Young v Corowa Shire Council

[2005] NSWLEC 386

Land and Environment Court

of New South Wales

CITATION:

Young v Corowa Shire Council [2005] NSWLEC 386

PARTIES:

APPLICANT
Terrence Craig Young

RESPONDENT
Corowa Shire Council

FILE NUMBER(S):

10077 of 2005

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Boat launching ramp - amenity impacts - river activity management

DATES OF HEARING:

16 and 30/05/2005 and 28/06/2005

 
DATE OF JUDGMENT: 

07/19/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr T Young - in person

RESPONDENT
Mr R Parr, Director Environmental Services

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

19 July 2005

10077 of 2005 Terrence Craig Young v Corowa Shire Council

JUDGMENT

Background

1 This appeal was lodged against council's refusal of a development application for a boat launching ramp at the Riverside Waterfront Motel, in Wahgunyah.

2 There are somewhat unusual circumstances with this matter because the site is predominantly located in Wahgunyah, which is subject to the planning controls of Indigo Shire Council, in Victoria. However the site has frontage to the Murray River, where the state border is generally along the highwater mark of the river embankment, on the Victorian side of the river.

3 Insofar as there have been lengthy efforts to accurately define the State border in the vicinity of the subject property, this was not achieved at the time of the hearing, despite extensive correspondence between the respective Surveyor General’s for Victoria and NSW.

4 However, surveyor’s pegs designated A and B were placed on either side the subject ramp for the site inspection. The parties agreed that on the assumption that A-B defined the border, then the launching ramp, as constructed, extends some 5 m into NSW and is therefore subject to the planning controls of Corowa Shire Council.

5 The launching ramp forms part of a concrete driveway that was conditionally approved by the Indigo Shire Council on 10/2/2004. It was constructed in accordance with the approval permit and connects to Cadel Terrace. It is approximately 3.6 m wide with a total length of 42 m to the riverbank.

6 Of this, 5 m then extends over the State border, into NSW and development consent is required from Corowa Shire Council. However, the development application for this extension was refused by council on the following grounds:

1. To minimise environmental impact, degradations of natural resources and or enhance amenity.

2. The development will adversely impact on passive recreational use in the area of the river adjacent to the development.

7 These matters subsequently became the issues considered for the appeal.

Planning controls.

8 The site is subject to the provisions of the Corowa Local Environmental Plan 1989 and also the Murray Regional Environmental Plan No 2 - Riverine Land. It is in Zone No. 7(a) (Riparian Lands and Wetlands Zone).

9 On the basis that the boat ramp is classified as a tourist facility, it is permitted with consent.

The evidence

10 The evidence on behalf of council was presented Mr B Parr, Director Environmental Services. The written submissions contained in council’s bundle of documents, together with other oral objections have been considered.

11 The applicant, Mr Young presented his own case.

12 From the evidence presented, it seems to me that the issues can be confined to:

• management of this section of the river from competing boat user interests,
• embankment degradation,
• visual amenity impacts.

13 The main objections to the proposal arise because the ramp is located opposite Rowers Park Reserve, which is located on the northern side of the river where there are two rowing clubs. These clubs have regular training and undertake events in this section of the river and their representatives consider additional powerboat usage in this section of the river, arising from the use of the subject ramp, is incompatible with the rowing activities.

14 However, this section of the river is currently open for all boats, including power boats, subject to the maximum 8 knot speed limit.

15 In support of the objections to the proposal, Mr Lewis says that the concerns about interaction of the different boats was considered previously by the River Management Committee, which apparently became defunct about five years ago due to lack of funding. Whilst it formulated a draft river usage plan dealing with different user/area requirements for the river, it was never exhibited for public comment or progressed to any approval stage.

16 Mr Lewis confirmed that during his involvement with the rowing club, no surveys on boat usage had been undertaken. He also was unaware of any documentation of any complaint history about past or current usage of this section of the river.

17 Mr Johnson explained his lengthy association with the river and expressed his concerns about the incompatibility of power boats in this section of the river, together with concerns about embankment erosion from powerboat wash.

18 Mr Eyre, President of Corowa Rowing Club considers this section of the river is a passive recreation area, even though the 8 knot limit has existed to some time. He does not consider it priority for the rowing activities to have to co-exist with the power boats in this section.

19 Against this, Mr Young says that the subject ramp was constructed in accordance with the permit over 12 months ago and has been operational since. However its usage has been very limited, comprising only occasional usage from residents of his 10 unit motel and himself. Because of this limited use and the requirement that all powerboat users observe the speed limit, he does not consider there will be any disturbance to the rowing club activities. In fact, he says his guests often sit in the motel grounds to observe the rowing club activities and therefore would not want to interfere with this.

20 In further support for the approval of the ramp, Mr Young submits that currently there are a few ramps on the southern side of the river and the maintenance of this ramp would be beneficial in emergency situations when powerboat access is required. In fact the following conditions are imposed on the permit:

(i) Government and Emergency boats and vehicles access to the boat ramp hereby approved.
(ii) The Public access to the adjacent river frontage.

21 Apart from this, Mr Young noted that the application had been notified extensively to various NSW government departments, who raised no substantive objections to its maintenance and its future use.

Conclusions

22 Having considered the evidence, the submissions are undertaken a view, I consider this application merits consent.

23 The main objection to the proposal, supported by Mr Parr is that the incremental increase in powerboat usage from the motel ramp will unduly disrupt adjacent rowing activities. However, it appears there are no current limitations on mixed boat usage in this section of the river. Power boats are entitled to use this section, subject to the 8 knot speed limit. In this regard, the Court assumes that drivers observe legal speed limit and aware of penalties for non-compliance.

24 This mixed use has existed for some time and apparently there is no documented history of complaints of incompatible boating type uses. Taking into account the other picnic grounds and recreational uses along the river that were brought to the Court’s attention, it seems to me that the concerns expressed by that objectors are unlikely to be realised, based on the past history.

25 I also consider it reasonable to give some weight to the fact that surprisingly, there is no management/recreational use plan for this section the river. Insofar as the objectors agreed such a plan was a good idea, it has not progressed, indicating it is apparently a low priority and not considered necessary for the recreational use of this section the river. Accordingly I consider it will then be unreasonable to now restrict access to the river from the subject site, considering the limited incremental increase in boat launching opportunities from the motel.

26 Insofar as the application was referred to various government authorities, the responses are somewhat fragmented and inconclusive, as follows:

• Waterways Authority: "Granting of the above-mentioned application will not prejudice the interest of safe navigation.” …
• DIPNR: Recommends that council include a set of conditions in any consent granted by council, so as to protect the environment "similar conditions will be placed of any license issued under the Crown Land Act 1989) ...
• NSW Fisheries: If this work is authorised by a relevant public authority (DIPNR) then a permit from NSW Fisheries is not required. General information is included regarding conditions for boat ramp construction …
• EPA: The EPA has reviewed the documentation supplied and provides the following information for council’s consideration.


1. The proponent does not need to hold a license for the works under legislation administered by the EPA. However the proponent must still ensure that all precautions are taken to ensure that pollution is kept to an absolute minimum.
2. The proponent should advise council of erosion and sediment control works that will be undertaken to minimise sediment loss and reduce the turbidity of the immediate waters of the Murray River foreshore.

• MurrayDarling Basin Commission: The Commission's role is to ensure that water quality of the River Murray is maintained or improved, contributing to the protection of the Riverina and Floodplain environment.
• On the basis of information provided, the Commission will expect specific requirements of relevant NSW agencies such as the Department of Environment and Conservation and the Department of Infrastructure, Planning and Natural Resources to be met.

27 It is apparent then, that this relatively minor development has been notified extensively to the various authorities and their responses do not in my opinion, provide any substantive reasons to refuse this application. Instead it appears the application is supported, subject to the imposition of appropriate conditions. In this regard, the council has provided its set of draft conditions, as required by the Court Rules, which presumably cover all relevant authorities requirements. They include conditions requiring adequate measures to be taken to minimise erosion and bank disturbance.

28 I also note that the applicant has provided additional management conditions, to ensure that guests of the motel are aware of the restrictions on using this section of the river, so that they do not cause disruption to the rowing activities. I consider it reasonable to impose these conditions.

29 With respect to the other amenity issues, I consider them of a relatively minor nature. Insofar as the constructed ramp does have a visual impact from the northern side of the river, the 5 m section encroaching into NSW, is indiscernible, in the context of the approved 42 m access way, and accordingly I consider it would be unreasonable to reject the development application for this section.

30 Another aspect that was raised during the hearing concerns the reasonableness of imposing a trial period on any consent. In this regard, I note Mr Young’s objection because the ramp has been completed for over 12 months now, and even though its use has been limited, no complaints have been made. Nevertheless, I consider it reasonable to grant consent on the basis the 12 months trial period, so that any river management issues can be assessed and implemented during this period, if necessary to ensure adequate public safety and amenity.

31 Therefore the orders of the Court are:

1. The appeal is upheld.

2. Development consent is granted to DA No. 004/153 for boat launching ramp at 7-9 Cadel Terrace, Wahgunyah, in accordance with the conditions in Annexure A.

_______________________
R Hussey
Commissioner of the Court
rjs