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". The reference to the Marine Ministerial Holding Corporation (MMHC) is now to be read as a reference to the defendant. 11 In 1999, Mr Murray, the director of the plaintiff approached the defendant concerning the redevelopment of the site and was told that the defendant encouraged the conversion of swing moorings to floating marina berths. There were many meetings between Mr Murray and the defendant's representatives concerning the plaintiff's proposal. Because what was proposed was relevantly "designated development", the plaintiff prepared and exhibited, at great cost, a lengthy environmental impact statement. It also retained the services of Design Collaborative to assist it in the presentation of an application it proposed to make to the Minister. Representatives of the defendant who discussed these matters with the plaintiff were members of the Land Owner's Consent Committee. 12 In April 2000, Mr McPherson, a member of the Land Owner's Consent Committee, suggested that significant changes should be made and that, until they were made, land owners consent to the lodging of the development application would not be granted. 13 Mr Murray has said in his Affidavit that in June 2000 and after amendments had been forwarded to the defendant, he was told by Mr MacPherson: "Well next time we will see you is when you submit the land owners consent application, and it will be approved". 14 There were further discussions and on 9 November 2000, the plaintiff lodged an application for landowner's consent. At that time Mr McPherson said: "Because of the extensive consultation and all of the changes that you have done, and what looks to be a fully encompassing submission, this will be approved by Christmas". 15 The consent was not forthcoming by Christmas. There were further meetings in the early part of 2001. On 12 January 2001, Mr Murray said that he agreed to make certain alterations on an assurance from Mr Robinson: "If you make these changes I will approve it". 16 On 17 May 2001, the defendant wrote to the plaintiff mentioning that it became aware of legal advice from DUAP, which suggested that what was proposed was prohibited under SREP 23, and for that reason it would not consent to lodgement of the development application. 17 The plaintiff received an opinion from Senior Counsel to the effect that it enjoyed existing use rights and that the proposal advanced by it was capable of being consented to by the Minister and carried out if consented to by the defendant. As is made apparent by a letter written by the defendant to the plaintiff in September 2001, and which will be referred to later, the defendant did not accept the plaintiff's contention concerning its existing use rights. (As events turned out the defendant was wrong. On 26 July 2002, Pearlman J in the Land and Environment Court determined that the land did enjoy existing use rights and that the development application was one, which could be consented to and if consented to, carried out. However, she also determined that because the plaintiff did not have the consent of the defendant, development consent could not be granted). 18 On 19 September 2001, the defendant sent the plaintiff a letter stating; "You will be aware that the authority has adopted a Land Owner's Consent Manual dated 19 July 1998, as being the primary document which sets out the various criteria used to assess whether or not a development proposal for the Authority's submerged or reclaimed land will be granted land owner's consent. In the interest of procedural fairness, the Authority is obliged to consider any comments RBM (the plaintiff) might have about how the manual relates to the Authority's determination of RBM's application. To date the majority of correspondence has related to the issue of whether the proposal enjoys existing use rights and this has been the focus of the advice received from Mr Craig QC. The authority has not received any comment form RBM relating to the manual. In order for the authority to finalise it's determination of RBM's application for land owner's consent as soon as possible, the Authority hereby invites RBM's comments in relation to the application of the Manual. While the whole Manual is relevant to the Authority's determination of the matter, RBM might wish to comment on CL 3.7.18 in particular. A copy of the Manual is enclosed. Once RBM has provided any comments it has about the application of the LOC Manual the Authority will be in a position to finalise it determination of RBM's application for owners consent and we will do so expeditiously". 19 The claim of the defendant that it had recourse to cl 3.7.18 of the Policy in the manner referred to in the letter, provoked an angry response from the plaintiff. It said that until that time there had never been any reference to the Owner's Consent Manual. However it commented on the matters raised in the letter and its comments included an assertion that other marina applicants had been given land owner's consent for the conversion of commercial moorings to fixed berths, and that because all the "environmental" matters had been attended to in the course of the discussions between the parties, the defendant ought to grant its consent to the application to be considered by the Minister 20 On 27 September 2001, the defendant, whilst continuing to deny the plaintiff was entitled to exercise any existing use rights said: "However it is the Authorities view that if Mr Craig is correct cl 3.7.18 of the LOC Manual applies to your application.." and later: "On the basis that the proposed development enjoys existing use rights the authority has concluded that the development proposal for Rose Bay Marina is non-complying in terms of paragraph 3.7.18 of the LOC Manual. This assessment criteria provides for the replacement of : "large existing non-complying structures with smaller structures where a public benefit can be demonstrated". The Application for land owner's consent is for development of a larger structure. The Authority has therefore decided not to consent to the lodgement of the draft development application submitted". 21 On 15 October 2001, the defendant wrote to the plaintiff. It referred to its letter of 27 September 200, and refused its consent as land owner. 22 The plaintiff has challenged the decision of the defendant made on 15 October 2001, alleging that the decision was tainted by an inflexible application of the Policy, which, it submitted, was in any event, unlawfully made. It was submitted that, on its face, the Policy was unlawful because it did not, in terms, direct attention to the fact that it would be applied "normally" unless there were "exceptional circumstances" as often appears in similar policies. It was also claimed that the Policy was unlawful because it did not, on its face, balance relevant considerations, which, it was submitted, had to be taken into account by the defendant when exercising its discretion as to whether it would grant its consent to the development application. The relevant considerations that should have been in the Policy were obligations and functions the Waterways Authority had under certain "marine legislation" as those words are defined in s3 of the PCWM Act. They included functions under the Navigation Act 1901, Maritime Services Act 1935 and the Marine Pollution Act 1987, which are required to be discharged by the defendant. 23 It was further submitted that the decision of the defendant was tainted, because it took into account irrelevant considerations. It was alleged that it took into account, erroneously, that the proposed development could not be carried out because the development was relevantly a non-complying development and the land did not enjoy existing use rights. 24 It was submitted the defendant failed to have regard to relevant considerations in coming to its decision in that it failed to take account of matters of relevance arising under the "marine legislation" referred to above. 25 Finally it was submitted that the decision should be set aside on the ground of irrationality - that the decision was one that was not open to the defendant, acting reasonably, to have reached. That submission derived from the terms of 3.7.18 of the Policy. It was said, it was not open to the defendant to conclude that what was proposed was larger than that which it was to replace. 26 As I have said, the defendant is the owner of the land. Division 2 of Part 4 of the PWCM Act deals with the functions of the defendant. Section 41(3)(d) authorises the defendant to: "Do all such things that are supplemental or incidental to the exercise of its functions". 27 In my opinion, the granting or with holding of an application to it for consent to make a development application to the Minister is a matter, which is incidental to its ownership of land. 28 Reference has been made to two decisions in the Court of Appeal arising from refusals by Councils to grant consent to applications made to them, as to whether development consent should be granted: see; Sydney City Council v Claude Neon (1989) 67 LGRA 181 and Shell Harbour Municipal Council v Rovilo Pty Ltd (1989) 68 LGRA 231. 29 In Claude Neon Hope JA referred to the circumstance that local council cannot do with roads what private owners can do with their land. He noted that they could only do those things that were authorised by or under relevant statutes. He noted that relevant functions included the controlling of structures of the kind extending from any land over the alignment of the road. The cases referred to above, concluded that the terms of s39(2) of the Land and Environment Court Act 1978, invested the Land and Environment Court with jurisdiction to exercise the power of a council, to consent as land owner, to the lodging a development application because that was a power which the council had. But these cases, in my opinion, are of no relevance to the issue before the Court. 30 It was pointed out in Minister for Aboriginal Affairs v Peko-Walls End Ltd 162 CLR 24 at 40 that: " where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as they may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard". 31 Moreover, and as Peko-Walls End makes clear, the ground of failure to take into account a relevant consideration can only be made out if the decision-maker is bound to take that matter into account. In the present case, the question then is whether on an application for the consent to make a development application the defendant was bound in law to have regard to matters of navigation safety, marine pollution etc which, it is clear, were not considered in the present case. In my opinion, although matters arising under "marine legislation" may be matters that the defendant is entitled to take into consideration when determining an application to it for consent to lodge a development application it is not bound to do so. In the present case and leaving aside the argument of the alleged misapplication of the Policy, had there been no policy, it would have been open, in my opinion, to the Authority to refuse to grant its consent to the application forwarded by the plaintiff because it did not wish an application to be made for a development being a large marina in the Rose Bay area of Sydney Harbour that would, if implemented, be larger than that which it was to replace. 32 In arriving to this conclusion, I have not overlooked the circumstances for the granting of consent to a development application, does not of itself authorise the carrying out of the development. If the development is carried out it merely operates to make lawful, that which in the absence of consent would be unlawful. 33 Dr Flick SC has submitted that the Policy is unlawful because it concentrates on environmental matters and ignores what he describes as navigational matters. He further submitted that the so called Policy is really nothing more than an extended list of prohibitions. In my opinion, a Policy such as the one under consideration need not set out every consideration that it might or might not take into account, when an application for consent is made to it. 34 Moreover, in my opinion, a policy is not necessarily bad because it does not contain words such as those suggested by plaintiff's counsel in the present case that it would be "normally" applied unless there were "exceptional circumstances". Although it is often said that a policy is unlawful because it authorises the taking into account of irrelevant circumstances. When that happens it appears to be assumed that people making decisions would consider themselves bound by the Policy. For example, a policy, encouraging a decision-maker to take into account a matter it was not entitled to take into account or to ignore a matter it was bound to take into account, might be described as unlawful but that is because it would be assumed that the decision-maker would in fact take an erroneous matter into account or ignore a matter it should have taken into account. Hence if 3.7.18, were relied on, and no more were known otherwise than that the application was refused because of 3.7.18, a conclusion might be reached that the decision-maker regarded himself bound by an inflexible Policy. But, in the present case, the defendant made clear in its letter to the plaintiff that it was prepared to entertain submissions as to why it should not apply cl 3.7.18, and it received a response from the plaintiff. 35 Dr Flick SC asked me to have regard to the circumstance that the defendant never regarded cl 3.7.18 as a ground of objection until after the question of existing use rights was raised, presumably, by DUAP. He asked me to have regard to the circumstance that no one was called by the defendant to explain why cl 3.7.18 was not raised until September 2001. From this he asked me to infer that the Policy was inflexibly applied. I do not find, if indeed the argument was advanced, that the reliance on the Policy was a sham. It was that the Policy was inflexibly applied. As I have said, the plaintiff was given the opportunity, which it took, to argue against it being followed. Accordingly I do not accept the submission. 36 Contrary to the submission of the plaintiff, I do not regard the circumstance that the defendant had allowed other applications for marinas to be converted from swing berths to fixed berths to be considered, as evidence that on this occasion the plaintiff's application was refused because of rigid adherence to policy. If anything these other applications show that the defendant was aware that cl 3.7.18 did not inflexibly conclude applications against applicants. 37 Moreover it is not correct, in my opinion, to that as at September 2001, all aspects of the development had been satisfactorily accepted by the defendant. The location of the marina and its proximity to other marinas, together with discussions undertaken between the plaintiff and the defendant, both demonstrate, that what was proposed was, on any view of the matter environmentally significant. It is true that the plaintiff had been promised in the past that if matters raised by the defendant were attended to the consent of the owner would be forthcoming. However as at 15 October 2001 there were still matters outstanding. 38 It was also submitted that I should infer that the reason for the decision of the defendant on 15 October 2001, was that at that time it had become aware that the Government, through the Premier, had stated that it was opposed of the proliferation of large marinas in Sydney Harbour. The evidence in this regard is somewhat scanty but it is far from clear why, in exercising its discretion the defendant was bound to ignore the stated policy of the Government, concerning marinas – assuming it was taken into account. 39 There may be some force in the submission that bearing in mind development consent does not authorise the carrying out of development but merely makes lawful, that which in the absent of consent would be unlawful the matter should be assessed by DUAP, so that at the end of the day, and if consent were granted, the defendant would have a full (or at least a better) understanding of the proposal and its environmental consequences than at the present time and therefore would be in a better position to determine whether it would allow the development to proceed. But that is not a consideration that I am entitled to take into account, as a reason for setting aside the decision of the defendant. To do that would be for this Court to substitute its decision for that of the decision-maker. 40 Finally, it was submitted that I should consider that the refusal of the defendant to consent to the application being considered by the Minister was so unreasonable that no decision-maker understanding its function could have reached it. This submission derives from the circumstance that it is said it was not open to the defendant to conclude that what was proposed was larger than that which it was to replace. In my opinion, it was open to the defendant to conclude that the "structures" proposed were larger than the "structures" they were to replace, notwithstanding that the marina overall would occupy a lesser area of water. 41 It follows from the above that I am of the opinion that it has not been demonstrated that the decision-making process, undertaken by the defendant, was tainted and accordingly I decline to set it aside. I should indicate, however, even if Dr Flick SC had established that the decision-making process was flawed I would not have directed the defendant to grant its consent to the making of the application. I accept there may be occasions when an order of the type suggested by Dr Flick SC is justified as where, for example, only one decision is open and the decision-maker can not be trusted. Had I acceded to Dr Flick SC's submission, the order would have been for the decision to be set aside and the matter remitted to the defendant for the application to be determined according to law. 42 The application is dismissed and the plaintiff is to pay the defendants costs. oOo Last Modified: 10/28/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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