River Quays Marina Pty Ltd v Canada Bay City Council

[2004] NSWLEC 212

Land and Environment Court

of New South Wales

CITATION:	River Quays Marina Pty Ltd v Canada Bay City Council [2004] NSWLEC 212
PARTIES:	APPLICANT River Quays Marina Pty Ltd RESPONDENT Canada Bay City Council
FILE NUMBER(S):	10714 of 2003
CORAM:	Brown C
KEY ISSUES:	Development Application :- demolition of existing improvements - loss of marine repair facility - contamination - impact on adjoining property
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Concord Planning Scheme Ordinance Concord Local Environmental Plan No. 114 State Environmental Planning Policy No.55 State Environmental Planning Policy No.56 State Environmental Planning Policy No. 65 Sydney Regional Environmental Planning No. 22 Development Control Plan for Sydney Regional Environmental Planning No. 22-
CASES CITED:	Botany Bay City Council v Remath Investments No. 6 Pty Ltd (1998) NSWLEC 209
DATES OF HEARING:	15,16/04/04
DATE OF JUDGMENT:	05/12/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr A J J Thompson, barrister SOLICITORS C P White & Son RESPONDENT Mr D Wilson, barrister SOLICITORS Wilshire Webb

JUDGMENT:

14


IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10714 of 2003

Brown C

12 May 2004

River Quays Marina Pty Limited
Applicant

v

Canada Bay City Council
Respondent

Judgment

Introduction

1 . This is an appeal against the refusal by the Canada Bay City Council (the council) of Development Application No. 361/2002 for the demolition of the existing buildings and improvements and the construction of a residential flat building at 136 - 140 Tennyson Road, Mortlake (the subject site).

2 . I record that a view of the subject site and surrounding area was undertaken on the morning of the first day of the hearing with representatives of both parties.

3 . For the reasons set out in the judgment I have concluded that the appeal should be upheld and development consent granted subject to conditions.

The subject site and surrounding area

4 . The subject site comprises Lot 1 in DP 256227, Lot 1 in DP 740402 and Lot 1 in DP 656212. It is irregular in shape with the frontage of 53.57 m to Palace Lane and Tennyson Road and 40.385 m to the Parramatta River giving a total area of 3069 m2. It is used for the maintenance and repair of boats in conjunction with a concrete deck and marina leased from the Waterways Authority. A large building is located on the subject site and is used for the maintenance and repair of boats and administration. Outdoor areas are also used for this purpose. Access to the subject site is obtained from Tennyson Road over land forming part of the subject site as well as land owned by the Waterways Authority. A seawall extends along the waterfront adjacent to the property boundary.

5 . The surrounding area was previously industrial however with recent changes to the zoning, a large number of these sites have been, or are being redeveloped for residential purposes. Adjoining the subject site to the east is a major residential development known as Breakfast Point. Adjoining the subject site to the north-west is a Roads and Traffic Authority depot used for maintaining the authority’s water-based activities such as car ferries and punts. The industrial property to the rear is used for the storage and maintenance of antique vehicles.

The proposed development

6 . The proposed development seeks the demolition of all existing structures on the subject site and erection of a 2/3 storey residential flat building containing 10 x 3 bedroom units. Vehicular and pedestrian access to the development is obtained from Palace Lane. A driveway connects with a lower-level carparking area that accommodates 16 residents and 2 visitor carparking spaces. Each unit has a north facing courtyard and balcony with views over the Parramatta River. The area between the private courtyards and the foreshore sea wall is to be used for open space and landscaping and will incorporate a public pathway connecting with Tennyson Road. Strata subdivision is also proposed as part of the development application.

7 . While forming part of the existing marina development, the development application relates only to the freehold land and not the area containing the concrete jetty and marina. (See Attachment 1).

Relevant planning controls

8 . The subject site is zoned 10(a) – Mixed-Use under the provisions of the Concord Planning Scheme Ordinance (the Ordinance). Concord Local Environmental Plan No 114 amended the Ordinance on 31 March 2000 to create the current zoning on the subject site, in addition to a large area of surrounding land at Mortlake Point. The proposed development is permissible, with consent, within this zoning. The relevant provision in the Ordinance is cl 25A- Development on land identified on Acid Sulphate Soils Planning Maps.

9 . Concord Development Control Plan No. 35 - Development in 10(a) Mixed - Use Zone Mortlake Point, Mortlake applies to the development application and contains detailed requirements on urban design elements, although the council raised no issues on matters contained within this plan.

10. State Environmental Planning Policy No. 55 - Remediation of Land (SEPP 55) applies to the development application. Clause 7 provides requirements for the development of contaminated land.

11. State Environmental Planning Policy No. 56 - Sydney Harbour Foreshores and Tributaries (SEPP 56) applies to the development application. Clause 7 provides guiding principles for the planning and development of land to which the policy applies.

12. State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development applies to the development application and contains design requirements for residential flat buildings although the council raised no issues on matters contained within this policy.

13 . Sydney Regional Environmental Planning No. 22 - Parramatta River (REP 22) applies to the subject site and adjoining waterway. Clause 2 provides aims and objectives and cl 2(2) provides specific aims for boating facilities. Clause 20 of REP 22 includes matters for consideration in determining development applications.

14. Development Control Plan for Sydney Regional Environmental Planning No. 22 - Parramatta River and Sydney Regional Environmental Planning No. 23 - Sydney and Middle Harbours (the DCP) applies to the development application. Clause 5 contains design guidelines for land-based developments and cl 5.7 relates to maritime activities. Clause 5.10 relates to multi-unit development and contains standards and requirements for this form of development in addition to the controls contained within the council's planning instruments although the council raised no issues on matters relating to the design of the proposed residential flat building.

The issues

15 . The council filed a Further Amended Statement of Issues containing 10 issues. These can be conveniently grouped into the following main areas:
1) whether the proposed development results in the unacceptable loss of an existing maritime and boating industry facility (Issues 1, 2, 3, 4 and 5),
2) whether the proposed development satisfactorily addresses site contamination (Issues 6, 7 and 8), and
3) whether the proposed development has an adverse impact on adjoining properties (Issues 9 and 10).


Loss of existing maritime and boating facility

16 . Clause 7 of SEPP 56 provides guiding principles that are to be taken into consideration for the planning and development of land to which the policy applies. Relevantly, cl 7(m) states:
7(m) the maintenance of a working harbour and functions by the retention of key waterfront industrial sites or, at a minimum, the integration of facilities for maritime activities into development and wherever possible, the provision of public access through these sites to the foreshore


17 . Clause 20 of SREP 22 states that a consent authority must not consent to the carrying out of development unless it is satisfied that the proposed development is consistent with the objectives of the plan and has considered other relevant matters set out in the clause. Relevantly cl 20(s) includes "any development control plan prepared in respect of this plan …".

18. In this regard, cl 5.7 of the DCP addresses Maritime Activities. The aims of this clause are to:
· encourage the retention of existing maritime and boating industry facilities; and
· ensure that these activities make a positive contribution to the landscape when viewed from the waterway

1 9 . The clause further states:

Any proposals to discontinue a maritime or boating industry and replace it with another use should be accompanied by a statement that:


· provides reasons for discontinuing maritime or boating industry; and
· demonstrates that there are sufficient suitable sites available elsewhere to meet the demand of the maritime and boating industry.

20 . Ms Ruth Frettingham, an assessment officer - planning with the Waterways Authority provided evidence for the council. She describes the existing marine repair facility as important for recreational vessels in Sydney Harbour and Parramatta River because of its location, accessibility, potential and efficiency. She considers that no reason has been given for closing the marine repair facility beyond the ability to realise the potential of the current zoning. In her view, approval of the proposal would be detrimental to the working harbour, as it would diminish the quantity and quality of boat repair facilities servicing Sydney Harbour and Parramatta River.

21. Mr Chris Denovan, a consultant specialising in harbour and foreshore marine developments, provided evidence for the applicant. He acknowledges the need for marine facilities around the shores of Sydney Harbour and the Parramatta River. He also acknowledges that an impact would be felt in the Parramatta River Region from the closure of the subject premises but believes that with existing marine repair facilities and additional facilities planned for the future, such impact would be absorbed. Mr Denovan identifies 13 current and planned sites that will provide marina/servicing facilities.

22. Mr Jeffrey Burrowes, a co-director and operator of the marina provided an affidavit on discussions with the Waterways Authority, the council and the general operation of the business. He states that the business is no longer viable for a number of reasons including insufficient berths to support the operating costs and overheads of the repair facility, the need to replace the existing marina structures and the costs of implementing necessary environmental works. Mr Burrowes further states that the continuation and expansion of the boat repair facility is incompatible with the increasing residential development taking place nearby.

23. While disagreeing on the impact of the loss of the boat repair facility, Ms Frettingham and Mr Denovan agree that the potential loss of recreational boat storage in the marina would not adversely impact on the overall level of vessel storage in the area.

24 . If a maritime or boating industry is to be discontinued, cl 5.7 of the DCP requires that a statement should be provided that addresses two areas. The first is the reasons for discontinuing the maritime or boating industry and the second requires a demonstration that there are sufficient suitable sites available elsewhere to meet the demands of the maritime and boating industry.

25. In terms of the first matter to be considered by the DCP, Mr Burrowes affidavit sets out his ongoing discussions with the Waterways Authority over the lease of the marina area. The lease expired in May 2003 and negotiations to renew the lease have been unsuccessful. Mr Burrowes described a new lease as "not financially feasible" . The lease of the marina area is of some importance as both Mr Burrowes and Ms Frettingham note that income from the marina is necessary to subsidise the land-based boat repair activities. With the benefit of the view of the subject site, it was clear that the marina structure is in poor repair and in need of significant repair or replacement. Similarly, repairs are needed to the land-based facilities in addition to environmental protection works to satisfy the requirements of the Department of Environment and Conservation. While Ms Frettingham suggested that further discussions could take place over the lease of the marina area, the evidence of Mr Burrowes did not suggest any likelihood of an agreement.

26. The potential of the subject site for marine repairs is addressed in The Future of Sydney's Working Harbour - An Analysis of Potential Sites on Sydney Harbour and Parramatta River prepared by J. T. Rolls Pty Ltd (the Rolls Report) for the Ministry for Forests and Marine Administration in April 1999. The comments in this document described the yard as underutilised and requiring modification and expansion. The expansion referred to in the Rolls Report involves the consolidation of the subject site with part of the adjoining AGL site and a subsequent rezoning of that part of the AGL site. The consolidation was seen as difficult unless the adjacent land is rezoned or acquired. As part of the consolidation, a substantial park area is required to act as a buffer between future residential developments.

27 . The comments in the Rolls Report suggest that the subject site is not of sufficient size to continue its present role without additional land. While the Waterways Authority owns land adjoining the subject site, this land is relatively small and would not add significantly to the overall area. The evidence suggests that the AGL land referred to in the Rolls report is not available and is not likely to be rezoned to accommodate an extension of the existing business. The Rolls Report also raises the long-term appropriateness of the subject site without a buffer to residential development. There was no evidence to suggest that any attempts have been made to provide any buffer between the subject site and residential development

28 . It is clearly in the interests of the Waterways Authority (and the general public) to maintain a strong maritime and boating industry on Sydney Harbour and Parramatta River however is difficult to see how the refusal of this development application would promote these interests when the largely undisputed evidence suggests that the facility is financially unviable. The shortcomings of the subject site for a marine repair facility identified in the Rolls Report still exist and no evidence was provided to show that the shortcomings are being addressed. Significant weight must be given to the evidence of Mr Burrowes in the absence of any contradictory evidence.

29 . Additionally, the observations of the high quality residential development being constructed in the immediate area confirm, in my view, there is some merit in the statement of Mr Burrowes that a land based boat repair facility could be incompatible with the new residential development occurring in the area. This is borne out, to some extent, in an application by Mr Burrowes in 2003 for seven-day trading. The council rejected the application, largely on the grounds that it would have an adverse impact on surrounding land use, and in particular surrounding residential uses.

30 . In my view, the applicant has established adequate reasons for discontinuing the existing boat maintenance and repair business.

31 . In terms of the second matter to be considered by the DCP; any consideration of the impact of the loss of the subject facility is somewhat academic considering the findings on the financial viability of the operation; nonetheless it is a matter that requires consideration. The evidence of Ms Frettingham and Mr Denovan contain an analysis of the existing and proposed boat repair facilities in the Parramatta River area. While using essentially the same information they reach different conclusions.

32 . The Rolls Report is of some help it provides an overview of the future of the boat repair industry. It states, at p 4:

It is felt that this industry will likely undergo significant re-engineering over the next 20 years. There is good evidence that economies of scale apply to the marine repair industry with larger facilities operating on a lower cost base. We believe that one or two large-scale facilities are likely to be built on Sydney Harbour and others capable of expansion will be rebuilt on a larger than current scale. At the same time, we believe that the yards not capable of operating within the performance outcomes of the EPA and local councils will gradually close down. The EPA and local councils will be a force in implementation of performance outcomes via the legislation and by their licensing powers. Larger sites will need to become available in order for this scenario to occur.
…This report assumes that one large repair facility in this category (haul out capacity of up to 70 tonnes) will be built (possibly by a yacht club consortium) in the next ten years requiring an additional 10,000 square metres of land and will replace the repair facilities currently operated by the yacht clubs and may trigger closure of some marginal smaller competing facilities


33 . These comments generally support the conclusions of Mr Denovan by suggesting that additional boat repair facilities are likely to be constructed on Sydney Harbour in the future and at the same time suggesting that some existing operations will gradually close down because of operating constraints. While a conclusion that sufficient facilities are likely to be available in the future is not without some doubt, the substantive evidence suggests that this to be the likely scenario.

34 . Clause 7(m) of SEPP 56 requires consideration be given to the maintenance of a working harbour character and functions by the retention of "key waterfront industrial sites". SEPP 56 does not define "key waterfront industrial sites" and there was some dispute over whether the subject site should be included within this classification however for the reasons mentioned in the preceding paragrahs, sufficient reasons have been provided to show why the existing repair facilities need not be retained.

35 . For the reasons set out in the preceding paragraphs, I find that the proposed development is consistent with the guiding principles in cl 7(m) of SEPP 56 and the objectives contained within cl 2(2) of SREP 22. I also find that the proposed development is consistent with cl 20(s) of SREP 22, and by reference cl 5.7 of the DCP.

Contamination
36 . Clause 25A of the LEP relates to development on land identified on acid sulphate soils maps. The council submits that the subject site falls within Class 5, this being "Works within 500 metres of adjacent Class 1, 2, 3 or 4 land which are likely to lower the water table below 1 m AHD on adjacent Class 1, 2, 3 or 4 land". Clause 25A(4) states that this clause does not require consent if "a copy of a preliminary assessment of the proposed works undertaken in accordance with the Acid Sulphate Soils Assessment and Management Guidelines has been given to the council …". Clause 25A(5) states that consent must not be granted unless the Court has considered the adequacy of an acid sulphate soils management plan (cl 25A(5)(a)), the likelihood of the proposed development resulting in the discharge of acid water (cl 25A(5)(b)) and any comments from the Department of Land and Water Conservation (cl 25A(5)(c)).

37 . Clause 7 of SEPP 55 states that consent must not be granted unless the Court has considered whether the land is contaminated (cl 7(1)(a)), if the land is contaminated, whether the Court is satisfied that the land is suitable in its contaminated state or will be suitable, after a mediation, for its intended purpose (cl 7(1)(b)), and if the land requires remediation, whether the Court is satisfied that the land will be remediated before the land is used for its intended purpose (cl 7(1)(c)).

38 . Mr John Nash, an environmental engineer, provided evidence for the applicant. The council provided no expert evidence but cross-examined Mr Nash on his evidence. He indicated that a Phase 1 Preliminary Contamination Assessment was undertaken in June 1995. The Assessment concluded that a visual assessment of the site and adjacent properties identified no visible gross contamination that would make the site unsuitable for continued industrial use. Further investigations involving intrusive sampling should only be conducted if a change in the use of the site, ownership or residential development was proposed.

39 . A Phase 2 Contamination Assessment was conducted in November 2003 comprising intrusive soil and groundwater sampling at a further six locations across the site. Results of this investigation indicated concentrations of contaminants of concern in the sampled soil. These were generally consistent with the Preliminary Contamination Assessment, in that the contamination hot spots were restricted to the layers of fill underlying the site. Remedial options were identified to make the site suitable for residential development. It was stated that a Remediation Action Plan (RAP) will be required and may involve further testing as part of the chosen remediation strategy.

40 . Mr Nash expanded on his written statement with oral evidence. He indicated that the preferred means of remediation was to construct a containment cell to allow the contaminants to remain undisturbed on the site. The architectural plans indicate this form of containment with slab on ground construction. This will allow the existing surface levels to remain generally the same. The investigations to date adequately allow the preparation of a RAP that will address both the contamination issues and the acid sulphate soils. Further investigations may be required when demolition occurs and greater access is available to the soil under the buildings and paving on the site.

41 . Mr Nash indicated that little if any soil needed to be removed and the water table was not likely to be changed in any meaningful way. For this reason, there is no real need for an acid sulphate plan although it will be included as a contingency in the RAP. While some soil may need to be removed to accommodate the proposed landscaping, Mr Nash indicated that this could be part of the RAP. Based on his experience, he supports the use of a deferred commencement condition to address the contamination and acid sulphate soils issues.

42 . The council opposed the use of a deferred commencement condition as it considered that it was inappropriate to leave the critical issue of contamination to another time.

43 . Deferred commencement conditions 1, 2 and 3 require the preparation of a RAP, including an acid sulphate management plan to be prepared in accordance with the Acid Sulphate Soil Assessment and Management Guidelines. A NSW EPA accredited site auditor is also to be appointed and all remediation work required under the RAP including any site auditor's recommendations, are to be certified as being satisfactorily completed by the site auditor. The applicant did not oppose these conditions.

44 . In Botany Bay City Council v Remath Investments No. 6 Pty Ltd (1998) NSWLEC 209, Talbot J considered the appropriate use of deferred commencement conditions. While finding that deferred commencement conditions were not appropriate in that case, he makes a number of relevant comments that distinguish the circumstances of this case to that in Remath.

45 . He states " the very nature of the conditions suggest that they had been given little or no consideration to the ultimate solution, either from the point of view of practicality or as a satisfactory environmental safeguard". He further states "it is appropriate to construe cl 29(3)(b) as requiring that remedial measures be identified and a feasible regime established for their successful achievement prerequisite to the granting of development consent".

46 . In this case, a Phase 1 Preliminary Contamination Assessment and a Phase 2 Contamination Assessment have been undertaken. The extent of contamination is known and while some further investigation may be necessary following the demolition of the existing structures, Mr Nash expressed no particular concern that his conclusions are likely to change. Clearly, the ultimate solution (i.e. containment) was considered and a recommendation made by Mr Nash and reflected in the plans of the proposed development. There was no evidence to suggest that this solution was not environmentally acceptable or could not be achieved in the manner suggested by Mr Nash. I accept his evidence that any limited extraction required for the proposed landscaping can be appropriately dealt with as part of the RAP, and if necessary amendments to the landscaping plans.

47. There can also be no suggestion that the ultimate remedial solution for the acid sulphate soils has not been appropriately explored. The undisputed evidence of Mr Nash was that any acid sulphate soils were unlikely to be disturbed and as such no problems were foreseen. In any event, acid sulphate soils are to be addressed as part of the RAP.

48 . Clause 7(1)(c) of SEPP 55 states that the Court must not consent to the development of land, if the land requires remediation for the development to be carried out unless it is satisfied that the land will be remediated before the land is used for the specified purpose. In my opinion, the satisfactory completion of the requirements in deferred commencement conditions 1, 2 and 3 relating to the RAP, will allow the Court to have the necessary satisfaction required by this clause.

49 . Similarly, I accept the LEP requirement that a preliminary assessment of the proposed works are undertaken in accordance with the Acid Sulphate Soils Assessment and Management Guidelines is appropriate as a deferred commencement condition, and as part of the RAP.

50 . The undisputed evidence of Mr Nash was that the acid sulphate soils were not likely to be disturbed by any works associated with the proposed development. He also stated that the proposed development would not alter the water table in any meaningful way, raising doubt whether the requirements in cl 25A apply to the application. In any event, the applicant has agreed to prepare an acid sulphate soils management plan as part of the RAP process.

Impact on adjoining properties
51 . An objection was received from the owner of the industrial premises to the southwest at 33 Hilly Street, Mortlake. The objection relates to overshadowing, particularly of an outdoor recreation area and loss of privacy from windows in the proposed building. These premises were inspected as part of the site view and an assessment made of the likely impact on the adjoining property. With the benefit of the site view and the applicants shadow diagrams, I accept that the shadow inpacts are not significant and unlikely to significantly affect the use of the outdoor recreation area. Similarly, any potential overlooking from the proposed building is limited by the location, screening and type of windows adjoining the industrial premises.

52 . A concern was also raised that the operation on the adjoining RTA depot would impact on the amenity of the units in the proposed development. With the benefit of expert noise reports and minor changes to fencing on the common boundary, there was general agreement that any inpacts were reduced to unacceptable level.

Conditions
53 . There was general agreement by the applicant to the council's draft conditions with the exception of Deferred Commencement Condition 1. The applicant seeks to include the words "if required" before the phrase "acid sulphate soil management plan to be prepared" and "if required" before the phrase "such an acid sulphate management plan". The council's position is a management plan should be prepared in any event.

54 . Based on the evidence of Mr Nash, I accept the applicant's amendments.

Orders
55 . For the foregoing reasons, the Orders of the Court are:

1) The appeal is upheld.
2) Development Application 361/02 for the demolition of an existing warehouse and other structures on the site and erection of a residential flat building at 136 - 140 Tennyson Road, Mortlake, is approved subject to the conditions in Annexure A.
3) The exhibits are returned with the exception of Exhibits G, H and L.
________________
G T Brown
Commissioner of the Court
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