253 Spit Road Pty Ltd v Mosman Municipal Council [2016] NSWLEC 1274

253 Spit Road Pty Ltd v Mosman Municipal Council [2016] NSWLEC 1274

The proposed marina would encroach on open water currently used by the public, including small craft launched from nearby beaches and clubs, and would likely reduce the Skiff Club's activities and the current level of public access. Balancing the limited public and private benefits of the proposed marina against the existing public good, the Court was not satisfied that the public good would have precedence over the private good if the marina proceeded. The proposal was inconsistent with aims (e) and (f) of SEPP Sydney Harbour and with W5 zone objectives (a) and (b), so the precondition to grant consent was not met and the appeal had to be dismissed.

Jurisdiction
Australia
Judgment Date
30 June 2016
Procedural Posture
Class 1 Appeal Against Refusal of a Development Application / Principal Judgment After Hearing
Outcome
The appeal was dismissed and development consent was refused.
Legal Topics
['development Application Refusal' 'commercial Marina Development' 'sydney Harbour Planning Controls' 'public Access to Waterways' 'w5 Water Recreation Zone Objectives' 'navigation and Safety Impacts']
['environmental Planning and Assessment' 'land and Environment Court Proceedings'] ['development Application Refusal' 'commercial Marina Development' 'sydney Harbour Planning Controls' 'public Access to Waterways' 'w5 Water Recreation Zone Objectives' 'navigation and Safety Impacts']

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Procedural Posture

Class 1 Appeal Against Refusal of a Development Application / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the proposed demolition of an existing three berth commercial marina and construction of a 17 berth commercial marina was consistent with the aims of State Environmental Planning Policy Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005.' 'Whether the proposed development was consistent with the objectives of Zone W5 Water Recreation under State Environmental Planning Policy Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005.' 'Whether the public good from existing public use of open water and beach access had precedence over the private good associated with the proposed marina.' 'Whether navigation and safety impacts on small craft using the adjacent waters meant public access and use would be compromised.']

Ratio Decidendi

The proposed marina would encroach on open water currently used by the public, including small craft launched from nearby beaches and clubs, and would likely reduce the Skiff Club's activities and the current level of public access. Balancing the limited public and private benefits of the proposed marina against the existing public good, the Court was not satisfied that the public good would have precedence over the private good if the marina proceeded. The proposal was inconsistent with aims (e) and (f) of SEPP Sydney Harbour and with W5 zone objectives (a) and (b), so the precondition to grant consent was not met and the appeal had to be dismissed.

Court Disposition

The appeal was dismissed and development consent was refused.

Orders

  • ['The appeal is dismissed.' 'DA 8.2014.115. for the demolition of an existing three berth commercial marina and the construction of a 17 berth commercial marina at the Catalina Anchorage Marina, 235 Spit Road, Mosman is refused.' 'The exhibits are returned with the exception of exhibits 1 and C.']