H and J Standen Pty Limited v Minister for Planning and Infrastructure and Sutherland Shire Council - [2012] NSWLEC 1365

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: H & J Standen Pty Limited v Minister for Planning and Infrastructure & Sutherland Shire Council [2012] NSWLEC 1365
Hearing dates: 17 to 20 December 2012
Decision date: 21 December 2012
Jurisdiction: Class 1
Before: Moore SC
O'Neill C
Decision:
1.The appeal is dismissed;
2.Major Project Application 10_0017 as amended for the addition of 44 berths to the existing Dolans Bay Marina together with associated works is determined by refusal; and
3.The exhibits, other than Exhibits 1, 21, 30, M, S, and T, are returned.

Catchwords: Competing public benefits; view loss; parking; navigation hazards
Legislation Cited: Environmental Planning and Assessment Act 1979
Sutherland Shire Local Environmental Plan 2006
Cases Cited: Stockland Development Pty Limited v Manly Council [2004] NSWLEC 472
Tenacity Consulting v Warringah Council [2004] NSWLEC 140
Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289
Category: Principal judgment
Parties: H & J Standen Pty Limited (Applicant)
Minister for Planning and Infrastructure (First Respondent)
Sutherland Shire Council (Second Respondent)
Representation: Mr I Hemmings (Applicant)
Mr M Staunton (First Respondent)
Mr M Wright (Second Respondent)
Solicitors
Hones La Hood (Applicant)
Department of Planning (First Respondent)
Sutherland Shire Council (Second Respondent)

File Number(s): 10451 of 2012

Judgment

SENIOR COMMISSIONER: Dolans Bay is a subsidiary inlet of Burraneer Bay, part of the major waterway of Port Hacking which, in effect, forms the southern boundary of the Sydney urban area. Although there was some dispute between a number of the witnesses, Mr Fielder, Ms Pinfold and Mr Fletcher (in their Joint Town Planning Report) and Mr Chesterman (in his visual impact report that was tendered by the respondents) about precisely what constitutes Dolans Bay, how big it is and where we might locate the boundary of its mouth, it is not necessary for us to determine that to be able to deal with the matters requiring our attention in these proceedings.

Similarly, although there is some difference as to the extent of the marina proposal and the existing marina (either individually or in total), an area that itself underwent a degree of revision during the course of the hearing as a consequence of two amendments that were permitted to the application, we are also satisfied that it is unnecessary to provide some determined numerical precision on this point.

Dolans Bay hosts a marina. The marina has been there for in excess of twenty-five years. At the present time, it comprises twenty-nine wet berths and twenty-one swing moorings in the remainder of the bay (to which need to be added, for our consideration, a number of public swing mooring that are managed by New South Wales Roads and Maritime Services [NSW RMS]). There are some limited land facilities of the existing marina - comprising ten onsite parking spots, a ramp and an access inclinator and two slipways that are operated under lease to a third party.

The slipways are operated primarily, on the evidence, by a single shipwright and an assistant/apprentice. There are also two fuelling bowsers incorporated on the seaward side of the marina, although on the evidence of Mr Standen given during the course of the proceedings, they have not been used for fuelling for a number of years.

It is fair to say that the present state of the marina facilities could be described as "tired."

The slipways and marina facilities also were described during the course of the initial Statements of Facts and Contentions as incorporating a fitness centre, a centre that no longer operates and whose past existence we disregard, in its entirety, for the purposes of these proceedings.

The applicant made a major project application No10-0017 to the Minister (through the Department of Planning) to expand the present marina significantly.

As a consequence of the scope of the expansion proposed for the marina, it fell within the then provisions of Part 3A of the Environmental Planning and Assessment Act 1979 (EPA Act) and came to be assessed by the Department of Planning and determined by the Minister - the Minister using the Planning Assessment Commission (PAC) as his delegate for this purpose.

The matter was exhibited. A wide range of objections were made including objections by Sutherland Shire Council, one of which we note is in a letter received by the Department on the 1 March, dated 23 February that particularly objected to the proposal on the basis of:

The extent to which the proposal occupies the waterway: - the size of the marina indicated monopolises a large amount of public waterway, which would restrict the ability of the community to use the waterway for various recreational purposes.

The Department undertook an assessment and the DirectorGeneral's assessment report was eventually furnished for consideration by PAC.

It is fair to say that at a variety of points during the course of the assessment process, including in some earlier discussions prior to the lodgement of the major project application, the Department expressed concern about the size of the proposed marina extension. Nonetheless the matter was assessed on the application as made, although there was some intermediate changes of modest dimensions made to reduce the size of the marina during that discursive process.

PAC considered the matter and, on 20 April 2012, gave a determination. That determination is the subject of the present appeal. Under the heading "Commission's Consideration", PAC, constituted by Mr Payne and Dr Roseth, said as follows:

The Commission gave serious consideration to the proponent's request; however decided against agreeing to it. In the Commission's view, a proponent should be asked for additional information only where it is likely that, should that information be satisfactory, the application will be approved.

In this case, however, the Commission considers that the main reason for the refusal of the application is the scale of the proposed extension to the marina. The additional two arms proposed would have the effect of more or less filling in, visually and practically, the end section of Dolans Bay. This would result in alienating a large section of what is now public open domain. Therefore, even if matters such as water quality and water ecology could be satisfactorily resolved, the Commission would not approve a marina of the scale proposed.

The PAC then made a formal determination and refused the application on three grounds that could be summarised as follows:

overdevelopment in a visually unacceptable and bay alienating fashion;
the unacceptable amenity impacts including parking and reduced public access to Dolans Bay; and
inadequate information.

The PAC also noted that, in its view it, was inconsistent with both the aims and objectives of State Environmental Planning's Policy No 71 - Coastal Protection (SEPP 71) and the objects of the EPA Act.

In these proceedings, the Minister raises a number of contentions. They are as follows:

the project would result in unacceptable visual impact;
the project would result in the unacceptable alienation of what is now public open domain;
the project would result in unacceptable traffic and parking impacts;
the bulk and scale of the project is excessive and inappropriate in its natural and urban context;
the project would constitute a hazard to safe navigation; and
that there is inadequate information in a number of particularised fashions.

As is customary, the general topic of the public interest is pleaded but we do not understand that anything in addition to those matters that are set out and particularised is raised as matters of public interest.

Sutherland Shire Council (the council), who have appeared as the second respondent in the proceedings, adopted the contentions relied upon by the Minister and provided further additional particulars of them.

There are number of instruments, policies and the like that are relevant in a broad sense to the project. They are, however, ones that are not necessary to be considered in the same sort of detail and potentially binding fashion as arises for appeals under s 97 of the EPA Act. This occurs as a consequence of the now repealed (but still applicable to this proposal) provisions of s 75J(3) of the EPA Act that states:

In deciding whether or not to approve the carrying out of a project, the Minister may (but is not required to) take into account the provisions of any environmental planning instrument that would not (because of section 75R) apply to the project if approved.

- that is, that would otherwise apply to the project if it were not under the former Part 3A of the EPA Act.

As a consequence, the matters that we consider that we should have regard to in these proceedings (but are not bound to apply in any strict fashion) are as follows:

The provisions of SEPP 71, particularly cl 2K, "to ensure that the type, bulk, scale and size of development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area"
The Sutherland Shire Local Environmental Plan 2006 (LEP 2006), including the objectives for Zone 16 Environmental Protection (Waterways), which is the zone within which the water based elements of the proposal fall and particularly the objectives (b) "to ensure development is carried in a way that protects the ecology, scenic value or navigability of the waterways" and (d) "to allow private development only where it does not reduce or hinder the use of public beaches, intertidal areas or the waterways"

There are a number of objectives also set out in the Sutherland Shire Development Control Plan 2006 (DCP 2006) in chapter 9 at no. 6, where the objectives include, at subclause 6.a.1 (a)(g), "achieve an appropriate balance between private development and the public use of waterways". We note, however, there are no relevant controls in 6.b.6 that would appear to be called up by the present proposal.

The final document to which we consider we should have regard to are the provisions of the Port Hacking Integrated Environmental Management Plan 2007 (PHIEMP 2007), that sets out some aspirational statements for boating facilities and the like in Port Hacking, as relevant to these proceedings, in particular some paragraphs on page 32 called up by the respondents and dealt with by the applicant in its submissions.

The final matter that we consider we should have regard to, as a document, is Australian Standard 3962 of 2001, Guidelines for Marina Design, to which we will refer later.

Finally, we are satisfied, as a consequence of the decision of the Court of Appeal in Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289, that we can have regard to those matters as being matters evincing the public interest and to the extent that it might be relevant the Port Hacking Environmental Management Plan is a matter to which we can have regard, not just on the basis of Terrace Tower but also in light of the comments made by the former Chief Judge of the Court in Stockland Development Pty Limited v Manly Council [2004] NSWLEC 472. We are also satisfied that it is appropriate to have regard to the extent that it might be necessary to the planning principle published by the Court concerning view sharing published in Tenacity Consulting v Warringah Council [2004] NSWLEC 140 (Tenacity Consulting).

The proposal has evolved over some period of time, since the major project application that we are dealing with was lodged in its final form. The original application provided for fifty-three new wet berths and the surrender of twenty-two swing moorings. The marina was to be extended to the south in two arms, one to the east and one to the west - of which the one to the east was to be somewhat longer than that of the western arm. It was proposed that the twenty-two swing moorings that would be relinquished would, in part, be reallocated within Dolans Bay by Roads and Maritime Services (with the evidence indicating that a maximum of ten such additional moorings to meet unmet demand in Dolans Bay might be possible) with a desire to add the other swing moorings, if it were possible to reallocate them at other locations, to do so.

During the course of the proceedings, the proposal was amended on two occasions. The first, as a consequence of the discussions between the experts relating to navigation matters, rotated each of the eastern and western arms (at the their southern most point) five degrees or so to the east - so as to increase the width of what has been referred during the course of the proceedings as the western channel. There was no objection made to the leave to amend being granted.

During the course of the proceedings and after that amendment, we asked the parties to consider the question of whether or not we should embark on an amber light consideration of the proposal. That is a process where we ask ourselves whether or not the proposal is capable of being approved in its present form, and if not, then proceeding to ask ourselves whether the proposal can be amended by a requirement by us to render it satisfactory and to do so within the scope of the present application. If that question is answered in the affirmative, that is, the amber light is given, we are to specify the relevant amendments and require them to be carried out. If the project is incapable of such amendment, it is to be refused.

We invited the parties to inform us as to what they considered to be their relevant amber light positions. The applicant tendered a proposal (to which further attention will be given later in the judgment), which set out what their amber light position. Their amber light position included the removal of the perpendicular berths on the western side of the western arm and their replacement with five parallel and adjacent to the (western arm) berths.

The Minister's version of what could be an amber light proposal was the removal of both the eastern and western arms as presently proposed and the insertion of a single arm that would be in what is currently proposed to be the fairway between the two arms in the application.

Council's position was that no amber light existed and that there should be an absolute rejection of any marina element being added in the bay.

There are two matters that arise out of this. The first one is that the applicant indicated that the Minister's version of an amber light proposal would, in the applicant's contention, constitute constructive refusal. We have accepted that proposition and as a consequence have not paid any detailed attention to the Minister's proposal (save to note that, at least on the part of the Minister, it acknowledges the possibility [we put it no higher than that] that there may be some opportunity for some significantly lesser expansion of the marina, subject to the formulation of a proposal and its assessment, a matter about which we express no opinion).

The second is that the amber light position adopted by the council, we are of the view, meant that there is limited scope for us to consider the amber light, although in one aspect we will return to that later.

As a consequence of the evidence that was given during the course of the concurrent evidence about navigation restrictions concerning the western channel, the evidence that was given by Mr Britton on behalf of the applicant who gave evidence concurrently with Mr Fielder and Mr Burge who gave evidence on behalf of the respondents, was that with the first amended proposal there was not a sufficient width of channel to the west of the western arm to be acceptable; the details of the reasons for which conclusion it is unnecessary for us to traverse at this time.

As a consequence of the applicant's own expert conceding that that channel was inappropriate but in light of his evidence that in his opinion if the applicant's amber light position were to be the proposal, it would be of acceptable width, the applicant sought and was granted further leave to amend the project to reflect the amber light proposal that it had originally proposed (and that became the application for our determination).

The further consequence of that is that the berths proposed to be on the western side of the western arm in lieu of being fourteen 12 metre berths at right angles to the western arm became five 13 metre berths parallel and immediately adjacent to the western arm, a reduction of five berths in the proposal.

As a consequence, the final proposal that falls to us to determine is one for:

fourteen wet berths, primarily of twelve metres boat capacity but some of thirteen and a smaller number of sixteen metre boats with the surrendering of twentytwo commercial swing moorings;
a relocation of the present fuelling points on the existing marina to the pontoon leading to the eastern arm with some land based handling improvements for fuel;
pump out for effluent and bilge water to be provided for those boats that are berthed at the marina; and
swing mooring relocations with up to ten of them being in Dolans Bay.

The amendments do not reduce the number of matters that are in contention in the proceedings. Some, but it was submitted not all, of the deficiencies in information provision go away as a result of the hearing and in the interests of the just, quick and cheap consideration and disposal of the issues genuinely in dispute between the parties, the question of any contentions arising out of proposed conditions of consent have been deferred pending our determination of the substantive merit matters.

We now turn to consider the issues that require our determination.

The questions of bulk and scale in our view are in part subsumed in the issue of visual impact and in part are subsumed in the issue of comparative public benefits. So we do not consider them under a separate heading.

We turn first to consider the question of parking. The original consent for the development required the provision of fourteen on-site car parking spaces. Subsequent building and strata titling applications (concerning two residences that now exist on site) effectively alienated four of those car parking spaces - two to each of the two residences. As a consequence, the present physical parking facilities on site are ten conventional parking spaces and there is no incorporation of a disabled parking space, this being a matter that was raised by us, rather than being in the contentions.

The agreed position of Mr Hallam, the parking expert for the applicant, and Mr McLaren, giving evidence on behalf of the respondents, was that a combination of the extent of the stairs from the existing parking area to the waterside level; the ramp from the parking area to the top of the inclinator; and the dimensions of the inclinator that runs parallel to the staircase are such that even if there were a disabled parking space to be incorporated at the parking area (which would result in the removal of two of the existing parking spaces and the substitution of one disabled space), it was unnecessary to do so because there could be no access of any functional basis for generally disabled persons requiring wheelchair access as a consequence of the other restrictions.

It was also Mr Hallam's evidence (as we were also able to observe during the course of our boat based inspection) that there was a public wharf, known as Wally's Wharf, at the southern end of Dolans Bay where there was disabled parking and would be disabled access to a vessel that had departed from the marina. We are thus satisfied that this is not an issue in the proceedings.

Parking calculation figures are derived from three sources. The first comes from Australian Standard 3962-2001 for marina designs. The second comes from DCP 2006, and the third comes from the consideration of the material (provided by Mr Hallam) by Mr Hallam and Mr McLaren in their evidence.

The Australian Standard suggests for parking spaces to be provided per wet berth design for boats, there should be parking provided at a rate of between .3 and .6 spaces per berth, plus a half space per employee. DCP 2006 requires one space for every three berths, plus one space for every two employees on duty at any time. This results in a calculation pursuant to the Australian Standard of a range of twentytwo to forty-four parking spaces plus one employee parking space based on the number of berths now proposed. Pursuant to DCP 2006, it is twenty-four plus one. Mr Hallam proposes, on the basis of the survey information and his previous experience in dealing with marinas, that parking should be provided at the rate of .188 spaces per berth and Mr McLaren counter proposes that the rate should be .2 spaces per berth. In addition, each of them agrees that one employee parking space is appropriate.

It is relevant to note, at this time, that the significantly lower calculated outcomes from parking, whether one adopts Mr Hallam's number or Mr McLaren's number, arises as a consequence of Mr Hallam's evidence - the material attached to his written statement of evidence and his past experience concerning the rate of usage of boats that are berthed at marinas of this nature - that evidence being that for a significant portion of the time, the boats are simply moored at the marina and are not used for wider boating activities. At most, they might be used during the time they are at the marina as floating picnic tables.

Mr Hallam's calculations resulted in a parking provision need of fourteen user parking spaces plus one staff and Mr McLaren's at fifteen plus one staff. They agreed that there were ten parking spaces on site. They also agreed that it was appropriate to allow the three parking spaces on Parthenia Street immediately across the front of the site as being credited to parking provision for the premises. As a consequence of that, the proposal is, at its maximum on their evidence, two or three parking spaces short.

Even assuming that it is three, the survey information that is provided by Mr Hallam, although somewhat old, indicates significant availability of on-street parking at all relevant periods. Although there is some anecdotal evidence by the residents to the contrary, we are satisfied that the more precise and properly evidentially based information provided by Mr Hallam is to be preferred. So, even at the greater shortfall of three parking spaces, we have concluded that it would be appropriate for such parking to be provided onstreet and that parking deficiency provides no basis for contributing to refusal of the proposal, let alone refusal in its own right.

We turn to the question of visual impact. During the course of the site inspection we undertook a land based inspection at a variety of locations as well as a water based inspection both at Dolans Bay and round to observe some other moorings and two marinas in Gunnamatta Bay.

For the purposes of our consideration of visual impact it is appropriate to note that we went to two residences to the north of the marina, toward the head of the bay and two to the south. We also went to the rear of two properties at Gannons Road on the eastern shore of Dolans Bay. We visited two public reserves, one that we should call the Gannons Road Reserve towards the end of Gannons Road (being in fact, as we were informed, legally comprising what had been proposed to be an extension of Gannons Road but has now been turned into a public reserve) and, second, another public reserve that comprises the drainage line feeding into the head of Dolans Bay between Gannons Road and Parthenia Street.

We had the written evidence of Dr Lamb (on behalf of the applicant) and Mr Chesterman (on behalf of the respondent) on visual impact matters and we have had the benefit of a variety of photomontages prepared by Mr Chesterman in his written statement of evidence. The photomontages were prepared for seven different locations (of which we visited four) and, with the exception of the photomontage that was taken from the south looking up the bay to the north, we consider, from the other site visits, that we have undertaken a proper land-based appreciation of those visual impacts, and that from the south from our water inspection we have a proper appreciation of that impact.

As we earlier noted, the question of visual impact was a particular reason for the PAC refusal of the application. There are a number of matters that we require to consider.

The first is the view from the public reserves.

With respect to the Gannons Road Reserve, in what had been the extension of the road reserve proper, there is little evidence of public use from our inspection. There are no facilities. To view where the marina is, it is necessary to walk down a driveway and then down a sloping grassed surface toward the edge of the bay. There are viewing opportunities from a rocky outcrop at the grassed surface level from which we observed the marina site and there is the opportunity to climb down to the shore, which we did not do, to observe the site. There is, we considered on the basis of the likely use of this reserve, little or no (but certainly negligible) public visual impact detriment that would arise if the application were to be approved.

As to the second public reserve at the head of the bay along the creek line, we are satisfied that Mr Chesterman drew an erroneous conclusion for his photomontages as to the location of the public reserve - this arising as a consequence of the fence lines erected in the vicinity which do not follow property boundaries. The public reserve is, in fact, comparatively narrow, confined to the drainage line and reasonably heavily vegetated. It was our conclusion, made as an observation to the parties' representatives during the course of the site inspection, that, at the most, there would be an extremely limited glimpse from an extremely limited location within this public reserve of the proposed extension to the marina.

We are satisfied, as with the Gannons Road public reserve, that there is little or no detriment to observation from the public domain from this reserve and certainly not anything that warrants contributing to refusal (let alone warranting refusal in its own right) as a consequence of that impact, or the accrual of both impacts from the public domain locations.

The second place that we should consider on visual impact is that from 231 Gannons Road. These premises are a residence located, effectively, at waterfront level. This is, although there was a second premises adverted to, the sole premises to which we were specifically directed during the course of the site inspection. We were provided with photomontages by Mr Chesterman on both a before and after basis of what would be the outlook from these premises. It is fair to summarise the impact of the marina extension as interposing a wall or row of boats visible from the residence that would obstruct the view of the land water interface on the south-western side of Dolans Bay. Tenacity Consulting, to which we have earlier referred, attaches a deal of importance to what are described as iconic views including land water interfaces.

We were also provided by the applicant with a photograph of a boat moored alongside the jetty or pontoon facilities at 231 Gannons Road and we are satisfied on the basis of what we can conclude about the nature of that boat and the tides depicted that it is unlikely that there would be any significant obstruction of the existing view or any view towards a future marina extension by that boat at that location.

We are satisfied that the impact on the visual outlook from 231 Gannons Road is likely to be significant. It is, however, we note a significant impact on a single property and thus, in our opinion, is to be regarded as minor in the overall scheme of things concerning visual impact.

We inspected the views toward the existing marina and at or over the extension proposals from four residences on the southern side of Parthenia Street, two of them to the north and two of them to the south. That included, at the north, inspection from the waterfront level. It is fair to say, in our opinion, that the view from these locations should be regarded in two quite separate chunks. The first is the view from the elevated residences themselves and then, second, the view from the other areas associated with these residences but closer to the waterfront and lower than the residences.

With respect to the elevated residential views, the views from the living areas (including the outdoor balcony areas) will be over the proposed marina extension. There will be no loss of the water-land interface to the east. Similar considerations, we should note, also apply to the views from the two residences we inspected at the end of Gannons Road. There will be more boats in the view and they will be more tightly converged than would be the present view of the bay. It is, however, reasonable to expect that there will be boats in the bay.

The outlook will change and it will change in its density, but, nonetheless, it will remain a maritime outlook to a comparatively confined bay with but a different arrangement and density of the boats that are there.

With respect, we are unable to agree with the PAC's conclusion that the change to the visual outlook from the residences is such as to warrant refusal of the proposal. It could, at most, constitute a minor contribution to a refusal, if added to a sufficient number of other factors. We have in this consideration had regard to Tenacity Consulting, but have not applied it as any form of strict test.

The same broad principle applies with respect to the outdoor entertainment and recreation areas of any of these properties, to the extent that they either go down slope to the water or, in the vicinity of the Gannons Road properties, go down slope to the public reserve at the rear of them.

We consider that there may be a greater impact on those areas, but that should be balanced against the likely lesser use of them and the same conclusion should be drawn concerning the visual impact on those areas as applies overall.

As a consequence, we do not conclude that there is any visual impact reason to refuse the application.

We turn now to the question of navigation. There are three issues that are raised with respect to this. The first (and most complex) is the question of the viability or otherwise of the western channel; the second is the raising by Mr Fielder (what could charitably be described as late in the day), of issues concerning the eastern channel; and the third is a matter, raised by us, concerning the adequacy of the width of the central fairway between the two arms. The Minister also pleaded, in the contentions, that, by implication, there should have been a proper navigational safety assessment of the impact on the proposal on the whole of Dolans Bay as part of this.

We turn to consider the question of the western channel. We were engaged in a lengthy discursive bout of concurrent evidence by the three maritime experts, which included, at least from our point of view, the exploration of previously unexplored concepts such as Indian Spring Low Water and the like concerning what might or might not be the ability for safe navigation in the western channel that is between the berths on the western side of the western arm and the jetties and pontoons on the western shore of Dolans Bay. There was a discussion based on the size of a number of boats presently either moored at or operating in the vicinity of the marina, as to whether they could or could not pass and whether they would or would not be able to park at any of the facilities along the western side of the bay accessed from residences in Parthenia Street.

On balance, we are persuaded by the evidence of Mr Britton, that it is probable that there is an adequate western channel proposed by the now amended proposal. That is for larger vessels up to sixteen metres in length to pass and re-pass if they need to or desire to access the comparatively limited area of the western portion of Dolans Bay that would be accessible if the marina were to be extended.

To the extent that there is some potential conflict of two vessels plus human operated small water craft such as kayaks, dinghies, sailboards and the like, if we were to have concluded that that was the only impediment to the granting of approval of the proposal, that would be capable of rectification, in our view, on an amber light proposal basis by the deletion of some or all of the thirteen metre berths on the western side of the western arm proposed for the marina, and the deletion of the western side of the end pontoon of the western arm.

We are satisfied that the likely size of boat, disclosed from the evidence of those witnesses, that it would be possible for passing to occur, and we also accept the proposition that was put by Mr Britton that if the large catamaran currently moored at what is known as Berth No 9 on the final design proposal (that is one with a length of eighteen point five metres and a beam of approximately nine metres) were to be seeking to enter the western channel in conflict with another vessel of similar dimensions, travelling in the opposite direction, prudent navigation practice would have the skipper of one of one of the vessels pause to let the other one pass.

We now turn to the question of the width of the fairway between the two proposed arms. The Australian Standard provides in 3.1.2(a)(i) that there should be a minimum width for a fairway of 1.5 times the length of the longest boat using that fairway in metres. That would require a fairway, given that there are 16 and 12 metre berths on either side of the fairway, of eighteen to twenty-four metres.

The pinch point, which is on the final plan between the end of the bows of the vessels that would be moored in Berths 71 and 42 (being a sixteen metre and a twelve metre vessel respectively together with an allowance of half a metre at the stern of each one of them) creates a pinch point that is non-compliant with the Australian Standard. The non-compliance is also capable of cure, in our view, by restricting Berths 71 and 72 to twelve metres and a shortening of the pontoon between those two berths. The width of the central fairway, therefore, is not a basis of providing any comfort to or support for rejection of the proposal.

In his oral evidence, towards the conclusion of the navigation evidence, Mr Fielder raised concerns about the navigation impacts that he said would arise as far as the eastern channel is concerned. We do not have any sufficient detail with respect to that. It was not, as we understand, in the contentions specifically pleaded in any sort of particularised fashion. We are satisfied that, to the extent that there might be some concern about it, it is certainly not of the nature of that that arose with respect to the western channel and would not provide any basis for rejection of, in whole or as a contributory element of the proposal.

The final matter with which we need to deal is the question of whether there is a public benefit in permitting the alienation of the waterway, which outweighs any public detriment that might arise as a consequence of doing so.

These facilities are private facilities that are operated, or would be operated, in a fashion that would provide a benefit to the owners of the boats who would be moored at that location. That is, they are a private facility that would be operated for profit but provides, on the applicant's case, a public benefit.

We accept that such a broad concept is an uncontroversial proposition to be adopted - a simple analogy with bus services is sufficient to demonstrate why.

Bus services, whether provided by a private operator or by the State Government through the State Transit Authority, provide a public benefit and the nature of the public benefit is unrelated to and not dependent on the motive of the person or entity that is providing the service.

A similar position prevails here, both with respect to that which is proposed to be provided by the marina and that which is currently offered by the ferry operator, an objector of the proposal, whose information will be considered in greater benefit later in this decision. It is essentially a balancing between the public benefits that are provided by the marina with the public benefits that are provided through that ferry operator's activities.

Before dealing with what are the issues that arise with respect to the public benefit balance, we should enumerate a number of matters that we have expressly concluded should not be considered in this regard.

The question of whether or not there is public access to the marina (there being no public access to the marina or its carpark as evidenced by a number of photographs that were tendered) is a matter that we are satisfied is not relevant.

Second, the fact that there are no public fuel sales (and indeed, on Mr Standen's evidence, that there have been no fuel sales whatsoever for the past three years or so) is also a matter that we set aside as being irrelevant as to whether there is or is not a public benefit.

The final matter is the question of the pump-out of bilge water and effluent, which on Dr Martens' report at clause 3.3.2, page 9, where he says, "the pump-out facility will only be used for the marina boats with no pump-out system access to the public" is also a matter that we set aside as we consider it has no weight to be given in the question of the balance between the public and private benefit issues.

We also need to consider the extent to which the matters raised by Ms Linsley, concerning the drainage and pollution protection measures for the southern slipway, fall into this area. Ms Linsley, who gave evidence on behalf of the council, pressed the proposition that the drain at the lower end of the southern slipway should be elevated to match the height of the drain of the northern slipway. The necessity for and benefit of this was disputed by Dr Martens but, at its highest, Ms Linsley's evidence was that there would be some public benefit in requiring this.

However, Mr Hemmings has satisfied us that there is no connection, reasonably able to be drawn, between the discussion of the southern slipway and the application that is currently before the Court. We are satisfied that we would be acting in excess of jurisdiction if we were to order works to be carried out to the southern slipway and, as a consequence, there is no public benefit to be derived from consideration of Ms Linsley's proposal and therefore put into the balance between the other competing public benefits.

The issue arose between the parties to the extent that there might be demand for the increase in the wet berth facilities proposed for the marina. The fact that there is competition for space, including competition for boat space of this nature, is to be derived from both the Port Hacking Integrated Environmental Management Plan, which under clause 5.2.2 'Social issues', acknowledges that there are a variety of natures of competitions for space in using this waterway - and secondly, from the specific information provided by Mr Fletcher - who gave town planning evidence on behalf of the applicant contained in a supplementary statement of evidence - that demonstrates that, on studies undertaken by the State Government, that for Botany Bay and Port Hacking, the number of recreational boats was likely to increase from roughly 24,000 in 2009 to either 30,000 or 39,000 by 2026, depending on which methodology you use.

There is no doubt, however, in our view, that there is what might be described as a broad demand for water-based facilities for boats in both Botany Bay and Port Hacking. Mr Fletcher's statement of evidence, in this regard, concluded under the heading, Alternatives to the Project, the following:

There are few if any alternatives available for the provision of additional marina berths on Port Hacking to meet the projected demand. At the present time there are only four (4) commercial marinas existing on the Port Hacking and one club marina...

He then elaborated:

Like the Dolans Bay Marina, most of the above are located within Residential zones and rely on the existing use provisions of the Environmental Planning and Assessment Act 1979 for their continued operation. It is considered that each of the other existing marinas has little or no potential to expand beyond the current approved number of berths. Additionally, each of the other facilities are considered less suitable as they are in locations that afford much less protection from prevailing storms and therefore do not offer the same shelter as Dolans Bay.

There are no other properties fronting Port Hacking with a zoning that would permit the development of a new commercial marina.

With respect to Dolans Bay Marina, as opposed to the more general statements that are made by Mr Fletcher, we have first the evidence of Mr Standen in an affidavit that was read in the proceedings, where at para 8 he says:

We have not kept a formal waiting list for marina berths or moorings but, until Dad [that is his father, who was formerly the manager of the marina] became ill in June, the marina and mooring have generally been full with extra demand being turned away.

However, in cross-examination, Mr Standen conceded that he did have access to the business records of the applicant and had not interrogated them for the purposes of working out occupancy rates of the marina. Mr Fletcher's evidence in cross-examination was that he had made no enquiries of the applicant as to what demand there might be.

We have, with respect to the demand for swing moorings, evidence in the Port Hacking Integrated Environmental Management Plan that, as at 1 July 2007, there was a demand for public moorings in Dolans Bay of twenty-three and we had other subsequent evidence that indicated that that demand had been increasing.

We have considered it appropriate to consider the applicant's case at its highest on this point and only if the applicant is successful at that level should we proceed beyond to consider what conclusion, if any, we might draw with respect to Mr Standen's and Mr Fletcher's evidence about demand.

On the basis that the facilities proposed would be fully occupied and that the existing marina would be fully occupied, it is necessary for us to have regard to the fact, as previously evidenced from Mr Hallam's material, that there is a significantly low rate of utilisation of boats that are on such storage. His material attached to his statement of evidence filed on 18 October in a survey of boating usage and demand appended to his statement of evidence, makes this quite abundantly clear. That, as earlier noted, is a proposition agreed to by Mr McLaren, in the comparatively small differences that they pose between them as to the rate of parking provision required for marinas based on actual uses rather than the higher, more theoretical numbers derived from either the Australian Standard or the DCP 2006.

Therefore, we proceed on the basis of assuming that all of the wet berths would be occupied, that there would be an additional ten swing moorings. Vessels moored on them would, on Mr Hallam's evidence, have a slightly higher utilisation rate than would attach to the wet berths, but nonetheless it does not contemplate anything of the nature like a daily use at weekends of all vessels throughout the summer months, for example.

This public benefit, adopting it as a public benefit for those vessel owners, is to be balanced against the competing public use aspects of the bay. There are two aspects to this. The first is the purely local use of the bay and the second is that of the operation by the commercial ferry company.

One of the resident's submissions says, amongst other things, on the topic of navigation issues - navigation issues being raised in a much broader sense than that dealt with by the navigation experts - was in the following extract taken from p 46 of the resident objector bundle under the heading, Navigational Routes.

Dolans Bay is a small bay that is occupied by a relatively large number of swing moorings and their attendant vessels. In theory these vessels might create navigational impediments. In reality, because of wind and tide vessels tend to align themselves such that there are numerous navigational channels that allow easy ingress and egress.

This is not the case with the fixed structure being proposed. It would create an impenetrable barrier for much of the western side of the bay. Boats trapped on the western shore (such as those of residents) would be forced to travel a lengthy and narrow route along the shore.

Many private boat owners and users are imperfect boat-handlers, the restricted route that they would be forced to take constitutes a significant hazard, particularly as a marina-generated traffic will be considerably increased.

There was also local resident evidence about familial use by smaller human-powered watercraft.

The more substantive issue, with respect to navigation of the bay, was raised on behalf of the Cronulla and National Park Ferry Cruises. First we had the letter from Mr Carl Rogan, a director of the company, which was incorporated at p 88 in the Resident and Objector Bundle:

Our cruise vessels regularly enter Dolans Bay. The Tom Thumb III our Daily River Cruise vessel operates scheduled river cruises 304 days a year (weather permitting). Operating daily September through March and four days a week June, July, August. This vessel enters Dolans Bay every cruise.

Our premier dining cruise vessel the TSMV Gunnamatta conducts five (5) scheduled dining cruises weekly throughout October to April, Wednesday lunch, Wednesday, Thursday, Friday Sunset Dinner and Sunday morning Champagne Breakfast along with monthly Sunday afternoon Live Music cruises and private charters - including weddings and corporate events. From May through September the Gunnamatta is available for private charter.

Throughout the months of November/December 2012 we will operate 128 cruises carrying 3054 passengers of which half will enter Dolans Bay.

During the course of the onsite evidence, we heard evidence on behalf of the ferry operator by Mr Dave Ward. He said, in the notes that have been settled between the parties and provided to us in evidence, relevantly:

We operate ferries and cruises in Port Hacking. Cruises regularly visit Dolans Bay. The dining vessel, five cruises a week, visits Dolan Bay. The impact of the size from twenty-nine to eighty-two give or take, swing moorings, impact on us is how deep we can come into the bay. We operate the Carols by Cruises event - was last night - four of our vessels participate, we had a flotilla of 100 boats. An increase in the marina would impede access.

During the course of his evidence, Mr Ward marked a plan of the bay - that was not contested by any counter-evidence from the applicant - showing the general navigation path adopted by the vessels of this operator. In general terms, approximately a half of the western arm proposed would fall within the navigation path of the ferry and it would be impeded by a significant element of the eastern arm. The operator would be significantly impeded from its depth of entry into Dolans Bay.

Just as we consider it is appropriate to consider the broader public benefit of providing wet mooring spaces for boat owners, it is also our responsibility as a counter-balancing public benefit, to consider the public enjoyment of the waterway from vessels such as those operated by the ferry operator. In neither instance is it necessary or appropriate for us to consider what might be the motives, that is the profit motives, of the operator or the interest or recreational motives of those who either use the moored boats, either for use at the marina or for navigating the waterways, or for those who take advantage of the facilities operated by the cruise operator.

We are, however, satisfied that the public benefit provided by the cruise operator, together with the much smaller and more confined public navigation benefit that is provided to the local resident boat owners, significantly outweighs any public benefit that is conceivably capable of being provided by the marina. As a consequence, the orders in the proceedings are:

1. The appeal is dismissed;

2. Major Project Application 10_0017 as amended for the addition of 44 berths to the existing Dolans Bay Marina together with associated works is determined by refusal; and

3. The exhibits, other than Exhibits 1, 21, 30, M, S, and T, are returned.

Tim Moore

Senior Commissioner

Susan O'Neill

Commissioner of the Court

Amendments

29 January 2013 - Typographical error - Solicitor for the Applicant changed to Hones La Hood

Amended paragraphs: coversheet

Decision last updated: 29 January 2013

Actions

Download as PDF Download as Word Document

Citations

H and J Standen Pty Limited v Minister for Planning and Infrastructure and Sutherland Shire Council [2012] NSWLEC 1365

Most Recent Citation

H and J Standen Pty Ltd v Minister for Planning and Infrastructure [2014] NSWLEC 113

Cases Citing This Decision

1

H and J Standen Pty Ltd v Minister for Planning and Infrastructure [2014] NSWLEC 113

Cases Cited

3

Statutory Material Cited

2

Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289

Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472

Tenacity Consulting v Warringah [2004] NSWLEC 140

Medium Neutral Citation:	H & J Standen Pty Limited v Minister for Planning and Infrastructure & Sutherland Shire Council [2012] NSWLEC 1365
Hearing dates:	17 to 20 December 2012
Decision date:	21 December 2012
Jurisdiction:	Class 1
Before:	Moore SC O'Neill C
Decision:	1.The appeal is dismissed; 2.Major Project Application 10_0017 as amended for the addition of 44 berths to the existing Dolans Bay Marina together with associated works is determined by refusal; and 3.The exhibits, other than Exhibits 1, 21, 30, M, S, and T, are returned.
Catchwords:	Competing public benefits; view loss; parking; navigation hazards
Legislation Cited:	Environmental Planning and Assessment Act 1979 Sutherland Shire Local Environmental Plan 2006
Cases Cited:	Stockland Development Pty Limited v Manly Council [2004] NSWLEC 472 Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289
Category:	Principal judgment
Parties:	H & J Standen Pty Limited (Applicant) Minister for Planning and Infrastructure (First Respondent) Sutherland Shire Council (Second Respondent)
Representation:	Mr I Hemmings (Applicant) Mr M Staunton (First Respondent) Mr M Wright (Second Respondent) Solicitors Hones La Hood (Applicant) Department of Planning (First Respondent) Sutherland Shire Council (Second Respondent)
File Number(s):	10451 of 2012