Posted on July 28, 2016 by Sue Puckeridge 5

Balancing the public interest against private interests

The Land and Environment Court has recently been required to balance the public interest against private interests in the context of a marina development.  The decision has reinforced the Court’s earlier test that in the context of the State Environmental Planning Policy Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (‘SEPP‘), the provision of public benefits is insufficient to satisfy the SEPP.  The public benefit must outweigh the private benefit.  

The assessment of a development’s merits requires consideration of the public interest under section 79C of the Environmental Planning and Assessment Act 1979 (EPA Act). Weighing up the private good against the public good is part of that consideration.

This exercise was undertaken in the recent case of 253 Spit Road Pty Ltd v Mosman Municipal Council [2016] NSWLEC 127. In that case the proposed development was a 17 berth private marina in Mosman. The proposed marina would replace an existing smaller marina near the Spit Bridge in close proximity to the Middle Harbour Yacht Club and the Middle Harbour 16ft Skiff Club.

Relevantly:

• the new marina would extend upon the open water currently available to members of the public who launch small craft from the beach to the north and south of the subject site and from the Yacht Club and the Skiff Club adjacent to the development, reducing the current boating activities by the public and the clubs,
• the new marina would create a fairway channel between 20m long and 18-20m wide to the south of the development, which would have to be navigated by vessels arriving at or departing from Parriwi Beach.

The site is within Zone W5 Water Recreation under the SEPP.  The aims of the SEPP include the protection of  foreshores and waterways of Sydney Harbour as a public asset of national and heritage significance to be enjoyed by future generations, to create a culturally rich and vibrant place for people, and to preserve the accessibility of the harbour and its foreshores.

The SEPP has strong objectives recognising the public benefit of Sydney Harbour.  In relation to foreshores and waterways areas, one of the principles adopted by the SEPP in support of its aims is that ‘the public good has precedence over the private good whenever and whatever change is proposed for Sydney Harbour or its foreshores’ (clause 2 (2) (b)).

Under the SEPP, consent cannot be granted to a development if the development is inconsistent with the aims of the SEPP and the objectives of the W5 zone.

In the W5 zone, priority is to be given to public use of the waterways. The relevant objectives of the W5 zone include giving preference to public water dependent development that allows for the accessibility of the harbour, and to allow development, but only where it is demonstrated that the public use of the waters in the zone is enhanced and will not be compromised in the future, that it meets a justified demand and provides benefits to the general and boating public.

The experts in the 253 Spit Rd case  agreed that the public interest was deemed to include, the NSW boating community, the local Mosman boating community, local Mosman residents and property owners within vicinity of the proposal who use the area, and the broader community (Sydney and all of NSW).

Private interests included businesses and other operations adjacent to the proposed development and in the Mosman LGA, customers of the businesses purchasing exclusive use of products or service, the interests of the proponent, the interests of the objectors, and local Mosman residents and property owners within vicinity of the proposal [17]-[18]. It was accepted that both the proposed commercial marina and the adjacent sailing clubs offer a private good.  The activities of the Skiff Club were found to be a public good for the purposes of the SEPP.

The Court considered the test set out in an earlier decision of the Court in Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190 which determined that the provision of public benefits was insufficient to satisfy the SEPP and that public benefits had to outweigh other considerations.  Positive elements of a proposal will not be enough.

In doing so, it found that neither the aims of the SEPP nor the objectives of the W5 zone were achieved by the development.  The commercial marina would decrease the public accessibility of the harbour and foreshore and adversely impact upon other operations which promote that public good.

Absent evidence about the likely activities of the commercial marina or that it would offer a similar type of public good to that offered by the Skiff Club, the public benefits provided by the development, in both the aesthetic sense (the visual attraction of boating activities), and financially (the payment of rent or taxes) were not sufficient.

Furthermore, the proposed marina would encroach upon the public’s use of the open water currently available who launch small craft from the beach to the north and south of the subject site and from Parriwi Beach.

The development was refused and the appeal dismissed. A copy of the decision can been found here.

Unlike other planning instruments, the SEPP places an unusually high emphasis on the public interest.  The case highlights the importance of clear, strongly worded aims and objectives within a planning instrument to protect the public interest (or other matters of importance).  Without such provisions, the public interest does not take precedence over private interests or other matters identified in s79C of the EPA Act.

By Sue Puckeridge (Partner) and Amanda Berry (Senior Associate)