Lasotav Pty Ltd v Sutherland Shire Council

[1989] NSWLEC 206

Land and Environment Court

of New South Wales

CITATION:	Lasotav Pty Ltd v Sutherland Shire Council [1989] NSWLEC 206
PARTIES:	APPLICANT Lasotav Pty Ltd RESPONDENT Sutherland Shire Council
FILE NUMBER(S):	10611 of 1988
CORAM:	Stein J
KEY ISSUES:	:-
LEGISLATION CITED:	Pure Foods Act Environmental Planning and Assessment Act 1979
CASES CITED:
DATES OF HEARING:
DATE OF JUDGMENT:	06/15/1989
LEGAL REPRESENTATIVES:	APPLICANT Mr. Neustein

JUDGMENT:

Heavy metal and saccostrea commercialis

This is an appeal by Lasotav Pty. Ltd. pursuant to s.97 of the Environmental Planning and Assessment Act against the decision of the Sutherland Shire Council on 14 July 1988 to refuse development consent to the redevelopment of the Como Marina to create a 72 berth marina.

The site of the proposed development is at No. 2 Cremona Road which lies just to the east of the railway bridge which crosses the Georges River at Como. The existing marina is on the southern shore of the river immediately downstream from its confluence with the Woronora River.

The proposal is designated development under the Act. An Environmental Impact Statement (EIS) was prepared by Macdonald Wagner Pty. Ltd. and exhibited between 17 March 1988 and 18 April 1988. The application was advertised on two occasions in March 1988. Some 27 objections were received by the Council from local residents and organisations as well as a petition with 482 signatures opposing the application. Additionally, the application was opposed by the Oyster Farmers Association.

Zoning

The land based component of the marina is zoned Open Space 6(a) Recreation under the Sutherland Planning Scheme Ordinance. The erection of buildings or the carrying out of works for the purpose of marinas is prohibited but existing use rights exist. Marina operations have been conducted on the site for many years and no appreciable expansion of the land based activities is proposed. The waterways of the Georges River are zoned 7(a) Waterways under the Planning Scheme and marinas are a permissible use with consent. The existing 24 berth marina on the site was approved by the Council in 1977. There are presently 16 swing moorings adjacent to the marina and it is proposed that these moorings be removed to free up water for the proposed 72 berth marina.

Officers of the Council recommended conditional approval. However, Council did not adopt this recommendation and refused the application for the following reasons:-

"1. The proposal fails to fully satisfy the Director's requirements as the coverage of fire control, impact on the tidal baths, alternatives and justification for the proposal is unsatisfactory as considered pursuant to cl. 34(f), (h) and cl. 35 Environmental Planning and Assessment Regulation, 1980.

2. The proposal is an overdevelopment of the site as considered pursuant to ss.90(1)(b), (e) (f) Environmental Planning and Assessment Act, 1979.

3. The use of anti-fouling agents and other chemicals associated with marina use is likely to adversely affect the adjoining tidal baths and oyster farms as considered pursuant to ss.90(1)(b), (d), (h), (o), (q), (r) Environmental Planning and Assessment Act, 1979.

4. The proposal will have an adverse impact on the scenic quality of the area as considered pursuant to ss.90(1)(c), (f) Environmental Planning and Assessment Act, 1979.

5. The proposal does not achieve objective 65(a) Division 15 - Foreshores and Waterways Draft Sydney Regional Environmental Plan (Botany Bay) as considered pursuant to s.90(1)(a)(ii) Environmental Planning and Assessment Act, 1979."

I think it is fair to say that grounds of refusal 1 and 5 have not been pressed during the hearing of the appeal. Indeed, the principal issues litigated came down to:-

(i) the visual impact of the proposal;

(ii) the effect on the adjacent public tidal baths;

(iii) the effect on oyster leases in the Georges River; and

(iv) the design adequacy of the plan in the EIS and an amended design tendered during the hearing.

The proposals

The Plan in the EIS is for 72 berths in an F configuration (I will call this plan Mark 1). An amended design dated 25 April 1989 was attached to a planning report of Mr. Neustein and tendered as Ex. 2. This has a different configuration with two fingers stretching north, the easterly of which has a section at its end running in an easterly direction, and provides for 74 berths, (Mark 2). Late in the proceedings a third design was produced by the applicant with yet another configuration generally similar to the second plan but with 72 berths, (Mark 3). The applicant, it appears, puts these plans to the Court as alternative proposals. The Council has dealt with the plans as best it could as they have come forward. Nonetheless, there does not appear to be any particular prejudice to the Council or the objectors by the late plans because they are similar and have only marginally different impacts. Indeed, Mark 2 and 3 may have less impact on the adjacent tidal baths and public recreation area. No objection is tak

en to the lack of readvertisement, nor is it suggested that a fresh EIS is necessary in the circumstances. I accept this situation, (see s.85 of the Act).

The scene

It is necessary to paint a little more detailed sketch of the proposal and the immediate area. In the vicinity of the site the River is to some extent dominated by the Como railway bridge and the adjacent old railway bridge now used as a pedestrian walkway and cycleway. Just to the west of the bridges is the junction with the Woronora River and Mangrove Island which is covered with mangroves, mud flats and oyster leases. On the northern side of the Georges River to the east of the bridge is Neverfail Bay which contains a number of oyster leases. Neverfail Bay is opposite the marina. The tidal baths are immediately adjacent to the marina and run east-west. The baths have been in use in various forms since early this century and it also appears that at least some of the land based area of the marina has been used for boating activities since the early 1900's. Behind the tidal baths is a shallow 20m chlorinated pool used mainly by young children. The adjacent headland is a public recreation and picnic area which

is a delightful spot with many facilities and commands impressive views. South of the small headland is Scylla Bay and Carina Bay (often referred to as Double Bay) which both contain oyster leases. Not far away from the site is the historic Grand Como hotel. The general area is well vegetated. Residential areas are located beyond these areas as well as on the opposite shore of the River.

An existing fixed timber marina jetty extends about 73m into the River and caters for 24 berths as well as fueling facilities. Additionally there are 16 swing moorings close by to the north and north-east of the jetty. The EIS Plan (Mark 1) involves a nett increase of 32 moorings to 72 berths for boats of up to 12m, but mostly 8-10m craft. This plan has a primary walkway approximately 120m long. Two secondary walkways or fingers extend 60m and 100m respectively from the primary jetty in an F configuration. Berths are located off both sides of these fingers. The concept plan Mark 2 increases walkway lengths in a different configuration. This design also involves almost twice as many freestanding mooring piles as the EIS plan. The design plan Mark 3 is similar in dimensions to the second plan except that the eastern extension of the northern arm is reduced in length. The subsequent plans are intended to open up the area in front of the baths and allow better movement in and out of the berths, slips and marina f

acilities.

Visual impact

On behalf of the Council its Senior Town Planner, Mr. McPherson, gave evidence. He believes that the effect of the EIS proposal will be to visually enclose the cove and severely deplete the current views and amenity. In his opinion the proposal will take up almost all of the water area available from opposite the baths to the western shore. The proposal will lead to an area of dead water close to those shores which will be useless to the public because it will be contained by the marina. The marina use will become dominant and override the other main features of the area, such as the old railway bridge and the baths. The open views from the baths and adjacent public recreational area will be adversely affected. The result will bring a substantial change in the character of the area. In his estimation Plans Mark 2 and 3 will have a similar deleterious effect although Mr. McPherson believes that, from a visual point of view, and depending upon where one stands, a person may receive the impression of a more dens

e wall of boats with two north/south arms running parallel.

Many of the objectors expressed concern over the visual impact of the proposal, especially when viewed from the pool area. A large number of them were worried by the size of the proposed development and its effect on the scenic beauty of the area. Concern was also expressed for the effect of the development on the popular and extensively used recreation and picnic area and the tidal baths. While some of the objections are somewhat emotive, what comes clearly through to the Court is a concern that the proposal will change the character and balance of the environment so that the marina will dominate.

Indeed, a number of objectors referred to the size and scale of the development and its adverse effect on the visual amenity of the locality. Mrs. Johnson, who gave evidence, referred to the sight of a row of boats producing a hemmed-in feeling in the tidal pool area. Many did not find the sight of a 72 berth marina of cruisers and power boats a pleasant one referring to it, for example, as "an eyesore", "ugly", "visually polluting", "countless boats obstructing the view", "visually unpleasant" and "disruptive of beautiful river views". Some voiced concerns for the future of "the unique foreshore environment" and the detriment to the recreation grounds by the presence of the extended marina in what was described by one objector as "a small secluded corner of the river". Others expressed the view that the tranquility and relatively peaceful atmosphere of the area would be disturbed. I have no doubt that some of the objectors' opinions are coloured and some even extravagant. Nonetheless, I am sure that their op

inions are genuinely held and reflect a high level of resident concern for the development.

The applicant called a consultant town planner, Mr. Neustein. He made the point that the visual impact of the marina would be mitigated by the proposed floating berth system which sits low in the water and moves with the tide. This, he said, would be less obstructive than the existing fixed jetty. The Council planner did not accept this opinion and neither do I. I do not believe that the form of the marina, floating or fixed, will make any appreciable difference to its visual impact. In his report tendered in evidence Mr. Neustein said:-

"When viewed from the northern side of the river, the northern bank and the bridge, the landscape of the south bank is dominated by the water based features of the river and the bridge. Land based features also dominate behind and to the west, and east of the marina. In this context the boats of the existing marina appear as an expected man-made addition to the "riverscape". Given the domination of the landscape by the water and bridge, it is not anticipated that the proposed increase in boat moorings will adversely affect the landscape or views from the north.

Views from the tidal swimming enclosure are already restricted by the limited viewpoints and elevation of the pool above water level. Any proposal to replace the swing moorings with a pontoon system will have no significant adverse impact on the views of people using the pool."

However, Mr. Neustein went a little "overboard" (if I may use that expression) when he said:-

"Art is generally accepted as a mirror of that which is considered beautiful by society at large. Whilst individual perceptions may vary, boating scenes and boats have been considered objects of beauty by the general public for at least three to four centuries. Such consideration is reflected in the paintings of such artists as Canaletto, Guardi, Turner, van Gogh, Derain, Kokoschka, Sisley, Pechstein, etc."

The consultant indicated that from a visual analysis point of view he saw little difference between the three plans. The physical difference would not be so apparent to the eye. Further, marinas were a visually pleasing part of Sydney's waterways and "their development and extension is a logical process of the increased use of Sydney's waterways". Mr. Neustein went so far as to say that the visual amenity of the region will be "improved and enhanced" by the development and there was no adverse effect on the scenic quality of the area. The development was more desirable than allowing the existing swing moorings to remain.

I conclude that I prefer the evidence of the Council Planner, Mr. McPherson. However, in saying so I accept Mr. Neustein's point that "individual perceptions" or "individual preferences" may operate as to whether a marina is visually pleasing or displeasing, (see for example pp.42-43 EIS) It is this very fact which tends to limit the value of expert evidence on visual impact. Nonetheless, the considerable photographic evidence and other aids have assisted me in coming to a conclusion. An inspection of the area from the land and from the water has also helped me gain an understanding and insight into the evidence.

Como is a small and quite charming cove. At the moment the ingredients making up the environment are in reasonable balance. The attractive public recreation area on the small headland, the tidal baths, the foreshores, the existing marina, the old railway bridge and the water of the river all contribute to a pleasing scenic quality. They do so because no one feature is too dominant. A degree of reasonable harmony is present by the co-existence of the uses and landmarks mentioned. However, after assessing the evidence, it is my opinion that the development will tip the existing balance because the marina will become the dominant feature of the landscape. To a large extent it will become the focus of the inlet and, from a visual point of view, take it over.

The marina activities will likely dominate the tidal pool and public reserve to the detriment of those adjacent areas. From the land and various points on the water the marina will have an adverse impact on the scenic quality of the locality. Its size, density and character will undoubtedly impact on the adjacent public uses, which reflect the open space zoning. The relationship of the development to adjoining land will be to the detriment of the latter. It is the sharing of a public amenity which, in my opinion, will be harmed if the development proceeds. I accept the Council's submission that the effect of proceeding with either of the 3 plans will be to visually enclose the area and deplete some of the current views.

In my opinion the development will ring a change in the character of the area by making the marina the potent feature in the landscape. Whenever extensions of any development are proposed it is usually necessary to gauge the effect that they may have on the surrounding environment. So it is in this case. I would not go so far as to accept the submission of Mr. Grogan for the Council that the granting of development consent to the proposal will lead to the marina virtually monopolising the area. Rather, I take the view that the effect on the scenic quality is of an unacceptable level of intrusion upon the landscape in that one element or activity will become too physically and visually dominant. This taken alone is, in my opinion, sufficient to reject the application. In so concluding I have been careful to put aside "individual preferences" or "individual perceptions".

The tidal baths

It is the contiguity of the tidal pool to the marina which has prompted many objections by users of the baths. A number of perceived affectations are raised by the objectors. Mrs. Dimmack and Mrs. Johnson gave evidence of the extensive club activities conducted at the pool, including highly organised learn-to-swim programmes. A number of specific complaints are made including disruption to swimmers caused by boat wash; pollution by oil, bilge and faecal contamination; damage to the pool netting; noise; loss of views and of the free flowing flushing system of the pool. Mr. Bourn, a Council lifeguard, gave evidence of damage to pool netting caused by boats and of pollution in the baths.

The evidence establishes one serious oil spill in February 1988 when the baths had to be closed. This was the result of a thoughtless and careless act of a customer of the marina at the slipway but was not caused by a permanently moored boat. Mrs. Dimmack says that the pool also had to be closed in November 1988 because of oil, but it does not appear that this was brought to the attention of the marina owner.

It is the Council's case that, with more boats at the marina, there is a likelihood of more frequent oil spills (and other pollution) with a resultant deleterious effect on the pool and its use. Mrs. Johnson also describes a black sludge or globules at the pool edge which stains costumes and skin. Mr. Bourn's evidence of his cleaning of the pool supports this contention. However, there is no direct evidence to connect this sludge with the marina and it may come from upstream and be carried with the tide.

It appears that boat damage to the pool netting has been reduced by a repositioning of the netting, although damage still occurs occasionally. However, if Plan Mark 2 or 3 is adopted damage to the netting by boats should be reduced and it should be noted that some damage to the netting is caused by vandalism unassociated with boats.

It is fair to say that the plan in the EIS probably has more potential impact on the baths than the later plans because of the proximity, service arrangements and configuration of the marina in the plan Mark 1. This may also affect disruption caused to the pool by wave action from boats.

Oil floating on the surface of the water, and other surface contaminants, may be contained and prevented from entering the baths by a boom proposed in evidence by Mr. Willoughby of McDonald Wagner. However, the main problem with this is its possible interference with boat traffic and the fact that it does nothing to impede contaminants below the boom. Nonetheless, if consent is to be granted the suggested floating boom would help control oil entering the pool. The provision of the proposed pump out facilities should also lead to less possibility of pollution of the baths. Faecal contamination is suggested as a problem by Dr. Ayres but there is no hard evidence that, to the extent that it exists in the pool, the cause emanates from the marina.

I have no doubt that the marina activities already reduce the enjoyment of the users of the tidal pool. However, many of the apprehensions of the residents cannot be sheeted home to the marina and it is likely that some are no more than reasonably held fears for the future. However, the marina redevelopment plans will lead to a greater feeling by pool users that their activities are being hemmed in by the marina and, along with that a belief, that activities in the pool are dominated by adjacent marina use.

In my opinion there is little doubt that more boats moored at the marina will be to the detriment of the baths and their amenity will inevitably decline over time. This conclusion is allied to that which I have already expressed in relation to visual impact. The balance between the existing marina and the baths is presently precarious. With the proposed redevelopment of the marina that balance will likely be tipped against the baths. Taken together with my conclusion on visual impacts the likely effect on the amenity of the tidal baths would lead to my refusal of the application.

Copper and the oyster leases

In approaching the issue of water quality I accept the submission of the Council that the Georges River is in a somewhat fragile condition. In the past it has suffered pollution from sewage plants and industry in the upper reaches, although this seems now somewhat mitigated. The River has also suffered damage from urban development mainly from the stormwater run-off. Also, reclamation and canal development has had an unfavourable impact.

The Council and the Australian Oyster Farmers and Producers Association contend that copper from marine anti-fouling paints on boats moored at the marina is harmful to the oyster industry in Georges River, particularly the leases at Neverfail Bay and Double Bay. The leases opposite the marina in Neverfail Bay are some 250m from the marina and those in Double Bay in excess of 300m distant.

Until recently many boats used tributyl-tin (TBT) anti-fouling paint. It was extremely successful because of its high toxicity to aquatic organisms. It seems acknowledged by the N.S.W. Government's partial ban on TBT from 1 March 1989 that oyster leases exposed to high boat densities produce reduced tissue weight and shell deformities along with elevated TBT levels. The connection and effects of TBT on oysters is not new and research goes back to at least 1980. The World Health Organisation observed the danger to shellfish from TBT poisoning in 1986.

Oyster samples taken from a number of leases in the subject area were analysed by Dr. Batley, a Scientist with the CSIRO, who found them to have elevated TBT concentrations (especially those from Double Bay). Severe shell deformities were observed where high levels of TBT contamination was found. TBT concentrations were also found in water samples being higher in the vicinity of a marina and less as one moved away from the boats. TBT anti-foulants had largely replaced previously used copper based formulations. TBT sources are confined to boats so the connection between boats and oysters was relatively easy to make. The banning of TBT by the N.S.W. Government for boats under 25m followed similar overseas bans, for example, in France.

However, it is obvious that at some stage in the near future TBT will likely all but disappear from our estuaries and harbours. The boating fraternity are consequently, (for the very most part), returning to copper based anti-fouling paints. The question arises as to the effects, if any, of copper based marine paints on oysters. What is clear is that oysters in Georges River, both in the vicinity of the Como marina and elsewhere, have elevated copper levels. Indeed, to a point where samples in 1987 and 1988 have revealed levels well in excess of 70.0mg/kg in oyster tissue taken from Georges River.

70.0mg/kg is the maximum permitted concentration specified in the Regulations to the Pure Foods Act and also the maximum recommended concentration by the National Health and Medical Research Council (NHMRC) in its Model Food Standards Regulation. The Tasmanian limit is also 70ppm while the Victorian limit is lower at 30ppm. Canada and Britain are said to have standards of 100ppm. The N.S.W. authorities accept that the Georges River copper levels are a problem, (and elevated zinc levels are also of concern), but it appears that the current levels do not pose a health risk, especially since oysters are moved around during their growth cycle and sometimes between estuaries along the coast. Nonetheless, the levels of heavy metals, (with the exception of lead and to a lesser extent cadmium), highlight the need to control and monitor pollution and to improve water quality.

But what is the cause of these elevated copper levels? The Council submits that the principal cause is copper based anti-foulant paints on the bottom of boats. The applicant submits that the main cause is urban run-off and that the evidence of contamination from copper anti-foulants is weak and proves nothing more than the need for further research. At one stage in the applicant's case it was suggested that loss of mangroves from reclamation and urban extension was the cause of falling oyster production in the Georges River, but little scientific evidence was called to support the contention of Mr. Lewis, a former oyster farmer and presently a marina operator at Woolaware Bay. Industrial pollution seems to have been discounted by the State Pollution Control Commission as source of copper contaminant in this part of the Georges River.

The evidence relating to copper in the Georges River oysters occupied many days of the hearing producing a mass of evidence. I will refer to it in broad terms only, drawing conclusions as I go. To do otherwise would lead to a Judgment of unreasonable length and complexity and which would probably still not do justice to the technical data.

The Council relies mainly on the evidence of Dr. Batley and a marine biologist, Marcus Scammell. These scientists were to the fore in the TBT experiments which lead to the recent ban on that substance. A great deal of background material on the oyster industry was provided to the Court by Mr. Andrew Derwent, whose family have spent 109 years in oysters. He is the owner of a number of leases in the vicinity of the subject marina, and a former Vice President of the Oyster Farmers' Association. Presently he is Secretary of the Georges River Branch of the Association and a member of the Marine Anti-fouling Sub-Committee of the Hazardous Chemicals Advisory Committee convened by the SPCC.

The applicant relies on the evidence of Mr. Max Willoughby, a senior engineer with Macdonald Wagner and one of the authors of the EIS, and also a lay witness, Mr. Lewis. However, the applicant also placed reliance on material from scientists at the SPCC, Geoff Coade and Ramon Chvojka, although they were not called to give evidence. Mr. Davison, on behalf of the applicant, mounted a spirited attack on the expert evidence presented by the Council, especially that of Mr. Scammell and Dr. Batley.

In his Report (Ex. EE) Dr. Batley stated:-

"With the banning of TBT paints, an increase in the usage of copper-based paints can be anticipated. Although alternative formulations are being investigated by paint companies it is likely to be a long time before acceptable substitutes for the currently available copper paints are found. The consequences for the oyster industry will be further increases in the copper levels in oysters grown in the upper Georges River. Any increases in the volumes of boat traffic or numbers of moorings will be additionally detrimental. In the vicinity of slipways, freshly antifouled boats represent a particular hazard as the leach rates of the active agents (copper or TBT) decrease exponentially with time.

The uptake of copper by oysters is highly dependent on salinity. Recent studies have shown that a reduction in salinity from 35% to 15% as might occur after periods of heavy rain will significantly enhance the rate of copper uptake. Oysters grown in the upper reaches of a river and subject to salinity changes therefore face an additional impact from copper compared to oysters nearer the mouth of the river.

Clearly the oyster industry in the Georges River faces a continuing threat from heavy metals and other pollutants associated both with boating activity and increased urban development on the river foreshores. The industry is such a valuable resource that strict management practices are required by government authorities to protect it. The problem of TBT has been responsibly addressed and its banning will lead to a gradual reduction in shell deformities with increased oyster productivity over the next few years. The problem of copper remains and while the current levels of copper may be acceptable to public health authorities, it is evident that any further increases in dissolved copper in the vicinity of oyster leases will place this acceptance in jeopardy. Expansion of marina facilities in the area represents such a threat."

In his oral evidence Dr. Batley indicated that the copper uptake of oysters is 1000 fold different from that of TBT. The very high degree of correlation that Dr. Batley found between copper and TBT in oysters implied, in his opinion, a common source, that of anti-fouling paints from boats. Dr. Batley was also of the opinion that copper leaching from boats was in a form which was biologically available to oysters and in a more available form than copper from stormwater run-off. Copper in soluble form was more likely to be taken up rapidly by oysters than copper in stormwater. As copper leaches it is carried in suspension and either adheres to particles or ultimately settles in sediment. Algae may accumulate copper and oysters feed on algae. Copper in sediment can also be remobilised and return to circulation.

Dr. Batley conceded that copper from stormwater was a factor as a source for oyster take-up but he discounted it as a significant factor because, following the first highly concentrated flush, there was a rapid dilution. On the other hand, and by comparison, copper leaching from the bottom of boats was a constant. It was Dr. Batley's opinion that the oyster leases in the vicinity of the Como Marina were potential settling areas for copper leaching from boats moored at the marina.

Dr. Batley estimated that the amount of copper leached from an additional 32 boats (i.e., 72-40) was around 600% more per month than the copper from one storm event per month (see his calculations in Ex. JJ). This conclusion is very much at odds with that of Mr. Willoughby but, for reasons I will give shortly, I prefer the opinion of Dr. Batley.

Marcus Scammell is a Marine Biologist who has been researching the effects of boat pollution on the oyster industry for the past 3 years. He has also had some practical experience in working at a marina. His work on the biological aspects of TBT on oysters complemented Dr. Batley's chemical research. Mr. Scammell observed that there appeared to be a correlation between the decline in oyster productivity in estuaries with large numbers of permanently moored boats as compared with estuaries with small numbers of boats.

The experiments carried out by Scammell and the CSIRO indicate that anti-fouling paints are a major source of copper in oysters. This result was not unexpected since most anti-foulants contain copper (including most TBT paints) and in a form designed to be absorbed by marine organisms. Also, SPCC data indicates that oysters growing in estuaries with large numbers of moored boats contained around 2-1/2 times the amount of copper than estuaries with small numbers of boats. Mr. Scammell was of the opinion that copper levels in oysters will not necessarily increase now that TBT has been partially banned, nor did they significantly decrease when TBT was introduced. TBT, it seems, has tended to mask copper levels. However, the gradual increase in copper levels in oyster tissue in the Georges River and in some other estuaries correlates to the gradual increase in the numbers and sizes of boats.

In Mr. Scammell's view the dominant source of elevated copper levels in oyster tissue is boats. More boats are likely to increase the levels of copper to the extent of being potentially harmful to the industry and consumers. Unlike TBT copper does not seem to cause oyster shell deformity but it does lower conditioning which affects their marketability. Mr. Scammell saw a threat to the oyster industry from copper exceeding the acceptable levels determined by the health authorities. The answer, according to Mr. Scammell, is to halt the growth of boat numbers in the vicinity of oyster leases.

In Mr. Scammell's opinion even an increase of 32 boats at the Como marina could lead to significant increases in copper levels in nearby leases to levels consistently in excess of 70ppm (the legal limit). This potential for damage to the local oyster industry could be avoided by not allowing any increase in the number of boats in the vicinity. But Mr. Scammell also posed the threat to the estuary itself from the decline in water quality and the impact on the ecosystem caused by a poorly managed environment.

Whilst Mr. Scammell was strongly challenged on his experiments, modelling and conclusions, it seems to me that I ought generally accept his opinions in the absence of firm evidence to the contrary. Certainly his findings are supported by Dr. Batley's chemical research.

In April 1988 an internal SPCC Paper was published by Mr. Geoff Coade concerning copper in the Georges River. The Paper analysed the results of water samples taken from the river in mid-1987. Copper levels were found to be fairly constant. A number of possible sources of copper pollution were discounted, e.g., garbage tips. Part of the conclusion to the unpublished report states "The accumulation of copper in oysters could be due to other factors (industry pollution) which would probabley (sic) take a sustantial (sic) research effort to identify". Strangely boats and marinas as a potential pollutant were not referred to in the Paper.

Another unpublished Paper (by Ramon Chvojka and Coade) was tendered in evidence. It addressed the accumulation of copper and zinc in oysters from the Hunter River estuary. The purpose of the study was to test the suitability of the Hunter estuary for expanded oyster leases. The study established a relationship between heavy metal in water and in oysters. It concluded that the legal limit for copper of 70 mg/kg could be attained by oysters if grown in waters containing more than 5ug/l copper. However, once again this study did not consider the question of copper from boats being not surprisingly more concerned with industrial pollution of the Hunter River. The study is therefore of limited value to the Court in the instant case. Additionally, as I have mentioned, neither of the authors was called to give evidence so the accuracy and relevance of the studies was not able to be tested.

The applicant called Mr. Willoughby on the copper issue. The purport of his evidence was twofold. Firstly, to indicate his opinion that the copper input from urban stormwater was a much more significant factor than Dr. Batley had believed. Secondly, from a hydrological point of view a relatively small percentage (10-20%) of copper leaching from boats at the Como Marina will find its way to Carina and Scylla Bays. This is because the copper will be moved up and down the river by the tidal cycles and become fairly evenly distributed in the waters of the river for a distance of up to 9km downstream.

In terms of the copper input from urban run-off I conclude that I prefer the evidence of Dr. Batley. Mr. Willoughby's use of average annual rainfall seems to be inappropriate since the second and subsequent storm events in a series will clearly leach much less copper. Again, his calculations take no account of the "pulsed nature" of copper input (i.e., slow-fast-slow). Further, his use of the Victorian study by Hart and Lake may be questionable and the U.S. study by Zison et al (1977) probably less relevant. Even accepting Mr. Willoughby's figures it was the assessment of Dr. Batley that there would still be "a massive input of copper (from boats) versus storms". Thus I must reject the conclusion urged by Mr. Davison on behalf of the applicant that there is little likelihood of copper from the marina being a significant contributor to copper levels in oyster tissue in Neverfail Bay and Double Bay.

It is difficult, indeed impossible, to be precise about my findings on copper and oysters. It seems probable that copper from anti-fouling paints on boats as well as from urban run-off is responsible for the elevated levels in oyster tissue in the Georges River in the vicinity of the marina. Both appear to be significant contributors. There are obviously imponderables and the need for much further research. However, if necessary, and on balance, I would prefer the evidence of Dr. Batley, an eminent and highly respected analytical chemist, presently a Senior Principal Research Scientist with the CSIRO at Lucas Heights. Dr. Batley's expertise is the most relevant of all the witnesses called on the issue debated before the Court. He is an acknowledged expert in the study of trace metals in water including their toxicity. His opinions are complemented by the work and opinions of Mr. Scammell as well as a number of journal articles tendered in evidence. On the other hand, Mr. Willoughby comes from a different area

of expertise - hydrology. The reports of Chvojka and Coade were not able to be tested by cross-examination and, where their opinions differ from the Council's witnesses on the issue, I would not prefer them to Batley or Scammell.

The conclusion I have come to after careful review of the voluminous material before the Court is that the oyster leases in the vicinity of the Como marina in Georges River are facing a threat from the uptake of copper associated with boating activities. The contribution to the problem by heavy metals such as copper in urban run-off is a factor in the elevated copper levels in the oysters. However, I accept the opinion of Dr. Batley that the prime influence on the elevated copper levels in oysters is from boats. It follows that any increase in boat numbers using copper based anti-foulant paints at the Como Marina, (as I accept there almost certainly will), will increase the effect on the adjacent oyster leases in Neverfail, Scylla and Carina Bays. It would therefore be foolhardy to allow any extension of the Como Marina since this will, more probably than not, exacerbate the copper levels in the oyster leases and consequently damage the industry.

In the circumstances of my conclusions on the visual impact of the proposal, the effect on the tidal baths and on the oyster industry, it is unnecessary for me to consider the design adequacy of the plans in terms of sufficient depths and lack of compliance with the Marina Guidelines of the Department of Public Works. For the above reasons the application is dismissed. Each party is to pay its own costs. The exhibits may be returned.