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Bruce McKenzie - 8 April 2014

 Bruce McKenzie made the following comments in Non Agenda Public forum at the Ordinary Council Meeting on 8/04/2014.

Mr Mayor and Councillors

My name is Bruce McKenzie and I am the Convenor of the Batemans Bay Marina Users Group which has over 90 members. I wish to bring to Council's attention that construction works have commenced for the building of new marina berths in Batemans Bay Marina and that these works have commenced without proper approval being given for the works to proceed.

In discussion with Councillors I been advised that I should bring this matter to Council's attention.

We have waited 7 years for something to happen in our marina and the first Development Application, lodged in December 2013, was only for the 'on land'  works which included the Workshop, Café and Offices Building, Carparking, and Upgraded Fuel Facilities. We have lodged a submission in response to that DA. A key component of our submission was that the most important aspect of the marina's development was missing – that being the 'on water' component, in particular the berthing layout. We consider that for the marina to be able to function properly the total development must be considered in its entirety and for this to occur both the 'on water' and the 'on land' components need to be seamlessly integrated.

By way of example, the 'on land' hardstand can cater for boats to a maximum length of 12 to 13 metres, whereas the 'on water' berths provide for boats of up to 18m. 30% of the marina's boats will be unable to be serviced in their own marina. Council staff have informed us that they do not see any role for Council in ensuring that the 'on water' design of the marina berths is appropriate or that it is properly designed. We were advised that from Council's perspective it is the operator's commercial decision as to what they decide to build and that if it is ineffective then it will be their problem if it fails. We disagree with Council staff as it will be our community's problem if it fails.

We note that Section 5 of the Environmental Planning and Assessment Act identifies that the first objective of the Act is to encourage the proper management, development and conservation of resources, including the land and water, for the purpose of promoting the social economic welfare of the community. Council's practices are in serious conflict with the objects of the Act.

Council staff also openly state that they have been trying to find ways of fast tracking the building of the marina berths without requiring any assessment to be undertaken. They have claimed that these works can be undertaken as exempt development.

Council staff have claimed that the SEPP (Infrastructure) 2007 allows that if the works are undertaken by or on behalf of a public authority, namely Crown Lands, then the works can be undertaken as exempt development provided that there is also an environmental assessment undertaken of the risks involved. I have written confirmation from Crown Lands that these works are not being undertaken on their behalf. As such, the works cannot be undertaken as exempt development under the Infrastructure SEPP. A marine parks permit has been obtained and is being incorrectly used as the environmental assessment. The marine parks permit only allows for the 'refurbishment and maintenance of the existing marina structures'. The works being undertaken includes the total demolition of the existing jetties and their replacement with floating pontoons which are in a different location, have a different footprint, and are made of different materials. The marine parks permit does not allow for the demolition of the jetties and for their replacement with floating pontoons. As such the environmental assessment upon which Council is reliant is invalid.

As the Infrastructure SEPP is not relevant, the provisions of Eurobodalla LEP 2012 should be applied. The LEP specifies that exempt development cannot occur in a marine park. Therefore a DA must be lodged. All of this has been brought to the General Manager's attention, but she has chosen to ignore it.      

The NSW Minister with portfolio responsibility for Crown Lands has confirmed in writing that Crown Lands expected a DA to be lodged in February 2014 for the over-water area of the marina, covering a total of 130 berths. This contradicts how Council has attempted to handle this aspect.

I guess the question that Council has of us is so why are we so concerned?

The Australian Standard for the Design of Marinas mandates how marinas are to be designed and built. A key component of the standard is that there be sufficient depth of water for the intended boats and also that they can navigate safely within the marina. I am sure that Councillors can understand that everyone has an expectation that the boats will float. If a 20 tonne yacht can't float, it will fall over and people will be hurt!!! Unfortunately, this is likely to occur in our marina!

At low tide our marina's depth varies between 1.8m and 2.1m.

The Australian Standard specifies that for water with a depth of 2.1m that the marina should be designed for yachts 10m and less. 63% of the berths are not compliant with the Australian Standard.

Equally, the marina's design is not compliant with the Australian Standard in terms of minimum Channel Widths, Fairways Widths, Depth of Water, Gangways and Walkway Widths. As a consequence, the marina will not be a safe environment.

Council staff were unaware that the design failed to meet the Australian Standard yet have allowed the works to proceed even after we made them aware.

As the works have started without proper planning consent we call upon Council to immediately order that all works be stopped until a full and proper development assessment has been undertaken of the marina's suitability and to ensure that the marina is designed and built in accordance with the Australian Standards.

In our response to the DA we have highlighted that by its design, the marina will be ineffective and dysfunctional and we are concerned that it will be doomed to failure. This is our only marina and its failure will be a travesty to Eurobodalla's boating community with the consequence that both the State Government and Council will need to pick up the pieces because they allowed it to occur.    

We also contend that Council has been incorrect in its treatment of the DA and it should have treated the DA as a designated development which requires a total assessment of the entire project, not just a piecemeal approach to it in small stages. Designated development is mandatory for marinas. This is because it provides for the total impact upon the sensitive water environment to be properly assessed.

Council staff advised that because the building of the workshop, café & offices, caparking etc are 'additions and alterations' that this can avoid the project being categorised as designated development. Our unanswered question to the General Manager was if there is currently nothing on the site how can turning a parkland into a carpark, or a hardstand into a café and office building be construed as an alteration or addition? Designated development requires that the total project be assessed, not just an isolated part of it, even when assessing additions and alterations. Designated development also has a different advertising, assessment and approval approach. This site has a Crown Land and Master Plan that also includes a multi-story residential development, new existing commercial offices, street side retail buildings, new bridges, new marina entrance, filling in of existing marina and extensive dredging of a new marina plus a 240 boat dry stack. Is it intended that each part of these works be considered as just alterations or additions? Marinas are mandated as designated developments and thus the totality of this project should be assessed as is required for designated developments. As Council has wrongly treated this early stage of the project we have advised the General Manager that this exposes Council's decision to be challenged.

Thank you for allowing me to bring this to the attention of Council.


Council's Reply

A response from Council is not required.