Milne v Minister for Planning (No 2)
[2007] NSWLEC 66
•26 February 2007
Land and Environment Court
of New South Wales
CITATION: Milne v Minister for Planning & Anor [No. 2] [2007] NSWLEC 66 PARTIES: APPLICANT
Katie MilneFIRST RESPONDENT
SECOND RESPONDENT
Minister for Planning
Rivercolt Pty LtdFILE NUMBER(S): 10408 of 2006 CORAM: Jagot J KEY ISSUES: Appeal :- development application - State significant development - extensions to marina - social and economic impacts - visual impacts - impacts on seagrasses - development consent refused LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Roads Act 1993
State Environmental Planning Policy No 71 – Coastal Protection
Tweed Local Environmental Plan 2000CASES CITED: BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237;
Cecec (No. 8) Pty Ltd v Mosman Municipal Council (1960) 5 LGRA 251;
D'Oro Distributors Pty Ltd v The Superintendent of Licensed Premises and Kiley (1968) SASR 220;
Fairfield City Council v Liu Lonza & Beauty Holdings, NSWCA, unreported, 17 February 1997;
Jarasius v Forestry Commission of New South Wales and Others [No 1] (1988) 71 LGRA 79;
Kentucky Fried Chicken Proprietary Limited v Gantidis and Another (1979) 140 CLR 675;
New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303;
Rocla Pty Ltd v The Minister for Planning and Sutherland Shire Council [2007] NSWLEC 55;
Telstra Corp Ltd v Hornsby Shire Council (2006) 146 LGERA 10DATES OF HEARING: 30/1/2007, 31/1/2007, 1/2/2007, 2/2/2007, 5/2/2007, 6/2/2007, 7/2/2007, 8/2/2007
DATE OF JUDGMENT:
26 February 2007LEGAL REPRESENTATIVES: APPLICANT
Mr A Oshlack (agent)
SOLICITORS
N/AFIRST RESPONDENT
SECOND RESPONDENT
Mr P Clay
SOLICITORS
Legal Services Branch - Department of Planning
Mr I Hemmings
SOLICITORS
Bartier Perry
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESJagot J
26 February 2007
10408 of 2006
KATIE MILNE
ApplicantMINISTER FOR PLANNING
First RespondentJUDGMENTRIVERCOLT PTY LTD
Second Respondent
Jagot J:
A. The appeal
1 On 6 April 2006, the Minister for Planning determined development application (DA 2273-6-2003), proposing an extension of the Chinderah marina, by the grant of development consent, subject to conditions. The Chinderah marina is a 29 berth marina approved by the Tweed Shire Council on 21 June 2000. That consent became operative on 30 June 2005. Construction of the 29 berth marina has not commenced. The extension approved by the Minister involved an additional 86 marina berths, a 52 space car park, a fuel storage tank and pipeline and a public jetty with a fuel and sewage pump-out facility.
2 The marina extension is designated development under s 77A of the Environmental Planning and Assessment Act 1979 (the EPA Act). As designated development, the Minister’s consent was subject to s 98 of the EPA Act, enabling any objector dissatisfied with the determination to appeal to the Court. Ms Milne, an objector, appealed to the Court. Rivercolt Pty Ltd is the proponent of the marina.
3 The marina is to be located in the Tweed River below mean high water mark adjacent to Chinderah Bay Drive. The car park and fuel tank are to be located on part of lot 121 DP 755701 at the corner of Chinderah Bay Drive and River Street.
4 Ms Milne contended that the marina extension should be refused consent on numerous grounds. Using Ms Milne’s amended statement of issues and the submissions made by the representatives of the parties, I summarise those grounds as follows:
(1) The proposal will have unacceptable social and economic impacts on Chinderah.
(a) The proposal will displace people from an area used for traditional and non-traditional activities, including fishing, collection of oysters and pippies, swimming, boating and other recreational activities.
(b) The proposal will affect the housing market in Chinderah, displacing affordable housing. The Department of Housing raised concerns that have not been properly addressed by the application.
(c) The proposal will displace other more sustainable uses, including commercial fishing activities, and will preclude Chinderah from developing more appropriate and sustainable tourist and employment opportunities.
(d) By providing a large-scale development serving regional needs, the proposal will transform the peaceful character of Chinderah in a manner opposed by the vast majority of the community.
(f) Whilst having these adverse impacts, the proposal will create very few local jobs.(e) The proposal results in the alienation of important foreshores previously available for public use and access.
(2) The size, bulk, scale and location of the proposal will have unacceptable visual impacts on a “signature vista” of the Tweed region, being in the immediate foreground of the Mt Warning/Wollumbin caldera mountain range.
(3) The proposal is located in the main channel of the river, reducing its navigable width, displacing other users of these navigable waters and creating navigation hazards.
(4) The proposal will impact on major seagrass beds.
(5) The proposal will increase riverbank erosion, which is a major problem in the Tweed River, including around Chinderah.
(6) The proposal will reduce the water quality of the river during construction and operation.
(7) The location of the proposal in the main river channel will exacerbate flood levels and frequency.
(8) The proposal will unacceptably impact on other aspects of aquatic and terrestrial ecology. The development will cause significant effects on threatened species and an endangered ecological community and thus the application was required to be accompanied by a species impact statement. The absence of a species impact statement precludes the grant of development consent.
(9) The application did not contain a cultural heritage or archaeological assessment to enable assessment of known and possible Aboriginal and South Sea Islander sites of significance.
(11) The application remains a speculative concept, absent sufficient details about the design and impacts of the expanded marina to enable its proper assessment.(10) The proposal and/or the 29 berth marina will occupy public land, but will not be economically viable.
5 Rivercolt contended that these issues, properly assessed, did not warrant refusal of the application. The Minister made no submissions with respect to the appeal, but facilitated the provision of information to the Court.
6 Commissioner Watts assisted me in the hearing of the appeal, including an extensive view of the site and its surrounds.
B. Background and planning context
7 Chinderah village adjoins the Tweed River, about 9 km south of the border between New South Wales and Queensland. In 1994, the Council commissioned a local environmental study for Chinderah. Amongst other things, the study recommended that land along the Chinderah waterfront be constituted as a riverfront enterprise area for development consistent with a waterfront, recreational or tourist theme, rekindling Chinderah’s traditional links with the river and significantly increasing its local economic base. The study recognised that Chinderah had a long-standing affinity with the river, but lacked a focal point for river-based activities. Given the absence of onshore facilities along the Tweed River (such as marinas, boat service areas and river passenger terminals), the study identified Chinderah as ideally placed to take advantage of this opportunity. The study identified four planning principles for the river – maximise public ownership of the foreshore, increase the potential for public usage of the foreshore, provide a variety of opportunities for river related recreation and commerce, and maximise the amenity values of the river foreshore.
8 The Upper Tweed Estuary Management Plan 1996 identified that Chinderah was strategically located to provide a quality interface between boating and foreshore recreation, but severely constrained by inadequate facilities at John Oxley Park, loss of foreshore reserve and ongoing foreshore erosion, and lack of co-ordinated facilities. It identified the need for a foreshore improvement plan in the context of the local environmental study (which had not been published at that time).
9 The Lower Tweed Boating Study 1997 identified a trend towards increasing recreational boat use on the Tweed, with its associated impacts on, amongst other things, water quality, marine and riparian flora, and bank stability. The study considered marinas more efficient than swing moorings. It assessed the likely need as a 200 berth marina (with 100 dry berths). Once certain regional constraints had been taken into account, the study identified 6 potential marina locations, including Chinderah, the Jack Evans boat harbour, Boyds Bay, Kirkwood Road, Banora Point Golf Club and Barneys Point caravan park.
10 In or about 1999, the Council considered a proposal to develop land adjoining Chinderah Bay Drive between Chinderah Road and River Street, in the central part of the Chinderah commercial waterfront area. The development involved 34 apartments, 16 shops, 7 offices and a supermarket, the use of the foreshore for a restaurant, kiosk and foreshore pedestrian path, and an associated 29 berth marina, with modifications to the road carriageway, including on-street parking. The Council dealt with this proposal by granting two development consents – one for the land based development known as the “town centre” consent and one for the foreshore area and marina.
11 The Tweed Local Environmental Plan 2000 came into force on 7 April 2000. A primary aim of the LEP is to give effect to the Council’s strategic plan, the vision of which is to manage growth so that “the unique natural and developed character of the Tweed Shire is retained, and its economic vitality, ecological integrity and cultural fabric is enhanced”. Consistent with the recommendations of the Chinderah local environmental study, the LEP zoned the Chinderah waterfront on the landward side of Chinderah Bay Drive 3(d) Waterfront Enterprise. The primary objective for that zone is to encourage development related to waterfront and marine activities, recreation or tourism. Under item 2 of the 3(d) zoning table, all development is permissible with consent unless permissible without consent (item 1), prohibited (item 4) or permissible subject to satisfying the provisions of cl 8 of the LEP (item 3). Marinas are permissible with consent under item 2 of the zone.
12 A strip of foreshore land between the river and Chinderah Bay Drive is zoned 6(a) Open Space. The primary objectives of that zone are to identify existing public land and land that is proposed to be acquired for public ownership, to satisfy the open space and recreational needs of local residents and visitors to the area of Tweed, and to enable its development to encourage or assist their recreational use and enjoyment of the land. Marinas are permissible with consent under item 2 of the 6(a) zone.
13 The river is not zoned by the LEP and thus cl 13 applies. The objectives of cl 13 are to enable the control of development on unzoned land, to ensure that development of unzoned land is compatible with surrounding development and zones, and to ensure that development of certain waters takes account of environmental impacts and other users of the waters. Clause 13(2) provides that development of unzoned land is permissible with consent. The consent authority must consider various factors under cl 13(3), namely: -
(a) whether the proposed development is compatible with development permissible in the adjoining zone and the character and use of existing development in the vicinity, and
(b) in the case of unzoned land that is below the mean high-water mark of the ocean or an estuary, bay, lake or river:
(i) whether or not the proposed development would alienate the use of the waters of the ocean, estuary, bay, lake or river from recreational uses or from commercial fishing and, if so, whether there is sufficient area in the locality for those uses to mitigate the adverse effect of the proposed development on those uses, and
(ii) the provisions of any coastal, estuary or river plan of management in force from time to time that applies to the unzoned land or land in the vicinity, and
(iii) any impact the proposed development may have on the natural environment.
14 Clause 8(1) specifies pre-conditions to the grant of consent for any development not specified in item 3 of the zoning tables (including being satisfied that the development is consistent with the primary objectives of the zone). Clause 8(2) specified pre-conditions to the grant of consent for development specified in item 3 of the zoning tables.
15 A 2001 draft assessment of Crown land at Chinderah prepared by the (then) Department of Land and Water Conservation identified the primary appropriate use of the river in this area as environmental protection, with secondary uses of recreation and development. The assessment noted that multiple uses of Crown land were encouraged, provided that the primary preferred use was not jeopardised. Factors relevant to the identified preferred uses included the 29 berth marina development consent granted by the Council, the moderate to high capability of the area for recreation and recreation development, the significant demand for boating facilities in the Tweed River which could not be met by freehold land, and that use for development would not significantly compromise existing access to the foreshore and river.
16 The town centre consent lapsed in February 2006. The 29 berth marina consent was granted subject to a deferred commencement condition that documents be submitted demonstrating that the sale and/or lease of certain land had been finalised in accordance with a Council resolution of 17 May 2000. The Council confirmed that the deferred commencement condition had been satisfied on 30 June 2005, and the marina consent became operative from that date. The land referred to in the deferred commencement condition is the foreshore area zoned 6(a) and part of Chinderah Bay Drive, proposed to be closed under the Roads Act 1993. Most of the 6(a) land is subject to a lease from the Council for the purpose of “controlled public access”, while the Council transferred the balance in fee simple. As noted, construction has not commenced under the 29 berth marina consent. The consent has been modified four times, most recently on 21 August 2006.
17 This application was lodged in March 2003. By that time, State Environmental Planning Policy No 71 – Coastal Protection was in force. The land is within the coastal zone under that policy, which made the Minister, not the Council, the relevant consent authority for the proposed extension of the marina, which is designated, State significant and integrated development. SEPP 71 includes aims to protect and manage the coast, to improve public access to and along coastal foreshores, and to protect and preserve Aboriginal cultural heritage, places and values, customs, beliefs and traditional knowledge (cl 2(1)). Matters to be considered when determining a development application on land to which the policy applies include retaining and, where possible, improving foreshore access, the means to protect and improve the scenic qualities of the coast, measures to protect Aboriginal cultural heritage, places and values, customs, beliefs and traditional knowledge, and likely impacts of development on water quality (cl 8).
18 The application as lodged proposed a 228 berth marina as an addition to the previously approved 29 berth marina, a 130 space car park on lot 121, two vehicle pick-up and set down bays of 6 spaces each and a 35,000 litre fuel tank also on lot 121, with underground piping to connect to the approved refuelling jetty in the river. An environmental impact statement (EIS) accompanied the application. The application was notified and exhibited between 30 June and 1 August 2003. The application was amended in or about July 2003 by converting the underground fuel tank on lot 121 to an above ground fuel tank. In or about January 2004, the application was again amended by reducing the additional berths proposed from 228 to 211 (that is, 240 berths in total), modifying the layout of the extended marina to remove an area previously preserved for haul shot fishing, reducing the number of car spaces on lot 121 from 130 to 52 and other modifications to the on-street parking arrangements. This amended application was accompanied by a report assessing the modified marina proposal, and was notified and exhibited between 6 February and 8 March 2004. On or about 7 June 2005, the application was amended a third time, by reducing the number of additional berths to 86. A letter from Rivercolt to the Department, the amended plans and a flood study accompanied this amendment. This amended application was not notified or exhibited.
19 The land-based development in the proposed expansion is limited to the car park and fuel tank on lot 121. Lot 121 is zoned 2(a) Low Density Residential. The secondary objective of that zone is to allow for non-residential development that is domestically based or services the local needs of the community and does not detract from the primary objective of the zone (to provide for and maintain a low density residential environment with a predominantly detached housing character and amenity). Under item 2 of the 2(a) zoning table, all development is permissible with consent unless permissible without consent (item 1), prohibited (item 4) or permissible subject to satisfying the provisions of cl 8 of the LEP (item 3). Marinas are permissible under item 3 and are thus subject to cl 8. Liquid fuel depots are prohibited under item 4, but the definition of that use (involving wholesale distribution) excludes the proposed fuel storage tank from its scope. The submissions made on behalf of Ms Milne about the prohibition of this part of the proposal are unfounded.
20 The Department assessed the amended application and recommended to the Minister that the amended application be granted consent, subject to conditions. On 6 April 2006, the Minister determined the amended application in accordance with this recommendation.
21 After the Minister’s determination, the 29 berth marina consent was modified. Rivercolt sought consent in this appeal to develop the extended marina in accordance with drawing 2659-301 issued 2 February 2007.
C. Social and economic impacts
General context for consideration of issue
22 Under s 79C(1)(b) of the EPA Act the consent authority, in determining a development application, is to take into consideration the likely impacts of the development, including (relevantly) social and economic impacts in the locality.
23 The fact that all people are members of society and engage in some form of economic activity does not mean that each and every impact of development on a person amounts to a social and economic impact. It is for this reason that, when dealing with the social and economic impacts of development, courts have rejected notions of the profitability of individual businesses and focused on the potential for detriment to the “extent and adequacy of facilities available to the local community if the development be proceeded with” (Kentucky Fried Chicken Proprietary Limited v Gantidis and Another (1979) 140 CLR 675 at 687). This focus reflects that part of the definition of “environment” in s 4(1) of the EPA Act concerned with people in their “social groupings”. It also reflects certain objects of the EPA Act (s 5), which are incapable of being understood outside the context of people as community members (including the promotion and co-ordination of the orderly and economic use and development of land, the provision and co-ordination of community services and facilities, ecologically sustainable development and the provision and maintenance of affordable housing). Social and economic impacts thus concern effects on the relations between people in their capacity as members of communities and their environment.
24 Identifying the relevant “locality” within which impacts are assessed may also be in issue. Depending on the level of analysis, people are members of many communities. Bray CJ observed that “…phrases like …'locality' in licensing legislation … have received a fairly flexible and varying interpretation according to the type of licence sought and the nature of the business proposed to be carried on” (D'Oro Distributors Pty Ltd v The Superintendent of Licensed Premises and Kiley (1968) SASR 220 at 226-227). Similar considerations arise in the context of planning law – the nature of the development and its impacts will influence the scope of the locality to be considered.
25 Assessing the social and economic impacts of development may be a complex task. These impacts may not be direct and immediate. Moreover, change to social and economic relations is inevitable, including change stimulated by development. Indeed, the objects of the EPA Act contemplate change stimulated by development - the promotion and co-ordination of the orderly and economic use and development of land necessarily involves change. Thus, the fact that development may cause social and economic change cannot, of itself, be an indicator of the appropriateness (or otherwise) of development. Other parameters are necessary to assist in discharging the statutory task of considering the social and economic impacts of the development in the locality.
26 The parameters for assessing the appropriateness of development causing social and economic change cannot be the personal values or idiosyncratic perceptions of an individual. That would be the antithesis of environmental planning as contemplated by the EPA Act – in particular, the making of development control decisions in a strategic planning context established by publicly available criteria, determined by planning authorities as part of a process in which the public has had extensive opportunities to participate.
27 The content of the parameters will alter depending on the development and its context, but will be informed by the objects of the EPA Act, the promulgated environmental planning instruments, and the studies that informed the content of those instruments. These documents (identified above) indicate that social and economic impacts of the development on the village of Chinderah and the north coast region are relevant. These documents also indicate that, for Chinderah, relevant planning objectives include encouraging the development of the Chinderah waterfront in a way that rekindles Chinderah’s historical relationship with the river and provides a sound local economic base, whilst taking advantage of Chinderah’s strategic location in a co-ordinated manner. For the region, relevant planning objectives include fulfilling an existing and increasing need for boating facilities in a way that enhances the benefits for the region as a whole by encouraging tourism, providing job opportunities and maintaining the region’s natural assets.
28 Conflicts between local and regional objectives are not unknown in strategic planning and development control decisions. The documents referred to above disclose no necessary inconsistency between the planning objectives for Chinderah and the region. Nevertheless, the appropriate touchstone for resolution of any conflict again generally should be the objects of the EPA Act, the goals identified by the promulgated environmental planning instruments, and the studies that informed the content of those instruments.
29 Accordingly, development that contributes to achieving the relevant planning objectives for Chinderah and the region may have social and economic impacts – but they are impacts contemplated as part of the orderly and economic use of land. In weighing up any such impacts, regard should also be given to the observations of courts that unfounded fears of impacts on amenity (however widespread) cannot be material to planning assessment, but that “demonstrable social effects” are relevant, as is evidence of impacts capable of objective assessment (Fairfield City Council v Liu Lonza & Beauty Holdings, NSWCA, unreported, 17 February 1997. See also, for example, New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303 at [53] to [64], Jarasius v Forestry Commission of New South Wales and Others [No 1] (1988) 71 LGRA 79 at 92, Telstra Corp Ltd v Hornsby Shire Council (2006) 146 LGERA 10 at [190] to [208]). For these reasons, as Rivercolt submitted, it is the cogency of residents’ concerns, not their number, which may give rise to relevant considerations.
Some observations about the LEP
30 As the waterway is not zoned, cl 13 of the LEP applies. Clause 13(2) makes all development on unzoned land permissible with consent. For all such land, a relevant consideration is compatibility with development permissible in the adjoining zone and the character and use of existing development in the locality.
31 Rivercolt submitted that the relevant “adjoining zone” was the 3(d) zone, the zone objectives of which encourage development relating to waterfront and marine activities. It described those objectives as “more than neutral”, making applicable the observations of McClellan J in BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237 at [117] to [119] (in particular the observation that in “most cases it can be expected that the court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts”).
32 I accept that the adjoining land includes both the foreshore zoned 6(a) and the land on the opposite side of Chinderah Bay Drive zoned 3(d). The significance of the adjoining 3(d) zone cannot be assessed in isolation. Various factors inform the assessment of that significance.
(1) The rationale underlying the observations of McClellan J in BGP Properties was the integrity of the planning system, which requires extensive public participation in the process of making environmental planning instruments determining the “nature and intensity of development that may be appropriate on any site”. Hence, subject to acceptable environmental impacts, “planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted” (at [117]). Absent such an assumption, the parameters for resolution of appropriate land uses would not be known to any person interested in their resolution.
(2) The waterway is not zoned 3(d). The zoning of the adjoining land is relevant by reason of cl 13(3)(a) and its proximity to the proposed waterway development.
(4) Marinas are permissible with consent generally within the Tweed River (all of which appears to be unzoned on the zoning map extracts in evidence). Moreover, marinas are permissible with consent in a number of the zones adjoining the waterway in locations along the river, particularly the 6(a) zone.(3) For unzoned waters below mean high water mark, the matters specified in cl 13(3)(b) recognise that, in the ordinary course, these waters will not be privately owned, but will be subject to multiple uses and potentially competing interests. This underpins the focus in cl 13(3)(b)(i) on the potential for alienation of the use of the waters and the availability of sufficient area to mitigate those impacts. Similar considerations usually do not arise with respect to privately owned land.
Evidence relating to social and economic impacts
33 The EIS identified the development as providing key infrastructure for the regional growth of water-based tourism, improved local recreational facilities and management of the foreshore, and a small increase in local employment. The EIS accepted that the proposal (at that time, an additional 228 berths) might change the demand for land in the locality, but observed that housing supply, property process and land use mix were “best addressed through planning regulations” and that various factors (including the unattractiveness of the existing housing stock in Chinderah and good regional accessibility of the marina) would be likely to minimise these potential impacts. Given the low incomes of most residents of Chinderah, the EIS noted that it was unlikely that they would lease many of the berths, so that the marina would contribute little to direct services to the existing population – more direct benefits would be provided only if the population of Chinderah changed over time.
34 The EIS said that the proposal had been designed to minimise impacts on commercial fishing grounds so that the reduction in available area for that activity was not substantial in the context of river as a whole. At that time, the proposal preserved a haul shot area adjacent to the small beach to the immediate west. Pontoons G to J occupy that area under the amended proposal. The EIS also observed that impacts by reason of displacement of other recreational opportunities would be minor, although recreational use of the river and foreshore was relatively intense during peak periods. Overall, the EIS concluded that the expanded marina would have a positive social and economic effect.
35 The Department of Housing lodged a submission with respect to the original extension of 228 berths. The Department expressed concern about the increased demand for housing flowing from the marina and town centre developments displacing long-term caravan park residents in Chinderah. It observed that three caravan parks with long-term sites were within one block of the marina site and the remaining four were within two or three blocks. While direct impacts were not expected, the Department identified the potential for indirect medium and long-term flow-on effects (in particular, consequential closure of caravan parks close to the marina site due to changes in land demand) and consequential significant demands for housing assistance.
36 The Department of Primary Industries initially objected to the proposal, but withdrew its objection when the proposal was reduced to 86 additional berths. It noted that commercial fishers might experience conflict with the greater number of recreational users, but considered that education of the marina users about commercial fishing activities would be an appropriate response to this concern.
37 Numerous Council documents were tendered, including various reports and resolutions opposing the expansion of the marina. The Council’s administrators informed the Department of certain remaining concerns on 9 November 2005, including flooding, navigation, water pollution, and apparent inconsistencies in the EIS.
38 The Department of Planning concluded that the proposed expansion would attract a capital investment of more than $4 million to Chinderah, improve public access to the river through the marina berths and public jetty, promote tourism in the Tweed consistent with the Council’s broader strategic plans and provide a catalyst for future development of Chinderah, including the revitalisation of the town centre. It considered that the extended marina would have minimal impact on public access to the foreshore, including for traditional Aboriginal activities, given the unrestricted access available upstream and downstream. It observed that while the loss of one commercial haul shot area was likely to have economic impacts, they should be minor given the other areas available for these activities along the river. The Department applied the same reasoning to the loss of recreational areas within the river, recognising also that the proposal was an extension to the approved 29 berth marina.
39 Various witnesses gave evidence relevant to the social and economic impacts of the proposed expansion.
(1) Ms J McDonald considered that the proposal would rob the local community of the ability to do what it had always done, and continued to do, on and around the marina site – such as swimming, fishing, oyster catching and the like. She had learned to swim and fish there, as had hundreds of Aboriginal and South Sea Islander children, given its proximity to the small sandy beach. She considered that area significant to Aboriginal culture generally and her own connections to that culture, given the views of the river with Wollumbin (Mount Warning) behind. She was concerned that the marina would impact on native title rights, which had never been relinquished.
(2) Mr Frank Krasna said that he had grown up in Chinderah and spent lots of time swimming, fishing and catching oysters. The marina site was one of the better places for those activities. He noted that people used the little sandy inlets far more than the recently constructed rock revetment areas. He was particularly concerned about the impacts of large craft on riverbank erosion and associated silt.
(3) Mr Edward Hopkins thought that berthing large ocean-going craft so far upstream was unsustainable over the longer term, particularly with respect to riverbank erosion. He expected the proposal to have cumulative impacts, being a harbinger of “Gold Coast” style development, out of character with local amenities and the existing population. He described the proposal as shutting out the local community – Aboriginal and others – from what they had traditionally used and enjoyed in Chinderah. He also thought that the proposal would exclude the potential for Chinderah to develop a more sustainable tourism industry.
(4) Ms Alana Corowa said that her family had been in Chinderah for four generations, being descended from Aboriginal and South Sea Islander people who had laboured in the cane cutting industry. She described the proposal as taking the river away from the existing community to benefit people with more money - when the river connected all families in the community and was central to them as a community.
(5) Ms Emily Corowa said all the generations of her family had lived in Chinderah and that Chinderah and this river and community were all she knew. She noted that while they enjoyed the whole river, the marina site was particularly important as a family, community, cultural, and spiritual place.
(6) Mrs Skinner was concerned that the proposal would have flow-on effects, pricing local people out of the housing market.
(7) Mr Alfred Ness, who operates a tour boat on the river, objected to the notion of locking up public space for private development. He was concerned about the impacts on navigation and riverbank erosion.
(8) Mr David Smith, commercial fisherman, noted that there were about 20 commercial fishers licensed to fish the Tweed River and that he represented their interests. The marina site was a prosperous fishing area for them. From the sinking of the first pylon, their interests would be impacted as the marina excluded commercial fishing. The seagrass beds at Lillies Island (only about 200 metres away), and the seagrasses opposite the marina along the Oxley Cove peninsula, sustained fishing. Mr Smith was concerned that the intrusion of the marina into the river would drive boats towards and damage the seagrasses – which kept commercial fishers in business. Commercial fishers had already lost access to major sections of the river and the marina site was a highly productive area to which they still had access. The 20 commercial fishers were all one-person operations with boats not exceeding 5.8 metres in length - and all directly supplied local seafood outlets. Local markets absorbed about 80% of their catch, with about 20% being shipped to Sydney. He noted that marinas are not “clean” operations – they impact on water quality, which would have further impacts on commercial fishing. The extension involved quite a bit of difference compared to the approved 29 berth marina, as they had lost so much of the river already to recreational fishing.
(9) Mr Mark Deamon Noter Browning said that Aboriginal people had worked the river for generations. The proposal would exclude them from areas used for traditional activities. He could not see the proposal as sustainable over the long-term.
(10) Ms Felicia Cecil described the proposal as excluding the public and commercial fishers from this part of the river.
(11) Mr Idwall Richards has lived in Chinderah for 68 years. His businesses provide employment for 87 local families. He described himself as a person with an affinity for Chinderah who was offended by the proposal. He said that if the proposal were not in the CBD of Chinderah and in the main river channel, he would be its strongest advocate. He was offended by the proposal because a large area of public space would be taken over for private use and benefit. He objected to public facilities being denied to local people and handed over to private enterprise. He considered that the development also had no chance of becoming a “living marina” – it was upstream of Barneys Point Bridge so this intended regional asset would not be able to accommodate large sailing boats. It also had no dry berths or harbour facilities – and thus it offered no longer-term employment opportunities. For real economic growth, Mr Idwall considered that a regional marina had to be located where it could fully develop with substantial shore-based facilities – which could not be achieved in the present location. He referred to the Gold Coast City Marina and Shipyard, which was largely outside the main river channel and had substantial shore-based facilities, directly employing some 400 people in contrast to the Chinderah proposal (which would employ three people when operational).
(12) Mr Rodney Bates had thought the 29 berth marina good for Chinderah – as an addition to the town centre development, but said that the proposed expansion was an unjustifiable overdevelopment of public waters, would deny the community access to a substantial length of foreshore and area of river, inappropriately intruded into the main river channel and would lead to the need for dredging of the Oxley Cove side of the river to maintain navigation – where the seagrass beds were. He described the proposal as a parking bay for boats.
(13) Mr Geoffrey Provest was concerned that the proposal would undermine the service-based businesses of the area, which were dependent on maintaining the local environment, its natural beauty and social amenity. He thought the development would spoil the natural environment and thus negatively impact on local business opportunities. He noted that many local people use the marina site and that it was a “crying shame” to exclude their uses from a public area.
(14) Mr Robert Corowa noted that Corowa Park in Chinderah was named after his father and that, although he now lived in Lismore, he had strong connections with the Tweed and Chinderah. The whole Tweed Valley is sacred to Aboriginal people, particularly Wollumbin (Mt Warning), which is the home of the rainbow warrior. He described losing access to that part of the river on “his doorstep” as abhorrent.
(15) Ms Katie Milne, who lives in Fingal, had carried out her own community survey, showing that people valued a peaceful and healthy river. She thought that the community had supported development of the Chinderah town centre and a small marina to assist in the revitalisation of the town. The foreshore land had been sold to the developer as part of the 29 berth marina and town centre development, but the town centre was no longer proceeding. This proposal had no town centre, just a 115 berth “boat car park”, which she considered an appalling situation. She described the likely effect on the village character of Chinderah as “horrific”, noting that it was a very old and long established community, which a significant number of Australian South Sea Islanders considered their home. Australian South Sea Islanders had developed the whole Tweed area and were instrumental in making the Tweed what it is today. They had developed a harmonious relationship with the Aboriginal communities, all of which had contributed to Chinderah’s strong community. Placing a proposed luxury facility in its midst would have consequential effects – quickly displacing long-term elderly low income residents, particularly residents of the caravan parks close to the marina site. Ms Milne considered that the community was already using the marina site for many activities (swimming, fishing, boating and the like). The marina extension ends at the beach – but the use of the marina will mean that it will not be safe, practical or pleasant to use that beach for swimming and recreational purposes. All of the current multiple uses would be removed for one exclusive use – which Ms Milne described as a form of “quite insulting money takeover”.
(17) Mr Chris Lonergan, planner, concluded in his statement that the development met the planning objectives of the LEP, satisfied a long identified social need and would not prejudice the proper future planning of the area.(16) Mr Ian Swarts, the project manager for the marina extension, said that Rivercolt would be looking at the development potential of the town centre site, which was important to the viability of the 29 berth marina given the substantial foreshore and road works required by that consent. There were no proposals presently to develop the town centre site, but the 29 berth marina consent had 4 years left to run, allowing all options to be considered.
40 Many submissions were lodged in response to the notification and exhibition of the marina proposal (before its final amendment). For example, Mr Newell MP and Parliamentary Secretary, the State member for Tweed, objected to the development, identifying it as one lacking land based facilities capable of contributing to the progress of Chinderah. Ms Elliot MP, Federal member for Richmond, also objected to the proposal on a number of grounds, including destruction of the low-key riverside village lifestyle of Chinderah, lack of surrounding infrastructure and an inappropriate size, scale and nature of development for the proposed location. The Tweed Economic Development Corporation Ltd (an initiative of the Council) and others supported the marina development. The Corporation considered the marina a key infrastructure project for tourism development providing river-based connectivity between the coastal attractions of southeast Queensland and northern New South Wales with the Tweed hinterland.
41 Rivercolt submitted that the starting point for the assessment should be the acknowledged need for boating facilities in the Tweed River and the long-standing recognition of Chinderah as a strategic location for the provision of such facilities, reflected in the zoning of the adjoining land as 3(d) under the LEP and the Council’s consent to the 29 berth marina. Rivercolt acknowledged the connection of Aboriginal people to the river, but characterised that as a connection to the river as a whole. When considered in that context, the impact on the river was negligible. There was no impact on foreshore access caused by the extension, as all the foreshore works were part of the approved 29 berth marina. The additional pontoons for the extension were within the waterway, over 16 metres from the shore. The extensions did not affect significant commercial fishing grounds. Nor would they directly impact on the housing market. Any assessment had to balance the expressed intention of the LEP to encourage development – particularly waterside enterprise and tourism development – with the potential for indirect housing impacts. Moreover, insofar as there might be such impacts, they were a product of the planning regime promulgated by the Council and had to be weighed against the benefits of the proposal – increasing the vitality of Chinderah, providing a much needed boating facility, providing a public wharf with fuel and sewage pump-out facilities, and providing development consistent with the objectives of the adjoining waterfront enterprise land.
Consideration of issue
42 According to various Council documents in evidence and the EIS, the Tweed Shire has a population of about 75,000 people, expected to increase to in excess of 107,000 by 2011. The Tweed is well located to take advantage of tourism opportunities from the Byron and Ballina areas and south-east Queensland. Given rates of boat ownership, there is demand for boat mooring facilities in the north coast/south-east Queensland region, estimated in 1996 to require a 200 berth marina (with 100 dry berths). There is debate in various documents as to whether this over or underestimated the demand, but there is an obvious demand for mooring facilities in the region.
43 Chinderah has a population of about 1658 people. Tweed Valley is home to the fourth largest community of Australian South Sea Islanders in the country and the largest outside Queensland (Australian South Sea Islanders in the Tweed Valley, The Northern Rivers Area Health Service and Tweed Shire Council, 1998, p 5). About 600 members of this community live around the areas of Chinderah and Cudgen. Many are descendants of the Aboriginal people of the Tweed Valley and the indentured labourers used by the Queensland Government to develop the cane farming industry between 1860 and 1904 (Jolanda Nayutah and Gail Finlay, Minjungbal – the Aborigines and Islanders of the Tweed Valley, The North Coast Institute for Aboriginal Community Education, p 57).
44 Demographic information compiled by the Council discloses that the median age in Chinderah is higher than the average in Tweed (which is itself higher than the New South Wales average). The median individual income in Chinderah is the lowest in the Tweed, whilst the median household income is also amongst the lowest band. The Chinderah local environmental study observed that Chinderah had higher unemployment than the Tweed generally (about 34% and rising), with a significant and increasing number of people housed in caravan parks (about 66% of the population or 1151 people). These caravan parks, as the Department of Housing noted, are mostly close to the marina site along Chinderah Bay Drive.
45 The Council’s Social Plan 2002-2005 records that the Aboriginal community of its area continues to be disadvantaged and marginalised, with high unemployment, a prevalence of low income families and concerns within the community about younger community members losing cultural knowledge and discontinuing traditional practices. Similar concerns have been expressed about the Australian South Sea Islander community in the Tweed Valley, reflected in the Federal Government's response to the Report on the Situation of Australian South Sea Islanders in 1994. That response, amongst other things, formally recognised Australian South Sea Islanders as a unique minority group, severely disadvantaged as a consequence of racial discrimination, and whose historical experience in Australia had “generally been one of control and exclusion”, and called for government agencies, particularly those relating to employment, education, housing and health services, to review their programs given the specific needs of Australian South Sea Islanders.
46 Accordingly, Chinderah is home to a substantial community of historically disadvantaged and vulnerable people, dealing with high levels of unemployment, low incomes, high demands for low cost accommodation and difficult issues of sustaining cultural identity. I infer that this context was an important element in the Council’s objectives of encouraging the development of the Chinderah waterfront in a way that would rekindle Chinderah’s historical relationship with the river and provide a sound local economic base.
47 The proposed marina extensions (excluding the car park and fuel tank components) will be located in the waterway, being Crown land. The river has historically functioned as a public recreation area, commercial fishing ground and public thoroughfare. The Chinderah community and others regularly use the area of the proposed extensions for recreational and cultural activities. Commercial fishers also regularly use that area. The proposal will have the effect of physically excluding those uses from the marina site as extended, with that area to be available for one use – the parking of large motorboats - a use that the EIS acknowledges will be unlikely to be available to current members of the Chinderah community. Rivercolt emphasised the availability of the whole of the river for these recreational, traditional and commercial activities. However, the site inspection disclosed that the expanded marina is within an area central to the existing Chinderah commercial area and the main residential areas of the village. The relatively intense use of the marina site for recreational activities identified by the local people reflects the central location of the marina site to the Chinderah community.
48 Rivercolt observed that most of these impacts were the consequence of the approved 29 berth marina, not the proposed extension. I accept that the foreshore development is part of the 29 berth marina consent. However, the area of the river occupied by the extension substantially exceeds that occupied by the 29 berth marina. In particular, the proposal extends the berths well to the west and close to the small sandy beach. The eastern-most berths are also extended further into the river, in an area where the navigable waters are currently more constrained than at the western end.
49 The western area near the sandy beach is particularly well used by the local community, as it provides an ideal location for swimming, recreational fishing and other water-based activities. The foreshore and waters adjacent to pontoons G to J will remain physically accessible. However, as Ms Milne observed, those areas are so close to the extended marina that, when the activity associated with berthing the boats is taken into account, it is reasonably likely that most of the present use of those areas will be excluded. When considered with the associated boating activity around the berths, the extension involves a substantial displacement of other users from waters centrally located in and of significance to the Chinderah community. The fact that the extended marina would occupy a negligible area in terms of the river overall from its source to its mouth is not to the point. The area the extended marina will occupy is at the heart of the village’s waterfront associations. As extended to the west, the marina will effectively exclude other uses of a particularly important recreation area near and at the sandy beach. As extended to the east, the marina will substantially intrude into navigable waters in a more constrained part of the river channel.
50 Rivercolt accepted that the marina was located within and occupied part of the navigation channel. It observed that the marina is about 130 metres wide at its western end and 75 metres wide at its eastern end. The river (bank to bank) is about 290 metres wide at the western end of the marina and 260 metres wide at the eastern end, but the navigation channel is narrower. The boats berthed at the marina will mostly be large motorboats, according to the EIS. Rivercolt submitted that boats had to and did navigate narrower parts of the channel than would result from the marina. As the marina would not prevent safe navigation, the fact that it would occupy part of the channel was immaterial; it simply did not involve any relevant impact.
51 The context set by cl 13(3)(b)(i) of the LEP, with its focus on considering the potential for development below mean high water mark to alienate other recreational and commercial uses of waters, suggests that Rivercolt’s analysis of the impacts on the navigation channel is inappropriate. The navigation channel enables the river to function as a public thoroughfare and enhances its capacity for use for recreational and commercial purposes. The channel is thus inherently valuable. Encroachments into the channel affect its functionality, whether or not they result in a necessarily hazardous situation. The encroachment of the marina into the navigation channel is substantial, about 50% when the (-2) metre contour and the need to navigate around the buoys is taken into account The marina is also in a transition zone where the channel crosses from the northern to the southern bank of the river.
52 These are direct and objectively ascertainable adverse impacts of the proposed extensions, which (to adopt the language in Gantidis) are not made good by the development itself. They are also not effectively mitigated by the fact that the river extends past Chinderah upstream to Murwillumbah and downstream to the ocean. Accordingly, the proposal will have direct and demonstrable impacts, over and above the approved 29 berth marina, on an area that I am satisfied is significant to the Chinderah community as a recreational resource in the broadest sense of the term “recreation” (that is, embracing traditional activities important to cultural identity and continuity for the Aboriginal and Australian South Sea Islander population of Chinderah, as well as activities generally important to the Chinderah community as a fundamental part of its historical associations with the river). These are consequences of the location of the proposed expansion in the heart of the existing village and the size of the proposed expansion. The proposal will also adversely impact on the functionality of the navigation channel.
53 The area occupied by the new western pontoons is also a known haul shot fishing area. While the financial impacts on the 20 or so commercial fishers in the river cannot be quantified, I accept that their exclusion from other parts of the river makes retention of productive fishing grounds important to their continued capacity to make their living fishing the river. I accept that there will be real adverse impacts on those commercial operators. In circumstances where those commercial fishers supply the local market and, I infer, materially contribute to the local economy, those adverse impacts carry weight in the assessment. I do not find the position of the Department of Primary Industries persuasive (that is, that the retention of other more important haul shot areas and the opportunity for education of marina users makes the development acceptable), particularly when weighed with the overall social and economic effects of the proposed extension.
54 The concerns raised by the Department of Housing (albeit with respect to the originally proposed extension and anticipating the town centre development) cannot lightly be dismissed. In particular, the expectations in the EIS that the marina will be unlikely to affect the supply of affordable housing in Chinderah do not adequately recognise the marina’s location, its size or its intended function. It is to be located in that part of the river adjacent to the centre of Chinderah’s commercial and residential areas and close to the caravan parks housing many local residents. It involves a large number of berths when considered against the commercial and residential development within Chinderah. It is intended to satisfy a regional need. I consider that there is a real risk that the expanded marina is of sufficient size and proximity to the residential core of Chinderah to have longer-term consequential effects on the patterns of land-use in Chinderah, specifically, effects displacing people dependent on affordable housing in Chinderah.
55 Moreover, the extension, as Mr Richards and Ms Milne observed, involves a far larger marina than that approved by the Council, but absent additional land-based employment generating facilities. As Mr Richards said, given the location of Chinderah Bay Drive, there appears to be little opportunity close to the marina site for land-based facilities that would typically be associated with a marina serving a regional function (dry docks, boat repairs and the like). While the expanded marina would bring increased activity to Chinderah, it will do so (as the EIS acknowledged) without generating a substantial local employment base or, in my view, affording a real likelihood of such an associated base being developed in the future.
56 In terms of planning objectives for Chinderah, the location, size and nature of the proposed extensions do not contribute to the rekindling of Chinderah’s traditional river associations – rather, they undermine and exclude them physically and economically. Although occupying such a central and significant area to the Chinderah community, the marina expansion also does not materially contribute to the development of a substantial local employment base within Chinderah.
57 The EIS emphasised the regional function of the facility and the need to assess the impacts on the local community in the context of potential regional benefits. I agree. I consider the fact that facilities are intended and needed to serve regional boating needs indicates that it is important that those facilities service those needs in a manner that is socially and economically sustainable for both the local and regional communities over the long-term. While the proposed expansion will contribute to meeting an existing and increasing regional need for boating facilities by providing mooring facilities, it is by no means clear that it does so in a way that enhances the benefits for the Tweed region as a whole. Moreover, as Mr Richards’ evidence highlighted, the absence of any cogent proposal linking a development of the size proposed to shore-based activities and the sustainable development of Chinderah over the longer-term is striking.
58 Rivercolt submitted that the potential social and economic effects of the proposed expansion on Chinderah are a product of the planning regime, rather than the expansion. There are a number of difficulties with this submission.
59 The first difficulty is that the submission appears to assume that the goal of revitalising the Chinderah town centre necessarily will or is likely to have the effect of physically and economically excluding most of the existing population of Chinderah. That is a narrow and inappropriate view of the notion of revitalisation. The planning policy recommended by the local environmental study was based around the concept of rekindling Chinderah’s traditional links with the river and significantly increasing Chinderah’s local economic base. It is not my task to review the Council’s decision on the 29 berth marina. Nevertheless, I understand how a marina of 29 berths, that offered a public jetty facility (as the 29 berth marina did), set its marina berths well to the east of the sandy beach, extended pontoons only some 65 metres into the river (and at one pontoon only), when considered in the context of an associated development on the town centre site, could be seen as according with the policy recommendations of the local environmental study and fulfilling the objectives of the LEP. I am unable to reach the same conclusion about the present proposal.
60 The second difficulty is that the submission appears to assume that, as Chinderah has been identified as a “strategic location”, has the 3(d) zone along its waterfront and is the site of the approved 29 berth marina, it is the intended or obvious location to satisfy all or most of the identified regional need for wet berths. I do not draw that inference from those circumstances. The Upper Tweed Estuary Management Plan identifies limited upgraded boating facilities for Chinderah. That plan is otherwise primarily concerned with preventing bank erosion and improving foreshore facilities and access. The reference to Chinderah’s strategic location in the plan is in the context of identified severe constraints, including a lack of co-ordinated facilities. In other words, for Chinderah to be able appropriately to contribute to satisfying regional needs in an orderly and economic manner, a co-ordinated approach to community facilities is required. The proposed expansion does not offer a co-ordinated approach, but one facility of a size and in a location sufficient to transform the overall character of the village, whilst offering few benefits to the village community.
61 The third difficulty is that the submission appears to assume that “Chinderah” is confined to its physical attributes and does not include the people who presently live there. Rekindling a village’s traditional river associations and providing a strong local employment base are social and economic goals embracing the people who currently live in Chinderah, not only those who may wish to live there in future.
62 The provision of the public jetty, fuel wharf and sewage pump-out facility do not alter the conclusions I have reached. Similar facilities were part of the originally approved 29 berth marina consent (albeit, differently configured). The provision of those facilities (which I accept would be a valuable component of the marina) does not offset the social and economic impacts that I have identified above.
63 There are two aspects of the social and economic issues that arose in the proceedings that I have not addressed. The first relates to evidence about potential alternative sites for a marina development. The second relates to the viability of the proposed extended marina and/or the approved 29 berth marina. Neither matter affects my conclusions.
64 Although the general requirements for environmental impact statements require consideration of any feasible alternatives to the carrying out of the development, the EIS did not directly deal with that issue. Information available about potential alternative sites was limited to references in passing from a number of the local residents and the Lower Tweed Boating Study. I accept that Chinderah is one available location for a marina – the Council, after all, approved the 29 berth marina in that location. The boating study identifies six potential locations, of which Chinderah is one, and all of which are subject to various constraints.
65 Local concerns about the viability of the marina, and the community being left with a “white elephant”, appear to arise from various representations by Rivercolt’s predecessor that the marina would not be economically viable at a size less than that originally applied for (that is, the additional 228 berths). Rivercolt submitted that the viability of the proposed development is an irrelevant consideration. I accept that notions of the viability of development come perilously close to matters of financial profitability – which should not infringe on environmental planning assessments. Arguments might be available that this is not necessarily so for a facility intended to perform a regional function, located within a river, where (apparently) a Crown lease will be required to secure the necessary tenure rights to enable the development to proceed. Nevertheless, I prefer to resolve this question on a more confined basis. The evidence about the viability of the 115 berth marina did not cause me to draw any conclusion adverse to Rivercolt. Nor, for that matter, did the evidence about the 29 berth marina. The 29 berth marina, in any event, has been approved by the Council.
66 Accordingly, this is not a case where residents unjustly “expect to resist all change, all innovation and all growth, on the ground that its consequence may be uncongenial, or even deleterious, to themselves or their interests” (Cecec (No. 8) Pty Ltd v Mosman Municipal Council (1960) 5 LGRA 251 at 264-265 per Sugerman J) or where their fears about adverse social and economic impacts are unfounded. For the reasons set out above, I am satisfied that the nature, size and location of the proposed expansion will have substantial adverse social and economic effects on Chinderah so significantly disproportionate to the potential regional benefits as to warrant refusal of the application.
D. Visual impacts
67 As the EIS concerned the proposal to expand the marina by an additional 228 berths, its visual impact analysis is of limited assistance. It assessed the visual sensitivity of the location as moderate, the visual modification by reason of the development as high and the overall visual impacts as “moderate to high”. The Department of Planning concluded that the proposed expansion had a moderate visual impact. It recommended, and the Minister imposed, a condition requiring the proponent to implement all reasonable and feasible measures to minimise the visual impacts of the development to the Director General’s satisfaction. What that may involve remained unclear.
68 Mr Chris Lonergan, planner, and Mr Gary Fidler, architect, gave evidence about visual impacts. Both assessed the visual impact of the marina as a whole, which I consider appropriate. The 29 berth marina has been approved and, if and when constructed, will impact on the views in issue. To assess the proposed expansion, it is necessary to consider the whole development, whilst accepting that the 29 berth marina has the benefit of consent.
69 Mr Lonergan considered that the marina would be mostly screened from view from Chinderah Bay Drive by shoreline vegetation. From the northeast, near and at John Oxley Park, the view of the marina would be set against a backdrop of dense vegetation, minimising its visual impact. In addition, from this angle, the marina would pale into insignificance when compared to the 50 metre high electricity tower which Mr Lonergan characterised as “the dominant visual element behind the marina”. Otherwise, vistas from the walkway or Chinderah Bay Drive northeast of the site towards Mount Warning would be fleeting. Mr Lonergan carried out a visual impact assessment in accordance with the methodology recommended by the Sydney Harbour Foreshores and Waterways Development Control Plan. He concluded that the marina as expanded would not have a significantly detrimental visual impact. Mr Lonergan also observed that the expansion would mirror the patterns of the approved 29 berth marina. Chinderah had been a location for boating activities for some 180 years – setting part of the context for the assessment. Moreover, marinas are constantly changing. Finally, the marina was located next to the main commercial precinct of Chinderah zoned 3(d) Waterfront Enterprise. Existing and likely future development in that zone were also part of the relevant context.
70 Mr Fidler dealt with the significance of the background vista to the west in detail. He noted that the Australian East Coast Sub-tropical and Temperate Rainforest Parks were on the World Heritage list. The values recognised by this listing include the caldera of the Tweed Shield Volcano described as “one of the best preserved erosion caldera in the world”. He described the visual quality of the view, being a view to the west over water towards Mt Warning, as unique. Mr Fidler emphasised that the first step was to assess and accept the significance of the view. Once that had been done, the impacts of development could be assessed as a second step. He thought Mr Lonergan’s methodology conflated these steps, causing Mr Lonergan to devalue the view. Mr Fidler identified the vista as highly significant. He then identified, from various vantage points, parts of what he described as the “World Heritage vista” within which development as proposed would inevitably have high impacts incapable of mitigation, parts where impacts would be moderate but may be capable of being mitigated, and parts where there would be no visual impacts.
71 Mr Lonergan and Mr Fidler agreed that the extensions brought the marina further into the vista from which Mount Warning is visible across the river. They marked up a photograph showing an approximation of the additional intrusion into this view-shed of about 30% to 50% when compared to the 29 berth marina. Commissioner Watts and I viewed the marina site from all of the vantage points identified by the parties as relevant.
72 Rivercolt’s submissions largely reflected Mr Lonergan’s evidence. It submitted that the Court would carry out its own subjective assessment, but in so doing would start from an acceptance that the approved 29 berth marina would screen most of the marina extensions from view and that Chinderah had been identified as a strategic location for boating activity.
73 Although I accept that the assessment of the visual impact of development ultimately involves certain subjective considerations, I do not think that means the consent authority or the Court exercising its functions is thereby inevitably involved in imposing some personal aesthetic sense on proposed development. Consistent with my observations above about social and economic impacts, it seems to me that acceptance of such an approach would be the antithesis of environmental planning as contemplated by Pts 3 and 4 of the EPA Act and would tend to undermine the legitimacy of the scheme for environmental planning in New South Wales established by those parts. Consideration of that scheme, with its emphasis on publicly prepared and promulgated environmental planning instruments, indicates that all impact assessment, including visual impact assessment, is to be undertaken in a principled manner, recognising that the weight to be accorded to visual considerations is particularly informed by the provisions of the relevant instruments, assisted by review of the studies and policy documents underlying them.
74 SEPP 71 and the LEP are two primary planning instruments of relevance. One focus of SEPP 71 is protecting the visual qualities of coastal areas (for example, cl 2(1)(e) and (k) and 8(f)). Another recognises the importance of Aboriginal cultural heritage in the coastal context, extending beyond Aboriginal physical heritage to the protection and preservation of “Aboriginal values, customs, beliefs and traditional knowledge”. Clause 4(a) of the LEP refers to the aim of managing growth in the area so that the unique natural and developed character of the Tweed Shire is retained. Clause 13(b)(ii) of the LEP refers to the provisions of any plan of management in force as relevant to the assessment of development of unzoned land. The status of various Council documents in evidence was not clear (in particular, whether they were in force for the purposes of this clause). In any event, the Upper Tweed Estuary Management Plan identified the marina site and the adjoining foreshore as visual category 1 – highest quality. The notes to that part of the plan observed that 85% of the Tweed foreshores were within classes 1 or 2 – the highest or high visual quality categories. The plan recommended that, in order to enhance and protect these landscape and scenic qualities, it was important, amongst other things, to consider visual impacts and control the form of development on the foreshore. The areas to the northeast of the marina, referred to by Mr Lonergan and Mr Fidler as relevant viewing vantage points, were classified as 4 – moderate quality under this plan. They were identified as appropriate for enhancement by re-establishing foreshore vegetation and providing more appropriate walking paths.
75 Other information is also available to assist in resolving the visual impact issues. The North Coast Institute for Aboriginal Community Education publication Minjungbal – the Aborigines and Islanders of the Tweed Valley (Jolanda Nayutah and Gail Finlay) records that Wollumbin (Mt Warning) is the most significant site in the Tweed Valley for Aboriginal people, and a central sacred site for neighbouring tribes (p 38). The World Heritage listing for the Central Eastern Rainforest Reserves identifies Mount Warning as the “prominent central mountain mass” in the range representing the original neck of the volcano which, being more resistant than the surrounding basalt and rhyolite, “remains as an isolated plug”.
76 It is true that, as Rivercolt submitted, the expansion of the marina can have no direct impact on the world heritage and other values of the Central Eastern Rainforest Reserves or Mount Warning. Rather, these matters disclose aspects of the significance of the vista across the river to Mount Warning for the Chinderah community and the public generally, and some of the reasons for that significance. They provide support for Mr Fidler’s insistence on recognising the significance of views over the water to Mount Warning (whether or not that view be unique from Chinderah or available from other vantage points). They confirm that this insistence was not a product of Mr Fidler’s aesthetic sense but, rather, an appropriate acceptance by him of both the observable characteristics of the view (within which Mt Warning, as a consequence of its geology, is prominent, central and most distinctive in appearance from its surrounds) and of certain important shared cultural values of Aboriginal and non-Aboriginal people. I consider that these views are a highly valued scenic quality and thus a quality that SEPP 71, the LEP and the Upper Tweed Estuary Management Plan seek to protect.
77 I do not think Mr Lonergan gave appropriate weight to this context in his visual assessment. Mr Lonergan placed undue weight on factors that I consider of relatively minor importance, which devalued the significance of the western view, such as the presence of the electricity tower. That element of the view is distant, while the expanded marina will be in the immediate foreground of the view. Mr Lonergan also placed substantial weight on his visual analysis matrix based on the Sydney Harbour Foreshores and Waterways Development Control Plan. This involved Mr Lonergan attributing numbers between 1 and 3 to various vantage points representing low, medium and high impacts by reference to certain criteria (viewer location, view period, boat size and mix, and boat storage type). Mr Lonergan then averaged the result for each location. This process gave the expanded marina a ranking of 1.675 on the scale of 1 (low) to 3 (high).
78 The Sydney Harbour Foreshores and Waterways DCP does not apply to the proposal (as Mr Lonergan acknowledged). The DCP appendix is a guideline only and states that visual impacts will arise from a complex combination of circumstances unique to each proposal. It seems to me that Mr Lonergan’s use of this method involved a subjective assessment clothed in the ostensible objectivity of a series of numbers, culminating in a conclusion also in the form of a number to three decimal places. The notion that the expanded marina will have a visual impact represented by the number 1.675 seems to me to bear no meaningful relationship to the context set by the planning instruments and policies, the available information about the significance of the view or the observable attributes of the view. I consider Mr Fidler’s conclusion, that the expanded marina will involve a high visual impact on a very significant view, compelling.
79 Rivercolt’s submissions to the contrary, based on Mr Lonergan’s evidence and otherwise, were not persuasive. As I have said above, I do not consider Mr Lonergan’s approach to the visual impacts of the proposal well founded.
80 The 29 berth marina will impact on the vista identified by Mr Fidler but, as his diagrams disclose, the impacts associated with the expansion are far greater from many vantage points. The 29 berth marina will not effectively “hide” the additional 86 berths and associated boats. The fact that the 29 berth marina will cause impacts (impacts accepted through the Council’s grant of development consent) does not make appropriate the acceptance of far greater impacts on this highly significant view across the water to Mount Warning. The “strategic location” of Chinderah and its historic associations with the river and boating activity (which I have dealt with above) also do not indicate the acceptability of the marina expansion in visual terms, particularly given the provisions of SEPP 71, the LEP and the Upper Tweed Estuary Management Plan.
81 The notion that the view from the sweep around Chinderah Bay Drive to the northeast is merely fleeting is inconsistent with the function of the foreshore path as a walking trail and recreation area, the availability of similar views from this part of the river and the central location of the marina as expanded in the foreground of the view. Similarly, the fact that the Council’s policy documents identify part of the enhancement of the foreshore area for revegetation does not mean that it should be accepted that the marina expansion would be hidden from view in the future. The same policy documents emphasise the need for access to the foreshore and river. The fact that these viewing locations are themselves identified as mostly class 4 – moderate – in the Upper Tweed Estuary Management Plan does not negate the view impacts. The more salient fact is that the expansion will occur in an area identified as class 1 - highest quality. Contrary to Mr Lonergan’s evidence, the vegetated backdrop, and existing and likely future development of Chinderah, does not effectively mitigate the visual impacts. Nor does the fact that the marina will be affected by changing tides and boat movements.
82 I do not accept Rivercolt’s submission that the evidence of the lay witnesses about visual impacts was immaterial as they objected to any marina. The lay witnesses who addressed visual impact were plainly concerned about the overall scale of the expansion. There is an obvious and substantial difference between the scale of the 29 berth marina and the present proposal.
83 I consider the visual impacts of the proposed expansion to be severe. They also warrant refusal of the application.
E. Seagrass beds and riverbank erosion
Seagrasses
84 The EIS identified patches of seagrasses (Zostera capricorni) along the foreshore, with other areas in the river being along Chinderah Spit and adjacent to Lillies Island. It concluded that impacts could be avoided by the marina design avoiding shading and by advising boat owners not to drop anchor in seagrass beds. The marina manager would provide owners with a map of seagrass beds.
85 Mr Marshall Chang gave evidence about the marine ecological issues associated with the marina extension. He emphasised the critical function of seagrasses to marine ecology. Seagrasses are the nursery habitat for fish and crustaceans, including species important for commercial and recreational purposes. Tweed is a tourist fishing destination so maintaining seagrass beds is important to this aspect of its economy. The Lillies Island seagrass beds are located east and southeast of the island and contain 40% of the seagrasses in the whole river. Those seagrass beds are thus critical to the river and must be protected from direct and indirect impacts. Any increase in turbidity in this area is a significant threat to the seagrasses, particularly at Lillies Island.
86 Mr Chang stressed that large motorboats will use the marina. These boats will mostly be travelling from the marina to the mouth of the river and back, past Lillies Island. The marina location thus requires boats to pass this most important seagrass bed. This area is the upper end of seagrass distribution. Further up river, turbidity increases. This suggests that turbidity in this section of the river is at the uppermost limit for photosynthesis for seagrasses. He observed that various activities associated with the marina threaten those seagrasses – turbidity from the proposed piling (as jet piling, referred to by Mr Swarts, causes significant turbidity), turbidity from boat wash, and deliberate and accidental groundings of boats. Background variations in turbidity will remain, but the overall level of turbidity will increase because of the marina. There are also seagrasses on the northern side of the channel that will be impacted by boat wakes from boats using that part of the channel, given the marina’s location and intrusion into the river.
87 Mr Chang concluded that the impacts were directly related to the location of the marina, as well as the number and size of boats proposed. General increases in boat traffic on the river can be expected, but, unlike the marina, they will not be localised around this important area of seagrass at Lillies Island. Moreover, the boats will be relatively large motorboats, which cause large wakes even at slow speeds. This turbidity effect, unlike groundings, is caused by ordinary boat use, not inappropriate boating behaviours – so education of marina users cannot effectively deal with the issue.
88 Dr Daniel Bucher agreed with Mr Chang’s description of the general ecological importance of seagrasses. He observed that seagrasses were currently flourishing in a heavily used part of the estuary. He accepted that boat wakes are not good for seagrasses as they can cause turbidity, but concluded that turbidity caused by marina users would not materially change the environment. He had observed large numbers of boats already passing Lillies Island. Accordingly, whatever small percentage of increased boat traffic the marina will cause would not be material. He also noted that boat use of the river is increasing irrespective of the marina.
89 Dr Bucher said that the best way to reduce wakes is to reduce speed. Wake sizes are a product of speed, displacement and distance to the shore. Dr Bucher considered that wakes at the shore from boats at low speed would be far less than Mr Chang’s evidence suggests. Moreover, the type of large boat berthing at the marina would tend to stay in the deeper parts of the channel. Smaller boats cause the real problems. Speed signs are thus appropriate. Also, this species of seagrass is dynamic. While this area is near the upper end of distribution, there are seagrasses past Lillies Island and the Lillies Island seagrasses are presently flourishing - so there is leeway. In any event, turbidity is only one issue and fluctuates due to many factors. A much greater change in turbidity would be required to have any material impact. Only a very small area of seagrass patches (10 sqm) would be directly shaded by the proposal.
90 Mr Peter Parker emphasised that impacts on seagrasses were largely a product of boating behaviour, rather than boat numbers. Sensitive areas could be marked. The marina provided a valuable opportunity to educate users about boating behaviour. He considered that the seagrasses had not been previously affected by increasing boating on the river over 30 years. Irrespective of the marina, boat use would increase. Also, the real impacts were caused by wind driven wakes, not boat wakes. The best response for any potential impacts of the marina would be speed controls.
91 Rivercolt submitted that the Department of Primary Industries was responsible for direct impacts on seagrasses and had no objection to the proposal. Condition 97 of the Minister’s consent also required the proponent to obtain a permit to harm seagrasses. The direct impacts are negligible. The potential for indirect impacts did not warrant refusal of the application. The marina would not result in damage by grounding, as the types of boats using it will need to keep to deeper waters. Mr Chang’s evidence depends on the hypothesis that seagrasses are already at tolerance limits for turbidity so that any increase will “tip …seagrass over the edge”. The evidence of Dr Bucher and Mr Parker is to the contrary. In any event, the marina is to meet an existing and future demand for mooring facilities - so the boat traffic will both be and increase on the river in any event. As Mr Parker stressed, the marina presents a valuable opportunity to educate users about boating behaviour.
92 It is apparent that the ecological experts addressed the issue of impacts on seagrasses considering the marina as a whole (that is, the approved 29 berth marina with the proposed expansion to 115 berths). That method of assessment was appropriate as the expansion raises issues of cumulative ecological impact.
93 One of the difficulties with assessing this issue is the absence of base information in the EIS about the potential for the types of impacts on seagrasses identified by Mr Chang. It is presumably for this reason that the Department’s assessment report deals with seagrass beds at the foreshore where the development will occur. That report also notes that although the Department of Environment and Conservation recommended that the proponent undertake further assessment of estuarine ecosystems, including seagrass mapping, the proponent declined to do so on the basis that the proposal involved no new foreshore access points and would be located in deeper waters (where seagrasses do not grow). This accords with the general position reflected in the EIS that seagrasses are relevant insofar as they are within the footprint of the proposal. Mr Chang’s evidence had a different focus, however.
94 An important aspect of Dr Bucher’s reasoning process was the small number of additional boats using the river by reason of the marina compared to existing and expected boat traffic. In that context, he referred to a possibility of about 3 or 4 boats an hour leaving the marina compared to about the same number presently travelling past Lillies Island irrespective of the marina. Dr Bucher did not know the numbers of movements expected as part of the marina proposal, however. The EIS did not directly deal with the relative numbers of boat trips past Lillies Island because it did not focus on the class of potential impacts identified by Mr Chang (and, of course, it dealt with a proposed expansion by 228 berths). Nor did the EIS specifically deal with likely wake size of boats of the class likely to be berthed at the marina when they reached the Lillies Island seagrass beds, although it acknowledged boat wakes as an issue for riverbank erosion. The seagrass beds extend well to the south and east of Lillies Island and, I infer, would be directly exposed to boat wakes associated with boats leaving and returning to the marina to reach the river mouth.
95 The road traffic assessment in the EIS adopted a peak boat use rate of 40%. Applied to the present application, this equates to 46 boats leaving and presumably returning to the expanded marina in the peak. Using the same 40% peak use rate for the 29 berth marina generates about 12 boats leaving and returning to the marina in a day. The EIS notes that most owners of large powerboats will frequently travel offshore, focusing boat traffic between the marina and the river mouth, rather than upstream. The EIS also anticipates traffic movements in the morning and evening. If that pattern is reflected in boats leaving and returning to the marina, presumably most trips past Lillies Island would be concentrated in the morning and evening periods, rather than evenly spread across the day.
96 Rivercolt submitted that most of those boats would be on the river anyway either currently or as a consequence of general increases in boating traffic. That submission does not effectively address Mr Chang’s evidence about the threat to the Lillies Island seagrass beds by reason of the localised increased traffic associated with a marina of the nature and size proposed, immediately upstream of Lilllies Island. Nor does it address the fact that the EIS describes the proposal as one serving a regional catchment extending from Ballina to Mermaid Waters by providing berths for large motorboats generally anticipated to travel downstream from Chinderah to the ocean. In other words, the marina will attract this specific type of boat traffic to Chinderah, whilst general trends will see boat traffic on the whole river increase.
97 Consistent with Mr Chang’s evidence, various documents (including the EIS and the Lower Tweed Boating Study) identified ordinary boat traffic and consequential boat wakes as a source of potential erosion and, I infer, turbidity. While wind borne waves are also an issue as Mr Parker indicated, the documents did not suggest that potential problems associated with boat wakes were thereby immaterial. If ordinary boat traffic is the problem then, as Mr Chang said, education is unlikely to be an effective mitigation measure.
98 Other documents also support important aspects of Mr Chang’s evidence and are difficult to reconcile with the evidence of Dr Bucher and Mr Parker. For example, The State of the Marine Environment Report for Australia - Technical Annex 1, tendered by Ms Milne, states that there is an estimated loss of 50% of Zostera capricorni communities from the estuaries of New South Wales, with the estimated 60% loss from the Clarence River and the Tweed River over 30 years thought to be associated with increased turbidity.
99 I do not accept Rivercolt’s characterisation of Mr Chang’s evidence as dependent on seagrasses necessarily being at the edge of their tolerance limits or that the only risk is for seagrasses to be “tipped over the edge”. I infer from the distinction drawn by the experts about the importance of the Lillies Island seagrass beds compared to, say, the patches under the marina site, that seagrasses may be more or less lush and contribute more or less to the ecological abundance in the river. Mr Chang’s evidence recognised that, if turbidity is a threat to seagrasses (which I accept), then a proposal for a large marina for large motorboats immediately upstream of the seagrass bed providing 40% of the seagrasses in the whole river is a direct threat to their continued ecological function. General increases in boat traffic on the river may also pose a threat – but the location of the marina will mean that boat activity is concentrated in a manner not otherwise likely to occur. Mr Chang’s evidence about the risk to the seagrass beds was cogent and persuasive. Dr Bucher and Mr Parker did not adequately grapple with that evidence or the issues Mr Chang raised about seagrasses.
100 Given my acceptance of the critical role of the Lillies Island seagrass beds in the overall ecology of the river, these considerations carry significant weight. I am satisfied that they warrant refusal of the application.
Riverbank erosion
101 Unlike the seagrasses issue, the EIS recognised the potential for riverbank erosion as a significant matter in the assessment of the proposed expansion. It identified that the entire river could be affected, but that most boats would be travelling between Chinderah and the mouth of the river. The area of the marina would be particularly susceptible to boat wash impacts due to the concentration of boats, the non-cohesive sediments present and the fact that the location is the outside bend of the river and is experiencing geomorphic recession. Immediately downstream of the marina site is also a particularly vulnerable area. Studies show that marina pontoons sheltering shore areas can attenuate wave action by about 40%. The EIS recommended speed restrictions on those stretches of the river particularly susceptible to erosion and the creation of a “no wash” area around the marina site and downstream of it. The proposal did not include any physical bank protection works. The Department recommended (and the Minister imposed) a condition requiring a bank erosion monitoring program before the development commenced and another condition requiring plans of foreshore protection works to be approved by the Director-General and implemented before boats were berthed at the marina. Those plans were to be in accordance with the relevant requirements of the Tweed River Estuary Bank Management Plan.
102 The Tweed River Estuary Bank Management Plan presents various options for vulnerable areas of the river. For Chinderah, it identifies bank stabilisation works as a very high priority and identifies options including types of full bank rock revetment and creation of sandy beaches. It was apparent from the view that the Council had already implemented rock revetment works at various locations in Chinderah outside the marina site.
103 Riverbank erosion was a substantial concern for a number of the people who gave evidence. Mr Krasna identified the rapid pace of erosion at the marina site in his lifetime (observations that seem to me to be largely consistent with the EIS on this issue), causing silt to build up in the river. He noted that the Council’s rock revetment works were not particularly “user friendly” so that the public tended to head to the little sandy beaches instead. Mr Hopkins thought the size and number of boats associated with the proposal would exacerbate riverbank erosion and were not sustainable. He could not understand why the marina would be located on the outside curve of a river with significant flooding. Mr Ness was similarly concerned, as were Ms Cecil and Mr Fairfax. Mr Bates did not think it reasonable that the impacts of the marina should be ameliorated by boat speed restrictions on others.
104 Rivercolt submitted that, as the marina would provide berths for anticipated additional vessels on the river, the potential for boats to cause erosion was immaterial. I do not accept that submission. The potential for riverbank erosion is an important consideration. Even assuming it to be the case that the expanded marina will service only those boats that would otherwise be on the river, the location will concentrate boat activity in a particularly vulnerable location. Moreover, the premise of the submission is difficult to reconcile with the regional function and nature of the marina. The marina will service large motorboats. The EIS anticipates that they will generally be heading to the mouth of the river, as they will be ocean-going craft – so most traffic will be from Chinderah downstream. The regional catchment identified in the EIS means it is unlikely that the marina as expanded will do nothing more than provide berths for boats already or that will be on the river. It will attract boats of a particular nature to one location in the river and concentrate their activity between the marina and the ocean.
105 There are a number of other matters of concern with respect to the potential for riverbank erosion. The EIS did not adequately disclose the relationship between the expected dampening effect of the pontoons and the increased impacts caused by concentrating boat traffic in a vulnerable area. The EIS did not propose or describe any physical bank works. The bank monitoring required by condition may be of considerable significance to the extent of the potential impacts of concentrating boat traffic in this area. The bank works required by condition are likely to be material to foreshore accessibility in the area of the works – as the various options in the Tweed River Estuary Bank Management Plan disclose. Yet the works have not been identified or assessed for their impacts or their effectiveness.
106 I do not think this important matter can be adequately assessed or resolved on the available information. That is a material weakness in the application.
F. Other issues
107 My adverse findings about the social and economic, visual and seagrass issues are each sufficient to warrant refusal of the application. These conclusions mean that it is not necessary for me to consider in detail a number of the other issues raised by Ms Milne. I propose briefly to record my primary conclusions about those matters, but they are not determinative of the appeal.
Water quality
108 Both the EIS and the Department’s assessment accepted that the expanded marina had the potential to impact on water quality in the river and that maintaining water quality was an important objective. The Department recommended, and the Minister imposed, a condition requiring the proponent to prepare and implement a water management plan that described the measures to be implemented to minimise water quality impacts and included a surface and groundwater monitoring program.
109 Management plans are a familiar and accepted tool to regulate development. Not every aspect of development needs to be detailed in advance. Nevertheless, there should be sufficient information about the types of mitigation measures contemplated so that the consent authority can ascertain whether they are likely to be reasonably practical and effective. In this case, the amendments to and evolution of the proposal after the EIS resulted in gaps and inconsistencies in the information about water quality mitigation measures (for example, the EIS refers to piles being dug with an augur to minimise disturbance of the riverbed, whereas Mr Swarts understood that the piles would be jet driven). Given my findings above, these issues of concern are not determinative and may have been able to be resolved by the provision of additional information.
Flooding
110 Many people who gave evidence raised substantial concerns about locating the marina in a river with the flood history and characteristics of the Tweed. The proposed 86 berth expansion was accompanied by a flood impact assessment, but the amended application was not notified or exhibited. The assessment concluded that the marina as expanded would increase flood levels by 0.03 metres upstream and 0.02 metres to the south of the river, whilst decreasing velocities on the southern bank and increasing them on the northern bank. Local people with direct experience of flooding on the Tweed were critical of the assumptions in that assessment about debris load. They were concerned about the marina and/or boats breaking up in a flood and being either swept through the caravan parks on the floodplain or being trapped at Barneys Point bridge. They were also concerned about the marina not breaking up in a flood and acting as an in situ dam. The Council, by its letter of 9 November 2005, expressed similar concerns.
111 These concerns cannot be lightly dismissed, given the flood history of the river and the evidence about the potential extent of debris it carries in a flood. The flood impact assessment appears to deal with the flood implications of the marina in the ordinary course, whereas evidence of many of the local people concerned the worst-case implications of the marina in a range of flood events, including if it sustained substantial damage, broke up or attracted more debris than the authors of the flood study anticipated. Given the potential safety implications of flooding, I do not consider these concerns unreasonable. However, I also do not consider them to be capable of separation from the structural design issues that arose during the course the proceedings. The parties agreed that those structural issues should not lead to refusal of the application, but an opportunity to call further evidence. Given the findings above, the issue is not determinative. Thus, it would be inappropriate to say more.
Aquatic and terrestrial ecology
112 I accept that the only aquatic species identified as a threatened species by Ms Milne’s amended statement of issues was the Black cod. The preferred habitat of juveniles of that species is rocky shores in estuaries. Development of the rocky shore part of the river in this case, as Rivercolt submitted, appears to be a product of the approved 29 berth marina rather than the expansion. I am not satisfied on the evidence that the proposed expansion is likely to significantly affect the Black cod species. I have dealt with other aquatic impacts above.
113 The car park development on lot 121 raises various issues. According to the evidence of Mr Parker and Dr Phillips, the car park site contained one endangered ecological community – Swamp Oak Floodplain Forest of the NSW North Coast and, Sydney Basin and South – East Corner Bioregion and possibly also another – Lowland Rainforest on Floodplain in the NSW North Coast Bioregion. Lot 121 is the subject of consent for subdivision from the Council (with subdivided lots at the front and the car park at the rear). Most of the Swamp Oak Floodplain Forest Community has been cleared and mulched. There are separate proceedings in this Court about that clearing involving different parties, which concern the validity and scope of the subdivision consent, and authority for that clearing.
114 In Rocla Pty Ltd v The Minister for Planning and Sutherland Shire Council [2007] NSWLEC 55 at [60] to [62] Talbot J observed that the task of the consent authority (and the Court exercising its functions) was to consider “the merits of the application before it and to make an assessment based on the evidence in respect of the relevant issues”. Accordingly, in that case, the Court declined to consider the application in the context of consents granted in 1965 and 1968. The facts here are different from those considered in Rocla. Nevertheless, I have determined the outcome of this appeal on other grounds. Given this, I think it inappropriate for me to say more, particularly where other proceedings involving the car park site are pending in this Court.
Absence of cultural heritage or archaeological assessment
115 I have dealt with the social and visual impacts of the proposal above, which raised heritage and cultural considerations with respect to Aboriginal and Australian South Sea Islander people. Insofar as archaeological issues are concerned, I consider the Department’s assessment reasonable (that is, no further studies were required given the absence of additional foreshore works).
Application remains a speculative concept
116 The main difficulty with this issue is that it was not raised squarely in Ms Milne’s amended statement of issues and arose in the context of the structural design of the marina (itself an issue raised only in the context of the flooding matter). Accordingly, my comments with respect to the flooding issue apply.
G. Conclusion
117 My findings in respect of each of the social and economic, visual, and seagrass issues lead to refusal of the application. Accordingly, I order that:
(1) The appeal is upheld.
(3) The exhibits are returned, other than exhibit BB, which is to be returned to the Tweed Shire Council.(2) Development application (DA 2273-6-2003) as amended, proposing the extension of the Chinderah marina by an additional 86 marina berths, a 52 space car park, a fuel storage tank and pipeline and a public jetty with a fuel and sewage pump-out facility, is refused.
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