Double Bay Marina v Woollahra Council

[2009] NSWLEC 1001

Land and Environment Court

of New South Wales

CITATION:

Double Bay Marina v Woollahra Council [2009] NSWLEC 1001

PARTIES:

Applicant:
Double Bay Marina Pty Ltd

Respondent:
Woollahra Municipal Council

Objectors:
Elizabeth Tudehope and others

FILE NUMBER(S):

10498 of 2008

CORAM:

Roseth SC

KEY ISSUES:

DESIGNATED DEVELOPMENT - DEVELOPMENT APPLICATION :- visusal impact of marina; planning principle: discerning the public interest

CASES CITED:

Corporate Affairs Commission (SA) anor v Australian Central Credit Union 157 CLR 201-214 at 208

DATES OF HEARING:

15-19 December 2008

 
DATE OF JUDGMENT: 

9 January 2009

LEGAL REPRESENTATIVES:

Applicant:
Mr C McEwen SC and Mr M Staunton, barrister instructed by Mr N Howie, solicitor of Wilshire Webb Staunton Beattie

Respondent:
Mr B Coles QC and Mr S Flanigan, barrister instructed by Ms V McGrath, solicitor of Deacons
Objectors:
Ms E Tudehope and 12 others: Mr P Clay, barrister instructed by Mr M McMahon, solicitor; Mr N Pongrass self-represented

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

9 January2009

10498 of 2008 Double Bay Marina Pty Ltd v Woollahra Municipal Council (Respondent) Elizabeth Tudehope and others (Objectors)

JUDGMENT

1 Senior Commissioner: This is an appeal against the deemed refusal by Woollahra Municipal Council (the council) of a development application to redevelop the existing marina at Castra Place, Double Bay.

The site

2 The existing marina is on the Double Bay waterfront close to the corner of Pearce Street and Castra Place. The existing land-based buildings are a two-storey dwelling and a marina building. There is a slipway to the east of the marina building. The marina berths are located on both sides of a single fixed timber walkway that extends 143m in a northerly direction into the Bay. Boats on the marina are berthed at right angles to the walkway and parallel to the shoreline. There are 40 berths within the marina and 25 swing moorings associated with it. There is no associated parking or loading area.

3 Double Bay is within the headlands of Darling Point and Point Piper. A minor headland near Gladswood Gardens divides the Bay into two distinct parts; hence the name Double Bay. To the west of the marina is a private jetty at the end of Beach Street. Between the marina and the jetty the beach is intertidal and access to it requires climbing under the jetty. Further to the west is a beach, which ends with the sailing club and the ferry wharf, located at the end of Bay Street. From most of the shoreline one can see both headlands, Clark Island and Manly.

The proposal and its history

4 The applicant proposes to remove the existing fixed marina and to construct a new floating marina for 51 boats, incorporating eleven of the 25 swing moorings it currently controls. The new marina is to consist of a new floating walkway in a northerly direction, with three arms extending to the west giving access to the berths. The direction of the boats is perpendicular to the shoreline. As a result, the area covered by boats will increase by a factor of about 2.5, even though the number of boats will increase by only by a factor of 1.25. The proposal includes disabled access and three casual berths.

5 The applicant lodged the application, which is for designated development, in December 2007. Following exhibition and notification, the council received 321 objections and 13 letters of support. Twelve objectors have grouped themselves with Mr D and Mrs E Tudehope (whose objection is discussed below) and elected to be represented separately in the proceedings. They are referred to as the Tudehope objectors. As the application is designated development, the council consulted with the Department of Planning. As it is integrated development, the council consulted with the Department of Water and Energy (as the approval body under the Water Management Act 2000) and with the Department of Primary Industries (as the approval body under the Fisheries Management Act 1994). Neither department has objections.

6 The council considered an assessment report by its planning officers, which recommended approval subject to deferred commencement conditions. The report recognised that the proposal’s main impact is on the views of the ground floors of properties between the marina and the private wharf at the end of Beach Street. Its recommendation for approval is based on the opinion that the affected properties, other than the apartments, retain their views from the first floor and that they are “well endowed with environmental amenity”. In the event, the council did not accept the recommendation. While it has not refused the application, it has decided to defend the appeal lodged in May 2008.

Relevant planning instruments and policies

7 The Environmental Planning and Assessment Act 1979 (the EPA) lists the matters for consideration in evaluating a development application in s79C.

8 The Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (the Sydney Harbour REP) applies to marina proposals in Sydney Harbour. Clause 2(1) contains the REP’s aims:

· as an outstanding natural asset, and

· as a public asset of national heritage significance,

for existing and future generations.

(b) to ensure a healthy, sustainable environment on land and water,
(c) to achieve a high quality and ecologically sustainable urban environment,
(d) to ensure a prosperous working harbour and effective transport corridor,
(e) to encourage a culturally rich and vibrant place for people,
(f) to ensure accessibility to and along Sydney Harbour and its foreshores,
(g) to ensure the protection, maintenance and rehabilitation of watercourses, wetlands, riparian lands, remnant vegetation and ecological connectivity,
(h) to provide a consolidated, simplified and updated legislative framework for future planning.

9 Clause 2(2) does what very few planning instruments do: it provides guidance on how to give weight to the various competing aims of the REP.

(a) Sydney Harbour is to be recognised as a public resource, owned by the public, to be protected for the public good.
(b) the public good has precedence over the private good whenever and whatever change is proposed for Sydney Harbour or its foreshores.
(c) protection of the natural assets of Sydney Harbour has precedence over all other interests.

10 The REP contains eight zones for the water surface of Sydney Harbour. Double Bay is zoned partly W1 and partly W5, both of which permit commercial marinas with consent.

11 The Sydney Harbour Foreshores and Waterways Area Development Control Plan (the Sydney Harbour DCP) contains detailed guidelines for marinas. Among other things, the DCP contains a method for undertaking a visual impact assessment for marinas. Figure D4 is an Example of a Completed View Analysis Matrix.

12 The Woollahra Development Control Plan for Off-Street Car Parking Provisions and Servicing Facilities (the Parking DCP) applies. If the DCP were applied to this proposal, it would require 34 parking spaces.

13 The Woollahra Local Environmental Plan 1995 and the Residential Development Control Plan 2003 are not relevant.

Matters in contention

14 The council submitted its Statement of Contentions listing nine aspects of the dispute, ie

· ecological impacts;

· wave environment;

· visual impacts;

· heritage impacts;

· traffic and parking impacts;

· equitable use of the waterway;

· noise impacts;

· health and safety and;

· the public interest.

15 The Tudehope objectors submitted their own Statement of Contentions, which adopted the council’s and added one further objection, namely that the proposed marina will have an unreasonable impact when viewed from the waterway.

16 During the hearing it became clear that the matters in contention could be reduced to the following:

· ecological impacts, including wave action;

· traffic and parking impacts;

· navigational safety;

· visual impacts, including heritage impacts; and

· the public interest.

The objectors’ concerns

17 The Court viewed the dwellings of 14 objectors during the visit to the site. Mr R Wood and Ms V McFadden, who live at 16 Castra Place, object to the marina’s expansion. The proposal contributes to siltation; it will cause loss of biodiversity, traffic and parking demand will increase; its expansion is excessive; there is a 46% increase in the size of boats (and therefore their bulk); there are no sailing boats; they will not be able to see Clark Island and there will be an impact on their privacy.

18 Dr B Ireland, who lives at 12 Castra Place, said that the mud flats outside his property are heavily contaminated and will be disturbed by dredging; the traffic and parking will get worse and the sewage pump-out system could be a danger. Mr R McLean, who lives at 10 Castra Place and whose place directly adjoins the area for repair, said that he would agree to the marina being re-built within the same envelope but not in a significantly expanded one. He was concerned about public safety, the more than doubling of the marina’s footprint; the dredging of contaminants; and the increase in traffic and parking. Mr J Ind, who lives at 6 Castra Place and adjoins the marina to the west, said that his objects to the filling in of water area and the loss of his view of Clark Island. Mr N Pongrass, who lives at 2A Castra Place and who represented himself in the proceedings, said that the RL of his property was lower than that of the adjoining property, so that the boats parked in the proposed marina will cut out most of his view. He also challenged the accuracy of the photomontages.

19 Mr J and Mrs M Caridad, who live at 36 Stafford Street, are concerned about the impact on traffic and on views. The proposed marina is too big for a relatively small bay. Mr C and Mrs S McKean, who live at 2/20 Stafford Street and who own two apartments in the building, said that they were concerned with the impact on their view, which also affects the view from the public beach in front of them. Mr J Graham, who lives at 6/22 Stafford Street and who is the chairman of the company-titled apartment building, said that the marina was already too big. He was also concerned about subsidence, fatigue of sewer pipelines, lack of parking and no room being left for other jetties. Mr B Johnson, who lives in apartments 1 and 2/24 Stafford Street, said that he objected to the impact on his views and the natural environment. Mr K Weiss, who lives at 1/2 Beach Street, said his main objection is to the view impact. He agreed that the view towards Manly would not be affected. Ms E Tudehope, who lives at 3 Beach Street, while objecting to the impact on her private views, was more concerned on the impact on the bay and the loss of what she called a serene foreshore. Mr P Annand, who lives at 1/13 Gladswood Gardens, objected to the impact on the bay, which would change from a bay to a boat park. It was not so much a blocking of the views but a change for the worse in the quality of the view. Mr A Roberts, who lives at 11A Gladswood Gardens, and who was represented by Mr A Buchert, is concerned with the size of the boats and the consequential impact on visual amenity.

20 Two more objectors gave evidence in Court. Mr M Young, who lives at 10 Pine Hill Avenue, and who has a swing mooring that would require to be moved if the proposed marina were built, said that he fears for the loss of his mooring. Mr N Richard, the Boat and Service Officer of NSW Maritime, assured the Court (and thereby Mr Young) that no private moorings would be lost as a result of the marina development. Mr M Fraser-Holmes, who lives at 1/3 Gladswood Gardens, said that he has been a user of Double Bay for a long time for sailing, said that he believes he would be less safe in his sailing activities as a result of the marina proposal.

21 All the concerns of the objectors are covered by the council’s contentions and are discussed below.

Ecological impacts including wave action

22 The Court heard the evidence of Dr M Lincoln Smith, an aquatic ecologist retained by the council; Dr D Treloar, a coastal engineer retained by the council; Mr W Rooney, an aquatic ecologist retained by the applicant; Mr G Blumberg, a coastal engineer retained by the applicant; and Dr S Taylor, an expert in geochemical assessment retained by the applicant.

23 In their joint report the experts identified eight areas of concern, of which they agreed that seven are resolved either by discussion, by an amendment to the design of the floating breakwater or by the inclusion of conditions of consent. The remaining issue is the paucity of sampling to indicate the concentration of copper in the area to be dredged.

24 The samplings that did take place indicate a copper concentration of 6.5g/l. The acceptable level of concentration is 1.3g/l. The concentration in the Harbour generally is 1.35-1.98g/l. In Dr Lincoln Smith’s opinion, the applicant should undertake further samplings to indicate copper concentration. Mr Rooney disagrees, on the basis that, while the copper concentration is high and well above recommended standards, it is likely to be the result of the nearby drainage outfall and unconnected to the presence of the marina. Dr Taylor adds the observation that the renewal of the marina will not affect copper concentration.

25 It seems to me that further samplings are likely to confirm that the copper concentration to the east of the existing marina is high. If this fact was indeed the result of untreated drainage coming from the council’s drainage outlet (which is likely though not proven), it would not justify the refusal of the application. There is therefore no point in requiring further samplings. As a general principle, one should not require more information unless that information is crucial to a decision.

26 I turn to the impact of increased wave action. Mr Blumberg and Dr Treloar agreed that increased wave action would lead to the reduction of the beach by 2-3m at a point about 40m west of the marina and the widening of the beach further east. The net effect, however, is a reduction in width. This is undoubtedly a negative effect of the proposal. In view of the fact that the Mean High Water Mark changes over time as a result of natural forces, I do not consider it a major negative. If it were the only negative outcome of the proposal, it would not be sufficient to justify its refusal.

Traffic and parking impacts

27 The applicant’s traffic expert was Mr C Hallam, while the council’s was Ms A Levy, both of them traffic engineers. It was common ground between them that the Parking DCP would require in excess of 30 parking spaces as well as a loading area. Given that the proposal does not provide any parking or loading area, the question is whether this shortcoming justifies refusal.

28 Mr Hallam’s argument is that the renovation of the marina would not increase demand for parking and loading. It the existing marina now causes inconvenience to the nearby residential area, that inconvenience would not become any greater. On the other hand, a refusal of the application would not reduce the inconvenience.

29 Ms Levy argues that the casual moorings would increase parking demand; however, this is not her main point since, even if her contention was correct, the additional parking demand would be minor relative to that generated by the existing marina. Ms Levy’s main point is that the application is for a new marina and should therefore comply with the Parking DCP. In support of her argument she cited the example of a new apartment building. If a new apartment building is built on the site of an existing one that provides no parking; the council would require it to comply with the current parking code.

30 There is a flaw in Ms Levy’s argument. A new apartment building can provide on-site parking by digging underground. The renewed marina cannot do so. While the applicant has offered to acquire parking spaces in the parking station at the corner of Cross Street and New South Head Road, in my opinion, this is not a good solution, since it permanently removes spaces from a public parking station for the use of boat owners who might use them only rarely. If, however, the boat owners use the parking station on a casual basis, those spaces are available to the public at other times.

31 It is clear that the existing users of the marina now make their arrangements for parking for better or for worse. These arrangements may be inconvenient to them and also inconvenient to nearby residents. The approval of the application would not increase the inconvenience. Its refusal would not reduce it. Planners and traffic engineers should accept that some situations just do not lend themselves to a neat and tidy solution.

32 In my opinion, the lack of parking and loading is not a reason for refusing the application.

Navigational safety

33 The Court heard the evidence of Mr P Burge, a marine engineer retained by the council and Mr H Bersten, a consultant engineer retained by the applicant. The experts agreed that there were no issues of safety that justified refusal of the application.

34 Mr Bersten, who is the designer of the proposed marina, provided the Court with diagrams (Exhibit J and K) that showed the outlines of the existing marina, the proposed marina and the existing marina if it were extended to provide the existing number of berths to today’s requirements. In the latter case, the marina would have to be extended by 20m.

35 If the marina was extended in its existing configuration to today’s requirements and eleven swing moorings were incorporated, the length of the marina would be increased by 60m. Dredging of 8,300m3 of soil would be required, as against 4,800m3 in the current proposal. In addition, the dredging would extend over more area of seagrasses than it does in the current proposal.

36 Mr Bersten told the Court that a swing mooring requires ten times more area of water than a marina berth.

Visual and heritage impacts

37 The visual impacts are clearly the major issue of the proceedings. As regards heritage, the Court received the joint report of Ms L Thom, the council’s heritage officer, and Mr R Power, a heritage consultant retained by the applicant. The main heritage issue appears to be the impact on Clark Island, which is a heritage item on the Sydney Harbour REP. Clark Island is more than 1km away from the marina and it seems to me absurd for the council to pretend, in its eagerness to add another matter to an already long list of contentions, that the proposal would have any impact on it. The heritage experts were not required for cross-examination (even though they disagreed on every important contention), which seems to me a confirmation of the fact that there is no genuine heritage issue in this case.

38 The experts on “visual impact, loss of views and equitable use of the waterway” were Dr R Lamb, a visual analyst retained by the applicant; Mr T Moody, a planner retained by the council; and Mr D Chesterman, an architect planner retained by the Tudehope objectors. In fact the experts dealt only with loss of views and visual impact. I do not think that anyone (including me) understood what the equitable use of the waterway meant.

39 Of the three experts only Dr Lamb carried out a view analysis as described in Figure D4 of the Sydney Harbour DCP. Mr Moody considered the recommended method without strictly applying it, while Mr Chesterman rejected the method as pointless. In the event, little turns on the different approaches taken by the three experts, since the results of their visual analysis are similar. They agree that the impact on the views from the ground floor of the single houses between the marina and the private jetty at the end of Beach Street is high, as the proposed marina would eliminate the views of Clark Island, and in some cases of Darling Point and Manly as well. They also agree that the view impact on the intertidal beach in front of these houses is high. As for the apartment buildings between the marina and the private jetty, Dr Lamb assessed the impact as moderate, while the other two assessed it as high. Having visited the houses and apartments, I do not understand why Dr Lamb differentiates between them: I found the impact very similar. I note that some of the houses have upper floors (albeit not used as living areas) from which the views would be less affected, while the apartments do not have upper floors. This suggests that the impact on the apartments would be worse.

40 The conclusions, however, that the experts draw from similar evaluations of view impact are very different. This is particularly evident in the weight they attribute to the view loss from the intertidal beach, which all of them assessed as high. Dr Lamb attributes “lesser” weight on the grounds that the intertidal beach is hard to access and that the few people who use it are residents who live behind it. Mr Chesterman gives the view loss from the intertidal beach major weight on the grounds that it is an “important public resource for the apartment dwellers behind it” and that it “provides a unique experience for the general public”. Mr Moody considers the intertidal beach to be “a scarce resource” and “highly valued”.

41 While there is no agreement on the number of dwellings with high view loss, the experts agree that it is between ten and twenty.

42 Mr Chesterman and Mr Moody think that there is also an impact on the character of Double Bay, which has nothing to do with view loss. According to Mr Chesterman, the Bay “now has an intimate scale, of which the existing marina and swinging craft are part”. In his opinion, “the grouping of boats in the manner proposed creates large visually solid elements in the Bay that are very different to the visually permeable line of boats that is in it at present”. He believes that “this would be out of scale and character”.

The public interest

43 In the following discussion the terms public interest, public good and public benefit are used interchangeably.

44 As quoted in paragraph 9, cl 2(2)(b) of the Sydney Harbour REP states that, in the assessment of any proposed change for Sydney Harbour and its foreshores, the public good has precedence over the private good. Pursuant to s79C(1)(e) of the EPA Act the public interest is a matter for consideration in the evaluation of all development applications. While it is one thing to draft legislation requiring a consent authority to take into account the public interest among a host of other considerations, it is quite another (and much more difficult) to define what the public interest is in a particular case and to know what weight to give it among the factors that influence a planning decision. Since in these proceedings there are competing claims whether the renewed marina constitutes a public benefit, it is useful to discuss the nature of the public interest and the ways in which it may be taken into account in the evaluation of a development proposal.

45 A 1985 judgment of the High Court (Australian Central Credit Union v Corporate Affairs Commission South Australia 157 CLR 201-214 at 208) deals with the definition of the public, though not in the context of planning decisions but in that of a public offer made to members of a particular credit union.

The question whether a particular group of persons constitutes a section of the public for the purposes of s5(4) of the (Companies (South Australia)) Code cannot be answered in the abstract. For some purposes and in some circumstances, each citizen is a member of the public and any group of persons can constitute a section of the public. For other purposes and in other circumstances, the same person or the same group can be seen as identified by some special characteristic which isolates him or them in a private capacity and places him or them in a position of contrast with a member or section of the public.

46 The judgment concludes that members of a particular credit union are identified by a special characteristic that isolates them in a private capacity. Although there were 23,000 members, they did not constitute a section of the public.

Planning principle: discerning the public interest in development applications

47 Consideration of the public interest may usefully be broken into three steps: defining the public whose interest is being invoked; defining the benefit towards which a proposal claims to make a contribution (or from which it is claimed to detract); and making explicit the weight given to the public interest relative to other considerations.

48 “The public” is an amorphous term. Like “locality”, it requires redefinition in every case. At its broadest (for example when impacts that have no borders, such as pollution are considered), the public may be all people in the world. At its narrowest, the public may be the people who live or work in a locality or a business centre or use a public facility, such as a park or a beach. At mid-level, the public may be the residents of a suburb, a local government area or a city.

49 Councils often confuse the public interest with the complaints of individual objectors. In most cases the interest of objectors is a private interest. The fact that the number of objectors is large does not, by itself, render their interest public. For the interest of objectors to be equated with the public interest, the objectors must be identifiable as a section of the public as described above. The fact that their number may be small (for example the users of a park), does not deny the public nature of their interest.

50 The next step is to make explicit the benefit to which a proposal contributes or from which it detracts. Where the benefit or detriment can be quantified, this should be done; however, not all benefits lend themselves to accurate measurement. Moreover, not all benefits are universally recognised as benefits. In the case of some benefits there is likely to be general agreement that they are benefits. For example, everyone would agree that reducing the risk of traffic accidents is a benefit. Hospitals, nursing homes and schools, whether public or private, are usually considered a public benefit. When it comes to changing a view composed of natural elements of the landscape into one dominated by man-made elements, the benefit-detriment debate becomes less clear-cut, though most people would prefer natural landscapes. However, when it is a question of a new building replacing an old one, opinions may split evenly on whether this is desirable or undesirable. Where there are competing and feasible claims whether a proposal contributes to or detracts from the public interest, there is no option for the decision-maker but to make a subjective choice between them.

51 The final and most difficult step is the ranking of the various interests. This may require weighing one public interest against another or balancing the public interest against private interests. Although only few planning instruments contain a statement that the public interest is paramount, in planning decisions, other things being equal, the public interest overrides the private interest. However, other things are rarely equal, and where a public detriment is minor, a major private benefit may take precedence over it.

52 The hardest conundrum occurs when the decision-maker must choose between competing public interests. For example, does the public benefit of a wind farm producing renewable energy justify the public detriment of covering a scenically beautiful area with turbines? In these cases decision-makers cannot avoid making value judgments but they owe it to the readers of their judgment to make the value judgments explicit.

Applying the planning principle to this case

53 It is common ground between the parties that the loss of views from the intertidal beach between the marina and the private jetty at the end of Beach Street constitutes a diminution of the public interest, in other words it is a public detriment.

54 The parties disagree, however, whether the loss of views from the ground floor of dwellings between the marina and the private jetty is a public or a private detriment. In my opinion, the loss of these views is a private detriment. The owners or occupants of those dwellings do not constitute the “public” or even a “section of the public”. They are a collection of private interests.

55 There is also disagreement whether the application itself (including its absorption of eleven swing moorings) contributed to the public interest. The applicant argues that the marina, being a commercial marina open to anyone who wants to buy a berth in it, is in the public interest. The applicant finds support in this contention in the Sydney Harbour REP, which appears to favour commercial marinas over private marinas. For example, the REP defines commercial and private marinas separately and makes commercial marinas permissible in four of the eight zones used in the REP, while private marinas are permissible in just one zone. In addition, the Sydney Harbour DCP contains a statement (page 28) that recognises commercial activities within some parts of the Harbour as providing an important recreational resource and improving public enjoyment of the Harbour.

56 In support of its contention that the renewal of the marina represents a private interest, the council tendered the Articles of Association of the applicant company. Even without the Articles of Association (which seem little different from those of other private business organisations) it seems clear that the application serves a private rather than the public interest. The berths will be available for purchase under Strata title. This is no different from an apartment building. I accept, however, that a minor part of the application, the provision of disabled facilities, is in the public interest.

57 The applicant contends that the inclusion of eleven swing moorings in the renewed marina is in the public interest. This is because a boat in a marina berth occupies a tenth of the water surface of a boat on a swing mooring. The conversion of swing moorings into marina berths therefore increases the area of water available for navigation. Against this is the consideration that the visual impact of a swing-moored boat is much less than that of a boat berthed in a marina (see Figure D1 on page 69 of the Sydney Harbour DCP). Therefore if one considers ease of navigation more important than visual impact, the conversion of swing moorings to marina berths is a public benefit; while, if one adopts the opposite position, it becomes a public detriment.

58 In summary, the competing public and private interests may be defined as follows:

· view loss from the intertidal beach, which is a public detriment;

· the provision of disabled facilities in the renewed marina, which is a public benefit;

· the significant loss of views of ten to twenty dwellings behind the intertidal beach, which is a private detriment;

· the provision of improved mooring facilities for the future users of the existing marina, which is a private benefit.

59 It seems to me that the two matters that determine the fate of this application are the weight one gives to the loss of views from the intertidal beach and the balancing of the private benefit of better boat accommodation against the private detriment of view loss from the dwellings behind the intertidal beach.

60 In my opinion, the public interest of preserving the views from the intertidal beach, because of its low accessibility, should be given moderate weight. Even so, it outweighs the public benefit of providing disabled facilities in the new marina, which is likely to be used by a very small number of people.

61 The nature of the benefit and detriment greatly influences the balancing of the private interest of boat owners against the private detriment of the occupants of the affected dwellings. The interest of boat owners is to have more up-to-date accommodation for their boats. The detriment to the occupants of the dwellings is to deprive them of their water view, which is probably the amenity they value highest in their dwelling. It seems to me that better accommodation for one’s boat is a convenience, whereas the loss of water views is a devastating (and, in a waterfront dwelling, unexpected) experience.

62 I am strengthened in my conclusion by Mr Chesterman’s and Mr Moody’s evidence, which I found persuasive, that the renewed marina is not in sympathy with the small-scale and permeable visual character of the Bay. Mrs Tudehope, together with other objectors, also conveyed this opinion.

63 Mr Bersten’s evidence suggests that a new marina within the existing footprint extended by 20m would accommodate the existing 40 boats to today’s requirements. From his point of view this would be suboptimal because the boats would continue to be moored in an east-west direction. More dredging would be required and possibly more seagrasses would be disturbed. The visual impact would, however, be minor and for anyone for whom the appearance of the Bay prevails over the convenience of boat owners, this would be a preferable solution.

Conclusion

64 In the final analysis, the decision comes down to the balancing of the convenience of the users of the marina against the maintenance of views and the preservation of the small-scale permeable visual character of the Bay. In my opinion, the latter interests should prevail. The appeal is therefore dismissed.

Orders

1. The appeal is dismissed.

2. Development application to redevelop the existing marina at Castra Place, Double Bay is determined by refusal.

3. The exhibits are returned.

____________________
Dr John Roseth
Senior Commissioner