De Angelis v Transport for NSW [2019] NSWLEC 1632

De Angelis v Transport for NSW [2019] NSWLEC 1632

Although the proposed modification was substantially the same development and the ancillary dredging into the W1 zone was not prohibited by the SREP, the proposed use of the existing mooring pen by a 22.5m vessel would cause unacceptable impacts. The vessel would not be visually absorbed into the locality, would dominate the landscape setting, adversely affect public views to and from Sydney Harbour and set an undesirable precedent. The additional dredging and ongoing maintenance dredging required at the shallow site created unresolved and unacceptable risks of propeller scour, mobilisation of contaminated silts, turbidity and impacts on marine habitat. The proposed conditions did not...

Jurisdiction
Australia
Judgment Date
18 December 2019
Procedural Posture
Class 1 Appeal Concerning a Modification Application Under S 4.55(2) of the Environmental Planning and Assessment Act 1979 / Determination After Hearing of Appeal From Refusal of Modification Application
Outcome
Appeal dismissed; modification application refused.
Legal Topics
['modification Application' 'mooring Pen' 'dredging' 'sydney Harbour Catchment Planning Controls' 'visual Impact' 'site Suitability' 'integrated Development']
['environmental Planning and Assessment' 'land and Environment Court' 'waterways and Maritime Development'] ['modification Application' 'mooring Pen' 'dredging' 'sydney Harbour Catchment Planning Controls' 'visual Impact' 'site Suitability' 'integrated Development']

Case Brief

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Procedural Posture

Class 1 Appeal Concerning a Modification Application Under S 4.55(2) of the Environmental Planning and Assessment Act 1979 / Determination After Hearing of Appeal From Refusal of Modification Application

Legal Issues

  1. 1 ['Whether the modified development was substantially the same development as the development for which consent was originally granted under s 4.55(2)(a) of the Environmental Planning and Assessment Act 1979.' 'Whether use of the existing mooring pen for a 22.5m vessel and ancillary dredging extending into the W1 zone was prohibited development under cl 18 of the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005.' 'Whether the proposed larger vessel and additional dredging were inconsistent with the SREP and DCP controls, including the 18m vessel length control.' 'Whether the site was suitable for the proposed 22.5m vessel having regard to visual impacts, dredging, propeller scour, contaminated silts, ecological impacts and the public interest.']

Ratio Decidendi

Although the proposed modification was substantially the same development and the ancillary dredging into the W1 zone was not prohibited by the SREP, the proposed use of the existing mooring pen by a 22.5m vessel would cause unacceptable impacts. The vessel would not be visually absorbed into the locality, would dominate the landscape setting, adversely affect public views to and from Sydney Harbour and set an undesirable precedent. The additional dredging and ongoing maintenance dredging required at the shallow site created unresolved and unacceptable risks of propeller scour, mobilisation of contaminated silts, turbidity and impacts on marine habitat. The proposed conditions did not...

Court Disposition

Appeal dismissed; modification application refused.

Orders

  • ['The appeal is dismissed.' 'The exhibits are returned.']