The Courtās decision in Stannards Marine Pty Ltd v North Sydney Council [2022] NSWLEC 99 highlights the importance of properly addressing landscape character and visual impacts for proposals in highly scenic and significant locations having regard to the principle of intergenerational equity and the concept of public trust. The decision is indicative of an increasing movement towards the rights of the public and consideration of future generations being prioritised over the private interests of the present generation.
This case considered two separate development applications, including one lodged by the applicant, Stannards, in March 2019 which sought development consent for the installation and use of a floating dry dock for the maintenance and repair of larger marine vessels in Berrys Bay (the Proposal). The Proposal was refused by the Sydney North Planning Panel in September 2020, following which, Stannards commenced an appeal to the Land and Environment Court (Court).
A central contention in the case before the Court concerned the Proposalās dominant visual appearance and adverse impact on the character of Berrys Bay and its foreshores. Put simply, Council contended that the proposal should be refused due to the large and obtrusive nature of the floating dry dock that would be moored in Berryās Bay, a constrained bay of high visual and landscape character and of national heritage significance in Sydney Harbour.
His Honour, Chief Judge Preston, ultimately held that the Proposal would cause high landscape and visual impacts and thereby be inconsistent with the concept of the public trust and principle of intergenerational equity embodied within the applicable legislation.
Landscape character, visual impact and intergenerational equity
In his decision, Chief Judge Preston links the importance of maintaining areas characterised by high scenic quality with the significance of Sydney Harbourās heritage as one that has been āinherited as a legacy from previous generations and is to be transmitted from generation to generationā.[1] This concept of intergenerational equity manifested in the Biodiversity and Conservation SEPP, which aims to ensure that the waterways and foreshores of Sydney Harbour are protected, enhanced and maintained as a public asset of natural and heritage significance for existing and future generations.
The commentary in this decision highlights intergenerational equity as a principle which requires each generation to do their part to conserve the diversity of the natural and cultural resources base, maintain the quality of the earth such that it is passed on in no worse condition than it was received and give the members of each generation equitable rights of access to the legacy of past generations.[2]
The visual impacts associated with the Proposal were deemed to be so severe that even if the applicants were to successfully argue that the floating dry dock would not have unacceptable ecological and environmental impacts, it would not be enough to justify granting development consent. Chief Judge Preston concluded that Berrys Bay was āsimply the wrong place for a vessel of this large sizeā.
Issues with applicantās case
Both Council and Stannards relied on reports produced by their respective visual impact experts as evidence to substantiate their arguments in relation to whether the visual impact of the floating dry dock was significant enough to refuse the development application. The Court took issue with the expert report put forward by the applicantās expert as it only focused on the visual impacts of the dock and did not adequately consider the broader landscape character impacts as well. The Court also found that the applicantās visual impact assessment failed to undertake a multi-viewpoint, multi-timeframe, and multi-sensory assessment of the landscape character of the area. Chief Justice Preston highlighted the importance of developing a complete understanding of a viewerās perception of the landscape character with not only visual impressions, but this in conjunction with sensory inputs, including sounds and smells of the area. The applicantās use of panoramic photographs which diminished the size and scale of the floating dry blockās visual impact and therefore did not accurately depict the extent of the visual obstruction was also found to produce an unreliable assessment of the Proposalās visual and landscape character impacts.
Key takeaways
This decision reminds us that the principle of intergenerational equity extends beyond the context of climate change and environmental protection related considerations. Regard to a proposalās visual impacts and the need to protect the character, heritage and cultural significance of places of high scenic value and/or heritage and cultural significance for future generations ought to be a paramount consideration in the design and planning of development.
The decision also provides guidance to proponents on what a substantive visual impact assessment should contain in order to provide a complete and holistic assessment, including but not limited to:
- a consideration of both the visual impacts and the landscape character impacts of the proposed development;
- a multi-viewpoint, multi-timeframe and multi-sensory assessment of the landscape character of the area;
- photographs which accurately depict the size and scale of the proposed development; and
- an examination of the visual impact from all views including both private and public vantage points from 2 and 3 dimensional zones.
With thanks to Noah Berry and Sacha Singh for their assistance in preparing this article.
[1] Town Planning Board v Society for the Protection of the Harbour Ltd at [33]. see paragraph 120
[2] E Brown Weiss, āIntergenerational Equity: A Legal Framework for Global Environmental Changeā, Environmental Change and International Law: New Challenges and Dimensions (UN University Press, 1992) 385-412.