Rose Bay Afloat Pty Ltd v Woollahra Council [2003] NSWLEC 191

> Land and Environment Court of New South Wales

CITATION : Rose Bay Afloat Pty Ltd v Woollahra Council [2003] NSWLEC 191 APPLICANT: Rose Bay Afloat Pty Limited PARTIES : RESPONDENT: Woollahra Council FILE NUMBER(S) : 10957 of 2001 CORAM: Bignold J KEY ISSUES: Development Application :- Restaurant on waters of Rose Bay - visual impact on scenic and public setting LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s79C, s97 Land and Environment Court Act 1979, s37(1) CASES CITED: Rose Bay Afloat Pty Ltd v Woollahra Council & Anor [2002] NSWLEC 208 DATES OF HEARING: 19-21/05/2003 DATE OF JUDGMENT: 08/28/2003

APPLICANT: Mr J Robson (Barrister) SOLICITOR: Blake Dawson Waldron LEGAL REPRESENTATIVES: RESPONDENT: Mr P Clay (Barrister) SOLICITOR: Michell Sillar

JUDGMENT:

IN THE LAND AND 10957 of 2001 ENVIRONMENT COURT Bignold J OF NEW SOUTH WALES 28 AUGUST 2003

ROSE BAY AFLOAT PTY LIMITED Applicant v WOOLLAHRA COUNCIL Respondent

JUDGMENT 1 This is an appeal pursuant to s97 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) against the refusal by Woollahra Council (the Council) of a development application to construct a fixed restaurant at Rose Bay. The proposal would replace the existing floating restaurant, known as "Rose Bay Afloat" which has been moored at Rose Bay off Lyne Park for approximately the past 30 years and is subject to a lease from the Waterways Authority that expires in 2005. 2 The manner in which the parties have presented their respective cases reflects their common view that the evaluation of the development proposal required by s79C of the EP&A Act involves quintessentially a subjective and impressionistic judgment on the part of the Court of the visual impact of the proposal in its significant public setting, but nonetheless informed by the express objectives and criteria contained in the complex of relevant planning instruments later detailed. 3 To this end the Court was considerably assisted by the expert opinions contained in detailed written appraisals of the several eminent experts, supplemented by joint expert statements reflecting the outcomes of conferencing by the experts. The parties mutually agreed that cross-examination of the experts was unlikely to clarify or change the positions as stated in the experts reports (including the joint report statements). Accordingly cross-examination of many of the experts was mutually foregone and the cross-examination of Mr Johnson (called by the Council) and Mr Tzannes and Mr Harrison (both called by the Applicant) was very limited. 4 However the parties recognised that a view of the development site and its environs (both the waters of Rose Bay and Lyne Park and the promenade skirting the foreshore of the bay) would be of considerable assistance to the Court in its evaluative task. 5 To that end a very comprehensive view was undertaken in the presence of the parties and many of their experts. The view included the relevant waters of Rose Bay. Again the parties mutually co-operated to optimise the view process by the attendance of their experts who were permitted to illustrate their various opinions on the view and were available to assist the Court in its understanding of the case with the benefit of the view. 6 Finally I should note that I have had the benefit of the assistance provided by Commissioner Tuor pursuant to s37(1) of the Land and Environment Court Act 1979. 7 In the result my evaluation of the development proposal in accordance with s79C of the EP&A Act has led me to conclude that the development proposed should be refused principally because it adversely impacts on, and hence unreasonably detracts from, the outstanding scenic, visual and public significance of the waters of Rose Bay and the adjacent Lyne Park and the promenade skirting the foreshores when experienced and appreciated from both water and land (including New South Head Road). My detailed reasons for so concluding and my detailed consideration of the competing opinions of the experts are set forth in what follows. 8 In reaching that ultimate conclusion I have proceeded on the parties' assumption that the proposal, if approved, would replace the existing floating restaurant. This desirable feature of the proposal, I think was uniformly acclaimed by both the expert and lay witnesses. The question whether the existing floating restaurant will continue to exist into the future, in the event that the present development proposal fails to obtain development consent is more problematical. All that the evidence reveals is that the current lease in respect of the floating restaurant will expire in 2005. What happens after that date is not revealed in the evidence. It remains possible of course that the existing lease will be renewed. However that may be, I do not think that that possibility impacts significantly on the required evaluation of the present development proposal. The Applicant, rightly in my judgment, advances the present proposal on its own merits and that is how I have evaluated it, without the benefit of any trade off, wrought by the elimination from Rose Bay of the existing floating restaurant.