Siruse Pty. Limited v Warringah Shire Council

[1989] NSWLEC 186

Land and Environment Court

of New South Wales

CITATION:	Siruse Pty. Limited v. Warringah Shire Council [1989] NSWLEC 186
PARTIES:	APPLICANT Siruse Pty. Ltd RESPONDENT Warringah Shire Council
FILE NUMBER(S):	10408 of 1988
CORAM:	Cripps J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmenatl Planning and Assessment Act
CASES CITED:
DATES OF HEARING:
DATE OF JUDGMENT:	05/01/1989
LEGAL REPRESENTATIVES:	APPLICANT Mr Caldwell

JUDGMENT:

His Honour: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act by Siruse Pty Limited against the decision of the Warringah Shire Council refusing development consent for extensions to an existing marina and shore based facilities at Marina Quays, 1856 Pittwater Road, Church Point. The development application was lodged in July 1987 and was accompanied by an Environmental Impact Statement as required by the legislation. The application was advertised and Council received fifty four letters of submission by way of opposition. On 13 December 1988, the Council refused development consent for a number of stated reasons some of which have since been abandoned. On the 23 August 1988, the Developer appealed to the Court. Pursuant to s 97 of the Act, a number of persons who made submissions by way of objections became parties to the appeal. They refer to themselves, collectively, as the Bayview Church Point Progress Association. Their views have been placed before the Court by an offic

er of the Association, Mr Fulton.

The present development consists of a shore based work area, engine shop, store office, private office, show room, ship chandlery shop, snack bar and shop store. The zoning precludes certain commercial uses including a restaurant but it is acknowledged by the Council that the present snack bar is protected by s 107 of the Act. The present marina presently accommodates 64 boats and has commercial occupation licences for 79 swing moorings located in the near vicinity.

The subject application is for an extension to the marina and redevelopment of the shore based facilities. It is proposed to demolish the present structure on shore and replace it with a large commercial building and a large two storey car park to accommodate 130 cars. The maximum height of the buildings will be approximately 6 metres which is a little lower than one of the buildings presently occupying a small part of the site. The car park will be approximately 2.6 metres above existing ground level. The Developer proposes to extend the marina to accommodate an additional 84 boats and to relinquish the 79 commercial occupation licences for swing moorings referred to above. It also proposes to provide an off-road bus shelter, to add to the area of public reserve to the west of the site; to provide a public walkway along part of the foreshore; to improve the landscape and to encourage the mangrove growth to the west of the site. Originally, it proposed to incorporate septic tank facilities on site but has lat

er undertaken to link the site by a separate pipeline to the Board's sewer main. It also proposes to install a more efficient system of effluent disposal so as to minimise the risk of pollutants and heavy metals entering Pittwater.

The Developer relies strongly upon the circumstance that it has the support of the Maritime Services Board. In the Board's view, the storing of boats at marinas is a desirable end in itself and the surrender of seventy four swing moorings accords with its policy. It has stated in evidence that the licences that are to be surrendered will not be reissued if the development proposal goes ahead.

As I have said above, a number of local residents objected to the development. Generally, their objections are that the proposed extension to the marina and the re-erection of the large commercial building will have an adverse visual impact on people living in the area and on people using Pittwater. The Objectors also allege that the Environmental Impact Statement did not adequately assess the impact of the proposed marina development upon water quality. They allege that it is inadequate in its treatment of the direct effect on the water and sea bed immediately beneath the marina and upon the cumulative effect of the development on boating activity in Pittwater.

Zoning

The subject land is zoned Waterfront Business 3(b3) within the foreshore scenic protection area under Warringah Local Environmental Plan 1985. The Plan provides that with respect to applications for the development of land within a foreshore scenic protection area, the consent authority should take into consideration the "probable aesthetic appearance of the proposed building or work or that land when used for the proposed purpose and viewed from that waterway, main or arterial road ... ". Clause 24(b) of the LEP provides that a person shall not use the land for the purpose of an industry if the allotment of the land upon which the development is to be carried out exceeds 1000m2 in area. The subject site exceeds 1000m2. It is agreed that should environmental considerations lead to the conclusion that development consent ought be granted, the objection pursuant to SEPP No 1 requiring compliance with cl 24(b) should be upheld.

Issues

As I have said above, the Council informed the Developer of its grounds for refusing consent. Many of them overlap and some have since been abandoned. In particular, Council now no longer maintains that the granting of development consent would be contrary to its Draft Plan of Management for Pittwater. However, it maintains its opposition to the development on the ground that the two storey car park to be erected on the southern and eastern part of the site represents overdevelopment of foreshore land and that its presence will have an adverse impact upon the Reserve immediately to the south east and will be visible from the road, particularly to people travelling along Pittwater Road in a northerly direction.

The Objectors adopt the Council's ground of opposition. They also submit that the bulk, size and protrusion into Pittwater of the marina as extended is unacceptable and that if marinas are to be constructed in Pittwater they should be small and confined to bays. As I have said, they assert that the Environmental Impact Statement inadequately addressed the question of water quality. In this regard, it was not submitted that the inadequacy deprived the Court of its power to grant development consent. All parties agree that there is no legal impediment to the Court granting consent. However, on behalf of the residents (but not the Council), it was submitted that inadequate treatment of water quality was such that the Court would be left with an insufficient understanding of the impact of the development on the water quality of Pittwater and that that circumstance, of itself, should lead lead the Court, in the exercise of its discretion, to reject the application.

Dr Cheng has given evidence to the effect that very little attention is given in the EIS to the question of the local or cumulative effect on water quality of the development. In particular, he referred to turbidity caused by motor traffic and close boat moorings and to the fact that marina development had a history of causing heavy metals and hydrocarbons to enter the waterways. However, in the present case, I take cognizance of the fact that if the development is allowed it will mean a reduction in the immediate area of seventy nine swing berths and if I accept, as I do, the Maritime Services Board's statement that it will not make those moorings available for private or commercial use in the future and, by inference, that those moorings will not be placed elsewhere in Pittwater, then it seems not appropriate in the present case for me to place a great deal of weight on the general criticisms of Dr Cheng in their application to this development. That is to say, although I share Dr Cheng's general concern ab

out the effect of boating activity on water on water quality directly and cumulatively, the circumstances of the present case are such that if other matters are resolved in favour of the Developer, inadequate treatment of water quality would not be a reason for refusing development consent.

Council's Town Planner prepared a number of reports for the consideration of the Council. The Planner recommended that consent be granted subject to certain conditions. The Planner's Report identified the environmental disadvantages and environmental advantages of allowing the development to proceed subject to certain conditions. On balance, he was of the opinion that the disadvantages were outweighed by the advantages and that, accordingly, consent should be granted subject to conditions. He was of the opinion that the development did not offend against the Draft Plan of Management and that the benefits viz. a marina less likely to pollute Pittwater, the surrender of the seventy four swing moorings, the provision of a bus bay, connection to the sewerage, etc. were such that the obvious visual disadvantages of a large commercial building on the foreshore and a large marina extending 150m into Pittwater were outweighed by the benefits.

I have come to the conclusion that notwithstanding the recommendation by the Council's Town Planner and his comprehensive, competent and exhaustive treatment of the application, the Council's decision that the application be refused was correct. In reaching my decision, I am influenced primarily by the circumstance that the development necessitates the construction of a two storey car park right on the foreshore between Pittwater Road and the water. In my opinion, the car park would be out of character with development in the area. Any person visiting the Reserve or travelling along Pittwater Road would see an enormous two storey car park stretching almost from one end of the site to the other. It is true that attempts would be made to landscape it but it is clear that it would not be hidden. Indeed, as I understand the evidence on behalf of the Developer, it is not that the car park facility is, or even could be, attractive. It is that the car parking facilities are a necessary part of commercial development

and if there is to be a commercial development on the subject site of the size proposed, it follows that there must also be a two storey car park.

In coming to my conclusions in this regard, I have not found it necessary to resolve the conflict between Mr Naylor, on the one hand, and Mr Griggs, on the other. I have seen the plans and I have visited the site. Upon the assumption that Mr Naylor's perspective is the more accurate, I remain of the opinion that consent should be refused. Mr Caldwell, on behalf of the Developer, has pointed to the fact that the criticism of the Objectors was based on the effect on users of Pittwater if the marina were extended and that they did not appear, at least until very recently to be overly troubled by the appearance of the car park. They have, however, stated their opposition to the appearance of the car park and it is a view which I share. In my opinion, the necessary presence of the two storey car park tips the scales in favour of the Council. Were it not for the car park, I would not have dismissed the application on the basis of the size or bulk of the commercial building and the extended marina were it not for th

e two storey car park. However, the application before the Court is not for a reduced marina and a reduced car park. Such an application would, if made, need to be fully assessed. I merely made the above observations to make it clear that it is the presence of the car park that has tipped the scales in favour of the Council.

For the abovementioned reasons, I am of the opinion that development consent should be refused and I order accordingly.