Land and Environment Court (Sydney Harbour Catchment) 2005

.^:^.
Land and Environment Court
New South Wales
Case Title
Rose Bay Marina Pry Limited vWoollahra
Municipal Council and anor
Medium Neutral Citation
Hearing Date(s)
20, 2, and 22 November 2012
Decision Date
20 March 20.3
Jurisdiction
Class I
Before
Moore SC
AdamAC
Decision
See paras (137) and (138) and directions in
(, 39)
Catchwords
View impact; PLANNING PRINCIPLE:"A
planning principle for public domain views"
Legislation Cited
Environmental Planning and Assessment
Act, 979
Sydney Regional Environmental Plan
(Sydney Harbour Catchment) 2005
Woollahra Local Environmental Plan 1995
Sydney Harbour Foreshores and Waterways
Area Development Control Plan 2005
Cases Cited
Addenbrooke Pty Ltd v Woollahra Municipal
Council[2008] NSWLEC 190
Addenbrooke Pty Ltd vWoollahra Municipal
Council(No. 2)[2009] NSWLEC, 34
BGP Properties v Lake Macquarie City
Council[2004] NSWLEC 399;(2004) 138
LGERA237
Manzie v Willoughby City Council(, 996)
NSWLEC 26
Tenacity Consulting v Warringah [2004]
NSWLEC 140;(2004), 34 LGERA23
Zhang v Canterbury City Councilt200.1
NSWCA 167;(2001)1/5 LGERA 373
Texts Cited:
Category:
Parties:
Principal judgment
Rose Bay Marina Pty Limited (Applicant
Woollahra Municipal Council(First
Respondent)
Sydney Harbour Association (Second
Respondent)
Representation
- Counsel:
Mr A Galasso SC and Mr A Pickles
(Applicant)
Mr N Hutley SC and Mr S F1annigan (First
Respondent)
Mr M Rolfe (agent)(Second Respondent)
- Solicitors:
King Wood Mallesons (Applicant
Norton Rose (First Respondent)
N/A (Second Respondent)
File number(s):
10840 of 2012
Publication Restriction:
JUDGMENT
"Believe me, my young friend, there is NOTHING--absolutely
nothing--halfso much worth doing as simply messing about in
boats. "
From "Wind in the Willows" by K Graham
Introduction
I THECOMMISSIONERS: Sydney Harbourisa highly desirable waterway
forthose sharing Ratty's views and themselves seeking to mess aboutin
boats. It is also a self-evidenttruth that Sydney Harbour is the central
spine of a major urban area. The variety of ways in which sections of the
Sydney community wish to use Sydney Harbour as an active waterway,
both commercial and recreational, has necessitated implementation of a
structured planning regime for its waters, including the introduction of
zones to regulate permitted uses of the waterway.
The south-western corner of Rose Bay, a major bay on the southern side
of the Harbour near its mouth, has been zoned as a location where
commercial marinas and swing moorings may be provided sothat vessels
utilising them are accessible to their owners in a convenientfashion.
The dispute with which we are concerned in this appeal relates to the
acceptability or otherwise of the proposed addition of a third Arm
(proposed Arm C)to the existing commercial Rose Bay Marina and some
other minor changes to the existing facilities of this marina. The specifics
of the proposal are set out in more detaillaterin this judgement.
This is the third occasion on which the Court has considered a merit
appeal under the Environmental Planning andAssessmentActi979 (the
EPA Act)in relation to the general appropriateness of(or a particular
design aspectfor)the marina,
The first occasion was in 2008 when Biscoe J dismissed an appeal in
Addenbrooke PtyLtd v Woollahra MunicjoalCounci1[2008] NSWLEC 190
(Addenbrooke 2008). On that occasion the single application was for
redevelopment of two separate marinas -the Rose Bay Marina and the
Point Piper Marina.
The following year, separate development applications were submitted for
each of the two marinas. Relevantly for us, the Rose Bay Marina proposal
differed from that advanced in 2008 in a number of respects, including a
reduction in the number of boats and changing the orientation of the
proposed berths, The 2008 design involved three arms trending east-west
roughly parallelto the Rose Bay Promenade. The 2009 proposal was for
three north-south arms (referred to, from westto east, as Arms A, B and
C). At the southern end, the arms were proposed to extend off a floating
walkway roughly parallelto the shore. (Addenbrooke PtyLtd v Woollahra
Municfy:>alCouncil(No. 2)[2009] NSWLEC134 -Addenbrooke 2009).
Biscoe J, in Addenbrooke 2009, granted conditional consent to both the
Point Piper and Rose Bay marinas but with modifications to the proposals.
In the case of the Rose Bay Marina, the changes required by Biscoe J
involved deletion of the whole of the eastern Arm C, reduction in the
number of vessels on the other arms and heightrestrictions on vessels in
particular berths.
The current proposal
8 This proposal forthe Rose Bay Marina is forthe establishment of nine new
berths on the western side of existing Arm A with each being capable of
accommodating a 10 in vessels (these new permanent berths to be in the
area currently available for casual berths) and forthe construction of a new
arm to be known as Arm C.
The proposed Arm C would be ~, 06 in long with a connecting link alits
southern end to the existing marina walkway at the southern end of Arm B.
The proposed Arm C would accommodate an additional thirty-seven
vessels as follows:
Nineteen berths, 10 in long, on its eastern side;
.
Two berths berths, 15 in long, alits northern end;
.
Two berths, 10 in long, at the southern end on the western side;
and
.
Fourteen berths, I5 in long, on the western side.
Two public viewing platforms, with bench seating, would be constructed
(one at the north-eastern end of proposed Arm C and the other on the link
walkway at the junction between the existing walkwayto Arm B and the
new link to proposed Arm C).
Of the severity current commercial swing moorings held by the Rose Bay
Marina, forty six would be relinquished, nineteen would be retained and
five relocated, so that the number of vessels capable of being
accommodated within the marina would remain the same.
Although the balance between fixed berths and swing moorings would
differ(butthe overall number remain the same), because of restrictions on
the size and nature of vessels using the fixed berths, riot all vessels
currently using the swing moorings to be relinquished would be able to be
accommodated in the fixed berths. The reconfiguration of the commercial
swing mooring field is designed to create a view corridor, as observed from
the Esplanade, to the east of proposed Arm C,
First, we observe that there are three differences between the proposed
Arm C advanced in this application and proposed the Arm C that was
considered by Biscoe J in Addenbrooke 2009. Those differences are:
.
Arm C is now slightly skewed so that its orientation is said to
improve the view corridor available toward the north across the
harbour and to Manly Cove in the distance;
.
the width of Arm C and the boats to be berthed at it is reduced; and
o
heightlimits are proposed for vessels to be berthed at Arm C so
that the ability to look overthese vessels will be increased, thus
also opening up better views to the north.
In addition, the applicant says that there are five benefits to be obtained
from permitting Arm C. These are said to be:
.
the extent of the bay occupied by boats would be reduced (although
the applicant conceded that there would be a greater visual mass in
concentrated form ifthis were to occur);
.
there would be a view corridor and navigation channelto the east of
proposed Arm C which would provide a view corridor unobstructed
by boats on swing moorings and a navigation channelfor smaller
watercraft to travelto the open waters to the north;
.
the creation of the two public viewing areas on proposed Arm C with
public access to be permitted to them;
.
what was described as a separate benefit of enhanced public
access to the waterway; and
.
a reduction of the ecological impact of swing moorings as a
consequence of boats being berthed at a fixed structure rather than
attached to concrete blocks on the bay floor which were subject to
what was described as a "chain dragging impact on sea grasses"
The decision to refuse the proposal
15 The Sydney East Joint Regional Planning Panelrefused the development
application on 13 September 2012. Of the five paragraphs of the panel's
determination, three are relevant to us. They are in the following terms:
3. The principal reason for refusal is that the additional Arm would
increase the cumulative view impact adversely. It may be that a
restriction on the height of vessels proposed by the Sydney
HarbourAssociation and accepted by the applicant would allow a
view of Manly overthe top of boats; however, the view of the
foreground, just as importantin the Panel's opinion, would be
further obscured.
4. The Panel unanimously agrees with the planning assessment
reportthat 9 extra berths on Arm A are acceptable because the
visual impact is negligible.
5. In the opinion of two Panel members (John Roseth and Paul
Stein), the appropriate balance between fixed berth boats and
water in Rose Bay has been reached, if not exceeded in favour of
boats. In other words, Rose Bay already has as much marina as it
can visually support.
It is important to note that, in the context of the present proceedings, the
first and second paragraphs quoted above addressed matters that we are
required to determine.
With respect to the final paragraph quoted, we observe that the present
proceedings are to be decided on the facts and circumstances of the
particular application we are considering. It is riot appropriate for us to
adopt or endorse the sweeping assertion made aboutthe broad contextfor
(and hypothesised expected fate o0 possible future marina developments
that might be proposed for Rose Bay - particularly that they should be
excluded as a matter of principle.
18
The legal position, it almost goes without saying, is that any future
application for marina development in Rose Bay can only be determined
on the basis of the facts and circumstances applicable to such an
application (precisely as is the position with this application).
19
It is againstthe decision of the Joint Regional Planning Panelthatthis
appeal is made. The appeal is opposed by Woollahra Council(the
council).
Marinas are designated development under the EPA Act. One objector,
the Sydney HarbourAssociation, was heard at the appeal as ifit were
party to the appeal as provided form s97 (4) of the EPA Act. The
Association is the successor body to the Sydney Harbour and Foreshores
Committee which appeared as second respondentin Addenbrooke (2008)
and Addenbrooke (2009).
The planning framework
21 Division 2 of the SydneyRegionalEnvironmentalPlan (SydneyHa, bour
Catchment1 2005 (the regional plan) applies to the proposal. The regional
plan is deemed to be a State Environmental Planning Policy.
The regional plan makes provision for zones with the relevant zone forthis
portion of Rose Bay being W5 -Water Recreation. The proposal is
permissible within this zone. Two of the seven objectives of this zone are
raised by the council as relevant. These are:
(d) to allow commercial water-dependent development, but only
where it is demonstrated that it meets a justified demand, provides
benefits to the general and boating public and results in a visual
outcome that harmonises with the planned character of the
locality,
and
(9) to ensure that the scale and size of development are
appropriate to the locality, and protect and improve the natural
assets and natural and cultural scenic quality of the surrounding
area, particularly when viewed from waters in this zone orfrom
areas of public access.
Division 2 of the regional plan is entitled Matters for consideration. Clause
20, within this division, requires, relevantly that:
The matters referred to in this Division (together with any other
relevant matters):
(a) are to be taken into consideration by consent authorities
before granting consentto development under Part 4 of the Act
Of the clauses within Division 2, c1 25 deals with Foreshore and waterways
scenic qualitywhilst c126 deals with Maintenance, protection and
enhancement of views.
The council presses two of the three provisions in c125 and the totality of
c1 26 as bases upon which, after proper consideration as required, the
present proposal should be rejected. The provisions of c125 relied upon by
the council are:
25 Foreshore and waterways scenic quality
The matters to be taken into consideration in relation to the
maintenance, protection and enhancement of the scenic quality of
foreshores and waterways are asfollows:
(a)
,
(b) development should maintain, protect and enhance the
unique visual qualities of Sydney Harbour and its islands,
foreshores and tributaries,
(c) the cumulative impact of water-based development
should not detractfrom the character of the waterways and
adjoining foreshores.
26
The terms ofc126 are:
26 Maintenance, protection and enhancement of views
The matters to be taken into consideration in relation to the
maintenance, protection and enhancement of views are as follows:
(a) development should maintain, protect and enhance
views (including night views) to and from Sydney Harbour,
(b) development should minimise any adverse impacts on
views and vistas to and from public places, landmarks and
heritage items,
(c) the cumulative impact of development on views should
be minimised,
The Council also presses that the proposal should be refused when it I
assessed againstthe relevant provisions of the SydneyHarbour
Foreshores and WaterwaysArea Development ControlPlan 2005 (the
DCP).
The DCP's general aims for Landscape Assessment are in c1 3.2 in the
following terms:
All development should aim to:
. minimise any significantimpaclon views and vistas from
and to:
- public places,
. landmarks identified on the maps accompanying the DCP,
and
- heritage items;
- ensure it complements the scenic character of the area;
Part 4 of the DCP contains Design Guidelines for WaterBased and
LandWaterlnterface Developments.
These design requirements requiring consideration are set out in c14.2
General Requirements. Of the twelve requirements there set out, the
councilrelies on the eighth - that any such development does not
dominate its landscape setting,
A range of more detailed matters are set outin 4.7 Marinas (Commercial
and Pn'vate). Under the heading Visual Impact, the DCP provides a note:
Note: For detailed provisions on how to undertake a visual impact
analysis see Appendix D in this DCP.
After this note follow eight points of which the council presses two. These
are:
the visual impact of the marina on people in the visual
catchment(derived from an analysis of the potential
number of viewers, theirlocation within the landscape,
distance from the marina, and duration of view) is to be
minimised;
waterside structures and berthed vessels associated with
marinas are riot to block views from foreshore public open
space or views to foreshore public open space from the
waterway
As this application is riot one to which s 79C(3A) of the Environmental
Planning andAssessmentAct, 979 applies, the principles enunciated by
the Court of Appeal, in Zhang v Canterbury City Councilt200.1 NSWCA
167; (2001) 1.5 LGERA 373, are applicable to our consideration of these
provisions of the Development Control Plan.
Whilstthe council also pressed matters said to arise as a consequence of
the provisions of the Woollahra Local Environmental Plan 1995 (the LEP),
the regional plan contains a privative provision in c1 7(2). As we consider
that the regional plan relevantly "covers the field" this privative provision
has the effect of excluding any consideration of the provisions of the LEP.
The site inspection
35
We inspected the present marina from both the shore and some of
waterway elements. We also undertook in a boatinspection of portion of
the Rose Bay through where the relevant swing moorings are located,
some being operated by the applicant and others being private swing
moorings. During the course of the site inspection, we were able to
observe, from buoy markers positioned by the applicant, the location of the
extremities of the proposed Arm C to the marina and, by the manoeuvring
and positioning of two boats of differing sizes (but typical of vessels that
might be berthed at the proposed Arm C ifit were to be approved), gain an
appreciation of how such vessels mightinterpose into the existing outlook
from a number of viewing points along the Rose Bay Promenade in the
vicinity of the marina and beyond towards the Rose Bay public wharf.
36
In the course of the site inspection, we also heard extensive evidence from
objectors to the proposal and, also, informal expert evidence on visual
impact assessment matters.
Objections by other users of the inshore waterway
37
In addition to the objector evidence concerning visual impacts of the
proposed Arm C forthe marina, we also heard evidence from
representatives of other inshore water userinterests about whatthey
considered would be the adverse impacts of the proposed Arm C on their
activities. These inshore users included kayakers, rowers and Dragon Boat
crews. The proposed Arm C to the marina would, it was said by all of these
users, provide obstructions, of varying kinds, to their manoeuvring in or
enjoyment of the waters that are presently available to them in the
absence of this proposed marina structure.
In addition, we heard some further evidence concerning the obstruction of
navigation from existing pontoons immediately adjacentto the operating
shore structures of the present marina and concerns about obstruction of
passage around the south-western corner of existing Arm A of the marina
ifthe additional berths proposed forthis arm of the marina were to be
permitted.
A planning principle for public domain views
Introduction
39
Tenacity Consulting v Warnhgah [2004] NSWLEC 140;(2004), 34 LGER
23, sets outthe planning principle for considering the acceptability of the
impact of a proposed development on the views enjoyed from private
property in the vicinity of the development. This planning principle was
adopted through the collegiate process that has been described on the
Court's website forthe derivation of such principles.
In these proceedings, we discerned the potential for developing a planning
principle setting out a process for assessing the acceptability of the impact
of private developments on views from the public domain in the vicinity of
the development.
To this end, we identified the potential for such a planning principle to the
advocates forthe parties and sought submissions from them about such
matters of general principle. These submissions were in addition to their
submissions on the specific matters subject of the present proceedings. As
we have developed such a planning principle through the broad collegiate
basis earlier noted, we express our appreciation forthe assistance we
received from allthree parties on this point. The planning principle set out
below, of course, is that of the Court rather than that of any or all of those
parties.
The framework for a planning principle concerning impacts on views
enjoyed from the public domain is broadly consistent with (but riotidentical
to)the matters raised for consideration in Tenacity. The process must
accountforreasonable development expectations as wellas the
enjoyment of members of the public of outlooks from public places,
The steps for determining the acceptability of the impact on views from the
public domain are in two stages - the firstfactualfollowed by a second,
analytical process.
Identification stage
The first step of this stage is to identify the nature and scope of the existing
views from the public domain. This identification should encompass (butts
riot limited to):
. the nature and extent of any existing obstruction of the view;
o relevant compositional elements of the view (such as is it static or
dynamic and*ifdynamic, the nature and frequency of changes to
the view);
. what might riot be in the view - such as the absence of human
structures in the outlook across a natural area (such as the view
from Kanangra Walls);
. is the change permanent ortemporary; or
. what might be the curtilages of important elements within the view.
The second step is to identify the locations in the public domain from which
the potentially interrupted view is enjoyed.
The third step is to identify the extent of the obstruction at each relevant
location.
. Unlike Tenacity (which adopts the proposition that sitting views are
more dimcultto protectthan standing views), the impact on
appreciation of a public domain view should not be subject to any eye
height constraint. A public domain view is one that is forthe enjoyment
of the whole population, old or young and whether able-bodied or less
mobile. It is riot appropriate to adopt some statisticalIy derived
normative eye heightforthe assessment of such views (such as the
conventionalIy adopted 1.6m eye heightforthe assessment of
overlooking privacy impacts). Indeed, some views (such as that from
Mrs Macquarie's Chairtoward the Opera House and Harbour Bridge)
may well be ones likely to be enjoyed frequently from a seated position.
The fourth step is to identify the intensity of public use of those locations
where that enjoyment will be obscured, in whole or in part, by the
proposed private development.
The final step to be identified is whether or riotthere is any document that
identifies the importance of the view to be assessed.
. This will encompass specific acknowledgment of the importance of a
view (for example, by international, national, state or local heritage
recognition) or where the relevant planning regime promotes or
specifically requires the retention or protection of public domain views.
However, the absence of such provisions does not exclude a broad public
interest consideration of impacts on public domain views.
Analysis of impacts
First, we observe that the analytic stage we propose does riot mandate
derivation of any formal assessment matrix. Consistency of evaluation of
the acceptability of impacts on a public domain view is not a process of
mathematical precision requiring an inevitable conclusion based on some
thin a matrix, However, some may find their preparation of a graduated
matrix of assistance to them in undertaking an impact analysis.
The analysis required of a particular development proposal's public
domain view impactis both quantitative as well as qualitative.
Ifthere is a planning document with an objective/aim forthe maintenance,
protection and/or enhancement of public domain views, such an
objective/aim would appearto create a presumption againstthe approval
of a development with an adverse impact on a public domain view.
However, merely adopting and applying such a presumption would be
entirely inappropriate.
The relevant weight to be given to such an objective/aim will depend on
the status of the document containing it and the terms in which it is
expressed. An objective/aim proposing "preservation" of views may be
accorded a differing weightto one that proposes "minimisation of impacts"
on such a view.
A quantitative evaluation of a view requires an assessment of the extent of
the present view, the compositional elements within it and the extentto
which the view will be obstructed by or have new elements inserted into it
by the proposed development.
In the absence of any planning document objective/aim, the fundamental
quantitative question is whether the view that will remain after the
development(if permitted) is still sufficient to understand and appreciate
the nature of and attractive or significant elements within the presently
unobstructed or partially obstructed view. Ifthe view remaining fifthe
development were to be approved) will be sufficient to understand and
appreciate the nature of the existing view, the fundamental quantitative
question is likely to be satisfied, The greater the existing obstruction to a
view, the more valuable that which remains may be (the desirability of
preserving a partially obstructed view, however, will emerge from the
qualitative evaluation process discussed below - it may be that
preservation of a significantly obstructed view would be mere tokenism).
On the other hand, the qualitative aspect of a public domain view
assessment is much more nuanced. Such a qualitative evaluation requires
- 14 -
an assessment of the aesthetic and other elements of the view. The
outcome of a qualitative assessment will necessarily be subjective.
However, although beauty is inevitably in the eye of the beholder, the
framework for how an assessment is undertaken must be clearly
articulated. Any qualitative assessment must set outthe factors taken into
account and the weight attached to them. Whilst minds may differ on
outcomes of such an assessment, there should riot be issues arising
concerning the rigour of the process.
As with Tenacity, a high value is to be placed on what may be regarded as
iconic views (majorlandmarks such as the Opera House or the Three
Sisters, for example, or physical features such as land/water interfaces).
However, a view that is entirely unobstructed is also valuable.
Other factors to be considered in undertaking a qualitative assessment of
a public domain view impact include (but are riot limited to):
.
.
.
.
.
.
.
Is any significance attached to the view likely to be altered?
If so, who or what organisation has attributed that significance and
why have they done so?
Is the present view regarded as desirable and would the change
make it less so (and why)?
Should any change to whether the view is a static or dynamic one
be regarded as positive or negative and why?
Ifthe present view attracts the public to specific locations, why and
how will that attraction be impacted?
Is any present obstruction of the view so extensive as to render
preservation of the existing view merely tokenistic?
However, on the other hand, ifthe present obstruction of the view is
extensive, does that which remains nonetheless warrant
.
preservation tit may retain all or part of an iconic feature, for
example)?
Ifthe change to the view is its alteration by the insertion of some
new element(s), how does that alter the nature of the present view?
A sufficiently adverse conclusion on the impact on views from the public
domain may be determinative of an application. However, it may also be
merely one of a number offactors in the broader assessment process for
the proposal.
The impacts of proposed Arm C on land-based views
60
The nature and acceptability (or otherwise) of the visual impact of
proposed Arm C when viewed from the Rose Bay Promenade wasthe
dominant, vigorously contested central issue in the proceedings.
It is appropriate that we commence our analysis of this issue with some
preliminary observation aboutthe viewing rather than of view itself, First,
we are satisfied that it is likely that the viewing will be undertaken in transit
whether from east to west or west to east, whilst either walking along the
Rose Bay Promenade ortravelling in a vehicle along New South Head
Road.
We also observe that, although there will be alterations to the view when
the transitis along New South Head Road, we are satisfied that the
determinative issue for our consideration is the impact on those viewing
whilst moving along the Rose Bay Promenade -whether doing so at a
gentle amble or at a more robust and accelerated fitness seeking jog (or
faster). Some of those undertaking the transit along the Promenade will
also enjoy the view from seats available adjacentto the Promenade's path
or while stopping to chat with other users (this latter being observed during
the site inspection).
It is also relevant, at this point, to observe that our analysis of the view
impact of the proposed Arm C on those using the Rose Bay Promenade is
defined by two elements in an observer's line of viewing to the north while
walking along the Promenade. The firstis that set outin the planning
principle that we are earlier enunciated - namely that it is riot appropriate
to adopt some specified nominal eye height viewing-limitfor assessing
what should be regarded as the extent of the impact of the proposed
development on those who would be observing it.
Second, self-evident to those who participated in the site inspection or who
are regular users of the Rose Bay Promenade, the heritage listed seawall
- 16 -
that forms the wall and solid balustrade between the Promenade and the
water also sets a physical height barrier to enjoyment of the view forthe
very young.
We have had the advantage of hearing, both on-site and in court, expert
evidence on both heritage and visual impactissues. During the course of
the site inspection, we were able to traverse the Rose Bay Promenade in
both directions. We also stopped at a number of locations that had been
identified as relevantfor visual impact assessments. At these locations, we
were able to gain an appreciation of the view that is presently enjoyed and,
at a number of them, were assisted by before and after photomontages
prepared by MrWyatt, the visual impact assessment expert forthe
applicant.
As earlier noted, there were marker buoys that showed the location of the
proposed Arm C. The two representative vessels arranged by the
applicant undertook manoeuvres to assist us appreciate what would be
seen of a vessel of either of these particular heights. The representative
vessels took positions at both the outer and innermost points of the
proposed Arm C. These vessels were used to demonstrate the proposed
maximum heights of vessels capable of being berthed on this arm and how
they would sitin the view to the north.
It is appropriate to describe, from three different perspectives, in a little
detail, the view as it is now and as it would be ifthe proposed Arm C were
to be approved.
The firstis that of a person walking to the east along the Promenade and
coining pastthe eastern wall of the existing restaurantlmarina building; the
second is that of a person walking from east to west along the Promenade
from the vicinity of the public wharf; and, finally, the view of those looking
to the north from points on the Promenade in the vicinity of a projection of
proposed Arm C to the Promenade itself(whether arriving by walking east
or west to this location).
-17-
In each instance, we describe the present view over Rose Bay from the
Promenade and the view that that would resultifthe proposed Arm C were
to be approved.
When moving to the east, pastthe corner of the restaurant/marina
building, there is but a smallimpression (to the left) of the existing Arm B
of the marina. However, the primary view is to the east and north-east
across Rose Bay (to and beyond the public wharf)taking in the view of the
shoreline of Vaucluse and the builtforms extending to its ridgeline. As the
viewer traverses further to the east, looking to the left, the long view is
across the expansivewaterway of Sydney Harbour- past any element of
Arm B -toward the shoreline at Manly Cove.
The foreground is interspersed with an eclectic range of watercraft on
swing moorings, interspersed with buoys without any vessel attached.
At the time of our inspection, the types of vessels on the swing moorings
ranged, in their social style, from the quite humble to the much more
splendid. We have no reason to believe that this mix of watercraftis riot
typical of that which generally inhabits the Rose Bay swing moorings.
In Addenbrooke 2008, Biscoe J observed, as part of para 70:
The nature of a swing mooring is that it needs a large area of
water around the boat to enable it to move with the wind, his
therefore a constantly changing image and one in which the built
element is secondary to the water. Swing moorings are
characteristic of Rose Bay and an important and pleasant part of
the view.
Depending on the tide and wind, the orientation and degree of motion of
the boats on the swing moorings will vary. It is, however, true to describe
the swing moorings aspect of the outlook as a dynamic one - whether the
changes in the outlook kaleidoscope are dramatic, as occurs with a shift in
wind direction, or more subtle as a consequence of movements of the
water(whether by tide and waves orfrom the wash of movement of
powered watercraft passing). This general and dynamic outlook remains
as the viewer continues eastward.
Ifthe proposed Arm C were to be constructed, an eastward moving
observer would, at the time of passing the eastern corner of the
restauranVmarina building, initially have much (but riot all) of the earlier
described eastward view interrupted. The present view with the swing
moorings in the foreground would be replaced to some extent, alleast, by
the builtform of the proposed Arm C and the boats that would be berthed
alit. The view of elements of the land/water interface at Vaucluse and the
headland in Nielsen Park would be lost but a significant portion of the built
form to the Vaucluse ridgeline would remain above the line of boats on the
proposed Arm C.
During the course of the site inspection and during the expert evidence in
court, there was discussion aboutthe impact, when looking towards the
proposed Arm C and envisaging the vessels that would be berthed alit, as
to the extentthatthere would be an interruption to the longer view to the
north across the harbour and to the shoreline at Manly Cove. At the eye
heights proposed as appropriate by Mr Wyatt (orfrom lower eye height
viewing points), it was our understanding that there would be a loss of the
land/water interface at Manly Cove when viewing directly along the
proposed Arm C or across vessels berthed alit. This is to be contrasted
with the present position where, although there is some interruption to that
view as a consequence of vessels on the swing moorings, such an
alteration is riot of the permanent, more regimented nature as would arise
ifthe proposed Arm C were to be permitted.
Mr Wyatt's individual Statement of Evidence provided opinions on (and
photomontages demonstrating)the outlook (at present and with the
proposed Arm C inserted)from various locations along the Promenade
including the viewing points in close proximity to a location where a
nominal extension of the proposed Arm C to the Promenade. From these
.19.
viewing points and from a limited transit across this short section of the
Promenade, the change is quite significant. The present slightly ariarchic
arrangement with swing moorings in the foreground, as earlier described,
would be replaced by three distinct elements. The firstis an open water
corridorthat would comprise the access way between the existing Arm B
and the proposed Arm C. The second element would be the proposed Arm
C and the vessels berthed alit. The third element would be the clear water
access way, to the east of the proposed Arm C, between the proposed
Arm C and the residual, remaining swing mooring field,
This outlook is not merely physically different, it is, in our assessment,
qualitativeIy different - in that it is a significantly more regimented outlook
than that which presently obtains.
Forthe viewer traversing from east to west along the Promenade, much of
the proposed Arm C would be subsumed by or merged into the view of the
existing marina development on the site and the additional marina
developments to the north-west at other facilities, It is only after the
viewing line of such an observer passed the outermost vesselthat would
be berthed on the proposed Arm C (and thus extended beyond a viewing
of the outermost vessel berthed at any of the marina facilities to the northwest)that the proposed Arm C would have any practical impact.
Analysis of the view impacts from the Promenade of the proposed Arm C
80
As a consequence of a process agreement between Mr Harrison, town
planner forthe applicant, MrWyatt, the visual impact assessment expert
forthe applicant, and Mr Moody, a town planner dealing with both these
areas of expertise forthe council, we had a single joint experts' report on
the combined matters of impact on views and the interaction of this with
the relevant planning controls. The coalescing of these areas of expertise
has the effect of rendering our primary tasks as being to assess the nature
of the impact of the proposed Arm C on the views and then to assess that
againstthe relevant planning controls, primarily those contained in the
regional plan.
We note, first, that MrWyatt's overall assessment of the impactis, as we
understand it, that the impact would be acceptable. his our understanding
of his oral evidence, his written expert report of October 20.2 and the joint
expert report that he does riot say that there is a net positive outcome of
the proposed Arm C. His conclusion appears to us to be that, overall, th
creation of the additional view corridors offsets, adequately, any
interruptions that are created to the views and thus render the proposal
acceptable.
The applicant's position on the visual impact of the proposed Arm C was
based on an analysis by Mr Wyatt assuming that a minimum eye heightfor
an observer should be adopted based on population statistics - a
proposition that we rejected, earlier, in the planning principle which we
have enunciated. The adoption of this analysis based on what was said to
be a normal minimum viewing eye height did notembody any concession
that the impact on those viewing from a lower eye level was unacceptable.
Indeed, MrWyatt gave evidence (both in the jointreporland orally)that he
did riot consider that viewing from a lower level would be uriacceptably
impacted.
It is true that this portion of Rose Bay is zoned W5 and that this zoriing
encourages water based development. Indeed, the extent of the existing
marina and other marina developments to the north-west demonstrates
that such development can exist comfortably within the element of Rose
Bay that has this zoriing. In that regard, this is not an instance such as that
discussed in BGPProperties vLake Macquarie City Council[2004]
NSWLEC 399;(2004), 38 LGERA 237 where the question of whether or
riot a particular parcel of land was capable of being used for a purpose for
which it was zoned requires consideration. In this instance, the present
marina and the other marina developments in this element of Rose Bay
already exist - thus demonstrating that such development can be
accommodated at those locations. The issue, here, is whether such
existing and permissible development should be extended further within
-21 -
the scope of the area of the bay zoned as potentially capable of
accommodating it.
There are, in essence, three qualitative differences between that which is
there at the presenttime and that which would be observed ifthe proposed
Arm C were to be approved. These differences can be summarised as
being:
.
regimented view corridors and a rigid structure roughly
perpendicular to the shoreline would substitute forthe views
through and beyond the present swing mooring field at this point;
.
the nature of the view available to the north would be changed with
viewing overthe vessels or structure of the proposed Arm C
removing part of the land/water interface at Manly Cove; and
.
the qualitative nature of the foreground view changing from the
eclectic, kaleidoscopic nature of the present swing mooring field to
the organised nature of vessels berthed at a marina.
It is in the context of these differences that we turn to a consideration of
the matters contained in the regional plan.
We observe, in passing, that c1 2(2)(b) of the regional plan adopts the
principle that:
the public good has precedence overthe private good whenever
and whatever changes is proposed for Sydney Harbour or its
foreshores.
Whilst, in the overall context of our decision, this is merely a broadly
guiding principle, it nonetheless assists in understanding the overall
contextforthose who prepared the plan.
The regional plan places an obligation on a consent authority, us in this
instance, of how we are to approach the relevant objectives forthe W5
zone set outin the zoriing table, This requirement is contained in clause
17(2) which reads:
Except as otherwise provided by this plan, the consent authority
must riot grant development consent to any development unless
satisfied that it is consistent with the aims of this plan and the
objectives of the zone in which it is proposed to be carried out.
We must consider the view impactfrom the Promenade of the proposed
Arm C both againstthe regional plan and the three aspects of the DCP
that are set out in paragraphs (30) to (32) above. It is convenientto restate
the three aspects of the design guidelines for water-based developments
contained in Part 4 of the DCP upon which the councilrelies. They are, in
summary, general requirement that such a development does riot
dominate its landscape setting and, more specifically concerning marinas,
what might be summarised as minimisation of visual impact and the fact
that structures and vessels associated with marinas are riotto block views
from foreshore public open spaces.
Appendix D to the DCP sets out a process for undertaking a visual impact
assessment for marinas. The Appendix commences by rioting that the
purpose of the appendix is:
....... to assist proponents in evaluating the potential impact of boat
storage facilities (particularly marinas) in various scenarios and
minimise these impacts when designing a marina and preparing a
development application.
It is clearthat such a visual impact assessment, if undertaken in the
fashion envisaged by the Appendix, is designed to be a toolto assist
proponents rather than guidelines prescribed by the DCP to assist a
consent authority in assessing a proposal for a marina development.
Nonetheless, however, we consider that there is utility for us to alleast
note the processes set outin the Appendix when undertaking our
assessment aboutthe acceptability or otherwise of the proposal against
the broader criteria for assessment set out in the earlier quoted provisions
of the DCP.
92
The Appendix comprises descriptive material dealing with:
.
Known characteristics of various types of boat storage
facilities
.
Whatis a visual impact assessment?
.
When is a visual impact assessment required?
.
Howto undertake a visual impactassessment
.
Lodging a visual impact assessment with a development
application
It is clearthat all of the elements in Appendix D are ones that are
facultative and designed to assist in the making of an application. The
figures incorporated in the Appendix provide assistance to an applicant in
how to consider the indicative contributions to potential visual impacts
(figure 02) and in the preparation of a view analysis matrix. A completed
example of such a matrix (figure 03 and figure D 4 respectively) are also
of considerable assistance to an applicantfor marina facilities to
understand the nature of the information that is sought,
All of this material would, undoubtedly, be of great assistance to a person
preparing a visual impact assessment when that person was riotfamiliar
with (or was unsophisticated in)the preparation of such material. In these
proceedings, however, the expert assistance provided to the applicant by
Mr. Wyatt(and, indeed, that provided to the council by Mr. Moody) could
not be so characterised. There is no doubtin our mind that these
processes have been undertaken, comprehensiveIy and appropriateIy, by
the work that Mr. Wyatt has done in the past and as evidenced in these
proceedings.
Thus we turn to consider the proposal againstthe regional plan and the
three elements of the DCP we have earlier set out.
We therefore turn first to the various more specific requirements in the
regional plan. The obligation in c1 17(2) requires us to consider the two
objectives forthe zone set out earlier in the context of the requirement to
have regard to the matters contained in all25 and 26.
97
We observe, at this point, that the provisions of d 26(a), on one hand, and
those in d 26(b) and (c), on the other hand, are, in our view, in tension.
This arises because the expression "maintain, protect and enhance views"
contained in c1 26(a) does not sit comfortably with the concept of
minimisation contained in c1 26(b) and (c).
We consider that, forthe purposes of this application, we should assume
that the latter two provisions are more permissive than the first. A similar
position arises, we consider, between the provisions of c1 25(b) and d
25(c).
As a consequence, we have assessed the impacts of the proposed Arm C
on the minimisation basis. Doing so takes the applicant's position alits
highest, we consider, rather than on the more restrictive position which
would be one of non-derogation at allfrom the present visual quality or
views.
100
Taking this more permissive approach, we are nonetheless satisfied that
the proposed Arm C is unacceptable.
Whilst we do acceptthatthe present, new orientation of the proposed Arm
C effects some improvement compared to that which was proposed in
Addenbrooke 2009 and rejected by Biscoe J, its impactis still riot one that
should be regarded as minimising the totality of the impactthat it would
have on the views of the harbour.
102
Whilstit is true forthose traversing westward that, in the foreground, the
extent of the swing moorings would have been foreshortened, this would
riot, in our assessment, cause an impact of significance in the overall
context of approaching proposed Arm C from this eastern direction. In our
assessment, by the time an observer traversing in this direction had
reached a pointwhere the view of proposed Arm C would become a
significant element in the view to the north and north-west, the location of
- 25 -
the observer would have merged with the eastern edge of the central
viewing locations that are forthe most(but notthe complete) part of the
determinative issues in these proceedings.
Whilstthe view of an observer making the transitfrom eastto west, as
earlier described, is riot one that we consider warrants refusal of the
proposed Arm C, nonetheless ms an impactthat makes a modest
contribution to the warranting of such refusal.
104
CriticalIy, the views to the north from the element of the Promenade close
to or in line with the axis of the proposed Arm C are much more than
minimal and, in our view, significantly detractfrom the outlook from this
point.
105
With respect to the foreground views, there is a distinct difference in
opinion between Mr Wyatt and Mr Moody. In theirjointreport(with Mr
Hamson), Mr Wyatt said:
That there is a change is notin dispute, however, I believe that this
foreground change has positive outcomes. These include the
creation of viewing corridors unimpeded by boats which allows
unrestricted views across Sydney Harbourto Manly.
106
On this point, Mr Moody said:
The proposed Eastern Arm will resultin a loss offoreground water
views for nearly arithose persons who can look overthe
baiustrade on parts of the Promenade. Currently I consider that
there is an attractive open water view east of the existing marina
with swing moorings interspersed on the water,
With respect to the question of whether or riot swing moorings should be
preferred, in a visual assessment sense, to organised berthed boats on a
marina arm, the applicant's written submissions said:
The preference Mr Moody expresses for swing moorings over
commercial marinas pays insufficient regard to the planning
controls. tn particular, the Boat Storage Policy upon which the
REP was based supported commercial marinas over swing
moorings because marinas had the ability to free up navigation
- 26 -
space. Further, with the exception of Appendix D in the DCP which
speaks generally of visual impacts of swing moorings against
marinas, there is nothing in the REP that would give swing
moorings preference over commercial marinas in the W5 zone. It
would have been a relatively easy thing to achieve, ifthat was the
intention.
108
First, we prefer the conclusion Mr Moody reached concerning the
comparison between the proposed foreground view to and of the existing
swing mooring field to that discussed by MrWyatt. The movement,
contrast of boats and eclectic nature of the shifting views in the foreground
is of a significantly different and more attractive nature. In our opinion, the
strictly regimented and organised nature of that which is proposed to
replace part of it would be a distinctly negative outcome. A similar position
applies with respect to the regimented view corridors toward the north. At
the presenttime, the view to the north is informed by and, in our view,
enhanced by the movement and dynamism of the foreground that provides
its setting. This would be uriacceptably altered, in our view, by the
proposed gun barrel viewcorridors. One of them would be bounded on
both sides by organised boat berths whilstthe other, although only so
limited on one side, would nonetheless be qualitativeIy differentthan the
view through this vicinity of the swing mooring field at the presenttime.
109
Finally, the direct interruption to the long view to the north along the line of
the proposed Arm C is also a significant detraction from this view and an
adverse change to the quality of the overall view.
10
All of these elements, taken together, in our view, compel us to the
conclusion that the adverse impacts cannot, in any sense, be said to be
minimised.
III
Having reached that conclusion, we are satisfied that the proposed Arm C
cannot be regarded as being consistent with objective (9) of the W5 zone.
As a consequence, clause 17(2) prohibits us from granting development
consent to this element of the proposal as we are riot satisfied that it is
consistent with the objectives of the zone in which it is proposed to be
carried out,
I12
Although the terms of the DCP's relevant provisions and those that are
contained in the regional plan are written in slightly differing terms, the
differences, we consider, are riot ones of substance. As we have earlier
indicated, the process for undertaking a visual impact assessment, set out
in Appendix D of the DCP, are designed to assist an applicantratherthan
a consent authority. As we earlier observed, we are satisfied that the work
undertaken by Mr. Wyatt is appropriateIy consistent with that which is
proposed to be derived by the process set outin Appendix D.
However, we note, in passing, that the terms of the DCP do riot propose
any viewer heightlimited basis for assessment of impacts on views.
Although Zhang v Canterbury requires us to use the DCP has the starting
point of or focus for our deliberations, the requirements of the regional
plan, being a higher order planning document, provide, in our assessment,
the appropriate first consideration for our analysis (given the general
coincidence of that which is required by the regional plan and that which is
required by the DCP). However, the conclusions we have reached against
the relevant provisions of the DCP are consistent with those arising from
the regional plan as later discussed briefly.
The analysis that we have undertaken againstthe regional plan is equally
applicable to the provisions of the DCP. Although we are not prepared to
conclude that the proposed Arm C dominates its landscape setting in the
context of the general design guidelines in Part 4 of the DCP, the analysis
that we have undertaken above concerning those matters contained in the
regional plan clearly also leads to the conclusion that the visual impact of
the marina is not minimised and that, to a sufficient extent as to be
unacceptable, the waterside structures and berthed vessels of the
proposed Arm C would block views from that the relevantforeshore public
open space area, the Rose Bay Promenade, in an unacceptable fashion.
The conclusion must therefore also be that these provisions of the DCP
are riot satisfied.
The two proposed new public viewing areas
116 Finally, for completeness, we should observe that it was no agreement as
to the extent of the value of the two proposed public seating areas to be
provided on proposed Arm C. Whilstit was agreed that there was some
public benefit to be derived from them, Mr Moody's view, with which we
concur, is that the benefit to be obtained is an extremely small one, We
observe, based on the travel path necessary to access such viewing points
from the Promenade and their comparatively small size they are riotlikely
to be of anywhere near the attraction of the existing public seating at
various points along the Promenade. These proposed viewing points
cannot, in any significantfashion whatsoever, assist to displace the
adverse impacts that otherwise arise from the proposed Arm C,
Visual matters and the additional berths proposed for Arm A
,17 With respect to the new berths proposed on the western side of the
existing marina development alits south-western corner, no suggestion of
an adverse visual impactfrom this element of the proposed development
was advanced by either of the respondents. From our own observations
during the site inspection, we are satisfied that there are no visual impacts
of these proposed berths warranting further consideration (either from
viewing from land orfrom the water).
Views from the harbourtoward the proposed development
118 Although the regional plan speaks of views from the water as well as views
to the water, we are satisfied that no issues arise in these proceedings
concerning any view of any proposed new element forthe marina when
viewed from the water.
119
During our limited waterborne observation during the site irispedion and
from our view when travelling to the site inspection by ferry, it was clear
that from any perspective on the water, the proposed Arm C would be lost
- 29 -
in either the background of existing marina development(whether of the
present marina or other marina facilities in the vicinity) or in the built form
of the urban development on the shore to the south and west.
120
Either of these aspects would, we are satisfied, sufficiently subsume any
view from the water of the proposed Arm C that no detailed prescriptive
analysis needs to be undertaken from this perspective.
Heritage impact
121 The concrete balustrade of the Rose Bay Promenade is listed as a local
heritage item in the LEP. It is also listed on the state heritage inventory.
The listing description is in the following terms:
The retaining walllocated at The Esplanade Rose Bay has historic
and social significance as an example of early road works in the
Woollahra Municipality, The structure has aesthetic significance as
a relatively intact concrete wall and as an important element in the
Rose Bay area. The structure has some scientific significance as
an example of nineteenth century road works and retaining
structures,
In essence, the difference between the heritage experts, Ms Parkins for
the council and Mr Staas forthe applicant, is riotthatthere is some
additional heritage related impactthat should be considered as an extra
element of concern in addition to the broader visual impact assessment
questions raised by the proposed new arm of the marina.
Although Ms Parkins considered that the experience of the heritage item
would be significantly diminished ifthe proposed Arm C were to be
approved, we are unable to acceptthis proposition,
Although the visual connection between the Promenade, as a location
from which the harbouris viewed, will be altered (and altered uriacceptably
as we have earlier described)that visual connection is not dependent on
the nature of the structure from which or in the vicinity of which (the
balustrade)the observation is made - it is the location of the observing
points and whatis seen there from that is of importance. We do riot
- 30 -
consider that there is any adverse heritage impact arising as a
consequence of the proposed Arm C forthe marina.
The impacts on other waterway users
125 Although we have explained whythe proposed Arm C is unacceptable
because of its visual impact, for completeness, we should dealwith the
issue of whatis said to be the adverse impacts on the other users of the
inshore element of the waterway.
126
As earlier noted, during the course of the site inspection, we heard
evidence on behalfofthose who use the closer inshore element of Rose
Bay in the vicinity of the marina for recreational, human powered
watercraft activities. These activities include kayaking, rowing and Dragon
Boattraining.
127
ifthe proposed Arm C were to be constructed, these users would suffer a
degree of interference with their manoeuvring as a consequence of the
reduction of width of waterway between proposed Arm C and the shore.
As we understood it, forthe Dragon Boats, there would be a significant
reduction in the area available forthem to turn at the western end of their
training course. As we also understood it, this would amountto
inconvenience (in that more complex manoeuvres would be required to
undertake the relevantturns) butthatthis did not amount to a complete
obstruction of their ability to turn at this point.
128
Whilst we acceptthatthere would have been some inconvenience to these
waterway users had we approved the proposed Arm C, we consider that
the inconvenience that would have resulted was, in broad terms, of such a
minor scale that it could not contribute, in any meaningful fashion, to the
refusal of the proposed Arm C - let alone warranting refusal of this arm.
129
A slightly different position arises with respect to the passage of human
powered watercraft under the bridge connecting the shore based facilities
with the walkways of the presently constructed marina ifthe additional
-31 "
berths in the south"western corner of the present Arm A are to be
approved.
130
There are two constrictions to this manoeuvrebility. The first arises from
one of the two pontoons presently located immediately adjacent to the
shore based facilities at the marina (and accessed from those facilities
rather than from the marina walkways), There was some dispute, during
the course of the hearing, as to whether or riot both of these pontoons
were approved. In any event, the applicantindicated that removal of one of
these pontoons, the eastern one (that intruded a greater extentinto this
navigable passage), was an outcome that was acceptable to the applicant
in the context of an approval forthe additional berths to Arm A.
An additional constriction arises from the proximity of one of the
commercial swing moorings operated by the Point Piper Marina in the
immediate vicinity of the south-western corner of Arm A. Ifthis swing
mooring were to remain at its presentlocation, its proximity to vessels that
might be moored at the most southern two of the proposed new berths on
the western side of Arm A would create potential manoeuvring conflicts for
human propelled watercraft that would be undesirable.
We acceptthatitis necessary, in a public interest sense, to have a
sufficient cleartransit passage way around the south-western corner of
Arm A of the existing marina. Providing such a passageway is riot, for
human propelled watercraft, merely a matter of convenience - the
necessity for a passage of an appropriate width at this corner is a matter of
safety as well as convenience. The constriction that would arise from the
proximity of the closest swing mooring operated by the Point Piper Marina
to vessels on the proposed new berths at this location does riot, in our
assessment, provide adequate passage width to permit human propelled
watercraft movements in safety.
Given that the Point Piper Marina and the Rose Bay Marina are in
common ownership, resolution of this issue is capable of being achieved
- 32 -
by relocation of this mooring to achieve a clearance of alleast 20 in from
the closest point of any vessel moored in either of the two new berths
proposed forthe western side of Arm A in the vicinity of its south-western
corner.
To ensure that such a passage clearance is achieved, it will be appropriate
to provide a condition that ensures that such a clear passage is available
and remains so - the condition should make it optional forthe operators of
the Rose Bay Marina to seek to arrange the relocation of the Point Piper
Marina swing mooring or, ifthis does riot occur, riot to occupy either of the
two most southern berths to be established on the western side of Arm A.
The condition is to require an ongoing obligation to maintain a clear
passage at this corner of alleast 20 in clearance.
The amber lightapproach
135 Finally, having concluded that the proposed development of proposed Arm
C in its presentform does riot warrant approval, we turn to consider
whether or not, consistent with the amber light approach taken in
development appeals, there are amendments to the scheme as presently
proposed which, if mandated by us, would lessen the visual impact of the
proposed Arm C sufficiently to warrantits approval in amended form,
136
We have considered a variety of potential amendments, including those
proposed by the second respondent, and have concluded that, no matter
how the proposal might be modified within the permissible boundaries of
the present application, we are unable to make it visually satisfactory.
Obviously, it is inappropriate for us to speculate whether or notthere is
some different proposal(so differentfrom that presently for our
consideration that it would require a fresh application and fresh
assessment)that might be capable of approval(see Manzie v Willoughby
City Council(, 996) NSWLEC 26 on the inappropriateness of giving
gratuitous advice on potential acceptability).
Conclusion
137 It follows from what we are earlier set outthatthe element of the proposal
involving the construction of a new eastern arm, Arm C, forthe Rose Bay
Marina cannot be approved.
138
However, it also follows, from that which was earlier discussed relating to
the additional berths proposed along the western end of the western arm,
Arm A, of the marina complex, that these berths should be approved with
the additional conditional requirements that:
the pontoon that has been agreed by the applicant as being
appropriate for removal being required to be removed; and
.
the most southern two of the proposed new berths on the western
side of Arm A are only permitted to be utilised whilst everthe
nearby commercial swing mooring operated by the Point Piper
Marina is either removed or relocated so that there is alleast a
guaranteed 20 in clear passage between any vessel moored on that
swing mooring and any vessel occupying either of the southern two
berths earlier rioted .
139
It therefore follows that the preparation of a revised plan is necessary to
reflectthe outcomes flowing from this decision. There also needs to be
revised conditions of consent settled between the parties and filed
electronically to permit us to make final orders disposing of the
proceedings.
140
We therefore give the following directions:
(, )
The applicantis to prepare a revised plan forthe marina:
. deleting Arm C and its attendant access walkway;
. showing the restrictions on the two new berths at the southwestern end of Arm A and
. showing the deletion of the pontoon.
This revised plan is to be filed and served by the close of
business on Wednesday 3 April 20.3;
(4)
(5)
The respondent is to file and serve (including the filing
electronically by e-mail to the Courtfor Senior Commissioner
Moore's attention) revised conditions of consentthat reflect
this decision by the close of business on Friday 12 April;
The matter is set down before the Registrar at 9 am on
Wednesday 17 April;
If directions (1), (2) and (3) are complied with, we will make
orders in chambers to give effectto our decision and vacate
the mention in (4);
(6)
The exhibits, other than Exhibits A, G, I and 21, are
returned; and
(7)
Liberty to re-list before Senior Commissioner Moore on two
days notice.
for
Tim Moore
Senior Commissioner
and
PaulAdam
Acting Commissioner of the Court