Land and Environment Court New South Wales Medium Neutral Citation: De Angelis v Transport for NSW [2019] NSWLEC 1632 Hearing dates: 23-24 April 2019; 6 June 2019 Date of orders: 18 December 2019 Decision date: 18 December 2019 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders: (1) The appeal is dismissed. (2) The exhibits are returned. Catchwords: MODIFICATION APPLICATION – proposed increase to vessel length – zoned W1 Maritime Waters and W6 Scenic Waters: Active Use under the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 – interpretation of "mooring pen" – impacts of dredging Legislation Cited: Environmental Planning and Assessment Act 1979 Fisheries Management Act 1994 Hunters Hill Local Environmental Plan 2012 State Environmental Planning Policy (Sydney Harbour Catchment) Amendment 2018 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Cases Cited: Addenbrooke v Woollahra Municipal Council (No 2) [2009] NSWLEC 134 Rose Bay Marina Pty Limited v Woollahra Municipal Council [2013] NSWLEC 1046 Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333 Texts Cited: Sydney Harbour Foreshores and Waterways Area Development Control Plan Category: Principal judgment Parties: Alcide De Angelis (First Applicant) Robyn De Angelis (Second Applicant) Transport for NSW (Respondent) Representation: Counsel: A Galasso SC (Applicants) D Miller SC with A Hemmings (Respondent) Solicitors: Beatty Legal (Applicants) Norton Rose Fulbright (Respondent) File Number(s): 2018/270030 Publication restriction: No Judgment The development consent 1. On 17 February 2017, Alcide and Robyn De Angelis (the applicants) obtained development consent (DA 17/14) from Roads and Maritime Services (RMS) (now Transport for NSW) for demolition of the existing private landing facility and mooring pen which serves their dwelling at 1 Sea Street, Hunters Hill, and the construction of a new private landing facility, mooring pen and dredging subject to conditions including the following: "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." The site and environs 1. The site relates to wetland and is legally described as part Vol 5018 Folio 1 and known as part of the bed of the Lane Cove River adjoining the applicants' property at 1 Sea Street, Hunters Hill. It is located within the zone W6 – Scenic Waters: Active Use and zone W1 – Maritime Waters (W1 zone) under the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP). 2. The site is located within an established residential neighbourhood adjacent to the heritage conservation area – Hunters Hill Conservation Area No 1 – The Peninsula – under the Hunters Hill Local Environmental Plan 2012 (HHLEP). A number of heritage items listed under Schedule 5 to the HHLEP are located nearby. 3. Along the foreshore, in the vicinity of the site, are a number of water-based structures, similar in design to the existing structures on the applicants' property. Vessels ranging in size from 13m to 16.8m are moored in the immediate vicinity. 4. The approved vessel is sited in the easternmost mooring pen along Sea Street. Further east of the mooring pen is approximately 80m of bushland and no waterfront residences. The aerial photo below taken from Nearmap dated 21 August 2018 shows the site and the mooring pens along Sea Street. The modification application 1. On 17 January 2018, the applicants made application to Transport for NSW under s 4.55(2) of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify the conditions of the development consent to increase the size of the vessel length from 18m to 22.5m plus additional dredging of 80-100m3. 2. The application was publicly notified between 24 January 2018 and 7 February 2018 and objections were received from the two adjoining properties. 1. Christine and Michael Kirby of 3 Sea Street, Hunters Hill; and 2. Malcolm and Beverley Anderson of 5 Sea Street, Hunters Hill (subsequently withdrawn). 1. The owners at 3 Sea Street have a jetty, ramp pontoon and 4 pile mooring pen adjoining the applicants' facilities. They moor in that mooring pen a motor cruiser with an overall length of 16.45m. Their written submission to Transport for NSW, dated 2 February 2018, objects to the length of the proposed vessel in breach of the Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005 (DCP) and the extent of dredging which they believe will undermine the mooring piles securing their vessel. They are also concerned about the visual impact of the height of the larger vessel when viewed from their home and the public waterway. 2. The application is integrated development under s 4.47 of the EPA Act because it involves dredging of the Lane Cove River. It was referred to the NSW Department of Primary Industries – Fisheries (Fisheries) for concurrence, and although General Terms of Approval (GTAs) were provided, Fisheries does not support any increase in the size of vessel or dredging at this site. It is concerned about the overall accumulative scale of the dredging required for the berthing of the 22.5m vessel over a minimum substrate depth of RL -2.23 at this site (Exhibit 2, Tab 7.3, p 419; Tab 7.7, p 433 and letter dated 29 May 2019 (Exhibit 16)). 3. On 27 June 2018, after assessment Transport for NSW refused consent to the amended application (Exhibit 2, Tab 8.1, p 439 – Assessment report dated 27 June 2018). The grounds of refusal can be grouped under the following headings: 1. Permissibility of the proposed development 2. Inconsistency with the SREP and the DCP 3. Overdevelopment of the site and unacceptable impacts 4. Inconsistency with the public interest 1. On 19 January 2018, the applicants lodged this appeal to the Court under s 8.9 of the EPA Act. 2. The hearing commenced with a view of the site from the water by boat and included an inspection of other moorings/vessels along parts of the Sydney Harbour foreshores and the waterways proximate to the site. 3. After the hearing commenced, and following the receipt of the hydrological survey undertaken by the applicants on 18 February 2019, the application was amended to incorporate an Amended Layout Plan and Elevation prepared by Waterlink Pty Ltd, the details of which are explained in the Supplementary Statement of Evidence dated 14 March 2019 prepared by Mr Denovan, the applicants' marine consultant (Exhibit C). The amended application 1. The modifications now sought are to permit: 1. a vessel with a length overall (LOA) of 22.5m; and 2. dredging of approximately 80-100m3 – (on top of the 200m³ dredging under the existing consent). 1. Despite the need for additional dredging, the applicants maintain the only modification sought by this application is approval to use their existing "mooring pen" to accommodate a longer (22.5m) vessel. In that regard, the evidence is that the proposed vessel is approximately 4.5m LOA longer than DA17/14 permits to be permanently moored in the mooring pen. In all other respects, the development involves no physical change to the approved jetty, ramp pontoon and mooring piles as constructed in the waterway area adjacent to the site, and located outside the W1 zone. 2. Relevantly, the parties agree that the W1 zone is the area of water located seaward of the 30m line running parallel to the existing sea wall at the boundary of the site adjoining 1 Sea Street where the development of a mooring is prohibited under cl 18 of the SREP. 3. Clause 18 provides: 18 Development control in the waterways (1) Except as otherwise provided by this plan, in relation to land within a zone to which a column of the Table to this clause applies: (a) the development (if any) that may be carried out without development consent is indicated by the letter "P", and (b) the development (if any) that may be carried out only with development consent is indicated by the letter "Y", and (c) the development (if any) that is prohibited is indicated by the letter "N". (2) Despite subclause (1), development not referred to in the Table to this clause may be carried out with development consent, but only if the consent authority is satisfied that the development: (a) is not inconsistent with the aims of this plan or the objectives of the zone in which it is proposed to be carried out, and (b) is not inconsistent with any other environmental planning instrument that applies to the land, and (c) will not otherwise have any adverse impacts. 1. To the extent that the matter of dredging is referred to in this case, and may extend into the zone W1 waterway, the applicants submit that dredging and maintenance dredging are separate defined terms within the SREP. Whilst conventionally as a matter of characterisation, one might encapsulate the dredging as part of the mooring pen as a use for the purpose of mooring pen, the fact that there is a separate and specific characterisation of both dredging and maintenance dredging under the SREP, it is submitted, is indicative of the legislative scheme which contemplates those matters, as a matter of characterisation, independently of the purpose of the use. Therefore, both dredging and maintenance dredging are not prohibited, but rather are permissible with consent and permissible without consent respectively under cl18. 2. In any event, if there is any issue of power of this Court to grant the s 4.55 modification the applicants submit, then it needs to be remembered that the current consent contemplates dredging within the W1 zone. Therefore, if dredging is to be regarded as a use for the purpose of the mooring pen to establish a prohibition within this appeal, then the circumstance of a continuation of the approved use as contemplated in Division 4.11 of the EPA Act is engaged. That said, notwithstanding as a function of the jurisdiction of this Court, that there can be no prohibition in the circumstances of this appeal under s 4.55 of the EPA Act because as a matter of power, s 4.55 is facultative and operates as an exception to the regime which establishes prohibition as derived from an environmental planning instrument: Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333 at [13], [17] and [21]. 3. The meaning of the term "mooring pen" is at issue in this appeal. The applicants maintain that a "mooring pen", as referred to in this case, is the notional leased area in which a specified boat is to be berthed. And, if there is a concern that the proposed longer vessel may encroach into the W1 zone, to avoid the problem, they offer to truncate the length of the mooring pen in accordance with the evidence of Mr Player, Transport for NSW's consultant planner. 4. Transport for NSW contends the term "mooring pen" refers to the whole of the space necessary for the berthing of the vessel. In support of its position, it relies on the term "mooring pen" as defined in the SREP, which provides: An arrangement of freestanding piles or other restraining devices within which a vessel is permanently berthed 1. Focusing on the word "within", Transport for NSW contend that the "mooring pen" is not just the area on and above the water line but necessarily includes an area of sufficient depth to accommodate the draft of the vessel to be berthed. Therefore, it encompasses the subsurface envelope needed (including the dredged areas) in order for the vessel to be housed, and of course recognising that a vessel is not confined to the exact same spot within the mooring piles nor takes exactly the same path into and out of the corridor delineated by those piles. Contentions 1. The Amended Statement of Facts and Contentions (ASOFC) filed by Transport for NSW on 21 February 2019 raised 12 contentions. 2. However, contention 1B(d), in relation to sea grass was not pressed after the marine ecologists agreed that there is no sea grass at or near the site (Exhibit 7, p 1). Contention 9 also disappeared when the same experts agreed that the proposed Acid Sulphate Soils Management Plan (ASSMO) adequately minimised the adverse effects to the estuarine environment of the site (Exhibit 7, p 2). 3. Transport for NSW's primary contention is permissibility – based on an argument that the "mooring pen" will extend into the W1 zone which is prohibited development under cl 18 of the SREP. 4. The other contentions relate to the suitability of the site for the permanent berthing of a vessel with a LOA of 22.5m and increased dredging – with Transport for NSW contending that the proposed vessel is simply too big for the shallow site. It is also contended that the larger vessel will generate unnecessary visual impacts to and from the public waterway and on the scenic values of the locality. Transport for NSW also contends that the development is at odds with the controls in the SREP, and as such, will lead to unnecessary and undesirable dredge and propeller scour and result in unacceptable ecological impacts; particularly, those identified in: cll 13(a) and 13(c) of the SREP. Ultimately, Transport for NSW maintains that vessels of this size should be moored in appropriate deep water sites in commercial marinas and that the amendments to cl 27B of the SREP in 2005 reinforce this. 5. The applicants dismiss the prohibition argument advanced by Transport for NSW for the reasons outlined above at [18]-[20], and in the absence of a contention that the development as modified would not be substantially the same development as the development for which consent was originally granted pursuant to s 4.55(2)(a) – submits that the central question for the Court in this appeal is "whether there is any impact for any breach of the 18m limit and, if so whether it is unacceptable" (Applicant's written submissions (AWS) at par 25). Decision 1. For the reasons that follow, I have decided on the available evidence that impacts generated by the proposed use of the mooring pen by the larger vessel are unacceptable and therefore the application is refused. Jurisdiction 1. The fact that Fisheries is not supportive of the application constitutes a barrier to the grant of approval by Transport for NSW. However, on appeal to this Court, the absence of Fisheries' support is no barrier to the Court's exercise of its powers to approve the modification application: s 4.47(4) of the EPA Act and s 39(6) of the Land and Environment Court Act 1979 (the Court Act). 2. As the applicants emphasise, this appeal concerns a modification application under s 4.55 of the EPA Act, not a development application. 3. Before anything else, the exercise of the power in s 4.55(2)(a) requires the Court to be satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted. 4. The Council does not contend that the development as modified is not substantially the development for which consent has been granted. I am also satisfied of that fact because I accept that the jurisdictional threshold or necessary connection between the modification and the consent is demonstrated by the fact that the proposed modification application does not involve any physical change to the mooring piles, jetty, ramp or pontoon approved in DA 17/14 (Transport for NSW at par 14). Nor is there any evidence that qualitatively the proposed modified development will not be substantially the same as that for which consent is granted. 5. The applicants originally sought approval under DA 17/14 to demolish an existing landing facility and build a jetty and mooring pen facility to moor a 21.39m vessel with dredging of 260m3 to a depth of RL -2.07(Exhibit 2, Tab 2.4, p 262). In December 2016, the applicants amended their DA and lodged Issue E plans dated December 2016 (Exhibit 2, Tab 2.7, pp 294-300) proposing a vessel to 18m LOA, which in turn allowed the dredging to be reduced by approximately 20% to 200m3 as the draft of the 18m LOA vessel would be 120mm less than that of the original proposal. 6. Transport for NSW granted consent to DA 17/14 on a conditional basis for mooring pen facilities to accommodate a vessel of 18m length overall, beam of 5.1m, draft of 3.5m and laden displacement of 28.5 tonnes. Condition 6 of the consent also allowed for vessels which vary from these specifications to be permanently berthed at the mooring pen but only to the extent that: 1. There is no increase in the LOA of the vessel; 2. The draft of any vessel is able to maintain a clearance of 0.5m or more from the bed of Harbour at zero Fort Denison Tide Gauge; 3. The facility and its use continue to satisfy all other conditions of this consent (including compliance with all relevant Australian Codes, Rules and Standards). 1. Read as a whole, the development consent authorised a volume of dredging of 200m3 to a depth of RL -1.95 for the berthing of an 18m LOA vessel in accordance with the terms of the conditions of consent. Noting, relevantly that the development consent does not prescribe a regime for maintenance dredging and the evidence is that implicitly propeller scour was to affect the maintenance regime for the dredged part of the seabed. 2. The application is to modify that consent to allow for the berthing of a 22.5m vessel and dredging of an additional 80-100m3 to a depth of RL -2.13; resulting in an overall volume of 280m3-300m3 within the existing mooring pen facilities without any physical change to the structure. 3. There is no evidence before me that would serve to undermine the position of Transport for NSW, therefore I find after undertaking the comparative exercise invited by s 4.55(2)(a), that both quantitatively and qualitatively the modification answers the precondition to power in s 4.55(2)(a) positively. Contention 1A - permissibility under the SREP 1. The next jurisdictional hurdle raised by Transport for NSW concerns the extent of mooring pen into the W1 zone – contention 1A. 2. I have read and considered Transport for NSW's comprehensive submissions in respect of contention 1A and I do not agree with them for the reasons outlined by the applicants as summarised above. 3. I accept as the applicants submit that there is no proposal to change the approved mooring pen by this application – rather, the applicants seek approval to modify the development consent to use the existing mooring pen being "…the existing freestanding piles within which a vessel is permanently berthed" to accommodate a larger vessel which necessitates further dredging including an area within the W1 zone. 4. The terms "mooring pen" and "dredging" and "maintenance dredging" are separately defined activities under the SREP. 5. Clause 18 specifically addresses each of these activities. Put simply, the provision permits with consent the activities of "dredging" and "maintenance dredging" in the W1 zone but prohibits the development of a "mooring pen" in the same zone. 6. Logically, it must be the case that the activity of "dredging" which is a separate activity cannot be part of the "mooring pen" as defined. This interpretation is supported by the correspondence from Fisheries to Transport for NSW which refers to approved dredging to berth the vessel and approval for maintenance dredging subject to a permit under s 201 of the Fisheries Management Act 1994 (Fisheries Act) or, if it is authorised by another government agency under Part 5 of the EPA Act at the site. These are separate activities permitted to facilitate the berthing of the vessel in the "mooring pen" development. 7. The text in cl 18, read in context and with the purpose of the clause in mind, prohibits development of a "mooring pen" in the W1 zone. The term "mooring pen" is clearly and unambiguously defined in the Dictionary to the SREP and makes no mention of dredging. This is unsurprising because the term "dredging" is separately defined in the Dictionary as follows: Dredging means the removal of material from the sea or harbour bed or bed of a river , being an activity for the purpose of constructing a new or deeper navigational area or channel or reopening a discontinued navigational area or channel but does not include intertidal dredging or maintenance dredging. 1. With those definitions in mind I do not accept that the requirement for dredging of the sea substrata by an extra 80-100m3 – and 2m3 into the W1 zone extends the development of a "mooring pen" into the W1 zone as Transport for NSW contends. The proposed dredging can be accommodated with consent because cl 18 does not prohibit dredging in the zone W1 waterway, only the development of a "mooring pen". The proposed dredging in this application fits within the definition of dredging in the SREP. To my thinking, the dredging of the shallow substrate extending into the W1 zone is ancillary to achieving a permanent berthing within the mooring pen and this interpretation accords with the separate definitions of "mooring pen" and "dredging" as defined in the Dictionary to the SREP. Accordingly, the application for use of the existing mooring pen and ancillary dredging for the proposed vessel into the W1 zone is not prohibited by the SREP. 2. Based on the above, I accept that the term "mooring pen" as used in the SREP refers to the area within which the vessel is permanently berthed as marked out by the freestanding piles. In this case, the mooring pen proposed to be used for the larger vessel is outside the W1 zone. The fact that a vessel may extend beyond the freestanding piles (i.e. depending on how it is secured to the piles) does not mean that the mooring pen extends beyond the piles. The applicants have consent to permanently berth an 18m vessel in an existing mooring pen which is comprised of the surface of the water and ancillary to that is the need to dredge the subsurface a certain depth to accommodate the 18m vessel and comply with the conditions of consent. 3. The applicants' interpretation of the terms "mooring pen" and "dredging" does not frustrate, as Transport for NSW submits, the objectives of the W1 zone in cl 17 of the SREP. There is no satisfactory evidence before me to suggest that the dredging proposed precludes the equitable use of the waterway and use by passive recreation craft (cl 17, objective (c)). In that regard, I note that dredging and maintenance dredging have been approved in the other consents at 3 and 6 Sea Street and 33 Mount Street (7 Sea Street). Fisheries has issued GTAs to allow for dredging under the original consent and Transport for NSW has granted development consent to dredging albeit on a more restricted basis in accordance with the amended DA. 4. In any event, should my findings on this issue prove to be incorrect and dredging is to be regarded as a use for the purpose of the mooring pen to establish a prohibition within this appeal, and then I accept that Division 4.11 of the EPA Act is engaged and the applicants have a continuation of that use. Furthermore, I agree with the applicants that the section is facultative and operates as an exception to the regime which establishes prohibition as derived from an environmental planning instrument: Scrap v Reality V Botany Bay City Council (2008) 166 LGERA 342 at [13], [17] and [21]. Contentions 1, 1B, 5 and 7 Dredging, Inconsistency with the SREP and DCP, unacceptable impacts and site suitability 1. The limit of the Court's discretion in this appeal is defined by the matters raised for consideration by s 4.55. This includes a consideration of the matters in s 4.15 of the EPA Act relevant to the aspect of the development to which the application relates. It also includes a consideration of the reasons given by the consent authority for the grant of the consent that is sought to be modified. 2. Strictly speaking, the amendment to the SREP on 14 December 2018 by State Environmental Planning Policy (Sydney Harbour Catchment) Amendment 2018 and the insertion of new cl 27B – which specifies matters which must be taken into consideration in relation to mooring pens before "development consent is granted" is not relevant to a modification application. However, I agree with the applicants that tangentially via ss 4.55(3) and 4.15, the matters in the SREP identified in cll 17(2) and 27B bear some relevance provided they are considered in light of the fact of an existing grant of consent. Clauses 2 and 17 of the SREP 1. Clause 17(2) provides that I must not grant development consent to any development unless satisfied that it is consistent with the aims of the Plan and the objectives of the zone in which it is proposed to be carried out. 2. The aims of the Plan are set out in cl 2 and the relevant zone objectives are those contained in zones W1 and W6. 3. The aims in cl 2 of the SREP seek to "maintain, protect and enhance" certain matters listed, and these words are variously repeated for the purposes of assessment of aspects of applications made under the SREP. To the extent that this application invites a consideration of the provisions of the SREP, I acknowledge there needs to be a balanced approach to all factors in circumstances where there is some notable tension between considerations within the various provisions: per Biscoe J in Addenbrooke v Woollahra Municipal Council (No 2) [2009] NSWLEC 134 at [53]. Particularly, where the consent has been granted and the development is substantially the same. The applicants submit that on that basis, the development can be said to satisfy the aims in cl 2 and be consistent with the zone objectives in cl 17(2). This derives from the fact of the grant of consent and drives the components of modification of that consent relative to this application. 4. That said, the applicants quite properly acknowledge that it is appropriate that I reconsider the aims of the SREP and the zone objectives against the evidence for the purposes of assessing this modification application under ss 4.55(3) and 4.15 of the EPA Act. Also relevant are the DCP controls and the objections raised by adjoining owner. The DCP - 18m 1. Transport for NSW submits that it has consistently applied clause 4.9 of the DCP. The clause provides: "The size of the vessels berthed in association with a residential development shall not exceed 18metres in length." 1. However, the evidence does not support this submission. Exhibits 11 and 13 demonstrate that at least since 2011, Transport for NSW has approved vessels in excess of 18m berthed in association with residential development (Tcpt 24 April 2019, pp 101-104) (Exhibit 11). 2. Accepting that there is no express objective of the DCP control; nor any underlying purpose, as Mr Player conceded in his oral evidence, (Tcpt, 24 April 2019, p 95 (27)) where the control has been enforced as far as the evidence shows, it has been imposed in development where there are unacceptable impacts. Based upon the evidence before me, the present proposal is one where the application of the control is appropriate for that reason. 3. In answering the question posed by the applicants as to whether there are any unacceptable impacts for this breach of the 18m limit, the answer is yes. Based on the evidence as it presently stands, I am concerned about the visual impact of the development from the public water way for the reasons outlined by Dr Lamb as summarised below. I am also not satisfied that the imposition of the applicant's draft conditions for initial dredging and maintenance dredging will address the ongoing impacts from propeller scour on the shallow nearshore environment arising from this application for the reasons stated in the "outstanding issues" section of the joint report prepared by the ecologists dated 7 May 2019 (Exhibit 13). Having had the benefit of the evidence filed in these proceeding, Fisheries remains of the opinion that excessive initial over dredging and excessive maintenance dredging is not appropriate at this site and I agree. Visual impact 1. The proposed vessel – the 22.5m LOA Grand Banks Aleutian is approximately 25% larger than the 18m vessel referred to in the DCP. 2. The visual experts, Dr Lamb and Ms Rawlinson, are agreed that there are no other approved 18m LOA moorings in the bay area of the Lane Cove River. The largest vessel is the 16.45m vessel moored at 3 Sea Street. 3. The visual experts were also agreed that the elements that comprised the unique visual qualities of the relevant locality included: * the rocky outcrops in the Ferdinand Street Reserve, * the vegetated headland extending north, * the natural shoreline within the Reserve, * the sandstone foreshore walls along the harbour frontage of the six properties along Sea Street (including the local heritage item 1465 at 1 Sea Street), * the developed foreshore edge including the swimming pools, retained edges, boatsheds, interspersed with natural shorelines which provide visual variety, * the mature fig tree at 1 Sea Street (Local heritage item 1297), * the sections of the vegetated skyline extending generally east to west above and to the south of the site and the six properties on Sea Street. 1. These features were pointed out to me by the experts during the Court view. 2. In terms of the visual impact from the public domain of the river when looking toward the site, I accept the evidence of Dr Lamb that the proposed development will not be visually absorbed into the location. Rather, as he suggests, the proposed vessel will appear out of character relative to the other vessels in the immediate visual catchment, in an area of high sensitivity and low visual capacity. I do not understand the relevance of Ms Rawlinson's evidence that the proposed vessel (which is physically larger, longer and wider, than the other vessels at 3 Sea Street and other vessels in the Bay) in terms of visual bulk will be consistent with other vessels moored within the immediate area and wider visual setting such as 134 Louisa Road, Birchgrove. These areas referred to are outside the relevant visual catchment which contains the agreed "unique visual qualities of the locality". And, with those features in mind, I have some difficulty in accepting Ms Rawlinson's expert opinion that the vessel will contribute positively or enhance the visual variety which is identified as a unique visual feature of this locality as referred to in cll 13(f) and 14(d) of the SREP. 3. It is my considered opinion that the proposed vessel will dominate the landscape setting and set an undesirable precedent in this Bay. The evidence is that persons who are viewing from boats within the Lane Cover River will see a material change to the quantitative aspect of visual depreciation; the boat profile is 4.5m longer and will be identified in the landscape as very different to the other vessels in this part of the bay. I do not accept as the applicants submit on the evidence of Ms Rawlinson that the view remaining (if the development were to be approved) will be sufficient to understand and appreciate the nature of the existing: Rose Bay Marina Pty Limited v Woollahra Municipal Council and anor [2013] NSWLEC 1046. 4. Simply stated, the evidence supports a finding that the development is not in the public interest: s 4.15(1)(e). The views to and from the Sydney Harbour will not be protected for the public good as a result of the mooring of the proposed vessel. And, as Dr Lamb said in Court, an approval of this application will set a precedent for much bigger boats in excess of 18m, and while the absorption capacity for vessels of this kind of size increases with the number of vessels of that size, it would be to the detriment of the character of the Bay (Tcpt, 24 April 2019, pp 83-84). On that basis, the precedent is clearly undesirable. Dredging 1. I accept that in this part of the Lane Cove River every mooring pen requires dredging. However, it is the increased draft of the proposed vessel which requires the need to dredge further than that which is approved under the original consent. 2. And, as the applicants have identified in their submissions, the critical integer for the purpose of determination of the extent of dredging is that contained in condition 6(b) of the development consent. The condition establishes a benchmark of a 0.5m difference between the draft of any proposed vessel and the seabed. That is, irrespective of the vessel, a 0.5m space between the boat and the seabed is required. 3. The plans in Exhibit H provide for dredging that accommodates the freeboard and addresses the concern of batter creep into the mooring pen of 3 Sea Street. 4. The real concern is that an approval of this application will see undesirable mobilisation of contaminated silts into the waters and into the adjacent high conservation value mangroves. The joint report prepared by Dr Lincoln Smith, Transport for NSW's marine ecologist and the applicants' expert, Dr Smythe dated 7 May 2019 (Exhibit 13) is telling. As Transport for NSW submits, it highlights the problems of trying to fit too large a vessel at this shallow location and over contaminated silt. These experts identify a real risk or potential for either under dredging (resulting in an increased risk of propeller scour) or over dredging (increasing the risk of benthic habitat while decreasing the risk of propeller scour). 5. They both propose that a more accurate method of dredging be used unless further confirmation of the precision of the "clam shell" method can be provided by the dredge contractor (Table 1). They are concerned about the other contaminants in the shallow seabed silts – other than potential acid sulphate soils; and advise that such contaminants need to be controlled during and after dredging to prevent potential impacts on marine habitat and fauna. During dredging, they accept that controls have been addressed; however, they are concerned about uncontrolled mobilisation of contaminant caused by propeller scour – the extent of which is unknown. 6. While this is an unresolved issue, these experts accept that whenever the vessel is operated, it will mobilise fine and contaminated silts in this location unless the dredge plan is modified to provide level of deeper dredging and this is yet to be determined and addressed satisfactorily. Their evidence accords with Fisheries' concerns as expressed in its letter dated 29 May 2019. In particular, the overall cumulative scale of dredging required for the berthing of a 22.5m long vessel at this property – with silt being more dispersive than sand and the exposure of the aquatic environment to additional potential turbidly if not properly mitigated during maintenance dredging. Not to mention the sediment redistribution and turbidity impacts from propeller scouring which presently occur and based on all the evidence may be exacerbated with use of the shallow berth by the proposed larger and more powerful vessel. Fisheries express the view that the need for ongoing maintenance dredging demonstrates the unsuitability of the site and advises that larger vessels are best moored in deeper water. 7. Although a prescriptive maintenance regime is not part of the current application, the applicants, in recognition of the issue raised by Fisheries, invite me to impose a condition of consent requiring the undertaking of maintenance dredging if the depth between the draft of the vessel and the seabed is less than 0.5m, if, and when, as part of the natural re-sedimentation process of the Lane Cover River (AWS at par 44). In saying this, they make plain that this is not an amendment to the application but rather a condition imposed in consequence of the amendment and in light of the evidence before the Court. In that regard, they refer me to the evidence of Mr Player (Exhibit 3, Appendix 1 and tabs 10.1.10.6 and 10.8 of Exhibit 2). They submit that a condition of consent to that effect would address Fisheries' concern about propeller dredging, and overcome the fact it was not included in the original consent for this site. Noting, Fisheries would still need to issue any relevant permits under s 201 of the Fisheries Act for the maintenance dredging. 8. The applicants also suggest that a condition be imposed requiring initial dredging and maintenance dredging to be undertaken in accordance with Dr Symthe's Acid Sulphate Soil Plan which prescribes mitigation methods to ensure proper containment and removal of the ASS and other contaminants. (Exhibit G). 9. I do not accept that the proposed conditions satisfactorily address the concerns raised by the ecologists in their latest joint statement or Fisheries' concerns. To be clear, Fisheries' correspondence to Transport for NSW states that consideration needs to be given to reducing the risk of propeller scour by berthing a vessel with less horsepower and a shallower draft than that currently proposed to be berthed at this shallow site. DPI Fisheries is of the opinion that a need for ongoing maintenance dredging demonstrates unsuitability of this site for the berthing of the vessel and I agree. Further, I am not prepared to change the terms of condition 6 as requested by Transport for NSW in the circumstances of this case. 10. For the reasons outlined, I have decided that site cannot accommodate the proposed vessel without unacceptable impacts; it is unsuitable for the site: ss 4.15(1)(c) and 4.55(3) of the EPA Act. The modification application is refused. Orders 1. Therefore, the Court orders that: 1. The appeal is dismissed. 2. The exhibits are returned. …………………………… S Dixon Senior Commissioner of the Court 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: 19 December 2019