Land and Environment Court New South Wales

• Medium Neutral Citation: Rose Bay Marina Pty Limited v Woollahra Municipal Council and anor [2013] NSWLEC 1046
• Hearing dates: 20, 21 and 22 November 2012
• Decision date: 20 March 2013
• Jurisdiction: Class 1
• Before: Moore SC; Adam AC

Decision

See paras (137) and (138) and directions in (139)

• Catchwords: View impact; PLANNING PRINCIPLE: "A planning principle for public domain views"
• Legislation Cited: Environmental Planning and Assessment Act 1979; Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005; Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005; Woollahra Local Environmental Plan 1995
• Cases Cited: Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190; Addenbrooke Pty Ltd v Woollahra Municipal Council (No.2) [2009] NSWLEC134; BGP Properties v Lake Macquarie City Council [2004] NSWLEC 399; (2004) 138 LGERA 237; Manzie v Willoughby City Council (1996) NSWLEC 26; Tenacity Consulting v Warringah [2004] NSWLEC 140; (2004) 134 LGERA 23; Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373
• Category: Principal judgment
• Parties: 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 Flannigan (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

Judgment

"Believe me, my young friend, there is NOTHING--absolutely nothing--half so much worth doing as simply messing about in boats."

From "Wind in the Willows" by K Graham

Introduction

1 THE COMMISSIONERS: Sydney Harbour is a highly desirable waterway for those sharing Ratty's views and themselves seeking to mess about in boats. It is also a self-evident truth 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.

2 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 so that vessels utilising them are accessible to their owners in a convenient fashion.

3 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 detail later in this judgement.

4 This is the third occasion on which the Court has considered a merit appeal under the Environmental Planning and Assessment Act 1979 (the EPA Act) in relation to the general appropriateness of (or a particular design aspect for) the marina.

5 The first occasion was in 2008 when Biscoe J dismissed an appeal in Addenbrooke Pty Ltd v Woollahra Municipal Council [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.

6 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 parallel to the Rose Bay Promenade. The 2009 proposal was for three north-south arms (referred to, from west to east, as Arms A, B and C). At the southern end, the arms were proposed to extend off a floating walkway roughly parallel to the shore. (Addenbrooke Pty Ltd v Woollahra Municipal Council (No.2) [2009] NSWLEC134 - Addenbrooke 2009).

7 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 height restrictions on vessels in particular berths.

The current proposal

8 This proposal for the Rose Bay Marina is for the establishment of nine new berths on the western side of existing Arm A with each being capable of accommodating a 10 m vessels (these new permanent berths to be in the area currently available for casual berths) and for the construction of a new arm to be known as Arm C.

9 The proposed Arm C would be ~106 m long with a connecting link at its 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 m long, on its eastern side;
• Two berths berths, 15 m long, at its northern end;
• Two berths, 10 m long, at the southern end on the western side; and
• Fourteen berths, 15 m long, on the western side.

10 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 walkway to Arm B and the new link to proposed Arm C).

11 Of the seventy 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.

12 Although the balance between fixed berths and swing moorings would differ (but the overall number remain the same), because of restrictions on the size and nature of vessels using the fixed berths, not 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.

13 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
• height limits are proposed for vessels to be berthed at Arm C so that the ability to look over these vessels will be increased, thus also opening up better views to the north.

14 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 if this were to occur);
• there would be a view corridor and navigation channel to the east of proposed Arm C which would provide a view corridor unobstructed by boats on swing moorings and a navigation channel for smaller watercraft to travel to 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 Panel refused 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 Harbour Association and accepted by the applicant would allow a view of Manly over the top of boats; however, the view of the foreground, just as important in the Panel's opinion, would be further obscured.

4. The Panel unanimously agrees with the planning assessment report that 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.

16 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.

17 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 not appropriate for us to adopt or endorse the sweeping assertion made about the broad context for (and hypothesised expected fate of) 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 against the decision of the Joint Regional Planning Panel that this appeal is made. The appeal is opposed by Woollahra Council (the council).

20 Marinas are designated development under the EPA Act. One objector, the Sydney Harbour Association, was heard at the appeal as if it were party to the appeal as provided for in s97 (4) of the EPA Act. The Association is the successor body to the Sydney Harbour and Foreshores Committee which appeared as second respondent in Addenbrooke (2008) and Addenbrooke (2009).

The planning framework

21 Division 2 of the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (the regional plan) applies to the proposal. The regional plan is deemed to be a State Environmental Planning Policy.

22 The regional plan makes provision for zones with the relevant zone for this 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

(g) 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 or from areas of public access.

23 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 consent to development under Part 4 of the Act

24 Of the clauses within Division 2, cl 25 deals with Foreshore and waterways scenic quality whilst cl 26 deals with Maintenance, protection and enhancement of views.

25 The council presses two of the three provisions in cl 25 and the totality of cl 26 as bases upon which, after proper consideration as required, the present proposal should be rejected. The provisions of cl 25 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 as follows:

(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 detract from the character of the waterways and adjoining foreshores.

26 The terms of cl 26 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.

27 The Council also presses that the proposal should be refused when it is assessed against the relevant provisions of the Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005 (the DCP).

28 The DCP's general aims for Landscape Assessment are in cl 3.2 in the following terms:

All development should aim to:

• minimise any significant impact on 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;

29 Part 4 of the DCP contains Design Guidelines for Water-Based and Land/Water Interface Developments.

30 These design requirements requiring consideration are set out in cl 4.2 General Requirements. Of the twelve requirements there set out, the council relies on the eighth - that any such development does not dominate its landscape setting.

31 A range of more detailed matters are set out in 4.7 Marinas (Commercial and Private). 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.

32 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, their location within the landscape, distance from the marina, and duration of view) is to be minimised;

• waterside structures and berthed vessels associated with marinas are not to block views from foreshore public open space or views to foreshore public open space from the waterway

33 As this application is not one to which s 79C(3A) of the Environmental Planning and Assessment Act 1979 applies, the principles enunciated by the Court of Appeal, in Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373, are applicable to our consideration of these provisions of the Development Control Plan.

34 Whilst the 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 cl 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 its waterway elements. We also undertook in a boat inspection 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 if it were to be approved), gain an appreciation of how such vessels might interpose 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 for the marina, we also heard evidence from representatives of other inshore water user interests about what they 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.

38 In addition, we heard some further evidence concerning the obstruction of navigation from existing pontoons immediately adjacent to 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 if the additional berths proposed for this arm of the marina were to be permitted.

A planning principle for public domain views

Introduction

39 Tenacity Consulting v Warringah [2004] NSWLEC 140; (2004) 134 LGERA 23, sets out the 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 for the derivation of such principles.

40 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.

41 To this end, we identified the potential for such a planning principle to the advocates for the 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 for the assistance we received from all three 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.

42 The framework for a planning principle concerning impacts on views enjoyed from the public domain is broadly consistent with (but not identical to) the matters raised for consideration in Tenacity. The process must account for reasonable development expectations as well as the enjoyment of members of the public of outlooks from public places.

43 The steps for determining the acceptability of the impact on views from the public domain are in two stages - the first factual followed by a second, analytical process.

Identification stage

44 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 (but is not limited to):

• the nature and extent of any existing obstruction of the view;
• relevant compositional elements of the view (such as is it static or dynamic and, if dynamic, the nature and frequency of changes to the view);
• what might not 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 or temporary; or
• what might be the curtilages of important elements within the view.

45 The second step is to identify the locations in the public domain from which the potentially interrupted view is enjoyed.

46 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 difficult to protect than 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 for the enjoyment of the whole population, old or young and whether able-bodied or less mobile. It is not appropriate to adopt some statistically derived normative eye height for the assessment of such views (such as the conventionally adopted 1.6m eye height for the assessment of overlooking privacy impacts). Indeed, some views (such as that from Mrs Macquarie's Chair toward the Opera House and Harbour Bridge) may well be ones likely to be enjoyed frequently from a seated position.

47 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.

48 The final step to be identified is whether or not there 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.

49 However, the absence of such provisions does not exclude a broad public interest consideration of impacts on public domain views.

Analysis of impacts

50 First, we observe that the analytic stage we propose does not 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 fit in a matrix. However, some may find their preparation of a graduated matrix of assistance to them in undertaking an impact analysis.

51 The analysis required of a particular development proposal's public domain view impact is both quantitative as well as qualitative.

52 If there is a planning document with an objective/aim for the maintenance, protection and/or enhancement of public domain views, such an objective/aim would appear to create a presumption against the 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.

53 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 weight to one that proposes "minimisation of impacts" on such a view.

54 A quantitative evaluation of a view requires an assessment of the extent of the present view, the compositional elements within it and the extent to which the view will be obstructed by or have new elements inserted into it by the proposed development.

55 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. If the view remaining (if the 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).

56 On the other hand, the qualitative aspect of a public domain view assessment is much more nuanced. Such a qualitative evaluation requires 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 out the factors taken into account and the weight attached to them. Whilst minds may differ on outcomes of such an assessment, there should not be issues arising concerning the rigour of the process.

57 As with Tenacity, a high value is to be placed on what may be regarded as iconic views (major landmarks 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.

58 Other factors to be considered in undertaking a qualitative assessment of a public domain view impact include (but are not 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?
• If the 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, if the present obstruction of the view is extensive, does that which remains nonetheless warrant preservation (it may retain all or part of an iconic feature, for example)?
• If the 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?

59 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 of factors 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 was the dominant, vigorously contested central issue in the proceedings.

61 It is appropriate that we commence our analysis of this issue with some preliminary observation about the 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 or travelling in a vehicle along New South Head Road.

62 We also observe that, although there will be alterations to the view when the transit is 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 adjacent to the Promenade's path or while stopping to chat with other users (this latter being observed during the site inspection).

63 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 first is that set out in the planning principle that we are earlier enunciated - namely that it is not appropriate to adopt some specified nominal eye height viewing-limit for assessing what should be regarded as the extent of the impact of the proposed development on those who would be observing it.

64 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 that forms the wall and solid balustrade between the Promenade and the water also sets a physical height barrier to enjoyment of the view for the very young.

65 We have had the advantage of hearing, both on-site and in court, expert evidence on both heritage and visual impact issues. 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 relevant for 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 Mr Wyatt, the visual impact assessment expert for the applicant.

66 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 sit in the view to the north.

67 It is appropriate to describe, from three different perspectives, in a little detail, the view as it is now and as it would be if the proposed Arm C were to be approved.

68 The first is that of a person walking to the east along the Promenade and coming past the eastern wall of the existing restaurant/marina 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).

69 In each instance, we describe the present view over Rose Bay from the Promenade and the view that that would result if the proposed Arm C were to be approved.

70 When moving to the east, past the corner of the restaurant/marina building, there is but a small impression (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 built forms extending to its ridgeline. As the viewer traverses further to the east, looking to the left, the long view is across the expansive waterway of Sydney Harbour - past any element of Arm B - toward the shoreline at Manly Cove.

71 The foreground is interspersed with an eclectic range of watercraft on swing moorings, interspersed with buoys without any vessel attached.

72 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 watercraft is not typical of that which generally inhabits the Rose Bay swing moorings.

73 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. It is 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.

74 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 or from the wash of movement of powered watercraft passing). This general and dynamic outlook remains as the viewer continues eastward.

75 If the proposed Arm C were to be constructed, an eastward moving observer would, at the time of passing the eastern corner of the restaurant/marina building, initially have much (but not all) of the earlier described eastward view interrupted. The present view with the swing moorings in the foreground would be replaced to some extent, at least, by the built form of the proposed Arm C and the boats that would be berthed at it. 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.

76 During the course of the site inspection and during the expert evidence in court, there was discussion about the impact, when looking towards the proposed Arm C and envisaging the vessels that would be berthed at it, as to the extent that there 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 (or from 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 at it. 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 not of the permanent, more regimented nature as would arise if the proposed Arm C were to be permitted.

77 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 viewing points and from a limited transit across this short section of the Promenade, the change is quite significant. The present slightly anarchic arrangement with swing moorings in the foreground, as earlier described, would be replaced by three distinct elements. The first is an open water corridor that 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 at it. 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.

78 This outlook is not merely physically different, it is, in our assessment, qualitatively different - in that it is a significantly more regimented outlook than that which presently obtains.

79 For the 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 vessel that 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 north-west) 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 for the applicant, Mr Wyatt, the visual impact assessment expert for the applicant, and Mr Moody, a town planner dealing with both these areas of expertise for the 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 against the relevant planning controls, primarily those contained in the regional plan.

81 We note, first, that Mr Wyatt's overall assessment of the impact is, as we understand it, that the impact would be acceptable. It is our understanding of his oral evidence, his written expert report of October 2012 and the joint expert report that he does not say that there is a net positive outcome of the proposed Arm C. His conclusion appears to us to be that, overall, the creation of the additional view corridors offsets, adequately, any interruptions that are created to the views and thus render the proposal acceptable.

82 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 height for 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 not embody any concession that the impact on those viewing from a lower eye level was unacceptable. Indeed, Mr Wyatt gave evidence (both in the joint report and orally) that he did not consider that viewing from a lower level would be unacceptably impacted.

83 It is true that this portion of Rose Bay is zoned W5 and that this zoning 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 zoning. In that regard, this is not an instance such as that discussed in BGP Properties v Lake Macquarie City Council [2004] NSWLEC 399; (2004) 138 LGERA 237 where the question of whether or not 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 the scope of the area of the bay zoned as potentially capable of accommodating it.

84 There are, in essence, three qualitative differences between that which is there at the present time and that which would be observed if the 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 for the 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 over the 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.

85 It is in the context of these differences that we turn to a consideration of the matters contained in the regional plan.

86 We observe, in passing, that cl 2(2)(b) of the regional plan adopts the principle that:

the public good has precedence over the private good whenever and whatever changes is proposed for Sydney Harbour or its foreshores.

87 Whilst, in the overall context of our decision, this is merely a broadly guiding principle, it nonetheless assists in understanding the overall context for those who prepared the plan.

88 The regional plan places an obligation on a consent authority, us in this instance, of how we are to approach the relevant objectives for the W5 zone set out in the zoning table. This requirement is contained in clause 17(2) which reads:

Except as otherwise provided by this plan, the consent authority must not 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.

89 We must consider the view impact from the Promenade of the proposed Arm C both against the regional plan and the three aspects of the DCP that are set out in paragraphs (30) to (32) above. It is convenient to restate the three aspects of the design guidelines for water-based developments contained in Part 4 of the DCP upon which the council relies. They are, in summary, general requirement that such a development does not 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 not to block views from foreshore public open spaces.

90 Appendix D to the DCP sets out a process for undertaking a visual impact assessment for marinas. The Appendix commences by noting 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.

91 It is clear that such a visual impact assessment, if undertaken in the fashion envisaged by the Appendix, is designed to be a tool to 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 at least note the processes set out in the Appendix when undertaking our assessment about the 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
• What is a visual impact assessment?
• When is a visual impact assessment required?
• How to undertake a visual impact assessment
• Lodging a visual impact assessment with a development application

93 It is clear that 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 D2) and in the preparation of a view analysis matrix. A completed example of such a matrix (figure D3 and figure D 4 respectively) are also of considerable assistance to an applicant for marina facilities to understand the nature of the information that is sought.

94 All of this material would, undoubtedly, be of great assistance to a person preparing a visual impact assessment when that person was not familiar 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 doubt in our mind that these processes have been undertaken, comprehensively and appropriately, by the work that Mr. Wyatt has done in the past and as evidenced in these proceedings.

95 Thus we turn to consider the proposal against the regional plan and the three elements of the DCP we have earlier set out.

96 We therefore turn first to the various more specific requirements in the regional plan. The obligation in cl 17(2) requires us to consider the two objectives for the zone set out earlier in the context of the requirement to have regard to the matters contained in cll 25 and 26.

97 We observe, at this point, that the provisions of cl 26(a), on one hand, and those in cl 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 cl 26(a) does not sit comfortably with the concept of minimisation contained in cl 26(b) and (c).

98 We consider that, for the 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 cl 25(b) and cl 25(c).

99 As a consequence, we have assessed the impacts of the proposed Arm C on the minimisation basis. Doing so takes the applicant's position at its highest, we consider, rather than on the more restrictive position which would be one of non-derogation at all from the present visual quality or views.

100 Taking this more permissive approach, we are nonetheless satisfied that the proposed Arm C is unacceptable.

101 Whilst we do accept that the 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 impact is still not one that should be regarded as minimising the totality of the impact that it would have on the views of the harbour.

102 Whilst it is true for those traversing westward that, in the foreground, the extent of the swing moorings would have been foreshortened, this would not, 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 point where the view of proposed Arm C would become a significant element in the view to the north and north-west, the location of the observer would have merged with the eastern edge of the central viewing locations that are for the most (but not the complete) part of the determinative issues in these proceedings.

103 Whilst the view of an observer making the transit from east to west, as earlier described, is not one that we consider warrants refusal of the proposed Arm C, nonetheless it is an impact that makes a modest contribution to the warranting of such refusal.

104 Critically, 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 detract from 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 their joint report (with Mr Harrison), Mr Wyatt said:

That there is a change is not in 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 Harbour to Manly.

106 On this point, Mr Moody said:

The proposed Eastern Arm will result in a loss of foreground water views for nearly all those persons who can look over the balustrade 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.

107 With respect to the question of whether or not 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. In 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 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, if that 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 Mr Wyatt. 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 present time, 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 unacceptably altered, in our view, by the proposed gun barrel view corridors. One of them would be bounded on both sides by organised boat berths whilst the other, although only so limited on one side, would nonetheless be qualitatively different than the view through this vicinity of the swing mooring field at the present time.

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.

110 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.

111 Having reached that conclusion, we are satisfied that the proposed Arm C cannot be regarded as being consistent with objective (g) 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 not satisfied that it is consistent with the objectives of the zone in which it is proposed to be carried out.

112 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 not 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 applicant rather than a consent authority. As we earlier observed, we are satisfied that the work undertaken by Mr. Wyatt is appropriately consistent with that which is proposed to be derived by the process set out in Appendix D.

113 However, we note, in passing, that the terms of the DCP do not propose any viewer height limited basis for assessment of impacts on views.

114 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.

115 The analysis that we have undertaken against the 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 relevant foreshore 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 not 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. Whilst it 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 not likely 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 significant fashion 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

117 With respect to the new berths proposed on the western side of the existing marina development at its south-western corner, no suggestion of an adverse visual impact from 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 or from the water).

Views from the harbour toward 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 for the marina when viewed from the water.

119 During our limited waterborne observation during the site inspection 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 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 wall located 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.

122 In essence, the difference between the heritage experts, Ms Parkins for the council and Mr Staas for the applicant, is not that there is some additional heritage related impact that 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.

123 Although Ms Parkins considered that the experience of the heritage item would be significantly diminished if the proposed Arm C were to be approved, we are unable to accept this proposition.

124 Although the visual connection between the Promenade, as a location from which the harbour is viewed, will be altered (and altered unacceptably 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 what is seen there from that is of importance. We do not consider that there is any adverse heritage impact arising as a consequence of the proposed Arm C for the marina.

The impacts on other waterway users

125 Although we have explained why the proposed Arm C is unacceptable because of its visual impact, for completeness, we should deal with the issue of what is 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 behalf of those 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 Boat training.

127 If the 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, for the Dragon Boats, there would be a significant reduction in the area available for them to turn at the western end of their training course. As we also understood it, this would amount to inconvenience (in that more complex manoeuvres would be required to undertake the relevant turns) but that this did not amount to a complete obstruction of their ability to turn at this point.

128 Whilst we accept that there 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 if the additional berths in the south-western corner of the present Arm A are to be approved.

130 There are two constrictions to this manoeuvrability. 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 not both of these pontoons were approved. In any event, the applicant indicated that removal of one of these pontoons, the eastern one (that intruded a greater extent into this navigable passage), was an outcome that was acceptable to the applicant in the context of an approval for the additional berths to Arm A.

131 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. If this swing mooring were to remain at its present location, 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.

132 We accept that it is necessary, in a public interest sense, to have a sufficient clear transit passage way around the south-western corner of Arm A of the existing marina. Providing such a passageway is not, 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 not, in our assessment, provide adequate passage width to permit human propelled watercraft movements in safety.

133 Given that the Point Piper Marina and the Rose Bay Marina are in common ownership, resolution of this issue is capable of being achieved by relocation of this mooring to achieve a clearance of at least 20 m from the closest point of any vessel moored in either of the two new berths proposed for the western side of Arm A in the vicinity of its south-western corner.

134 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 for the operators of the Rose Bay Marina to seek to arrange the relocation of the Point Piper Marina swing mooring or, if this does not occur, not 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 at least 20 m clearance.

The amber light approach

135 Finally, having concluded that the proposed development of proposed Arm C in its present form does not 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 warrant its 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 not there is some different proposal (so different from 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 (1996) NSWLEC 26 on the inappropriateness of giving gratuitous advice on potential acceptability).

Conclusion

137 It follows from what we are earlier set out that the element of the proposal involving the construction of a new eastern arm, Arm C, for the 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 ever the nearby commercial swing mooring operated by the Point Piper Marina is either removed or relocated so that there is at least a guaranteed 20 m clear passage between any vessel moored on that swing mooring and any vessel occupying either of the southern two berths earlier noted.

139 It therefore follows that the preparation of a revised plan is necessary to reflect the 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:

(1) The applicant is to prepare a revised plan for the marina:

• deleting Arm C and its attendant access walkway;
• showing the restrictions on the two new berths at the south-western end of Arm A; and
• showing the deletion of the pontoon.

(2) This revised plan is to be filed and served by the close of business on Wednesday 3 April 2013;

(3) The respondent is to file and serve (including the filing electronically by e-mail to the Court for Senior Commissioner Moore's attention) revised conditions of consent that reflect this decision by the close of business on Friday 12 April;

(4) The matter is set down before the Registrar at 9 am on Wednesday 17 April;

(5) If directions (1), (2) and (3) are complied with, we will make orders in chambers to give effect to our decision and vacate the mention in (4);

(6) The exhibits, other than Exhibits A, G, 1 and 21, are returned; and

(7) Liberty to re-list before Senior Commissioner Moore on two days notice.

Tim Moore

Senior Commissioner

Paul Adam

Acting Commissioner of the Court

Decision last updated: 20 March 2013