Crown Marina Pty Ltd v City of Port Adelaide Enfield - [2010] SASC 53

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
CROWN MARINA PTY LTD v CITY OF PORT ADELAIDE ENFIELD & ANOR
[2010] SASC 53
Reasons for Decision of The Full Court (ex tempore)
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Anderson)
4 March 2010
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS AND PERMITS
Appeal from full bench of the Environment Resources and Development Court - development approval given to construct 50 marina berths with associated car parking, landscaping and other facilities - ERD Court allowed appeal from third party reversing development plan consent - whether proposed development failed to provide adequate clearance for the safe manoeuvring of vessels - whether decision of ERD Court had the effect of extending an existing easement in favour of third party - whether authorised by Development Plan.
Held: appeal allowed - ERD Court erred in application of Development Plan.
Development Act 1993 (SA) s 3, s 23, referred to.

CROWN MARINA PTY LTD v CITY OF PORT ADELAIDE ENFIELD & ANOR
[2010] SASC 53
Full Court: Doyle CJ, Bleby and Anderson JJ

DOYLE CJ. I also would allow the appeal and I agree with the reasons of Bleby J and there is nothing that I wish to add.
BLEBY J.
Introduction
The North Haven Marina consists of two Basins. The Southern Basin has been developed as a marina. The Northern Basin is an open area of water surrounded by residences. Most of the allotments surrounding the Northern Basin extend for some distance beyond the revetment wall of the Basin and contain private moorings extending into the Basin to the border of the respective allotments.
The appellant, Crown Marina Pty Ltd (“Crown Marina”), owns land adjacent to the Northern Basin and extending into the whole of the Basin to the borders of the surrounding allotments. It applied for Development Approval to construct 50 marina berths in the Northern Basin with associated car parking, landscaping and toilet block on the adjacent land. The City of Port Adelaide Enfield (“the Council”) granted provisional Development Plan consent to the proposed development, subject to a number of conditions.
Mr and Mrs Hage and one other couple, both of whom own land and moorings extending into the Northern Basin, appealed against the decision of the Council to the Environment Resources and Development Court (“the ERDC”).
The objections of the other couple were overcome by the production before the ERDC of a revised plan which became the plan relied on by Crown Marina on the hearing of the appeal. They took no further part in the proceedings. The appeal of Mr and Mrs Hage continued. As a result, the ERDC allowed the appeal and set aside the provisional Development Plan consent granted by the Council. Crown Marina now appeals on a question of law to this Court against that decision.
Neither the Council nor Mr and Mrs Hage appeared on the hearing of this appeal.
The relevant facts
The under-water portion of Crown Marina’s land is subject, on its perimeter, to a series of rights of way in favour of the adjacent perimeter landholders whereby access by water to their respective allotments from St Vincent’s Gulf is assured, whatever form of marina development might take place on the balance of Crown Marina’s land. Those easements form part of what, in parts of the proposed marina, is a wider interior channel to accommodate the passage of larger boats which may use the Marina. The easements vary in width between 30 metres and 15 metres according, it would appear, to the expected volumes of boat traffic using those easements.
Mr and Mrs Hage’s residence is on one of the north-eastern shores of the Northern Basin. The width of the easement adjacent to their allotment is 15 metres.
The design of the proposed marina was such that Arm E of the Marina was to be built to the south-west of Mr and Mrs Hage’s land with the north-eastern walkway of Arm E abutting the south-western boundary of the easement adjacent to Mr and Mrs Hage’s land, with another walkway to the shore at the south-eastern end of the easement not far from the south-eastern alignment of Mr and Mrs Hage’s allotment. This would cause a physical restriction to the manoeuvring of any vessel to and from their mooring within the 15 metre width of the easement and only in a north-westerly direction from their mooring.
Mr and Mrs Hage had built their dwelling in 2004. In 2005 they acquired a 10.97 metre sailing yacht which is moored at their mooring. While the easement adjacent to their mooring is only 15 metres wide, without development of the Marina they had in fact unlimited space within which to manoeuvre their yacht, but not within the bounds of their easement.
At the time when Mr and Mrs Hage purchased their yacht they believed that their marina berth was approved to take a 12 metre long vessel. That was because, when they applied for Development Approval for the construction of their mooring, it was approved for a design load to accommodate a vessel of 12.8 metres in length. However, that was based solely upon the engineering design load applied to the mooring. It said nothing about the length of vessel that could be accommodated within the easement.
Evidence before the ERDC showed that, according to the relevant Australian Standard, the minimum manoeuvring fairway width, that is, the width between adjacent rows of marine berths, for a vessel with a length of 12.8 metres would be 19.2 metres, with a preferred fairway width of 22.4 metres. For Mr and Mrs Hage’s 10.97 metre yacht, the minimum fairway width specified is 16.46 metres, with a preferred width of 19.2 metres. The principal objection of Mr and Mrs Hage was, therefore, that the construction of the Marina should allow them a fairway of at least 19.2 metres adjacent to their property in the interests of the safe manoeuvring.
Before the ERDC Mr and Mrs Hage also complained about loss of amenity by way of views and privacy and noise issues. There was also a question raised concerning the continued validity of an earlier Development Plan consent for a proposed walkway adjacent to their land. Those other issues were disposed of by the ERDC against the interests of Mr and Mrs Hage. There has been no cross-contention filed by them seeking to rely on such issues.
The appeal was decided by the ERDC, favourably to Mr and Mrs Hage, solely on the basis of the space required for them to be able safely to manoeuvre their yacht adjacent to their mooring. In doing so the Court relied on Principle of Development Control 1 applicable to the relevant Policy Area of the Council’s Development Plan that the Policy Area “should primarily provide for berthing facilities and for safe passage and manoeuvring of vessels”.
The ERDC’s reasons
The Court acknowledged that Mr and Mrs Hage are not presently entitled to manoeuvre or propel their yacht in the vicinity of its mooring in any waters beyond those overlying the land in their title and in the 15 metre easement. It acknowledged that they had no legal right to sail or propel their vessel within the Marina other than in the waters overlying their land and in the channels covered by their easement within the Marina.
The Court’s reasons for allowing the appeal appear in the following two paragraphs of the joint reasons:
In the circumstances where Mr and Mrs Hage already moor a 10.97m yacht at their berth and have done so for some years in reliance upon an uncontradicted (to this hearing) understanding of their rights under a development authorisation issued in 2002 and the availability of waters, in addition to the 15m wide fairway, in which to manoeuvre their yacht into and out of their berth, an applicant for development authorisation on adjoining waters must take into account the provisions of the zone with respect to the safe passage and manoeuvring of vessels.
In the interests of safe passage, the proposed walkway opposite the Hage’s property should be relocated 3m to the south. This would provide, in effect, a fairway width of 18m in the vicinity of the Hage’s berth, allowing for safe manoeuvring of a 10.97m long vessel into and out of the Hage’s berth. We have settled on an effective fairway width of 18m as it is a round figure approximately midway between the minimum and preferred widths for a 10.97m vessel, according to AS 3962-2001.
The Court concluded that the proposed development did not allow for safe manoeuvring of Mr and Mrs Hage’s vessel. The Court added:
We would approve a plan amended so as to provide for an 18m wide fairway in the vicinity of the Hage’s berth, for the safe manoeuvring of a 10.97m vessel into and out of that berth.
Consideration of the appeal
In my opinion the approach of the ERDC was based on an error of law and a misapplication of the provisions of the Development Plan.
As can be seen from paragraph (c) of s 3 of the Development Act 1993 (SA), the purpose of a Development Plan is—
(i)    to enhance the proper conservation, use, development and management of land and buildings; and
(ii)     to facilitate sustainable development and the protection of the environment; and
(iia)   to encourage the management of the natural and constructed environment in an ecologically sustainable manner; and
(iii)    to advance the social and economic interests and goals of the community.
These are further developed in s 23 of the Act.
Implementation of the Development Plan’s Objectives and Principles will affect the lawful use to which land within the Council area may be put and the type of buildings and structures that may be erected on the land. Implementation of the Development Plan will therefore have an effect, possibly a quite significant effect, on the value of land in private ownership within the Council area and on the activities that may lawfully occur on such land. Implementation of a Development Plan may, for sound planning reasons, also require a developer to reposition or confine a proposed development so that it does not fully occupy the area of land owned by the developer. However, the implementation of a Development Plan cannot otherwise restrict or expand the person’s proprietary rights or interest in land. It cannot require a development to conform with the exercise by another party of proprietary rights over the developer’s land which that other party does not possess.
Mr and Mrs Hage’s rights of access over the easement are not diminished or affected in any way by the proposed marina development. The fact that those proprietary rights did not satisfactorily accommodate the requirements of a vessel which they chose to acquire did not give them any right to use Crown Marina’s land.
The effect of the ERDC’s decision was to require, as a condition of Crown Marina’s proposed development, the granting by Crown Marina to Mr and Mrs Hage of a right of way over an additional 3 metres of Crown Marina’s land for the width of Arm E of the Marina at its north-eastern boundary together with the length of the associated walkway, a distance in excess of 55 metres. That was not authorised by the Development Plan or by the provisions of the Development Act, and was beyond the power of the ERDC to require.
It was not relevant to the decision of the Court that Mr and Mrs Hage had trespassed over Crown Marina’s land in the past in order to accommodate the safe manoeuvring of the vessel they chose to acquire. The fact that their mooring, from an engineering point of view, would accommodate a longer vessel was also irrelevant. It was Mr and Mrs Hage’s responsibility to ensure that any vessel they acquired could be manoeuvred safely within the easement.
The issue of Principle of Development Control 1, on which the Court relied, would no doubt have been considered upon Development Approval for the original subdivision of Crown Marina’s land and the creation of the relevant easements constituting the channels for use by adjoining owners, having in mind the number, type and size of vessels likely to require passage over that water. It was also relevant to the design of the Marina itself. It was not otherwise relevant to the location of the Marina structures within that part of Crown Marina’s land not burdened with the right of way.
Conclusion
For these reasons I consider that the ERDC erred in allowing the appeal from the decision of the Council. I would allow this appeal. I would set aside the order of the Environment Resources and Development Court made on 6 November 2009. I would order that there be substituted for that order the following orders:
1That the appeal be dismissed.
2That the decision of the City of Port Adelaide Enfield made in respect of Development Application No. 0404/1787/06 granting provisional Development Plan consent be confirmed.
ANDERSON J. I would also allow the appeal and agree with the orders proposed by Bleby J and with his reasons.