Enares Pty Ltd v City of Canada Bay Council

[2022] NSWLEC 1375

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Enares Pty Ltd v City of Canada Bay Council [2022] NSWLEC 1375

Hearing dates:

12-13, 16-18 May 2022

Date of orders:

19 July 2022

Decision date:

19 July 2022

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders:

(1) The Appeal is dismissed.

(2) Development Application No. 2019/0380 for alterations and additions to a marina at 380 Victoria Place, Drummoyne (Lot 1 in DP 549352, Lot 1 in DP 430123 and Lot B in DP 410843) and adjoining area within the waterway of the Parramatta River within Part of Volume 5081 in Folio 1, is refused.

(3) The following exhibits are returned: Exhibits 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, D, F, G, H, J, K, L, M, N, O, P. The remaining exhibits are retained.

Catchwords:

DEVELOPMENT APPLICATION – expansion of existing marina – visual impact – public vs private interests – demand – parking – heritage conservation

Legislation Cited:

Canada Bay Local Environmental Plan 2013, cll 2.5, 6.1, 6.2, 6.3, 6.4 6.13

Environmental Planning and Assessment Act 1979, ss 4.5, 4.10, 4.17, 4.46, 8.7, 8.15

Fisheries Management Act 1994

Protection of the Environment Operations Act 1997

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 10.1, 10.9, 10.11, 10.12, 10.13, 10.14, 10.15, 10.20, 10.22, 10.23, 10.24, 10.25

State Environmental Planning Policy (Planning Systems) 2021

State Environmental Planning Policy (State and Regional Development) 2011

Sydney Harbour Boat Storage Strategy 2013

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Cases Cited:

Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245

Rose Bay Marina Pty Limited v Woollahra Municipal Council and anor [2013] NSWLEC 1046

Tenacity Consulting v Warringah [2004] NSWLEC 140

Texts Cited:

Sydney Harbour Boat Storage Strategy 2013

Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005

Health of the Australian Marina Industry Survey 2021

Category:

Principal judgment

Parties:

Enares Pty Ltd (Applicant)
City of Canada Bay Council (Respondent)

Representation:

Counsel:
A Galasso SC and C Novak (Applicant)
M Wright SC (Respondent)

Solicitors:
Dentons (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2021/192265

Publication restriction:

No

Judgment

1. Enares Pty Ltd (applicant) seeks development consent for alterations and additions to Gladesville Bridge Marina (the marina), the land-based component of which is located at 380 Victoria Place, Drummoyne. The development application (DA) lodged with City of Canada Bay Council (Council) has a reference number of 2019/0380.

2. As the proposal is regionally significant development, the Sydney Eastern City Planning Panel (Panel) is the consent authority under s 4.5 of the Environmental Planning and Assessment Act 1979 (EPA Act). The Panel refused the development application in its determination of 17 June 2021. These proceedings are an appeal brought by the applicant under s 8.7(1) of the EPA Act against this determination. Council is the first respondent to the appeal by virtue of s 8.15(4) of the EPA Act, albeit subject to the control and direction of the Panel in connection with the conduct of the appeal.

3. I note that Save Gladesville Bridge Waterway Incorporated joined the proceedings as second respondent but subsequently filed a submitting appearance, save as to costs, dated 22 March 2022. Accordingly, it has taken no further direct part in the proceedings. A number of lay submissions were made on its behalf which are matters for consideration, as are other lay submissions.

Site and locality

4. The site comprises both land-based and water-based areas in the environs of the southern foreshore of the Parramatta River, west of the Gladesville Bridge and east of Five Dock Point, the latter is identifiable as being occupied by the former Gladesville Bridge southern abutments.

5. The land-based area (380 Victoria Place, Drummoyne) comprises: Lot 1 in DP 549352, Lot 1 in DP 430123, Lot B in DP 401843, and has an area of 1740m². The land-based area is quite level and situated at approximately 2m Australian Height Datum (AHD). It is separated from Victoria Place by a 6m high retaining wall. The land-based area of the site is otherwise presently occupied by:

• A three-storey building containing a marina office, kiosk, engineering workshop and shipwright workshop (Ground Floor), commercial offices (First Floor), and two private residential apartments (Second Floor). Garage parking for three cars and pedestrian access for the apartments is from Victoria Place.

• A slipway to the south of the marina building which provides services, which include antifouling, boat services and painting.

• Parking for five cars (in a stacked arrangement) at the marina level.

Figure 1 - Site and surrounds (Source: Image 1 of Visual Impact Assessment Ex C Tab E)

6. The water-based area of the site is identified as Part of Volume 5081 in Folio 1, being part of Sydney Harbour. It is identified in drawing no. 21-27558-K300, Ex B Tab 38. The water-based area of the site is administered by Transport for NSW (TfNSW) and is subject to lease arrangements with the applicant. Within the lease area are:

• A floating pontoon and walkways extending east from the land-based component servicing 50 permanent floating berths, ranging in size up to 18m. There are also temporary berths and temporary pump out berths.

• 44 swing moorings located further to the east, leased and managed by Transport for NSW.

Figure 2 - Site and environs highlighting existing marina building, existing marina berths and existing swing mooring area (Source: Exhibit B Tab 9 Figure 3)

7. The marina offers services including a tender for the marina swing moorings, dinghies for after-hours use, pump out facilities and work berths.

8. The land-based area is accessed via a concrete switchback vehicular accessway and stair structure down from Victoria Place. These structures are entirely contained within Crown Land, legally described as Lot 7058 in DP 94083.

9. The locality is characterised by the Parramatta River waterway, Gladesville Bridge and a mix of mostly large detached dwellings and medium density residential development. The zoning is generally medium density residential. Many of the residential properties fronting Victoria Place have waterfrontages and jettys and/or swimming pools to the waterside. At the end of Victoria Place and north and north-west of the site is Howley Park, located on Five Dock Point.

Proposal

10. The DA involves both on-water and on-shore development. I will commence with the former.

11. The DA seeks to increase the number of permanent commercial berths from 55 (50 floating and five onshore) to 109 (floating). A public destination berth is also proposed. Spaces are also indicated for marina tenders. These works would involve removal of selected pontoons and piles and installation of new marine piles and construction of floating pontoons and walkways. See Figure 3 for the concept layout.

Figure 3 – Concept layout (Source: Exhibit C Tab A)

12. The proposal also indicates the size of vessels which would be accommodated. The vessel lengths range from 45m to 10m. See Table 1, which lists the range of vessel lengths indicated. Height above the pontoon level (for both the superstructure and fly bridge) for most of the vessels were also indicated (as per a schedule of boat heights and lengths tendered by the applicant and marked as Ex N).

Table 1 - Profile of proposed vessels to be berthed (source: Ex C Tab A and Ex N)

Length (m)	Number	Indicative superstructure height (m)	Indicative fly bridge height (m)
10	5	1.85	2.5
12	17	2.15	3
15	20	2.5	4
17	16	3.5	4.5
18	5	3.8	4.5
20	33	4.3	5.1
24	1
25	3	4.5	6
30	7	5.5	6.8
35	1	6.5	8
45	1	7.5	9
Total	109

13. The proposal would also reduce the number of commercial swing moorings available from the marina from 44 to 15.

14. The proposal seeks to reconfigure the swing mooring arrangements to the east of the existing marina, more generally. These changes to swing moorings are nominated in the agreed conditions of consent filed on 20 May 2022 (without prejudice) but are subject to the approval of TfNSW. The proposed reconfiguration is shown in the mooring plan (source as per without prejudice consent conditions: drawing no. 21-27558-K205, Rev A, dated 23 September 2019 prepared by GHD, Ex B Tab 38) an excerpt of which is provided below at Figure 4. According to the coding indicated in the swing mooring plan itself, the changes are as follows:

• Removal of 24 commercial swing moorings as shown in red on mooring plan.

• Retention of 15 commercial swing moorings as shown in green.

• Conversion of 5 commercial swing moorings to private swing moorings as shown in purple.

• Relocation of 5 private moorings shown in yellow.

• Relocation of 1 police mooring shown in light blue.

Figure 4 – Mooring plan – moorings marked red would be removed (source: Ex B Tab 38)

15. Other aspects of the on-water proposal included:

• Identification of a holding area, under Gladesville Bridge to the immediate east of the marina for vessels departing the marina and approaching the main channel (an area of about 100m x 70m were indicated in Ex H).

• Provision of a 15m long pump out berth and fifteen (15) pump out stations.

• Identification of possibility for kayaks (used by the public) to pass under the gangway connecting the pontoon to the land.

16. The land-based aspects of the DA provide for:

• Removal of the slipway rails and cessation of slipway activities.

• Removal of the five, at grade, car parking spaces, with this area to be used for access to a car parking stacker system.

• Provision of a 20-space mechanical car stacker, along the southern boundary of the site, partly within the existing workshop building, but extending out some 8m to the east over the existing slipway.

• Brick enclosing walls to the north and south and roller door to the east with concrete roof over the car stacker.

• Provision of a “neighbourhood shop” with a gross floor area of 30m² within the existing building at the marina level.

• Provision for waste storage and removal.

17. There would be other minor although generally uncontroversial other changes to the existing building. Overall staffing comprises 12 persons for the marina and neighbourhood shop. It is indicated that this would be consistent with the present.

18. The northern wall of the existing marina building more or less coincides with the northern boundary of the site. The plans show the five (existing) carparking spaces immediately adjacent to the site’s northern boundary, which are located on the adjacent Crown Land, immediately north of the site. In the plans, the westernmost of these spaces is marked as a shared area, alongside is a dedicated space allocated for use by persons with a disability. Immediately to the east of these, now four, parking spaces an area marked “deliveries” is indicated (Ex C Tab A General Arrangement Plan - Ground).

Proceedings

19. The proceedings commenced with a site inspection. Oral submissions from objectors were heard, with notes on this lay evidence marked as Ex 14. The site inspection included visits to public vantage points in the vicinity of the proposal along with several properties fronting Victoria Place and backing onto the waterway in the site environs. East and west bound trips on the local public ferry service which traversed the site environs were also undertaken. On occasions during the site inspection, the visual and heritage experts in particular drew the Court’s attention to certain points.

20. While there were considerable documentary specialist evidence tendered, the experts providing oral testimony in the proceedings were as follows:

Name	Expertise	Engaged by
A Rowan	Visual analysis	Applicant
C Lorimer	Visual analysis	Respondent
C Swan	Town planning	Applicant
K Mackay	Town planning	Respondent
C Hallam	Traffic and parking	Applicant
McLaren	Traffic and parking	Respondent
S Davies	Heritage conservation	Applicant
K Higgins	Heritage conservation	Respondent

Planning provisions

21. The proposal is designated development under s 4.10 of the EPA Act and regionally significant development under State Environmental Planning Policy (State and Regional Development) 2011 (SEPP SRD 2011) – now Chapter 2 of State Environmental Planning Policy (Planning Systems) 2021. There is no dispute that the relevant procedural steps, including in relation to public participation, have been undertaken. The proposal is also integrated development under s 4.46 of the EPA Act, requiring approvals under the Protection of the Environment Operations Act 1997 and Fisheries Management Act 1994. General terms of approval have been provided by the relevant authorities with respect to each.

Canada Bay Local Environmental Plan 2013

22. The land-based component of the site is zoned R3 Medium Density Residential under Canada Bay Local Environmental Plan 2013 (CBLEP). A marina is permissible in accordance with cl 2.5 (additional permitted uses for particular land). A neighbourhood shop is permissible in the zone under the land use table. The Zone R3 Medium Density Residential objectives are:

•  To provide for the housing needs of the community within a medium density residential environment.

•  To provide a variety of housing types within a medium density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

23. Clauses 6.1, 6.2, 6.3 and 6.13, relating to acid sulfate soils, earthworks, environmentally sensitive land and aircraft noise all require consideration. In this instance, I accept the position taken by Council that the matters do not give rise to reason to refuse the application (First Respondents Written Submissions filed 20 May 2022 par 22). Clause 6.4 (Limited development on foreshore area) is in contention, with Council arguing that the proposed building extension would not be compatible with the surrounding area.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 – Chapter 10 Sydney Harbour Catchment

24. The water-based component of the proposed development had until recently fallen under the jurisdiction of Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, with much of the written evidence referencing this now superseded instrument. The relevant controls are now at Chapter 10 of State Environmental Planning Policy (Biodiversity and Conservation) 2021, which is headed: Sydney Harbour Catchment. I will henceforth refer to this section of the instrument as SEPP-SHC.

25. Section 10.1(1) of SEPP-SHC outlines the Chapter aims, as follows:

(a) to ensure that the catchment, foreshores, waterways and islands of Sydney Harbour are recognised, protected, enhanced and maintained—

(i) as an outstanding natural asset, and

(ii) as a public asset of national and 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 an 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.

26. Section 10.1(2) then adopts certain principles for the purpose of enabling the above aims, as follows:

(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.

27. Part 10.2 is titled “Planning principles”. Section 10.9 within this Part nominates two objectives:

(1) The objective of this Part is to provide a set of clear planning principles for land within the Sydney Harbour Catchment.

(2) These principles are to be considered and, where possible, achieved—

(a) in the preparation of environmental planning instruments and development control plans under Part 3 of the Act, and

(b) in the preparation of environmental studies and master plans for the purposes of the Act.

28. The site falls within the Foreshores and Waterways Area as defined (via Foreshores and Waterways Area Map). I list below the nominated planning principles relating to the Foreshores and Waterways Area (s 10.11). These matters are also nominated as planning principles for these areas at cl 1.1 of the Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005 (see [33] et seq).

The planning principles for land within the Foreshores and Waterways Area are as follows—

(a) development should protect, maintain and enhance the natural assets and unique environmental qualities of Sydney Harbour and its islands and foreshores,

(b) public access to and along the foreshore should be increased, maintained and improved, while minimising its impact on watercourses, wetlands, riparian lands and remnant vegetation,

(c) access to and from the waterways should be increased, maintained and improved for public recreational purposes (such as swimming, fishing and boating), while minimising its impact on watercourses, wetlands, riparian lands and remnant vegetation,

(d) development along the foreshore and waterways should maintain, protect and enhance the unique visual qualities of Sydney Harbour and its islands and foreshores,

(e) adequate provision should be made for the retention of foreshore land to meet existing and future demand for working harbour uses,

(f) public access along foreshore land should be provided on land used for industrial or commercial maritime purposes where such access does not interfere with the use of the land for those purposes,

(g) the use of foreshore land adjacent to land used for industrial or commercial maritime purposes should be compatible with those purposes,

(h) water-based public transport (such as ferries) should be encouraged to link with land-based public transport (such as buses and trains) at appropriate public spaces along the waterfront,

(i) the provision and use of public boating facilities along the waterfront should be encouraged.

29. Part 10.3 of SEPP-SHC is specifically concerned with the Foreshores and Waterway Areas and is applicable. Division 1 is concerned with development control. The water-based component of the site is zoned W1-Maritime Waters under s 10.13 of Chapter 10. Before listing zone objectives, s 10.14(2) provides as follows:

Except as otherwise provided by this Chapter, the consent authority must not grant development consent to any development unless satisfied that it is consistent with the aims of this Chapter and the objectives of the zone in which it is proposed to be carried out.

30. The aims of the “Chapter” are at [25]. The objectives of the W1 zone are:

(a) to give preference to and protect waters required for the effective and efficient movement of commercial shipping, public water transport and maritime industrial operations generally,

(b) to allow development only where it is demonstrated that it is compatible with, and will not adversely affect the effective and efficient movement of, commercial shipping, public water transport and maritime industry operations,

(c) to promote equitable use of the waterway, including use by passive recreation craft.

31. Commercial marinas are permissible with consent under s 10.15.

31. Division 2 of Part 10.3 provides matters for consideration before granting consent to a development application. These matters are best itemised in the consideration of the issues.

Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005 (DCP-SHFW)

33. DCP-SHFW needs to be taken into consideration. As mentioned above, the same set of planning principles are listed as in s 10.11 of SEPP-SHC. In this instance, it is indicated that the principles have been established as part of an overall strategy “for guiding planning and development” (my emphasis) in the foreshore area.

34. Pertinent provisions in DCP-SHFW are included in:

• Part 3 – Landscape Assessment

• Part 4 – Design Guidelines for Water-Based and Land/Water Interface Developments

• Part 5 – Design Guidelines for Land-Based Developments.

35. I will refer to these provisions, relevantly, when considering the issues in dispute.

Issues

36. Council raised 17 contentions. There were also issues raised in lay (objecting) submissions which warrant particular attention. Following Council’s indication that some matters were no longer pressed, and with a general eye to minimising inefficiencies and duplication, I have aggregated the matters which I believe are most important in this case into four topics, as follows:

1. Visual impact (Council’s Contentions 1 and 2)

2. Public good (including equitable public access to the waterway (Contention 3) and certain matters raised in lay submissions).

3. Parking and issues relating to adjoining Crown Land (Contention 4 and 10)

4. Heritage impacts (Contention 6)

Visual impact

37. Council submits that the proposal is at odds with a number of the visual impact related provisions of SEPP-SHC and DCP-SHFW. It is argued that the proposal does not maintain, protect and enhance the scenic qualities and unique visual qualities of Sydney Harbour (a matter for consideration under s 10.23(b) of SEPP-SHC). It is also argued that the cumulative impact of the development would detract from the character of the waterways and adjoining foreshores (a matter for consideration under s 10.23(c) of SEPP-SHC). Provisions of DCP-SHFW were also called up, for example, Council submits (Ex 1 p 17):

The proposal is contrary to Part 4.7 Visual Impact, dot point 5 of (DCP-SHFW) as berthed vessels associated with the marina will block views from foreshore public open spaces and views to foreshore public open spaces from the waterway.

Policy

38. Matters for consideration under Part 10.3 of SEPP-SHC, relating to visual impact, include ss 10.23, 10.24 and certain provisions of s 10.25, see below:

10.23 Foreshore and waterways scenic quality

The matters to be taken into consideration in relation to the maintenance, protection and enhancement of the scenic quality of foreshores and waterways are as follows—

(a)  the scale, form, design and siting of any building should be based on an analysis of—

(i)  the land on which it is to be erected, and

(ii)  the adjoining land, and

(iii)  the likely future character of the locality,

(b)  development should maintain, protect and enhance the unique visual qualities of Sydney Harbour and its islands, foreshores and tributaries,

(c)  the cumulative impact of water-based development should not detract from the character of the waterways and adjoining foreshores.

10.24   Maintenance, protection and enhancement of views

The matters to be taken into consideration in relation to the maintenance, protection and enhancement of views are as follows—

(a)  development should maintain, protect and enhance views (including night views) to and from Sydney Harbour,

(b)  development should minimise any adverse impacts on views and vistas to and from public places, landmarks and heritage items,

(c)  the cumulative impact of development on views should be minimised.

10.25 Boat storage facilities

The matters to be taken into consideration in relation to boating facilities are as follows—

(a) development should increase the number of public boat storage facilities and encourage the use of such facilities,

…

(e) boat storage facilities should be as visually unobtrusive as possible,

...

39. Part 3 of DCP-SHFW recognises the differing landscape characteristics around Sydney Harbour and outlines a set of landscape character types. The visual experts agree that the site and its environs is best characterised as Landscape Character Type 16 under Part 3 of DCP-SHFW. The relevant particulars in relation to Landscape Character Type 16 in DCP-SHFW are as follows:

“i. Area

Landscape Character Type 16 applies to the dense residential areas of the Parramatta River including Fern and Drummoyne Bays.

ii. Statement of Character and Intent

These areas have a high degree of built form with waterside commercial, residential, and industrial development dominating the foreshore. The mix of uses provides a distinctive urban character which should be maintained. The intent for these areas is to encourage appropriate waterfront development while protecting the character and amenity of developed areas, foreshores and the shoreline.

iii. Performance Criteria

Any development within these areas is to satisfy the following criteria.

• remaining natural elements along the foreshore are preserved;

• public wharves and jetties are retained to enable continued maritime activities;

• visual continuity of elements such as beaches is maintained and generally not broken by development;

• design and mitigation measures are provided between potentially conflicting land uses to minimise noise and amenity impacts; and

• landscaped areas should be provided and incorporated with open space linkages where possible to minimise the contrast between built elements.”

40. Part 4.7 of DCP-SHFW provides a set of objectives and guiding principles, relating to marina development, which are to be considered in the assessment process. Of particular interest to me where the objectives and guiding principles relating to “visual impact” and “design and layout”.

41. The existing marina (notated as ‘Boatyard’) is identified on the Landscape Character Map of DCP-SHFW as a ‘Landmark’.

42. Appendix D provides guidelines on how to undertake a visual impact assessment for marinas.

Evidence

43. The presentation of visual impact evidence particulars is divided into two parts. The first part deals with the first point of substantive (rather than procedural) disagreement in the joint report of these experts (Ex 9). The topic is whether the proposal satisfies the statement of intent for Landscape Character Area 16 of DCP-SHFW. This particular topic is broader in scope and its examination provided for the explication of the impact assessment process by the experts. The second part of the presentation of visual impact evidence is concerned with individual viewer positions.

Setting the scene

Visual analysis documentation

44. There were both written and oral evidence from the visual analysis experts. The joint expert report prepared by the visual analysis experts (Ex 9) can be seen as providing a synthesis of the matters in contention between the parties. It refers to other important documentary evidence, although some material also came in following the date of completion of Ex 9.

45. Mr Rowan prepared a number of pieces of visual analysis documentation. I saw the visual impact assessment (VIA) dated 4 February 2022 (Ex C Tab E) as the base reference document used by Mr Rowan. It was supplemented by a set of photomontages from selected public and private viewer positions prepared by Arterra Interactive (Ex C Tabs F(i), F(ii) and F(iii)).

46. Mr Lorimer did not prepare an independent VIA. Rather he prepared a “peer review” of the VIA prepared by Mr Rowan as part of the Class 1 application. Mr Lorimer’s peer review work of this now superseded VIA, dated 2 June 2021, was at Tab 6 to Ex 2. Mr Lorimer indicated he had also reviewed the updated VIA and evaluated the changes. I can assume his commentary in the joint expert report (Ex 9) and his oral evidence, reflects his review of the updated VIA. I also note that Mr Rowan prepared a response to visual impact issues raised by Mr Mackay, dated 10 May 2022 (Ex G).

A number of points of agreement

47. Among other items, the experts agreed on these, for me, practically notable points: (1) that the existing marina is not seen as a detrimental feature within its foreshore context, (2) that the structure accommodating the car stacker, proposed on the southern side of the existing marina building, will not be readily visible from surrounding public domain vantage points or result in a visual impact on the waterway (Ex 9 par 61) (this for me essentially confined the visual impact considerations to on-water changes), and (3) on the identification of sensitive viewing locations, with one exception which is explained later.

48. Nonetheless there were of course many points of disagreement which I will come to.

Some overlap between visual impact and view impact evidence in this case

49. Council’s statement of facts and contentions (Ex 1) identified “scenic quality and visual impact” as Contention 1 and “view impact” as Contention 2. A kind of correlation can be seen here with the distinction between ss 10.23 (in short concerned with scenic qualities of foreshores and waterways) and 10.24 (concerned with views and vistas to and from Sydney Harbour) of SEPP-SHC. In their joint report (Ex 9), the experts followed this structure, nominally at least. However, I found overlap between the two topics in the evidence, as presented in Ex 9. I would understand that view impact is a subset of the broader topic of visual impact, and there is something of a “meshing” of the two contentions raised by Council in my consideration of this visual impact topic.

Whether the proposal satisfies the statement of intent for Landscape Character Type 16

50. The experts disagreed on whether the proposal satisfied the Statement of Intent for Landscape Character Type 16 of DCP-SHFW, which provides in part as follows (p 34):

“The intent for these areas is to encourage appropriate waterfront development while protecting the character and amenity of developed areas, foreshores and the shoreline.”

51. I found there to be clear points of distinction between the approaches adopted by the experts.

Joint expert report

52. Mr Rowan argued in his written evidence that the proposal would retain and add to the existing character. The proposal was not seen to impact on the character of the foreshore “as it retains the same setback of more than 60m from the foreshore as the existing marina” (Ex 9 par 64(b)). The impact of the proposal to the foreshore areas east of the existing marina would be “comparable to that of the existing marina upon the area of waterway upon which it is located” (ibid). Mr Rowan indicated that there was no requirement to retain all aspects to the foreshore, and that in any event foreshore aspect would generally still be available. In his oral evidence Mr Rowan highlighted the fact of Gladesville Bridge and Five Dock Point, and the “rising landform behind”, to suggest the proposed marina “nestled in” to its setting (Transcript 17/5/2022 p 225 Lines 18-27):

…You've got rising landform behind. The DCP tells us that the impact upon the waterway is much reduced where you have elevated landform in the background, compared to if it was a flat escarpment or flat land behind.

I think, also, the marina sits comfortably when you look at it from the north, between the bridge and Five Dock Point. It basically is contained by those two elements as you look across the water. I think, therefore, it sits comfortably. It nestles in, if you can use that word, into that context, and therefore it doesn't stand out when from the North. I accept, from the RiverCat, when you get closer, you will see the boats more strongly, but you are still viewing those boats against the built form on the south - southern and western foreshore, which, again, is acknowledged in the DCP as a desirable or preferred outcome, in terms of scale, texture, line and form. And on that premise, you are either having vessels obscuring vessels, where they’ve all..(not transcribable)..on the existing marina or you've got proposed vessels obscuring either built form or retaining walls on the edge of the foreshore.

53. I found that Mr Lorimer’s commentary on this topic in Ex 9 more directly followed the points itemised in Appendix D of DCP-SHFW at cl D1.5, essentially: “visibility”, “magnitude of change”, “level of visual harmony” (see bottom half of second column of p 71 of DCP-SHFW, and also the objectives and guiding principles for marinas relating to visual impact assessment at cl 4.7). Mr Lorimer’s consideration of magnitude of change, or level of visual contrast between the proposal and the existing, went explicitly to cl D1.5’s nominated topics of form, line, texture and colour. The discussion of “form” noted: (a) the extended massing (additional 59 craft to the existing 50 on water) and (b) the number of longer and taller vessels; establishing the significantly greater bulk and mass of the proposal when compared to the existing. He observes that (Ex 9 p17-18).

“…where the massing of additional vessels removes large areas of visible water surface on the river (as it does from several public views here) the magnitude of change and contrast is exacerbated. “

54. Mr Lorimer’s discussion on “line” focused on the extension of the marina eastward. He argued this new extended line of vessels affects the perception of the shoreline character from a number of viewer positions. Mr Lorimer’s discussion on “texture” drew a distinction between the existing number, scale and massing of vessels with that which was proposed. The existing tended to recede, visually, into the backdrop of the opposite shoreline, according to Mr Lorimer. But this texture would be changed from certain public viewpoints due to additional mass of vessels and the bulk of the larger vessels (Ex 9 p 18). The fact that vessels are commonly white in colour (and correctly shown as such in the VIA work of Mr Rowan) was exacerbating, due to its contrasting effect, especially on sunny days.

55. Mr Lorimer concluded that due to visibility and magnitude of change, the proposal would not be in visual harmony with the landscape character type of the adjoining area and would instead create a significant impact from certain public viewing positions. In turn his view was that the proposal does not protect the character and amenity of developed areas, foreshores and the shoreline, a consideration under s 10.24 of SEPP-SHC (Ex 9 p 18).

Mr Rowan’s additional evidence

56. In oral evidence (and in his VIA (Ex C Tab) and Ex 9 at times when referring to different viewing positions), Mr Rowan provided more general details on how he understood the visual character of the marina and environs at present, and how the proposal would be acceptable. These points, for me, were useful in the analysis of this sub-issue, including in terms of comparing arguments presented by these two experts. I draw on three additional points raised by Mr Rowan. First, was Mr Rowan’s drawing attention to more dominant landscape features in the setting and to the relatively modest scale of the proposal. He noted: (1) the fact of the Gladesville Bridge as a “monumental feature” (2) the scale of the “promontory of Five Dock Point” (Ex C Tab E par 132) and (3) the fact of the elevated landform above the shore (sometimes referred to as “escarpment”), with built form upon it, “rising” away from the shoreline. Comparably, the marina would be of a much smaller scale, occupying “a minor portion of the totality of the water within the setting” (Transcript 17/5/2022 p 223 Line 19). Still on this point, Mr Rowan argued that berthed vessels, when viewed from the water and the far shore, would sit in the context of this elevated built-up landform behind the marina, softening the visual effect.

57. Second, was my understanding that Mr Rowan believed the proposed marina and occupying vessels should not be thought of as an unattractive feature in this setting. I understand this belief was mostly related to the visual interest that would be presented (vessels themselves and perhaps associated activity). He believed that the existing marina was contributory for this reason (Mr Lorimer had agreed that it was not a detrimental feature in visual terms). It followed, that given the more dominant landscape features within which the proposal would sit, the expanded marina would provide added visual interest. In part at least, current views of the shoreline were not seen to be particularly contributory, and the obscuring of the shoreline was not necessarily problematic. Mr Rowan expressed a view that (some) existing shore-side buildings were “not particularly aesthetically attractive” (Transcript 17/5/2022 p 224 Line 15), and that heritage-listed buildings did not stand out from the northern side of the river, or from the Rivercat, as a fast-moving vessel. The proposal would be contained by and “sit comfortably” within the area framed by Gladesville Bridge and Five Dock Point (Transcript 17/5/2022 p 225 Line 15)).

58. Third, was Mr Rowan’s, in a sense at least, factoring in of the statement of intent’s “(encouragement) of appropriate waterfront development” (DCP-SHFW p 34 column 1). This point was also covered somewhat in his written evidence. Some of the arguments were brought together as follows (Transcript 17/5/2022 p 230 Line 25):

“… looking at a marina can be just as attractive as looking at an element of open waterway, because it adds activity and interest. So, as I see it, there's large areas of waterway retained in views, there's the 60 metre corridor between the private views and the marina. There's a balance and given, again, there is an expectation to encourage waterfront development there's an expectation that there will be an affectation of views from public and private locations. It's - it's inevitable in order to achieve that goal.”

Considering selected viewer positions

59. The experts considered impacts from eight public domain viewer positions and many more individual private properties. The experts indicated that in their work they were mindful of the Court’s planning principles in Rose Bay Marina Pty Limited v Woollahra Municipal Council and anor [2013] NSWLEC 1046 pars 39 – 59 (Rose Bay Marina) – concerned with impacts on public domain views.

60. After providing a table of the evaluated impacts from each expert, I focus on the evidence in regard to two, for me significant, public domain viewer locations where the expert findings were pointedly different (viewer locations 2 and 8). I note that low level impact, or near that, was agreed between the experts with respect to four of the other viewer positions (viewer locations 1, 5, 6, 7). Viewer location 4 for me was not as significant due to distance attenuation. While I believe there was significant impacts in regard to viewer location 3, for me this impact was not as significant as the other two viewer locations, given my findings in regard to viewer locations 2 and 8, I do not need to go to it.

Table 2 – Expert’s evaluation of visual impact from nominated public domain viewer locations (source: Ex 9)

Viewer Location	Mr Rowan	Mr Lorimer
1 Howley Park	Low	Slightly higher than low
2. Victoria Place	Low	Potentially moderate moderate/high
3. South Bridge Pylon – Cambridge Reserve	Low	Potentially moderate moderate/high
4. North Pylon Reserve	Low	Potentially moderate moderate/high
5. Betts Park	Low	Low
6. Huntleys Point Road	Low	Low
7. Huntleys Point	Low	At least moderate/low
8. Ferry Rivercat	Low	Potentially high

Viewer location 2

61. Viewer location 2 is a street edge location in Victoria Place at the opening near the Crown Land driveway down to the marina. It occupies an elevated vantage point with views over the marina. The VIA presents an impression of the view from this position in its Image 29. However, and more importantly, I also had the opportunity to personally view from this general area during the site inspection.

61. The experts agreed this was not a formal or destination viewing point and not commonly used, no seating was available. Walking pedestrians would pass it by in less than one minute. Gladesville Bridge is the “centrepiece” of the view. The experts also agreed that:

“…existing vegetation on Howley Point obscures the outer arm from view from some positions. From more southern vantage points on the eastern side of the street, the outer arm is more visible (as are the existing larger berths). It is less so from the western side, where the marina development will be more obscured.”

63. Mr Rowan notes the new impact with vessels on the outer arm but that this would appear “minimal”, and that the opening up of the central waterway aisle will further minimise the overall impact of the new proposal. Mr Rowan concludes (Ex 9 par 79):

“Given the location is limited to a small portion of a local street, which appears not to be a well-frequented or intensively used, the potential impact is further lessened. In summary, the view impact from Location 2 is considered to be Low.”

64. Mr Lorimer notes this location as opening up to the first substantive public view of the waterways for some 800m along Victoria Place on the walk to Howley Park. He considers that (Ex 9 par 82):

“…this view would result in a higher visual impact rating than Low. The assessment of visibility, magnitude of change and visual harmony and the wider view context outlined above would suggest that this rating could potentially be Moderate or even Moderate/High.”

Location 8

65. Location 8 was the most controversial of the selected viewer positions. The position selected by Mr Rowan in his VIA (represented in Image 35) was on the path of the Rivercat ferry, east of Gladesville Bridge. Mr Lorimer believed the view impact would be significantly greater west of the bridge, and nearer the marina. I had the opportunity to view from both locations, and generally within the river channel. Among other points, Mr Rowan noted that there were other more prominent visual elements along the foreshore, including Gladesville Bridge (Ex 9 par 103).

“Screening of the urban escarpment in this context with an extension of the Landmark marina is not considered detrimental to the setting of the waterway but is likely to add to its marine character. In addition, the removal of swing moorings east of the bridge that has the potential to provide an offset of any view impact from the new marina arms, providing an area of open waterway. On balance, the impact from the development upon Location 8 is Low.”

66. Mr Rowan also noted that the Rivercat was a fast-moving vessel and the setting changes very quickly. He believed, on balance, the view impact was low.

67. Mr Lorimer noted that (Ex 9 par 104):

“- This is a view - mostly in motion - experienced by a significant number of people on ferries each day including commuters and tourists.

- A significant number of people - especially at weekends - also regularly see this view from recreational craft.”

68. Mr Lorimer believed the increased length and collective massing of larger vessels on the marina’s outside arms would become noticeably more conspicuous, becoming dominant in the scene. He believed that, mindful of the magnitude of change and loss of visual harmony, view loss was “potentially high” on the waterway west of Gladesville Bridge travelling west or east.

Consideration

Contrasting the evidence

69. It is inevitable that, on topics relating to visual impact assessment such as the one at hand, personal experiences and values will have an influence when evidence is sought to be drawn, and even evaluated. Neutrality and detachment is aided by the quality of the evaluative tools at hand. Or, put another way, subjectivity might be managed by the objective rigour involved in an analysis.

70. For me, various inclusions in DCP-SHFW, directly related to “visual impact assessment” as a process, assisted me considerably in the evidence evaluation task in this case, involving two experienced and articulate visual impact experts. At the more abstract level (a good thing when the job is to detach from a particular assessment project in order to frame the task), DCP-SHFW has the listing of pre-requisites for visual impact assessment (Appendix D cl D1.5 p 71 bottom of 2^nd column). I have referred to these points relating to visibility, magnitude of change and visual harmony, already in the judgement [53]. Then the section “(known) characteristics of various types of boat storage facilities” (Appendix D cl D1) provides a set of more concrete knowables (apparently) which I would see as evidence-based generalisations on certain practical settings. That is not to say all of the DCP-SHFW content is to be as highly valued. What I will call the evaluative matrix system in Appendix D is agreed by the experts to be simplistic (and something raising scepticism in Rose Bay Marina at par 50).

71. Mr Rowan indicated he would go to the “underlying commentary of section D1” to inform his visual assessment work in regard to the project (Ex C Tab E pp 54-59). It was not clear here whether Mr Rowan meant the entirety of the “underlying commentary” in Appendix D (ie cll D1.1-D1.5) or only the commentary in D1.1. But when I turn to the evidence, it was Mr Lorimer who used the evaluative framework available in DCP-SHFW in the more rigorous way. He used cl D1.5 to set up first principles for his analytical work. This derived a certain explanatory weight but also gave me more confidence that the analysis was inclined to be comprehensive, rather than perhaps subconsciously selective. This was evident in his explanation of the contributory elements which make up the visual setting and how impact on the scenic quality of settings might be understood. This structure (ie based on cl 1.5 in the abstract) opened his evidence up for critique, which it generally stood up to, in my opinion.

72. When I contrast Mr Lorimer’s analysis with Mr Rowan’s written evidence, in Ex 9, in regard to whether the proposal satisfies the statement of intent for Landscape Character Type 16, I would make the following observations. Mr Rowan’s arguments that: (1) the proposal would not impact on foreshore character because it retains the same setback of more than 60m from the foreshore as the existing marina, and (2) the impact on areas east of the existing marina is comparable to that of the existing marina upon the area of waterway upon which it is located; are overly simplistic. These arguments do not engage in the scale of change, with respect to overall massing and size of vessels.

73. Above, I note three points from other parts of Mr Rowan’s evidence [56]-[58]: (1) the argued relatively modest scale of the proposal given its context, (2) a misconception that of themselves marinas and boats should be seen as unattractive and (3) the drawing of attention to “(encouragement) of appropriate waterfront development” (DCP-SHFW p 34 column 1). These points were for me only partially effective.

74. Of the two critical viewer positions which I adopt, the scale argument had some power in regard to viewer location 2, but even from that location, the argument to rely on the relative massing of Gladesville Bridge misses the subtleties and rigour of cl D1.5 of DCP-SHFW. In regard to viewer location 8, the point was not persuasive. It seemed to rely on the idea that: (1) because the massing of the proposed marina is contained between Gladesville Bridge and Five Dock point, and is “contained by those two elements”, and (2) there were buildings and rising landform behind (which I find difficult to see as an “escarpment”); therefore, the proposed marina would sit comfortably and blend in. For me this argument did not sufficiently engage in the parameters suggested in cl D1.5 of DCP-SHFW and was otherwise unconvincing. But I further note that the argument seemed to be unrealistic to me based on my own observed experiencing of the view from waterway, considerably closer than Image 35’s location.

75. I generally accept the second point that marinas may be seen as visually interesting. But scale and context must be factored in.

76. In regard to the third point, I agree with Mr Lorimer that the function of the visual impact experts is to evaluate visual impact, to help determine whether, in this case, the proposed marina is the type of appropriate waterfront development, which is sought to be encouraged under the statement of intent for Landscape Character Type 16.

Landscape Character Type 16

77. My general preference for Mr Lorimer’s analysis and opinions draw me to the conclusion that the proposal is inconsistent with the statement of intent for Landscape Character Type 16, as it does not protect the character and amenity of foreshores in the site environs.

Viewer location 2

78. Mr Rowan acknowledged the new impact of berths on the outer arm but argued that would appear minimal given the width of the perspective available. Mr Rowan also referenced the massing of Gladesville Bridge and its function as the “centrepiece” of views. He argued the view would not be impacted upon.

79. I generally prefer Mr Lorimer’s conclusions in regard to this viewer position. The point is, and as put by Mr Lorimer more generally (Ex 9 p 18), the texture or grain of the marina and swing moorings, as existing, tends to recede into the background, visually. The new view would be quite different with the significantly greater bulk and mass of the very large vessels in the fore and mid-ground, appearing as one walks along the opening, and then the extended mass of marina vessels more generally, in line or formation (although the linearity of boats is somewhat exaggerated in Image 29 in the VIA). The 45m vessel berth is quite close to this viewer position and the grouping of 35m and then 30m vessels would certainly compete and at times block the bridge’s northern abutment interface of Gladesville Bridge and the northern shoreline.

80. While I note that the central waterway aisle provides an open water surface area (a favourable attribute agreed by the experts), its extent is exaggerated in the image. As indicated in Ex H (mooring plan), the swing moorings would remain from just beyond Gladesville Bridge on the viewline along, say, the centreline of the central waterway aisle (agreed by Mr Rowan on site). The length of existing commercial moorings to be relinquished (north of the line of D-Arm) are also noted, but again the swing moorings are not so visually intrusive.

81. Rose Bay Marina, and the Court’s planning principle, draws attention to whether the present viewing position attracts the public to it. I accept the advice of the experts that this viewer position is likely to be relatively infrequently used by pedestrians. The frequency of visitation detracts from the weight of the loss. However, I do note that the view is over Crown Land (in the sense that it would be unlikely to be built out) and on a walking path to a notable and heritage listed destination (ie Howley Park and the locally listed abutments to the original Gladesville Bridge). I note that this area would be considered as a destination for walkers now and into the future, and this publicly accessible vantage point, opening up for walkers this pleasing view of Gladesville Bridge and Sydney Harbour, has some weight in the analysis.

Viewer location 8

82. The circumstances at viewer location 8 (viewing to the shore from within the waterway) are considerably different from those at viewer location 2 (principally concerned with effect on the view of Gladesville Bridge and its setting). It seems to me that viewer location 8 has a more direct relationship with the consideration of whether the proposal is inconsistent with the statement of intent for Landscape Character Type 16. The concern is whether the existing visual character of the foreshore in the environs of the marina is retained for the benefit of those on the water, and the significance of any such concern.

83. Having undertaken the site inspection, first I would say that it is obvious to me that Mr Lorimer is correct that the impact is greatest west of Gladesville Bridge, nearer to the marina, rather than the location chosen in the VIA.

84. There was some skating around the best way to describe the foreshore area between Gladesville Bridge and Five Dock Point, which I will call an “embayment”. There is a sense of visual enclosure to this foreshore area. Like numerous other bays, there is also a pleasantness to look upon it from the water and foreshore either while commuting, perhaps exercising or during other recreation on the water. This embayment and numerous other bays do, I think, together contribute to the special visual qualities of Sydney Harbour.

85. I have considered the evidence and drawn conclusions already in regard to whether the proposal is inconsistent with the statement of intent for Landscape Character Type 16 above, and rely on this in regard to my evaluation of the impacts from this viewer location (see [69]-[77]). It is clear that this harmonious embayment view, water and land/water interface, as available now, would no longer be available from a considerable area of the waterway. It does not seem unfair to coin the phrasing “wall of boats” to describe the proposal as viewed from the central area of the waterway, nearby. There is no doubt that boats can be pleasant to look at of themselves. But due to the expanded marina length, and then the size of the vessels proposed, the proposal would be a visually intrusive, negative factor and incompatible with the existing character of the embayment.

Private property

86. Section 10.24 of SEPP-SHC requires consideration of maintenance, protection and enhancement of views to and from Sydney Harbour. It was agreed by the visual impact experts that there were moderate to severe viewloss or visual impact effects upon viewing positions from within a number of private properties. However, Mr Rowan argued that when the view sharing planning principles from Tenacity Consulting v Waringah [2004] NSWLEC 140 were applied (extent of impact relating to all views available from within a property), in his opinion, all impacts were below “high” (Ex 9 par 107 d). My own observations were that there would be instances of high amenity impact upon the waterfront properties I inspected. There were also impacts on views from listed heritage items (of note having regard to s 10.24(b)). I note these as adverse impacts on private properties brought about by the proposal. However, there is also a need for an awareness of the provisions of s 10(1)(2)(b) of SEPP-SHC which provides that “the public good has precedence over the private good whenever and whatever change is proposed for Sydney Harbour or its foreshores”. This question is considered next.

Public good

Setting the scene

87. In the section above, consideration is given to the specific topic of visual impact, itself a factor associated with the public good. In this section, other public good considerations are addressed. The topic is related to both Council’s Contention 3 (equitable public access to the waterway) and certain lay (objecting) submissions (a consideration under s 4.15(1)(d) of the EPA Act). Two sub-topics are given attention. The first is concerned with what I call general public benefits. The second is concerned with the more specific question of the evaluation of the public demand for the boating-related services and facilities as proposed. In relation to this second sub-topic, on the first day of in-court proceedings, I referred to certain lay submissions which sought to demonstrate that there no evidence of boat storage supply shortage (reference Ex 2 folio 1394). On day two of the proceedings, in regard to the question of establishing public need, I indicated my interest in two more specific items raised in objecting submissions: (1) the particulars of what was described in lay submissions as the “Wentworth Point DA”, and (2) current availability of swing moorings in local bays. I also indicated to the parties, and in particular the applicant, that I was open to what parties might like to provide the Court on the current “state of play” with regard to demand.

General public benefits of the proposal

88. Council notes that the consent authority is required to be satisfied that the development is consistent with the objectives of the applicable W1 Maritime Waters zone for there to be power to grant development consent. Zone objective (c) is:

to promote equitable use of the waterway, including use by passive recreation craft.

89. Section 10.20 is also directly concerned with this topic:

10.20   Public access to, and use of, foreshores and waterways

The matters to be taken into consideration in relation to public access to, and use of, the foreshores and waterways are as follows—

(a)  development should maintain and improve public access to and along the foreshore, without adversely impacting on watercourses, wetlands, riparian lands or remnant vegetation,

(b)  development should maintain and improve public access to and from the waterways for recreational purposes (such as swimming, fishing and boating), without adversely impacting on watercourses, wetlands, riparian lands or remnant vegetation,

(c)  if foreshore land made available for public access is not in public ownership, development should provide appropriate tenure and management mechanisms to safeguard public access to, and public use of, that land,

Evidence

90. Below I seek to compile a listing of the public benefits which the applicant’s experts saw as coming about as a consequence of the proposal, and responses from Council. The first grouping of benefits is associated with Ms Swan’s response to Contention 3(b) and belief that the proposal maintains and enhances public access to Sydney Harbour and the waterway, because (of) (Ex 10 par 5.3.4):

“- …(reference is made to the responding to demand topic which is given more direct attention below);

- Existing public access to and along the foreshore will be maintained;

- Access to the waterway for boating will be enhanced with minimal environmental impacts;

- The use of the marina is ongoing, and the use of surrounding foreshore land is compatible with this use;

- It will enhance the provision and use of public boating facilities along the waterfront;

- A destination berth is being provided allowing temporary mooring for recreational boating users and access to the neighbourhood shop (and boating supplies).”

91. Elsewhere in her evidence, Ms Swan emphasised what was seen to be increased accessibility for local people who do not have current water frontage properties. At a larger scale it was suggested (Ex par 9.2.4):

“Expanding the capacity of the marina will help to maximise the value of the Parramatta River as a social, cultural, economic and environmental resource , and the proposed development will deliver significant social and economic benefits to the local and regional community. From an economic perspective, the proposed development will support the local economy through the creation of jobs in the local area, increased local output and value add, business growth and increased expenditure.”

92. The strategic economic and social benefit were also highlighted in two pieces of commissioned work tendered into evidence:

• Gladesville Marina Berth Demand Assessment prepared by Australian Marina Management Pty Ltd, dated September 2019 (Ex B Tab 11) (Demand Assessment), and

• Strategic Review - Gladesville Bridge Marina Expansion dated September 2019 prepared by Nine Squared (Ex B Tab 12) (Strategic Review).

93. Other evidence indicated the following additional benefits:

• The proposal would provide for two public pump-out berths and a public destination berth. Some 15 additional pump out stations are nominated within the marina.

• There would be an improvement for passive recreational craft as the gangway (connecting to shore) now allowed kayak movements under (Ex 10 par 5.2.13).

• The public “is encouraged” to access the site through these berths and through the formalisation of the neighbourhood shop (Ex 10 pars 5.3.10 and 9.2.13).

• The proposal facilitates an increased level of equitable access due to the conversion of swing moorings to berths, which are more accessible for people with limited mobility (Ex 10 par 9.2.11).

• Removal of the existing slipway meant less amenity impacts on neighbours (Ex 10 par 9.2.12).

• The removal of existing swing moorings will increase the width of the river channel, providing for navigational improvements (Ex 10 pars 5.3.5-5.3.8).

94. Mr Moore provided specialist navigation evidence and believed the proposal would not diminish the ability for passive craft to travel safely along the bay close to the foreshore without conflict with other waterway users. The proposal would provide for (Ex 10 par 5.4.7):

“…greater access and much need facility for people who want to go boating from a safe and secure marina.”

95. I also note that in respect of five private swing moorings which would need to be removed to make way for the proposal, the applicant indicates the intention that five of its commercial moorings would be made available as replacements. Each of these are quite nearby (indicated in Mooring Map K205), but such changes were subject to formal TfNSW approval.

96. Mr Mackay argued that (Ex 10 par 4.1.43):

“…(the) "benefit" of the proposal is limited to a small number of persons that would be able to privately moor their vessels at the extended marina whilst the adverse impacts would be borne by significantly greater number of persons in the general community that enjoy the natural visual and recreational qualities of the waterway and foreshores. Accordingly, proposal seeks to enhance the private good over the public good, contrary to the SEPP.”

97. Mr Mackay believed the proposal would decrease access of passive watercraft and did not promote equitable use of the waterway. The proposed design would (Ex 10 par 5.2.1):

“…diminish the ability for passive recreation craft to travel safely along the river, close to the foreshore without conflict with other waterway users and potentially require such craft to navigate further out into the main waterway for a greater distance causing conflicts in the main waterway.”

98. Mr Mackay also queried the application’s capacity for long term delivery of the recommended relocation of channel swing moorings (Ex par 5.3.3):

“… the "benefits" relied upon to justify the proposed development pertaining to increasing channel width by virtue of relocating swing moorings to the marina or closer to shore, are not "benefits" that the subject DA can ensure into the future.”

Consideration

99. It seems to me that there are some, relatively modest, general public benefits arising from the proposal. It could be reasonably expected that availability of the neighbourhood shop would draw some members of the public to the facility for some refreshments (eg drinks/icecream) when out for a walk, or as a newly purposed activity for locals. There is then the opportunity to get close to and view the operating marina and vessels, as a passive recreational interest. This aligns with the provisions of DCP-SHC (cl 4.7 p 39) which suggests “commercial marinas are to provide benefits for both the general and boating public”. The floating berths would provide improved accessibility for those with physical disabilities (when compared to swing moorings). The new “destination berth” is also a positive addition allowing temporary mooring for recreational boating users. I think there would also be local and wider economic benefits through the encouragement of the boating industry, with an increased breadth and scale of trades and the like providing services to the marina than do today. Although the loss of the works associated with the slipway, of itself, suggest a negative outcome in terms of promoting a working harbour. There is then the retention of the status quo, such as the availability of pump-out to non-marina vessels, and what I would generally see as a retention of existing arrangements for walking along the foreshore.

100. I would see the navigational aspects of the proposal as neutral, at best. It is reasonable to think that the increased concentration of vessels will bring a new level of complexity to this part of Sydney Harbour. The applicant seems to be doing all it can to manage that (intention to release swing moorings, holding area for vessels under Gladesville Bridge). However, I would think that the proximity of this bank of quite large vessels close to the main channel and, for example a dedicated rowing course (Ex J), is a negative aspect. A clear negative of the proposal of itself, when compared to the status quo, is that a large open area of the embayment, for passive craft use (paddling, kayaking, sailing), would no longer be available. This is not able to be countered by the otherwise good intentions with respect to increasing the passage height under the near-shore gangway (for kayaking etc). This is the necessary direct cost for the increased supply of berths.

The proposal and public need

State policy and other documentary points

101. One of the aims of Chapter 10 of SEPP-SHC is to (f) to “ensure accessibility to and along Sydney Harbour and its foreshores”,

102. Planning principles relating to the Foreshores and Waterways Areas include (s 10.11):

…

(c) access to and from the waterways should be increased, maintained and improved for public recreational purposes (such as swimming, fishing and boating), while minimising its impact on watercourses, wetlands, riparian lands and remnant vegetation,

…

(i) the provision and use of public boating facilities along the waterfront should be encouraged.

103. A matter to be taken into consideration in relation to boat storage facilities, at s 10.25 of SEPP-SHC is that “development should increase the number of public boat storage facilities and encourage the use of such facilities”.

104. A point of consideration at s 10.22 of SEPP-SHC and an objective of the W1 zone is to “promote equitable use of the waterway, including use by passive recreation craft”.

105. The Sydney Harbour Boat Storage Strategy 2013 (SHBSS) (Ex D Tab 5 p 45) identified a need for 600-800 new commercial (and club) marina berths by 2021.

106. The picture is one of a State policy intention to seek to encourage increased levels of boating in the harbour (albeit in line with, or sometimes subject to, other goals which may practically constrain this provision). To the extent that there is a shortfall of the supply of in-demand berths, all other things being equal, a barrier to this encouragement of boating would be apparent.

Demand and supply

107. The two pieces of specialist work referenced above [92], as the Demand Assessment and Strategic Review, provided evidence for the applicant on this topic.

108. It seems clear enough that the proposal is not seeking to add in great numbers to overall storage (99 existing to 109 proposed), rather the focus is on providing for larger vessels, for which there is increasing demand it seems. This is evident from the Strategic Review, although a little dated in terms of specific numbers, which provided as follows (Ex B Tab 12 p 17):

“Gladesville Bridge Marina’s current carrying capacity is 99 vessels, with just under half (46%) of its berths reserved for vessels of 20 metres in length overall (LOA) and to maximum of 25 metres. The proposed development will expand existing capacity to 115 berths overall including new berths for vessels between 25 and 45 metres, addressing the demand for larger vessel storage in Sydney Harbour. GBM’s proposed berthing schedule has identified up to 11 new berths with capacity for vessels above 24 metres incorporating an additional 350 linear metres of space specifically to accommodate larger vessels including one 45 metre superyacht (figure 9). In Sydney Harbour, there are a limited number of berths designed to accommodate superyachts, which are vessels of 25 metres or more. The Sydney Superyacht Marina at Rozelle Bay is capable of storing up to 45 vessels and is the only dedicated marina for this size of vessel in Sydney Harbour. Industry feedback suggests that demand for longer berths continues to rise.”

109. The Demand Assessment included both data and analytical conclusions. I consider the analytical work in my consideration below. Data was supplied on vessel registration and commercial marina berth numbers and occupancy levels based on empirical survey. The Demand Assessment verified the relative growth in larger vessels based on registrations. By 2019, of the 10m+ length vessels registered, 10% were over 16m in length, doubling the proportionate rates since 2003 (ibid p 5).

110. The Demand Assessment’s data indicated that there had not been growth in on-water boat storage capacity in the western areas of Sydney Harbour over the past 10 years (ie 2009-2019). The commercial marina survey data for June 2019 indicated occupancy rates of 84% (of 651 berths) and 88% (of 728 berths) for west and east of Sydney Harbour Bridge, respectively. Occupancy rates would be higher in Spring and Summer according to the Demand Assessment. The data also showed that average annual growth in registrations of vessels 10m+ and above, between 2009 and 2019, were 122 vessels per annum in NSW. This was a considerable drop from 287 vessels per annum between 1983 and 2009.

111. In regard to private mooring licenses, the Demand Assessment noted as follows (p 3):

“In 2004, private mooring licences issued by Government for the west of Sydney totalled 2,498. At July 2019 the west of Sydney private mooring licences totalled 2,519 underlining that there has been virtually no growth in NSW Government private mooring licences in the west Sydney areas for over 15 years.”

112. The quite current evidence before the hearing was that, rather than a long waiting list, there was good availability of private swing moorings in the Gladesville Bridge vicinity today (over 25 available moorings were shown between Woolwich and Ryde Bridge). The fact that this was most evident on the northern side of the harbour did not strike me as overly relevant, given the evidence there is often no great correlation between the location of vessel storage and the address of owners (Strategic Review par 4.2).

113. In part at least in response to my questions in regard to the current position on demand and supply, the applicant drew my attention to the 2021 release of the Health of the Australian Marina Industry Survey, prepared by Marina Industries Association. The report found continued high demand for boat storage and a high percentage of marinas with waiting lists, however the data was not localised.

114. In regard to demand, Mr Mackay argued that (Ex par 5.2.2)

… any broader demand for water-based boat storage in Sydney Harbour and associated waterways is not adequate justification for the significant adverse impacts of the proposed development, particularly on local residents and other users of the waterway that do not seek to moor boats at the marina. That is, the disbenefits of the development cannot be offset in such a generalised, geographically regional manner.

Consideration

115. The two specialist reports were helpful in the provision of some useful data. However, I found some of the analytical work in the Demand Assessment unconvincing. It was argued that the downturn in growth in new vessels is related to “a reduction in the supply of new marina berths”, among other factors (Ex B Tab 11 p 3):

“Due to a reduction in the supply of new marina berths, the limitations on private mooring licences, a range of planning constraints, the loss of existing facilities and a period of economic downturn, the growth in new vessels in the last 10 to 15 years has not been at the higher earlier rates shown.”

116. Such factors would have “acted as a constraint to those desirous of purchasing vessels requiring on-water storage” (Ex Tab 11 p 18). The conclusion, in regard to latent demand, presented as an assumption adopted by the authors and not proven with evidence. There could be many unexplored reasons why new 10m+ vessel registrations are not growing as quickly as in the past. I also note that the argument that insufficient supply of on-water berths is, evidently, a constraint for those otherwise keen to purchase a new vessel for harbour use, might also run into problems with other evidence presented that there have been significant increases in new boat registrations over the more recent past (Ex 10 par 5.2.10).

117. The data on charter vessel berth occupancy rates indicated existing rates of around 100%. However, I found the wording on this topic as unusual. The Demand Assessment indicated that the “Blackwattle Bay facility”, accommodating 14 charter berths, had closed and that “the proposed new 22-berth charter vessel marina at Bank Street, Pyrmont has not materialised” (Ex 10 par 5.2.10 p 3). The phrasing was indefinite (ie the use of the phrasing “has not materialised” might beget the suffix “yet”, as at the time of the survey undertaken in 2019, whereas phrasing such as “did not materialise” would suggest more finality. The evidence did not cover whether this Bank Street marina had now in 2022 “materialised” and if so whether it was also at high occupancy rates.

118. The very much current evidence before the hearing was that there was good availability of private swing moorings in the Gladesville vicinity. This evidence was raised in lay submissions and verified during the proceedings (Exs 17 and U). I am aware that the proposal is more interested in larger vessel storage, unsuitable for swing moorings.

119. As part of a submission that there were currently no shortage of supply of recreational boat storage west of Sydney Harbour Bridge, lay submissions also raised a proposed marina at Wentworth Point (Ex 2 p 1393-94). The submission indicated that this marina had been approved in 2018 and provided for 63 marina berths and 228 dry boat storage spaces. After I sought clarification of this, Ms Swan located and reviewed the approved plans and advised that the consent was issued on 26 June 2018 to Roads and Maritime Services, and that the vessel storage numbers in the lay submission were correct. The plans indicated 19x12m wet berths and 44x15m wet berths. Ms Swan believed the dry boat storage was for vessels up to 10m. Ms Swan was not able to find out whether there had been any physical commencement and indicated that the consent could lapse on 16 June 2023 or may have a further two years beyond that. Drawn into evidence was an Environmental Impact Statement for Sydney Olympic Park High School (Ex O) dated September 2021. I can confirm the advice from Ms Swan from the EIS content which indicates that (Ex O p 37):

“The proposed school will impinge upon the western portion of the approved dry boat facility. If the DA progresses, it will be modified to take into account the proposed school.”

120. On the material drawn to my attention, it does not seem to me that the proposed school would markedly affect prospects for the proposed adjacent marina. There is no certainty of delivery, but the fact of the securing of the development consent of the Wentworth Point proposal is notable, as is the fact that the application was made by the State’s maritime authority.

121. There is an acknowledgement in the Strategic Review of the difficulties with demand forecasting (Ex B Tab 12 par 4.2). In line with this, overall, I found the Sydney-relevant evidence on the demand or public need for the proposal as somewhat mixed. Here I do emphasise, that the issue only arose in my consideration of lay submissions mindful of my responsibilities under cl 4.15(1)(d) of the EPA Act, rather than as a direct contention raised by Council. There is the baseline information that the 2013 SHBSS (Ex D Tab 5 p 45) identified a need for 600-800 new commercial (and club) marina berths by 2021. There is an indication of average annual growth in registrations of vessels 10m+ and above of between 122 (2009-2019) and 287 (1983-2009) vessels per annum in NSW. The survey data indicates no growth in wet berths west of Sydney Harbour Bridge between 2009-2019, and that in June 2019 occupancy rates were 84% west of Sydney Harbour Bridge. In regard to vessel size there is the evidence of proportionate growth in larger vessels and that, by 2019, of the 10m+ length vessels registered, 10% were over 16m in length. There is evidence in Ex 10 of an uptake in new boat registrations since 2019 (not differentiating on vessel size). I also note that the theory proposed in the Demand Assessment might suggest this growth indicates there is ample supply to accommodate the new registrations. There is also the direct current evidence of availability of ample mooring spaces nearby to the site.

122. My impression from the evidence is that it remains the case, as it was at the time of preparation of the SHBSS, that there is a general need to improve vessel storage capacity in Sydney Harbour, linked to Sydney’s growth. It also seems reasonable to acknowledge growing demand for on-water berths required of larger vessels.

123. The proposal provides for the berthing of 12 vessels of 24m+ length, classified as superyachts (Ex D Tab 5 p 7), and a further 34 vessels of 20m and greater. The evidence of a public need for storage of this quantum of large vessels has for me, of itself, not been established. But if this need were assumed under the general topics of changing demand and accounting for growth, and the broader planning goals relating to increasing boat storage facilities, the question arises of whether this quantum of large vessels is appropriate for this location.

124. I have examined the analysis of alternatives in the EIS (Ex B Tab 9) and also note the evidence of Ms Swan that there is a limited distribution of W1 Maritime Waters zoned areas extending to the foreshore “in the locality” (Ex 10 Fig 2), where marinas are permissible on the land. Ms Swan also refers to Appendix B to Ex 10 which shows foreshore areas wider afield where marinas are permissible. I also noted the material at cl 4.7 of DCP-SHFW (cl 4.7 p 38 left hand column) which seemed more bullish about the waterway zoning possibilities relating to commercial marinas. To the extent that it is relevant, I am not convinced that alternatives may not be available (such as through further swapping of wet berths for moorings or dry storage, or through expansions of other marinas, or through new marinas in appropriately zoned areas) to provide for, or share, large vessel storage required to meet the public need, otherwise proposed to be addressed by this proposal.

Parking and issues relating to adjacent Crown Land

125. Parking issues can be divided into the merits considerations and the legal.

Merits considerations

126. My understanding of the merits-related parking issues is as follows. The applicant’s position is that the proposal, by way of the provision of a 20 car parking stacker, would provide for a significant improvement to the existing situation in regard to parking demand. Mr McLaren indicated in his oral evidence that he agreed with this (Transcript 16/5/2022 p 121 par 29). I generally accept that, with the conditions of consent limiting parking to boat owners and skippers (Ex 10 par 54(a)), this is the case. I note that Mr Hallam did not agree with this limitation on parking and the applicant argued against the imposition of a condition to this effect. However, it is open to the Court to impose such a condition.

127. Mr McLaren raised concerns about parking for service and delivery vehicles (Ex 6 par 11), while Mr Hallam was satisfied with the arrangements. I found the evidence of Mr McLaren the more persuasive on this front. The proposal provides, essentially, for the retention of an open area to the east of the existing Crown Land parking spaces, for deliveries. I understood Mr McLaren to agree with Mr Hallam that the turning movement configuration available for this delivery space was satisfactory. The concern was more in regard to providing for service vehicles, including trade and catering vehicles used by people servicing the berthed vessels. It seems reasonable to assume that there would be a good demand for such services in the expanded marina. It was unconvincing for me that the service vehicles (sometimes of a larger size and with roof racks and the like) would be able to use the car parking stacker or to necessarily make forward plans for parking, as suggested by Mr Hallam. The proposed parking arrangements for service vehicles are a deficiency of the proposal. While I acknowledge that proposed deliveries accord with the current arrangements (generally), with the increased scale of the operation, this somewhat constrained configuration, very open to general public access, is also a weakness of the proposal.

Legal considerations.

128. There are five existing parking spaces located adjacent to the existing marina building on Lot 7058 in DP94083, which is the Crown Land to the immediate north of the site. By way of background in Ex A, the applicant noted that:

“a. The Howley Park Plan of Management adopted by the Minster for Natural Resources on 14 April 1990 authorises the use of the access way for access to the marina and for parking on Crown Land adjacent to no. 380 Victoria Place.

b. A licence granted by the Howley Park (East) Reserve Trust on 15 March 1991 pursuant to section 102 of the Crown Lands Act 1989 authorised the use of part of Howley Park for a carriageway for access from Victoria Place to the adjacent property known as 380 Victoria Place, Drummoyne and as a car park in relation to the area marked blue on the plan annexed to the licence (extracted below):”

129. The plans before the Court (Ex C Tab 8 DA-100 Revision A) indicate “existing parking” on the Crown Land. It is indistinct in the plans but there seems to be hatching over four of the parking spaces and parking space 5 has the text “shared area” superimposed. The parking experts have agreed on the need for a single accessible parking space (ie for persons with a physical disability). The parking experts agree that parking spaces 4 and 5 together can accommodate that requirement. A point of disagreement is whether there should be a bollard within parking space 5, also called in the plans “shared area”. Mr Hallam believed a bollard was not required in the shared area. This would “optimise general manoeuvring on the site”, mindful of general car movements and delivery/service trucks reversing in the area (Ex 6 pars 9 and 44). Mr McLaren believed a bollard was necessary, and was a regular requirement mindful of the relevant Australian Standard.

130. Council contended that owner’s consent for proposed alterations to car parking arrangements on the adjoining Crown Land was needed and has not been provided. The applicant argued that the land-based component of the site for which development consent is sought (and to which the development application relates) is as described in the application and its accompanying documents (mindful of Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 at par 91), and as such does not include the adjoining Crown Land. The applicant was not proposing works on the Crown Land. It did not see the need for a bollard associated with the accessible parking, given the opinion of Mr Hallam. If the Court felt a bollard was necessary and appropriate there were powers under s 4.17(1)(f) of the EPA Act for the provision of one to be required as a condition of consent.

131. This matter developed in its intricacy with the advice from the applicant in regard to its arrangements with respect to the Crown Land. The essence of this is that:

• On 25 May 2022, Crown Lands officials advised that the pre-existing license (numbered 569645) in regard to Lot 7058 DP94083 had been revoked, and that a new licence (numbered 634126) would be issued for “access”. I understand the previous license was for access and parking. The applicant advised in its closing submissions that “it does not accept the situation referred to in this correspondence”.

• On 2 June 2022, the applicant received advice that the decision to revoke “Licence RI569646 has been suspended pending review of this matter”. (Applicant’s Supplementary Closing Submission filed 3 June 2022 par 4 and Annexure).

132. It seems to me that it is within power to impose conditions with respect to the Crown Land, adjacent to the site, such as requirements relating to the delivery of accessible parking. In this instance there is certainly the necessity for the provision of a bollard to fully provide for the accessible parking arrangement. This is because of the practical convenience of parking in the nominated shared area compared, say, to entering the parking stacker. The imposition of such a condition would not impose on any obligation on the Crown. But there would be an obligation for the applicant to comply with that condition, and one would presume gain the consent of the owner to undertake that work, if lawful development is to occur.

133. More generally, a setting where there is no accessible parking available for the exclusive use of those accessing the marina is a negative aspect of the proposal. However, the practicalities are such that it would seem unlikely that this space would be used by persons other than those attending the marina, at least under present circumstances, and pending any changed intentions of the Crown in regard to the use of its land. Given my findings, otherwise, I do not need to make a determinative finding in regard to the proposed parking arrangements.

Heritage conservation

134. Section 10.12 of SEPP-SHC provides as follows with regard to heritage conservation:

The planning principles for heritage conservation are as follows—

(a) Sydney Harbour and its islands and foreshores should be recognised and protected as places of exceptional heritage significance,

(b) the heritage significance of particular heritage items in and around Sydney Harbour should be recognised and conserved,

(c) an appreciation of the role of Sydney Harbour in the history of Aboriginal and European settlement should be encouraged,

(d) the natural, scenic, environmental and cultural qualities of the Foreshores and Waterways Area should be protected,

(e) significant fabric, settings, relics and views associated with the heritage significance of heritage items should be conserved.

135. For me the key points of attention can be grouped into: (1) the State-listed heritage item Gladesville Bridge, and (2) the locally listed heritage items along the embayment (Gladesville Bridge abutments and Howley Park, Boatshed - 348 Victoria Place, House - 352 Victoria Place, House “Tobique” - 44 Drummoyne Avenue). There is a need to consider whether “significant fabric, settings, relics and views associated with the heritage significance of these items should have been, and have been, conserved.

136. I have already indicated that I believe there is a significant visual impact on views to the Gladesville Bridge from viewer position 2 (ie at the opening to water views near the marina entrance at Victoria Place). The new competition in scale, proposed with this application due to the expanded reach of the marina and the increased size of vessels, would do other than conserve the setting to the extent that that has heritage significance. But there are also the same disclaimers applying to viewer location to. That is to say that observations from this location by members of the public are not in great numbers.

137. I accept Ms Higgins evidence that the other heritage items each have an integral relationship with the Parramatta River and that their settings would be other than conserved given the new enlarged massing and scale of the proposal. In my opinion the impact for viewers to the residential heritage items would be only notable when in quite close proximity to the shore, and not from the main channel or northwards. The views from the heritage items would all generally be influenced by the scale and massing of the proposal.

138. For me these are negative aspects of the proposal but would not be determinative of themselves.

Conclusion

139. I believe the proposal is at odds with SEPP-SHC aims associated with protecting, enhancing and maintaining the foreshores and waterways of Sydney Harbour as an outstanding natural and public asset for existing and future generations.

140. The key concern is the new and visually intrusive presentation of a linear massing of large vessels, cumulatively (ie including the existing marina footprint) around 250m in total length; essentially taking up the waterway between the existing marina and Gladesville Bridge (offset a minimum of about 8m). I disagree with Mr Rowan that the expanded marina would sit comfortably or “nestle in” between Gladesville Bridge and Five Dock Point Transcript 17/5/2022 p 223), rather it would provide for a significant visual intrusion into the current setting visually appealing harbour setting. Considerations under SEPP-SHC include that development maintain, protect and enhance the unique visual qualities of Sydney Harbour and its foreshores, and that impacts on public views and vistas be minimised. Having regard to this, it is unreasonable that the pleasant scenic outlook into this embayment should, as a consequence of the proposal be lost almost in its entirety, to those otherwise enjoying the qualities of the waterway, now and into the future; such as those who might be commuting, exercising and generally enjoying recreational times on this part of the harbour.

141. I agree that vessels can be pleasant and interesting to look at, as put by Mr Rowan. But the context is important, as is the scale and massing of what is proposed. On this front, the evidence of Mr Lorimer was persuasive, with his visual analysis evidence more complete and more relevantly following the provisions of DCP-SHFW. As I have explained above, this evidence brought a clear and objective narrative on the visual setting and enabled a tangible appreciation of the impact particulars.

142. I do accept that there is demand for additional wet berths in Sydney Harbour and in the waterways west of Sydney Harbour Bridge. However, I was not convinced that the public need was such that this particular marina should accommodate this quantum of larger vessels; bringing about, as it does, the consequential impact on the character and visual qualities of this particular area of the harbour.

143. I note that I did not understand SEPP-SHC or DCP-SHFW to suggest that encouraging additional recreational boating or boating facilities, should trump other planning ambitions related to the higher order goal of protecting, enhancing and maintaining the foreshores and waterways of Sydney Harbour as an outstanding natural and public asset. To the extent that the objectives to the applicable W1 Zone under SEPP-SHC reference recreational waterway uses (as compared to commercial shipping, public water transport and maritime industry), the direct reference is to the “(promotion of) equitable use of the waterway, including use by passive recreation craft”. That is not to say that promotion of equitable use of the waterway should not include providing for large vessels, it surely could. But the emphasis does not go that way, particularly, in my reading.

144. There were other public benefits of the proposal (ie other than the significant one of helping with supply of berth space), but these were not so important as to overcome the visual impact problems. There were also other negative impacts of the proposal which I have explained. Of particular note is what would be a disenfranchisement, especially for passive craft, of that portion of the existing public waterway to be overtaken by the marina. The loss to public access of pleasant open areas of water such as this, now only partly occupied by less intrusive swing moorings, would be at odds with SEPP-SHC ambitions to provide for equitable public access to the waterway. However, the major impact and determinative of itself related to the matter raised above (at [140]).

Orders

145. The Court orders:

1. The Appeal is dismissed.

2. Development Application No. 2019/0380 for alterations and additions to a marina at 380 Victoria Place, Drummoyne (Lot 1 in DP 549352, Lot 1 in DP 430123 and Lot B in DP 410843) and adjoining area within the waterway of the Parramatta River within Part of Volume 5081 in Folio 1, is refused.

3. The following exhibits are returned: Exhibits 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, D, F, G, H, I, J, K, L, M, N, O, P. The remaining exhibits are retained.

……………………

P Walsh

Commissioner of the Court

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Amendments

26 July 2022 - Updated figure 1 as there was visibility issues

27 July 2022 - Grammatical errors were corrected

Decision last updated: 27 July 2022