Ford v The Minister Administering the Ports and Maritime Administration Act 1995
[2007] NSWLEC 690
•23 October 2007
NEW SOUTH WALES LAND AND ENVIRONMENT COURT
CITATION: Ford v The Minister Administering the Ports and Maritime Administration Act 1995 (NSW) [2007] NSWLEC 690
PARTIES:
APPLICANT
Geoffrey & Dianne Ford
RESPONDENT
The Minister Administering the Ports and Maritime Administration Act 1995 (NSW)
FILE NUMBER(S): 10682 of 2007
CATCHWORDS: Appeal :- Modification application, mooring and landing facility, appropriate mooring pile materials, resident objections.
LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Ports and Maritime Administration Act 1995
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005
Sydney Harbour Foreshores and Waterways Area Development Control Plan.
CASES CITED:
CORAM: Bly C
DATES OF HEARING: 17 September 2007, final submissions on 26 September 2007.
JUDGMENT DATE: 23 October 2007
LEGAL REPRESENTATIVES
APPLICANT
Mr P. Vergotis, Solicitor
of Cutler Hughes & Harris
RESPONDENT
Mr S. Simington, Solicitor
of Lindsay Taylor Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBly C
23 October 2007
10682 of 2007 Geoffrey & Dianne Ford v The Minister Administering the Ports and Maritime Administration Act 1995 (NSW)
JUDGMENT
Introduction
Long Bay, comprising the southwest extension of Inner Middle Harbour, contains a number of small coves. The site of this application, 144 Cammeray Road, Cammeray, is situated on the southern side of this bay just to the west of Folly Point. Opposite Folly Point is a larger public reserve comprising the Northbridge Golf Club. Lands to the west and east of the site are mainly developed for residential purposes with waterside facilities. The Cammeray Marina is close by as are numerous moored boats attached to swing moorings.
Sometime in 2006 the applicants in these proceedings lodged a development application with NSW Maritime for a mooring and landing facility on land within Long Bay abutting the site. The proposal as described in the development application is for a private landing facility with a single mooring pen for the permanent berthing of a vessel up to12.2 metres LOA comprising a timber deck and ramp and including associated dredging and slipway ("the proposal").
More particularly the proposal comprises a jetty that extends in a northerly direction from the foreshore and connects to a hinged gangway that in turn connects to a floating pontoon. The pontoon is to be secured in place by two retaining piles ("the retaining piles"). To complete the mooring pen there are to be two freestanding mooring piles 5.5m apart and approximately 10 metres to the north of the pontoon ("the mooring piles"),.
On 21 December 2006 the development application (No 645/06) was determined by NSW Maritime ("the respondent") under s 27(2) of the Ports and Maritime Administration Act 1995 ("the Ports and Maritime Act") by the granting of consent subject to a number of conditions ("the consent").
Since the granting of the consent the applicant has lodged with the respondent two applications to modify the consent and this appeal is in relation to the second of these modification applications. The principal issue in the case involves whether the two freestanding mooring piles can be ‘Koppers’ treated timber with black HDPE (high-density polyethylene) sleeves ("the sleeved mooring piles") rather than of Turpentine timber with retained bark ("Turpentine piles"). This judgement concludes that the appeal should, in relation to this issue, be dismissed but that the consent be modified in relation to other agreed matters, comprising the length of boats that can use the mooring pen and the time limitation of the consent.
Section 96 applications
On 5 February 2007 the applicants lodged an application under s 96(1A) of the Environmental Planning and Assessment Act 1979 ("the EPA Act") for the modification of conditions 2, 3 and 4 of the consent ("the first modification application").
Condition 2 of the consent provides that:
The proposed jetty RL being RL + 2.5m and the proposed pile cut-off RL being RL + 3.4m above Zero Fort Denison Tide Gauge.
Condition 3 of the consent provides that:
The two freestanding mooring piles and two piles restraining the pontoon shall be constructed of Turpentine timber.
Condition 4 of the consent provides that:
The length of the deck associated with the slipway being reduced to 3.0m measured along the structure's centre line from that MHWM with a corresponding increase in the length of the ramp to maintain an RL of + 0.6m at the seaward end of the slipway.
The first modification application seeks the amendment of these conditions as follows:
The amendment of condition 2 by the adjustment of the jetty RL from + 2.5 to 2.44m.
The amendment of condition 3 so as to allow the freestanding mooring piles to be constructed of "Koppers" mooring piles with HDPE sleeves and allowing the pontoon mooring piles to be constructed of concrete.
The amendment of condition 4 so as to allow the deck associated with the slipway to be 4.25m.On 26 March 2007. NSW Maritime determined the first modification application as follows:
Refusing consent to modify condition 3 because the piles in question are a major visual element and use of alternative materials would not maintain the existing strong character deriving from the use of timber mooring and restraining piles in the vicinity. The use of alternative materials is not supported in submissions received on the application.
Modifying conditions 2 and 4 as follows
Condition 2 is amended to read "the proposed jetty shall be RL +2.5m for the majority of its length with a transition to RL + 2.44m at the landward end of the proposed pile cut-off RL shall be RL + 3.4m above Zero Fort Denison Tide Gauge".
Condition 4 is amended to read "the length of the deck associated with the slipway being reduced to 4.25m measured along the structure's from the MHWM with a corresponding increase in the length of the ramp, if necessary, to maintain an RL of + 0.6m at the seaward end of the slipway".On 30 May 2007 the applicants made a further application under s 96(1A) of the EPA Act for the deletion of condition 12 and the modification of conditions 3 and 5 ("the second modification application"). Condition 3 is as quoted above.
Condition 5 of the consent provides that:
No vessel with a length greater than 12.2m LOA, a beam greater than 4.3m, a draft greater than 1.15m, or a laden displacement greater than 12,000 kg is to permanently moor in the single mooring pen.
Condition 12 of the consent provides that:
This consent is limited to 20 years after the date of this decision and the removal of structures which impede public pedestrian access along the intertidal zone is required at that time.
On 11 July 2007 NSW Maritime determined this application as follows:
Modifying condition 3 to read:
The two freestanding piles shall be constructed of " Koppers " timber without HDPE sleeves and the two piles restraining the pontoon shall be constructed of concrete modified in profile to obtain a similar appearance to surrounding piles.
Not modifying condition 5 because:
The condition approves the maximum size of the vessel as nominated by the applicants in the original Development Application,
The proposed modification cannot be construed as being of minimal environmental impact or satisfactory when assessed against all relevant planning controls in the absence of details of the proposed increases to the vessel size to moor in the single mooring pen,
Such modification would be contrary to the public interest, and
The lodgement of a Section 96 Application which specifies the relevant vessel dimensions would be possible and assessed in accordance with the Environmental Planning and Assessment Act 1979 in the event the applicants wish to moor a vessel larger than the approved vessel size.3. Deleting condition 12
The applicants have appealed against NSW Maritime's decision in relation to conditions 3 and 5. During the hearing the applicant and the respondent agreed that condition 5 could be simply amended by adding the following words at the end of the condition:
… without the prior written approval of NSW Maritime.
In the circumstances I see no reason why condition 5 should not be so amended.
Public notification
The modification application the subject of this appeal was notified and one submission was received from Mr and Mrs Hall-Freischmidt of 142 Cammeray Road, Cammeray, whose property adjoins the subject site and who shared one of the original freestanding mooring piles. That submission details their objection to the use of alternative material for the proposed piles stating that:
We currently have three Turpentine piles in situ... and … any pile material other than the Turpentine piles would be visually and aesthetically incongruous; this would be completely out of character with the surrounding environment.
And in a supplementary letter to the Court dated 18 September 2007:
We draw your attention to the unique character of Long Bay and surrounding Bays on Middle Harbour. Long Bay has Turpentine piles that are exactly the same as our three existing Turpentine piles. If the applicant's proposal was approved it would not be in keeping with the existing Turpentine piles along the stretch of waterway. Accordingly we strongly object to the applicant's proposal in particular with respect to that "shared" jetty pile.
Mr and Mrs Hall-Freischmidt also objected to the original development Application in similar terms, emphasising the need for mooring piles to be constructed of the same material as all existing neighbourhood piles. A submission was also received from a resident of 146 Cammeray Road also stressing the need for the use of the same material for the piles as is used for surrounding facilities in order to avoid unnecessary visual impacts.
Planning controls and existing use rights
The provisions of Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 ("the SREP") are applicable to this site which is included partly within zone W6 - Scenic Waters Active Use and partly within zone W1 - Maritime Waters. The proposal is permissible with development consent in zone W6. In zone W1 a jetty is prohibited but taking into account that the proposal is to replace a previously existing similar mooring facility it is permissible on the basis of its undisputed existing use rights under the EPA Act. In this context I note that it is only the two freestanding mooring piles that are within zone W1 and that the majority of the proposal is within zone W6.
The aims of the SREP in clause 2(1) relevantly seek to ensure that the Sydney Harbour catchment, its foreshores and waterways are recognised, protected, enhanced and maintained as an outstanding natural asset that has national and heritage significance. It adopts certain principles in clause 2(2) that require the recognition and protection of Sydney Harbour for the public good and that this must take precedence over private interests. Clause 14 contains similar planning principles for the protection of the harbour's unique environmental qualities.
Clause 21 of the SREP contains a number of matters for consideration dealing with water quality, ecological communities and foreshore areas. Importantly cumulative environmental impacts and disturbance of contaminated sediments are to be taken into account. Clause 25 also contains matters to be taken into consideration particularly in relation to the scenic quality of foreshores and waterways, including built form and likely future character in the context of protecting and enhancing the unique visual qualities of Sydney Harbour. Importantly cumulative impacts of water-based development should not detract from the character and views of the waterways and adjoining foreshores. Of more direct relevance to this application is clause 27(e) that provides that boat storage facilities should be as visually unobtrusive as possible.
Also relevant is the Sydney Harbour Foreshores and Waterways Area Development Control Plan ("the DCP"). Clause 4.1 of the DCP requires that individual private facilities should not be visually dominant and should complement rather than compete with other established elements. Clause 4.9 provides that mooring piles of a material other than timber will be considered on merit.
It is the two freestanding mooring piles that are of concern to the respondent and to the objecting neighbours and but for the acknowledged existing use rights the provisions of the SREP and the DCP would be applicable. It is reasonably clear that the requirements of these instruments would, contrary to the provisions of s 108(3) of the EPA Act, derogate from these existing use rights and should thus not be applied in considering the consequences of these two mooring piles.
Notwithstanding these existing use rights, s 79C of the Act is applicable. Consequently matters including the impact of the development on the natural environment, the suitability of the site for the development, public submissions and the public interest to the extent that they are relevant are required to be taken into consideration in the determination of the modification application. In effect these matters for consideration can effectively encompass the otherwise relevant matters referred to in the SREP and the DCP. For example there can be little doubt that the protection of the special scenic qualities and the aquatic environment of Sydney Harbour is in the public interest.
Expert evidence
Expert evidence was provided on behalf of the respondent by:
Ms S Smits – consultant town planner,
Dr L Lincoln - Smith - aquatic ecologist,
Mr M Hluchan - civil engineer.On behalf of the applicant expert evidence was provided by:
Mr L. Fletcher - consultant town planner,
Mr A Morrison - aquatic ecologist,
Mr T Sims - marine contractor.
Respondent's contentions
In his submissions on behalf of the respondent, Mr Simington drew the Court's attention to condition 3 of the consent that requires:
The two freestanding mooring piles and two piles restraining the pontoon shall be constructed of Turpentine timber.
He also pointed out that condition 29 of the consent provides that:
The materials used for construction should not be deleterious to marine life, for example use of antifouling plants or treated woods. These materials inhibit marine growth and reduce the habitat available to marine life.
The respondent now contends that the appearance of sleeved piles would be inappropriate in this locality and that condition 3 of the consent should be modified as follows:
The two freestanding mooring piles shall be constructed of Turpentine timber and the two piles restraining the pontoon shall be constructed of concrete. The caps to the concrete mooring piles shall be modified so as closely as possible to match the adjacent Turpentine timber piles (ie flat topped with top rings, painted white, with no pointy caps).
By allowing the two retaining piles to be of concrete construction this condition is now consistent with the modification as sought by the applicant. There was no suggestion that these piles would have any adverse ecological impact and given their form and position behind the pontoon there was no concern regarding their visual impact. I also note that the barked and irregular shape of timber piles does not suit floating pontoons that are retained by piles. In these circumstances I agree with this modification to the condition to allow the retaining piles to be of concrete construction.
The respondent's primary contentions about the use of the black coloured sleeved mooring piles are that:
(i)The appearance of mooring piles with HDPE sleeves will look inconsistent with the other mooring piles in Long Bay which are presumably Turpentine.
(ii)That sleeved mooring piles are inappropriate due to their visual impact.
It was also pointed out by the respondent that according to the leaflet published by the Queensland Department of Primary Industries and Fisheries, Turpentine is the main Australian species for marine piling, because its high silica content makes it resistant to marine borers.
On behalf of the applicant Mr Vergotis submits that the appearance of the sleeved mooring piles will in their context be appropriate and taking into account their extended lifespan, condition 3 of the consent should provide:
The two freestanding mooring piles shall be constructed of ‘Koppers’ timber with HDPE sleeves...
Appearance and visual impact considerations
According to Ms Smits, freestanding black sleeved mooring piles are completely inappropriate in the locality due to their visual impact. This is because existing freestanding mooring piles in the vicinity of the site and generally extending between the Cammeray Marina and Folly Point predominantly (only one exception) comprise Turpentine timber that has not had its bark removed . She stressed the importance of meeting the visual consistency requirement in the SREP and the DCP in relation to landscape character and that black-sleeved mooring piles would be inappropriate because they would stand out dramatically by comparison with Turpentine piles with retained bark.
An additional concern of the respondent (concurrent with the objection of Mr and Mrs Hall-Freischmidt) involves the fact that one of the proposed freestanding piles is to be shared with 142 Cammeray Road where the three existing mooring piles comprise Turpentine timber with retained bark. As noted above the neighbour is of the opinion that pile material other than Turpentine would be visually and aesthetically incongruous and would be completely out of character with the surrounding environment.
Mr Fletcher disagreed with Ms Smits (and the objector) arguing that the visual appearance of the proposed sleeved piles will not detract from the scenic qualities of Long Bay and that they will not be incongruous with the contextual setting and character of the locality, which comprises many similar water-based developments. More particularly he said that the difference in scenic impact between rough barked piles (ie Turpentine) and the proposed smooth profiled piles is minimal and unlikely to be perceptible to any casual observer on the Harbour. In this regard he pointed out that the appearance of the piles needs to be considered in the context of the other foreshore developments in the locality including boat sheds, decks, slipways, jetties, ramps and pontoons as well as the moored boats within mooring pens and on nearby swing moorings. Also, Long Bay has examples; both private and commercial of sleeved mooring piles, including the Cammeray Marina situated about 300 metres from the site. More generally this type of mooring pile is common around Sydney Harbour and Ms Smits acknowledged that all types of piles including ‘Koppers’ both sleeved and unsleeved piles are used throughout the Harbour.
Ecological considerations
In addition to the appearance of the piles, the respondent also submits that ecological considerations should be taken into account particularly in relation to the potential release of toxic material from ‘Koppers’ piles and the resulting ecological impacts.
In their joint report the ecological experts agreed that the aquatic ecological community in which the site is situated is classified as having a high conservation status under the DCP notwithstanding the extent that the community has been modified as a consequence of urban and waterway development. They also agreed that treated timber piles without sleeves would leach metals including copper, arsenic and chromium into the sediment and the water of the aquatic environment. Also, organisms growing on such piles can accumulate these metals in their tissues. On this basis they agreed that if such piles were to be used it would be preferable for them to be fitted with full-length sleeves.
Despite these agreements Dr Lincoln-Smith was of the opinion that compared to the very large volume of water associated with two mooring piles there would be very little difference between sleeved and non sleeved piles as any of the metals used to treat the piles would disperse extremely rapidly and over large distances and would not be detectable over background conditions. Any risk associated with the use of sleeved piles would be negligible. Mr Morrison nevertheless contends that toxic leachate would accumulate at the site although it would be difficult to quantify the amount involved.
Dr Lincoln-Smith said that a condition of consent allowing the use of treated timber for piles with or without sleeves could be to require the measurement of concentrations of copper, arsenic and chromium in the water and in the sediments in the vicinity of the piles. If such metals are measured to be above background concentrations the piles should be replaced with Turpentine piles. Such an approach would assist in developing an appropriate policy for the use of treated piles.
Dr Lincoln-Smith was also of the opinion that the use of sleeved piles would have a smaller ecological impact than the Turpentine piles given that the latter would need more frequent replacement involving for example physical disturbance to the seabed. Conversely, Mr Morrison was more concerned with the ecological impacts resulting from the use of chemically treated piles, pointing out that the use of such timber is banned across Europe with specific reference to marine waters.
Mr Morrison concluded that the use of treated timber sleeved piles would have a larger ecological impact compared to the use of Turpentine timber. This is based on the lower number of exotic species shown to colonise Turpentine piles, the risk posed from the effectiveness of the sleeve and the broader ecological footprint of production and disposal of treated timber.
According to Mr Hluchan there is no fundamental objection to the use of sleeved mooring piles. He said that, in the context of the design life of most maritime structures of between 20 and 50 years unsleeved timber piles such as Turpentine could last in a marine environment for up to 30 years with adequate maintenance. Treated timber piles can last for up to 40 years.
Sydney Turpentine-Ironbark Forest is listed as an endangered ecological community under the Threatened Species Conservation Act 1995. Although there was no suggestion that Turpentine logs are unavailable for use as piles, it is understood that their quality for this purpose is declining. Mr Simms explained that because the Turpentine logs now available are not old growth forest timber and due to the improvement of water quality in Middle Harbour, Turpentine piles are now more susceptible to increased worm attack. Depending upon particular circumstances and whether the Turpentine piles are properly maintained their usable life span could be as little as 8 years.
Mr Simms also explained that that use of treated timber piles especially when sleeved, would be likely to increase the economic life of the piles to more than 25 years. This extended life will decrease the need for replacement work and the associated seabed disturbance. Also, sleeving will ameliorate the toxicity associated with the treatment of the piles. He also pointed out that sleeved piles have been successfully used at the Cammeray Marina for a number of years.
Conclusions
Whilst sleeved and unsleeved treated piles are an option for this waterfront facility and despite the fact that these piles have been used elsewhere in Sydney Harbour their use would not, in my opinion, be appropriate in this particular location.
Unsleeved treated piles would, especially as they progressively weather, have a more natural appearance by comparison with the smooth black presentation of sleeved piles. I accept that metals or chemicals that might leach from two such piles would, most likely, by comparison with other sources of such materials (e.g. from antifouling paints used on boats' hulls) be quite small and recognise the likelihood that there are existing concentrations of these contaminants in harbour floor sediments. Despite this and taking into account the inevitable leaching into the aquatic environment and the indigestion of these unquestionably toxic materials by living organisms and the resulting long-term cumulative impacts leads me to the conclusion that the use of unsleeved mooring piles is undesirable. There is also the risk, as explained by Mr Morrison, associated with the broader ecological footprint of production and eventual disposal of the treated timber. Hence, notwithstanding that the production and use of such treated timber is not unlawful for this purpose, a precautionary approach is warranted and the use of such piles is to be be avoided.
Compared to unsleeved piles the use of properly prepared sleeved treated piles would provide benefits associated with a longer life thus reducing impacts associated with the removal of failing piles and their replacement, including sediment disturbance. Also the use of sleeved piles could have a significantly reduced, possibly minimal, impact on the marine environment by comparison with unsleeved piles in terms of chemical leaching. They nevertheless still pose some risk to that environment. This risk can be increased if the sleeves are damaged and parts of the piles are exposed to weathering and seawater. As with the unsleeved product they have the same the broader ecological footprint implications. The use of Turpentine piles raises no such concerns.
As was evident from the inspection of Middle Harbour generally from the Spit Bridge to the site and beyond, various piling materials have been used for the construction of private waterfront facilities. Despite this I have decided that in the circumstances of this particular waterfront facility that the appearance of turpentine piles would, by comparison with the two alternatives, be appropriate. I have reached this conclusion notwithstanding that various other types of piles have been used in Long Bay and that the context of the proposed piles, when viewed from the waterway, comprises various jetties and the like. I have also taken into account that views of these piles are generally limited to views from the waterway against a developed residential backdrop and from some nearby residences. Also, these views are sometimes limited when boats are moored at the jetties and in the mooring pens.
In what I accept as being the relevant vicinity of the site generally between the Cammeray Marina and Folly Point, Turpentine mooring piles predominate and present a coherent character. This is especially important, as these piles comprise the outermost waterway presentation of these waterfront facilities. In these circumstances I accept the evidence of Ms Smits that the proposed black-sleeved piles would be visually obtrusive and would unacceptably compete with the established Turpentine piles. The appearance of Turpentine piles would, by comparison, be superior and appropriate.
Whilst I could conclude that treated sleeved or unsleeved piles would not be responsive to the planning controls, I give no weight to this conclusion. Nevertheless as indicated above, the heads of consideration in s79C of the EPA Act, enable me to conclude that on balance and giving precedence to visual and ecological impacts, Turpentine piles produce the best outcome. Despite the fact that Turpentine-ironbark forests in the Sydney basin and elsewhere are a nationally threatened community, when considered together the benefits of using Turpentine, particularly its appearance and the ecological disadvantages of using treated timber are sufficient to conclude that the use of Turpentine piles should be required in this instance.
Finally, I note and cannot but agree with the ecological experts who suggest that there is, in the best interests of the environment, a need for a policy on the selection of piling materials and that such a policy could assist in minimising future disputes.
For the above reasons I have decided that in relation to the two freestanding mooring piles the appeal should not be upheld. Otherwise the appeal is upheld and the development consent amended by:
The amendment of condition 3 so as to require the two freestanding mooring piles to be of Turpentine timber;
The amendment of condition 5 by adding the following words at the end of the condition: without the prior written approval of NSW Maritime.
The deletion of condition 12.___________________
T A Bly
Commissioner of the Court
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