Rose Bay Marina v Waterways Authority [2002] NSWSC 984

New South Wales Supreme Court

CITATION : Rose Bay Marina v Waterways Authority [2002] NSWSC 984 revised - 25/10/2002 CURRENT JURISDICTION: Administrative Law List FILE NUMBER(S) : SC SC 30005 of 2002 HEARING DATE(S) : 08/10/02, 09/10/02 JUDGMENT DATE : 23 October 2002

PARTIES : Rose Bay Marina Pty Limited -v- Waterways Authority JUDGMENT OF : Cripps AJ at 1

COUNSEL : Plaintiff- Dr G Flick SC/ Mr A Osborne Defendant- Mr T S Hale SC/ Mr J White SOLICITORS : Plaintiff- Cutler Hughes & Harris Defendant- Baker & McKenzie CATCHWORDS : Administrative law - application of policy - relevant and irrelevant considerations - irrationality Environmental Planning and Assessment Regulations 2000 Land and Environment Court Act 1978 LEGISLATION CITED : Marine Pollution Act 1987 Maritime Services Act 1935 Navigation Act 1901, Maritime Services Act 1935 Ports Corporation and Waterways Management Act 1995 Minister for Aboriginal Affairs v Peko-Walls End Ltd 162 CLR 24 CASES CITED : Shell Harbour Municipal Council v Rovilo Pty Ltd (1989) 68 LGRA 231. Sydney City Council v Claude Neon (1989) 67 LGRA 181 DECISION : The application is dismissed and the plaintiff is to pay the defendant's costs

- 12 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CIVIL LIST

CRIPPS AJ

23 OCTOBER 2002

30005/02 ROSE BAY MARINA PTY LIMITED v WATERWAYS AUTHORITY

JUDGMENT 1 HIS HONOUR: In its amended application Rose Bay Marina Pty Ltd (the plaintiff) sought: 1. A declaration that the Policy of the Waterways Authority, the defendant, that it will only grant it's consent as land owner to a development application for an existing use to be enlarged, expanded or intensified pursuant to s41(1) of the Environment Planning and Assessment Regulation 2000 (NSW), if the developed application is for development that is a replacement of a large structure with a smaller structure, is invalid. 2. An order in the nature of certiorari that the decision of the defendant, not to consent to the development application made by the plaintiff to the Minister for Urban Affairs and Planning (the Minister) on 10 October 2001, be set aside. 3. An order in the nature of mandamus directing the defendant to exercise, according to law, its discretion to consent or not to consent to the development application made by the plaintiff to the Minister on 10 October 2001. 2 At the hearing it sought a further order, namely, that the defendant be directed to grant its consent to the development application made by the plaintiff to the Minister on the 10 October 2001. 3 The plaintiff is the occupier and the defendant is the owner of land at Rose Bay in Sydney harbour. It is a statutory body corporate constituted pursuant to s35(1) of the Ports Corporation and Waterways Management Act 1995 (PCWM Act). The defendant is a statutory body representing the Crown pursuant to s35(2) of the PCWM Act. 4 The plaintiff conducts a commercial marina at Rose Bay. Its associated activities include the provision of twenty-nine fixed berths and seventy-two swing moorings, together with other sundry facilities. 5 On 10 October 2001, the plaintiff lodged with the Department of Urban Affairs and Planning (DUAP), documents which it described as an application for consent to carry out the development described therein. The proposal was for a reconfiguration of the moorings, involving the conversion of existing fixed berth and swing moorings to one hundred floating pontoon berths. The proposal involved the removal of the existing wooden pier and its replacement with a floating pontoon of two parallel arms, extending from the existing deck of the marina building. 6 Part of the area occupied by the plaintiff is subject to a lease between it and the defendant. The plaintiff's entitlement to occupy the balance of the area derives from a commercial mooring licence no. CL 1011 granted by the defendant. The structures included in the development application referred to above extend beyond the leased areas. 7 On 10 October 2001, the plaintiff requested the defendant to consent to the development application it lodged with the Minister. It accepted that, because the defendant was the owner of the land, the development application could not be considered by the consent authority (in this case the Minister), unless the application had been consented to in writing by the owner of the land (see regulation 49(1) of the Environmental Planning and Assessment Regulations 2000. 8 On the 15 October 2001, the defendant informed the plaintiff it would not consent to its application being considered by the Minister. 9 The subject land is included in Sydney Regional Environmental Plan no 23 (SREP23). The proposal advanced by the plaintiff is relevantly "a large marina" within SREP23 and would be in an area where "large marinas" are prohibited. "Large marinas" in the SREP23, when permissible, can only be consented by the Minister. 10 In 1998, the defendant published a document entitled "Land Owners Consent Manual" which purported to be "Policies for Granting Land Owners Consent" (the Policy). Clause 3.7.18 of the Policy provides" "Subject to approval and the terms of the lease, the MMHC may consider granting land owner's consent to a development application for replacement of large existing non-complying structures with smaller structures where a public benefit can be demonstrated. The existence of non-complying development in an area is not a reason for new non-complying development. Proposals for new non-complying development would not be granted land owner's consent".