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					M G Foster v Hobart City Council & M G Foster [2006]
TASRMPAT 60 (5 Apr 2006)
File No: 20/06, J 60/2006
  Marieville Esplanade Sandy Bay - S56 LUPAA 1993 – amendment of permit – marina
                                          extension
                                         BETWEEN
M G Foster, Appellant
                                            AND
Royal Yacht Club of Tasmania, Respondent
                                      AND BETWEEN
Hobart City Council, Respondent
This was the hearing of an appeal against Council‟s approval of an amendment of a permit for
a marina extension at Marieville Esplanade Sandy Bay.
The appeal was heard at Hobart on 22 March 2006.
F Read appeared on behalf of the applicant.
S McElwaine of Counsel appeared on behalf of the Hobart City Council.
M Foster appeared in person as the appellant.
D Edwards appeared on behalf of the Battery Point and Sullivans Cove Progress Association
Inc as a joined party.
                                       DECISION
1.     The appeal was brought against Council‟s decision to approve, pursuant to section 56
       of the Land Use and Planning and Approval Act 1993 (“the Act”), an amendment of
       the permit for the marina extension at Marieville Esplanade Sandy Bay, granted
       pursuant to the Tribunals Decision J143/2004.
2.     The substance of what was permitted by the Tribunal, was an extension of the overall
       marina owned by the Royal Yacht Club of Tasmania at Marieville Esplanade. The
       physical structures would include a new series of break water and marina arms, with
       provision for 86 berths; with separate land access to that structure to the north of the
       existing marina access. A more detailed description is given in paragraph 3 of
       decision J143/2004, but is not presently important.
3.     In decision J143/2004, the Tribunal imposed two conditions additional to those
       imposed by Council, relevantly for present purposes including;
         “1.     The northern most 14 berths and the approximately 16 metres of
                 break water adjacent to the outer 3 of those, are to be deleted.”
4.     The applicant applied pursuant to s56 of the Act, to Council for an amendment of the
       permit issued by Council as a result of the Tribunal‟s above decision. In essence, the
       amendment showed the deletion of the marina infrastructure which would have been
       constructed within an 80m distance of the peninsula on which the
       Hutchins Rowing Club, the Sea Scouts, and other boating organisations, are located.
       That would have been a further 20m setback to the south from that peninsula, than the
       development permitted by Decision J143/2004.
5.     In addition, the marina structure so created would be linked to the existing marina by
       a walk way. The land access to the proposed new marina would be varied by
       deleting the permitted additional northern land access, and instead utilising the
       existing land access to the existing marina.
5.     Council approved the amendment, and an appeal was brought to the Tribunal. The
       grounds of the appeal as pursued at the Tribunal were in substance that the Council
       had no jurisdiction to approve the proposed development, as the preconditions for the
       operations of s56 were not satisfied. If that were the case, then there could be no valid
       decision by Council, and no basis for the present appeal.
6.     The provision reads as follows:
         “56. Minor amendments of permits
           (1)    The owner of land, or a person with the consent of the owner,
                  may request the planning authority in writing to amend a permit
                  which applies to that land.
           (2)    The planning authority may amend the permit if it is satisfied that
                  the amendment –
                    (a)     does not change the effect of any condition
                            required by the Appeal Tribunal; and

                    (b)      will not cause an increase in detriment to any
                            person; and

                    (c)     does not change the use or development for which
                            the permit was issued other than a minor change to
                            the description of the use or development.”
7.       S56 imposes a threshold test which must be satisfied if the planning authority is to
         have jurisdiction to make any amendment.
8.       Subsection s56(2)(a) requires that the proposed amendment “does not change the
         effect of any condition required by the Appeal Tribunal…”. The condition
         relevantly imposed by the Tribunal is set out above.
9.       There was an issue between the parties as to whether the incremental effect limiting
         the number of vessels accessing the marina by its northern side, was a relevant effect
         for the purposes of s56. In this context an issue arrises as to whether the effect
         referred to in s56, is the intended effect objectively ascertained; or alternatively any
         effect which might occur by reason of the amendment.
10.      The word “effect” is not defined in the Act, and bears its ordinary meaning. The
         Oxford English Dictionary defines it as “a result or consequence of an action”. The
         Macquarie Concise Dictionary defines it as “a result; a consequence;….5. The result
         intended; purport or intent; tenor or significance.”
11.      The intent behind or reason for the above condition, can objectively be determined
         from the terms and content of the decision. Reference to those terms demonstrates
         that the relevant condition was imposed by the Tribunal to address three issues: traffic
         and parking; the impact of the marina on the marine activities of the Sea Scouts; and
         visual impact.
12.      The effect of the condition was to preclude marina development within a distance of
         60m from the peninsula accommodating the Sea Scouts and rowing clubs; and to
         limit the number of berths so as to limit traffic and parking.
13.      The condition also had an incidental effect upon the numbers of vessels likely to be
         using the northern most portion of the new marina, and therefore the waters adjacent
         to that northern portion of the marina, which are also used for access to the sea scout
         and rowing club launching sites. It can be seen from the terms of the Tribunal‟s
         reasons for decision in J134/2004, that while the condition was imposed without
         adverting to any impact of numbers of marina-based vessels traversing the area, upon
         Sea Scout, rowing club and other users of the bay, that occurred in the context of a
         proposal under which the numbers of vessels using that area were not, in the context
         of numbers as such, significant.
14.      The direct effect of the condition, that is that there would be no marina structure
         within 60m of the peninsula, would itself be unaffected by the proposed amendments.
         There would still be no Marina structure within 60m of the peninsula.
15.      The effect of the condition, to the extent that there was to be no structure interfering
         with the Sea Scouts‟ access, is also unaffected by the amendment.
16.      If the relevant test is the intended effect, then upon the above reasoning, the intended
         effect of the condition is not altered by the amendments.




File No: 20/06P                               Page 2                                    J60/2006
17.      While those were the intended effects of the condition, objectively assessed from the
         terms of the reasons for the decision of the Tribunal appealed against, it may be
         prudent to assess the amendment against the event that the proper construction of
         subsection (a) is that it refers not just to the impact upon the intended effect but upon
         any effect at all of the condition, by the amendment. In that case the following
         would be relevant.
18.      The effect of the condition, to the extent that it necessarily resulted in a limited
         amount of marine traffic through the waters immediately north of the Marina, would
         be varied. That would not however be in the sense that there would be any
         appreciable effect upon the access endured by the Sea Scouts or other uses of the
         waters between the peninsula and the marina. There was extensive evidence with
         respect to potential for any such effect, and the evidence of the persons expert in
         assessing the effect of such traffic, was uncontested. That evidence was of
         Mr M Jones, Mr A Nicholas and Mr F Read. It was to the effect that there would be
         no appreciable interference with vessels currently using the waters adjacent to the
         northern part of the marina.
19.      More particularly, the evidence was that there would, as a requirement of
         Marine and Safety Tasmania, be a clear way access free of marine structures,
         moorings and anchored boats of some 20m in width along the northern and eastern
         edges of the new marina infrastructure. Vessels entering and leaving the marina
         would not do so under sail, but under power. There was no reason apparent why
         those vessels would be unable to keep within the 20m wide clear way if there was any
         danger at all of obstruction or collision involving other vessels using the bay.
         Further, vessels under power were obliged by the relevant boating rules, to give way
         to any vessels under sail. Users such as kayakers would not be affected. That
         evidence was not effectively contested, and the Tribunal finds according to it.
20.      It was contended on behalf of the party joined that the users of the waters between the
         northern portion of the marina and the peninsula would include yachts, dinghies,
         kayaks and other little boats. It was contended that it was axiomatic that an increase
         in numbers of boats accessing the marina under power, would adversely affect the use
         by those other users, of those waters. The evidence as to the numbers of vessels was,
         in general terms, that , on the busiest days, which were race days, perhaps 40 more
         vessels than at present would access the northern portion of the marina in the waters
         between the marina and the peninsula. There would further be the 40 odd dinghies
         in the yacht club dinghy fleet. The expert witnesses with respect to marine
         movement were cross-examined about these matters, and their opinions remained as
         previously expressed. The Tribunal considers that expert evidence is correct, and
         finds according to it.
21.      The Tribunal accordingly finds that the number of boats entering and exiting the
         marina into the relevant waters, is unlikely to have any appreciable effect upon use of
         those waters by other persons.
22.      The Tribunal therefore considers that the increased number of boats entering and
         exiting the northern part of the proposed marina is of no tangible relevance to use by
         others, of the waters between the peninsula and that northern part of the marina.
23.      Accordingly, given that the change to the proposal is construed as producing a change
         in the effect in the condition in so far as it involves a number of boats accessing the
         northern part of the proposed marina, it is never the less not a change of any
         appreciable significance. The change on the effect of the condition is the Tribunal
         considers, one which falls with in the concept of “de minimis”.
24.      A secondary effect of the condition was to reduce the infrastructure of the marina
         arms, to that necessary to enable the provision of 86 berths and nothing more. The
         new plan however includes infrastructure space which would enable further berths to
         be constructed. That would be achieved by the fact that the new break water wave
         screen wall would extend in a southerly direction as far as was originally intended;
         but the new walk way and berths would not be provided to the west of it; nor would


File No: 20/06P                               Page 3                                    J60/2006
         what would have been the walk way and approximately 2 additional berths the
         subject of the permit before amendment on the opposing arm of the existing marina,
         have any walkway or those berths actually provided under the amendment. The
         number of berths provided would remain the same at 86, but in a space slightly
         compressed towards the north, from that which was the subject of the Tribunal‟s
         approval. In a sense that would enable the construction of further berths behind that
         breakwater and in the area opposite it. It was the evidence of the applicant, and that
         evidence was not effectively challenged that this amendment application was for the
         86 berths alone; and that a condition to that effect could be imposed. If there is to be
         any further provision of berth facilities on such infrastructure as is the subject of the
         approval, that would need to be the subject of a further application.
25.      Subsection 56(2)(b) provides as a further test, that the amendment “will not cause an
         increase in detriment to any person…”
26.      It was contended on behalf of the appellant that any increase at all in marine traffic in
         the relevant area was necessarily a detriment, and that it was not relevant whether that
         detriment was substantial or material.
27.      The word “detriment” is defined in the Oxford Dictionary as “harm and/or damage”;
         and in the Macquarie Concise Dictionary as “loss damage or injury”.
28.      It was contended on behalf of the appellant, in reliance upon Cade v. Yarra CC and
         Jopsal Pty Ltd (1997/15363) Administrative Appeals Tribunal Victoria, paragraph
         134; and Mentone Mansions P/l v. Kingston CC [2000] Victorian Civil and
         Administrative Tribunal 1947, at paragraph 27, that the question of “detriment” does
         not require any material or substantial increase in detriment:
                   “any increase in detriment to any person, even a quite minor one, so long as
                   it is not de minimis (that is to say so trifling that no account should be taken
                   of it) is sufficient to prevent amendments under these provisions”: Cade,
                   supra.
29.      The provisions under which the decision in Cade however was given, were for all
         relevant purposes similar to those in S56(2)(b). The decision is one which however
         has not been followed elsewhere; it is not binding on this Tribunal; and this Tribunal
         has previously adhered to a qualitative concept of detriment: Cooley and Carling v.
         LCC, TASRMPAT J162/2004 at paragraphs 18-21; and Dickenson v. LCC 2002
         TASRMPAT 205, at paragraph 22.
30.      If in any event the Victorian approach was followed, in the present case the Tribunal
         has found that any detriment that was caused, would fall in the “de minimis” concept.
31.      Accordingly, the test posed by subsection 56(2)(b) is satisfied.
32.      The third aspect is that posed by s56(2)(c), that the amendment “does not change the
         use or development for which the permit was issued other than a minor change to the
         description of the use or development.”
33.      The Tribunal considers that the proper description of the proposal is a compendious
         one, that is an extension to a marina. That is how it had been treated and described
         in the appeal which resulted in decision J143/2004. What is presently proposed is an
         amendment comprising an extension to the marina, but it still falls within the overall
         description of an extension to a marina.
34.      The appellants contended that the proper description was an existing marina, together
         with a new separate marina adjacent to it, in the form approved by the Tribunal. The
         Tribunal does not consider that is an appropriate description, for the foregoing
         reasons. The Appellants further contended that the change to the extension of the
         original marina included much greater northerly channel usage; deleting the proposed
         new connection to the shore; and providing a new 50m walkway connecting the old
         infrastructure to the new; and the inclusion of further infrastructure allowing the
         provision of further berths. The latter aspect has already been considered. The
         former aspects are all, the Tribunal considers, properly regarded as details of the total
         development, which is and was an extension to the existing marina.



File No: 20/06P                                Page 4                                    J60/2006
35.      The Tribunal considers that it is necessary to consider the overall use, properly
         described as a marina; and that comprehends the concept of a marina extension, rather
         than describing that extension by reference to its individual components such as
         berthing infrastructure, access patterns by water, and/or connections to the land.
36.      The Tribunal therefore finds that planning authority had a discretion to allow the
         proposed amendment under s56.
37.      It was further contended on behalf of the appellant that the objectives of the Land Use
         Planning and Approvals system, for fair orderly and sustainable use, would not be
         served by allowing the proposed amendment. The Tribunal does not see any respect
         in which, there being no tangible adverse effect from the proposed development,
         those objectives would not be served.
38.      It was further contended on behalf of the appellant that objective 2.6.1 of the State
         Coastal Policy, that is the preservation and enhancement of the public right of access
         to the water, would not be served by the proposed development. The Tribunal does
         not, on the evidence, consider that the public right of access to the water would be
         adversely effected by it. The proposed development, in so far as it is sought to be
         amended.
39.      It was contended for the appellant that the general approach adopted by the Tribunal
         should be that it should not be „too cavalier‟ in allowing minor amendments, as that
         would have the potential to undermine confidence in the Planning Authority and the
         Planning System generally: Cade at paragraph 152. The Tribunal however considers
         that what is proposed by way of amendment is not, on the evidence, of significance in
         any relevant planning sense, for the foregoing reasons.
40.      It was further contended on behalf of the appellant that whether to approve the
         proposed amendment could appropriately be tested by taking the original approved
         development as constructed, and determining whether the proposed amendment could
         be constructed without public input. The Tribunal considers that is not an
         appropriate test. The extent of public input allowable under s56 is significantly less
         that that available under an application for planning approval for a use or
         development which is discretionary, under s57 of the Act. The statutory scheme
         envisages, therefore, a limitation of public input. What is proposed is therefore not
         in conflict with that interpretation of the statutory scheme.
41.      The evidence satisfies the Tribunal that in the exercise of the discretion which it has,
         there was no good reason for refraining from exercising that discretion favourably to
         the proposed amendment. The evidence also included positive benefits to the users
         of the waters to the north of the marina, and positive benefits to persons viewing the
         general scene from the shore, by a further limitation of 20m to the northern extent of
         the marina. The Tribunal accepts that evidence, and finds that there would be
         positive benefits of those kinds in what is proposed. For those reasons the Tribunal
         considers that it is appropriate to favourably exercise the discretion in favour of the
         amendments.
42.      Given the express intent of the applicant to limit the extension to 86 berths, and the
         possibility that at some future time an amendment might be sought to extend that
         number, the Tribunal considers that it is appropriate to ensure that any such
         application be by way of application for planning approval rather that by amendment,
         so that any public affected may have an adequate opportunity to participate. There
         should therefore be an additional condition limiting the berths constructed under the
         amended proposal, to a maximum of 86 berths.
43.      The order of the Tribunal is that the appeal is allowed to the extent that a further
         condition is inserted in the amended permit, as follows.
           “1.     The total number of berths provided in the amended proposal is
                   not to exceed 86.”
44.      Council is directed to issue a permit incorporating the above amendments.
45.      The Tribunal will entertain any application for an order for costs in this appeal, if
         made to the Tribunal in writing with supporting submissions within the next fourteen


File No: 20/06P                               Page 5                                   J60/2006
         days. If appropriate the Tribunal will reconvene to hear any evidence in respect of any
         matter bearing on an order for costs.
46.      In the absence of any such application for an order for costs the order of the Tribunal
         is that each party bear its own costs.
                                         Dated 5 Apr 2006

      BH McNeill                      KAM Pitt QC
       Member                           Chairman




File No: 20/06P                               Page 6                                  J60/2006

				
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