Stannards Marine Pty Ltd v North Sydney Council - [2022] NSWLEC 99

Land and Environment Court

New South Wales

Medium Neutral Citation: Stannards Marine Pty Ltd v North Sydney Council [2022] NSWLEC 99
Hearing dates: 2, 3, 4, 5, 6, 9, 10, 11 and 26 May 2022
Date of orders: 08 August 2022
Decision date: 08 August 2022
Jurisdiction: Class 1
Before: Preston CJ
Decision:
The Court orders:
In the relocatable shed appeal, Proceedings No 2022/36839:
(1) By 22 August 2022, the parties are to confer and if possible agree on the conditions of development consent for the relocatable shed and air quality pollution control system, which are to reflect the findings of this judgment, and file the agreed conditions.
(2) If the parties are not able to agree on the conditions of consent, by 22 August 2022, each party is to file in Court and serve on the other parties the party’s version of the conditions of consent.
In the floating dry dock appeal, Proceedings No 2021/63136:
(1) The appeal is dismissed.
(2) Development application No 57/2019 for the mooring and use of a floating dry dock and associated infrastructure works at 6 John Street, McMahons Point, is determined by refusal of consent.

Catchwords:
APPEAL – development application for the use of a relocatable shed at existing boatyard – structural integrity of shed – acoustic and air quality impacts –impact on land contamination – visual and heritage impacts – consistency with zone objectives
APPEAL – development application for the mooring and use of a floating dry dock at existing boatyard – visual and landscape character impacts – statutory provisions recognising harbour as public asset of national and heritage significance to be protected for public good, for existing and future generations – public trust – intergenerational equity – unacceptable visual and landscape character impacts

Legislation Cited:
Environmental Planning and Assessment Act 1979 ss 4.15, 4.16, 8.7
Environmental Planning and Assessment Regulation 2021 cl 32(3) of Schedule 3
Interpretation Act 1987 cl 30A
North Sydney Development Control Plan 2013 sections 10, 13 of Part C, section 13 of Part B
North Sydney Local Environmental Plan 2013 cll 2.3, 2.4, 5.10, 6.8, Part 1 of Schedule 5
Protection of the Environment Administration Act 1991 s 6
State Environmental Planning Policy (Biodiversity and Conservation) 2021 cll 10.1, 10.4, Part 10.2, Chapter 10
State Environmental Planning Policy (Resilience and Hazards) 2021 cl 4.6
Sydney Harbour Foreshores and Waterways Development Control Plan 2005 Parts 1, 3, 4
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Cases Cited:
Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190
Bushfire Survivors for Climate Action Inc v Environment Protection Authority (2021) 250 LGERA 1; [2021] NSWLEC 92
Illinois Central Railroad v Illinois 146 US 387 (US Sup Ct, 1892)
Re Sydney Harbour Collieries Co (1895) 5 Land Appeal Court Reports 243
Rose Bay Marina Pty Ltd v Woollahra Municipal Council [2013] NSWLEC 1046
Society for the Protection of the Harbour Ltd v Town Planning Board [2003] 2 HKLRD 787; [2003] HKCFI 220
Stannards Marine Pty Ltd v North Sydney Council (2021) 250 LGERA 318; [2021] NSWLEC 66
Telstra Corp Ltd v Hornsby Shire Council (2006) 146 LGERA 10; [2006] NSWLEC 133
Tenacity Consulting v Warringah Council [2004] NSWLEC 140
Town Planning Board v Society for the Protection of the Harbour Ltd (2004) 7 HKCFAR 1; [2004] HKCFA 27
Willoughby City Council v Minister Administering the National Parks and Wildlife Act (1992) 78 LGERA 19

Texts Cited:
Tim Bonyhady, ‘A Usable Past: The Public Trust in Australia’ (1995) 29 Environmental & Planning Law Journal 329
Berry Fong Chung Hsu, ‘A Public Trust Doctrine for Hong Kong’ (2011) 15 New Zealand Journal of Environmental Law 89
Joseph L Sax, ‘The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention’ (1969-1970) 68 Michigan Law Review 484
Joseph L Sax, Defending the Environment: A Handbook for Citizen Action (Vintage Books, 1971)
Catherine Redgwell, “Principles and Emerging Norms in International Law: Intra- and Inter- generational Equity” in CP Carlarne, KR Gray and R Tarasofsky (eds) The Oxford Handbook of International Climate Change Law (OUP, 2016) 185
WH Rodgers, ‘Bringing People Back: Toward a Comprehensive Theory of Taking in Natural Resource Law’ (1982) 10 Ecology Law Quarterly 205
E Brown Weiss, “Intergenerational Equity: A Legal Framework for Global Environmental Change” in E Brown Weiss (ed) Environmental Change and International Law: New Challenges and Dimensions (UN University Press, 1992)
E Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony, and Inter-generational Equity (UN University Press, 1988)

Category: Principal judgment
Parties: Stannards Marine Pty Ltd (Applicant)
North Sydney Council (Respondent)
Friends of Sydney Harbour (Objector 1)
The Owners of Strata Plan 63626 (Objector 2)
Dr Ronald Blombery (Objector 3)
The Owners of Strata Plan 48674 (Objector 4)
The Owners of Strata Plan 48675 (Objector 5)
Waverton Public Lands and Waters Protection Association Inc (Objector 6)
Mr Michael Stevens (Objector 7)
Representation:
Counsel:
Mr A Galasso SC with Ms J Reid (Applicant)
Mr T To (Respondent)
Ms L Sims (Objectors 2, 3, 4, 5, 7)
Mr J Molyneux (agent) (Objector 1)
Mr B Donald (agent) (Objector 6)
Solicitors:
Alice Spizzo Advisory (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 2021/63136 & 2022/36839
Publication restriction: Nil

Judgment

The proposed redevelopment of a boatyard

Stannards Marine Pty Ltd (Stannards) own land known as 6 John Street, McMahons Point (the land) and lease other land and waters in Berrys Bay, part of Sydney Harbour (the water lease area). Noakes Group Pty Ltd (Noakes) operates a boatyard on the land and in the water lease area. There are two existing approvals, development consent 1164/90 granted by North Sydney Council under Part 4 of the Environmental Planning and Assessment Act 1979 (EPA Act) for a boat building and repair facility on the land (the 1990 consent) and an approval issued by the Maritime Services Board (MSB) under Part 5 of the EPA Act on 15 November 1990.

Noakes Boatyard – Figure 2 Aspinall’s Visual Impact Assessment, p 2.

Noakes wishes to modify its activities at the existing boatyard in two ways. First, it wishes to moor and use an existing floating dry dock it has already purchased in the water lease area. The existing floating dry dock is currently moored in White Bay, Balmain. Noakes will use the floating dry dock to carry out repair and maintenance of boats, particularly of larger vessels not as easily accommodated in the existing boatyard, including on the slipway. On 5 March 2019, Stannards lodged Development Application 57/2019 for the mooring and use of the floating dry dock in the water lease area.
Second, Noakes wishes to use an existing relocatable shed in new locations at the existing boatyard, within which it will carry out repair and maintenance of smaller vessels. The relocatable shed will be modified to connect to a new air quality pollution control system to reduce air pollution emanating from the relocatable shed. The key feature of the air quality pollution control system is a carbon filtration system which will be connected to the relocatable shed and three other sheds through piping. On 23 December 2021, Stannards lodged Development Application 456/21 to use the existing relocatable shed and to install the air quality pollution control system in the relocatable shed and existing sheds 1, 3 and 4.

The appeals against the refusals of the proposed redevelopment

On 1 September 2020, the Sydney North Planning Panel refused the development application for the floating dry dock. On 4 March 2021, Stannards appealed to this Court under s 8.7 of the EPA Act (the floating dry dock appeal). The development application for the floating dry dock has been amended subsequently. On 9 February 2022, Stannards appealed to the Court under s 8.7 of the EPA Act against the deemed refusal of the development application for the relocatable shed and the air quality pollution control system (the relocatable shed appeal).
The development for which development consent is sought in the floating dry dock appeal involves designated development. One of the types of development that cl 32(3) of Schedule 3 to the Environmental Planning and Assessment Regulation 2021 describes as designated development is development for the purposes of a boat repair or maintenance facility. A “boat repair or maintenance facility” is defined in cl 32(4) to mean “a facility at which vessels are repaired or maintained out of the water and includes slipways, hoists or other facilities”. The mooring and use of the floating dry dock to repair or maintain vessels in the water lease area is development for the purposes of a boat repair or maintenance facility.
Various objectors to this designated development applied and were held to be entitled to be heard on the floating dry dock appeal: Stannards Marine Pty Ltd v North Sydney Council (2021) 250 LGERA 318; [2021] NSWLEC 66. These objectors were the owners of nearby residential properties who might be adversely affected by the proposed development. They were the Owners of Strata Plan 63626, the Owners of Strata Plan 48674, the Owners of Strata Plan 48675, Mr Michael Stevens and Mr Ronald Blombery (the resident objectors). They were represented at the hearing by Ms L Sims of counsel. Other objectors were two environmental non-governmental organisations, the Friends of Sydney Harbour (FOSH) and the Waverton Public Lands and Waters Protection Association Inc (WPLWP). Mr Molyneux and Mr Donald acted as agents for these organisations respectively.
The floating dry dock appeal was heard together with the relocatable shed appeal.

The disposal of the appeals

I have determined to uphold the relocatable shed appeal and grant development consent to the use of the relocatable shed and the installation of the air quality pollution control system, subject to conditions. I have determined to dismiss the floating dry dock appeal and refuse development consent to the development application to moor and use the floating dry dock in the water lease area. I will deal first with the relocatable shed appeal before I deal with the floating dry dock appeal. Before discussing either appeal, however, I will summarise the applicable statutory instruments.

The applicable environmental planning instruments and development control plans

The land and the water lease area are subject to different environmental planning instruments. The land is subject to North Sydney Local Environmental Plan 2013 (NSLEP). NSLEP zones the landward side of the land IN4 Working Waterfront but leaves the jetties and the saw-toothed concrete dock built over the water unzoned. The water lease area is subject to State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP). This SEPP zones the waters of Berrys Bay, including the water lease area, W1 – Maritime Waters. The W1 zoning extends beyond the water and over the area of the land that is unzoned under NSLEP.
Development for the purpose of “boat building and repair facilities” is permitted with consent on land zoned IN4 under NSLEP (cl 2.3 and Land Use Table at the end of Part 2 of NSLEP). Any development may be carried out with development consent on the unzoned land under NSLEP (cl 2.4(1) of NSLEP). Development for the purpose of “boat repair facilities” is permitted with consent on land and waters zoned W1 under the Biodiversity and Conservation SEPP (cl 10.15 and the Table of the Biodiversity and Conservation SEPP).
Different development control plans also apply to the differently zoned land. For the land that is zoned IN4 and the unzoned land under NSLEP, the provisions of North Sydney Development Control Plan 2013 (NSDCP) apply.
For the land that is zoned W1 under the Biodiversity and Conservation SEPP, which includes the area of the land that is unzoned under NSLEP, a former development control plan continues to apply. Chapter 10 of the Biodiversity and Conservation SEPP contains provisions transferred from the former Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (Sydney Harbour SREP). The transfer of these provisions of the Sydney Harbour SREP did not affect the operation of the provisions and they are to be construed as if they had not been transferred: cl 1.4 of the Biodiversity and Conservation SEPP and cl 30A of the Interpretation Act 1987. At the time of transfer, Sydney Harbour Foreshores and Waterways Development Control Plan 2005 (Foreshores and Waterways Area DCP) was the adopted development control plan, which contained more detailed provisions to accompany Sydney Harbour SREP. The Foreshores and Waterways Area DCP applies to the waterways and adjoining land within the Foreshores and Waterways Area identified on the maps in Chapter 10 of the Biodiversity and Conservation SEPP. The transfer of the provisions of Sydney Harbour SREP to Chapter 10 of the Biodiversity and Conservation SEPP did not repeal the Foreshores and Waterways Area DCP, so that it continues to apply to the land zoned W1 under the Biodiversity and Conservation SEPP.
I will address the particular controls of these instruments and development control plans, insofar as they are relevant, when I evaluate the contentions.

The relocatable shed appeal

The relocatable shed appeal contentions

As is often the case, the Council’s contentions were refined during the course of the hearing from those set out in the Council’s statement of facts and contentions dated 28 March 2022. By the close of the hearing of the relocatable shed appeal, the Council pressed four contentions:

the structural integrity of the relocatable shed;

the acoustic impacts of the relocatable shed;

the air quality impacts of the relocatable shed; and

the impacts of the relocatable shed on land contaminated land.

The structural integrity of the relocatable shed

The relocatable shed is an existing shed. As the name suggests, the shed is able to be moved. The amended plans (drawings A003 Issue 11; A004 Issue 14; A006 Issue 10; A010 Issue 7; A011 Issue 7; and A012 Issue 4) identify the two locations between which the relocatable shed is permitted to be moved. When in use, the relocatable shed will be located on the existing hardstand to the north of Shed 1. When not in use, the relocatable shed will be located on the existing hardstand between Sheds 2 and 3.
The amended plans (drawing A020 Issue 7) show the shape of the shed to be cuboid with a triangular prism roof. The shed is 19.66m long and 7.25m wide, with the walls having a height of 4.8m to the pitch set out of the roof and a further 0.985m to the ridge of the roof. The roof and a triangular section at each end wall, as well as the upper sections of the long sides of the shed, are Colorbond sheeting. Beneath the Colorbond sheeting on the long sides and the triangular section at each end wall, retractable PVC curtains will be installed. The raising of the PVC curtains, especially in the end walls, will allow boats to be moved in and out of the relocatable shed. There will be a PVC pedestrian egress door integrated into the façade of the PVC curtain at each end wall.
On the end wall that will be the southern end wall when the relocatable shed is in its use position, there will be a socket into which will be inserted a pipe connecting the relocatable shed to Shed 1 as part of the air quality pollution control system. The carbon filtration system itself, an integral part of the air quality pollution control system, will be installed on two precast concrete raft foundations (4000 x 6300mm) to the north of Shed 3 in the vicinity of the existing wash bay. The pipes will connect the relocatable shed to Shed 1, then by further pipes to the carbon filtration system. Separate pipes will connect Sheds 3 and 4 to the carbon filtration system.
The relocatable shed only needs to be connected by the pipe to the carbon filtration system when it is being used in its use position to the north of Shed 1. There is no utility in connecting the relocatable shed to the carbon filtration system when it is in the not-in-use position between Sheds 2 and 3.
Stannards engineer, Mr Zlatko Gashi, gave evidence explaining the structural adequacy and integrity of the relocatable shed as now specified in the amended drawings. The shed will be sufficiently affixed or weighted so as to avoid being blown away during high wind conditions. The Council’s evidence was not to the contrary.
Proposed conditions of consent will require Stannards to certify the structural adequacy and integrity of the relocatable shed. Stannards proposed an operational condition, condition C12, that would need to be satisfied prior to the issue of a construction certificate:

“C12. An updated detailed structural engineering report is to be provided identifying and certifying:
(a) the structural suitability of the Relocatable Shed and its suitability for its proposed modification, use and relocation between the wash bay and north of Shed 1 and its affixation;
(b) the recommended strengthening works for structural compliance identified in the M+G Consulting report dated 27 April 2022; and
(c) any required additional structural and strengthening measures to accommodate any air quality encapsulation measures and acoustic mitigation treatments or structures identified in condition AA1 above.”

The Council had proposed a similar condition, although as a deferred commencement condition (proposed condition AA3). I see no need for the structural engineering report to be submitted before the development consent can operate; rather it will be sufficient to submit it before the issue of a construction certificate.
I consider that the amended drawings and specifications for the relocatable shed, the engineer’s evidence and the requirement for a structural engineers report will be sufficient to demonstrate the structural adequacy and integrity of the relocatable shed.

The acoustic impact of the relocatable shed

The enclosure of the relocatable shed by Colorbond sheeting and PVC curtains is intended to address the air quality impacts, not the acoustic impacts, of the activities conducted in the relocatable shed. Mr Gauld, Stannards’ acoustic expert, stated that an acoustic assessment of the relocatable shed has not been undertaken. He accepted that in order to keep the acoustic impacts manageable, certain noisy activities should not be conducted in the relocatable shed. To this end, Stannards identified in the Plan of Management dated 22 December 2021 and in their proposed conditions of consent the activities that should be permitted to be carried out in the relocatable shed and the activities that should not be permitted to be carried out, including sandblasting.
Stannards submitted that the noise emitted from the activities conducted in the relocatable shed would be regulated by both the existing noise conditions in the 1990 consent as well as new conditions of consent for the relocatable shed.
As to the existing conditions, Stannards noted that all activities carried out in the existing boatyard, including any activities that would be undertaken in the relocatable shed will continued to be regulated by the noise conditions of the 1990 consent. The approval of the use of the relocatable shed will modify the existing development consent to this extent, but it does not change the existing noise limits imposed by the 1990 consent.
Condition D34(i) sets the general noise levels for the operation of the boatyard. In part, condition D34(i) provides:

“Save for the activities provided for in and conducted in accordance with Condition D34B, the operation of the development should not generate noise levels measured at the boundary of any neighbouring residential developments which exceed:

- At John Street L10 = 57 dB(A)
- At Dumbarton Street L10 = 45 dB(A)
- At Munro Street L10 = 49 dB(A)”

As stated, condition D34(i) is subject to condition to D34B, which provides:

“(i) There shall be no sand-blasting or spray-painting of vessel hulls other than in the worksheds provided for that purpose, save where the vessel to be sand-blasted or spray-painted will not fit in the sheds or is incapable of being lifted into those sheds by the travel lift. Such vessels shall be spray-painted or sand-blasted only on the northern slipway and only once adequate screening as set out in a letter from Richard Dinham to the Council dated 15 October 1990 is provided.
(ii) Sand-blasting on the northern slipway shall not be carried out on Saturdays and shall be carried out on a maximum of five (5) days per calendar month or, alternatively, sixty (60) days per annum and only between the hours of 9.00am to 3.00pm, Mondays to Fridays.
(iii) Steel grinding on the northern slipway shall not be carried out on Saturdays and shall be carried out on a maximum of five (5) days per calendar month or, alternatively, sixty (60) days per annum and only between the hours of 8.00am to 4.00pm, Mondays to Fridays. For the purposes of this Condition D34B(iii) ‘steel grinding’ shall mean steel grinding carried out on one boat, albeit intermittently for a period in excess of one hour.”

The conditions of the 1990 consent also required the applicant to undertake noise abatement measures. Condition D34(i) generally required:

“The Applicant shall undertake noise abatement measures for the workshops and worksheds so as to minimise undue disturbance to the surrounding area.”

Condition D34C deals with the Handibin bay:

“D34C Handibin Bay is to be acoustically treated to muffle and contain noise. All handibin emptying is to be carried out during permitted operating hours.”

Condition 34D requires the workshops and worksheds to be acoustically treated:

“D34D The workshops and worksheds are to be acoustically treated. Walls and ceilings to be treated so as to achieve compliance with the limits contained in Condition D34(i). Non-opening windows are to be fitted to worksheds and worksheds are only to be operated with main doors closed.”

As to the new conditions, Stannards proposed conditions that should be imposed if development consent were to be granted to the use of the relocatable shed.
First, Stannards accepted a deferred commencement condition in Part A that the Council had proposed requiring an acoustic assessment of not only the relocatable shed but also of noise emissions under current operations on the entire site. Proposed condition AA1 requires an acoustic assessment to be undertaken to identify the required acoustic upgrading of the relocatable shed for certain activities proposed to be conducted in the relocatable shed. Proposed condition AA1 provides:

“Prior to the issue of a construction certificate, an acoustic assessment is to be undertaken to identify the required acoustic upgrading of the relocatable shed for the following activities, which are proposed in the Relocatable Shed:
(a) spray painting and soda blasting of vessels (including preparation) to isolated damaged areas which are otherwise too large to fit in an existing shed (up to a maximum area of 10m², and encapsulated using tarpaulins);
(b) anti-foul application (administered by roller, brush or airless spray only, and must be encapsulated/screened);
(c) topside polishing of vessels;
(d) shaft and propeller works;
(e) internal works to vessels;
(f) shipwright works;
(g) fabrication works; and
(h) electrical works.”

Second, Stannards proposed an operational condition A4 requiring the carrying out of specified noise abatement measures in order to satisfy various conditions of the 1990 consent and the Environment Protection Licence Notice 10893 (EPL Notice) issued by the Environment Protection Authority (EPA). The intent of this condition was to reduce the noise emissions from the whole site.
Third, Stannards proposed an operational condition G7, requiring Stannards, prior to the issue of an occupation certificate, to prepare and submit to the Council for approval a detailed Operational Management Plan (OMP) for the use of the relocatable shed (RS). The Operational Management Plan is to clearly demonstrate:

“(a) how the RS will be moved between the two proposed locations, being the designated work position and the wash bay – ie whether by hand or mechanically or otherwise, and complete details of the means and method of relocating the RS including a swept path diagram, noise levels from mechanical devices and the duration of the moving process;
(b) how the RS will be transported between locations ‘carefully and without overstressing the frame’. The proposed method must be certified by a structural engineer;
(c) clear and specific meteorological criteria, particularly with regard to wind speeds and wind forecasts, to be used prior to moving the RS between locations, to ensure that the RS is not moved or used during periods of potential high wind;
(d) full details and specifications of all tie-down connections in both locations, approved by a structural engineer;
(e) hull blasting and water pressure cleaning of boats is only to occur in the approved existing wash bay. The OMP must provide that hull blasting and water pressure cleaning of boats must not occur outside the approved Wash Bay and provide a schedule of activities which regulates the use of the Wash Bay when it is being used to store the relocatable shed;
(f) the OMP must specify how blasting/water pressure cleaning of boats can occur in the approved wash bay when it is proposed to be occupied by the relocatable shed and a schedule of activities which prescribe when hull blasting will occur in the wash bay if vessels cannot [fit] inside the relocatable shed when it is located in the wash bay;
(g) a detailed regular maintenance schedule to ensure the durability and safety of the shared structure, approved by a structural engineer.”

Fourth, Stannards proposed another operational condition I2, which requires:

“I2 The ongoing use of the premises approved under this consent must comply with all conditions pertaining to noise and vibration specified in this consent.”

Fifth, Stannards proposed two operational conditions, conditions K1 and K2, specifying the activities that are and are not permitted to be undertaken in the relocatable shed. The activities Stannards proposed should be permitted by condition K1 are:

“(a) spray painting of vessels (including preparation) to isolated damaged areas which are otherwise too large to fit in a shed (up to a maximum area of 10m², and encapsulated using tarpaulins;
(b) anti-foul application (administered by roller, brush, or airless spray only, and must be encapsulated/screened);
(c) topside polishing of vessels;
(d) shaft and propeller work;
(e) internal works to vessels;
(f) shipwright work;
(g) sodablasting;
(h) grinding conditions;
(i) any other activity which has a SWL [sound weighted level] of 86 dB(A) or less; and
(j) electrical works.”

It can be seen that this list of activities differs from the list of activities that Stannards had proposed in Condition AA1. The list in condition K1 omits fabrication works but adds sodablasting, grinding works and any other activity which has a sound weighted level of 86 dB(A) or less.
The activities Stannards proposed should not be permitted by condition K2 was limited to “sandblasting”.
Sixth, Stannards proposed noise conditions, based on the noise conditions in the existing 1990 consent, which would limit the noise that could be emitted from activities carried out in the relocatable shed:

“K3 Noise emitted from the Relocatable Shed and/or the Air Quality Pollution Control System, when measured or calculated the nearest noise sensitive receivers as an LAeq (15 minute) are not to exceed:
(a) 57 dB(A) at John Street;
(b) 35 dB(A) at Dumbarton Street; and
(c) 49 dB(A) at Munro Street.
The LAeq (15 minute) is to include any correction for the annoying noise characteristics in accordance with Fact Sheet C of the Noise Policy for Industry.
The Relocatable Shed when in use is restricted to the location identified on the plan annexed and marked ‘B’.
K4 The use of the Northern Slipway must be in accordance with Conditions 34B(i),(ii) and (iii) of the 1990 Consent.
K5 The Handibin Bay and the Existing Sheds are to be acoustically treated in compliance with Conditions 34C and 34D of the 1990 Consent.”

Seventh, Stannards proposed, in its schedule of suggested modifications of the 1990 consent, a new condition of consent for the relocatable shed:

“Prior to the use of the relocatable shed with any machinery or equipment capable of generating a sound power level of greater than 85 dBA, the relocatable shed shall be altered to include retractable PVC curtains on the existing open sides and Colorbond sheeting to provide a roof enclosure.
Use of the relocatable shed with any plant or machinery capable of generating a sound power level greater than 85 dBA shall be used only where any opening to the relocatable shed has an area of not less than 2m² and not more than 4m².”

Stannards submitted that together, the existing noise conditions of the 1990 consent and the new noise conditions of the consent for the relocatable shed, will ensure that noise emitted from the relocatable shed will be acceptable.
The Council contested that Stannards had established that the noise emitted from the relocatable shed will be acceptable.
The Council first took issue with some of the activities that Stannards proposed should be permitted to be undertaken in the relocatable shed. These were sodablasting and fabrication works identified in proposed condition AA2 and sodablasting and grinding conditions proposed in condition K1. Council submitted that fabrication works had been excluded as being unacceptable by the parties’ acoustic experts. Sodablasting had not been nominated as an activity in the development application for the relocatable shed and has not been acoustically assessed. “Grinding conditions” lacks specificity as an activity and has the potential to be unacceptably noisy.
The Council disagreed with many of Stannards’ proposed conditions of consent. The Council had proposed other deferred commencement conditions in addition to proposed condition AA1 requiring an acoustic assessment of the relocatable shed. The Council had proposed condition AA2 requiring an acoustic assessment report of noise emissions from the entire site and any management strategies/noise controls to limit noise emissions from the site in order to comply with condition D34(1). Stannards proposed deleting this deferred commencement condition as the operation of the existing boatyard is currently required to comply with the noise conditions of the 1990 consent.
The Council proposed a deferred commencement condition AA5 requiring an operational management plan for the relocatable shed. Stannards proposed that such a condition should be an operational condition, not a deferred commencement condition, and should be complied with prior to the issue of an occupation certificate. This is Stannards’ condition G7. The Council, somewhat inconsistently, had also proposed condition G7 requiring the submission and approval of an operational management plan for the use of the relocatable shed prior to the issue of an occupation certificate.
The Council disputed Stannards’ proposed noise conditions K1 to K4. The Council disagreed with the activities that Stannards had identified could be undertaken in the relocatable shed in condition K1 and that should not be permitted in condition K2. The Council contended that sodablasting and grinding conditions should not be permitted.
The Council also disagreed with the noise limits proposed by Stannards in condition K3. The Council’s proposed noise limits were:

“(a) 44 dB(A) at John Street
(b) 35 dB(A) at Dumbarton Street; and
(c) 39 dB(A) at Munro Street”

The Council had proposed conditions M1 and M2 modifying the noise conditions of the 1990 consent, but Stannards had deleted these conditions. The Council’s proposed condition M1 modified the noise levels specified in condition D34(1) to convert them from being L10 levels to LAeq levels. The acoustic experts had agreed that this conversion involved reducing the L10 levels specified in condition D34(1) by 10 dB(A). There was also an error in the noise level specified in the 1990 consent for John Street, being 57 dB(A) rather than 54 dB(A). The Council corrected this error by specifying in proposed condition M1 the noise level for John Street as being 10 dB(A) less than 54 dB(A), ie 44 dB(A).
The Council’s proposed condition M2 modified condition D34D of the 1990 consent to require the workshops and worksheds to be acoustically treated to comply with the noise limits in condition D34(i) as modified.
Stannards sought to delete the Council’s proposed conditions M1 and M2 as it had separately proposed conditions modifying the 1990 consent. Amongst the modifications suggested, Stannards proposed first that condition D34 be amended to add a new subcondition after D34(i):

“The use of the relocatable shed shall not generate noise in excess of 43 dB(A) at John, Dumbarton and Munro Streets.”

Second, Stannards proposed that condition D34B(i) be replaced with:

“There shall be no sand-blasting, soda blasting or spray-painting of vessel hulls other than in the workshops and the relocatable shed provided for that purposes, save where the vessel to be sand-blasted, soda blasted or spray-painted will not fit in those sheds or is incapable of being lifted into those sheds by the travel lift. Such vessels shall be spray-painted or sand-blasted only on the northern slipway and only once adequate screening as set out in a letter from Richard Dinham to the Council dated 15 October 1990 is provided.”

Third, Stannards proposed that condition D34D be replaced with:

“The workshops and worksheds are to be acoustically treated. Walls and ceilings to be treated so as to achieve compliance with the limits contained in Condition D34(i). Non-opening windows are to be fitted to worksheds, and worksheds are only to be operated with any opening to the worksheds having an area of not less than 2m² and not more than 4m²whenever plant or machinery is used that is capable of generating a sound power level greater than 85 dBA.”

The Council disagreed with these suggested modifications of the noise conditions of the 1990 consent. As to the inclusion of a new condition after D34(1) that the use of the relocatable shed is not to emit noise in excess of 43 dB(A) at John, Dumbarton and Munro Streets, the Council submitted that this was inconsistent with the acoustic evidence. Condition D34(1) sets a whole-of-site noise control and it is inappropriate to specify a particular noise control for the use of the relocatable shed. The Council submitted that the only changes that should be made are first, to condition D34(1) to convert the L10 levels to LAeq levels (by deducting 10 dB(A)) and correct the error in the noise level for John Street and secondly, to amend condition D34D to require the workshops and worksheds to be acoustically treated to comply with the noise limits in condition D34(1) as modified.
The Council disagreed with Stannards’ suggested replacement of condition D34B(1) as being inconsistent with the acoustic evidence. The suggested replacement condition would permit sandblasting and sodablasting in the relocatable shed but the Council submitted these activities should not be permitted, as they would not be permitted by conditions K1 and K2 of the consent for the relocatable shed. The acoustic experts had agreed that sandblasting should not occur in the relocatable shed and has not been acoustically assessed. Sodablasting was not proposed in the development application and has not been acoustically assessed.
The Council disagreed with Stannards’ suggested replacement of condition D34D. The amendment proposed, that the worksheds are only to be operated with “any openings to the worksheds having an area of not less than 2m² and not more than 4m² whenever plant or machinery is used that is capable of generating a sound power level greater than 85 dBA”, has not been acoustically assessed. The Council also opposed Stannards’ suggested new condition requiring the installation of retractable PVC curtains on the relocatable shed and that any opening to the relocatable shed have an area of not less than 2m² and not more than 4m² before any plant or machinery is used in the relocatable shed capable of generating a sound power level greater than 85 dB(A). The Council noted that Mr Gauld, Stannards’ acoustic expert, had acknowledged that no acoustic assessment has been undertaken of the relocatable shed, let alone an acoustic assessment with the retractable PVC curtains or the restricted area of the opening suggested.
I consider that the acoustic impacts of the use of the relocatable shed will be acceptable if appropriate conditions of consent are imposed. I will identify what I consider are the matters that should be addressed by the conditions of consent. The parties can submit revised conditions of consent incorporating these matters.
First, the location at which the relocatable shed is permitted to be used will be as specified in the amended plans. These plans fix the source of noise emissions from the relocatable shed. The general condition of consent requiring the development to be carried out in accordance with the plans will ensure that the relocatable shed can only be used in the specified location. This can be confirmed by a specific condition, such as proposed condition K3, that the relocatable shed when in use be restricted to the location shown on the plan.
Second, an acoustic assessment must be undertaken to identify the required acoustic upgrading of the relocatable shed for the activities that will be permitted to be carried out in the relocatable shed. This acoustic assessment should be required by a deferred commencement condition, such as proposed condition AA1. It should not be undertaken pursuant to an operational condition of consent prior to the issue of a construction certificate. Any acoustic upgrading identified in the acoustic assessment may well go beyond the installation and use of the proposed retractable PVC curtains and the restriction of the area of any opening to be not less than 2m² and not more than 4m². Another condition of consent should require the relocatable shed to be acoustically upgraded to satisfy all recommendations in the acoustic assessment. This upgrade should be required before the issue of an occupation certificate and hence any use of the relocatable shed.
Third, the activities permitted to be carried out in the relocatable shed should not include fabrication works, sodablasting, sandblasting, water/hull blasting activities, or grinding activities. All of these activities should be excluded from the list of activities permitted to be carried out in the relocatable shed by condition K1 and should be included in the list of activities that are not permitted to be carried out in the relocatable shed by condition K2. These activities should also be excluded from the list of activities that are to be the subject of the acoustic assessment required by deferred commencement condition AA1.
Fourth, a detailed operational management plan for the use of the relocatable shed should be prepared and submitted to the Council for approval prior to the issue of an occupation certificate, as proposed in condition G7. The operational management plan should demonstrate the matters specified in proposed condition G7.
Fifth, the noise limits should be those specified in the noise conditions in the 1990 consent, adjusted to be LAeq levels instead of LA 10 levels, and to correct the error for the noise level for John Street. These noise levels will be:

44 dB(A) at John Street;

35 dB(A) at Dumbarton Street; and

39 dB(A) at Munro Street.

Condition D34(i) of the 1990 consent should be modified by a condition of consent for the relocatable shed to accord with these noise levels. In addition, a particular condition, such as proposed condition K3, should be imposed limiting the noise emitted from the relocatable shed and the air quality pollution control system, when measured and calculated at the nearest noise sensitive receivers, to be the same levels. Condition D34D of the 1990 consent should be modified to require the walls and ceilings to be treated so as to achieve compliance with the limits contained in condition D34(i) as modified by the conditions of the consent for the relocatable shed.
Sixth, the existing conditions of the 1990 consent, other than condition D34(1) and condition D34D, which should be amended as I have just indicated, should continue to apply to regulate noise emissions from activities carried out on the whole site, including the use of the relocatable shed. There may be no harm in reinforcing the need to comply with the existing requirements in conditions 34B(i), (ii) and (iii), 34C and 34D of the 1990 consent, such as is proposed in conditions K4 and K5.
However, I do not consider that Stannards’ suggested modifications of the existing conditions to require undertaking of the noise abatement measures required by the 1990 consent and the EPL notice, should be made. Stannards and Noakes are under an existing legal obligation to comply with both the 1990 consent and the EPL notice. If Stannards or Noakes has failed to comply fully with either the development consent or the EPL notice, the responsible regulatory authority, the Council in the case of the 1990 consent, and the EPA in the case of the EPL notice, has the function of enforcing compliance by various means. These means include issuing an administrative order under the relevant statute, such as a development control order under the EPA Act, bringing civil enforcement proceedings to restrain and remedy any breach of the relevant statute by failing to comply with the development consent or EPL notice, or bringing criminal proceedings for an offence against the relevant statute by failing to comply with the relevant consent or EPL notice. Such action could have been taken at any time after a breach has occurred and can still be taken now for any ongoing breach. It is not necessary to impose a condition on the consent for the relocatable shed or to modify the conditions of the 1990 consent to require compliance with the 1990 consent or the EPL notice.
For similar reasons, I do not consider the Council’s deferred commencement condition requiring an acoustic assessment of noise emissions from the entire site and to identify management strategies and noise controls to limit noise emissions to bring the site into compliance with the conditions of the 1990 consent, to be appropriate. It is the function of the Council, as the relevant regulatory authority under the EPA Act, to ascertain whether the existing boatyard is being carried out in accordance with the 1990 consent. If the Council ascertains, including by undertaking the acoustic assessment it has suggested in the deferred commencement condition, that the existing boatyard is being carried out in breach of the development consent, it can take the appropriate enforcement action.
I consider that if conditions of consent are imposed addressing the matters I have raised the acoustic impacts of the use of the relocatable shed will be acceptable.

The air quality impacts of the relocatable shed

As I have earlier described, the relocatable shed is proposed to be fitted with retractable PVC curtains to enclose the relocatable shed when it is in use and to connect the shed by a pipe to Shed 1 as part of the proposed air quality pollution control system. The Council supported the installation of the air quality pollution control system, not only in the relocatable shed but also in Sheds 1, 3 and 4, as this will reduce the air quality impacts from the existing boatyard. The Council’s concern was that Stannards should demonstrate that the stated operation parameters for the Fowlerex Air Quality Pollution Control System can be achieved before development consent is granted.
The parties’ air quality experts, Mr Galvin for Stannards, and Mr Kellaghan for the Council, agreed in their joint expert report dated 13 April 2022 that the use of the relocatable shed and the air quality pollution control system will result in acceptable air quality impacts. They recommended the imposition of conditions of consent to ensure that air quality impacts are appropriately managed.
In light of the air quality experts’ evidence, the Council proposed a series of conditions, incorporating the air quality experts’ recommended conditions as well as other conditions, to address the potential air quality impacts. To ensure the initial and ongoing effectiveness of the air quality pollution control system, the Council proposed conditions requiring the verification and ongoing testing of the air quality pollution control system as well as conditions regulating the use of the relocatable shed and the existing sheds in order to mitigate air quality impacts (proposed conditions I6 to I21).
Stannards agreed to the imposition of the Council’s suggested air quality conditions, although it suggested some minor wording changes. The Council agreed with some but disagreed with others of the suggested wording changes. I will deal with this debate in a moment.
The EPA provided, by letter dated 16 March 2022, its general terms of approval for the use of the relocatable shed and the use of a carbon filtration system, part of the air quality pollution control system. A number of these conditions address air quality impacts, including potentially offensive odour (conditions L4.1 and L4.2), dust (condition O3.1), emissions from blasting and painting activities (conditions O4.1 to O4.5) and undertaking an Air Quality Risk Assessment (condition U2.1). These general terms of approval would be imposed as conditions of consent for the relocatable shed and air quality pollution control system (proposed condition J1).
I consider that the air quality impacts of the use of the relocatable shed can be adequately managed by the imposition of appropriate conditions of consent. Again, I will identify the matters that should be addressed in the conditions of consent. The parties can submit revised conditions of consent incorporating these matters.
First, conditions of consent should fix the location at which the relocatable shed can be used to be that shown on the amended plans north of Shed 1. This confines the source of air quality impacts from the relocatable shed to that location.
Second, conditions should ensure installation of the PVC curtains and the encapsulation/enclosure of the relocatable shed as well as the physical connection of the shed to the piping of the air quality pollution control system, whenever the relocatable shed is in use (such as is proposed in condition I6). Furthermore, when activities likely to generate air quality impacts are being undertaken in the relocatable shed, the shed should be maintained at negative pressure and with air extracted into Shed 1 to allow treatment of emissions by the air quality pollution control system (as proposed in conditions I13 and I14).
Third, conditions should ensure the preparation and submission to the Council of a verification testing plan which outlines how the effectiveness of the air quality pollution control system will be tested against the performance guarantees for the Fowlerex Air Quality Pollution Control System and then the submission to the Council of a verification testing report which outlines the results of the testing and demonstrates that the air quality pollution control system does achieve these performance guarantees (proposed conditions I7 and I8).
Fourth, the conditions should limit the activities that may be carried out in the relocatable shed to those that are permitted to occur in the relocatable shed. I have earlier found the activities that should and should not be permitted in the relocatable shed. These will be identified in the revised conditions K1 and K2. The conditions should provide that the relocatable shed cannot be used for the activities identified as being permitted to occur in the shed until the testing and verification of the air quality pollution control system has been approved by the Council (such as is proposed in condition I10).
Fifth, the conditions should require the ongoing performance of the air quality pollution control system to be tested annually and in response to any complaint about odour or air quality emissions (such as is proposed in condition I11). The testing report should be provided annually and within 1 week of a complaint being made. This is the timeframe suggested by the Council. Stannards had suggested a longer period of 28 days after a complaint has been received. The Council disagreed, saying that this would delay the timely response to a complaint. I agree with the Council’s shorter period of 1 week.
Sixth, the conditions should address the activities that can be carried out in the existing Sheds 1, 3 and 4 and the conditions under which the activities can be carried out in those sheds in order to minimise cumulative air quality impacts. Proposed conditions I12, I13, I15 and I16 have this purpose. Another condition should limit certain air polluting activities, such as sandblasting and spray painting, to be carried out only in one single shed at a time so as to ensure the effective performance of the air quality pollution control system (such as is proposed in condition I20).
Seventh, the conditions of consent should address the design and operation of the air quality pollution control system. These will include some of the conditions I have earlier referred to. There should also be a condition requiring emissions to be ducted to a high stack (such as is proposed in condition I17). A condition should fix the hours of operation of the air quality pollution control system, which will be based on the hours of conducting certain air polluting activities in the relocatable shed or Sheds 1, 3 and 4, which are connected to the air quality pollution control system (such as is proposed in condition I18).
The Council suggested the hours of conducting the activities be between 9am and 3pm, so as to allow sufficient time afterwards for residual emissions to be treated in the air quality pollution control system. Stannards suggested extending the finishing time to 5pm. The Council opposed this extension as it would not allow sufficient time for ventilation to continue so as to achieve the desired air quality before the ventilation stack air quality system ceases at 6pm. Taking a precautionary approach, I agree with the Council’s suggested finish time of 3pm.
Eighth, the EPA’s general terms of approval for the use of the relocatable shed and the air quality pollution control system should be imposed as conditions of consent.
The Council did suggest another condition, which was opposed by Stannards, that no work on boats should be carried out outside the existing Sheds 1 to 4 or the relocatable shed. I consider this condition is inappropriate. The 1990 consent permits work on boats outside of the existing sheds, including on the existing slipway and hardstand. The consent to use the relocatable shed at the specified location will provide authority to carry out work on boats at another location outside of the existing Sheds 1 to 4. The consent to use the relocatable shed should not otherwise restrict the work permitted to be carried out on boats by the 1990 consent.
The imposition of conditions of consent addressing these matters should manage the air quality impacts of the relocatable shed.

The impact of the relocatable shed on land contamination

The Council raised concern that the use of the relocatable shed at the designated use position north of Shed 1 might mobilise land contaminants and adversely impact water quality on the site and in the adjacent waters of Berrys Bay. When in use, the shed is to be positioned on the existing hardstand north of Shed 1. Although the hardstand is sealed, the Council raised concern that the seal has not been demonstrated to be still intact. If the seal is broken or disturbed, washing down of the hardstand in and downhill of the relocatable shed may cause polluted water to infiltrate the soil and fill beneath the hardstand as well as mobilising any existing contaminants in the soil and fill. The contaminated water may flow to the waters of Berrys Bay. The Council submitted that the integrity of the seal of the hardstand, and whether the soil and fill beneath the hardstand is contaminated, need to be investigated before development consent to the use of the relocatable shed can be granted.
The Council referred to cl 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) which precludes a consent authority granting consent to the carrying out of any development on land unless:

“(a) it has considered whether the land is contaminated, and
(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and
(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.”

The Council submitted that there has been no analysis or assessment of the hardstand or the soil and fill beneath the hardstand to determine whether the land is contaminated and, if contaminated, whether the land is suitable in its contaminated state to be used for the purpose for which the relocatable shed is proposed to be carried out.
Stannards responded that cl 4.6(1) of the Resilience and Hazards SEPP does not preclude the grant of consent to the use of the relocatable shed on the hardstand. The parties’ contamination experts, Dr Reynolds for Stannards and Mr Norris for the Council, agreed in their joint expert report of 14 April 2022 that the development application for the relocatable shed assumed the contaminated state of the existing shipyard. An earlier contamination assessment by Jacobs in 2019 concluded that soil and fill beneath the shipyard is likely to be contaminated as a result of past site activity. Whilst Mr Norris noted that the there was insufficient information to assess the nature or extent of that contamination, Dr Reynolds considered that such information is not required to be considered in determining the suitability of the area of hardstand to be used for the relocatable shed, provided the seal of the hardstand has not been broken. Dr Reynolds noted that the site is sealed and there is no evidence that the concrete or other sealing material will be broken or disturbed by the activities to be carried out in the relocatable shed.
On these assumptions, the contamination experts agreed that “land contamination concerns are adequately resolved provided that no works to break the concrete and paver seal occurs. If any disturbance to the concrete and paver seal of the shipyard occurs additional assessment would be required.” (p 12).
Stannards submitted that on this evidence, the Court can, in satisfaction of cl 4.6(1) of the Resilience and Hazards SEPP, grant consent to the use of the relocatable shed. Pursuant to paragraph (a), the Court is able to consider whether the land is contaminated. The contamination experts agreed that the soil and fill beneath the hardstand is likely to be contaminated as a result of past activities at the boatyard. On the basis that the land is contaminated, pursuant to paragraph (b), the Court can be satisfied that the land is suitable in its contaminated state for the purpose for which development is proposed to be carried out. The use of the relocatable shed in the hardstand area will be for the same purpose of boat building and repair facilities as the existing boatyard. The use of the relocatable shed will not involve any change of use of the site, so that cl 4.6(2) and (3) of the Resilience and Hazards SEPP do not apply. The contamination experts agreed that the area of hardstand on which the relocatable shed will be positioned is suitable in its contaminated state for the purpose of boat building and repair facilities, provided the seal of the hardstand is not broken. Stannards submitted that the movement of the relocatable shed to and from the use position north of Shed 1, and the use of the relocatable shed in that position, will not cause the seal of the hardstand to be broken.
If, contrary to this intention not to break the seal of the hardstand, the seal were to be broken, Stannards submitted a condition of consent can be imposed requiring any disturbed contamination to be remediated. The Council had proposed, and Stannards had amended, condition C7 which provides:

“Prior to the release of the Construction Certificate, in the event of the ground surface being disturbed, such that any contamination in those areas of the site where the Relocatable Shed is proposed to be affixed and the area where the Air Quality Pollution Control System is to be constructed, those areas must be remediated in accordance with:
(a) an approved Remedial Action Plan; and
(b) State Environmental Planning Policy No. 55 – Remediation of Land (Resilience and Hazards) 2021; and,
(c) the guidelines in force under the Contaminated Land Management Act.
Within thirty (30) days after the completion of the remediation works, and prior to the issue of any construction certificate, a notice of completion, including validation and/or monitoring report is to be provided to Council. This notice must be consistent with State Environmental Planning Policy (Resilience and Hazards) 2021.
Prior to the issue of any Construction Certificate, the validation and/or monitoring report is to be independently audited and a Site Audit Statement issued. A copy of the Site Audit Statement is to be provided to the Certifying Authority and Council (if Council is not the Certifying Authority). The audit is to be carried out by an independent auditor accredited by the Environment Protection Authority. Any conditions recorded on the Site Audit Statement must be complied with at all times.”

Stannards submitted that this condition does not impermissibly defer consideration of the matters in cl 4.6(1) of the Resilience and Hazards SEPP to after the grant of consent. Clause 4.6(1) can be considered before granting consent, in the manner earlier explained. That consideration empowers the Court to grant consent to the use of the relocatable shed. The condition of consent serves a different purpose of ensuring that, if the land becomes no longer suitable in its contaminated state to be used for the relocatable shed, because the seal of the hardstand is broken, the land will be remediated so as to be made suitable for the use of the relocatable shed.
I agree with Stannards that consent can and should be granted to the use of the relocatable shed. As required by cl 4.6(1)(a) of the Resilience and Hazards SEPP, I consider that the soil and fill beneath the area of hardstand where the relocatable shed is to be used is likely to be contaminated as a result of past activities at the boatyard. That area of likely contamination is sealed by concrete, pavers or other sealing material, isolating the contamination from surface activities. Although the Council expressed concern about the integrity of the seal of the hardstand in this area, there was no evidence that the seal had in fact been broken or disturbed. Both the observational evidence and the contamination experts’ evidence is that the area is sealed by concrete, paving or other sealing material.

The area is currently used for the purpose of boat building and repair facilities, as part of the existing boatyard. The use of the relocatable shed in that area will not involve any change of use.
In these circumstances, I am satisfied that the area of the site on which the relocatable shed is to be used is suitable in its contaminated state to be used for the purpose of boat building and repair facilities. This area of the site does not require remediation in order to be made suitable to be used for this purpose. The preconditions in cl 4.6(1) of the Resilience and Hazards SEPP are satisfied and development consent is able to be granted to the use of the relocatable shed.
I consider it is appropriate to impose a condition of consent requiring remediation of any contaminated land in the event that the seal of the hardstand is broken or disturbed. This condition can be to the effect of proposed condition C7, although the language should be improved.

The visual and heritage impacts

The Council had raised in its statement of facts and contentions the visual impact and heritage impact of the relocatable shed. By the conclusion of the hearing, however, those contentions were only faintly pressed, if at all. The reason was that the amended plans had specified not only the design of the relocatable shed but also the two locations in which the relocatable shed would be positioned. The use position is on the hardstand to the north of Shed 1. The not-in-use position is between Sheds 2 and 3 in the wash bay. The visual impact and heritage impact of the relocatable shed in either of these positions is able to be ascertained. In both positions, the visual impact and heritage impact will be acceptable.
The scale, form, design and siting of the relocatable shed are all compatible with the existing buildings and structures at the boatyard. The relocatable shed will be read as being a similar but smaller building to the existing sheds and will be located in both the use position and not-in-use position adjacent to one or more of the existing sheds.
The 1990 consent had approved erection of larger buildings in the location of the use position. These larger buildings have not been erected. The relocatable shed in its use position will present as a smaller, less visually intrusive building than the larger buildings approved by the 1990 consent.
The position of the relocatable shed in either the use position or not-in-use position will have no appreciable impact on the heritage significance of any heritage item or heritage conservation area. The boatyard and sandstone cliff behind the boatyard are listed as local heritage items in Schedule 5, Part 1 of NSLEP (items I0483 and I0484), the description being “Stannard Bros Shipyard and associated industrial buildings”. The heritage experts agreed that the local heritage value of the boatyard lies not in its built form but in its association with the boat building and repair activities that have been historically carried on at the site. The addition of one more shed, the relocatable shed, in which boat building and repair activities will be carried out involves a continuation of, not a conflict with, this historic use of the boatyard. There are a number of local heritage items listed in Schedule 5, Part 1 of NSLEP that are in the vicinity of the boatyard. These include the sandstone cliff behind the boatyard, two historic houses on hills either side of the boatyard, and more remote items to the west across Berrys Bay. The relocatable shed will have no appreciable impact on any of these heritage items. The boatyard is in the vicinity of, but not within, a heritage conservation area, the Union, Bank and Thomas Streets Conservation Area, but the relocatable shed will not impact that conservation area.
The same conclusion can be reached for the air quality pollution control system. Most of this system will not be visible from external viewpoints, although the stack is likely to be visible. Nevertheless, the scale, form, design and siting of the stack will be compatible with the existing built form and will not be visually intrusive.
In forming my opinion of the acceptability of the visual impact and heritage impact of the relocatable shed and the air quality pollution control system, I have taken into consideration: (a) the matters in cl 10.3 and cl 10.4 and, insofar as relevant, the planning principles in cl 10.10(f), cl 10.11(d) and cl 10.12(e) of the Biodiversity and Conservation SEPP; (b) the existing character and desired future outcome for development in Waverton/Wollstonecraft Planning Area, and the John Street Waterfront Neighbourhood, in section 10 and subsection 10.8 respectively of Part C of NSDCP; and (c) the matters relating to heritage in cl 5.10(1) and (4) of NSLEP and section 13 of Part B of NSDCP.

Consistency with zone objectives

I have also had regard, as required by cl 2.3(2) of NSLEP, to the objectives for development in Zone IN4 when determining the development application for the use of the relocatable shed and the air quality pollution control system. The first objective is to “retain and encourage waterfront industrial and maritime activities” and the fourth objective is “to encourage employment opportunities”. Approval of the use of the relocatable shed and the air quality pollution control system will facilitate the ongoing operation and viability of the existing boatyard, thereby furthering these objectives.
The second objective is not applicable. The third objective is to “ensure that development does not have an adverse impact on the environmental and visual quality of the foreshore”. The use of the relocatable shed in either the use or not-in-use positions will not have an adverse impact on the environmental or visual qualities of the foreshore, for the reasons I have given earlier. The same conclusions can be reached for the air quality pollution control system, also for the reasons I have given earlier.
The fifth objective is “to minimise any adverse effect of development on land uses in other zones”. The use of the relocatable shed and air quality pollution control system will have no adverse effect on land uses in other zones.
I have also had regard to cl 6.8 of NSLEP, which specifies more particular objectives and matters to be considered in determining whether to grant consent to development on land in Zone IN4. I am satisfied that the use of the relocatable shed and air quality pollution control system will not be inconsistent with any of the matters in cl 6.8(2)(a), including the size of the site where the development is to be situated; the proximity, scale and height of surrounding development; or the scenic, environmental and cultural qualities of the site and its surrounding area, for the reasons I have given earlier. I am also satisfied that the relocatable shed and air quality pollution control system are not likely to have a significantly adverse effect on public views and views from surrounding properties, or natural features on or adjoining the site, such as cliff lines, bushland and significant trees. My reasons are not only those I have given earlier but also because the relocatable shed and air quality pollution control system will be located in the existing boatyard and will have no impact on any natural features on or adjacent to the site.

Development consent to the relocatable shed should be granted

For these reasons I consider that development consent should be granted to the use of the relocatable shed and the air quality pollution control system. The conditions of consent will need to be settled. I have identified many of the matters in respect of which conditions should be imposed. The parties’ draft conditions on these matters can be used as a basis for settling the conditions of consent, although amendments to these conditions as well as new conditions may need to be proposed in order to accord with my findings. The conditions of consent should include the other conditions proposed in the parties’ draft conditions of consent dealing with matters that were not in issue. The language of the conditions should be corrected to improve clarity of expression, consistency of referencing, and grammar and syntax.
I will direct the parties to agree on the conditions of consent or, failing agreement, to provide competing versions of the conditions of consent, within a specified time frame. I will then determine the development application for the use of the relocatable shed and the air quality pollution control system by the grant of development consent subject to conditions that I will settle.

The floating dry dock appeal

The floating dry dock appeal contentions

The Council and the intervening resident objectors and environmental organisations oppose the grant of development consent to the floating dry dock. These parties framed their contentions in their respective statements of facts and contentions in various ways but the contentions can be grouped into these categories:

the visual impact upon the public and private domains;

the impact on the landscape character;

the heritage impact;

the operational constraints and risks of the floating dry dock;

the impacts on the aquatic ecologic environment;

the acoustic impact;

the air quality impacts; and

stormwater and waste water management.

The first three issues are related. The floating dry dock is a very large and obtrusive vessel that would be moored in a constrained bay of high visual and landscape character and of national and heritage significance. The floating dry dock is said to have significant visual, landscape character and heritage impacts.
The fourth and fifth issues also overlap to a degree. The physical constraints of the waterway of Berrys Bay in which the floating dry dock would be moored, particularly the size and configuration of the water lease area and the shallow depth of the sea bed in this area, necessitate slewing the floating dry dock into and out from its mooring position in order to load and unload vessels for repair and maintenance. This slewing of the floating dry dock is operationally constrained and risks disturbing the sea bed and mobilising contaminated sediments. The increased turbidity, sedimentation and contamination, in turn, risk causing harm to the aquatic ecology of the bay.
The final three issues concern noise, air and water pollution. The boat repair and maintenance activities proposed to be carried out in the floating dry dock will generate noise, air pollutants and water pollution. At issue is whether adequate measures have been taken to mitigate these acoustic, air quality and water quality impacts.
For reasons I will shortly give, I find that the floating dry dock, both in the mooring position and the loading and unloading position, will have such unacceptable visual and landscape character impacts that development consent should be refused. The floating dry dock is too large and obtrusive for this northern arm of Berrys Bay.
These findings concerning the unacceptable visual and landscape character impacts of the floating dry dock are dispositive of the floating dry dock appeal. Whether or not the floating dry dock is likely to cause the other impacts claimed by the respondents of the aquatic ecological environment impacts, the acoustic, air quality or water quality impacts, or the impacts on heritage items, cannot influence the outcome of the appeal. Even if I were to find that the floating dry dock were not to have these unacceptable environmental impacts, this still would not justify granting development consent to the mooring and use of this visually intrusive and obtrusive vessel in Berrys Bay, part of Sydney Harbour, of high visual and landscape character and national and heritage significance. It is simply the wrong place for a vessel of this large size.

The planning framework for assessing the visual and landscape character impacts

The visual and landscape character impacts of the floating dry dock need to be evaluated having regard to the planning framework. There are both regional and local controls. The regional controls are in the Biodiversity and Conservation SEPP and the Foreshores and Waterways Area DCP. The local controls are in NSLEP and NSDCP.

Biodiversity and Conservation SEPP

Starting with the regional controls, Chapter 10 of the Biodiversity and Conservation SEPP contains the transferred provisions of Sydney Harbour SREP. Chapter 10 applies to land within the Sydney Harbour Catchment shown on the Sydney Harbour Catchment Map (cl 10.2(1)). Within the Sydney Harbour catchment is the Foreshores and Waterways Area, which includes the land shown on the Foreshores and Waterways Area Map (see definition of “Foreshores and Waterways Area” in Schedule 12 Dictionary for Chapter 10). Part of the land and the whole of the water lease area are shown on the applicable maps to be within both the Sydney Harbour Catchment and the Foreshores and Waterways Area. Land within the Foreshores and Waterways Area is allocated to nine zones, one of which is Zone W1 – Maritime Waters. Part of the land and the whole of the water lease area is within Zone W1 – Maritime Waters.

The aims of Chapter 10 for Sydney Harbour

The aims of Chapter 10 with respect to the Sydney Harbour Catchment are stated in cl 10.1(1):

“(a) to ensure that the catchment, foreshores, waterways and islands of Sydney Harbour are recognised, protected, enhanced and maintained—
(i) as an outstanding natural asset, and
(ii) as a public asset of national and heritage significance, for existing and future generations,

(b) to ensure a healthy, sustainable environment on land and water,
(c) to achieve a high quality and ecologically sustainable urban environment,
(d) to ensure a prosperous working harbour and an effective transport corridor,
(e) to encourage a culturally rich and vibrant place for people,
(f) to ensure accessibility to and along Sydney Harbour and its foreshores,
(g) to ensure the protection, maintenance and rehabilitation of watercourses, wetlands, riparian lands, remnant vegetation and ecological connectivity,
(h) to provide a consolidated, simplified and updated legislative framework for future planning.”

The aims in cl 10.1(1) are expressed as evaluative standards or norms that are to be achieved. The principal aim in cl 10.1(1)(a) is illustrative and will be analysed. There are two components: the action “to ensure” and the object of the action “the catchment, foreshores, waterways and islands of Sydney Harbour are recognised, protected, enhanced and maintained (i) as an outstanding natural asset, and (ii) as a public asset of national and heritage significance, for existing and future generations”. The verb “ensure” bears its ordinary meaning of “2. to make sure or certain to come, occur etc. 3. to make secure or safe, as from harm” (Macquarie Dictionary): see Bushfire Survivors for Climate Action Inc v Environment Protection Authority (2021) 250 LGERA 1; [2021] NSWLEC 92 at [39]. The object of the action to ensure is the recognition, protection, enhancement and maintenance of the specified natural elements of Sydney Harbour as assets with the specified values, both “an outstanding natural asset” and “a public asset of national and heritage significance”. This is the evaluative standard or norm that is to be ensured, that is to say, to be made sure or certain to come about or occur.
The individual words and phrases of this evaluative norm in cl 10.1(1)(a) are exacting. There must be protection. As the Hong Kong Final Court of Appeal noted in Town Planning Board v Society for the Protection of the Harbour Ltd (2004) 7 HKCFAR 1; [2004] HKCFA 27 at [34], “protection” of the harbour, Victoria Harbour in that case, requires the harbour to “be kept from harm, defended and guarded.” There must be enhancement. To enhance is “1. to raise to a higher degree; intensify; magnify 2. to raise the value or price of” (Macquarie Dictionary). To enhance the specified natural elements of Sydney Harbour is to improve the environmental and visual qualities and raise the value of the natural elements of Sydney Harbour that contribute to it being an outstanding natural asset and a public asset of national and heritage significance. There must be maintenance. To maintain is “1. to keep in existence or continuance; preserve; retain 2. to keep in due condition, operation or force; keep unimpaired” (Macquarie Dictionary). To maintain the specified natural elements of Sydney Harbour is to conserve the environmental and visual qualities and value of the natural elements of Sydney Harbour in their present state.
What is to be protected, enhanced and maintained is Sydney Harbour and its natural elements as “an outstanding natural asset” and “a public asset of national and heritage significance”. To label Sydney Harbour as an “asset” is to recognise its value. To describe it as “outstanding” is to recognise that its value as an asset is exceptionally high. To identify it as a “natural” asset is to recognise that it was not created artificially by humans but is part of nature. Together, to recognise Sydney Harbour as an outstanding natural asset is to recognise it as a natural geographic phenomenon of exceptionally high value.
This outstanding natural asset is stated to be a public resource. Sydney Harbour is recognised as a “public asset” with “national and heritage significance.” The identification of Sydney Harbour as a “public asset” is to recognise not only that it is part of the public trust, as I explain below, but also a community asset available to be used and enjoyed by the public generally. The identification of Sydney Harbour’s national significance is to recognise its significance not just to the people of Sydney but to all the people of the nation of Australia. The identification of Sydney Harbour’s heritage significance is to recognise that “it is inherited as a legacy from previous generations and is to be transmitted from generation to generation”: Town Planning Board v Society for the Protection of the Harbour Ltd at [33]. By describing Sydney Harbour in such special terms, the Biodiversity and Conservation SEPP has given legal recognition to Sydney Harbour’s “unique character”: Town Planning Board v Society for the Protection of the Harbour Ltd at [35].
The evaluative standard or norm – the aim – established by cl 10.1(1)(a) is expressed in “clear and unequivocal language”. The legislative intent so expressed makes the aim “a strong and vigorous one”. By prescribing such an aim, the Biodiversity and Conservation SEPP has accorded to Sydney Harbour a “unique legal status”: Town Planning Board v Society for the Protection of the Harbour Ltd at [35] and Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190 at [46]-[48].

The principles for the Foreshores and Waterways Area

Chapter 10 adopts certain principles for the purpose of enabling these aims to be achieved in relation to the Foreshores and Waterways Area. The principles are stated in cl 10.1(2):

“(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.”

The principles emphasise what the aims establish, that Sydney Harbour is a public resource, owned by the public, which is to be protected for the public good. The principles also prioritise the public good over private good, in the ways stated in paragraphs (b) and (c).

Planning principles for strategic planning

Part 10.2 of the Biodiversity and Conservation SEPP also specifies planning principles for the Sydney Harbour Catchment (cl 10.10) and the Foreshores and Waterways Area (cl 10.11). These principles are required to be considered and, where possible, achieved in the preparation of environmental planning instruments and development control plans under Part 3 of the EPA Act and in the preparation of environmental studies and master plans for the purposes of the EPA Act (cl 10.9(2)). Nevertheless, a consent authority would be permitted by the Biodiversity and Conservation SEPP to, although not required to, consider the principles in determining a development application for development on land within the Sydney Harbour Catchment and the Foreshores and Waterways Area. Consideration of these planning principles is, however, required by the Foreshores and Waterways Area DCP in determining all development applications within the Foreshores and Waterways Area (see discussion below).

The high landscape character impacts and high visual impacts of the floating dry dock are inconsistent with, amongst others, the aim in cl 10.1(1)(a) of the Biodiversity and Conservation SEPP. This aim includes ensuring that the waterways of Sydney Harbour, which includes Berrys Bay, are “recognised, protected, enhanced and maintained (i) as an outstanding natural asset and (ii) as a public asset of national and heritage significance, for existing and future generations”. The mooring and use of the floating dry dock in the water lease area of Berrys Bay will not protect, enhance or maintain, but instead will harm and diminish the value of, Berrys Bay, both as an outstanding natural asset and as a public asset of national and heritage significance.
The introduction of a large, unarticulated, building-like vessel, which is clearly a human artifact, in the confined, natural waterway of Berrys Bay cannot protect, enhance or maintain that waterway as an outstanding natural asset, as I have earlier explained those words and phrases, but rather will have the opposite effect. The asset of this waterway of Sydney Harbour will be made less natural and of lower value.
The mooring and use of the floating dry dock in the waterway also affects the waterway’s status as a public asset of national and heritage significance. The floating dry dock’s presence in the waterway emphasises the alienation of an area of the public resource of Sydney Harbour for private purposes. The grant of the water lease already alienated the public from being able to use and enjoy the water lease area. But the mooring and use of the floating dry dock in this water lease area will exacerbate the alienation of the waterway from the public and the appropriation of the public waterway as a private asset. The public waterway will clearly be seen to be used for the private purpose of maintaining and repairing boats for commercial gain.
The national and heritage significance of Sydney Harbour as a public asset is thereby diminished. As I have earlier explained, the identification of Sydney Harbour’s national significance is to recognise its significance not just to the people of Sydney, but to the people of the nation of Australia, now and in the future. The identification of Sydney Harbour’s heritage significance is to recognise that Sydney Harbour has been inherited by the present generation as a legacy from previous generations and is to be transmitted by the present generation to future generations. That is made clear by the express words “for existing and future generations” in cl 10.1(1)(a)(ii). The high landscape character impacts and high visual impacts of the floating dry dock will diminish both the national and heritage significance of this waterway of Sydney Harbour.
The waterway of Berrys Bay has been especially recognised as being of aesthetic value. Its openness, both in the sense of not having permanent structures in the waterway and in the sense of being open to use and enjoyment by the public, has been recognised not only by Chapter 10 of the Biodiversity and Conservation SEPP and the Foreshores and Waterways Area DCP, but also by artists in artworks depicting the bay. The openness of the waterway is one of its unique visual qualities, recognised in the statutory instruments and depicted by artists in their artwork. The grant of the water lease did allow for a few jetties to be constructed and for the associated mooring of boats in the water lease area. But such use of the water lease area is far less intense and obtrusive than the mooring and use of the very large floating dry dock. The intrusion of this large-scale, maritime industrial vessel in the intimate and open landscape space of Berrys Bay will adversely affect this unique visual quality.
The aim in cl 10.1(1)(a) is given effect through the principles in cl 10.1(2) of the Biodiversity and Conservation SEPP. The mooring and use of the floating dry dock is inconsistent with all three principles. As I have indicated, the floating dry dock will alienate an area of the public resource of Sydney Harbour for private good, instead of protecting it for the public good. This also infringes the principle that the public good should have precedence over the private good whenever and whatever change is proposed for Sydney Harbour. The introduction of the very large floating dry dock will also undermine the naturalness of the waterway of Berrys Bay, contrary to the principle that protection of the natural assets of Sydney Harbour should have precedence over all other interests.
The mooring and use of the floating dry dock also offends certain of the planning principles in cl 10.10 of the Biodiversity and Conservation SEPP for land within the Sydney Harbour catchment. The introduction of the floating dry dock in the waterway of Berrys Bay diminishes the natural assets of Sydney Harbour catchment, contrary to the principle in cl 10.10(b) that the natural assets of the catchment are to be maintained and, where feasible, restored for their scenic and cultural values. The visual obtrusiveness and intrusiveness of the floating dry dock is also inconsistent with the principle in cl 10.10(f) that development that is visible from the waterways or foreshores is to maintain, protect and enhance the unique visual qualities of Sydney Harbour. For the reasons given by Dr Pollard, the floating dry dock will be visible from the waterway and foreshores of Berrys Bay and will have a high visual impact.
For similar reasons, the floating dry dock is inconsistent with the planning principles in cl 10.11(a) and (d) for land within the Foreshores and Waterways Area. The mooring and use of the floating dry dock in the waterway of Berrys Bay neither protects, maintains or enhances the natural assets and unique environmental qualities of Sydney Harbour nor maintains, protects or enhances the unique visual qualities of Sydney Harbour.
Similar findings should be made regarding the relevant matters for consideration in cl 10.23 and cl 10.24 of the Biodiversity and Conservation SEPP. In relation to the maintenance, protection and enhancement of the scenic quality of foreshores and waterways, the floating dry dock will not maintain, protect and enhance the unique visual qualities of Sydney Harbour, contrary to cl 10.23(b), and the cumulative impact of the floating dry dock with other water-based development will detract from the waterway of Berrys Bay and adjoining foreshores, contrary to cl 10.24(c).
In relation to the maintenance, protection and enhancement of views, the floating dry dock does not maintain, protect or enhance views to or from Sydney Harbour or minimise any adverse impacts on views and vistas to and from public places, landmarks and heritage items, contrary to cl 10.24(a) and (b). The reasons are those given by Dr Pollard, which I have accepted and added to in my earlier discussion.
These findings that the floating dry dock is not consistent with the aim of cl 10.1(1)(a) of the Biodiversity and Conservation SEPP precludes the grant of development consent to the floating dry dock. Clause 10.14(2) of the Biodiversity and Conservation SEPP establishes a precondition to the grant of development consent. The Court, exercising the function of the consent authority, must not grant development consent to any development unless it is satisfied that the development is consistent with the aims of Chapter 10. For the reasons I have given, I am not satisfied that the mooring and use of the floating dry dock in the waterway of Berrys Bay is consistent with one of the aims of Chapter 10, the aim in cl 10.1(1)(a), of the Biodiversity and Conservation SEPP. In this circumstance, development consent must not be granted to the floating dry dock.
The high landscape character impacts and high visual impacts of the floating dry dock are also inconsistent with the Foreshores and Waterways Area DCP. The DCP recognises Sydney Harbour as “one of Australia’s greatest cultural and commercial resources”, “a valuable natural and cultural resource” and “a significant natural scenic feature” (section 1.1). The DCP established performance-based criteria and guidelines with the aim of, amongst other things, “ensuring that the scenic quality of the area is protected or enhanced” (section 1.1). These performance-based criteria and guidelines implement the planning principles for the Foreshores and Waterways Area in cl 10.1 of the Biodiversity and Conservation SEPP. These principles are to be considered in determining development applications for development within the Foreshores and Waterways Area (section 1.1, 1.2 and Appendix B). The matters for consideration are the matters in cl 10.23 and cl 10.24 of the Biodiversity and Conservation SEPP.
For the reasons I have given earlier, regarding foreshore and waterway scenic quality, the floating dry dock will not maintain, protect or enhance the unique visual qualities of Sydney Harbour and the cumulative impact of the floating dry dock with other water-based development will detract from the character of the waterway of Berrys Bay and adjoining foreshores. Regarding maintenance, protection and enhancement of views, also for the reasons I have given earlier, the floating dry dock will not maintain, protect and enhance views to and from Sydney Harbour or minimise any adverse impacts on views and vistas to and from public places, landmarks and heritage items.
Dr Pollard’s assessment of the landscape character impact and visual impact serves as the assessment required under Part 3 of the Foreshores and Waterways Area DCP. Dr Pollard’s assessment gives consideration in substance to the matters required by section 3.5 of the Foreshores and Waterways Area DCP, although not necessarily always in those terms.
In particular, Dr Pollard considered the visual impact factors identified in section 3.1, being the nature of the proposed development of the floating dry dock, the landscape setting in which the floating dry dock is to be located, the degree of change created and the ability of the floating dry dock to integrate with the landscape character. I accept Dr Pollard’s analysis of these visual impact factors, which I have summarised earlier. Dr Pollard considered the general aims in section 3.2, which include minimising any significant impact on views and vistas from and to the public places, landmarks and heritage items and ensuring the development compliments the scenic character of the area. For the reasons Dr Pollard gives, which I accept, the floating dry dock does not achieve these general aims.
Dr Pollard addressed the statement of intent and performance criteria for the relevant landscape character type, Landscape Character Type 11. Dr Pollard noted that this landscape character type was adopted at a time when Berrys Bay had greater waterside industrial uses than it does today. In particular, the BP Petroleum tank farm on the western side of Berrys Bay has been removed and the foreshore revegetated to now have a more natural landscape character. This leaves the existing Noakes boatyard as the only remaining waterside industrial use in the north arm of Berrys Bay. Landscape Character Type 11 is therefore no longer, if it ever was, the appropriate landscape character type for the northern arm of Berrys Bay.
Nevertheless, the statement of character and intent for Landscape Character Type 11 includes a requirement that development be designed and sited with regard to the natural features of the area and to maintain their importance within the landscape character. The floating dry dock does not do this. An important natural feature contributing to the landscape character is the open waterway of Berrys Bay. The floating dry dock intrudes into and alienates an area of this waterway, diminishing its landscape character and visual quality.
Section 4.2 of the Foreshores and Waterways Area DCP specifies general requirements that must be considered for all water-based and land/water interface developments. These include that “development does not dominate its landscape setting”. This reinforces the statement in section 4.1 that “individual private facilities should not be visually dominant”. The floating dry dock is inconsistent with these requirements, as it will dominate its landscape setting and be visually dominant, as Dr Pollard has demonstrated.
As I have earlier noted, these statutory provisions in Chapter 10 of the Biodiversity and Conservation SEPP and the Foreshores and Waterways Area DCP are statutory recognitions of the concept of the public trust and the principle of intergenerational equity. The floating dry dock is inconsistent with both this concept and this principle.
The concept of the public trust that the government holds certain common natural resources, such as harbours and navigable waters, in trust for the benefit of the public constrains the government in its dealings with and management of the natural resources. One of these constraints is that ownership of the navigable waters of the harbour and of the lands underneath them are held in trust for the benefit of the whole people of the State. The trust with which the waters and lands are held cannot be alienated, except as to such parcels as are used in promoting the interest of the public therein or which can be disposed of without any substantial impairment of the public interest in the lands and waters remaining: Illinois Central Railroad v Illinois at 453, 455-456.
In the present case, there has been a grant of a water lease over an area of Berrys Bay adjacent to the existing boatyard and authority to construct the existing jetties and concrete-capped dock and to moor boats in that area for the purpose of maintaining and repairing boats. Such dealings with the land and water in the water lease area do not impair the public interest in these and other lands and waters of Berrys Bay to the same extent as would result from the grant of development consent to the mooring and use of the very large floating dry dock in that area.
The mooring of the floating dry dock would require the removal of two jetties and the reduction in length of a third jetty, and the displacement of moorings of numerous boats. The use of the floating dry dock would require the slewing of the floating dry dock from its mooring position to its loading and unloading position adjacent to the western boundary of the water lease area, and vice versa. In combination, the whole of the water lease area would be alienated to the private purpose of the maintenance and repair of boats for commercial gain.
This mooring and use of the floating dry dock will also adversely affect the lands and waters of Berrys Bay and the adjoining foreshores. The floating dry dock will cause high impacts on the landscape character of Berrys Bay and adjoining foreshores, as well as high visual impacts from public places and private properties around Berrys Bay. These high impacts diminish the public’s use and enjoyment of, and hence public interest in, the waterway of Berrys Bay.
Such considerations are relevant to be taken into account in the exercise of the statutory power in s 4.16 of the EPA Act to grant development consent to a development that will adversely impact the property the subject of the public trust: see analogously, Willoughby City Council v Minister Administering the National Parks and Wildlife Act (1992) 78 LGERA 19 at 34. In determining a development application, the consent authority is to take into consideration the provisions of any environmental planning instrument and any development control plan that apply to the land to which the development application relates (s 4.15(1)(a)(i) and (iii)). The Biodiversity and Conservation SEPP and the Foreshores and Waterways Area DCP apply to the land and water in which the floating dry dock is to be moored and used. As I have noted earlier, cl 10.1(1)(a) and cl 10.1(2) of the Biodiversity and Conservation SEPP encapsulate the idea of public trusteeship of Sydney Harbour. To take these statutory provisions into account in determining the development application for the floating dry dock involves having regard to the idea of the public trust embodied in the provisions.
The principle of intergenerational equity is also a relevant consideration to be taken into account in determining whether to grant development consent to the floating dry dock. Under s 4.15(1)(a)(i) of the EPA Act, a consent authority is required to take into consideration the provisions of any applicable environmental planning instrument. The Biodiversity and Conservation SEPP is an applicable environmental planning instrument. Clause 10.1(1)(a)(ii) of the Biodiversity and Conservation SEPP states as an aim ensuring that the waterways and foreshores of Sydney Harbour are protected, enhanced and maintained as a public asset of natural and heritage significance, “for existing and future generations”. This aim embodies the principle of intergenerational equity. Under s 4.15(1)(e) of the EPA Act, the consent authority is required to take into consideration “the public interest”. The public interest includes the principles of ecologically sustainable development: Telstra Corp Ltd v Hornsby Shire Council (2006) 146 LGERA 10; [2006] NSWLEC 133 at [124]. The facilitation of ecologically sustainable development is also an object of the EPA Act: s 1.3(b). One of the principles of ecologically sustainable development is the principle of intergenerational equity: s 6(2)(b) of the POEA Act and Telstra Corp Ltd v Hornsby Shire Council at [116].
The mooring and use of the floating dry dock in the waterway of Berrys Bay would not be consistent with the principle of intergenerational equity in at least two ways. First, the high landscape character impacts and high visual impacts of the floating dry dock are inconsistent with the conservation of quality principle that requires the present generation to maintain the quality of the waterways and foreshores of Sydney Harbour such that they are passed on to future generations in no worse condition than they were received from the past generation. If the floating dry dock were to be approved, the waterway of Berrys Bay and the adjoining foreshores will be passed on in a worse condition than they are currently.
Secondly, the high landscape character impacts and high visual impacts of the floating dry dock are inconsistent with the conservation of access principle that requires the present generation to give its members equitable rights of access to the legacy of past generations and to conserve this access for future generations. If the floating dry dock were to be approved, the legacy of the waterway of Berrys Bay and its foreshores in their current condition that the present generation has inherited will not be conserved and transmitted to future generations in their current condition. Future generations will not be able to use and enjoy the same landscape character and visual qualities of the waterways and foreshores of Berrys Bay. These impacts on intergenerational equity can be avoided by refusing development consent to the floating dry dock.

Development consent to the floating dry dock should be refused

The mooring and use of the floating dry dock in the waterway of Berrys Bay will cause high landscape character impacts and high visual impacts. These high impacts are unacceptable having regard to Chapter 10 of the Biodiversity and Conservation SEPP and the Foreshores and Waterways Area DCP, and the concept of the public trust and the principle of intergenerational equity embedded in these statutory instruments. Development consent to the floating dry dock should be refused on these grounds alone. In particular, as I am not satisfied that the floating dry dock is consistent with one of the aims of Chapter 10 of the Biodiversity and Conservation SEPP, the aim in cl 10.1(1)(a), I am precluded by cl 10.14(2) of the Biodiversity and Conservation SEPP from granting development consent to the floating dry dock.

In this circumstance, it is not necessary to decide whether the floating dry dock will also have unacceptable environmental impacts in other respects, in the various ways argued by the Council and the intervenors. Regardless of whether or not the floating dry dock would have these other environmental impacts, the result would be the same – development consent should be refused to the floating dry dock.

Resolution of the appeals

In the relocatable shed appeal, I have determined that development consent should be granted to the relocatable shed and the air quality pollution control system, but the conditions of consent need to be settled before I can grant consent. I will direct that the parties confer and, if possible, agree on and provide to the Court conditions of consent that reflect my findings. If agreement is not possible, the parties should provide to the Court their competing versions of the conditions and I will decide on the conditions of consent that should be imposed. I will then uphold the appeal and grant development consent subject to these conditions.
In the floating dry dock appeal, the appeal should be dismissed and development consent refused. I will make these orders now.
The Court orders:

In the relocatable shed appeal, Proceedings No 2022/36839:

By 22 August 2022, the parties are to confer and if possible agree on the conditions of development consent for the relocatable shed and air quality pollution control system, which are to reflect the findings of this judgment, and file the agreed conditions.
If the parties are not able to agree on the conditions of consent, by 22 August 2022, each party is to file in Court and serve on the other parties the party’s version of the conditions of consent.

In the floating dry dock appeal, Proceedings No 2021/63136:

The appeal is dismissed.
Development application No 57/2019 for the mooring and use of a floating dry dock and associated infrastructure works at 6 John Street, McMahons Point, is determined by refusal of consent.

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Decision last updated: 08 August 2022

Medium Neutral Citation:	Stannards Marine Pty Ltd v North Sydney Council [2022] NSWLEC 99
Hearing dates:	2, 3, 4, 5, 6, 9, 10, 11 and 26 May 2022
Date of orders:	08 August 2022
Decision date:	08 August 2022
Jurisdiction:	Class 1
Before:	Preston CJ
Decision:	The Court orders: In the relocatable shed appeal, Proceedings No 2022/36839: (1) By 22 August 2022, the parties are to confer and if possible agree on the conditions of development consent for the relocatable shed and air quality pollution control system, which are to reflect the findings of this judgment, and file the agreed conditions. (2) If the parties are not able to agree on the conditions of consent, by 22 August 2022, each party is to file in Court and serve on the other parties the party’s version of the conditions of consent. In the floating dry dock appeal, Proceedings No 2021/63136: (1) The appeal is dismissed. (2) Development application No 57/2019 for the mooring and use of a floating dry dock and associated infrastructure works at 6 John Street, McMahons Point, is determined by refusal of consent.
Catchwords:	APPEAL – development application for the use of a relocatable shed at existing boatyard – structural integrity of shed – acoustic and air quality impacts –impact on land contamination – visual and heritage impacts – consistency with zone objectives APPEAL – development application for the mooring and use of a floating dry dock at existing boatyard – visual and landscape character impacts – statutory provisions recognising harbour as public asset of national and heritage significance to be protected for public good, for existing and future generations – public trust – intergenerational equity – unacceptable visual and landscape character impacts
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2021 cl 32(3) of Schedule 3 Interpretation Act 1987 cl 30A North Sydney Development Control Plan 2013 sections 10, 13 of Part C, section 13 of Part B North Sydney Local Environmental Plan 2013 cll 2.3, 2.4, 5.10, 6.8, Part 1 of Schedule 5 Protection of the Environment Administration Act 1991 s 6 State Environmental Planning Policy (Biodiversity and Conservation) 2021 cll 10.1, 10.4, Part 10.2, Chapter 10 State Environmental Planning Policy (Resilience and Hazards) 2021 cl 4.6 Sydney Harbour Foreshores and Waterways Development Control Plan 2005 Parts 1, 3, 4 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005
Cases Cited:	Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190 Bushfire Survivors for Climate Action Inc v Environment Protection Authority (2021) 250 LGERA 1; [2021] NSWLEC 92 Illinois Central Railroad v Illinois 146 US 387 (US Sup Ct, 1892) Re Sydney Harbour Collieries Co (1895) 5 Land Appeal Court Reports 243 Rose Bay Marina Pty Ltd v Woollahra Municipal Council [2013] NSWLEC 1046 Society for the Protection of the Harbour Ltd v Town Planning Board [2003] 2 HKLRD 787; [2003] HKCFI 220 Stannards Marine Pty Ltd v North Sydney Council (2021) 250 LGERA 318; [2021] NSWLEC 66 Telstra Corp Ltd v Hornsby Shire Council (2006) 146 LGERA 10; [2006] NSWLEC 133 Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Town Planning Board v Society for the Protection of the Harbour Ltd (2004) 7 HKCFAR 1; [2004] HKCFA 27 Willoughby City Council v Minister Administering the National Parks and Wildlife Act (1992) 78 LGERA 19
Texts Cited:	Tim Bonyhady, ‘A Usable Past: The Public Trust in Australia’ (1995) 29 Environmental & Planning Law Journal 329 Berry Fong Chung Hsu, ‘A Public Trust Doctrine for Hong Kong’ (2011) 15 New Zealand Journal of Environmental Law 89 Joseph L Sax, ‘The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention’ (1969-1970) 68 Michigan Law Review 484 Joseph L Sax, Defending the Environment: A Handbook for Citizen Action (Vintage Books, 1971) Catherine Redgwell, “Principles and Emerging Norms in International Law: Intra- and Inter- generational Equity” in CP Carlarne, KR Gray and R Tarasofsky (eds) The Oxford Handbook of International Climate Change Law (OUP, 2016) 185 WH Rodgers, ‘Bringing People Back: Toward a Comprehensive Theory of Taking in Natural Resource Law’ (1982) 10 Ecology Law Quarterly 205 E Brown Weiss, “Intergenerational Equity: A Legal Framework for Global Environmental Change” in E Brown Weiss (ed) Environmental Change and International Law: New Challenges and Dimensions (UN University Press, 1992) E Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony, and Inter-generational Equity (UN University Press, 1988)
Category:	Principal judgment
Parties:	Stannards Marine Pty Ltd (Applicant) North Sydney Council (Respondent) Friends of Sydney Harbour (Objector 1) The Owners of Strata Plan 63626 (Objector 2) Dr Ronald Blombery (Objector 3) The Owners of Strata Plan 48674 (Objector 4) The Owners of Strata Plan 48675 (Objector 5) Waverton Public Lands and Waters Protection Association Inc (Objector 6) Mr Michael Stevens (Objector 7)
Representation:	Counsel: Mr A Galasso SC with Ms J Reid (Applicant) Mr T To (Respondent) Ms L Sims (Objectors 2, 3, 4, 5, 7) Mr J Molyneux (agent) (Objector 1) Mr B Donald (agent) (Objector 6) Solicitors: Alice Spizzo Advisory (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2021/63136 & 2022/36839
Publication restriction:	Nil