Whitten v The Minister Administering the Ports Corpoatisation and Waterways Management Act 1995

[2005] NSWLEC 548

Land and Environment Court

of New South Wales

CITATION:

Whitten v The Minister Administering the Ports Corpoatisation and Waterways Management Act 1995 [2005] NSWLEC 548

PARTIES:

APPLICANT
Barbara Frances Whitten

RESPONDENT
The Minister Administering the Ports Corpoatisation and Waterways Management Act 1995

FILE NUMBER(S):

10109 of 2005

CORAM:

Hoffman C

KEY ISSUES:

Appeal :- Conditions of consent for an on-water structure - clutter of foreshore and over water structure - scenic protection - protection of aquatic grasses - proliferation of foreshore structures - adverse impact on adjoining heritage item - proposed furture character of harbour its setting and foreshores.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Draft Sydney Regional Environmental Plan (Sydney Harobur Catchment 2004)
State Environmental Planning Policy 56 Sydney Harbour Foreshores & Tributaries SEPP 56
Development Control Plan for Sydney Harbour
Sydney Regional Environmental Plan 23 (Sydney and Middle Harbours)

DATES OF HEARING:

5/09/2005 and 6/09/2005

EX TEMPORE JUDGMENT DATE:

09/07/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr I. Hemmings, barrister
instructed by A. Whitten, solicitor
of Whitten's Lawyers

RESPONDENT
Ms J. Jagot, barrister
instructed by Mr P. Murray, solicitor
of Minter Ellison

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

7 September 2005

10109 of 2005 Barbara Frances Whitten v The Minister Administering the Ports Corpoatisation and Waterways Management Act 1995

JUDGMENT

1 This is an Appeal, 10109/05, between Ms B Whitten and the New South Wales Maritime Authority in regard to Conditions of Consent 569/03 for on-water structures adjoining No. 70 Wentworth Road, Vaucluse.

2 The applicant had sought consent for changing an existing skid launching ramp into a slipway, partial demolition of an existing jetty and extension of it with a new articulated gangway down to a new pontoon, and the creation of a new, larger, permanent mooring pen for a 43 foot Riviera pleasure cruiser.

3 The application was amended by the applicant during consideration by the New South Wales Maritime Authority in order to avoid dredging needed to get adequate depth of water for the boat. Instead, the proposed mooring pen was extended further out into the harbour where the natural depth of the water is sufficient.

4 The pontoon required two concrete piles and two more piles were needed at the seaward end of the mooring pen to tether the cruiser. At the end of the existing jetty is an existing casual berth for a 9.7 m pleasure cruiser. That boat is permanently at a swing mooring about 75 m offshore. The application also sought the re-establishment of a harbourside swimming pool that had been demolished some time ago. It was to be created via a mesh net suspended from floats and secured to the harbour bottom.

5 The purpose of these changes is put as:

(a) the need for a bigger boat that would be acquired if this application is approved;
(b) the need for safer access to the boat as currently it involves using a dinghy or tender boat from the jetty to the swing mooring;
(c) the need for security of the cruiser from vandalism, theft et cetera;
(d) the need for the applicant to have salt water swimming for medical reasons;
(e) the need for safety from sharks while taking a salt water swim.

6 The New South Wales Water Authority had granted consent only to convert the existing skid launching ramp into a slipway and refused the other works.

7 The issues as amended for this hearing are:

ISSUE 1 - Inappropriate scale of development:
1.1: The proposed development is an overdevelopment of the subject waterfrontage and would exacerbate the clutter of structures fronting 70 Wentworth Road, Vaucluse.
1.2: The cumulative scale and character of the development is out of keeping with other private waterside development to the immediate north of the subject site.

Particulars:
Numbers 72, 74 and 76 Wentworth Road, Vaucluse, each have a single, short, domestic waterside structure occupying 16 sq m, 25 sq m and 27 sq m of Vaucluse Bay respectively. The subject site contains 106 sq m of development in Vaucluse Bay comprising a number of different elements, including a boatshed, skid and jetty. The existing and proposed development extend significantly further into Vaucluse Bay than development to its immediate north. The amount of development abutting No. 70 Wentworth Road, Vaucluse, will increase to approximately 250 sq m.

1.3: The scale and character of development is not consistent with the planned future character of the area which may be derived from Draft Sydney Regional Environmental Plan (Sydney Harbour Catchment 2004) under which Vaucluse Bay will be zoned W8 Scenic Waters Passive Use.

Particulars:
The objectives of the zone are to give priority to the visual continuity or significance of landform and the ecological value of waters and foreshores. Only low-lying structures such as ramps will be allowed where they do not impair these priorities. Private mooring pens, private landing facilities and swimming enclosures are considered inappropriate in scale and size within the zone.

1.4: The proposal relating to refurbishment of the swimming pool is an erroneous description of the extent and nature of the proposal. There is no swimming enclosure or tidal pool in Vaucluse Bay at the subject site.

1.5: An objection to the original proposal raised legitimate planning concern about the potential cumulative effect of approving further development on the subject waterfront which is being overwhelmingly altered from its original and natural state as each development application is submitted and approved. Concern was raised about incremental additions which will result in an unacceptable overall bulk and scale when viewed from the waterway foreshore and adjoining properties. S 79C(1)(d) of the Environmental Planning and Assessment Act 1979 requires the consideration of submissions made on the proposal.

1.6: For the reasons listed above the proposed development is contrary to:
(a) guiding principle J and K of State Environmental Planning Policy 56 Sydney Harbour Foreshores and Tributaries, SEPP 56, which requires that development is of an appropriate scale and character;
(b) the aims objectives of zone W1 General Waterways under the Sydney Regional Environmental Plan 23 Sydney and Middle Harbours, SREP 23, to the extent that it is not compatible with the existing or planned future character of the waterway;
(c) the general requirements for design of water based development under cl 4.2 of the Development Control Plan for Sydney Harbour which seeks to ensure that development is kept to an absolute minimum, has reasonable setbacks and does not nominate its setting.

1.7: The consent authority is constrained from approving the development as it is not consistent with the objectives of the zone under SREP 23 cl 10(3).

ISSUE 2 - Adverse visual impact on the site and locality:

2.1. The development, including the vessel to be permanently berthed, will not maintain and enhance the landscape and special scenic qualities of the site and locality as required by aim 2(2f) of SREP 23 and the objectives of the zone within which the development is located. In such cases the consent authority is constrained from approving the development under cl 10(3) of SREP 23.

Particulars:

(a) The Vaucluse Baths is a major landmark structure in the water of Vaucluse Bay and the extent of development, including the permanently berthed vessel, will diminish its visibility and scenic value;
(b) The proposal will obstruct views of the subject foreshore which retains some natural elements when viewed from Vaucluse Bay;
(c) The development will have an adverse visual impact on the rocky foreshore and its entire area of the eastern side of Vaucluse Bay which is a distinctive landscape element contributing to its scenic value.
2.2: The development, including the vessel to be permanently berthed, does not satisfy the performance criteria for landscape character type 8 under cl 3.4 of the DCP, p 26, which requires that development maintain views of remaining natural features that are significant along the foreshore.
2.3: The development, including the vessel to be permanently berthed, is inconsistent with the guiding principle (g) of SEPP 56 which requires that development protect and improve unique visual qualities of the harbour and its foreshores.

ISSUE 3 - Adverse impact on heritage setting of the Vaucluse Baths:

3.1: The proposed development will detract from the existing visual prominence and setting of the adjacent heritage item known as Vaucluse Baths abutting 68 Wentworth Road, Vaucluse, contrary to:
(1) The planning principle of State Environmental Policy 56 Sydney Harbour Foreshores and Tributaries providing for the protection of significant cultural heritage values;
(2) The aims and objectives of cl 2(2)(g)I of Sydney Regional Environmental Plan 23 Sydney and Middle Harbours relating to the appreciation and conservation and enhancement of heritage items, cl 1(1)(I) and (II)(2)(g)I;
(3) The heritage objectives of cl 51(b) of the Draft Sydney Regional Environmental Plan (Sydney Harbour Catchment 2004) to conserve the heritage significance of existing fabric relics, setting and views associated with the heritage significance of heritage items.
ISSUE 4 - Adverse impact on the aquatic ecological environment:
4.1: Under s 79C(1)(b) of the Environmental Planning and Assessment Act 1979, in cl 18C of the Sydney Regional Environmental Plan 23 the consent authority must consider the likely impacts of the development on the natural environment and whether there will be an adverse effect on aquatic habitats.
4.2: The proposal will impact the sea grass bed considered to be of high conservation value located in the vicinity of the ramp and pontoon.
4.3: The proposal does not satisfy the performance criteria for aquatic habitats of high conservation value under cl 2.4 of the Development Control Plan, pp 14 and 15 which state that:
(a) shading of sea grass communities is to be avoided;
(b) light penetration to sea grass communities is to be maintained;
(c) activities and structures are not to be located within sea grass beds;
(d) activities and structures are to be sited, designed and carried out to avoid physical damage to sea grass beds, the performance criteria have been advised to protect the important communities from adverse effects of development, p 7.
4.4: The proposal is, therefore, inconsistent regarding principles at cl 7(f) of SEPP 56 which requires that development protect significant marine ecological values.
4.5: The consent authorities constrain from approving the proposal because it is not consistent with the aims under cl 2(2)(e) of SREP 23 or the objectives of the W1 zone requiring protection of aquatic environment, cl 10(3).
ISSUE 5 - Demand for the mooring pen has not been established:
5.1: The applicant does not own a vessel and therefore the demand for the single mooring pen has not been established as required by cl 19(g) of SREP 23 and cl 4.2 of the DCP.
ISSUE 6 - Adverse navigation impact:
6.1: The seaward extent of the development, including the berthed vessel in the Vaucluse Bay, will adversely impact on other water uses including people using the near shore navigation zone and a number of private swing mooring licences contrary to:
(a) the considerations under cl 18(f) of SREP 23 relating to whether the proposal will cause excessive congestion of or generate conflicts between people using the waterway or the waterfront;
(b) cl 4.2 of the DCP which requires that the development does not interfere with navigation, swimming or other recreational activities;
(c) the matters for consideration under the exhibited draft of the SREP relating to the need to minimise excessive congestion of traffic in the waterways, cl 20(b) and (d).

ISSUE 7 - Design criteria failings:
7.1: The proposal does not comply with the following design guidelines contained in s 4 of the Development Control Plan for Sydney Regional Environmental Plan 22 and Sydney Regional Environmental Plan 23:
(a) the ramp and pontoon exceed the minimum length criteria for private boat landing facilities set out in s 4.8 of the DCP, the new structure exceeds the already over-length existing jetty by another eight metres. A further exception to the application of length criteria is not justified in this case as access to the site is not constrained by surrounding development;
(b) the swimming enclosure being supported by at least one pile is not a buoyed structure and will protrude above water level at times contrary to the design criteria set out in cl 4.1(4) of the DCP;
(c) the swimming enclosure is not set back at least 2.5 metres from the division of waterway with 72 Wentworth Road, Vaucluse, contrary to cl 4.2 of the DCP, the swimming enclosures is located at approximately 1.5 metres from the division of waterway;
(d) the swimming enclosure extends more than thirteen metres from mean high water mark contrary to cl 4.1(4) of the DCP;
(e) the extent of development has not been kept to the absolute minimum necessary to provide access to the waterways as required by cl 4.2 of the DCP.


ISSUE 8 - Safety and utility:
8.1: The rough wave environment affecting the site will reduce the usability of the private landing facility and will make safe permanent berthing of a vessel marginal, the proposal is contrary to cl 2(2)(d)II of SREP 23 which requires that the boating facilities be appropriate for their purpose.
8.2: The swimming enclosure is potentially unsafe due to shallowness and its location immediately alongside a jetty which could be used as a diving platform. S 79C(1)(b) and (c) of the Environmental Planning and Assessment Act 1979 require consideration of the likely impacts of development and the suitability of the site.

ISSUE 9 - The development is not in the public interest:
9.1: The proposal is located on public land the owner of that land has refused to support the proposal. It is not in the applicant’s interest to grant consent to development which cannot proceed to realisation, is not in the public interest to determine a development application contrary to wishes of the custodian of the public land.
9.2: It is not in the public interest to allow development of the scale and type proposed because:
(a) it will have significant adverse impacts on the public domain for limited private maritime utility;
(b) it does not meet current community expectations to protect the environment and scenic values of Sydney Harbour as expressed in current environmental planning instruments applying to the site;
(c) the number of non-compliances with relevant guidelines is significant and an exception to them is not justified in the context of the foreshadowed prohibitions that will apply to the site once the Draft Sydney Regional Environmental Plan is gazetted;
(d) gazettal of the Draft Sydney Regional Environmental Plan under which the proposed development could not be considered is imminent, the proposed development is inconsistent with the aims of the draft plan which adopts the principle that the public good takes precedence over the private good and protection of natural assets takes precedence over all other interests.
9.3: The foreshores and waterways planning and development advisory committee constituted under Sydney Regional Environmental Plan to provide advice on such development applications recommended refusal of the original application for a number of reasons including overdevelopment of the site, adverse visual impacts, non-compliance with design guidelines and inconsistency with relevant environmental planning instruments. The views of the committee remain relevant to the proposal the subject of the appeal except in relation to comments on dredging.
ISSUE 10 - Imposition of condition (g) requiring removal of the single mooring pile:
10.1: The consent authority will consider deletion of condition (g) relating to removal of the existing single mooring pile approved for casual berthing only should the mooring pen not be approved.
Particulars:
It will be necessary to remove the single mooring pile, should the mooring pen be approved, because there will be no vessel to restrain it and will serve no purpose in restraining the vessel.

8 Just before or during the hearing amendments to the plan of the proposal resolved issues 7.1(c) and (d) and issue 8.2.

9 The respondent’s evidence came from:

• Mr Forsaith boating service officer of the Authority and a master mariner on navigational issues;
• Ms R Frettingham urban and regional planner;
• Mr A Morison, consultant principal ecologist;
• Mr M Triguboff, objector and resident of No. 72 Wentworth Road;
• Ms S Robinson, consultant town planner on behalf of Mr Triguboff; and
• Mr P Fielder, consultant maritime engineer on behalf of objector and resident L V Fink of No. 68 Wentworth Road.

10 The applicant’s evidence came from:

• Mr P J Anink, consultant ecologist and
• Mr J S Parsons, consultant maritime engineer.

11 The issues were summarised by both parties as coming under the following headings:

• context under which to consider the proposal including the statutes and the nature of the land being public land on which the proposal rested versus being private land,
• proliferation of harbourside structures,
• visual clutter of the foreshore and natural features,
• aesthetics of the proposal and its impact on its neighbours,
• heritage impacts on the heritage item the Vaucluse Swim Baths beside the proposal on the south,
• impact on sea grasses and
• navigational constraints.
  

12 Dealing with the last matter. Mr Forsaith was the only navigational expert called. He said the bigger boat, the 43 foot pleasure cruiser, had far different manoeuvring requirements to the existing 9.7 m boat especially in windy and large wave conditions. Due to the proximity of yachts moored at buoys ATO 27 and 51 nearby, there would be navigational conflicts in certain conditions if trying to put a 43 footer into and out of the proposed permanent berth.

13 Both parties had a lot of evidence about how close or how far ATO 27 and 51 were from the proposal. In the end the evidence showed their map location was only an administrative tool to identify the mooring, its lessee, the boat to be moored at it and to enable the Authority to charge rental for it. The tidal depth changes, the direction of the wind, the length of the mooring chain, the length of the boat on the mooring, even the position of the mooring concrete block on the bottom of the harbour, could change to some extent, the latter due to annual raising of the block for maintenance or for replacement.

14 In calm conditions Mr Forsaith acknowledged the 43 footer could get into the berth by reversing in. This was to be the normal mooring position so that one could easily get from the stern onto the pontoon. In difficult conditions it may still be possible to come in forwards but getting off the bow onto the pontoon would be most difficult.

15 Mr Parsons noted the Authority had approved reverse in permanent mooring pens in several other locations in Sydney Harbour with higher wind and wave exposure and that the Vaucluse Baths were closer to the swing moorings than the proposed berth. The point of this being that before any boat on the mooring could swing into a position to hamper a cruiser manoeuvring into the proposed pen, the moored boats would hit the baths. The moored boats would therefore be smaller or the moorings moved so they would not create a navigation hazard for the proposal, Mr Parsons said.

16 Mr Forsaith agreed that ATO 27 and 51, provided they stayed in the map’s location, there would be interference with berthing of the boat only in particular weather conditions. He maintained his position that safe navigation in all conditions and weather into the proposed berth may necessitate the relocation of the moorings because in some conditions the existing boats on the mooring would swing into areas seaward of the baths that would be needed to manoeuvre into the proposed berth with a 43ft cruiser.

17 He did agree that in the current map location any larger boats than those currently moored at those swing moorings were more likely to hit the baths before they would hit any boat in the proposed berth. If the moorings needed to be moved Vaucluse Bay was already full with over seventy moorings, he did not know of any location in the bay where they could be moved to. The lessees of those moorings had reasonable claims to continuity.

18 Mr Forsaith agreed the proposed berth would not project into the zone along the foreshore that was kept free of swing moorings so boats could pass along parallel to the foreshore to the various harbourside properties.

19 Mr Fielder was concerned about restrictions caused by the proposal to No. 68’s casual berthing rights to the end of the Vaucluse Baths. The proposed berth projected well seaward of that location and very close to the end of the baths. Up to a 95 foot boat used the casual berth at No. 68 and the proposal would severely restrict its access.

20 On sea grasses. There were two sea grasses and one seaweed on the site of the gangway, pontoon, jetty and pool. The berth was seaward of the grasses but the shadow of the boat would in the afternoon be cast over grass beds to the south-east of the berth. The pontoon and gangway were to have mesh decks to allow some sunlight through. It was put that the attachment of the swim pool mesh to the bottom of the harbour could have some effect on the grasses within the pool area near the mesh.

21 Mr Anink and Mr Morison agreed the applicable statutes placed the highest and overriding importance to the conservation of sea grass in particular, as they provided habitat for small fish and prawns as a nursery for the fisheries, food of themselves or via parasitic growths on them for the small fish and prawns. They agreed there had been a loss of sea grass in Sydney Harbour, and that loss needed to be arrested and recovery encouraged. They agreed in the end, that there would be an impact on the sea grasses because of the proposal. The point of difference was that Mr Anink thought the beds at the subject site were too small to be important in the overall picture. Mr Morison said any loss of known sea grass beds was to be prevented as there was so little of it left.

22 In regard to heritage, the applicant noted the heritage impact study of Mr Rappaport indicated the proposal had no impact on the Vaucluse Baths heritage item significance. The respondent observed that Mr Rappaport’s report related to the original smaller proposal before the gangway pontoon pen and 43 foot boat was pushed seaward to avoid dredging.

23 Ms Frettingham as a town planner said that the boat in a permanent berth and the structures would obscure most of the heritage item as seen from the main waterway from boats passing Vaucluse Bay. The purpose of the statute was to retain visibility of such items and their settings.

24 This evidence could be seen on the approach and departure from the area. Coming from the west if one knew where to look one could make out the baths through the flotilla of moored vessels in Vaucluse Bay. However, once opposite the bay and oncoming to it from the east or north, one had a direct view to the baths along the zone parallel to the foreshore that is clear of moorings. The baths are unmistakable. The proposed structures and the 43 foot Riviera being quite a high boat, one of which was shown during the view, must almost completely obstruct that view.

25 In regard to visual clutter of the foreshore, and scenic qualities of the harbour, and the proliferation of structures on the shoreline, the respondent’s evidence was that from the subject site north to the main harbour the foreshore structures were relatively small and the retention of the status quo was desirable. The applicant used the large structures of the baths and other large berthing facilities south of the proposal to say it would not stand out against them to such an extent that it should be refused. Also, the shoreline was already covered by structures on the subject site and that extent of covering would not change due to this development application

26 The respondent noted the applicant already had a large boatshed, launching ramp and jetty over the water as part of their existing lease and the proposal extended it considerably and thereby alienated public land and water contrary to the principles of the applicable statutes and controls.

27 The applicant put that the site was in a small embayment of the shoreline that would never play a large role in the scenic attractiveness of the shoreline and was not in a prominent location.

28 The respondent submitted that the new Draft Sydney Regional Environmental Plan for the Sydney Harbour Catchment and its related Development Control Plan to replace SEPP 56, SREP 23 and the DCP for SREP 23 Sydney and Middle Harbours would prohibit such proposals. The draft new regional plan had been through all processes and is now with the Minister recommended by the Director General for gazettal. It is imminent at the time of this hearing.

29 The applicant put the draft statute had a savings clause that it should only be considered in this case as having been exhibited. Nevertheless the existing statutes and controls, although making the proposal permissible with consent, also have provisions that mitigate against the proposal and given the intended future constraints to protect more carefully the harbour ecology and scenic qualities. I find that issues 1, 2, 3, 4 and 9 are determinative and that consent 569/03 granted by the New South Wales Maritime Authority should not be changed.

30 Therefore the orders of the Court are:

1. The appeal is dismissed.
2. The exhibits are returned to the parties except Exhibits 1, 2, 5, 9, A and E.
3. No order as to costs.

___________________

K G Hoffman
Commissioner of the Court
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