Roseville Bridge Marina Pty Limited v Ku-ring-gai Council
[2007] NSWLEC 380
•14 June 2007
Land and Environment Court
of New South Wales
CITATION: Roseville Bridge Marina Pty Limited v Ku-ring-gai Council [2007] NSWLEC 380 PARTIES: APPLICANT
RESPONDENT
Roseville Bridge Marina Pty Limited
Ku-ring-gai CouncilFILE NUMBER(S): 11160 of 2006 CORAM: Bly C KEY ISSUES: Development Application :- alterations and additions to an existing Marina, cafe, on-street parking, traffic, noise, pedestrian access LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Sydney Regional Environmental Plan (Sydney Harbour Catchment)
Ku-ring-gai Planning Scheme OrdinanceDATES OF HEARING: 1/06/2007 and 14/06/2007 EX TEMPORE JUDGMENT DATE: 14 June 2007 LEGAL REPRESENTATIVES: APPLICANT
Ms A. Spizzo, solicitor
of Herbert Geer RundleRESPONDENT
Mr A. Hudson, solicitor
of Wilshire Webb Staunton and Beattie
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBly C
11160 of 2006 Roseville Bridge Marina Pty Limited v Ku-ring-gai Council14 June 2007
This decision was given extemporaneously. It has been revised and edited prior to publication.
JUDGMENT
1 This appeal relates to the amended Development Application No. 807/06, which is for alterations and additions to the existing 66 berth marina known as the Roseville Bridge Marina at 15 Normac Street, Roseville.
2 The proposal comprises demolition of the existing floating marina arm and construction of two replacement marina arms with a total of 62-berths, removal of 28 swing moorings and a 6-berth star mooring and the provision of a sewage pump-out and refuelling facility. Also involved is a proposal to provide a café with 62 outdoor seats located in front of the existing kiosk building. A café presently exists which is capable of accommodating in excess of ninety patrons.
3 The site comprises three lots, being Lots 91, 92 and 93 in DP13450 and has an area in excess of 3000 sq m. It slopes steeply down from Normac Street to Middle Harbour, with several platform areas formed as a result of existing development which includes a caretaker’s residence, garage, carport, car parking spaces, inclinator, boatsheds, offices, kiosk and workshop buildings. The majority of these existing facilities, including the caretaker’s residence, the offices and the workshop which occupies a significant part of the foreshore area are not to be altered.
4 The water-based components of the marina occupy an area leased from the NSW Maritime Authority, which incorporates the area currently occupied by the jetty, gangway, walkway, marina berths, pontoons and most of the area occupied by the main boatshed, boat repair yard and café seating.
5 The site, including the existing marina berths, is mostly surrounded by water and bushland. To the northwest of the site is the main arm of Middle Harbour and to the south is Castle Cove peninsula. Echo Point is located to the northwest of the site. The nearest residential properties are those located to the west on the opposite side of Normac Street.
6 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 applies to the site, and pursuant to cl 18 a commercial marina is permissible with consent in zone No. W5 (Water Recreation), the zone in which the site is situated. Relevantly, the Foreshores and Waterways Planning and Development Advisory Committee has advised that it does not object to the amended proposal.
7 Also applicable to the site is the Ku-ring-gai Planning Scheme Ordinance (“PSO”), under which at least some elements of the proposal require development consent. There are no development standards relevant to the proposal under the PSO.
8 Whilst initially thought to be designated development under the Environmental Planning and Assessment Act 1979, an advice received from the New South Wales Department of Planning is to the effect that the proposed development can be dealt with as non-designated development because it is accepted that the proposed alterations and additions do not significantly increase the environmental impacts of the total development. Having reviewed the materials provided I accept that the proposal would not, as concluded by the department, significantly increase the environmental impacts.
9 The amended development application was notified to residents in Ku-ring-gai as well as nearby residents in Warringah and Willoughby. That notification process resulted in a number of objections being received. When the appeal began on site a number of residents were given the opportunity to explain their concerns in detail.
10 Those concerns mainly comprise the likely impacts resulting from additional traffic generated by this development and the resulting demand for on street parking. In this context it is to be noted that Normac Street is for the most part a single lane carriageway, and parking adjacent to this carriageway is difficult. Matters of traffic safety were also raised.
11 The second area of concern involves noise impacts from the development generally, such concerns relating to noise from the social utilisation of moored boats and from amplified music from the café. Concerns were also raised in relation to noise from construction works, mainly regarding the driving of the piles associated with the mooring berths.
12 The third concern involved visual impacts associated with the marina berths, which in effect are a replacement of a number of swing moorings further out into the waterway.
13 The final concern was regarding the denial of opportunities to provide in the future a continuous pedestrian access around the foreshore.
14 The council on 7 November 2006 refused the development application for reasons mainly comprising the absence or insufficiency of information in relation to existing use rights, the permissibility of the development, owners’ consent, designated development, remediation of land, car parking and traffic, noise and vibration and accessibility. I now understand that all of these concerns have now been resolved by the provision of appropriate information or by the inclusion of conditions of consent, and as a consequence the parties have agreed to enter into consent orders as described in Exhibit 1.
15 There were two conditions which I was asked to determine, those conditions being amended condition 3 and condition 11. Those conditions deal with the paving and marking of a parking area adjacent to the site in Normac Street as well as the installation of traffic advisory signs should the Ku-ring-gai Traffic Committee decide it to be appropriate. The applicant opposed those conditions, but I decided to impose them for reasons relating to the traffic generation of the marina and the fact that despite the proposal reducing the likely demand for car parking it nevertheless relies significantly on parking beyond the site that these conditions would be appropriate.
16 More particularly in relation to traffic and car parking, and in response to the concerns of the residents, I note that in applying Australian Standard AS3962-2001-Guidelines for Design of Marinas (“The Australian Standards”) that as a result of the reduction in the number of marina berths and the size of the café that the car parking demand for the proposal will be 12 car spaces less than is presently required. On this basis I conclude that notwithstanding the concerns of the residents that there is likely to be a slight reduction in traffic congestion in Normac Street. There are presently on site 20 car parking spaces and by the application of the Australian Standard 47 spaces, in the manner of 19 spaces for the mooring berths and 21 spaces for the café plus 7 for employees, are required. Taking into account the 14 spaces available in Normac Street adjacent to the site and the 23 parking spaces in Babbage Road, a short walk from the site through adjoining parkland, I am satisfied that the provision for car parking will be satisfactory.
17 As for noise impacts, there are to be imposed two relevant conditions. Condition 52 provides that there be no live amplified music or use of disc jockeys for the café, and the operation of the café according to condition 45 is restricted to Wednesday to Sunday and public holidays, 8am to 4pm. Bearing these conditions in mind and the conclusion of the applicant’s noise expert that operational noise from within the site will generally comply with applicable noise criteria. I do not expect that any such noise would be so problematical for neighbours that this would require any further condition of consent or the refusal of the application.
18 The applicant’s noise expert also dealt with noise emission from the car parks as well as from construction activities. In relation to noise emission from car parking activity he noted that this activity at night is likely to be minimal and only generated by berth-holders accessing their boats, and taking into account that the marina is closed between 6pm and 6am, and the café is also closed at this time, he nevertheless conceded that noise from the car parking activity could exceed sleep-intrusive criteria at residences opposite the car park. As a consequence a condition was recommended and accepted by the applicant that berth-holders be encouraged to use the lower level parking area to reduce any such impacts.
19 As for noise generated by construction activities, he noted that this could exceed the criteria for construction noise if mitigation measures are not implemented. Such measures are recommended and have now been incorporated into the conditions of consent. In addition the applicant has agreed that construction works will not take place at weekends.
20 In the above circumstances I am satisfied that the concerns in relation to noise and its possible impacts on nearby residences would not be such that further conditions or the refusal of the application is necessary.
21 Regarding visual impacts, the applicant provided as part of its statement of environmental effects a visual assessment prepared by a firm of landscape architects and that report considered the change in character of the marina from one with a significant component of swing moorings to one of only fixed moorings. The impressions of the change were considered from various viewpoints, particularly from nearby elevated and moderately elevated positions. That report concluded that the removal of the swing moorings would have little visual impact, and in some cases may improve the visual quality of the waterway. The report recognises that the fixed berth marina extension will be visible from these viewpoints, and taking into account that they will be seen against generally vegetated hillsides, the visual impact would be low.
22 The Statement of Environmental Effects also considers this question, noting that whilst there will be a slight reduction in the total number of boats there will be an increase in the visual density of boats within the inlet, but this is offset by the benefits of an increase in the extent of visible open water resulting from the development. Whilst it will have a limited impact, this will be an acceptable impact on view composition and the change that would result to the intrinsic character of the site overall is considered to be minor and acceptable, particularly taking into account that the site will continue to be used for the principal purpose as has occurred for a considerable period.
23 In these circumstances, I am satisfied that the visual impacts of the proposal will be satisfactory and would not represent a reason for the refusal of the application.
24 The final issue of concern to the residents involved the need to provide public access or not to make more difficult the provision of public access around the foreshore in the future. The applicant has agreed to Condition 51 that requires the provision of public access during daylight hours to all external areas of the marina below high water mark, with the exception of the slip arms. However, access more generally around the foreshore is effectively prohibited by the existing, and as I understand it lawful, marine workshops. These workshops are not be changed as part of this application, and hence there is no reduction in foreshore access, nor is there any reduction in the ability to provide such access in the future.
25 The works as proposed do not preclude a future consideration of foreshore access, which would otherwise be plainly desirable in the public interest. Again, this matter is not a reason to require the refusal of the application.
26 It is therefore the decision of the Court that by consent:
2. Exhibits 1 and A are retained by the Court, otherwise the exhibits are returned.1. The appeal is upheld and the development application is approved in accordance with Exhibit 1.
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- T A Bly
Commissioner of the Court
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