; and for monitoring of the piling process to be undertaken by Registered Aboriginal Parties during the development process.

170. Even though in Dr Wallace’s opinion, such a survey was not necessary, Dr Wallace included this recommendation as it was an action requested by those with whom she consulted.

171. While there was no item of Aboriginal heritage revealed though the Study in the location proposed for development, against the possibility that an item may be discovered in the course of excavation, the Council proposed a condition of consent to address the prospect of that occurrence in the event that development consent were granted.

Finding

172. I accept the Applicant’s submission that the question to be answered is whether the work undertaken by the Applicant is sufficient to enable the Court to undertake the statutorily-required assessment of taking into account the impact on Aboriginal and cultural heritage. On the basis of that work, and having undertaken an assessment, I find that, notwithstanding the concerns raised by some objectors, a consultation process was carried out.

173. However, the OEH has continued to raise concerns, and stated that “the Aboriginal cultural heritage assessment does not meet the OEH’s requirements and does not contain sufficient information for OEH to consider and issue General Terms of Agreement”: Ex 21.

174. Given that I have concluded that the proposal fails on other substantive grounds, it is not necessary to determine whether Aboriginal cultural issues would act as an impediment to an appeal.

Hydrology and Coastal Processes

175. As originally expressed by the Council, the contention asserted that there was insufficient information to assess hydrology and coastal processes, and that the development will result in changes to processes that may impact on oyster leases; Dowardee Island shoreline and the navigation channel.

176. As early as the site visit, concern was raised by both parties’ experts that the ecologists would not be able to conclude their evidence as to potential impact of the development in the absence of further modelling work by the coastal process experts. At the commencement of the hearing it was agreed that further modelling would be required to assess the impact of the proposal on hydrology and coastal processes, which could in turn have impacts on ecological communities and individual species.

177. The hearing was adjourned to allow this modelling to be undertaken. Upon completion of this additional modelling, it was reviewed by the ecology experts and became the subject of a further joint Addendum Report No 2 of 27 April 2017: Ex S, supplementing the joint Statement of Evidence dated 7 March 2017, and Addendum Report of 1 April 2017.

178. There was some confusion as to the assumptions that would be underpinning the further modelling to take place. For the Council, Mr Staunton had been under the impression that the modelling would be done on the basis of the shorter Arm C, when in fact it was done on the longer arm: Ex S, p 11 [3.5]. In the event, in light of the findings I have made, nothing turns on this.

179. The final agreed position of the experts is set out in part 3 of Ex S. In summary, their conclusions are:

• there is no evidence to link a scour hole in the channel with the existing Marina, or more generally that it has had any significant impact;

• the proposed extension may have some minor effect on Sunset Beach, and is very unlikely to have a significant impact on the stability of Dowardee Island;

• the low residual risk to the island can be managed by monitoring required through a condition of consent.

Finding

180. Having considered the evidence of the experts, particularly those aspects of the evidence where there is no dispute, I find that there is nothing in the contention raised by the Council regarding coastal processes which would in and of itself lead to refusal of development consent. However, there would nonetheless be a risk of a minor effect on Sunset Beach as a result of the Marina extension. There is also the ongoing caution with which such modelling is to be treated, given its predictive nature. This is a matter to be considered in the overall assessment of the impact of the proposal.

Visual Impact

181. The contention is that the development results in an unacceptable visual impact to the scenic quality of the location.

182. In the course of assessing this development I had the benefit of Mr Slocombe’s photomontage, prepared in accordance with best practice guidelines and requirements of the Court: Ex J at [1]. Views were shown from the following vantage points: from headland to bushland, through the navigational channel between the existing and proposed berths and Dowardee Island; From Pearson Park through the navigational channel, towards Dowardee Island; Everitt Park; the jetty; 6 Sunset Boulevarde towards Dowardee Island; the reserve adjacent to Resthaven Avenue, towards Dowardee Island; and from 22 Sunset Boulevarde, towards Dowardee Island.

183. As noted above, during the site visit, the experts spoke to the visual impact of the development from various vantage points, including from Sunset Beach, a popular recreation spot amongst locals and visitors alike. We were also shown other perspectives from which the photomontage had been prepared, including from Everitt Park (to the north east of the Marina), and looking across to the Marina from the jetty.

181. Dr Lamb for the Council opined in his expert report (Ex 9) that while the photomontages were prepared in accordance with the Court’s Practice Note, he was not satisfied that the photomontages show a representative, comprehensive and realistic impression of the visual impacts of the proposed development: Ex 9 at [13]. These concerns were addressed to Dr Lamb’s satisfaction through the preparation of two additional view montages (8 and 9 of Ex J), and adjustments to other views to take account of the proposed Marina layout/vessel type/length: Ex 18 at [18].

182. Dr Lamb concluded that the proposal would have a moderate visual impact on the scenic quality of the locality: Ex 9 at [41]. A moderate ranking of impacts is mid-range (on a scale which ranges from negligible to high). In Dr Lamb’s opinion, “a moderate impact should be taken into account in determining the overall merits of the application as it does lead to a localised but significant reduction in the scenic quality of the views that are affected”: Ex 9 at [43].

183. In the Joint Expert Report (Ex 11), Dr Lamb and Ms Hodgkinson agreed that the area affected is confined to an area in proximity to the existing Marina itself and part of the urban foreshore; adjacent residences would remain similar view opportunities to what is available now; the visual catchment of the western basin is extensive and provides a background which of a natural appearance that is visible and will otherwise remain largely unaffected by the proposed development: Ex 11 at p. 5.

Finding

187. I find that the local view is already dominated by the existing Marina, which is a permissible use under the various planning controls.

188. The experts for both parties agree that the visual impact is moderate, limited to a localised impact, “causing a moderate reduction of scenic quality and visual amenity”: Ex 11 at p.5.

189. While there would be a moderate impact arising from the development, if this were the only impediment standing between the Applicant and development consent, I would not find the impact to be such as to warrant refusal of the development. However, this is an impact which is taken into account with a number of other impacts in assessing the overall impact of the proposed development.

Site Suitability

190. Given my findings as to the adverse impact on the ecological values of the waterway, it cannot be said that the development is consistent with the objectives of W2 Recreation Waterways zone. Likewise, my other findings, in particular my findings with respect to the cumulative impact of the proposal, result in my finding that the Site is not suitable for the proposed development.

Objector Evidence

191. As part of the assessment I am required to undertake pursuant to s 79C of the EPA Act, I have considered the views of the objectors to the proposal. Their concerns, to the extent that they raise matters of proper planning consideration, have been addressed by the matters considered in this judgment.

Further Discussion and Findings

192. To place the development in context, Mr Astill submitted that the development is not proposed within a greenfield site, but within one where there is an existing Marina, which has been operating for decades, as well as being within a part of Port Stephens “characterised by quite intense residential development… camping grounds, a yacht club, quite well-used recreation facilities… the beach and other reserves”: [T p.296 l 7 ff].

193. The effect of this submission is that there is already considerable activity and development, and the assessment needs to be made within that context.

194. The flipside to this (valid) submission is the argument that it is not appropriate to add to the level of development at Soldiers Point. In other words, the proposal represents an over-development.

195. The Applicant’s proposal is to increase the number of boats accommodated at the Marina by more than 50%, from 90 to 149 (or slightly smaller number, depending on the length of Arm C). The increase in boats would have an impact on the number of car parks required (in the context of a situation where there is a pre-existing car parking shortage). There would also be an increased number of traffic movements, not only occasioned by the owners of the increased number of boats at the Marina, but due to the valet car parking arrangements, with movements to and from the Marina. The extent to which the Marina would project into the waters between it and Dowardee Island would increase not insignificantly. The extensions to the arms of the Marina would also lead to a moderate visual impact (including impacting views from some vantage points), and, over time, some small changes to the coastline as a result of the changes to coastal processes caused by the development. The development would cause some concern to members of the local Aboriginal community, albeit that a cultural heritage assessment found little likely impact arising from it.

196. This development is proposed to occur in a location where there are vulnerable, threatened or critically endangered species, and an active oyster lease. The site and surrounding areas are ecologically important and, by dint of a detailed regulatory framework, constrained.

197. Having carefully considered the evidence and the submissions, I find that the proposed development would have too great an impact to be allowed to proceed.

198. My finding with respect to car parking (particularly within the context set out at [192] above is that, due to insufficiency of car parking provision, the development ought not proceed. Put another way, the inability of the proposal to meet the car parking requirements of the PSDCP prevents approval from being granted to the proposal. Not only is there an insufficiency of car parking, the arrangements with respect to valet parking are cumbersome and do not give me comfort as to their ability to be successfully implemented. Taken alone, I find that this ground would be sufficient to refuse consent. However, if I am wrong on that point, there are other considerations which would lead to the decision not to grant consent.

199. I have made no finding with respect to Aboriginal cultural heritage. With respect to ecology, because there were insufficient studies done (including surveys at necessarily relevant times of the year), and insufficient consideration given to indirect impacts, a likely significant impact on critically endangered, threatened or vulnerable species cannot be ruled out. Adopting a precautionary approach it is therefore not appropriate to grant consent.

200. Turning to the other contentions raised by the Council, these matters would result in impacts which, if taken on an individual basis, would not be such as to warrant refusal. However, when these impacts are considered collectively, together with impacts from other aspects of the proposal, these cumulative impacts reinforce my finding that consent may not be granted.

201. The Council included in its contentions that the development is considered to be an overdevelopment of the Site: contention 7(c). This was also raised by the objectors. Much of the difficulty facing this development arises as there is already significant development at Soldiers Point. For example, the fact that there are (current) difficulties in compliance with car parking requirements supports the general proposition that what is proposed amounts to an over-development of the Site.

202. Environmental assessment involves a balancing of interests, impacts, benefits and costs. On this occasion, the balance lies with preserving the status quo.

Orders

203. The Orders of the Court are:

1. The Appeal is dismissed.

2. Development Application 16-2015-586-1 for Marina and car parking – extension to Soldiers Point Marina (additional 59 berths), relinquishment of seven swing moorings, line marking to existing car parking, and Car parking (change of use to existing industrial warehouse to provide 33 valet car parking spaces off-site) is determined by refusal.

3. The Exhibits, save for Exhibits 1, 25, N (that part comprising the SIS), O, Q and U, are returned.

_________________

Rosemary Martin

Senior Commissioner

Decision last updated: 29 January 2018