Land and Environment Court of New South Wales CITATION : Westport Marina Developments Pty Ltd v Concord Council [2000] NSWLEC 184 APPLICANT Westport Marina Developments Pty Ltd PARTIES : RESPONDENT Concord Council FILE NUMBER(S) : 10122 of 2000 CORAM: Pearlman J KEY ISSUES: Section 56A Appeal :- error of law - owner's consent - whether designated development - failure to give reasons Environmental Planning and Assessment Act 1979 s 78A(8)(a), s 79C, s 111, s 112 LEGISLATION CITED: Environmental Planning and Assessment Regulation 1994 s 46(1)(b), sch 3 Land and Environment Court Act 1979 s 39(2), s 56A Brimbella Pty Ltd v Mosman Municipal Council (1993) 79 LGERA 367; Byron Shire Businesses for the Future Inc v Byron Council and Anor (1994) 84 LGERA 434; Drummoyne Municipal Council v Maritime Services Board and Ors (1991) 72 LGRA 186; CASES CITED: Mifsud v Campbell (1990) 21 NSWLR 725; North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470; Prineas v Forestry Commission of New South Wales and Ors (1983) 49 LGRA 403; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Willoughby Municipal Council v Manchil Pty Ltd (1974) 29 LGRA 303 DATES OF HEARING: 08/08/00 DATE OF JUDGMENT: 08/24/2000 APPLICANT Mr J J Bingham (Solicitor) SOLICITORS Deacons LEGAL REPRESENTATIVES: RESPONDENT Mr W R Davison SC SOLICITORS David M Carson JUDGMENT: IN THE LAND AND 10122 of 2000 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 24 August 2000 WESTPORT MARINA DEVELOPMENTS PTY LTD Applicant v CONCORD COUNCIL Respondent JUDGMENT Introduction 1. This appeal relates to the Westport Marina off Cabarita Point. 2. Concord Council appeals under s 56A of the Land and Environment Court Act 1979 against the decision of Senior Commissioner Jensen, who granted development consent subject to conditions to alterations and additions to the marina. 3. The proposed development was to convert 44 swing moorings into 44 floating berths, increasing the number of berths at the marina from 72 to 116. Initially it was proposed that, of the 44 floating berths, two would accommodate boat lengths of 60 metres, and four would accommodate boat lengths of 45 metres. During the hearing before the Senior Commissioner, an amendment was sought and granted, which proposed instead that four berths would accommodate boat lengths of 35 metres and two berths would accommodate boat lengths of 45 metres. The remainder of the berths were designed to accommodate smaller boats. The amendment was set out in a plan which became exhibit 'V'. 4. Another important amendment was made by leave of the Court at the second callover of the proceedings. That amendment was to confine the development the subject of the development application to land below the high water mark, and to exclude from the development the subject of the development application any land above the high water mark. The grounds of appeal 5. The council seeks an order that the Senior Commissioner's decision be set aside upon the following grounds: (1) Having found "it is quite clear that the development application has to be seen as operating in conjunction with the existing Marina use and its access facilities over land and water subject of ownership by the Water Authority and Council" the learned Senior Commissioner erred in law in finding that "a council consent as owner is unnecessary." (2) The learned Senior Commissioner erred in law in failing to give reasons for his finding that the development was not designated development and that no environmental impact statement was required. 6. I have found, for the reasons which follow, that the second ground of appeal has been made out, and the Senior Commissioner's decision should be set aside. The Commissioner's judgment 7. The Senior Commissioner's decision was given ex tempore. 8. It is apparent that there were three issues of potential environmental impact. The first was concerned with car parking. The Senior Commissioner found that, under a leasehold arrangement, an annual fee was payable for car parking access in Cabarita Park for patrons of the marina, and that there were "substantially more car parking credits paid for than there are berths now or would be in the development application". He found that the proposed development was likely to generate a need for 18 car parking spaces, and stated that a condition of consent "has been developed to explicitly control the way that car parking spaces might be used in the future". He went on to say that "those arrangements should be adequate to deal with any uncertainties as to location of vehicles and the like". 9. A second issue was potentially adverse visual impact. Once the development application had been amended by exhibit 'V' to reduce the size of the berths accommodating larger boats, the Senior Commissioner found that "what is now proposed seems to the Court to be generally acceptable". 10. The third environmental impact issue was increase in traffic movement in Cabarita Road. The Senior Commissioner found that the increment was some 57 traffic movements, and found that to be "a negligible change". 11. There were, however, two other issues of importance in the case. The first was whether owner's consent was required under cl 46(1)(b) of the Environmental Planning and Assessment Regulation 1994 ("the Regulation"). It arose because access to the marina was via Cabarita Road through Cabarita Park. It seems that the Senior Commissioner understood that the road and the park were in the ownership of the council, and that the waterway was in the ownership of the Waterways Authority. The learned Senior Commissioner did not directly articulate this issue, but he referred to it in par 3 and par 14 of his judgment in the following terms: 3 The matter is of considerable interest, not least because of the implications of the matter Lygon v North Sydney Council , which has some similarities to the present situation. It is evident that access to the extended marina is via a development and land approaches which involve both the Council and the Waterways Authority. 14 As adverted to earlier in this decision, despite the apparent capacity to deal with this development application in isolation and as might be indicated by the matter Lygon v North Sydney , it is quite clear that the development application has to be seen as operating in conjunction with the existing marina use and its access facilities over land and water subject to ownership by the Water Authority and the Council. However, as pointed out in an exchange in summing up, the significant distinction between this present matter and Lygon is that that access in Lygon was via a private right of way over the adjoining property whereas in this matter, the access is via public areas which have already been approved by the council and the Waterways Authority. This is considered as potentially enough to make the notion that a council consent as owner is unnecessary. However, if the council were to disagree with that conclusion, then no doubt it has legal remedies available. However, in the same context it is considered relevant to note that the co-owner of the marina site, the Waterways Authority, has given owner's consent already. 12. The Senior Commissioner's reference is to the decision of the High Court in North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470. I shall return to this decision presently. 13. The second issue which arose (and which appears in the statement of issues filed by the council in the proceedings) was whether or not the proposed development was designated development. If it was, then under s 78A(8)(a) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"), an environmental impact statement must accompany the development application. Schedule 3 of the Regulation sets out a list of designated development, one of which is relevantly as follows: Marinas or other related land or water shoreline facilities that: (1) moor, park or store vessels … at fixed or floating berths … (a) … (b) with an intended capacity of 80 or more vessels … 14. Bearing in mind that the capacity of the marina before the proposed development was 72 berths but after the development was carried out would be 116 berths, cl 1 of pt 2 of sch 3 of the Regulation is relevant. It provides that alterations or additions to development are not designated development if, in the opinion of the consent authority, the alterations or additions do not significantly increase the environmental impacts of the total development compared with the existing development. 15. Once again, there is no articulation of this issue in the judgment. The only reference to it appears in par 15 of the judgment, in which the Senior Commissioner said the following: 15 Reverting then to the threshold question, the extent of environmental impact and whether or not it is seen as requiring an environmental impact statement, evidently the Court's conclusion is that this is not the case. Accordingly the related idea that this might be seen as involving designated development, is also rejected by the Court. The first ground of appeal - owner's consent 16. Mr Davison SC, appearing for the council, submitted that, despite the amendment of the development application intended to limit it to land below the high water mark, the Senior Commissioner treated the subject of the development application as comprising both that land and land above the high water mark. That is apparent, so Mr Davidson submitted, from par 14 of the judgment, where the Senior Commissioner stated that the development application could not be considered "in isolation" and went on to say that "it is quite clear that the development application has to be seen as operating in conjunction with the existing marina use and its access facilities over land and water subject to ownership by the Water Authority and the Council". In Mr Davison's submission, this led to two errors of law by the Senior Commissioner. First, he had no power to treat the subject of the development application as the land both above and below the high water mark, and secondly, having treated the subject of the development application in that way, he erred in concluding that the consent of the owner of Cabarita Park (being the land above the high water mark) was not required. 17. In response, the primary submission of Mr Bingham, appearing for the applicant, was that the Senior Commissioner's statement merely reflected his acknowledgment that the issue of access was a factor to take into consideration in the assessment of the development application under s 79C of the EP&A Act, and in so doing, the Senior Commissioner was not deflected from an understanding that the subject of the development application was the land below the high water mark. 18. I cannot accept this submission, because the whole of par 14 is concerned with the question of owner's consent. The Senior Commissioner referred to North Sydney v Ligon in the opening words, and again at the end of the paragraph, and it was clear that he understood that decision to have dealt with the question of owner's consent. It is beyond belief to interpret the quoted words as dealing with another subject matter altogether, namely, the potential environmental impact of the proposed development so far as it concerned access to the marina. I conclude that, for the purpose of dealing with owner's consent, the Senior Commissioner treated the subject of the development application as the land both below and above the high water mark. 19. However, in the alternative, Mr Bingham submitted that, if that were to be my conclusion, then the Senior Commissioner made an error of fact and not of law, since it is not in dispute that the subject of the development application was limited by the amendment I have referred to as being the land below the high water mark. 20. In this respect, I accept Mr Bingham's submission, for the fact is, as both parties agreed, the land the subject of the development application was confined to the land below the high water mark. Accordingly, the Senior Commissioner's statement otherwise is simply wrong in fact. That error of fact, however, did not lead him into any consequential error of law. He granted development consent in respect only of the land below the high water mark, as his orders show, since they refer to the conversion of the 44 swing moorings to 44 fixed berths upon the basis described in exhibit 'V'. Furthermore, the only relevant owner was the Waterways Authority, and its consent had been provided. Appeals under s 56A are confined to errors of law, and the factual error made by the Senior Commissioner does not vitiate his decision. 21. I should add that the Senior Commissioner seems to have misunderstood the decision in North Sydney v Ligon . He endeavoured to distinguish that case from the present case on the basis that the former concerned a right of way over private land, whereas the latter is concerned with access over public land. But that is a distinction of no relevance. The basis for the decision in North Sydney v Ligon turned on the phrase "the land to which that development application relates" in s 77(1)(b) of the EP&A Act (now replaced in substantially identical terms by cl 46(1)(b) of the Regulation). The High Court held (at p 476) that the land to which the development application "relates" must be the land on which the specified development is proposed to be carried out, and it is only in respect of that land that owner's consent is required. Hence, in the present case, the land to which the development application "relates" is only the land below the high water mark, and consequently the only relevant owner's consent is that of the Waterways Authority. Since that is the ultimate conclusion to which the Senior Commissioner came, his misunderstanding of North Sydney v Ligon has no bearing upon his decision and does not vitiate it. 22. For these reasons, the first ground of appeal must fail. The second ground of appeal - the question of designated development 23. On the face of it, as I have outlined in par 14, the proposed development was designated development because the number of floating berths would be increased beyond 80. But it would not be designated development if it met the test set out in cl 1 of pt 2 of sch 3 of the Regulation, which provides as follows: Development involving alterations or additions to development (whether existing or approved) is not designated development if, in the opinion of the consent authority, the alterations or additions do not significantly increase the environmental impacts of the total development (that is the development together with the additions or alterations) compared with the existing or approved development. 24. The task of the Senior Commissioner, then, was to form the opinion (standing in the shoes of the consent authority under s 39(2) of the Land and Environment Court Act 1979), that the proposed development did not significantly increase the environmental impacts of the total development compared with the existing development. 25. It bears repeating what the Senior Commissioner said, presumably in the discharge of this task. It was as follows: Reverting then to the threshold question, the extent of environmental impact and whether or not it is seen as requiring an environmental impact statement, evidently the Court's conclusion is that this is not the case. Accordingly the related idea that this might be seen as involving designated development, is also rejected by the Court. 26. It was certainly a "threshold question" because, if the proposed development was designated development, an environmental impact statement was required. None had been provided, and hence the development application would have failed to comply with the mandatory requirement of s 78A(8)(a) of the EP&A Act. 27. The next words, "the extent of environmental impact and whether or not it is seen as requiring an environmental impact statement" , may be taken, I think, as a re-statement of the issue as the Senior Commissioner saw it, namely, did the extent of the environmental impact require an environmental impact statement? That, of course, is not precisely the question he was required to answer. He was, rather, required to form an opinion as to whether or not the proposed development significantly increased the environmental impacts of the total development compared with the existing development. Nonetheless, bearing in mind that the judgment is written not by a lawyer but by a layman ( Brimbella Pty Ltd v Mosman Municipal Council (1993) 79 LGERA 367 at 368), the words stated by the Senior Commissioner, understood broadly, may be taken to have shown a correct understanding of the question he had to determine. It was, very broadly, a question of considering environmental impacts as a foundation for determining if the proposed development was designated development, and thus required an environmental impact statement. 28. The Senior Commissioner's finding in relation to that question is set out in the next words of the passage I have quoted, that is, "evidently the Court's conclusion is that this is not the case". Here, I think, the Senior Commissioner fell into legal error. His conclusion may be taken, again adopting a broad approach, as implying that he had formed the requisite opinion. But he was required to give his reasons for the formation of that opinion, and a failure to do so is a legal error ( Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247). The duty extends to expressing findings upon an issue which is critical to the case ( Mifsud v Campbell (1990) 21 NSWLR 725) and this issue is certainly of that character. 29. Mr Bingham submitted that the use of the word "evidently" disclosed the Senior Commissioner's reasons, because its effect was to relate back to the findings he had earlier made about the environmental impact of the proposed development. In effect the Senior Commissioner was saying, according to this submission, that it was evident, from his earlier assessment of the environmental impacts, that the extent of environmental impact did not require an environmental impact statement. 30. There is no deficiency, I think, in a commissioner stating that he or she had reached a conclusion, made a finding, or formed a requisite opinion, based upon reasons set out earlier in the judgment, so long as those reasons are in fact so set out. But nowhere in the judgment in this case are there any such reasons. I could find no part of the judgment in which the Senior Commissioner considered whether or not the alterations and additions proposed to the marina significantly increased the environmental impacts of the total development in comparison with the existing development. There were, as I have said, three environmental impact issues. In par 5 and par 7, the Senior Commissioner dealt with car parking, assessing the increase in demand as being 18 spaces, and referring to exhibit 'X' which provided for the marking out of 60 new spaces. He did not refer at all to the car parking demand of the total marina, and hence did not refer to the car parking demand of the total marina in comparison with the existing marina. In par 8, par 9, par 10, par 11 and par 12, the Senior Commissioner dealt with the potentially adverse visual impact of the amended development application, and, by reference to the proposal to replace the swing moorings with "a more compact mooring arrangement involving an extension of the existing marina", he made the finding that "what is now proposed seems to the Court to be generally acceptable". He made no reference to the visual impact of the total marina in comparison with the existing marina. In par 12, the Senior Commissioner dealt with traffic generation, finding that Cabarita Road experienced "some 1400 vehicles per day" and he concluded that the proposed development would result in "an increment of some 57 movements, emanating from the re-arranged marina", a result which he found to be "a negligible change". He did not make it clear whether the 1400 vehicles per day on Cabarita Road were generated by all the facilities in and around Cabarita Park (which seems to be likely) or whether those vehicles were generated by the existing development (which seems unlikely), and accordingly he made no reference to the traffic impact of the total marina in comparison with the existing marina. 31. A finding that there were no significant environmental impacts arising from the alterations and additions to the marina does not logically or inevitably extend to a conclusion that the alterations and additions do not significantly increase the environmental impact of the total development compared to the existing development. In concrete terms, reasons were required to show why the Senior Commissioner formed the opinion that the conversion of 44 swing berths to 44 floating berths did not increase the environmental impacts of the total marina of 116 berths compared to the existing marina of 72 berths. No such reasons were given. 32. I conclude therefore that this ground of appeal has been made out, and the decision of the Senior Commissioner must be set aside. 33. However, in his written and oral submissions, Mr Davison raised two additional matters, although neither was expressed in the notice of motion seeking to have the Senior Commissioner's determination set aside. As I understood his submissions, they were raised as additional errors of law on the part of the Senior Commissioner. I turn, then, to consider them. Should leave to amend have been granted? 34. By leave, as I have already indicated, the applicant amended the development application by reducing the size of the floating berths to allow boats of smaller lengths than originally proposed. In Mr Davison's submission, the effect of the amendment was not simply to mitigate the visual impact of the proposed development, but instead it had the effect of changing the nature of the proposed development from designated to non-designated. I take this to be an alternative ground of alleged legal error on the part of the Senior Commissioner, because the primary ground, as I have set out, was the failure of the Senior Commissioner to give reasons for the formation of the requisite opinion under cl 1 of pt 2 of sch 3 of the Regulation (being the ground of appeal that I have found to have been made out). 35. As I understood it, this alternative ground is based on the proposition (put forward in case the Court should have reached a contrary conclusion on the primary ground) that the reason for the Senior Commissioner's formation of the requisite opinion was the acceptability of the visual impact of the proposed development brought about by that reduction in size of the berths as shown in exhibit 'V'. Therefore, the ultimate consequence of the amendment of the development application was a change from designated to non-designated development. Mr Davison's claim was that, because a change from designated to non-designated development avoids the necessity for an environmental impact statement, a member of the public is deprived of the benefit of inspecting an environmental impact statement, and that is contrary to the scheme and operation of the EP&A Act, which is to permit public participation in the development approval process. Accordingly, in Mr Davison's submission, there was a change in the essential nature of the proposed development and that required a fresh development application. 36. I am not sure that I grasp the thrust of this submission, but I have taken it to be a submission that the Senior Commissioner did not have power to grant leave to make the amendment, for to do so would change the development application into a substantially different development application, which the Court was not empowered to entertain. Willoughby Municipal Council v Manchil Pty Ltd (1974) 29 LGRA 303 is authority for the proposition that the Court has no jurisdiction to hear and determine an appeal if an amendment converts the development application the subject of the appeal into a fresh development application. But Mr Davison could point to no authority for the proposition that an amendment which changes the proposed development from designated to non-designated converts the development application into a fresh development application. I cannot think that it has that effect, at least in the circumstances of this case. I reach that conclusion for two reasons. First, the development the subject of the development application was not substantially changed by the amendment. It remained a development involving a change of 44 swing moorings into 44 floating berths, and the amendment simply reduced the size of six of those berths. In par 10 of his judgment, the Senior Commissioner made a specific finding to that effect. Secondly, from the perspective of the purpose of an environmental impact statement, which is to alert the decision-maker and the public to the inherent problems in carrying out the proposed development ( Prineas v Forestry Commission of New South Wales and Ors (1983) 49 LGRA 403 at 417), the amendment simply converted a potentially adverse visual impact into an acceptable impact, as the Senior Commissioner found, and accordingly, it removed an inherent problem and environmental consequence, thus obviating the requirement to alert the decision-maker and the public to it. 37. Connected with this alternative ground of appeal was Mr Davison's submission that cl 48A and cl 48B of the Regulation require an amendment of a development application to be made upon a formal application. Those clauses relevantly provide as follows: 48A (1) A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined. (2) If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must have annexed to it written particulars sufficient to indicate the nature of the changed development. (3) … 48B (1) This clause applies to all development other than designated or advertised development. (2) Extracts of a development application relating to the erection of a building: (a) sufficient to identify the applicant and the land to which the application relates, and (b) containing a plan of the building that indicates its height and external configuration … are to be made available to interested persons … 38. In Mr Davison's submission, these clauses must be read together, and, so read, they have the effect that amendments may be made only by leave and must be publicly available. I understood his submission to mean that this was another reason why a fresh development application was required. 39. I do not know the precise form of the applicant's application to amend. In a directions hearing prior to the hearing of this s 56A appeal, the council undertook to transcribe any part of the tape of the hearing before the Senior Commissioner that the parties decided would be relevant to the s 56A appeal. I do not know if this was done, but in any event no transcript was tendered by either the council or the applicant nor was a transcript otherwise available to me. Paragraph 10 of the Senior Commissioner's judgment indicates that some form of application to change the development application was made during the course of the hearing before him, and it is implicit from his judgment that he gave leave for that amendment to be made. 40. In any event, I do not think that cl 48A and cl 48B have the effect for which Mr Davison contended. Clause 48A requires "the agreement of the consent authority" , and, as I perceive it, that agreement was given by the leave to amend granted by the Senior Commissioner. Clause 48B relates to an entirely different subject, namely, making available to the public extracts of a development application relating to a building. It says nothing about amendments to a development application, and I can find nothing in either clause which would link them together resulting in a requirement for amendments to be made publicly available. Avoiding obligation by condition of consent 41. The final alternative ground of appeal relied upon by Mr Davison purports to rely upon a principle set out in Drummoyne Municipal Council v Maritime Services Board and Ors (1991) 72 LGRA 186, where, at 192, Stein J (as he then was) stated that it is the activity which is the subject of the application for approval which must be examined, not the activity as it may be modified by the imposition of conditions of consent. Accordingly, in Mr Davison's submission, the question of whether or not the proposed development met the test of a significant increase in environmental impact under cl 1 of pt 2 of sch 3 could not be determined by reference to a condition requiring the development to be carried out in accordance with exhibit 'V'. 42. This ground of appeal seems to me to be misconceived. First, the facts are not as Mr Davison claims them to be. The proposed development was modified, not by a condition of consent designed to mitigate environmental impact, but by a change to the development application made by the applicant during the course of the hearing following upon leave granted by the Court. This was not a case where the applicant was permitted to carry out activity "X" so long as it did so in compliance with a condition requiring "Y". Rather, the development itself was the activity described in exhibit 'V', and reference to exhibit 'V' in the orders and conditions of consent merely ensured that development consent was given to the development the subject of the development application. 43. Secondly, this case is entirely different from Drummoyne Council v Maritime Services Board. There the approach which was held to be impermissible was to make a threshold determination that the activity would not be likely to affect the environment (for the purposes of s 111 and s 112 of the EP&A Act) by reason of a condition of consent to be imposed which might have the effect of mitigating environmental impact. Byron Shire Businesses for the Future Inc v Byron Council and Anor (1994) 84 LGERA 434 was a case of a similar impermissible approach, where the threshold determination was made that a development was not likely to significantly affect the environment of a threatened species (for the purpose of s 77(3)(1) of the unamended EP&A Act) by reason of a condition of consent to be imposed requiring a management plan for that species. In this case, however, the threshold question of whether or not the proposed development was designated development could not be determined simply by carrying out the development in accordance with exhibit 'V'. The threshold question could only be determined by the formation of the requisite opinion about significant increase in environmental impacts. Exhibit 'V' might have provided some basis for forming that opinion, but it could not be the entire basis, which required a consideration of the environmental impacts of the total development compared with the existing development. Conclusion 44. In summary, I have concluded that the council has made out one of its grounds of appeal, namely, that the Senior Commissioner erred in law by failing to give reasons for his conclusion that the proposed alteration to the marina did not significantly increase the environmental impacts of the total development compared to the existing development, and that accordingly the development was not designated development and an environmental impact statement was not required. 45. The proceedings must be remitted to the Senior Commissioner for determination in accordance with this decision. My formal orders therefore are as follows: (1) The appeal is upheld. (2) The determination of the Senior Commissioner made on 1 May 2000 is set aside. (3) The proceedings are remitted to the Senior Commissioner for determination in accordance with this judgment. (4) The proceedings should be listed for callover as soon as convenient so that a date for further hearing may be fixed. (5) The exhibits must remain on the file pending further determination of the proceedings. (6) The question of costs is reserved. 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.