Land and Environment Court New South Wales Medium Neutral Citation: Harbour Port East Coast Pty Ltd v Sutherland Shire Council [2020] NSWLEC 1456 Hearing dates: 11-12 August 2020 Date of orders: 30 October 2020 Decision date: 06 October 2020 Jurisdiction: Class 1 Before: Adam AC Decision: The Court orders that: (1) The appeal is upheld. (2) Development Application DA 19/0678 for (a) demolition of the existing jetty, ramp and pontoon at 375A Willarong Road, Caringbah South; and (b) construction of a new jetty, ramp and pontoon at a position in front of the existing boat shed are shown in DWG-01 site plan dated February 2019, DWG-03 elevation plans dated February 2019, and DWG-04 specification plan dated December 2018, subject to the conditions of consent set out in Annexure A. (3) The exhibits are returned except for A, B, 2, 3, 4 and 6. Catchwords: DEVELOPMENT APPLICATION – development within Zone W2 Recreational Waterways – water recreation structures – mooring pen – is information about vessel in a pen required in order to assess visual impact – visual impact on view from the waterway – visual character of locality – potential interference with navigation Legislation Cited: Aboriginal Land Rights Act 1983 Conveyancing Act 1919 Environmental Planning and Assessment Act 1979 Fisheries Management Act 1994 Land and Environment Court Act 1979 State Environmental Planning Policy (Coastal Management) 2018 Sutherland Shire Local Environmental Plan 2015 Cases Cited: Addenbrooke Pty Ltd v Woollahra Municipal Council (No 2) [2009] NSWLEC 134 Bell v Minister for Urban Affairs and Planning and Port Waratah Coal Services (1997) 95 LGERA 86 Belling v North Sydney Council [2018] NSWLEC 1656 BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 Bottomline Group Pty Ltd v Snowy Monaro Regional Council [2020] NSWLEC 1115 De Angelis v Transport for New South Wales [2019] NSWLEC 1632 Denoci Pty Ltd v Liverpool City Council [2020] NSWELC 102 Double Bay Marina v Woollahra Council [2009] NSWLEC 1001 Hoxton Park Residents Action Group Inc v Liverpool City Council [2010] NSWLEC 242 Palm Lake v Ballina Council [2020] NSWLEC 41 Parrott v Kiama [2004] NSWLEC 77 Project Venture Developments Pty Ltd v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 Queensland Conservation Council Inc v Minister for the Environment and Heritage [2003] FCA 1463 Rose Bay Marina Pty Ltd v Woollahra Municipal Council [2013] NSWLEC 1046 Seraphina Bell Pty Ltd v Willoughby Municipal Council (No 2) (1967) 14 LGRA 209 at 224 Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 Visionary Investment Group Pty Ltd v Wollongong City Council [2019] NSWLEC 1234 Texts Cited: Land and Environment Court, 'COVID-19 Pandemic Arrangements Policy' (March 2020) S Fairfull, Fisheries NSW Policy and Guidelines for Fish Habitat Conservation and Management (Update 2013) Sutherland Shire Development Control Plan 2015 Category: Principal judgment Parties: Harbour Port East Coast Pty Ltd (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: M Astill (Applicant) J Amy (Solicitor) (Respondent) Solicitors: Harris Freidman (Applicant) Sutherland Shire Council (Respondent) File Number(s): 2019/398170 Publication restriction: No Judgment 1. The judgment in Rose Bay Marina Pty Ltd v Woollahra Municipal Council [2013] NSWLEC 1046 (Rose Bay Marina) commenced with the well-known quotation from Kenneth Graham's 'Wind in the Willows' – "believe me, my young friend, there is NOTHING – absolutely nothing – half so much worth doing as simply messing about in boats". 1. The present matter relates to what happens when a boat is not being used for messing about in but when it is, in Ms Amy's (solicitor for the Respondent) words 'parked'. A recreational vessel is likely to spend much more of the time parked than it is being used. Where and how a recreational vessel is to be kept when not being actively used is a major issue to be addressed in this case. 2. Some recreational boats are kept off the water on a trailer or a hard stand. Others will be moored on a swing mooring, or be berthed in a facility such as a marina. 3. However, for properties with absolute water frontage, as is the case here, with water frontage to Yowie Bay, an arm of Port Hacking, a variety of other options may become available. The Applicant, Port Harbour East Pty Ltd, acting on behalf of the owners of 375A Willarong Road, Caringbah South (Mr and Mrs Wang) seeks approval to demolish an existing jetty, ramp and pontoon, construct a new jetty, ramp and pontoon in a different position and construct a 9 x 5 m mooring pen, with four piles. The development application, DA 19/0678, was determined by refusal by the Respondent, Sutherland Shire Council, under delegated authority, on 20 November 2019. 4. The Applicant appeals the refusal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 11 August 2020. I presided over the conciliation conference. The parties did not come to an agreement during conciliation, so the conciliation phase of the proceedings was terminated and the matter continued, after a short break, as a hearing pursuant to s 34AA(2)(b)(i). 5. A s34AA conciliation would normally commence on-site, and if agreement was not reached, the subsequent hearing would be held in open court. However, in accordance with the COVID-19 Pandemic Arrangements Policy, published on the Court's website on 24 March 2020, the proceedings were held using Microsoft Teams. 6. Ms Amy urged that it was very important that the Court had the benefit of the view of the site both from the land and from a boat on the adjacent waterway. She acknowledged that the site was very steep and would need to be accessed via an inclinator, and that it would be difficult to satisfy social distancing requirements on the existing jetty, ramp and pontoon. Mr Astill, for the Applicant, neither objected to nor supported the Court undertaking a view. 7. The view is an important part of proceedings under Class 1 of the Court's jurisdiction, but the current circumstances render a view difficult to achieve. I have visited, as an acting Commissioner, a number of sites on the shores of Port Hacking, and I have also viewed the shoreline of Port Hacking from boats on a number of occasions unrelated to matters in Court. I considered that this past experience was sufficient to enable me to understand the contentions. In addition there were photographs in the evidence from both parties which provided details of the site in particular and Yowie Bay in general (See photographs in Exhibit 1, Tab 1, folios 23-52, and Tab 2, folios 130-161, in Exhibit 4 in Annexures B and C, and in the Statement of Environmental Effects (SEE), Exhibit A, Tab 9). 8. In the current less than an ideal world, neither party in my opinion will be disadvantaged by the lack of a view to an extent that they would suffer procedural unfairness. Accordingly, I declined Ms Amy's request, although recognising that she raised the issue not only at the start of the proceedings but also in her concluding remarks. 9. The matter commenced by hearing from an objector, Mr Fuller, the neighbour at 377 Willarong Road to the immediate south of the subject site. Mr Fuller had provided one of two written objections which have been received but was the only person who wished to speak. The written objections are included in Exhibit 6. On 7 August 2020 Mr Fuller sent an email to Ms Amy which included a photograph of what was said to be Mr Wang's existing boat – a matter to which I will need to return. On 11 August 2020 immediately prior to the commencement of the s34AA conciliation, Ms Amy forwarded Mr Fuller's email to the Court and to the Applicant's legal representatives. Without objection Mr Fuller's email was incorporated into Exhibit 6. 10. Mr Fuller's property has a ramp and pontoon, but no jetty. He and his partner launch kayaks from the pontoon. He currently does not have a larger vessel which would require a berth or mooring, although he indicated that he might acquire a larger vessel in the future. (In several items of correspondence between the Applicant and the Respondent, the Applicant suggests that the ramp and pontoon at 377 Willarong Road had not been authorised; this issue was not pursued (see Exhibit 1, Tab 1, folio 68)). The planning framework 1. Number 375A is a long, relatively narrow, lot with an area of approximately 1789 m² and is described as Lot 2 in DP 218932. By reference to the land zoning map in Exhibit 8, the block is comparable in size and shape to many of the blocks reaching the shoreline of Yowie Bay in the near vicinity. The site descends steeply from its eastern boundary to its western edge on the shoreline. 2. The land is zoned E4 Environmental Living in the applicable Sutherland Shire Local Environmental Plan 2015 (SSLEP 2015). However, only a very small area of the land would be disturbed by the demolition of the jetty, ramp and pontoon and the construction of a new jetty, ramp and pontoon. The proposed development, including almost all the jetty, is within the W2 Recreational Waterways Zone. For purposes of considering the application, the northern and southern boundaries of 375A, which stop at Mean High Water Mark (MHWM), are projected to continue out into the W2 Recreational Waterways Zone (W2 zone). 3. However, Mr and Mrs Wang do not own any of the W2 zone. In a letter dated 30 April 2019 (Exhibit 1, Tab 1, folios 10-11) from the Department of Industry – Lands and Water, consent was granted to the Applicant to lodge the Development Application for removal of existing structures and installation of new structures over Crown land below MHWM as detailed in relevant plans. 4. The consent was provided on a "without prejudice basis so that consideration of the proposal may proceed under the Environmental Planning and Assessment Act 1979 and any other relevant legislation" (Exhibit 1, Tab 1, folio 10). "The consent does not imply the concurrence of the Minister, or the issue of any necessary lease, licence or other required approval under the Crown Land Management Act 2016 and does not prevent the Department from making a submission" (Exhibit 1, Tab 1, folio 10). It is to be noted that the Department of Industry – Lands and Water did not make any submissions when the Development Application was notified. 5. If the Development Application were approved, "any work or occupation of Crown land cannot commence without a current tenure from the Department authorising such work or occupation" (Exhibit 1, Tab 1, folio 10, point 5). 6. The Department also advised that there was an as yet undetermined Aboriginal Land Claim No ALC 1282 under the Aboriginal Land Rights Act 1983 over the land. 7. The Applicant referred an earlier version of the proposal to the Department of Primary Industries – Fisheries (DPI Fisheries) which raised no objections (Exhibit 1, Tab 1, folio 125). The final version was also referred to the DPI Fisheries whose response and attached endorsed plan is included within Exhibit 3. DPI Fisheries ensures that developments comply with the requirements of the Fisheries Management Act 1994 (FM Act) (specifically provisions of Pts 7 and 74 of the FM Act, and the NSW Fisheries Policy and Guidelines for Fish Habitat Conservation and Management (Fairfull 2013). DPI Fisheries did not consider that the application was for integrated development (EPA Act, s 4.46). 8. SSLEP 2015 is the relevant local planning instrument. The aims of SSLEP 2015, which I am required to take into account in my assessment of the Development Application, are: 1.2 Aims of Plan (1) This Plan aims to make local environmental planning provisions for land in Sutherland Shire in accordance with the relevant standard environmental planning instrument under section 3.20 of the Act. (2) The particular aims of this Plan are as follows— (a) to deliver the community's vision for Sutherland Shire by achieving an appropriate balance between development and management of the environment that will be ecologically sustainable, socially equitable and economically viable, (b) to establish a broad planning framework for controlling development, minimising adverse impacts of development, protecting areas from inappropriate development and promoting a high standard of urban design, (c) to protect and enhance the amenity of residents, workers and visitors in all localities throughout Sutherland Shire, (d) to minimise risk to life, property and the environment from hazards, particularly bush fires, flooding and climate change, (e) to concentrate development in localities with adequate infrastructure that is accessible to transport and centres, (f) to protect and enhance the natural environment and scenic quality of the Sutherland Shire through the retention and rehabilitation of wildlife habitats, wildlife corridors, bushland, foreshores and waterways, (g) to conserve, protect and enhance the environmental and cultural heritage of Sutherland Shire, (h) to provide leisure and recreation opportunities to suit the needs of the changing population, (i) to meet the future housing needs of the population of Sutherland Shire. 1. The aims of particular relevance in this instance are subcll 1.2(2)(a), (c), (d), (f), (g) and (h). I note that subcl 1.2(2)(d) seeks to minimise risk to life and property from hazards. Amongst the hazards identified is climate change. Climate change may affect the intensity and frequency of flooding and be the driver of sea level rise. The existing MHWM is close, both horizontally and vertically, to the landward end of the jetty, and the seaward end of the boat shed. No timescale for considering future hazards is specified, and neither party raised any issues relating to increased hazard, and, in particular, rising sea level. 2. For land zoned E4, the zoning table provides: Zone E4 Environmental Living 1 Objectives of zone • To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values. • To ensure that residential development does not have an adverse effect on those values. • To allow for development that preserves and enhances the natural landscape setting of the locality. • To protect and restore trees, bushland and scenic values particularly along ridgelines and in other areas of high visual significance. • To ensure the character of the locality is not diminished by the cumulative impacts of development. • To minimise the risk to life, property and the environment by restricting the type or level and intensity of development on land that is subject to natural or man-made hazards. • To allow the subdivision of land only if the size of the resulting lots makes them capable of development that retains or restores natural features while allowing a sufficient area for development. • To share views between new and existing development and also from public space. 2 Permitted without consent Home occupations 3 Permitted with consent Bed and breakfast accommodation; Boat sheds; Dwelling houses; Environmental protection works; Flood mitigation works; Health consulting rooms; Home businesses; Home industries; Oyster aquaculture; Places of public worship; Pond-based aquaculture; Recreation areas; Roads; Secondary dwellings; Tank-based aquaculture 4 Prohibited Industries; Service stations; Warehouse or distribution centres; Any other development not specified in item 2 or 3 1. Given the minimal nature of the work proposed within the E4 zone, and the prior, and proposed continuing, existence of a boat shed the aims to which particular consideration is required are those in dot points 3, 5, 6 and 8 2. For Zone W2, the zoning table provides that: Zone W2 Recreational Waterways 1 Objectives of zone • To protect the ecological, scenic and recreation values of recreational waterways. • To allow for water-based recreation and related uses. • To provide for sustainable fishing industries and recreational fishing. • To achieve a balance between public and private use of the waterways and intertidal areas. • To protect remnant natural features, aquatic habitat, public access and the navigability of waterways. • To allow suitable mooring facilities having regard to the established character of an area, recreational uses, the functionality of the waterways and the cumulative impact of mooring facilities and other man-made structures in a waterway. 2 Permitted without consent Moorings 3 Permitted with consent Aquaculture; Boat launching ramps; Boat sheds; Charter and tourism boating facilities; Environmental facilities; Environmental protection works; Flood mitigation works; Kiosks; Marinas; Mooring pens; Passenger transport facilities; Recreation facilities (outdoor); Water recreation structures 4 Prohibited Industries; Multi dwelling housing; Residential flat buildings; Seniors housing; Warehouse or distribution centres; Any other development not specified in item 2 or 3 1. All of the objectives require consideration. 2. Moorings are permitted without consent from Council. However, swing mooring sites are allocated by NSW Maritime and the installation and requirements for continuing management of moorings are matters which will require permission on terms specified by NSW Maritime. 3. The surface elevation of the ramp and pontoon fluctuate with the changing tide, but the piles of the jetty extend below MHWM. Clause 5.7 of SSLEP 2015 was not referred to by either party: 5.7 Development below mean high water mark (1) The objective of this clause is to ensure appropriate environmental assessment for development carried out on land covered by tidal waters. (2) Development consent is required to carry out development on any land below the mean high water mark of any body of water subject to tidal influence (including the bed of any such water). 1. Clause 5.7(2) requires development consent for development below MHWM – which would apply to the jetty piles and the corner piles of the mooring pen. The Development Application seeks, inter alia, approval for the piles. The direct impacts on the marine environment are discussed in the Marine Habitat Survey prepared by H2O Consulting (Exhibit 1 Tab 1, folios 109-124). The marine ecology experts in their joint report (Exhibit 3) agree that the H2O Consulting Marine Habitat Survey provides a satisfactory assessment of potential impacts and that no issues arise. 2. The Respondent in its Statement of Facts and Contentions states in relation to Contention 1 that the proposal results in an adverse impact when viewed from the water and adjoining properties and that the proposal offends cll 6.9 and 6.10 of SSLEP 2015 as well as cll 13 and 14 of State Environmental Planning Policy (Coastal Management) 2018 (SEPP (Coastal Management)). Clause 6.9 of SSLEP 2015 provides that: 6.9 Limited development on foreshore area (1) The objectives of this clause are as follows— (a) to ensure that development on the foreshore area will not adversely impact on natural foreshore processes or affect the significance and amenity of the area, (b) to maintain and improve public access to the intertidal area of waterfronts if that access will cause minimal adverse environmental impact, (c) to avoid adverse ecological effects on waterways by minimising any adverse impact from development on water quality and, so far as is practicable, to improve the quality of urban run-off entering waterways, (d) to protect and enhance significant natural features and vegetation on the foreshore area, (e) to retain endemic vegetation along foreshore areas, (f) to restore and revegetate foreshore areas to improve estuarine flora and fauna habitat, (g) to minimise any adverse visual impact of development when viewed from adjacent land and waterways by using a design and materials that complement the natural landscape of the foreshore area, (h) to minimise any adverse impact of development on the natural landform of the foreshore area and waterways by integrating the development with minimal change to the natural topography of the foreshore area, (i) to achieve a balance between private development and the public use of waterways, (j) to minimise the obstruction of water views from public land. (2) Development consent must not be granted for development on the foreshore area except for the following— (a) the alteration, extension or rebuilding of an existing dwelling wholly or partly on the foreshore area if the footprint of the extension or alteration will not extend any further forward of the foreshore building line than the footprint of the existing dwelling, (b) the erection of a new dwelling on the foreshore area if there is no reasonable alternative that would allow a new dwelling to be located outside of the foreshore area, (c) development for the following purposes that does not significantly alter the shape, natural form or drainage of the foreshore area— (i) boat sheds, (ii) jetties, (iii) landscaped areas, (iv) sea retaining walls, (v) slipways, (vi) swimming pools (that are no higher than 300 millimetres above ground level), (vii) water recreation structures, (viii) waterway access stairs, (ix) inclinators, (d) the erection of a building on the foreshore area (other than a building referred to in paragraph (a), (b) or (c)), if the levels, depth or other exceptional features of the site make it appropriate to do so. (3) Development consent must not be granted under this clause, unless the consent authority is satisfied that— (a) the appearance of the development, from both the foreshore area and the adjacent waterway, will be compatible with the surrounding area, and (b) the development will not cause environmental harm such as— (i) pollution or siltation of the waterway, or (ii) an adverse effect on surrounding uses, marine habitat, wetland areas or fauna and flora habitats, or (iii) an adverse effect on drainage patterns, and (c) the natural qualities of the foreshore area are retained or restored as far as practicable through the retention or reinstatement of natural levels and endemic vegetation, and (d) the development will not cause congestion or generate conflict between people using open space areas or the waterway, and (e) opportunities to provide continuous public access along the foreshore area and to the waterway will not be compromised, and (f) any heritage significance of the foreshore area on which the development is to be carried out and of surrounding land will be maintained, and (g) in the case of development for the alteration, extension or rebuilding of an existing building (or the erection of a new building) wholly or partly in the foreshore area, the alteration, rebuilding or new building will not have an adverse impact on the amenity or aesthetic appearance of the foreshore, and (h) in the case of the erection of a new dwelling, the dwelling will not be erected further forward of the foreshore building line than any existing dwelling on the land, and (i) it has considered sea level rise or change of flooding patterns as a result of climate change. (4) In deciding whether to grant development consent for development on the foreshore area, the consent authority must consider whether and to what extent the development would facilitate the following— (a) continuous public access to and along the foreshore area through or adjacent to the proposed development, (b) public access to link with existing or proposed open space, (c) public access to be secured by appropriate covenants, agreements or other instruments registered on the title to land, (d) public access to be located above the mean high water mark, (e) reinforcement of the foreshore character and respect for existing environmental conditions, (f) management of any rise in sea level or change of flooding patterns as a result of climate change. 1. Clause 6.9(3) requires that the consent authority be satisfied, before development consent could be given, that the outcomes specified in the relevant subclauses will be achieved. 2. Development consent may be granted for a number of structures (cl 6.9(2)) including boat sheds and jetties, and water recreation structures. The term "water recreation structure" is defined in the Dictionary to SSLEP 2015 as: water recreation structure means a structure used primarily for recreational purposes that has a direct structural connection between the shore and the waterway, and may include a pier, wharf, jetty or boat launching ramp. 1. A water recreation structure may include a jetty, but the separation of jetties and water recreation structures in SSLEP cl 6.9(2)(c) suggests that a jetty can stand alone. 2. "Wharf" and "jetty" are separately defined in the Dictionary, although there is no definition provided for "pier". "Boat launching ramp" is defined as: boat launching ramp means a structure designed primarily for the launching of trailer borne recreational vessels, and includes associated car parking facilities. 1. It is clear that this definition of boat launching ramp is not applicable to the structure connecting the jetty and pontoon, which is described as a ramp in the application. Boat launching ramp covers structures which would commonly be referred to as slipways. 2. "Mooring" and "mooring pen" are separately defined as: mooring means a detached or freestanding apparatus located on or in a waterway and that is capable of securing a vessel, but does not include a mooring pen. mooring pen means an arrangement of freestanding piles or other restraining devices designed or used for the purpose of berthing a vessel. 1. A mooring pen is a different structure from a water recreation structure. 2. The application is for a mooring pen and water recreation structure. As the necessary link between jetty and pontoon to accommodate variation in height due to tides, the ramp, in my view, is a component of the water recreation structure. 3. Under cl 6.9(3)(a), development consent cannot be granted unless the consent authority is satisfied that the appearance from the foreshore area and the adjacent waterway (my emphasis) will be compatible with the surrounding area, and under cl 6.9(3)(b)(i) it has considered sea level rise and change in flooding patterns as a result of climate change. No evidence on sea level rise or the effects of climate change was provided. The compatibility with the surrounding area was, however, a major source of difference between the parties. 4. Clause 6.10 applies to development on certain foreshores: 6.10 Development on the foreshores of Port Hacking, Georges River, Woronora River and Port Botany (1) The objectives of this clause are as follows— (a) to provide for the protection of the foreshore environment of the Georges River, Woronora River, Port Botany and those areas of Port Hacking that are not part of the coastal zone for the benefit of both present and future generations, (b) to protect, enhance, maintain and restore the foreshore environment, its associated ecosystems, ecological processes and biological diversity and its water quality, (c) to protect and preserve the natural, cultural, recreational and economic attributes of the foreshores, (d) to provide opportunities for public pedestrian access to and along the foreshores, (e) to recognise and accommodate ecological processes and climate change, (f) to protect amenity and scenic quality, (g) to protect and preserve rock platforms, beach environments and beach amenity, (h) to protect and preserve native foreshore vegetation, (i) to protect and preserve the aquatic environment, (j) to ensure that the type, bulk, scale and size of development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area, (k) to ensure that decisions in relation to development involve consideration of the broader and cumulative adverse impacts of the development on the catchment. (2) This clause applies to land identified as "Foreshore" on the Foreshores of Port Hacking, Georges River, Woronora River and Botany Bay Map. (3) Development consent must not be granted to development on land to which this clause applies unless the consent authority has considered the following— (a) existing public access to and along the foreshore for pedestrians (including persons with a disability) with a view to— (i) maintaining existing public access and, where possible, improving that access, and (ii) identifying opportunities for new public access, (b) the suitability of the development, its relationship with the surrounding area and its impact on the natural scenic quality, taking into account— (i) the type of development concerned and any associated land uses or activities (including compatibility of any land-based and water-based activities), and (ii) the location, and (iii) the bulk, scale, size and overall built form design of any building or work involved, (c) the impact of the development on the amenity of the foreshore, including— (i) any significant overshadowing of the foreshore, and (ii) any loss of views from a public place to the foreshore, (d) how the visual amenity and scenic qualities of the foreshores can be protected, (e) how biodiversity and ecosystems, including the following, can be conserved— (i) native vegetation and existing wildlife corridors, (ii) rock platforms, (iii) water quality of waterbodies, (iv) native fauna and native flora, and their habitats, (f) the effect of ecological processes and ecological hazards and potential impacts, including sea level rise— (i) on the development, and (ii) arising from the development, (g) the cumulative impacts of the development and other development on the catchment. 1. Subclause 6.10(3) requires that the developing consent cannot be granted unless the consent authority is satisfied that the various matters have been considered. It does not require satisfaction of a particular outcome of that consideration. 2. Ms Amy (written submissions par 1.27) submitted that in terms of the planning hierarchy greatest weight should be given to SEPP (Coastal Management). The clauses raised in the contention as being relevant are: 13 Development on land within the coastal environment area (1) Development consent must not be granted to development on land that is within the coastal environment area unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on the following-- (a) the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment, (b) coastal environmental values and natural coastal processes, (c) the water quality of the marine estate (within the meaning of the Marine Estate Management Act 2014), in particular, the cumulative impacts of the proposed development on any of the sensitive coastal lakes identified in Schedule 1, (d) marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms, (e) existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability, (f) Aboriginal cultural heritage, practices and places, (g) the use of the surf zone. (2) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that-- (a) the development is designed, sited and will be managed to avoid an adverse impact referred to in subclause (1), or (b) if that impact cannot be reasonably avoided--the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised--the development will be managed to mitigate that impact. (3) This clause does not apply to land within the Foreshores and Waterways Area within the meaning of Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005. 14 Development on land within the coastal use area (1) Development consent must not be granted to development on land that is within the coastal use area unless the consent authority-- (a) has considered whether the proposed development is likely to cause an adverse impact on the following-- (i) existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability, (ii) overshadowing, wind funnelling and the loss of views from public places to foreshores, (iii) the visual amenity and scenic qualities of the coast, including coastal headlands, (iv) Aboriginal cultural heritage, practices and places, (v) cultural and built environment heritage, and (b) is satisfied that-- (i) the development is designed, sited and will be managed to avoid an adverse impact referred to in paragraph (a), or (ii) if that impact cannot be reasonably avoided--the development is designed, sited and will be managed to minimise that impact, or (iii) if that impact cannot be minimised--the development will be managed to mitigate that impact, and (c) has taken into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development. (2) This clause does not apply to land within the Foreshores and Waterways Area within the meaning of Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005. 1. She drew particular attention to subcll 14(1)(a)(ii) and (iii) which require consideration of whether the proposal would have adverse impacts on views or visual amenity. While SEPP (Coastal Management) applies to the whole coast of NSW, the specific matters identified by Ms Amy are also included within SSLEP 2015, and do not require additional to that required by SSLEP 2015. 2. Additional controls relevant to the application are provided in Chapter 11 of the Sutherland Shire Development Control Plan 2015 (SSDCP 2015) which addresses Foreshores and W2 Recreational Waterways. 3. The W2 zone includes two localities with a specific character – Sylvania Waters as a canal estate, with a privately-owned seabed, and an area at Taren Point which has specific controls relevant to an industrial area with adjacent natural areas. The rest of the W2 zone in the Shire has common controls – different locations within the W2 zone have their own character, but are not sufficiently distinctive as to warrant separate recognition in the SSDCP 2015. 4. The objectives of Chapter 11 are: "1.Objectives 1. Ensure that development visible from the foreshore, waterways and public domain makes a positive contribution to the foreshore and natural setting of the area. 2. Ensure development is compatible with the scale, character and landscape setting of the foreshore, natural setting and scenic quality and that the environment's natural qualities dominate. 3. Retain and enhance existing mature trees and indigenous vegetation within the foreshore area. 4. Integrate structures into the site with minimal change to the natural landform and topography. 5. Integrate developments in the foreshore and waterfront environment by using design and materials which complement the natural landscape. 6. Manage environmental impacts from development and where possible, improve environmental qualities along the foreshores. 7. Minimise the visual impact of foreshore and waterway structures when viewed from adjacent land, foreshores and waterways. 8. Achieve an appropriate balance between private development and the public use of waterways. 9. Maintain and improve public access to the intertidal area of the waterfront. 10. Ensure that any development does not obstruct or interfere with the physical manoeuvring of vessels and navigation within the waterway." 1. Clause 3 of Chapter 11 provides controls for water recreation structures. "3.Controls for Water Recreation Structures 1. Man-made structures must not occupy a total of more than 10 metres or 50% (whichever is the lesser) of the land-water interface, measured along the MHWM, of each property. 2. Man-made structures must not be visually dominant in the foreshore area of each property. The remainder of the foreshore area should: a. retain its natural landform, b. be landscaped with indigenous species chosen from Council's Native Plant Selector available on Council's website. 3. The total cumulative maximum surface area of water recreation structures and mooring pens is 25 m2 per lot. 4. Water recreation structures below deemed mean high water mark must be setback a minimum 2.5m from the prolongation of the common lot boundary unless there is explicit provision for shared use of the facility by neighbouring properties. 5. A fixed jetty is not to exceed a length of 20m from deemed mean high water mark including any reclamations. 6. The maximum width of a jetty must be 2m and the maximum height must be limited to 750 mm above MHWM (i.e. the maximum height is 1.29m AHD). 7. A suspended ramp must not exceed a length of 6m. 8. Any fixed jetty is not to exceed a length of 20m or the minimum length needed to reach the 0.0 tide height contour (-1.53m AHD), whichever is the lesser. 9. Any jetty, ramp and pontoon structure is not to exceed a length of 20m or the minimum length needed to reach the 0.6 tide height contour (-0.93m AHD), whichever is the lesser. 10. Pontoons and floating platforms are to be a maximum of 3.6m x 2.4m, constructed to the appropriate Australian Standard and only used as a facility to provide access onto a vessel. Note: Jetties, suspended ramp and pontoon structures must be designed to facilitate access to private recreational vessels where a reasonable depth of water is available. The structures are only to be used for short stay embarking and disembarking of passengers and the transfer of personal goods. 11. Railings are not permitted on jetties, ramps or pontoons. 12. Solid fill structures are not permitted. 13. Jetties must be supported on piles. Note: Stabilisation and fender piles are not permitted in the W1 Natural Waterways zone. 14. Water recreation structures must be constructed primarily of timber to complement the natural character and scenic qualities of the waterfront and foreshore. 15. Water recreation structures are to be treated in brown or dark tones to reduce the visual impact of the structure, except when alternative treatments are necessary for public safety. 16. Water recreation structures must be designed and constructed so that they do not cause damage, or have the potential to cause damage (including shading) to marine vegetation, macro-algae, seagrass or mangroves. 17. No water recreation structure will be permitted over Posidonia australis (strapweed seagrass). Jetties and ramps constructed with suitable mesh decking may be permitted over Zostera Capricorni and other seagrasses 18. A jetty must be designed and constructed in such a manner as to not adversely affect the natural movement of water and not cause the accumulation of weed, sediment or other material. 19. The construction of "L" or "T" ends or other types of elongations or steps at right angles to jetties is not permitted. 20. Water recreation structures must not impact on the navigation or recreational value of the adjoining waterway. 21. Water recreational structures must not interfere with publicly accessible areas along the waterfront. 22. Council strongly supports the use of shared facilities for two or more adjoining waterfront properties. This particularly applies in confined bays and areas of particular environmental sensitivity." 1. Subclause 3(10) specifies the pontoons and floating platforms can only be used as a facility to provide access onto a vessel. The note below the subclause suggested structures are to be used only for short stay embarking, disembarking passengers and the transfer of personal goods. The structures in the W2 zone are held on leases from NSW Maritime but neither party took me to any restrictions on use applied by NSW Maritime. 2. Clause 4 provides controls for mooring pens: "4. Controls for Mooring Pens Mooring pens are defined in SSLEP2015 as follows: 'mooring pen means an arrangement of freestanding piles or other restraining devices designed or used for the purpose of berthing a vessel'. This definition encompasses traditional berthing areas comprising an arrangement of fender or stabilisation piles, as well as more modern technologies including drive-on flotation devices. 1. Man-made structures must not cumulatively occupy more than 10 metres or 50% (whichever is the lesser) of the land-water interface, measured along the MHWM, of each property. 2. Man-made structures must not be visually dominant in the foreshore area of each property. The remainder of the foreshore area should: a. retain its natural landform; b. be landscaped with indigenous species chosen from Council's Native Plant Selector available on Council's website. 3. The entire area of a mooring pen must have a minimum water depth of 1800mm at 00 low tide (-1.53m AHD). 4. No more than one mooring pen may be located in front of a dwelling. 5. A mooring pen is not permitted where associated with a right-of-way to the waterway. 6. Mooring pens must be setback a minimum 2.5m from the prolongation of the common lot boundary unless there is explicit provision for shared use of the facility by neighbouring properties. Mooring pens will not be allowed where they unreasonably restrict access to a mooring pen or water recreation structure on adjoining properties, or unreasonably restrict the potential for adjoining properties to accommodate such facilities. 7. Mooring pens must be located adjacent to a jetty, ramp and pontoon structure (defined as a water recreation structure in the Standard Instrument LEP), have maximum dimensions of 15m x 7m (measured between poles) and when measured together with other waterfront structures (including reclamations), the moored vessel must not extend beyond 25m from deemed mean high water mark. 8. Mooring pens should be located and orientated to minimise the extent of facilities protruding into the waterway. This may involve orientating pens parallel with the foreshore when proposed at the end of a pontoon or locating them adjacent and parallel to the jetty where appropriate. 9. The size of vessels berthed in association with residential development is determined by the ability of the proposal to comply with the controls and objectives in this clause. 10. Dredging in order to create a mooring pen is not permitted. 11. Mooring pens must be dark, natural colours above MHWM in order to minimise the visual impact. 12. Piles for the purpose of mooring pens are to be single piles, made of timber, with a minimum diameter of 250mm and maximum height above MHWM of 1.75m. 13. Piles must be painted white along the top (0.5m) to facilitate visual prominence when viewed from the water at night and minimise any hazard to navigation. The use of alternative measures, such as reflective materials, to facilitate visual prominence may also be supported. 14. Mooring pens must be designed and constructed so that they or berthed vessels do not cause damage, or have the potential to cause damage (including shading) to marine vegetation, macro-algae, seagrass or mangroves. No mooring pens will be permitted over Posidonia australis (strapweed seagrass) and Zostera. 15. Mooring pens must be designed and constructed in such a manner as to not adversely affect the natural movement of water and not cause the accumulation of weed, sediment or other material. 16. Mooring pens are not to constitute a navigational hazard or obstruction, or interfere with public accessible areas along the waterfront. 17. Council strongly supports the use of shared facilities for two or more adjoining waterfront properties. This particularly applies in confined bays and/or bays characterised by shallow water, which would otherwise tend to create a demand for long structures to attain reasonable water depths. 1. Subclause 4(9) states that the size of the vessel occupying a mooring pen is determined by the goals and objectives of the clause. The draft of any vessel utilising a pen will be limited by the water depth at 00 low tide. The minimum depth is specified as 1800 mm. Given the need for clearance between the seabed and the vessel, the maximum draft of a vessel if the water depth were 1800 mm at 00 low tide the maximum draft of the vessel would necessarily be less. If the water depth at 00 low tide is greater than 1800 mm, the maximum draft of a vessel could be greater. 2. There is an apparent conflict between Chapter 11 clauses 3 and 4. In clause 3 the cumulative maximum surface area of water recreation structures and (emphasis added) mooring pens is (subclause 3) 25 m². 3. In subclause 4.7 the maximum permitted dimensions of a mooring pen are given as 15 m x 7 m (i.e. 105 m²) measured between the poles. 4. Mr Astill suggested that the only interpretation that would possibly allow the two specifications to be compatible would be if the area of the mooring pen in clause 3 were not the surface area of water demarcated by the four piles but the sum of the cross-sectional areas of the four piles, but this was very unlikely to have been the intended interpretation. I agree that not to regard a mooring pen as encompassing an area of water would be nonsensical. Clause 4.12 imposes a minimum pile diameter of 250 mm but does not specify a maximum size. 5. Another interpretation of SSDCP 2015 clauses 3 and 4 may be available which could resolve the apparent conflict. Subclause 3.3 reads: 3. The total cumulative maximum surface area of water recreation structures and mooring pens is 25 m2 per lot. The subclause ends with 'per lot'. The drafting of the subclause is less than ideal and the interpretation of 'per lot' is not clear. If a 'lot' is interpreted, in this case, as 375A Willarong Road, which is zoned E4, then the subclause is saying that not more than 25m2 of the relevant structures can be within the E4 zone. Chapter 11 of SSDCP 2015 is applicable to much more of the coast within Sutherland Shire than a particular part of Yowie Bay. It is probably not possible for a 25m2 structure to be accommodated within the E4 zone at 375A but it is conceivable, however, that there may be other localities within the Shire where such a structure could be within a lot. 1. The mooring pen proposed in this matter would be within the W2 Zone, which is part of the public domain, and not part of the lot constituted by 375A Willarong Road. Subclause 4.7 of the SSDCP 2015 is a control of the size of a vessel within a mooring pen in the W2 Zone. On this interpretation, subclauses 3.3 and 4.7 are applicable to different areas and no conflict between them arises. 2. If, however, 'per lot' is interpreted as 'associated with a particular lot' then the proposed structure would be within the imaginary prolongation of the boundaries of 375A into the waterway so that a conflict between subclauses 3.3 and 4.7 would arise. 3. The discussion of the conflict between the subclauses during the hearing did not raise the interpretation of 'per lot', so that the question was not addressed. However, if there is a conflict between the subclauses, I recognise that clause 4 specifically provides controls for mooring pens and I accept that the applicable control on the size of mooring pens is that provided in clause 4 rather than that in clause 3. 4. Clause 4 of Chapter 11 sets a number of controls applicable to mooring pens. Subclause 1 sets a maximum width of the land-water interface which can be occupied by man-made structures (relevantly water recreation structures and mooring pens combined). For the subject property this would be 50% of the land water interface measured along MHWM. Mooring pens must have a minimum side setback from common boundaries with neighbouring properties of 2.5 m. The proposal complies with this provision. The vessel berthed in the mooring pen must not extend further than 25 m from the deemed MHWM (subclause 7). 5. Subclause 4.14 requires that a mooring pen be designed and constructed so that the pen or berthed vessel does not cause, or have the potential to cause, damage (including shading) to marine vegetation. Pens are not to be constructed over the seagrasses Posidonia australis or Zostera capricorni. 6. At present there are very limited areas of these species in the vicinity of the proposal, and no seagrasses within the proposed footprint of the mooring pen. Whether the patches of seagrass could be shadowed by the berthed vessel requires knowledge of the height of the vessel and construction of shadow diagrams – an exercise not carried out by either party. 7. Seagrass beds are dynamic and can both expand and contract over time. Zostera is more likely to undergo expansion than Posidonia. Another seagrass, paddle weed (Halophila spp.) is a potential occurrence – it behaves more like an ephemeral than the other seagrass species and can come and go between seasons. Although the aims of SSLEP 2015 include, at cl 1.2(2)(f), protection and enhancement of the natural environment, the controls in SSDCP 2015 apply at the time of construction and if natural expansion of seagrass occurs later then subsequent contraction of the development footprint is not envisaged by the control. What does the application include and what impacts are required to be assessed? 1. The application is for the demolition of existing water recreation structures, construction of new water recreation structures (essentially similar to those demolished but with the orientation of the pontoon varied by 90° so that its long axis would be along a continuation of the ramp, and construction of a new mooring pen. The orientation of the pontoon would be the same as that of the existing pontoon at the property to the immediate north (371B) - see Plate 1A in the SEE (Exhibit A, Tab 9, page 1). 2. The relocated water recreation structures would be to the south of the existing structures and would permit direct access to the existing boat shed. 3. A consent authority or, on appeal, the Court standing in the shoes of the consent authority is required to consider, under s 4.15(1) of the EPA Act, "such of the following matters as are of relevance to the development the subject of the development application" which includes at (b): likely impacts of the development including environmental impacts on both the natural and built environments, and social and economic impacts in the locality 1. Both the development and its impacts need to be considered in a wide context. Three lines of argument support the need for considering the direct and indirect impacts both of the structures proposed and their future use. 2. In Hoxton Park Residents Action Group Inc v Liverpool City Council [2010] NSWLEC 242 Biscoe J considered (at [22]) that environmental impacts of a proposed development included 'both direct and indirect impacts on the environment outside the development site'. He drew support from Bell v Minister for Urban Affairs and Planning and Port Waratah Coal Services (1997) 95 LGERA 86 where relevant impacts included noise and vibration from increased rail traffic if the capacity of a coal loader were to be increased, and Queensland Conservation Council Inc v Minister for the Environment and Heritage [2003] FCA 1463 (the Nathan Dam case) where indirect impacts were held to include ecological impacts of pesticide used on crops grown on land irrigated with water released from the dam. 3. Biscoe J's decision and reasoning were upheld on appeal in Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349. 4. The importance of properly considering all impacts including both direct and indirect impacts associated with a development proposal was stressed by Preston CJ in Palm Lake v Ballina Council [2020] NSWLEC 41 at [5]-[39]. 5. Section 4.19 of the EPA Act is as follows: 4.19 Consent for erection of building authorises use of building (cf previous s 81A) A development consent that authorises the erection of a building (but not the use of the building once erected) is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose was specified in the application for development consent. This section does not authorise the occupation of such a building if Part 6 requires an occupation certificate to be issued. 1. The definition of building in s 1.4 of the EPA Act is: building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure within the meaning of the Local Government Act 1993. 1. Consent for the erection of the water recreation structures and a mooring pen is a consent for structures which are not temporary structures, and hence under the definition given above are to be considered as buildings. Consent for these structures authorises the use of the structures for their relevant purposes which in the case of the mooring pen is the mooring of a vessel. 2. The development application in this case includes demolition of existing structures, construction of new structures similar to those demolished but at a location to the south of the existing structures and construction of a mooring pen. The water recreation structures components of the application provides for a range of uses, including as is currently the case for the structures at 377 Willarong Road, launching kayaks and other small craft. However, the only use of a mooring pen is one which would introduce a new element into the local environment, the presence of a vessel associated with a pen for the majority of the time. The likelihood of the pen being used to accommodate a vessel is high – there would be little point in its construction if it were not to be used. The indirect effects of the proposal must therefore include those associated with the presence and use of a vessel. 3. The development application makes no reference to any particular vessel. An important issue which arises is whether assessment of the impacts of the proposal requires either the identification of a vessel, or specification in conditions of the dimensions and other aspects of any vessels which might be accommodated in the pen. 4. The issue is not dissimilar to that which arises in the case of subdivisions on land. There is no requirement in the EPA Act for application for subdivision proposals to contain details of the structures to be erected consequent on, but subsequent to, granting of consent for subdivision. Nevertheless, it has long been accepted that consent authorities may properly consider the future use of the site of subdivision (Seraphina Bell Pty Ltd v Willoughby Municipal Council (No 2) (1967) 14 LGRA 209 at 224). 5. In terrestrial subdivisions there may be circumstances where because of the environmental sensitivity of the site, it is appropriate to specify a future building footprint (not just an indicative footprint to demonstrate that a building of a particular size could be accommodated on the site but the footprint of the maximum size and actual location of a building that could be approved (see the planning principle in Parrott v Kiama [2004] NSWLEC 77 at [17]-[18])). In some cases it may be appropriate to go further than the footprint – in Visionary Investment Group Pty Ltd v Wollongong City Council [2019] NSWLEC 1234, the applicant proposed to sell land/house packages and provided a portfolio of house designs from which future purchasers of plots could choose. In Bottomline Group Pty Ltd v Snowy Monaro Regional Council [2020] NSWLEC 1115, the visual impact of a subdivision as viewed from Lake Jindabyne was an issue. One of the grounds for dismissal of the appeal was that in the absence of details of the design of the buildings which might be constructed, and the absence of any visual analysis, the Court was not in a position to determine the visual impact and to make an assessment of the acceptability of the proposal. 6. In the present matter the possible impact of use of the mooring pen if the proposal were approved is central to assessment. It is, in my view, necessary to have either knowledge of the vessel which might be in the mooring pen or to establish conditions which would control the dimensions of the vessel which could be accommodated. To require this information would be similar to requirements which have applied to terrestrial development in appropriate circumstances. SSDCP Chapter 11 clause 4.14 imposes controls on the size of any berthed vessel. 7. To some extent, constraints of the site and SSDCP 2015 establish some limits to the nature of any vessels using the pen. The prohibition on dredging, and the need for a minimum water depth at low tide impose draft limitations on the vessel size and type – any vessel in the pen is likely to be a motor driven vessel rather than a deep keel sailing boat. The beam of any vessel will be limited by the space between the piles. The proposed pen is 5 m wide outside the piles. If the piles are the minimum diameter 250 mm then the space between piles is 4.5 m – and less if the piles were above minimum size. In order to provide room to manoeuvre into the pen, the maximum beam of the vessel would need to be less by some margin than 4.5 m. There is, however, no control or constraint which would limit the height of the vessel. What vessels might use the pen? 1. In his submission (Exhibit 6), Mr Fuller said that Mr Wang already owned a large vessel which was moored on a swing mooring close to the site. In his email of 7 August 2020, he included a photograph of what he said was the vessel. He estimated that it was probably 15-16 m long. That the image showed Mr Wang's boat was not denied by the Applicant, but no further details were provided. Mr Fuller's estimate of the length of the vessel was not queried. Knowing the actual length is important in view of the control in SSDCP 2015 clause 4.7 that when in the pen moored, the vessel must not extend further than 25 m from the MHWM. If the vessel is 16 m long then if it were moored parallel to the shore line on the pontoon (which under the provisions of SSDCP 2015 should only be for limited periods), the length of the vessel would be greater than the 15.54 m width of the shoreline of the lot. 2. When the planning experts, Mr Mead for the applicant and Mr Kenny for the Respondent, prepared their joint report (Exhibit 4), they did not refer to any particular vessel. When giving concurrent evidence, Mr Kenny assumed that the boat depicted in Mr Fuller's image was the vessel that would utilise the proposed mooring pen. 3. Returning to Ms May's term 'parking' to describe the use of the mooring pen, provision of parking is a feature of many buildings – be it garages, carports or parking spaces in an underground car park. Particularly in the case of car parks, conditions may require some spaces to be larger for disabled parking, and other spaces may be specified as small, medium or large. However, specification of particular models of car does not occur. If an owner or tenant changes their vehicle, they would need to buy a replacement of dimensions which can fit within the space available, or find another parking space. 4. In the case of vessels, owners are not restricted to a single vessel for life, but may change their craft over time. 5. It would thus be appropriate to establish an envelope within which any boat using a particular mooring pen must conform. 6. The only case of which I am aware which considered the visual impact of a single vessel is De Angelis v Transport for New South Wales [2019] NSWLEC 1632 (De Angelis). In that case Mr and Mrs De Angelis had, in 2017, obtained approval from Roads and Maritime Services (RMS) to demolish an existing private landing facility and mooring pen at their property in Hunters Hill, and the construction of a new facility. Condition 6 of the approval was in the following terms: "Condition 6 The facility has been designed for and assessed as a mooring pen to accommodate a vessel of 18 m length overall, beam of the 5.1 m, draft of 3.5 m, and laden displacement of 28.5 tonnes. Vessels which vary from these specifications may be permanently berthed at the mooring pen but only to be extent that: (a) No increase in the LOA of the vessel; (b) The draft of any vessel is able to maintain a clearance of 0.5 m or more from the bed of the harbour at zero Fort Denison Tide Gauge; (c) The facility and its use continue to satisfy all other conditions for this consent (including compliance with all relevant straining codes rules and standards." from De Angelis at [1]. LOA is Length Overall. The condition did not include any limit as to the height of the superstructure of the vessel. 1. In 2018, application was made to modify the condition of consent to increase the size of the vessel and to carry out additional dredging (De Angelis at [2]). 2. The vessel for which approval was sought was a Grand Banks Aleutian which is 22.5 m long. This is substantially longer, and, with a substantial superstructure, much higher than the vessel depicted in Mr Fuller's email (Exhibit 6). Visual impact when viewed from the public domain was a major contention and there was evidence presented by visual experts from both parties (De Angelis at [59]-[64]). Senior Commissioner Dixon accepted the evidence of Dr Lamb (the respondent's visual expert) that "the proposed development will not be absorbed into the location'' and that the proposed vessel 'would appear out of character relative to other vessels in the immediate visual catchment', in an area of high sensitivity and low visual capacity (De Angelis at [63]). 3. The appeal in De Angelis was dismissed because "the site cannot accommodate the proposed vessel without unacceptable impacts" (De Angelis at [75]). 4. De Angelis related to a site in Sydney Harbour with different planning controls from those in Port Hacking. Nevertheless, the case shows that the size of a vessel and its visual impacts are relevant matters to consider. The vessel said to be owned currently by Mr and Mrs Wang is smaller than the vessel in De Angelis but it is still what most people would regard as large. The shores of Hunters Hill are not the shores of Yowie Bay, but the current proposal nevertheless requires similar investigation within its own context. 5. In De Angelis (at [74]), DPI Fisheries expressed concerns about the possibility of propeller scour to the seabed during berthing. This relates to the horsepower of the vessel and is a separate but related issue to any consideration of depth restrictions. Neither DPI Fisheries (Annexure 2 of Exhibit 3) nor the ecology experts in Exhibit 3 raised this issue in the current matter, but their consideration was not related to use of the pen by any particular vessel. When manoeuvring in a confined space and shallow water depth the disturbance caused may be greater if the vessel concerned has bow thrusters - which again was not raised or considered in the present case, and the specification of Mr Wang's vessel (if it is indeed the one which would be in the mooring pen if approved) is not known. Evidence and contentions 1. Two joint expert reports were in evidence. Exhibit 3 from the experts in aquatic ecology prepared by Mr Annick of Marine Pollution Research Pty Ltd for the Applicant and Ms Mariani, an Environmental Assessment Officer employed by Sutherland Shire Council for the Respondent, and Exhibit 4, from the experts in planning was prepared by Mr Mead, consultant planner for the applicant, and Mr Kenny, a planner employed by Sutherland Shire Council, for the Respondent. 2. The Respondent's Statement of Facts and Contentions (Exhibit 2) raises five contentions: "1 Visual impact of waterfront development 2 Navigability of the waterway 3 Ecological impacts 4 Matters raised in public submissions 5 Inadequate information" 1. The planning experts addressed Contentions 1, 2, 4 and 5. 2. In relation to visual impact the experts agreed on one particular, (1(a)), but even after concurrent oral evidence the gap between them remained in relation to the other particulars. 3. Particular 1(a) is that the existing boat shed and the proposed structures occupy more than 50% of the land-water interface measured along mean high water mark of the property. This is inconsistent with the requirements of Chapter 11 of SSDCP 2015. The land-water interface of 375A is 15.4 m. The experts agreed that the combined width of the facilities measured along MHWM is less than the maximum permitted by the control. Under s 4.15(3A)(a) of the EPA Act, a more onerous standard cannot be imposed. 4. Contention 1 particular (c) is that the cumulative area of the proposed facilities exceeds the 25 m² permitted in SSDCP 2015 clause 3.3. Mr Mead points out that SSDCP 2015 clause 4.7 requires that a mooring pen must be located next to a jetty but permits a mooring pen to have a maximum size of 15 x 7 m. I have discussed earlier the apparent conflict between cll 3 and 4. Mr Mead suggests that clause 3.3 should be applied flexibly (s 4.15(3A)(b) of the EPA Act) so as to permit the proposal to be approved – however the disparity between what is allowed under clause 3 and clause 4 is so large that the difference would exceed what would normally be accommodated by flexibility. As I have discussed earlier it seems more appropriate to follow clause 4 which specifically addresses mooring pens in some detail. 5. Contention 1 particular (f) states that construction/material are inconsistent with the requirements in Chapter 11 of SSDCP 2015. Mr Mead (Exhibit 4, 1.21) shows that the materials and finishes in the construction of the pen and water recreation structures satisfy the relevant controls in SSDCP2015 Chapter 11. On my reading of what is proposed and the DCP I support Mr Mead's interpretation – the materials are compliant. 6. Contention 1 particulars (c), (d) in part (e) related to visual impacts in the context of the locality are discussed below commencing at [137]. 7. Particular (g)(iii) is that the proposal offends against the W2 zone objectives. There are six objectives specified for the zone in SSLEP 2015: * The first is to protect ecological, scenic and recreational values. Mr Mead defers to the ecology experts on ecological values and I note that the ecology experts agreed that there was no adverse ecological impact. In regards to scenic and recreational values, Mr Mead considered that a balance needed to be struck between the two sets of values but in his view the appropriate balance was achieved. * The second objective is to allow for water-based recreation. Mr Mead considers that the proposal was to provide for water-based recreation. * The third objective is to provide for sustainable fishing industries and recreational fishing. What is proposed has no direct effect on fishing industries. Mr Mead suggests that recreational fishing is facilitated for the Applicant through provision of a mooring facility. Recreational fishing can be carried out by any person who pays the required fees and observes the relevant bag and size limits and other regulatory requirements. Someone fishing from a tinny in the waterway a few metres off the existing pontoon is exercising a right to fish. Potentially this activity could be disturbed by a vessel entering or leaving the mooring pen. From the information provided by Mr Fuller, it would appear that Mr and Mrs Wang already have access to a mooring facility – a swing mooring in the near vicinity. In addition, it would presumably be possible to fish from the pontoon. * The fourth objective is to achieve a balance between public and private use of the waterways. Mr Mead considers that the proposal does not interfere with public access in the foreshore and does not give rise to predominance of private use of the waterway. Mr Mead notes that RMS supports the proposal in navigation terms. The RMS letter (Exhibit 1, folio 127) indicates that they had no objections regarding the structure impacting on navigation or other waterway users. Rather than offering support, they raised no objections to the structure – RMS had not been provided, as far as I am aware, with details of the vessel likely to use the pen. * The fifth objective is to protect natural features, aquatic features, public access and the navigability of the waterway. The objective applies to the W2 zone throughout the Sutherland Shire. Mr Mead argues the proposal will not affect natural features and that public access is not affected, and that RMS have considered impacts on navigability. Neither party appears to have conducted Independent assessment of impacts on navigability although Mr Kenny argues that there will be impacts. * The sixth objective is to allow suitable mooring facilities having regard to the established character of an area. Reference to an area implies that what are suitable mooring facilities might differ between different parts of the W2 zone across the Shire. Mr Mead considers that the proposal would not result in an unacceptable cumulative impact and would not set a precedent. 1. The contentions in relation to SSLEP 2015 cll 6.9 and 6.10, character and visual impact also arise in other contentions, and in Mr Mead's view the proposal does not cause offence to the clauses. 2. Contention 2 addresses the navigability of the waterway – in that the proposed mooring pen may interfere with the physical manoeuvring of vessels and navigation within the waterway. Three particulars are listed: 1. that the proposed development restricts access to the jetty, ramp and pontoon structures to both adjoining properties; 2. Roads and Maritime Service letter dated 11 April 2018 identifies that a further two swing mooring may be impacted and would need to be relocated; and 3. the proposal offends SSLEP 2015 Land Use Table W2 Waterway Zone objectives. 1. The experts agreed that they did not have specialist expertise in navigation. They also agreed that the RMS did not raise concern in relation to navigation except for that in particular 2(b). 2. This concern does not identify a definite problem, rather it is that there may (emphasis added) be a need to relocate two swing moorings. If it were to occur, RMS considered that it should be at the Applicant's expense. The experts agreed that the matter could be dealt with by conditions of consent. The Applicant has agreed to such a condition. If relocation is deemed to be required by a Boating Services Officer, then the process is generally initiated post construction prior to the issue of an Occupation Certificate (Exhibit 4 at 2.3). While I agree that if relocation of swing moorings is required the cost should be borne by the Applicant, I do not consider that it would be appropriate to be a condition of consent if the current development application were approved. The Council does not control or regulate swing moorings – these are matters for NSW Maritime. The agency will decide if existing moorings are to be relocated, and to where. No moving of swing moorings is part of the development application, although movement might be a consequence of a successful development application. If moving swing moorings arises the cost would be a matter between the Applicant and NSW Maritime but I note the Applicant's willingness to pay the cost. 3. The experts agreed that the Land Use Table for the W2 Zone renders the proposal permissible with consent so particular 2(c) is not applicable. In regard to particular 2(a), the parties do not agree. Mr Mead states that the proposed development adopts a similar layout as exists at 371B Willarong Road, the adjacent property to the north, and that there will be no interference with navigation. 4. The parties are in agreement that an approval for the ramp and pontoon at 377 Willarong Road, the property to the south, cannot be located. Despite number 377 not appearing to have any approval for the existing facilities on-site, Mr Mead is of the opinion that there will be no conflict between the properties given that the proposed pen is on the northern side of the jetty at 375A. Mr Mead also notes that the proposal for 375A is compliant with a side setback condition in SSDCP 2015 Chapter 11 clause 4.6. The position of the current water recreation structure on 377 would preclude mooring a vessel on its northern side, but mooring on the southern side of the structure at 377 would be possible. 5. In relation to Contention 4 - Matters raised in public submissions, the planning experts agreed that the matters raised overlap with the contentions raised by the Respondent and do not require separate attention. 6. The planning experts agreed that Contention 5 – inadequate information – has been addressed by the most recent letters from DPI Fisheries and Transport for New South Wales which demonstrate that the agencies have considered the current plans and raise no objections. However, there is no evidence that the agencies had a particular vessel in mind when they reached their conclusions. 7. Mr Kenny reached different conclusions from those of Mr Mead. His characterisation of the visual landscape of the Yowie Bay foreshore leads him to conclude that the proposed mooring pen introduces a large structure which will be able to accommodate a large vessel which will be uncharacteristic within the locality. Mr Kenny also argues that the proposal has little regard for the established and desired future character of the locality, recreational use, functionality and cumulative impact of mooring facilities within the waterfront area (Exhibit 4, par 1.27). In regard to cl 6.9(3) Mr Kenny is of the view that I could not be satisfied of the relevant matters and that in regard to cl 6.10(3) the relevant matters have not been considered. 8. For Contention 2, Mr Kenny says that in relation to the structures situated on the waterway at 371B Willarong Road (referred to by Mr Mead in Exhibit 4 at 2.5 and 2.6) a search of Council records indicates that no approval had been granted for the mooring pen. 9. Mr Kenny is concerned that the mooring pontoon proposed for 375A will protrude 4.8 m beyond the pontoon and he was of the opinion that there is the potential for the movement of vessels to be restricted by the presence of the mooring pen and by any vessel utilising the structure. 10. The ecologists addressed Contention 3 and in their joint report agreed that the particulars in the ecological impacts contention had all been satisfactorily addressed and that the contention had been resolved. 11. The ecologists were not called to give evidence. They were satisfied that there was no shading of seagrass habitat arising from structures, but in the absence of knowledge of the height of any vessel using the mooring pen, any shadowing due to the vessel has not been assessed. Given the orientation of the pen, there would be no shadowing of the Zostera, and the likely impact on the Posidonia would be small but confirmation would be desirable. The experts concluded there would be no or negligible impacts on the foreshore (SSLEP 2015, cll 6.9, 6.10), but they did not consider sea level rise as a result of climate change (subcll 6.9(3)(i) and 6.9(4)(f)). Visual impact 1. In the absence of the site view, the evidence on which to assess Contention 1 (visual impacts) is provided by the evidence of the planning experts, both the written evidence in Exhibit 4 and their joint oral evidence, and the Statement of Environmental Effects (behind Tab 9 in Exhibit A) and the photographs in Exhibit 1, behind Tab 1, folios 23-52 – images taken on Thursday, 29 September 2019 and behind Tab 2, folios 130-161 (23 June 2020) — and the photographs and images in Exhibit 4, Annexures B and C. 2. The properties on the eastern shore of Yowie Bay, where the subject site is situated, have steep sloping topography and retain elements of the original tree cover, augmented by more recently planted material. The area is not, as was suggested by Mr Fuller, "pristine" (no developed suburb could meet the definition of "pristine"), but there is sufficient vegetation to support native fauna, provide a wildlife corridor and form a valued visual backdrop to the shore when viewed from the waterway. These features of the area are reflected in the E4 zoning. 3. Boat sheds are permitted on the shore; many of the properties in the vicinity have boat sheds, which, as required by SSDCP 2015 and its predecessors, are relatively small and unobtrusive structures. The character of the shore is partly due to the presence of the boat sheds – the appearance of the shore can be distinguished from that of near natural areas such as the Royal National Park and from that in a more heavily developed suburb. 4. Many of the properties also have elements, within the W2 zone, of water recreation structures, again relatively low-key and unobtrusive, where under the SSDCP 2015 controls, vessels may be tied up for brief periods but not permanently. 5. Further out from the shore are swing moorings, occupied by a range of vessels of different sizes, including both sailing yachts and motor vessels. Vessels on swing moorings move in response to wind and tide and their orientation changes over the course of the day. The moving picture they present has been regarded as an attractive feature of waterways and because they have to accommodate movement without collision, they are necessarily separated so the view is perceived as permeable (Double Bay Marina v Woollahra Council [2009] NSWLEC 1001 at [62]). 6. A mooring pen provides for the mooring of a vessel in a fixed position for extended periods of time. The vessel may be larger than the pen; clause 4 of SSDCP 2015 does not require that a vessel be entirely within a pen but the vessel within a pen must not extend further than 25 m from the deemed mean high water mark. Boats within a number of existing mooring pens in Yowie Bay extend beyond the pens as can be seen in the image below. Figure 1 Extracted from Exhibit 4. 1. What views are to be assessed? Viewed from dwellings above the shoreline, the proposed structure would add a new element to the view, but one filtered through foliage (Photographs in Exhibit 1, Tab 1, folios 45-47 and Tab 2, folios 130-131) The photograph on page 26 in the SEE (Exhibit A, Attachment C) is of a more open, less filtered view. The height of the properties above the shore, and the steepness of the slope means that the land-water interface itself is partly obscured. No issues of view sharing from neighbouring private properties, as discussed in the planning principle in Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity) at [25]-[29] arise. 2. There is no public right-of-way along the shoreline. It would not be possible for a member of the public to traverse along the shoreline in a north-south direction, so questions of the interruption of public views from the shore do not arise. The view of someone standing on a pontoon either north or south of the subject site might be affected by the presence of a vessel in a mooring pen on the subject site. This would not readily be captured by the Tenacity principle, and as water recreation structures associated with individual properties are not part of the public domain, the principle in Rose Bay Marina at [39]-[49] is not engaged. However, the visual impact of a large vessel in the proposed mooring pen Is a concern to Mr Fuller (Exhibit 6). 3. However, Yowie Bay is the public domain from which a view of the shore can be obtained. The further away from the shore, the wider the field of view. The view will also differ between the perspective of a kayaker and someone on the flying bridge of a large vessel. 4. The images reproduced below are taken from Annexure B of Exhibit 4. The red arrow is situated above the boat shed on the subject site. Figure 2 Extracted from Exhibit 4 Annexure B. Figure 3 The vessel in front of the boat shed is not the vessel in the image in Exhibit 6, but is a different vessel on a swing mooring offshore from the jetty. Figure 4 Extracted from Exhibit 4 Annexure B. 1. The images show that the shoreline in this part of Yowie Bay has a number of boat sheds of various sizes and colours, and the boat shed at 375A is not atypical of the near neighbourhood. 2. There has been considerable shoreline development in Yowie Bay over many years. The Applicant's position is that a mooring pen is a structure which can be permitted with consent and that the size of the pen proposed is well below the maximum permitted under SSDCP 2015 Chapter 11 clause 4. A list of recent consents for mooring pens issued by Sutherland Shire Council (under the same planning controls currently applicable) is provided in Annexure D to Exhibit 4. Several were in different parts of Port Hacking and are not directly comparable. Several are in the general area of Yowie Bay, of which two were for smaller pens than that applied for in the current application. However, since the size of a pen is only a partial indicator of the size of the vessel using it, the impact is not necessarily predicted from the pen size. Consideration 1. Given the permissibility within the W2 Zone, the Applicant referred to McClellan CJ's discussion in BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 (BGP) at [115]-[119]: "Significance of the zonings 115 The context in which the issues in this case must be resolved includes the history of the use of the land and the contribution which it now makes to the existing natural environment. Although zoned industrial, that zoning was imposed at a time when the community's understanding of the significance of some elements of the natural environment was not as mature as it now is. Consideration of matters of inter-generational equity and the conservation of both biological diversity and the ecological integrity of land were not such significant elements of environmental decision-making as they are today. 116 Notwithstanding the fact that the ecological integrity of the site may be threatened if the major road reservation were utilised for its purpose, I am satisfied that this is not a significant matter in this case. The reservation was also imposed at a time when the ecological significance of the area was unlikely to have been given any, or at least any mature, consideration. It would be inappropriate to make a decision in the present case upon the assumption that construction of the proposed road is inevitable. 117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened. 118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts. 119 However, there will be cases where, because of the history of the zoning of a site, which may have been imposed many years ago, and the need to evaluate its prospective development having regard to contemporary standards, it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project." 1. While the zoning determines permissibility it does not create a right of approval. BGP makes it clear that the impacts of what is proposed have to be acceptable. The environmental planning instruments applying to the present matter are relatively recent – it is not the case that planning instruments have been overtaken by subsequent legislated considerations, but the acceptability of the impacts will continue to be an issue for the consent authority to determine. As to interpretation of BGP, see also Preston CJ in Denoci Pty Ltd v Liverpool City Council [2020] NSWLEC 102 at [25] and [32]. Navigation issues 1. The planning experts agreed that they were not experts in the topic of impacts on navigation, but reached different conclusions. The Applicant's expert had no concerns, and took support from the letter of NSW Maritime, correspondence which did not raise objections, and indeed specifically stated that 'Roads and Maritime have no objections regarding the structure impacting on navigation or other waterways users' (letter from Mr Andy Robertson, Manager Operations, Botany Bay/Port Hacking of 13 March 2020). This letter was referred to in the joint experts' report (Exhibit 4) and a copy was provided, following a request from the Court, by the Applicant's solicitor by correspondence dated 26 August 2020. 2. As I understand the Council's position, and the submission from Mr Fuller, the concern is not so much with the mooring pen per se but with the use of any vessel moored in the pen. 3. Navigation issues arise in two ways. Firstly, SSDCP 2015 Chapter 11 clause 4.6 states, inter alia, that mooring pens will not be allowed where they unreasonably restrict access to a mooring pen or water recreation structure on adjoining properties or unreasonably restrict the potential for adjoining properties to accommodate such facilities. Access to a mooring pen will be affected by the size and manoeuvrability of a vessel, the proficiency of the skipper and conditions such as strong cross winds. Other than the requirement for the person navigating a vessel to have the necessary boating licence, there is nothing that can be done through application of conditions that can require a particular level of proficiency and competence. The potential to assess the impact of a neighbour wishing to utilise an as yet hypothetical pen is limited. The size of the pen (subject to the maximum size constraint) and that of the potential vessel which could be moored within it would the choices made by the first neighbour to construct a pen, 4. The second issue is whether the use of the waterway in front of the proposed pen might be unduly affected by the use of the vessel in the pen. Mr Fuller in his submission lists uses in the immediate vicinity as including use of kayaks, paddle boards and small dinghies used for fishing. Mr Fuller raised a previous serious accident, but this was a hearsay, and no details were provided. I accept that such an incident may have occurred, and that is regrettable, but while every practical measure to prevent re-occurrence should be taken, accidents may, unfortunately, occur. The skipper of a vessel entering or leaving the facility is under an obligation to keep a lookout for other vessels, to avoid collision and to minimise wash when in close proximity to other users. 5. Mr Fuller argues that potential interactions between users require the retention of generally navigable water in front of the proposed pen. 6. SSDCP 2015 Chapter 11 cl 4.7 specifies that no vessel in a pen must extend beyond 25 m from the deemed mean high water mark. 7. Exhibit B includes as the second of the plans in the bundle a drawing which depicts, in red, a dotted line identified as the Navigational Line Limit. The drawing is overlain on a Six Map image, which appears faintly as the background. The result is confusing in that the overlay shows existing structures in a different position from the same structures in the underlying image. The Navigation Line Limit as drawn crosses existing structures on the underlying image. The underlying image should be ignored if the drawing is assumed to be a correct representation. Mr Kenny prepared an annotated version of the plan which became Exhibit 7. Mr Kenny's diagram shows that the vessel assumed to be the potential future occupant of the pen will extend beyond the Navigational Line Limit by 2.7 m (on the basis of the vessel being 15 m long – although Mr Fuller suggests 15-16 m – but this was only a guess, it could be longer). A 2.7 m intrusion beyond the Navigation Line Limit is still within the 25 m from MHWM maximum specified in the SSDCP 2015. 8. What is the Navigation Line Limit and how was it determined? This was the subject of some discussion during the hearing. 9. The Navigational Line Limit is not mentioned in SSLEP 2015 or SSDCP 2015. It does, however, appear on a number of illustrations in the SEE (Exhibit A, Tab 9). It is most clearly seen as a yellow dotted line on Plate 6 in section 5.1 on page 6 of the SEE. The caption refers to the Navigational Line Limit as being formed by the 'as built structures' – it simply marks the outer limit of the existing water recreation structures and mooring pens. In practical terms it would not be possible to navigate parallel to the shore between the line and MHWM. The line is descriptive, and as such is not relevant to determining the matter at hand. There are controls on the length of water recreation structures and pens; these are governed by distance from MHWM and not by reference to the Navigation Line Limit. 10. The visual impacts and some of the navigational issues cannot be resolved without either knowing the vessel to be utilised, or setting conditions which would determine the vessel which could be utilised; as any approval will run with the title and not be restricted to a particular vessel, the second course would be preferable. There is an existing length control and a depth control and there is a size limit on mooring pens. The actual size which is practical will be affected by the interaction between the depth control, the extent to which the vessel can extend from mean high water mark and the width of a pen. The pen width has a maximum size control, and the maximum width of a pen and associated structures is set by the controls on the proportion of the space (measured along MHWM) which can be obstructed by structures is limited under the DCP. The width might also be restricted by the need to maintain side setbacks to neighbours. There is no height control and the height of vessels when viewed from the waterway will be a major feature in the assessment of visual impact. The height of vessels in marinas, where boats are massed was deemed to be a matter to be controlled by conditions in Addenbrooke Pty Ltd v Woollahra Municipal Council (No 2) [2009] NSWLEC 134. While a massing of vessels in a fixed position will have greater visual impacts than those of a single vessel, the visual impact of a single vessel is still an aspect of the visual impact that will be important to consider within the context of semi-natural shoreline with separate discrete facilities for provision of fixed moorings, as in Yowie Bay. 11. The proposal has a number of components. It involves the removal of an existing water recreation structure and construction of a new structure further south - with a changed orientation of the pontoon. The relocation will increase the functionality of the existing boat shed. Various photographs in evidence show that at low tide the boat shed is fronted by a rocky, algal-covered shore over which access from the shed for boating purpose is not possible (for example Exhibit 1, Tab 1, folio 28). I was not made aware of any impediment to approving these aspects of the proposal and Ms Amy at the conclusion of her submission agreed that these aspects of the proposal could be approved. 12. What of the mooring pen? Mooring pens are permissible with consent in the W2 Zone, and as can be seen in the images at [114] above, several mooring pens currently exist in Yowie Bay although not within the immediate visual catchment of the subject site. 13. There were suggestions that some existing water recreation structures in the vicinity do not have the benefit of approval, and additionally may not meet the side setback condition. It was also suggested that the restrictions on the use of structures were not always observed. The image at [114] above shows, identified in green squares by Mr Mead, what are said to be permanent moorings. The Google Earth Images in Annexure C to Exhibit 4 (Figures 5 and 6 below) show numerous vessels moored on water recreation structures. An image is a record of one instance in time and of itself does not provide proof of a breach of the limits on mooring on pontoons and jetties. However, I note that the Google Earth Images date from 12 March 2018 (Information provided in a letter from the Applicant's solicitor dated 26 August 2020). 12 March 2018 was a Tuesday when it is unlikely that all boats would be in active use. The photograph in Exhibit 1, Tab 1, folio 24 taken on a Thursday shows a vessel moored at a pontoon to the north of the subject site. Figure 5 The red arrow indicates the location of 375A Willarong Road. Extracted from Exhibit 4. Figure 6 Extracted from Exhibit 4. 1. These are compliance issues which are a matter for Council, but are not issues in this matter for the Court. I must take what is said in the applicable controls as being the means of achieving what is intended to be the desired character of the neighbourhood. 2. Given that I have been provided with no evidence (other than Mr Fuller's submission) about the vessel which might utilise the pen (and the Applicant made the decision to remain silent on details of the vessel), and I have not been provided with conditions which assist in limiting the height and other features of the vessel which may utilise the pen, assessing the visual impact of the proposal is not possible. Mr Mead (Exhibit 4, par 1.12) is of the view that the proposal will blend and be compatible with its surrounds. It is possible that this might be so, but the Applicant needs to do more to substantiate its case. I agree there are numerous structures on the shores of Yowie Bay, and that there are mooring pens some distance to the north and south of the subject site, but the stretch of shore in which the subject site is situated (see photos at [135] above) does not currently contain any pens. 3. Mr Fuller (Exhibit 6) was concerned about precedent. Development applications are site-specific and the facts and issues are unique to each site. As such the decisions are not deterministically precedential, although they might influence future decision making – each future application will be assessed on its own facts. However, it is inevitable that decisions will be perceived as precedents and may influence the making of further applications. The Applicant refers to the number of existing structures to suggest that Council has not applied the controls consistently and that there is nothing in the present application which warrants its refusal. Without a full history of applications, both successful and unsuccessful, and whether some structures might not have been subject of applications, I cannot comment, but I note Ms Amy's firm advocacy for refusal. 4. Ms Amy in submissions at par 1.1 states that the essence of this application is that the public waterway is being privatised for use by one household. This is an exaggerated view of the application - the area directly affected if the proposal were to be approved is small within the overall context of Yowie Bay. It might be considered as a proposal which nibbles away at the waterway – the cumulative impact is a matter to be considered, but the total area of waterway which could be affected if the full development were to be taken up would still be small compared to the total area of Yowie Bay. It is not the alienation of space (although it is not an unimportant consideration, and cumulative impacts need to be considered), which is the prime concern, but the impact on the visual character of the locality. 5. Ms Amy in submissions at par 1.2 argues that 'Any boat moored in the mooring pen should be wholly within the pen, otherwise how can you determine the visual impact of the proposal'. If approval were to be granted I would reject this as a condition. There are already mooring pens in Yowie Bay where vessels extend considerably beyond the limits of the pen, and SSDCP 2015 Chapter 11 clause 4 clearly anticipates that the vessel may be longer than the pen. I would, however, agree that the visual impact cannot be assessed without knowledge of, or assumption about (through conditions), any future vessel utilising a pen. 6. The Respondent in its proposed draft conditions of consent (Exhibit 9) proposed condition 5 requiring that the Applicant register a s 88B instrument (under the Conveyancing Act 1919) imposing a restriction as to user setting a limit on how far any boat moored in a mooring pen could extend beyond MHWM. The Applicant opposed this, citing what I had said at [152]-[152] in Belling v North Sydney Council [2018] NSWLEC 1656 about not requiring s 88B instruments when there was ability to impose ordinary conditions which would have the same effect. At the hearing (Tcpt, 12 August 2020, p 29(5-12) I advised that the Council's concern could in my view be addressed through ordinary conditions. If consent for a mooring pen were to be granted then any prudent prospective future purchaser of 375A Willarong Road would, in the course of their pre-purchase inquiries, become aware of the conditions of consent and the requirements of SSDCP 2015. Visual Impact Yowie Bay 1. Yowie Bay accommodates a large number of vessels, on swing moorings and in mooring pens. (There may also be vessels berthed permanently on water recreation structures, in contravention of the controls, but data are not available). Swing moorings and mooring pens are not uniformly distributed throughout the waterway. There are still parts of the shoreline where mooring pens are relatively uncommon. The fundamental difference between the parties' experts is that Mr Mead has evaluated visual character in the context of the whole of Yowie Bay when considering the visual impact of the proposal, whereas Mr Kenny considered the immediate vicinity of the subject site (see Ms Amy's submissions at 1.33 and 1.34 reproduced below. "1.33 The difference, I submit to the Court is that Mr Mead has considered the entirety of Yowie Bay and Mr Kenny has considered the visual character of the immediate vicinity. 1.34 In those circumstances, one must consider the immediate context in which the development is proposed. One can then look at the broader cumulative impact of this development in the locality and in this regard cumulatively, Council's position is that this will create a precedent within this bay – which was mentioned by Mr Fuller in his oral evidence to the Court." 1. Ms Amy does not define or specify the immediate vicinity. The photographs in Annexures B and C to Exhibit 4 (reproduced above at [114], [118] and [135]) depict a relatively long stretch of the shoreline with boat sheds and water recreation structures but, not currently, mooring pens. If the 'immediate vicinity' of the subject site were restricted to the two immediately neighbouring properties to the north and south of 375A (the subject site), then it would be too small a length of shoreline to provide a basis for assessment. However, my understanding of the 'immediate vicinity' that Mr Kenny was discussing to be an extent of shoreline slightly longer than that in the photographs at [118]. I consider this a sufficient length of shoreline to have a visual character and that the visual impact of a large vessel in the proposed pen needs to be assessed. For this assessment there would not only need to be knowledge about the length and beam of a vessel, but also its height. 2. I note what was said in Project Venture Developments Pty Ltd v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 at [31]: "31 It should be remembered that most people are not trained planners or urban designers and experience the urban environment without applying the kind of analysis described above. As people move through the city, they respond intuitively to what they see around them. A photomontage of a proposed development in its context provides the opportunity to test the above analysis by viewing the proposal in the same way that a member of the public would." 1. In De Angelis and marina cases such as Double Bay Marina, Addenbrooke and Rose Bay Marina, expert evidence was given by visual impact experts. This did not occur in the present matter, but I do not consider that such evidence would be essential – the topic area is not so esoteric as to necessarily require such experts (although their contribution in some cases can be very important); with the appropriate information, the task should be capable of being addressed by planners. In the present circumstances the necessary information on the impact of the size of vessels which might utilise the mooring pen was not available. Deciding what would or would not be an acceptable impact on the visual character of a locality does not require that all of the components of the view of the shoreline from the waterway be identical, rather they are of comparable size and shape so that the development associated with any single lot does not dominate the view. 2. The aims of SSLEP 2015 include protecting the environment of Sutherland Shire in general and some aspects of the environment, in particular see subcl 1.2(f). Within cl 6.9(3)(a) of SSLEP 2015 is a jurisdictional prerequisite in relation to visual impacts. Clause 6.10(3) requires that I am satisfied that a number of matters have been considered – subcl 6.10(3)(c)(ii) and subcl 6.10(3)(g). The matters have been considered, but information necessary for full consideration was not available. I have reached the opinion that assessing the visual impact of a mooring pen necessarily requires knowledge of the vessel moored in the pen – the visual impact of four piles on their own is small. Any approval granted for the construction of a mooring pen is independent of ownership of the pen and of any particular vessel. This means it will be necessary to define a three-dimensional envelope within which any vessel, now or in the future, must fit. The envelope would be such that any vessel fitting within the envelope would not have an unacceptable visual impact when viewed from the public domain that is the waterway. Absent such information a consent authority cannot assess the visual impact, and thus cannot be satisfied that the jurisdictional hurdle is surmounted. I therefore cannot approve the mooring pen component of the proposal. 3. I raised during the hearing whether it might be desirable to place some control on colour of vessels. In terrestrial situations controls are sometimes placed on colour and finishes of built structures so that they might blend with the background and not be visually obtrusive. However, there are reasons why this might not be appropriate if applied to vessels. There may be circumstances where a vessel in difficulties offshore needs to be sighted – and if it were effectively camouflaged by being a similar colour to the background this might not be possible. It is the vertical extent of the vessel as viewed against the shore from within the waterway which is more critical for assessment of visual impact. 4. Mr Astill (Tcpt, 12 August 2020, p 12 (22-29)) agreed that there were functional limits on the size and nature of a vessel within a mooring pen. He also conceded (Tcpt, 12 August 2020, p 12(6-12)) ASTILL: Well, I suppose as a last resort if that was necessary to obtain an approval we'd say you could put on a height control but in the context where in both W1 and W2 zones moorings are permissible without consent and so the nature, size, colour, scale, height, appearance of boats are completely unregulated there would be no warrant in my submission for singling out this one mooring pen and imposing conditions on the boat that could be the colour, appearance, style, height of the boat that could be moored here in that context. The difficulty is that neither party engaged in an analysis of what height limit might be appropriate. If a height limit were to be specified, consideration would be required as to how height was to be measured – from the waterline to the top of the superstructure (which would also need to be defined – it would probably not include fishing rods or aerials, but would it include fixtures such as radar), or to a maximum height defined relative to AHD, to take into account the vertical movement of the vessel over the tide cycle. 1. In addition to the consideration of a particular hypothetical vessel, there would need to be consideration of cumulative visual impacts. The impact if every water recreation structure along the shore had an associated mooring pen would not maintain or enhance the future desired character of the W2 zone when viewed from the waterway. If the existing character of the shoreline shown in the photographs at [118] above is to be maintained the scope for introducing mooring pens will be limited. 2. If every property along the shore were to apply for, and be granted consent for, a mooring pen the cumulative effect would be that when viewed from the waterway the shore would present as if it were a marina, and this would be contrary to the intent and requirements of SSLEP 2015. Conclusions 1. In consequence of the above, I find that, in accordance with s 4.16(4)(b) of the EPA Act, development consent should be granted for the development for which consent was sought, except for the development of the mooring pen. The mooring pen should not be approved because of the inability on the evidence to assess the visual impact of the use of the mooring pen by a moored vessel. 2. More particularly I find that development consent should be granted to development application No DA 19/0678 for: 1. demolition of the existing jetty, ramp and pontoon at 375A Willarong Road, Caringbah South, and 2. construction of a new jetty, ramp and pontoon at a position in front of the existing boat shed as shown in DWG-01 site plan dated February 2019, and DWG-03 elevation plans dated December 2018 and the specifications in DGW-04 specification plans dated December 2018, except for those aspects of the plans and specifications that refer to a mooring pen. 1. It will be necessary for the parties to discuss and hopefully agree conditions of consent to give effect to my findings. If the parties are unable to agree on conditions of consent, they should file a consolidated version of the conditions, providing, where they disagree on a condition, their competing versions of the condition and brief submissions in support of their version of the condition. If this is done it should not be necessary to hold a further hearing on the contested conditions and I will determine the matter on the submitted documents. However, I will grant leave to the parties to seek a further hearing on the contested conditions if they consider that this is necessary. 2. The Court directs that: 1. By 20 October 2020 the parties are to confer and prepare and file agreed (or if not agreed, their competing) conditions of consent to development application DA 19/0678 to give effect to the Court's findings and, with respect to any conditions of consent not agreed, the parties' respective submissions in support of their version of the conditions. 2. By 20 October 2020 the parties are to advise the Court if they seek a further hearing on the conditions of the development consent on which they disagree, in which event the parties should approach the Registrar to list the matter for a further hearing. Addendum made on 30 October 2020 1. In accordance with the directions in paragraph [154] of my judgment delivered on 6 October 2020, the parties have provided me with a copy of Agreed Draft Conditions of Consent. I am satisfied that the development application should be granted, and that the conditions of consent in Annexure A appropriately reflect my findings. Orders 1. The Court orders that: 1. The appeal is upheld. 2. Development Application DA 19/0678 for 1. demolition of the existing jetty, ramp and pontoon at 375A Willarong Road, Caringbah South; and 2. construction of a new jetty, ramp and pontoon at a position in front of the existing boat shed are shown in DWG-01 site plan dated February 2019, DWG-03 elevation plans dated February 2019, and DWG-04 specification plan dated December 2018, subject to the conditions of consent set out in Annexure A. 1. The exhibits are returned except for A, B, 2, 3, 4 and 6. ………………………… P Adam Acting Commissioner of the Court Annexure A (146913, pdf) ********** Amendments 30 October 2020 - See Addendum made on 30 October 2020 for final orders (at [155]-[156]). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 October 2020