Macquarie Leisure Operations v Woollahra Municipal Council

[2008] NSWLEC 1438

Land and Environment Court

of New South Wales

CITATION:	Macquarie Leisure Operations v Woollahra Municipal Council [2008] NSWLEC 1438
PARTIES:	APPLICANT Macquarie Leisure Operations Limited RESPONDENT Woollahra Municipal Council
FILE NUMBER(S):	10712 of 2008
CORAM:	Brown C - Taylor C
KEY ISSUES:	Development Application :- additional four berths to existing marina - navigability - visual impact
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005
DATES OF HEARING:	15/10/08
DATE OF JUDGMENT:	16 October 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr A Galasso SC SOLICITORD DLA Phillips Fox RESPONDENT Mr P Rigg, solicitor SOLICITORS Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C with Taylor C

16 October 2008

10712 of 2008 Macquarie Leisure Operations Limited v Woollahra Municipal Council

JUDGMENT

1 COMMISSIONERS: This is an appeal against a refusal of DA 753/2007/1 by Woollahra Municipal Council (the council) for the provision of four additional berths at the existing d’Albora Marina at 1B New Beach Road, Darling Point (the site).

2 The issues in dispute relate to reduced navigability and visual impact of the additional berths. When advertised, the proposed development attracted 87 objections based on the council’s Statement of Facts and Contentions. Additional issues raised by residents relate to parking and traffic issues and the current operation of the marina.

3 The proposed development involves the use of the existing T-heads located at the end of Arms A, B, C, and D of the existing marina for

• Arm A :- maintenance purposes in conjunction with the adjoining hardstand maintenance facility for vessels with a maximum length of 12 m,
• Arm B :- mooring one vessel with a maximum length of 6 m,
• Arm C :- mooring one vessel with a maximum length of 29 m, and
• Arm D :- mooring one vessel with a maximum length of 36 m.

4 To accommodate these vessels, additional piles are to be placed between the floating structure and the moored vessel. Two additional on-site car parking spaces are proposed adjacent to the existing hardstand area.

The site

5 The proposed development is located on the western side of New Beach Road, Rushcutters Bay and between the Cruising Yacht Club and the naval waters of Rushcutters Bay. The site occupies an area of approximately 1.245 ha and maintains some 100 floating wet berths. The water depth is generally between 2 m and 6 m. The site is serviced by a fuelling area, a sewerage pump-out and hardstand area. On the landward side, the site contains a café, shops and offices, which are administered by d’Albora Marine. Vehicle access to the site is from New Beach Road and car parking associated with the marina includes four spaces at ground level and 24 spaces in a rooftop car parking area.

6 New Beach Road has residential development on the eastern side only. Sir David Martin Reserve is on the foreshore immediately north of the site. The western side of New Beach Road is a park and recreation zone stretching from Rushcutters Bay to Yarranabbe Park.

Relevant planning controls

7 Woollahra Local Environmental Plan 1995 does not apply as the proposed development is below the mean high water mark.

8 The principal planning controls are Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (the REP). The site is zoned W5 Water Recreation under the REP and is located in the Foreshores and Waterways Area. The proposed use is permissible with consent within this zone. Clause 2 of the REP provides aims, Part 3 provides requirements for the Foreshore and Waterways Area with cl 17 providing zone objectives. Clause 17(2) provides that consent must not be granted unless the development is consistent with the aims of the plan and the zone objectives. Clauses 21 to 27 of Division 2 provide matters for consideration.

9 The Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Development Control Plan (the DCP) also applies. Relevantly, the proposed development is located within Landscaped Area 10. Performance criteria are provided at (iii). Part 4 provides Design Guidelines for Water-Based and Land/Water Interface Developments. Clause 4.7 addresses commercial and private marinas in relation to location, design and layout, facilities and services, visual impact, environmental management and health and safety.

10 On the issue of visual impact, the applicant provided a visual impact assessment by Dr Richard Lamb. The report stated:

The assessment concluded that overall the visual character and scenic quality of the bay itself and the harbour generally would not be degraded by the construction and occupation of the proposed marina additions. While this is a conservative assessment, it does recognise that there would be some localised higher impacts. It also anticipates there may be divergent views as to the merits of the application presented by some local people who have particular emotional attachments to the locality.

Overall, it is considered that the significance of potential impacts would be low and this is acceptable given the nature of the development. Measures for mitigating the visual exposure of the development have been taken appropriately in determining the layout, scale and location of berths. In this regard, it is considered that the proposed additions to the existing marina would have an appropriate scale and appearance given their location and intended use.

For all these reasons, it is considered that the visual impacts of the development would be acceptable and that development is worthy of approval from Woollahra Council along the lines proposed.

11 No expert evidence was provided by either party, but a site view was undertaken on 15 October 2008 of the marina and the surrounding area including a panoramic view of Rushcutters Bay from the roof of the adjoining residential flat building at 42 New Beach Road.

12 As we understand, the principal concern over visual impact centres on the likely mooring of vessels at the end of Arms C and D. These have potential lengths of 29 m and 36 m respectively. With the benefit of the site view and the documentation provided in the visual impact assessment, (including photographs of an actual boat of a similar size as to that proposed for Arm D and the matters in cl 26 and 27 of the REP and cl 4.7 of the DCP), we accept that the likely visual impact is not so significant that it would warrant the refusal of the application.

13 Any visual impact must be considered in the context of the existing location that provides a range and large number of mooring facilities that occupy the majority of Rushcutters Bay. The visual impact assessment provides a thorough assessment from 21 different viewing locations within the potential view catchment. We accept that any view loss would be acceptable. While the potential vessels at the end of Arms C and D will likely be larger than most vessels at the existing marina, we are not satisfied that they will be overly intrusive or dominant in the existing context of Rushcutters Bay.

14 We also agree with the report of the council officers dated 21 July 2008, where a similar conclusion was reached based on the following factors:

• the distance from the shore,
• the ability of the viewer to move along the shoreline;
• the east-west orientation of vessels;
• the distance of the largest vessel from the foreshore;
• the appropriate location within the existing context and
• the view path being obstructed by the existing moored vessels.

15 Pursuant to cl 7(2) of the REP, we are satisfied that the proposed development is consistent with the relevant aims of the plan and the objectives of the W5 Water Recreation zone.

Navigability

16 Mr Stephen Churn of Sailability, a voluntary organisation that provides sailing opportunities for people with disabilities, raised the issue of reduced navigability. Mr Robert Walker, on behalf of the Legacy Marina Corporation Limited, a non-profit organisation that operates from the adjoining marina and whose aim is to foster community involvement in sailing including the disabled and Mr Alan Grundy from Sailors with Disabilities that provides opportunities for people with disabilities to train for offshore ocean racing expressed similar concerns to Mr Churn.

17 Their concerns were similar in that the additional berths would reduce the width of the existing fairway that provides access from the shore to Sydney Harbour. The reduction to the existing fairway width, for Arm D was 9 m. Additional concerns related to the size of the likely vessel in this location restricting views of approaching vessels, thereby creating safety issues.

18 Mr Nick Richards, the Boating Services Officer of New South Wales Maritime, provided oral evidence on the issue of navigation and specifically the potential reduction in the width of the fairway. He relied on a report he prepared on 26 October 2007. This report stated in part:

The increased effect of the vessels berthed at proposed additional berths on arms A and B on navigation in the area will be minimal.

There is the potential for vessels berthed on the northern ends of arms C and D to adversely affect the navigation of vessels through the access channel between the RANSA mooring area and d’Albora Marina.

Recommendation
To minimise the narrowing effect of the berth vessels on arms C and D, a maximum vessel beam of 9 m is suggested.

19 This recommendation was adopted by the council as a condition of the consent and accepted by the applicant.

20 In his oral evidence, Mr Richards confirmed the comments in his report and concluded that notwithstanding a reduction in 9 m from the fairway of some 58 m, he maintained that fair and equitable access was still provided for users of this area of the waterway. He stated that he was aware that the fairway was used by sailors who may have a disability, but it was his view that these sailors were generally as competent as able-bodied sailors. In his nine years with New South Wales Maritime, he was not aware of any evidence to suggest that disabled sailors were more prone to accidents than able-bodied sailors.

21 In balancing the competing evidence we accept the conclusions of Mr Richards. He is a sailor and an experienced officer of New South Wales Maritime whose responsibilities include assessments of navigability, such as required in this case. While a 36 m vessel moored at Arm D will reduce the 58 m width of the fairway at this point by some 9 m, the remainder of the fairway is less affected by the proposed development. Arm C is shorter than Arm D and consequently provides greater fairway width, around 69 m, and Arms A and B have areas allocated for relatively small vessels and as such do not impact on the existing fairway to any meaningful extent.

22 We also are mindful of the evidence of Mr Churn who stated that if the proposed development were to proceed, Sailability would still use their existing facilities although they may need to amend their current operation depending on the particular conditions that prevailed at the time.

Parking

23 The lack of parking provided by the marina and the use of the existing parking on site were matters raised by a number of objectors. We, however, do not propose to make any comments or findings on these issues as we do not accept that they fall within the scope of this application. If there are breaches of any conditions of consent that relate to the existing marina, then these breaches should be addressed through separate proceedings.

24 In our view, the issue of car parking is satisfactorily addressed through the provision of two additional spaces for the four additional berths. We understand this to comply with the council’s Development Control Plan for Off-Street Car Parking Provision and Servicing Facilities.

25 There were a number of conditions in dispute between the parties, although there was agreement on the great majority of those identified as in dispute early in the proceedings. The conditions that remain in dispute are:

Condition A(4): This condition requires, as a deferred commencement condition, a Plan of Management to control the operation of the marina. We accept that this condition can be deleted as it extends well beyond the scope of this development application.
Condition C(1): This condition, in essence, requires modifications to satisfy an existing development consent issued on 3 May 1991. As no evidence was provided on any existing consent, it would be inappropriate for the condition to be imposed. However, it would also be inappropriate for the consent to be inconsistent with any existing development consent, so the condition should be amended to state that this consent relates only to the four additional berths and any associated plans should not be read as amending any existing approval.
Condition I(5): This condition can be deleted as it relates to condition A(4) that has previously been deleted.
Condition I(6) and J(1:) These conditions can also be deleted as they relate to previous approvals that are beyond the scope of this application.

26 The Orders of the Court are:

1) The appeal is upheld.
2) DA 753/2007/1 for the provision of four additional berths at the existing d’Albora Marina at 1B New Beach Road, Darling Point is approved subject to the conditions in Annexure A.
3) The exhibits are returned with the exception of exhibit B.

___________________ ___________________