Background
Andrew Edward Mulroe and Cheryl June Ellen Mulroe appealed under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) against Central Coast Council’s refusal of a development application for a walkway, ramp and pontoon adjoining their property at 7 Mercator Parade, St Huberts Island. The structure was proposed on Council-owned land forming part of Brisbane Water, near the narrow and irregularly shaped end of a residential canal.
The application was amended during the proceedings to reduce and reconfigure the structure. Ecological experts agreed that the amendments sufficiently reduced impacts on seagrass and other coastal values, and the Court found the proposal’s visual impacts minor and acceptable. Although evidence raised concerns about access to nearby Council stormwater infrastructure, the Council did not maintain that issue as a contention at the hearing. The decisive dispute concerned whether the pontoon and any vessel berthed there would interfere with the safe launching, retrieval and manoeuvring of boats from four properties farther south in the canal.
The Court’s Holding
The Court dismissed the appeal and refused development consent for the amended application. Acting Commissioner Kullen was not satisfied that the proposed walkway, ramp and pontoon were acceptable on navigational-safety grounds.
The two navigation experts disagreed sharply. The applicants’ expert considered that adequate clearance and water depth would remain, while the Council’s expert concluded that the structure would significantly increase collision risks and restrict or prevent safe use of the existing boat ramps, depending on tides and vessel size. The Court placed significant weight on the Council expert’s extensive practical experience in vessel operation and manoeuvring. The canal’s narrowness, the proposal’s proximity to its end, and the orientation of the existing ramps reinforced those concerns and engaged the development control plan’s caution regarding pontoons near canal ends and in narrower canals.
Key Takeaways
- A waterfront structure may be refused where its location would create unacceptable navigational risks, even if its ecological and visual impacts are acceptable.
- The Court accepted the practical significance of extensive vessel-handling experience when assessing conflicting expert opinions on boat manoeuvring and safety.
- Site-specific constraints—including canal width, tides, proximity to a canal end and nearby boat-ramp orientation—were central to the assessment.
- The Court noted that a redesigned structure might reduce the interference with neighbouring boat launching and retrieval, but determined only the amended proposal before it.
Why It Matters
The decision illustrates that reducing a waterfront proposal’s physical and environmental footprint will not necessarily cure operational safety problems. In constrained waterways, applicants need reliable measurements and persuasive evidence addressing the interaction among the structure, berthed vessels, tides and existing navigation patterns.
It also shows the importance of development control provisions requiring careful, individual assessment of pontoons in narrow canals and near canal ends. Those provisions can carry substantial weight where expert evidence identifies concrete risks to established water access.