Rose Bay Afloat Pty Ltd v Woollahra Council

[2003] NSWLEC 191

>

Land and Environment Court

of New South Wales

CITATION:	Rose Bay Afloat Pty Ltd v Woollahra Council [2003] NSWLEC 191
PARTIES:	APPLICANT: Rose Bay Afloat Pty Limited RESPONDENT: Woollahra Council
FILE NUMBER(S):	10957 of 2001
CORAM:	Bignold J
KEY ISSUES:	Development Application :- Restaurant on waters of Rose Bay - visual impact on scenic and public setting
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s79C, s97 Land and Environment Court Act 1979, s37(1)
CASES CITED:	Rose Bay Afloat Pty Ltd v Woollahra Council & Anor [2002] NSWLEC 208
DATES OF HEARING:	19-21/05/2003
DATE OF JUDGMENT:	08/28/2003
LEGAL REPRESENTATIVES:	APPLICANT: Mr J Robson (Barrister) SOLICITOR: Blake Dawson Waldron RESPONDENT: Mr P Clay (Barrister) SOLICITOR: Michell Sillar

JUDGMENT:

IN THE LAND AND 10957 of 2001

ENVIRONMENT COURT Bignold J

OF NEW SOUTH WALES 28 AUGUST 2003

ROSE BAY AFLOAT PTY LIMITED

Applicant
v

WOOLLAHRA COUNCIL

Respondent

JUDGMENT

1 This is an appeal pursuant to s97 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) against the refusal by Woollahra Council (the Council) of a development application to construct a fixed restaurant at Rose Bay. The proposal would replace the existing floating restaurant, known as “Rose Bay Afloat” which has been moored at Rose Bay off Lyne Park for approximately the past 30 years and is subject to a lease from the Waterways Authority that expires in 2005.

2 The manner in which the parties have presented their respective cases reflects their common view that the evaluation of the development proposal required by s79C of the EP&A Act involves quintessentially a subjective and impressionistic judgment on the part of the Court of the visual impact of the proposal in its significant public setting, but nonetheless informed by the express objectives and criteria contained in the complex of relevant planning instruments later detailed.

3 To this end the Court was considerably assisted by the expert opinions contained in detailed written appraisals of the several eminent experts, supplemented by joint expert statements reflecting the outcomes of conferencing by the experts. The parties mutually agreed that cross-examination of the experts was unlikely to clarify or change the positions as stated in the experts reports (including the joint report statements). Accordingly cross-examination of many of the experts was mutually foregone and the cross-examination of Mr Johnson (called by the Council) and Mr Tzannes and Mr Harrison (both called by the Applicant) was very limited.

4 However the parties recognised that a view of the development site and its environs (both the waters of Rose Bay and Lyne Park and the promenade skirting the foreshore of the bay) would be of considerable assistance to the Court in its evaluative task.

5 To that end a very comprehensive view was undertaken in the presence of the parties and many of their experts. The view included the relevant waters of Rose Bay. Again the parties mutually co-operated to optimise the view process by the attendance of their experts who were permitted to illustrate their various opinions on the view and were available to assist the Court in its understanding of the case with the benefit of the view.

6 Finally I should note that I have had the benefit of the assistance provided by Commissioner Tuor pursuant to s37(1) of the Land and Environment Court Act 1979.

7 In the result my evaluation of the development proposal in accordance with s79C of the EP&A Act has led me to conclude that the development proposed should be refused principally because it adversely impacts on, and hence unreasonably detracts from, the outstanding scenic, visual and public significance of the waters of Rose Bay and the adjacent Lyne Park and the promenade skirting the foreshores when experienced and appreciated from both water and land (including New South Head Road). My detailed reasons for so concluding and my detailed consideration of the competing opinions of the experts are set forth in what follows.

8 In reaching that ultimate conclusion I have proceeded on the parties’ assumption that the proposal, if approved, would replace the existing floating restaurant. This desirable feature of the proposal, I think was uniformly acclaimed by both the expert and lay witnesses. The question whether the existing floating restaurant will continue to exist into the future, in the event that the present development proposal fails to obtain development consent is more problematical. All that the evidence reveals is that the current lease in respect of the floating restaurant will expire in 2005. What happens after that date is not revealed in the evidence. It remains possible of course that the existing lease will be renewed. However that may be, I do not think that that possibility impacts significantly on the required evaluation of the present development proposal. The Applicant, rightly in my judgment, advances the present proposal on its own merits and that is how I have evaluated it, without the benefit of any trade off, wrought by the elimination from Rose Bay of the existing floating restaurant.

B. The DEVELOPMENT site and its context

9 The development site is located in the waterways of Rose Bay adjoining the western foreshore of Lyne Park. Rose Bay is the largest bay in the eastern section of the Harbour. Lyne Park is reclaimed land that extends some 200m into roughly the middle of the bay, and effectively divides it into two parts. A pedestrian promenade above a sea wall defines this part of the Bay along New South Head Road and Lyne Park.

10 The existing floating restaurant is currently located in approximately the same position as the proposed fixed restaurant, although it is parallel to Lyne Park while the proposal is perpendicular to the park. This restaurant is connected to the foreshore by two gangways and is approximately 20m from the seawall. It is about 29.5m long (in a north-south direction), 11m wide (in an east-west direction) and with an overall height of about 10.5m. The restaurant is serviced from a road that runs off New South Head Road and provides access to a parking area between Lyne Park and the foreshore as well as to the public boat ramp and ferry wharf, sea plane pontoon and Catalina Restaurant. These facilities also project into the waterway. Uses within Lyne Park, include Woollahra Sailing Club, public tennis Courts and the scout hall.

11 The Woollahra Golf Club and Royal Sydney Golf Club are located opposite Lyne Park on the southern side of New South Head Road. Residential development also runs along this side of the road and includes single dwelling houses and residential apartment buildings.

12 Other uses that project into the waterway are located at the western end of Rose Bay, including the marina restaurant and kiosk, Motor Yacht Club and a marina.

C. THE PLANNING HISTORY OF THE DEVELOPMENT APPLICATION

13 The development application was lodged on 6 January 2000. Council advertised the application and received a number of submissions that raised concerns about the replacement of a temporary floating structure with a permanent fixed structure; bulk and scale of the development; its visual impact and traffic and parking. The application was referred to the Foreshores and Waterways Planning and Development Committee, which resolved on 4 February 2000 that:

2. The committee “in principle” does not favour the use of public waterways for non-maritime purposes.

3. Whilst the committee acknowledges that the floating restaurant has operated at the site for a number of years, there is concern that the proposed development in introducing a fixed wharf structure will:
Permanently alienate the use of a public waterway for non maritime purposes; and
Increase the visibility of the structure from Lyne park, New South head Road and Rose Bay.

4. The committee recommends that the proposed development be refused on the grounds that it does not meet the performance criteria of Landscape Character Type 10 under the Development Control Plan for Sydney Harbour and Parramatta River. In particular, that
the open nature of the bays is not lost by overdevelopment of the foreshores; and
it is demonstrated that commercial activities are necessary and that their proposed use is compatible with existing and likely future land uses.

14 The Sydney Harbour Design Review Panel considered the application on 11 May 2001 also did not support the proposal for similar reasons as well as a concern that “the proposal is an appropriate design that responds to the typology of wharves or boatshed structures around the harbour.”

15 Council refused the application on 22 October 2001 and the Applicant lodged an appeal.

16 Amended plans were lodged with the Council in May 2002 and readvertised in June 2002. A number of submissions were received which raised similar issues to the original proposal. The Sydney Harbour Design Review Panel also considered the amended application. While it considered it to be an improvement on the original application, it still did not support the proposal as an appropriate development in this location.

17 On 18 November 2002 I determined preliminary questions of law (see (2002) NSWLEC 208), which enabled the amended application to be the subject of this appeal. In that interlocutory proceeding the Waterways Authority had sought an order that it be joined as a party upon the ground that it was the owner of the land which was the subject of the pending class 1 proceeding, and in that capacity, had not given its consent to the lodgement of the amended development application as proposed by the Applicant. It had only given the requisite consent under the EP&A Act as the owner of the land, to the Applicant's development application as originally lodged with the Council (the Council's determination of that development application being the subject matter of the pending class 1 proceedings).

18 I ordered that the Waterways Authority be joined as a party in respect of the preliminary questions of law raised by it and by the Council. In my judgment I determined all of the questions of law favourably to the Applicant which thereafter elected to proceed with the amended proposal. The Waterways Authority subsequently obtained leave from the Court of Appeal to appeal against my determinations. That appeal has not yet been heard. However although originally intent on becoming a party to the hearing by this Court on the planning merits the Waterways Authority did not further participate in the proceedings, presumably because it was content to pursue its appeal to the Court of Appeal on the questions of law.

D. THE DEVELOPMENT PROPOSAL

19 The application is for the construction of a fixed restaurant and bar with seating for 172 people. The proposal includes a boardwalk to the north and west of the restaurant that leads to a pontoon at the western end of the structure. The boardwalk will provide access to the restaurant for patrons as well as public access. The restaurant will be serviced from a separate access on the south side. The pontoon is at a lower level to the restaurant and is 6m wide and 6m long. It will be used for temporary berthing of watercraft, including seaplanes and will provide limited public access.

20 The proposed structure will be located on a concrete deck on concrete piers, with glazed walls and a curved zinc metal roof. The proposed restaurant and bar will be 8m wide, 42m long with a height of 2.4m to 4.75m (RL 7.45) above the restaurant floor and deck level (RL 2.70). The proposed boardwalk is at the same level as the deck and will be 4m wide and 52m long on the north side and 1.5m wide on the west side. It will be partly covered by the curved zinc metal roof and by white fabric sunshades. The overall length of the structure, including the boardwalk and the pontoon, from the sea wall is about 62m, with an overall width of about 13m.

21 No dedicated parking will be provided for the proposal but car parking is available in the public car park that adjoins the site.

E. THE STATUTORY PLANNING FRAMEWORK

22 Under the Woollahra Local Environmental Plan 1995 (LEP1995) the site is shown as uncoloured on the Land Use Map. Under cl 16 of LEP 1995 the proposal is permissible with consent but only if the consent authority is satisfied that the development:

is compatible with the nature of development permissible on neighbouring land and the development standards applicable to development on neighbouring land; and

is consistent with the objectives of the plan and the objectives of the zoning applying to neighbouring land.

23 Lyne Park, which adjoins the site, is within the Zone 6 - Open Space Zone under LEP1995. Restaurants are not listed as a permissible use with this zone but I accept that they are compatible with development that is permissible within the zone, including recreation establishment and facilities. The proposal is therefore permissible with consent but must satisfy the objectives for the open space zone which include:

to enable development for the purpose of public and private recreation and community facilities sympathetic to the environmental characteristics of the land and surrounding areas;

to protect the visual and environmental attributes of the foreshore.

24 Lyne Park is also within a Harbour Foreshore Scenic Protection Area in LEP 1995. Cl 19 requires that consent may not be granted unless an assessment has been made of:

(a) the visual impact when viewed from Sydney Harbour of the design of the proposed development, including the colours textures, styles and types of materials to be used and the type and form of any roof.

25 Cl 24 of LEP 1995 applies to land that adjoins public open space. It requires that consent must not be granted unless an assessment has been made of the impact on the amenity of the public open space and whether the development is in conflict with any plan of management for the public open space.

26 On 7 April 2003 Council adopted a Plan of Management for Lyne Park (POM). The site is not covered by the POM, but as it is accessed through the park and is visually connected to the park. The POM has addressed the existing restaurant and other adjoining structures. It recognises that harbour front restaurant are facilities of regional significance which attract patrons from the Sydney region as well as tourists. The POM contains an action plan that states:

As opportunities arise, improve the visual quality of the waterfront buildings and structure, or if possible support the removal of structures obstructing key vistas.

27 Under LEP 1995 the esplanade and concrete balustrade (sea wall and esplanade) along New South Head Road and the War Memorial and historic gates of Lyne Park are listed as heritage items that are in the vicinity of the proposal. Under cl 27 the likely effect on the heritage significance of the item must be considered.

28 State Environmental Planning Policy No 56 – Sydney Harbour Foreshores and Tributaries (SEPP 56) applies to the site. The SEPP includes a number of guiding principles that must be considered in the assessment of foreshore development. The principles that are applicable to this application relate to public access, visual impact and heritage.

29 Under Sydney Regional Environmental Plan No 23 – Sydney and Middle Harbours (SREP 23) the site is within Zone No W1 General Waterways. The objectives of this zone are to permit development which:

maintains or enhances important, natural and visual attributes of the Harbours: and

is compatible with the existing or planned future character of the waterway and adjoining foreshore.

30 The proposal is land/water interface development and falls within the definition of:

water based restaurants and entertainment facilities means floating or fixed structures on a waterway used as a restaurant or for entertainment (on a commercial basis) and which have a direct structural connection between the shore and waterway.

31 The proposed restaurant is permissible with the consent of Council in the General Waterways zone. Cl 18 requires the consent authority to be satisfied that the proposed development is consistent with the objectives of the plan and to consider criteria, which include:

The appearance of the development from the waterway and the foreshores;
whether the development warrants a foreshore location;
(o) any representations of the Committee.

32 The Committee is the Foreshores and Waterways Planning and Development Committee, which under cl 7 is required to advise the Council on the development application.

33 The Development Control Plan for Sydney Harbour and Parramatta River (the DCP) contains more detailed provision for land covered by SREP23. The design guidelines for Landscape Type 10 include the following performance criteria that development within Rose Bay is to satisfy:

- it does not obscure, detract from or destroy special natural elements that are significant within the local context of the area;

- the open nature of the bays is not lost by overdevelopment of the foreshore; and

- it has been demonstrated that the commercial activities proposed within and adjacent to the foreshores are necessary and that their proposed use is compatible with existing and likely future land uses.

34 The Regional Action Plan for Sydney Harbour and Our Harbour Agreement are policy documents which are also relevant.

F. THE ISSUES RAISED AT THE HEARING

35 The Statement of Issues filed by the Council contains 10 issues. Issue 10 relating to car parking and traffic movement was not pressed by the Council. The remaining issues can be categorised as follows:

(i) whether the “typology” of the proposal is appropriate for its location in Rose Bay;

(ii) whether the proposal will have an adverse visual impact on the scenic quality of Rose Bay;

(iii) whether the proposal will have an adverse impact on the heritage significance of items in the vicinity.

(iv) whether the proposal has an adverse impact on public access to the foreshore; and

(v) whether it has been demonstrated that the proposal is an appropriate use of public foreshore land;

36 The following experts gave evidence:

A. For the Council :
- Mr C Johnson, Government Architect, Chair of the Sydney Harbour Design Review Panel
- Mr J Colman, town planner
- Professor J Weirick, landscape architect
- Mr D Logan, heritage architect
- Mr C Hallam, traffic engineer

B. For the Applicant :
- Mr M Harrison, architect and urban designer
- Mr A Tzannes, architect and urban designer
- Mr G Shields, town planner
- Mr G Brooks, heritage architect

37 The Court also heard evidence from the following residents on behalf of the committees they represent:

- Mrs B Lloyd, President Rose Bay Residents Association
- Mr P Polland, President Woollahra History and Heritage Society Inc
- Mr M Rolfe, President Vaucluse Progress Association and Chair Sydney Harbour Foreshores Committee.

38 The residents did not support the proposal and raised matters that are addressed within the following discussion of issues.

39 I shall discuss separately each of the principal issues debated at the hearing.

(i) Location

40 The site is located in a prominent part of Rose Bay where the esplanade along the Bay that follows New South Head Road meets Lyne Park or as Professor Weirick states:

The site for the proposed development is located at the junction of the “corniche” (promenade) and the promontory (Lyne Park). This site is visually prominent from the harbour, clearly evident from New South Head Road, and highly significant in the immediate setting of Lyne Park.

41 Mr Johnson raised the concern that this location was inappropriate for the form of development proposed. The amended proposal is for a wharf like structure, which is supported by both Mr Tzannes and Mr Harrison as being an appropriate typology for this maritime location. In Mr Johnson’s opinion while a wharf is an appropriate typology for some positions in the harbour it is not appropriate in all locations. As a typology, it is not only the built structure but also the location that must be appropriate. His objection was primarily that traditionally wharves are located in a central point of a bay, perpendicular to the shore reaching out from the land to the deep water. The proposal is located in the shallow waters in a corner of Rose Bay. While it is perpendicular to the eastern end of the bay it is parallel and within 25m of the southern side. His opinion and that of the Panel which he chairs was that the proposal “is in a location in the Bay where a Pier like form does not logically occur and looks awkward”.

42 Mr Johnson supported his opinion that wharves do not traditionally occur in corners of a bay in shallow water by an examination of bays and water based structures in Sydney Harbour. From this he concluded that there was no example of wharf type structure in a similar location. Blackwattle Bay was the closest example but this was a busy working wharf in a deep narrow bay, which in his opinion was quite different to the wide open sweep of Rose Bay.

43 Mr Colman and Mr Weirick supported this view and stated that:

the proposal is not located appropriately even if of the characteristic typology because it is parallel to the promenade and close to the shore and this corner of the bay.

44 Mr Harrison held a contrary view about the suitability of the location for the proposed development that he summarised as follows:

45 There is a great diversity of wharf configurations with respect to the shoreline around Sydney Harbour including tucked into coves or "corners" of bays. There is no consistent or common pattern of building form typology with respect to location characteristics on the shoreline. Changes in demand have resulted in changes of building typology. For example, shipping requirements for finger wharves changed to parallel to shore wharves in the last 40 years. Now with increasing recreational enjoyment of the harbour, new building forms should be expected. Each case should be considered on its local contextual merits.

46 Just as the Rose Bay Marina wharf marks the north-western end of Rose Bay near the end of the public promenade, so the proposal marks the southern end of Rose Bay and the end of the promenade along New South Rd.

47 The wide sweep of the bay is not interrupted by the proposal. The wide sweep of the bay is characterised by the large open water of the bay and the mass of the urban tree planting along the length of the bay.

48 It is not uncommon for parts of wharves to be in shallow water depending on he purpose of the wharf.

49 The sandy shore at the base of the seawall to New South Head Rd opposite the proposal is small in area and not affected by the proposal.

50 Mr Tzannes agreed that the location was appropriate. Further, he considered that the structure would be a positive addition to Rose Bay as:

The proximity of the structure to the Rose Bay Promenade creates an attractive small water fore Court at the entry to Lyon Park enhancing the pedestrian experience. The water fore Court is formed by the enclosure of the promenade, the sea wall and the new structure .

51 Professor Weirick opposed this view stating that:

There is no need whatsoever for a “water fore Court ” in this location – particularly given the fact that it would block exhilarating harbour vistas from the public walkway; that the essence of Rose Bay is its wide expansive waterscape; and that the ‘water fore Court ’ would be far from attractive as a debris trap near the stormwater outlet of the highly urbanised, 339hectare Rose Bay catchment.

52 I am persuaded by the evidence of Mr Johnson and Professor Weirick that the wharf type structure, while it is well designed, will appear incongruous in this location. It is not a location in which this type of structure was traditionally located for functional reasons. It is in the shallow waters of the Bay rather than extending from the shore into deep water. While I accept Mr Harrison’s opinion that new typologies need to evolve to respond to changing demands, this is not a new typology but a traditional form set in a different context. While of itself this may not be unacceptable, the size of this proposal, its position in the Bay and its proximity to a foreshore promenade are factors, which in combination result in the location being unsuitable for this type of development. The corner of the bay is a sensitive location as it has two public land water interfaces. The interface of the western end of the structure with Lyne Park is acceptable as it is only 8m wide and is at right angles to the shore. It is in a location that the experts generally agreed was “degraded” being a car park opposite public toilets.

53 However, the interface of the structure with the southern side of the Bay is not acceptable as it extends some 46m parallel to and within 25m of the shore line and the promenade along New South Head Road. It places a substantial structure in close proximity with a promenade that is one of the major public foreshore walks on Sydney Harbour and is extensively used. This changes the character of this corner of the Bay from that of a wide-open expanse to a foreCourt space between the restaurant and the promenade. I accept that this is an intrusion into this space and I do not accept Mr Tzannes opinion that the creation of a foreCourt will be a positive addition to the Bay. For the reasons that I will discuss below, I find that position of the restaurant in this location is not only incongruous but will create an adverse impact on the scenic quality of the Bay.

(ii) Visual Impact

54 There was general agreement between the experts that the existing floating restaurant had an unacceptable visual impact. In comparison, the experts agreed that the proposal is well designed and in a prominent location. The main area of disagreement related to whether the location and size of the proposal resulted in an acceptable visual impact.

55 Mr Harrison and Mr Tzannes considered that the proposal had an acceptable visual impact, particularly when compared to the impact of the existing floating restaurant. Mr Harrison summarised his views as follows:

- The small size and scale of the proposal mean that it will be visually contained by its surroundings from most vantage points.
- The muted colours, shaded areas and transparency of the proposal will assist in blending the proposal with the natural qualities of the locality (water scape and massed tree plantings) so that it does not visually stand out like the strong white horizontal forms of the Catalina restaurant when viewed from the water.
- The proposal will serve to enrich the visual qualities of the immediate area and the pedestrian experience.
- The proposal will barely register on the casual observer at long distances (greater than 150m) and be relatively insignificant at intermediate distances (250- 150m) unless the observer specifically focuses on it.
- The proposal will reinforce one of the most visually active parts of Lyne Park.
- There is no visual impact on the war memorial. The memorial is on a visual axis with New South Head Rd and bears no design relationship with the bay. It is not a pleasant place for quiet contemplation due to the traffic noise of New South Head Rd.
- (The proposal is a) Subtle visual marker of the main entry to Lyne Park
- The horizontality of the landform and water is addressed by the horizontality of the proposal.

56 Mr Tzannes held similar views to those of Mr Harrison. In his opinion the proposed structure would impact on views from only a few locations and that this would not result in a negative visual impact. Rather, a building in this location and the architecture of the proposal would add interest and minimize the unattractive view of park with its toilet block, road and car park. He considered that the extensive use of glazing achieved transparency that minimised the bulk and scale of the structure and reduced the obstruction to views. He stated that:

The expressive elements of the architecture, including the curved roof forms, the steel frame, sub-structure pier capitals, and zinc material provide a playful, light and marine character appropriate to the recreational uses and the setting.

57 Mr Johnson acknowledged that the proposal when viewed from an east west direction was of significantly less width than the current restaurant. However, he was concerned about the overall length of the proposal and its visual impact when viewed from the shore and from the sea in a north south direction. He did not agree with Mr Tzannes that the extensive use of glazing would mean that the building was largely transparent. He said that the structure would not be “see through” and that it would appear as ”strong an object as if it were made from another material”.

58 Professor Weirick undertook an assessment of the visual impact of the proposal from the same vantage points as Mr Harrison but he drew different conclusions. In his opinion the form, materials, massing, aspect and colour of the restaurant building, together with the wharf deck, concrete piles and floating pontoon, will give the facility a ‘stand out’ presence in the landscape and waterscape of Rose Bay. Professor Weirick’s conclusions on the impact of the proposal on the visual quality of Rose Bay can be summarised as follows:

a. Views of the proposal

- unimpeded long views from the harbour ( >750m) – significant impact. In particular, northern façade of the proposal will combine with others structure to create a dominance of built form over green parkland.

- intermediate views (250 – 750m) – highly significant impact. Particularly views from the ferry approach to the public wharf and the views from the Rose Bay Promenade east from O’Sullivan Road.

- immediate views (<250m) – highly significant impact. Particularly views from the ferry approach to the public wharf, Rose Bay Promenade at the entry to Lyne Park, the War Memorial, foreshore walkway in Lyne Park, the boat ramp and the public ferry wharf.

b. Views blocked by the proposal
Views of the bay and the harbour from the Rose Bay Promenade, at the main entry point to Lyne Park, and in the immediate vicinity.

59 The key difference in opinion between the experts is extent to which the proposal will block views and whether its presence will enliven the landscape and waterscape and thereby have a positive visual impact. I accept that from some view points the proposal will be a positive form in its setting, particularly when viewed from the east west where its narrow façade and curved roof will result in little view loss to or from the Harbour and the Park, particularly when compared with the impact of the current floating restaurant. However, I accept the evidence that the restaurant when viewed from the north south, will obstruct views and will have an adverse visual impact. In reaching this conclusion, I am influenced by the length of the structure and its proximity to the promenade. While I accept that the structure will have a degree of transparency, I do not accept that this will prevent the perception that there is a very long structure over the water which blocks views to and from the Harbour and the Park. This will have an adverse impact on the scenic quality of Rose Bay, particularly from the harbour when the structure is read in conjunction with other structures in Lyne Park and Rose Bay. As such the proposal does not satisfy the guiding principles in SEPP 56 relating to visual impact or objective (a) of the Waterways Zone in SREP23 to permit development that maintains or enhances important, natural and visual attributes of the Harbour. Nor does it satisfy objective (f) for the open space zone in LEP 1995 to protect the visual and environmental attributes of the foreshore.

(iii) Heritage considerations

60 The heritage experts, Mr G Brooks for the Applicant and Mr D Logan for the Council, prepared a joint statement. The main area of disagreement that remained was the impact that the proposed structure was likely to have on the setting and visual curtilage of the pine trees, the stone sea wall to Lyne Park and the esplanade wall.

61 The experts agreed that “the introduction of a new, typical jetty style structure, without any building envelope on it, on the approximate ‘footprint’ of the existing floating restaurant, would not adversely affect these views or the significance of the items of heritage significance.”

62 However, in Mr Logan’s opinion, the introduction of a building structure above the wharf level ”would detract from views from New South Head Road, from the Harbour, and from areas of the adjacent Park behind the western water’s edge of the Park”. Mr Brooks considered that a new building envelope would not have negative impacts on these views. Both experts agreed that in the absence of any other issues, this heritage issue would not warrant refusal of the application.

63 The other area of disagreement between the experts was that the existing floating restaurant is part of the “cultural heritage, identity and character of Rose Bay”. Mr Brook’s opinion was that part of the significance of Rose Bay and Lyne Park was its history of the various uses and structures and that, as a restaurant had existed in this location for almost 30 years, it was part of this significance. He stated that the proposal “will continue the evolutionary development of a rich complexity of water’s edge and over-water structures that have long characterised the western edge of Lyne Park and by so doing link the park activities to the harbour.” Mr Logan strongly disagreed and said “ the logical extension of Mr Brook’s argument would be that any further proposal for restaurants or other similar structures would be acceptable as they would also be part of the ‘evolutionary development’ of the western edge of Lyne Park”.

64 I accept Mr Logan’s opinion that the existence of a restaurant in this location for a lengthy period of time cannot be used to as an argument for the continuation of the use on heritage grounds. As pointed out in Mr Brook’s evidence, uses in the Park and the Bay have evolved over time. Part of that evolution has been the changing attitude of the public to the use of open space and the foreshore. This is exhibited by the construction of the sea plane base within Lyne Park and its later removal. The establishment and subsequent removal of a restaurant from this location in the park could be equally argued on heritage grounds to demonstrate the evolution of the park and foreshore and social attitudes to development within such areas.

(iv) Public Access

65 The proposal provides a boardwalk that is available for use by the public. The experts agreed that the boardwalk was likely to be viewed as a public access way but they disagreed as to whether it satisfied the requirements for public access in the planning instruments and provided sufficient public benefit to compensate for what the Council’s experts considered to be the negative aspects of the proposal.

66 Mr Colman and Professor Weirick were of the opinion that there would be “potential conflict between restaurant use and public domain use” of the boardwalk. As the boardwalk also provided access to the restaurant, was at the same level as the restaurant, was only four metres wide and was between the restaurant and the view, it would be perceived as an extension to the restaurant, as private space, and would not form part of the public domain that would be easily utilised by the public.

67 Mr Harrison held the contrary view that the boardwalk would be an extension to the public domain as it is directly connected to the water side promenade of Lyne Park, is on the sunny, north side of the restaurant with extensive views and provides an opportunity for the public to walk out over the water. He also considered that the proposal would “help to reinforce the safety of the public domain in this active part of Lyne Park, through casual surveillance”.

68 I accept that the boardwalk is a positive feature of the development but that it does not provide such public benefit as to justify the proposal. Its use as an extension to the public domain would need to be carefully managed to avoid potential conflicts between it and the restaurant.

(v) Use of public foreshore land

69 A fundamental difference of opinion between the experts for Council together with the residents and the experts for the Applicant was the concern about replacing a temporary structure located on public land with a permanent structure. This concern related to whether the commercial use of this foreshore location was justified.

70 Clause 18 of SREP of SREP 23 provides criteria that must be considered in determining an application. These include:

whether the development warrants a foreshore location
(o) any representations of the Committee

71 Further, the Design Guidelines in the DCP include the following criteria that a proposed development in Rose Bay is to satisfy:

it has been demonstrated that the commercial activities proposed within and adjacent to the foreshores are necessary and that their proposed use is compatible with existing and likely future land uses.

72 In its advice on the original proposal of 4 February 2000, The Foreshores and Waterways Planning and Development Advisory Committee, recommended that the proposal should be refused, as it did not meet this criteria.

73 In addressing this issue, Mr Harrison’s opinion was that the proposed restaurant would satisfy the needs of the local and regional catchment and is consistent with the POM for the Park. He stated that “the proposed development is an appropriate and necessary commercial activity to maintain the regional significance/value of the park”. He held a similar view to Mr Brooks that as the Park had historically been used for a variety of commercial uses it was appropriate that this should continue. Mr Shields shared this view.

74 Mr Colman did not consider that the Applicant had demonstrated that the proposed commercial activity was necessary. Nor did he consider that the POM justified a restaurant in this location. In his opinion, while the POM recognised the contribution of restaurants to the regional significance of the park, it did not support proposals that have the potential to obstruct key harbour vistas and the proposal did not meet this objective.

75 Professor Weirick also considered that a commercial restaurant in this location had not been justified. He stated that:

The proposal is not an appropriate use of public land, and the public waterway in this location, with regard to visual impact .

76 Professor Weirick did not support the view that as the Park had historically been used for commercial purposes it was appropriate that this should continue. He stated that the core value of the park was expressed in the POM as “Retention of this parkland character is identified as a primary value to be retained”. Professor Weirick was of the opinion that there were already a number of commercial uses in the park and that the location of the proposal was at the critical entry point to the park and that it was inappropriate for a commercial use to be located at this point. In his opinion, “restaurants overlooking the Harbour have some value, however the acceptable ‘type’ in a large ‘green’ foreshore park such as Lyne Park is a pavilion set back from the water’s edge, amongst substantial tree, with views to the water over the public promenade and the foreshore”.

77 The residents who gave evidence on behalf of their respective community committees shared the view that a commercial use of this location was inappropriate. They also were strongly opposed to the replacement of a temporary floating structure with a permanent structure.

78 The use of public land, particularly foreshore public land, for commercial purposes is an issue which is of concern to the community and is expressed in the planning framework that applies to this site. While restaurants are a permissible use within the Waterways zone under SREP23, this zone applies to large areas of the foreshore and SREP 23 includes criteria that must be addressed in the assessment of any proposal, including whether the proposal warrants a foreshore location. Further that part of the DCP that applies specifically to Rose Bay requires that it must be demonstrated that commercial uses are necessary. I find that the necessity for a commercial restaurant in this location has not been demonstrated. The argument that the proposal will replace a temporary floating restaurant is not sufficient justification for a permanent commercial structure in this location. Nor do I find that the proposal is specifically supported by the POM for the park which while it recognises the contribution of restaurants and other commercial activity to the park, it states that the core value to be retained is its landscaped character. While, I accept Mr Harrison’s evidence that the restaurant is likely to be commercially successful I do not accept that this is sufficient justification to locate a restaurant in a sensitive location at the corner of Rose Bay at the entry to the park. As I have discussed above this location and the proposal itself impact on the scenic quality of the Bay.

G. CONCLUSIONS AND ORDERS

79 For all the foregoing reasons, I have concluded that the proposed development would have an adverse visual impact and that development consent should be refused on this ground which is of great significance, due to the outstanding natural and cultural setting of the development.

80 Accordingly I make the following orders:

1. The appeal be dismissed.

2. Development consent be refused.

3. The exhibits be returned.

4. No order as to costs.