Nanlejo Pty Limited v Sutherland Shire Council

[2010] NSWLEC 1141

Land and Environment Court

of New South Wales

CITATION:

Nanlejo Pty Limited v Sutherland Shire Council [2010] NSWLEC 1141

PARTIES:

APPLICANT
Nanlejo Pty Limited

RESPONDENT
Sutherland Shire Council

FILE NUMBER(S):

10037 of 2010

CORAM:

Hussey C

KEY ISSUES:

DEVELOPMENT APPLICATION :- Berthing facility, permissibility, scenic impact, precedent, design.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Sutherland Shire Local Environmental Plan 2006
Draft Sutherland Shire Local Environmental Plan
Sutherland Shire Development Control Plan
Greater Metropolitan REP No 2 – Georges River Catchment
Interpretation Act 1987

CASES CITED:

Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council Referred to 117 LEGERA 1
Gill v. Donald Humberstone & Co Ltd [1963] 1 W.L.R. 929 at 933, 934
Dirscoll v. J. Scott Pty Ltd (1976) 50 A.L.J.R. 528 at 531
Harbour Port Constructions Pty Limited v Sutherland Shire Council [2006] NSWLEC 446

DATES OF HEARING:

19 and 20 May 2010

 
DATE OF JUDGMENT: 

25 June 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Galasso (SC)
SOLICITORS
Dominic Carbone Larbone Lawyers

RESPONDENT
Mr J Cole (solicitor)
SOLICITOR
HWL Ebsworth

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

25 June 2010

10037 of 2010 Nanlejo Pty Limited v Sutherland Shire Council

JUDGMENT

Background.

1 This appeal is against council’s refusal of a development application proposing the removal of an existing stub wharf and the construction of a 5 boat berthing facility, together with an access boardwalk to the facility and associated gabion support wall at 24 – 26 St George Crescent, Sandy Point.

2 The berthing facility is to be part of a 5 – lot community title subdivision that was approved in 2002 and even though most of the construction works have been completed, it has not yet been registered. A number of issues were raised, which are summarised as follows:

• Permissibility of the proposal;
• Impact on the scenic value of the waterway;
• Alienation of public land;
• Precedent;
• Suitability of the design of the development;

The site

3 This site is described as Lots 67 and 68 in DP 261089. It is an elongated lot with a road frontage of 18.29m and a northern boundary of 211m, which meets the MHWM that forms the eastern boundary with the Georges River.

4 The land slopes steeply from St Georges Road. There are pockets of vegetation on the site and some mangroves within the waterway beyond the MHWM.

5 Subsequent to the initial subdivision approval, a modification was allowed, which created a non-habitable community title lot adjacent to the river to allow each of the 5 proposed lots access to the waterway. The proposed facility is connected to this lot.

6 The existing lot fronting the waterway contains a fibro cottage located below the foreshore building line (FSBL) and a stone retaining wall approximately 2m high, parallel to the MHWM. The conditions of consent require the removal of this cottage.

Planning controls

7 The relevant controls in this matter include the Greater Metropolitan REP No 2 – Georges River Catchment, which contains the following controls:

• Cl 9 (1) and 9 (3) dealing with acid sulphate soils and flooding;
• Cl 11 (15) dealing with marinas, as defined in the instrument. One of the specific matters listed for consideration is whether adequate depth of water exists for the marina and water shoreline facilities, so as to avoid adverse impacts on the Georges River.

8 The Sutherland Shire LEP 2006 (Amendment 4), which commenced on 9 January 2009, applies. The site is zoned as Zone 1 Environmental Housing (Environmentally Sensitive Housing) and Zone 16 Environmental Protection (Waterways). The LEP contains definitions for marina, watercraft facility, berthing area, mooring and beach and foreshore protection works.

9 Clause 17 makes provision for buildings or works on land traversed by a foreshore building line (a 7.5m FSBL applies in this case) and includes further development prohibitions on land between the FSBL and MHWM. Clause 18 makes provision for the restoration of land below the MHWM through the removal of prohibited and unlawful buildings and works.

10 Also relevant is the Draft Sutherland LEP Amendment 6 (DSLEP), which has been exhibited. It contains changes in respect of flood risk provisions.

11 The following controls were also referred to:

• Sutherland DCP 2006;
• The Shires Foreshores – Achieving Scenic Quality;
• AS 3962 – 2002 “Guidelines for the Design of Marinas.

The evidence

12 Detailed evidence was presented by:

• Ms D Pinfold; Council town planner
• Mr C Lorimer; Consultant visual assessment (council)
• Mr P Fielder; Consulting engineer (council)
• Mr C Weston; Consultant town planner (applicant)
• Dr R Lamb; Consultant visual assessment (applicant
• Mr C Henstock; Consulting engineer (applicant).

Permissibility

13 The threshold issue in this matter concerns the permissibility of the proposal, which is dependent on the categorisation of the proposed structure. It is described in the SEE as comprising:

i. The construction of a boardwalk from the community lot to access the floating facility. It is 1m wide and approximately 13m long and connects to the gangway of the structure.
ii. The construction of a gabion retaining wall adjacent to the boardwalk, on its landward side to support the natural embankment.
iii. A floating facility for 5 vessels consisting of a series of interconnected pontoons forming walkways and 3 fingers to allow berthing for the 5 vessels, with the pontoons held in plan position by a series of 5 piles and accessed by a hinged ramp, or gangway. (Refer attached Plan “A”).

14 Insofar as the respective experts discussed the categorisation of the proposal, reference was made to the following definitions in the controls:

Marina (SSLEP); means an arrangement of pontoons, jetties or the like, used as a business for providing moorings for boats, together with associated facilities, such as the following:
(a) Slipways
(b) Facilities for the repair, maintenance, or fuelling of, or the provision of accessories and parts for, boats.
(c) facilities for the storage or provision of food,
(d) offices.
Berthing area (SSLEP); means a configuration of piles (typically 4), positioned adjacent to a jetty, ramp or pontoon, designed for the permanent parking of a vessel.
Watercraft facility (SSLEP); means a pontoon, suspended ramp (being a ramp that connects a pontoon to a jetty), jetty, wharf or the like that facilitates access to recreational vessels for embarking and disembarking of passengers and the transfer of goods, but does not include a marina.
Mooring (SSLEP); means a detached of freestanding apparatus located on or in a waterway and that is capable of securing a vessel.

15 The categorisation of the development is critical because it is to located within the Zone 16 (Waterways) where the relevant objectives include:

(a) to recognise the importance of the waterways of Sutherland Shire as an environmental and recreational asset,
(b) to ensure development is carried out in a way that protects the ecology, scenic value or navigability of the waterways,
(d) to allow private development only where it does not reduce or hinder the use of public beaches, intertidal areas or the waterways.

16 Within this Zone 16, development that is allowed with consent includes berthing areas, marinas, and watercraft facilities. In accordance with the definitions, a ‘marina’ that is not used in connection with a business would be an innominate use that is prohibited. However moorings are allowed without consent.

17 Insofar as the planners addressed the relevant issues, Mr Weston declined to deal with the categorisation/permissibility issue. However he indicated that the proposal satisfies the definition of a ‘watercraft facility’, although he conceded in cross-examination that the proposal presented physically as a ‘marina’.

18 Ms Pinfold did address this threshold issue on the basis that planners are usually required to interpret and apply various planning instruments in development assessments. In this case, she says that:

The proposed development in common parlance is a ‘private’ marina, which is prohibited under SSLEP 2006, particularly because any such structure must be used as a business.
The proposed structure does not fall within the definition of a watercraft facility because:
o It is to be utilised for the permanent mooring of vessels, which is contrary to the definition that imposes a temporal limit on the use to embarking and disembarking.
o The SSLEP excludes permanent mooring of vessels at watercraft facilities but otherwise allows the permanent mooring as a separate form of development such as ‘ berthing area ’ and ‘ mooring ’
o The restriction that watercraft facilities are not to be used for permanent mooring is confirmed in cl 9.6.b.2 of SSDCP, which advises that:
Jetty, suspended ramp and pontoon structures shall be designed to facilitate access to private recreational vessels where a reasonable depth of water is available. The structures are only to be used for short stay embarking and disembarking of passengers and the transfer of personal goods.
o The definition in SSLEP identifies the components of a watercraft facility, specifying that the structure includes a pontoon, whereby the proposal is non – compliant because of its multiple pontoons.

19 Furthermore, Ms Pinfold does not consider the facility falls within the definition of a berthing area because:

Vessels will be berthed utilising the jetty structure, not in a stand alone berthing area adjoining the jetty structure. A berthing area in contrast is positioned adjacent to a jetty, ramp or pontoon, but cannot be an integral part of these structures.
The design of a berthing area is defined as a ‘configuration of piles (typically 4)’. Therefore, a berthing area cannot, by definition, be comprised of a series of pontoons.
The reference to the typical configuration of 4 piles suggests that each berthing area is to contain 1 vessel. As the controls do not provide for multi-vessel berthing area or a berthing facility, it is not permissible development.

20 Apart from this, the engineers assessed the technical merits of the proposal. In doing so, they referred to definitions contained in AS 3962 – 2001 – Guidelines for design of marinas. It defines a marina as:

A group of pontoons, jetties, piers, or similar structures designed or adapted to provide berthing for craft primarily used for pleasure and recreation and may include ancillary works such as slipways, facilities for the repair and maintenance of boats and the provision of fuel, provisions and accessories.

21 In joint conferencing they agreed that:

• The proposed configuration of the floating facility for the berthing of 5 vessels is consistent with the description of a marina as defined in cl 1.3.29 of AS3962-2001.
• However the proposal is not consistent with the definition of a marina as stated in the SSLEP 2006.

22 Consequently, the fundamental difference between the parties is that the council submits the proposal is a prohibited development, against which the applicant submits that the development constitutes a watercraft facility and berthing area and accordingly is permissible.

23 Mr Gallasso’s submission for the applicant is that the proposal constitutes a watercraft facility and berthing area, which is permissible with consent. This submission is based on the proposal incorporating the defined elements of a suspended ramp and pontoon constituted as 3 fingers, which consequently facilitates access for recreational vessels for embarking and disembarking. Therefore it is characterised as a watercraft facility.

24 Insofar as the proposal involves the permanent storage of vessels, the submission is that this use is encapsulated by the definition of a “berthing area”. The permanent parking is to be achieved by the configuration of piles, which are positioned ‘adjacent’ to the ramp and pontoon.

25 Accordingly, the submission is that this watercraft facility incorporating the ‘berthing area’ is permissible because:

• There is no reference in the definition of “berthing area” to piles serving only the function of the berthing of boats. Therefore the piles can serve a dual purpose of a berthing area and for the securing the watercraft facility.
• The reference to the number of piles (“typically 4”) is not determinative of the characterisation of a berthing area. The reference to typical does not exclude other configurations such as the proposed 5 pile configuration.
• Although the term “berthing area” and phrase “parking of a vessel” is expressed in the singular, nevertheless the usual principle interpretation according to s 8(b) of the Interpretation Act 1987 is that the plural also applies. Therefore the berthing area for the parking of 5 vessels is consistent with the definition.

26 Insofar as the applicant relies on the 2 uses operating in tandem, it is submitted that this is consistent with the “berthing area” definition, which necessarily requires another use. Where there is a jetty, ramp or pontoon that is used for private purposes, then that structure is characterised as a “watercraft facility”, and notwithstanding the reference to the ‘embarking and disembarking’ provision, the 2 uses must inevitably operate in tandem.

27 Against this, the submission for council is that the proposal does not constitute a berthing area because vessels are not to be berthed by tying up to piles, and no piles are positioned adjacent to any jetty, ramp or pontoon for that purpose. Instead, the piles are an integral part of the pontoon structure with the waterside piles being telescopic to allow for water height changes and control the movement of the pontoons. As these piles are not considered to adjoin the pontoon, accordingly they are not proposed for the berthing of vessels.

28 The council submissions also deal with the reference to the typical configuration of 4 piles for the berthing of “a” vessel. It is submitted that extraordinary circumstances apply with this definition because it deals with a berthing area to contain only 1 vessel and there is no such thing as a multi – berthing area. Therefore the applicant’s reliance on the berthing area character is not appropriate.

29 With regard to the applicant’s complimentary reliance on the “watercraft facility”, the council submission is that this definition is not limited to the physical structure of a wharf, jetty or pontoon. Instead, it must also facilitate access to recreational vessels for embarking and disembarking of passengers or loading and unloading of goods. Consequently this purpose does not extend to the parking, i.e berthing or mooring of vessels.

30 Furthermore, the council submission is that the “watercraft facility” use includes a temporal dimension whereby permanent vessel parking is not included. Such facility is to provide a convenience for a temporary or intermittent use for the transfer of passengers or goods to and from the vessel and not operate as a permanent parking area.

31 Having considered the competing evidence and submissions, it seems to me reliance on the council’s case is more appropriate in this matter. The initial development application described the proposal as a berthing facility but this is not a defined use in the relevant controls.

32 If then the development is classified as a watercraft facility, it appears to me that this definition does impose a temporal consideration that the facility is primarily for temporary use for embarking and disembarking. By reference to the proposed design of the structure, I do not consider that the inclusion of permanent berthing facilities reasonably satisfies this requirement because such permanent berthing would most likely interfere with the primary embarking and disembarking function.

33 Insofar as the applicant contends that the proposal also satisfies the “berthing area” definition, my assessment is that this definition prescribes a more open stand alone berthing area relying on the piles (i.e. typically 4 for a vessel) for containment. In this case, the containment is the jetty structure of which the piles are an integral part of the structure. It is obvious that the 3 waterside telescopic piles are primarily required to control the jetty structure in water movement situations, rather than for securing the vessel.

34 Furthermore, in my opinion, this arrangement does not adequately comply with the requirement for the berthing area to be adjacent to the jetty, ramp or pontoon. This implies a degree of separation, which I do not consider is incorporated in this proposal.

35 I have also considered the disparate submissions concerning the application of the Interpretation Act 1987, whereby the reference to the singular ‘vessel’ can be taken as the plural ‘vessels’. However, cl 33 of this Act also allows an interpretation that is consistent with the promotion of the objects of Acts. In this case there are specific zone objectives and other controls that seek to limit the environmental impacts of water – based facilities within this Zone No 16. As the 5-berth structure will most likely have greater environmental impacts, I consider that the singular definition, as stated should apply in this case.

36 It also appears to me that the set of definitions for water-based facilities differentiates the size and scale of such facilities. The definition of marina, which is usually for the accommodation of multiple vessels, refers in the plural to pontoons, jetties, moorings for boats, facilities. But the other definitions for generally smaller facilities specifically refer in the singular to berthing area being for the permanent parking of a vessel. Also the watercraft facility definition appears to limit the scale of the structure by its referral in the singular to ramp that connects a pontoon to a jetty, jetty. It specifically excludes a marina facility.

37 For the aforementioned reasons then, I am not persuaded to accept the applicant’s case that the proposal satisfies the requisite definitions to permit consent. If however the proposal is otherwise permissible, I have also considered the following merit issues. In this regard, I again particularly note the controls that limit the scale of water-based development.

Scenic impact

38 Mr Lorimer and Dr Lamb undertook detailed scenic impact assessments. Then in joint conferencing they agreed that a number of elements, including the boardwalk, gabions and pontoons of the proposal would not result in unacceptable visual impacts, providing satisfactory landscaping was provided. Importantly, they agreed on the following hierarchy of features impacting on the visual amenity:

• Vessels and their sizes;
• Ramps, piles and pontoons.

39 With regard to the 1^st feature, the experts agreed that if the length of the vessel was limited to 8 – 9m, the level of visual impact would be acceptable. However Mr Lorimer qualifies this, saying that the overall cumulative visual impact of 5 vessels is unacceptable.

40 Mr Lorimer identified the following factors that he considers results in unacceptable visual impacts:

• The semi natural landscape setting of this development requires that the scale and design of such facilities be matched to the context (as implied by the zoning), the DCP and as addressed in The Shires Foreshores, Achieving Scenic Quality.
• The immediate visual catchment of the proposal (400m radius) lies in a setting that is dominated by native vegetation and occupies and important scenic location at the bend of the river being highly visible by park and water users.
• The combination of 5 vessels up to 8 – 9m in one consolidated location in any configuration or set up, is of a scale and bulk that is incompatible within this setting.

• The impacts of the proposal cannot be effectively mitigated except through reduction in scale of the number of vessels.
• The proposal is of a scale that is significantly larger than any other berthing facility within the visual catchment and would set an unacceptable precedent.
• The replication of this proposal would lead to cumulative impacts that would undermine the objectives of the land and water zonings.
  

41 Dr Lamb agrees with the extent of the visual catchment for this facility. However he identified the following 3 differences in opinion:

• The assessment of the ‘semi – natural’ landscape context.
• The visual impact of the number of vessels, whether 5 vessels or any facility with more than 2 vessels is unacceptable.
• That the proposal cannot be compatible within the context because it is different from other means of mooring vessels in that it is a “hybrid” form of development, which he says does not fall into any of the council’s definitions of ways of berthing vessels.

42 Consequently, Dr Lamb says that the inclusion of boats and the way they are moored, along with the natural features of the setting area is part of the existing context of this visual catchment area, which he does not consider has a negative visual impact.

43 With respect to the number of boats, Dr Lamb says there are benefits in the approach taken due to compactness, simplicity and minimal structure and less blocking of views. Insofar as these experts addressed the characterisation of the structure, they agree that it looks like a small marina. Subject then to the permissibility of the structure, Dr Lamb considers the visual impact of the proposal for 5 vessels is acceptable.

44 By reference to the SSLEP Zone 16 objectives, Dr Lamb says:

“that the proposed development promotes a better visual balance of waterfront development than would be achieved by five vessels each berthed differently.”

45 However Mr Lorimer refers to the following SSLEP cl 18 objective:

(b) to ensure restoration of land below any foreshore building line, to a natural state (so far as practical), with a minimum intrusion of man – made structures,

and he says that the scale of the facility does not minimise visual impacts from adjacent land or the waterway, nor does the land interface design demonstrate a satisfactory integration of the development with the foreshore and waterfront environment, which complements the natural landscape.

46 Based on my understanding of the evidence and observations at the view, which included an inspection from the river, I am satisfied that multiple berthing facilities are not a common feature in this section of the river and accordingly I accept the opinion of Mr Lorimer that the 5 – vessel berthing facility is of excessive scale in this semi – natural landscape setting that does not minimise the intrusion of man – made structures.

Engineering design details

47 In joint conferencing the engineers agreed that the dimensions of the original facility could be reduced and the design incorporate elements to restrict the length of vessels to 8m. The redesign would then enable sufficient clearance from the existing mooring at 22 St Georges Crescent.

48 The engineers also referred to the minimum water depths stated in AS 3962-1001, where the recommended water depth, within a berthing area, of the vessel draft, plus half the wave height, plus a seabed clearance of 300mm where the seabed is soft, or 500mm where the seabed is rock is prescribed. Insofar as a minimum water depth of 1.2m is required for the original proposal, which is not available, nevertheless the smaller facility for 8m vessels should be satisfactory, in terms of the REP No 2 considerations.

49 In this regard, I note that the Draft Sutherland LEP (Amendment 6) has been exhibited and has to be taken into consideration. I understand that the main change of relevance in the subject matter concerns the flood risk provisions. Accordingly, I am satisfied from the evidence that it is possible to design and construct this scale of water facility, including appropriate flood risk measures, if its proposed form is permissible.

Conclusions

50 Having considered the evidence, the submissions and undertaken a view, I do not consider this application merits consent.

51 The primary hurdle concerns the categorisation of the proposal. The SSLEP contains a number of relevant definitions. It is apparent to me from the evidence that the proposal includes the various physical components typical of a marina. This was confirmed by the evidence of the engineers by reference to AS 3962 - 2000, the planners and conceded by the visual experts. However, as this proposal does not include any business component, it would not be permissible on this basis.

52 Notwithstanding this, I accept that a complying marina is permissible in this Zone 16, subject to its merits. It is therefore possible that an appropriate marina could obtain consent.

53 But the applicant’s categorisation is that the proposal constitutes a watercraft facility and berthing area. For the reasons previously mentioned, I am not satisfied the proposed multiple berthing facility satisfies either the berthing area or watercraft facility definition.

54 In this regard, it seems to me that the definitions in the SSLEP endeavour to deal with the scale and intensity of the associated uses. I note the evidence of Ms Pinfold that in the previous SSLEP 2000, a mooring was included in the definition of a watercraft facility. Apparently one of the specific changes was to deliberately exclude the permanent mooring of vessels at a watercraft facility..

55 For my consideration of the applicant’s categorisation, I have adopted a practical approach along the lines stated in Hecar Investments No 6 PTY LTD v Lake Macquarie Municipal Council 53 LGRA, where Cripps CJ said:

I adopt, with respect, the observation of Lord Reid in Gill v. Donald Humberstone & Co Ltd [1963] 1 W.L.R. 929 at 933, 934 that when interpreting delegated legislation, the Court ought be concerned with practical considerations rather than construing it by meticulous comparison of the language of the various provisions such as might be appropriate in construing sections of an Act of Parliament and that if the language is capable of more than one interpretation, a court ought discard the more natural meaning if it leads to an unreasonable, result, and adopt that interpretation which leads to a reasonably practical result. The observation was adopted by Murphy J in Dirscoll v. J. Scott Pty Ltd (1976) 50 A.L.J.R. 528 at 531 when dealing with regulations made under the Inspection of Scaffolding Acts 1915(Q.).

56 Insofar as the applicant’s proposition is based on the structure including the ramp and pontoon, albeit a series of pontoons in a 3 – finger configuration, I consider it appropriate to rely on the council’s submission that the definition also requires the facility to enable the ‘embarking and disembarking’. Accordingly, I consider this introduces a temporal dimension, which I do not consider is not adequately achieved when there is permanent mooring, as proposed.

57 I also consider that there are circumstances in this case, which allow a practical and literal interpretation of the singular terminology as stated in the definitions. It is apparent that there is a consistent set of definitions and controls that seek to limit the extent of water – based structures and associated environmental impacts along the waterway. Furthermore, it appears to me that these controls allow for a variety of water-based facilities to achieve the environmental objectives.

58 The watercraft facility definition species a (singular) pontoon, rather than a larger facility comprising multiple pontoons that facilitate berths in the subject case. In my assessment, the inclusion of multiple pontoons is not consistent with the definitions so as to achieve the overall objectives of the zone.

59 According to the applicant’s submissions, the proposal also satisfies the “berthing area” definition. Again taking a practical interpretation, I consider the definition provides for a ‘configuration of piles’ (typically 4), which are adjacent to a jetty, ramp or pontoon. It seems to me that the usual berthing with ‘4 piles would be for 1 vessel. This is consistent with the definition that specifies a (singular) vessel. Considering the overall environmental limitations on scenic impacts and the preference for foreshore vegetation, I consider the singular application should apply in this case.

60 Furthermore, I accept the council’s submission that the definition implies that there should be a degree of separation (i.e. adjacent to) between the berthing area and the pontoon. I do not consider the proposed enclosed multi - berthing area satisfies this definition.

61 Accordingly, I do not consider this proposal satisfies the relevant definitions in the SSLEP so as permit its consent. As stated previously, if the proposal is otherwise permissible, I also do not consider it warrants consent on merit.

62 The main merit issue concerns the visual impact of the development. Having undertaken both a site inspection and view from the waterway, I am satisfied that the relevant visual catchment is that agreed by the visual experts, being a radius of approximately 400m from the proposal.

63 It seems to me that in considering the context of the development, due consideration should be given to the Zone 16 objectives that relevantly includes:

(a) to recognise the importance of the waterways of Sutherland Shire as an environmental and recreational asset.
(b) to ensure that development is carried out in a way that protects the ecology, scenic value or navigability of the waterways…

64 I am also satisfied that the controls in the DCP should also be given due weight. These foreshore and waterfront controls arise from the Chapter 9, 6.a.1 objectives, which include:

(a) protect and enhance natural features and vegetation within the riparian zone.
(b) minimise the visual impact of development when viewed from the adjacent land and waterways…
(g) achieve an appropriate balance between private development and the public use of waterways .

65 The associated controls in cl 6.b.1 provide for shared and communal arrangements for waterfront structures where identified in a Locality Statement. In cl 6.b.2 the controls for jetties, ramps, and pontoons restricts the maximum size of pontoons to 3.6m x 2.4m and only to be used as a facility to provide access onto a vessel. In this regard, there is a qualifying note that these structures are only to be used for short stay embarking of passengers and the transfer of personal goods.

66 In my assessment, the overall outcome sought by these controls is to limit the scale and intensity of man – made structures in this environmental protection waterways zone. Whilst there are some other moorings further upstream, the largest is a double mooring, but that was apparently approved under the previous development controls. I therefore do not consider they should be given such precedential weight as to now approve a considerably larger 5- vessel berthing area because the scenic values would not be protected, according to Mr Lorimer, whose evidence I rely on.

67 In submissions Mr Cole referred to the matter of Harbour Port Constructions Pty Limited v Sutherland Shire Council [2006] NSWLEC 446, Watts C dealt with the impact on scenic value and character of the waterfront. Regarding the proposed placement of fender piles, he said:

46 Contrary to the evidence of Mr Fletcher, I am satisfied that the scenic value would be adversely affected if the fender piles were erected. This is because they would stand around 3.5m above the level of the pontoon at low tide and 1.5m above at high tide and would be around 4m apart. At the top the piles would be around 400mm in diameter and painted white and would add to the visual clutter in Turriell Bay.
47 The existing pontoon is a low, horizontal element in the waterway and less visually intrusive than a pontoon with flanking fender piles.
48 I am satisfied that by limiting these privately owned fender piles the council would tend to achieve its objectives of:
a sustainable Sutherland Shire and efficiently and equitably manage waterfront resources.
an environmentally appropriate balance of development that is ecologically sustainable, socially equitable, and economically viable and leads to a more sustainable outcome for Sutherland Shire.
protection of environmentally sensitive areas.
development that does not adversely affect the scenic value of the waterways.
minimisation of the visual impact of development when viewed from adjacent land and waterways;
an appropriate balance between private development and the alienation of waterways, which is a public resource, from public use.

Precedent
51 I am also satisfied having regard to existing and potential future developments of a similar kind in this section of the foreshore and waterway that were fender piles to proliferate in Turriell Bay, an undesirable precedent would result.
52 As was noted with approval by his Honour Lloyd J in Thorncraft & Anor v Bathurst Regional Council [2005] NSWLEC 571, and as stated in Goldin v Minister for Transport (2002) 121 LGERA 101 if a development application is objectionable and there is sufficient probability that further applications of a like-kind, are likely, the precedential effect should be taken into consideration.
53 Just as the applicant seeks to justify the present proposal by reference to others nearby so too would other applicants be likely to refer to the present application were it approved.

68 Accordingly, the subject proposal includes the 3 telescopic piles, together with the 2 shore line piles. It seems to me that the height and separated configuration of these piles tends to magnify the scale of the development, which is not consistent with the objectives to avoid adverse visual impacts. This finding is consistent with that of Watts C.

69 The development controls in the DCP also require the achievement of an appropriate balance between private development and public use of waterways. As the subject land is part of a community title, which allows a sharing of the waterfront community lot, I consider this imposes a limit on the scale of private water – based development. Just as the lot is shared, the size and scale of vessel berthing facilities should also be shared, so that the balance between the protection of the natural environment and limitation of made – made structures.

70 The controls in the DCP are consistent with the Zone 1 objectives, which I consider have some relevance considering it is adjacent to the subject Zone 16 Environmental Protection (Waterways). Relevantly the Zone 1 objectives include:

(a) to allow development of a scale and nature that:
(i) complements the natural landscape setting of the zone, and
(ii) protects and conserves existing vegetation and other natural features of the zone,
(b) to limit development in the vicinity of the waterfront so that the environment’s natural qualities can dominate…

71 Accordingly, I do not consider that the overall proposal, which involves the shore- based works and associated landscaping of the retaining wall satisfy these objectives. Insofar as evidence was presented about the mitigating effects of landscaping on the existing retaining wall, I also give this diminished weight because the wall is not approved. It seems to me that the merits of this wall should otherwise be established before its landscaped effect is used to support the visual impact of the berthing facility

72 Apart from this, I have considered the submission that a marina is a permissible development and that such outcome should be considered in the visual assessment. But it seems to me that there are significant constraints that would have to be addressed to obtain consent for a commercial marina in this section of the waterway and accordingly, I think this submission should be given little, if any weight.

73 In summary then, I am satisfied that if this development is permissible, it is unacceptable on merit because it is of excessive scale being for the permanent berthing of 5 vessels, which would likely result in adverse visual impacts and reduce the scenic value of the waterfront area. In my opinion, it does not adequately satisfy protection of scenic value objective in the LEP.

74 The Court orders:

1 The appeal is dismissed.
2 Development consent for the removal of the existing stub wharf and construction of a 5 – vessel berthing facility and associated works at 24 – 26 St George Crescent, Sandy Point is refused.
3 The exhibits may be returned except for 8, 11, B, and L.
________________________
R Hussey
Commissioner of the Court
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