Shein v The Minister Administering the Ports & Maritime Act 1995

[2008] NSWLEC 1158

Land and Environment Court

of New South Wales

CITATION:

Shein v The Minister Administering the Ports & Maritime Act 1995 [2008] NSWLEC 1158

PARTIES:

APPLICANT
C Shein

RESPONDENT
The Minister Administering the Ports & Maritime Act 1995

FILE NUMBER(S):

10743 of 2007

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Shipway - Visual and ecological impacts

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005
Woollahra Local Environmental Plan 1995

CASES CITED:

BGP Properties Pty Ltd v Lake Macquarie Municipal Council [2004] 399
Super Studio v Waverley Council [2004] NSWLEC 91
Pafburn v North Sydney Council [2005] NSWLEC 444

DATES OF HEARING:

28/03/2009

 
DATE OF JUDGMENT: 

6 May 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr C. Ireland, barrister
Instructed by Mr M. Page
of Page Partners

RESPONDENT
Mr S. Simmington, solicitor
of Lindsay Taylor Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

6 May 2008

10743 of 2007 C Shein v The Minister Administering the Ports & Maritime Act 1995

JUDGMENT

Background

1 Ms Shein has appealed against the Minister’s refusal of a development application for a slipway at 13 Coolong Road, Vaucluse.

2 The issues identified for the appeal concern:

• Impact on natural assets, particularly the natural rock platform and sea grass beds.
• Impact on scenic views.
• Impact on future intertidal public access.

The site

3 The site comprises part of No 13 Coolong Road and part of the bed of Vaucluse Bay abutting No 13. It has a water frontage of approximately 22.5m. There is a rock platform spanning the land/water/interface, which abuts an intertidal sandy beach. The sub-tidal seabed is mainly sand and is vegetated by sea grasses.

4 The site contains the remnants of a former tidal swimming pool, being a freestanding timber pile and stone jetty. The existing jetty acts as a groyne, with sand accumulating on both the northern and southern sides.

5 The natural rock platform and stone jetty are inhabited by invertebrate fauna, including Sydney rock oysters, periwinkles, whelks, limpets, barnacles and anemones. The intertidal areas include low encrusting algae and the base of the outer end of the jetty and nearby rock rubble is vegetated with red and brown algae.

6 A bed of seagrass at the end of the stone jetty extends approximately 14m beyond the jetty and is approximately 12m wide at its widest point.

7 The locality of the site is on the western shoreline of Vaucluse Bay, approximately 500m south of Glass Point.

The Proposal

8 This proposal involves the construction of a steel slipway for the storage, deployment and recovery of a ‘Sea Ray 240 Sundeck vessel with a length of 8.02m and beam of 2.59m.

9 The slipway measures approximately 22m in length and 1.8m in width. It protrudes 13.4m into Vaucluse Bay beyond the freehold boundary of 13 Coolong Road (i.e. seaward of the mean high water mark). The slipway is to be supported on 16 piers, comprising 14 concrete and the 2 seaward piers being of turpentine. It is to be constructed over the existing jetty alignment.

10 The proposal includes a cradle onto which the designated runabout motor craft is hoisted and moved to and from the shore. The boat is to be stored fully above the MHWM, away from the side boundaries of the neighbouring properties.

11 The slipway is to be positioned about 6.2m from the boundary with 13A Coolong Road and directly over the existing stone jetty for much of its length below high water mark.

12 In recognition of the existing sea grasses, the application included a ‘Slipway Operational Management Plan’ (SOMP) – prepared by Mr Johnson, which contains procedures for:

• Launching the vessel;
• Berthing the vessel – provides disembarkment procedures depending on tide conditions. This requires the motor to be switched off once the bow of the vessel is in or near the cradle entry. At low tide one person is to disembark in a designated pedestrian area and assist in connecting the hand winch cable to the bow of the vessel. This is to prevent scour of the sea bed;
• Passengers required to embark/disembark along the groyne;
• Intertidal and subtidal habitat recognition;
• Potential damage to sea grass minimisation procedures.

Planning Controls

13 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005. This SREP contains a number of relevant controls, which include:

(a) The aims of the plan, particularly cls 2(1)(a), (b), (f), (g) and 2(2).
(b) Cl 17 – objectives for land zoned as W8 Scenic Waters: Passive Use.
(c) Cl 21 – Biodiversity, ecology and environment protection.
(d) Cl 25 – Foreshore and waterways scenic protection.
(e) Cl 26 – Maintenance, protection and enhancement of views.
(f) Cl 29 – Consultation with Foreshores and Waterways Planning and Development Advisory Committee.

14 Sydney Harbour Foreshores and Waterways Area Development Area Development Control Plan 2005 (DCP). This is the companion guideline to the SREP.

15 Woollahra Local Environmental Plan 1995. This LEP contains the following objectives for the area’s foreshores and harbour foreshore scenic protection area:

(i) to seek the retention of public foreshore land for public purposes ,
( ii) to encourage development which, through its form, scale, materials and design is compatible with the natural and environmentally acceptable built form of the foreshore areas as viewed from the water,
(vi) to protect the natural, scenic and cultural attributes of the area's foreshores, including the visually and ecologically significant beaches, inter-tidal rock formations, vegetation, rock faces, shelves and outcrops,…

Planning Controls

16 It is apparent from the evidence that more restrictive controls have been imposed on waterfront development in Sydney Harbour in recent times than existed in the past. These controls are set out in the SREP and DCP and relevantly include the following aims in section 2:

(1)(a) to ensure that the catchment, foreshores, waterways and islands of Sydney Harbour are recognised, protected, enhanced and maintained…
(b) to ensure a healthy, sustainable environment on land and water…
(2) For the purpose of enabling these aims to be achieved in relation to the Foreshores and Waterways Area, this plan adopts the following principles:
(a) Sydney Harbour is to be recognised as a public resource, owned by the public, to be protected for the public good,
(b) the public good has precedence over the private good whenever and whatever change is proposed for Sydney Harbour or its foreshores,
(c) protection of the natural assets of Sydney Harbour has precedence over all other interests.

17 Clause 17 deals with the zoning objectives and generally provides that the consent authority must not grant consent to any development unless it is satisfied that it is consistent with the aims of this plan and the objectives of the zone in which it is proposed to be carried out.

The subject site is within the Zone No W8 Scenic Waters: Passive Use zone. This is a 30m wide strip adjacent to the foreshore , where the relevant objectives are:
(a) to give preference to unimpeded public access along the intertidal zone, to the visual continuity and significance of the landform and to the ecological value of waters and foreshores,
(b) to allow low-lying private water-dependent development close to shore only where it can be demonstrated that the preferences referred to in paragraph (a) are not damaged or impaired in any way, that any proposed structure conforms closely to the shore, that development maximises open and unobstructed waterways and maintains and enhances views to and from waters in this zone,
(c) to restrict development for permanent boat storage and private landing facilities in unsuitable locations,
(d) to allow water dependent development only where it can be demonstrated that it meets demonstrated demand and harmonises with the planned character of the locality,
( e) to ensure that the scale and size of development are appropriate to the locality and protect and improve the natural assets and natural and cultural scenic quality of the surrounding area, particularly when viewed from waters in this zone or areas of public access

18 Detailed evidence was presented by:

• Ms R Frettingham; Senior environmental planner (NSW Maritime)
• Mr A Morison; Consulting ecologist for the respondent
• Mr N Juradowitch; Consulting planner for the applicant
• Mr R Johnson; Consulting environmental scientist for applicant.

Natural assets, scenic quality

19 Ms Frettingham said that the natural features at the land-water interface are important visual elements contributing to the scenic character of the subject site. She described the subject foreshore as comprising the rock platform, which is a strong horizontal element that acts as a visual border or edge to 13 Coolong Road. This rock platform is prominent and distinctive and has high scenic value because:

• Its light warm colouring makes it visually “stand out in its setting”;
• 13 Coolong Road is relatively flat so the rock platform visually occupies a large proportion of the foreshore seaward of the dwelling;
• it is substantial and its length is unbroken by development;
• its form is visually interesting because of the uneven stratified nature of the rock which is further enhanced by the effects of light and shade; and
• it contrasts strongly with the form and finish of the seawalls at the neighbouring properties.

20 Consequently Ms Frettingham concludes that this natural rock platform, running the length of the subject property is:

“a natural asset of Sydney Harbour which has high scenic value, makes a positive contribution to the character of the locality and can be appreciated by the public from a large area of waters of Vaucluse Bay.”

21 Furthermore, the proposed slipway, when used to store a vessel or not, will visually dissect the length of the rock platform and diminish its scenic qualities and visual integrity. In her opinion, this outcome is contrary to the aims of the SREP, which places protection of natural assets before all other interests and should result in the refusal of the application.

22 Against this, Mr Juradowitch says:

“The site contains no natural features that could be described as significant in the landscape. The existing rock ledge fronting the site is evidence from vantage points relatively close to the shoreline. However this rock ledge is a short length and is a secondary element in a highly modified landscape. The natural character of the ledge is somewhat overwhelmed by the man-made features around it and is also disrupted by the existing man-made groyne extending from the rock ledge into the Harbour. The great majority of the rock ledge above and to the north and south of the groyne will continue to be visible after construction of the proposed slipway.”

23 On this basis, Mr Juradowitch considers the visual assessment should be undertaken within the context of the highly modified shoreline, wherein the rock ledge is of a short length and a secondary element. Whilst he acknowledges that when the boat is stored at the landward end of the slipway some obscuring occurs, this is consistent with the common visual impact of storage of tenders, dinghies, kayaks and the like near the waters edge that is evident around the Harbour.

24 As the provisions of zone W8 allow appropriate slipways, he considers the proposal has a very minor and acceptable impact in absolute terms relative to its context and does not consider the proposal is inconsistent with the SREP or DCP.

25 From my assessment of the evidence and observations at the view, I am satisfied that the rock shelf is a natural asset that is visually significant in its locational context, particularly as it appears to span the full waterfrontage of this lot. As such it makes a positive contribution to the scenic amenity of this area, which is otherwise dominated by wharves and jetties, which the controls do not now allow.

26 In this regard, I consider Ms Frettingham’s description and assessment is more reliable than Mr Juradowitch, who does not consider the rock shelf as a significant natural feature and that infill development of the foreshore is acceptable because it would be compatible with the existing “built-up” character of the waterfront. It seems to me that the desired future character objectives referred to in cl 25 of the SREP would be better achieved without this structure and associated use.

27 Accordingly, I consider the proposal, in this context would diminish the contribution of this natural asset and is therefore not consistent with objective (e) of the W8 zone, which is to protect and improve the natural assets and natural and cultural scenic quality of surrounding area… Therefore, I consider this is a negative aspect of the proposal.

Ecology, seagrasses.

28 Both ecologists undertook an investigation of the sea bed in the vicinity the groyne and found various areas of Posidonia australis, Zostera capriconii and Halophila ovalis. They agreed that the main concern was for the threatened Posidonia.

29 A joint conference was undertaken by the ecology experts. However there was still some disagreement on the location of the seagrasses, particularly in the area of the designated pedestrian walkway, required to berth the vessel.

30 Mr Johnson says the seagrass is not occurring within the pedestrian area, but Mr Morison’s mapping indicates the Posidonia starts near it, 11.5m from the end of the slipway (14m from the end of the stone groyne), whereas Mr Johnson considers it is 15.3m. Notwithstanding this, these experts agree that a pedestrian area could be located outside the seagrass area.

31 Apart from pedestrian impacts, the experts dealt with a number of potential ecological risks, including possible impacts from the vessel usage. Mr Morison said that a clearing through the seagrass either side of the groyne is most likely due to propeller scour and trampling. But Mr Johnson says this could have occurred from tidal action from a nearby sub-tidal rocky reef.

32 In response to the concern about potential risks and damage to the seagrasses, the experts agreed that the tidal effects were critical and said that one potential source of damage was from boat berthing and launching because:

• The depth to the bed of the bay at the end of the slipway with a 0.49m tide (i.e. MLW; 0.49m above ZFDTG in Sydney Harbour), is 0.79m;
• With a draught of 0.64, this leaves a clearance of 0.15m from the bay bed;
• If seagrass is between 10 – 15cm, this leaves little if any clearance to the seagrass;
• There is a risk to the seagrass if the motor is running because with a 0.64m draught and the 0.49m tide, the scour can occur up to the -0.15 ZFDTG contour.
• The risk to the seagrass is much greater as the stern is lowered (draught is 104cm). Whilst Mr Johnson says this is covered in the SOMP requiring launching and berthing with the stern raised (draft 63.5cm). But Mr Morison does not accept this and says there is inadequate security for the seagrasses in these circumstances.
• During these operations when the boat is reversing, thrust may be directed downwards, which could cause scouring. Mr Morison agrees that restricting the depth where the motor was permitted to run could reduce this risk.

33 Another risk is from trampling. Whilst there is evidence of some trampling, Mr Johnson says this can be reduced by implementation of the SOMP, requiring more controlled pedestrian via the unvegetated area. Against this Mr Morison says it would be difficult to contain pedestrians to this relatively narrow area and that in any case, there is a likelihood of increased pedestrian activity and associated risks, arising from the approval of the proposal.

34 There is also a risk when the vessel sits near the bottom of the pedestrian area with tides of less than 0.5m. Whilst Mr Johnson agrees with this proposition, he says will not be an issue as the vessel will not be launched or berthed at this tide or below. However Mr Morison says the seagrass at the edge and adjoining is nevertheless likely to be at risk.

35 In summary then, both experts agree Posidonia and other seagrasses are present in the immediate vicinity of the proposal and that they are susceptible to impacts. Mr Johnson says this can be managed and the impacts will not be significant as long as the SOMP is followed.

36 But Mr Morison concludes that this reliance on the SOMP is somewhat unrealistic in the circumstances. In terms of the “controlled” boat clearance of 150mm, he considers this way too small and that a clearance in the order of 500mm – 600mm is the general desirable clearance. Also, there is a possibility that piles 15 and 16 may result in the loss of seagrass and the structure and operation plan do not prevent damage or provide enhancement to the seagrasses and is therefore inconsistent with the aims of the SREP.

Other matters

37 A number of other matters were raised in the consideration of this matter and they been taken into account. On 11 February 2008 the NSW Department of Primary Industries (DPI) advised that it would have no objections, subject to shortening the length of the slipway to:

“ensure that it can only be used at tide levels that allow sufficient depth of water over the seagrass bed so that the seagrass is not impacted from the use of this structure at low tide levels. The physical restriction of the use of the slipway at low tide levels is the preferred option of the Department rather than the reliance on an operational plan that may not be considered binding on future owners of the property.”

38 During the proceedings, there was some discussion about the nearby swing mooring licence held by the applicant’s husband. In the event of consent being granted, Ms Frettingham says this licence should be surrendered in line with NSW Maritime’s practice in recent times of requiring the relinquishment of a swing mooring when alternative facilities are approved for the vessel.

39 However, it seems to me that this is a separate consideration that would merit little, if any weight in these proceedings. Although, some consideration of this matter may be relevant in assessing the demand for and necessity (Padfurn) of the proposal.

Conclusions

40 Having considered the evidence, the submissions and undertaken a view, I do not consider this proposal for the construction and use of the slipway demonstrates satisfactory compliance with the relevant aims of the SREP and objectives of the W8 Scenic Waters: Passive Use zone.

41 Whilst there are other jetties in close proximity to the subject land, it appears their existence pre-dates SREP 2005. The SREP clearly restricts current and future foreshore development, although I acknowledge that an appropriate slipway is permissible on the site subject to merit assessment. However, this site is somewhat constrained by the presence of the substantially undisturbed rock platform along the full property frontage and seagrasses in close proximity to the proposed slipway and its associated area of operations.

42 One of the primary aims of the SREP is to ensure that the harbour foreshores are recognised, protected, enhanced and maintained. The associated principles provide for the protection of the natural assets, which is to have precedence over all other interests. Also, the public good is to have precedence over the private good whenever and whatever change is proposed for the harbour or its foreshore.

43 From my observations, I am satisfied to rely on Ms Frettingham’s description and opinion that the rock shelf is a significant natural feature element, in this part of Vaucluse Bay. This is notwithstanding the changes arising from the past construction of many nearby jetties and other structures, including the groyne at the subject property. Under these circumstances, I do not accept the Mr Ireland’s submission that the existing situation represents ‘a highly modified foreshore rockface at 13 Cooloong Road’ and that this should form some sort of benchmark for the approval of the proposal.

44 Instead, it seems to me that the slipway and particularly the boat-laden cradle (approximately 3m high) will have an obvious detrimental visual impact because of its location towards the centre of the property frontage, which bisects the natural rock shelf. In terms of impacts on this natural asset and associated visual impacts, I do not consider the proposal maintains or enhances the contribution of this asset. Instead its contribution is diminished, which is not consistent with the scenic quality provisions in cl 25 of the SREP.

45 The seagrasses are the other natural asset likely to be adversely impacted on. Whilst it is possible that piles 15 and 16 may cause some impact, I am satisfied this could be controlled and would be minimal. The more critical concern is that the use of the slipway may damage the seagrass and the evidence in this regard is quite divergent. The applicant relies to a significant extent on the user complying with the SOMP. This prescribes the launching/berthing arrangements, including restricting the use of the designated vessel in low tide situations and the use of a pedestrian area to avoid damage to the seagrasses. Accordingly, the applicant’s submission is that the conditions limiting pedestrian access to the north of the groyne, represents an improved ecological outcome.

46 However it seems to me that the SOMP is highly restrictive in terms of the usage of this relatively small vessel. This plan amongst other things limits the times when the boat can be brought towards the shore and requires the motor to be trimmed at a certain point when approaching the shore, so that the propeller does not interfere with the seagrasses. Also, the usage is to be restricted to tides above 0.49m, when there is a water depth of 0.3m at the toe of the slipway.

47 Considering the extent of these operating controls for the use of the proposed facility, I note Mr Johnson’s opinion that this represents “best practice”, although it is not “common practice”. However this is not consistent with the DPI advice to avoid reliance on operational plans.

48 For my assessment of this issue, I consider Mr Morison’s approach is more realistic and practical in the circumstances of this case. That is the approval of this facility is likely to increase the usage and associated activity near the shore and seagrasses, resulting in greater potential for adverse impacts. Accordingly, I consider the presence and location of the seagrasses in proximity to the slipway is a significant constraint, which is not adequately protected by a SOMP, particularly as the clearances to the seagrasses is in the order of 150mm.

49 Reference was made to a number of cases, as authorities for this matter. Firstly, the matter of BGP Properties Pty Ltd v Lake Macquarie Municipal Council [2004] 399, where the Chief Judge said that significant weight is to be given an application that is permissible in the zone. Whilst I acknowledge a slipway is permissible, nevertheless in the subject matter this requires a balancing of the competing private and public interest considerations, where the public interest is to be given higher priority.

50 On balance I do not consider the resultant environmental impacts in this case would be satisfactory. It is apparent that the W8 zones covers large areas of Sydney Harbour, where presumably other slipways could be appropriate where there are less impacts on the natural assets.

51 Ms Frettingham referred to Super Studio v Waverley Council [2004] NSWLEC 91 and Pafburn v North Sydney Council [2005] NSWLEC 444 , in addressing the reasonableness and necessity for the development. The principles enunciated deal with the threshold of acceptability of an impact arising from development. Impacts should be assessed with heightened sensitivity in certain circumstances such as the introduction of a new element, superfluous development or unreasonable proposals. Ordinarily, she says that the proposed slipway might be a reasonable request in terms of the planning controls but cannot always be met because of the suitability of the site for the development and the overriding aims of the SREP to give preference to the protection of natural assets over all other interest.

52 Insofar as Mr Ireland submits this is irrelevant in this case because there is demonstrated demand for the facility, I consider this principle deals with the necessity for the proposal, rather than demand. Considering the competing interests, I do not consider a compelling case for the demand, or necessity of the slipway, as compared to the desirability, relative to the likely environmental impacts was established, particularly as the property owner has the benefit of the nearby swing mooring. However I do not give this determinative weight.

53 Notwithstanding this, cl 27 of the SREP seeks to avoid a proliferation of private boat storage facilities and the minimisation of the number and extent of structures over waters in this zone through mechanisms such as sharing of structures between adjoining waterfront property owners. No evidence of possible sharing facilities with neighbours was presented.

54 In the ultimate, I am satisfied to rely on the evidence of Ms Frettingham and Mr Morison that this proposal is not consistent with the relevant aims of the SREP to protect, enhance and maintain natural asset elements of the foreshore rock shelf seagrasses, which are significant at this site. In my assessment, the refusal of the application is consistent with the cl 17 objectives (c), (d) and (e) of the SREP.

1 The appeal is dismissed.
2 Development consent for the construction of and use of a slipway at 13 Coolong Road, Vaucluse is refused.
3 The exhibits may be returned except 6, 9, B,

___________________

R. Hussey
Commissioner of the Court
ljr