Background

In the recent case of Micheal Fountain Architects Pty Ltd v Hunter’s Hill Council & Ors [2025] NSWLEC 148, His Honour Justice Beasley of the Land and Environment Court has dismissed an appeal against the refusal of a development application seeking to expand the existing Woolwich Marina at 2C Margaret Street in Woolwich, Sydney from 45 to 79 berths.

Key takeaways

Development in the Sydney Harbour Foreshores and Waterways Area, as identified by State Environmental Planning Policy (Biodiversity & Conservation) 2021 (B&C SEPP), must be sensitively designed to avoid impacts upon significant views, vistas and heritage items. The decision reinforces the high threshold set by the B&C SEPP for the preservation of Sydney Harbour’s unique visual qualities.

Proceedings

Hunter’s Hill Council, represented by HWLE Lawyers, successfully opposed a development application for the expansion of an existing marina at Woolwich in Sydney. The case involved a number of issues, including visual and heritage impacts, aquatic ecology, Aboriginal cultural heritage and navigation safety. As the proposal was for ‘designated development’, ten objectors were also joined to the proceedings under ss 8.8 and 8.12(3) of the Environmental Planning and Assessment Act 1979. The objector parties broadly comprised local resident objectors, heritage objectors and sailing objectors. There was generally also significant public opposition to the proposed marina expansion.

The Court ultimately dismissed the appeal and refused consent for the development application due to visual and heritage impacts.

Key locations relevant to the proposed marina expansion were:

1. Kellys Bush – to the north of the marina and listed as an item of State Heritage Significance;
2. Horse Paddock – east of the marina and listed as an item of State Heritage Significance and Commonwealth Heritage Significance (part of Woolwich Dock area which is listed as a Commonwealth Heritage Place);
3. Cockatoo Island – 250m to the south of the marina, recognised by UNESCO as having World Heritage significance and also listed in the National Heritage List;
4. Spectacle Island – west of Cockatoo Island and southwest of the marina, a Commonwealth Heritage Listed Place; and
5. Snapper Island – 860m from the marina and also listed as a Commonwealth Heritage Place.

Beasley J found that from most locations on the public foreshore area of Kellys Bush, and from foreshore locations in the Horse Paddock, the proposal would result in significant obstruction to views to both Cockatoo and Spectacle Islands. His Honour noted the impact from Kellys Bush would also ‘include losing (at least in part) the ability to recognise Cockatoo Island as an island because of view obstruction’.¹

The view obstructions were found to be inconsistent with the principles set out in s 6.28(1)(a) of the B&C SEPP, which require Sydney Harbour and its natural assets to be protected for the public good. In determining the appeal, His Honour was required to have regard to s 6.28(2)(e) of the B&C SEPP. His Honour was ultimately not satisfied ‘that the unique visual qualities of the foreshores and waterways area “and its islands… will be enhanced, protected or maintained” by the development application, including “views and vistas” to the “heritage [islands]” from the public domain foreshore’.² This was in part due to Beasley J’s findings that the ability of a viewer to distinguish the relevant heritage items as ‘items’ would be diminished³ and that ‘the water plane of the Harbour to these islands would be largely obscured and, in many instances, blocked from view with boats berthed.’⁴

Beasley J found the resulting significant impact on views and vistas to the heritage islands was also inconsistent with the ‘general aims and objectives’ of the Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005 (Harbour DCP) in addition to s 6.28(1) of the B&C SEPP.⁵

In relation to visual impact assessments, His Honour noted there was utility in considering the guidelines set out in the Harbour DCP, the “Guideline for landscape character and visual impact assessment” issued by Transport for NSW and the principles set out by the Land and Environment Court in Rose Bay Marina Pty Limited v Woollahra Municipal Council and anor [2013] NSWLEC 1046. Beasley J also made specific reference to helpfulness of the site view in allowing him to see and visualise for himself the visual impacts of the proposal, which he considered important evidence pursuant to s 54 of the Evidence Act 1995.

Whilst Beasley J did not consider that navigation safety, aquatic ecology and Aboriginal cultural heritage contentions warranted refusal, the proposed marina expansion was refused as a result of visual impacts which were closely linked to significant impacts on the heritage items within Sydney Harbour.

The decision represents a positive outcome for the Council and for residents and visitors alike. It also serves as a reminder of the high bar set by the B&C SEPP in relation to proposed development within the Sydney Harbour Foreshores and Waterways Area.

For more details on the case, please click here and for more details on our local and state government experience, please click here.

This article was written by Philip Brown, Partner, Keeley Dolan, Associate, and Inez Murphy, Solicitor.

¹ Micheal Fountain Architects Pty Ltd v Hunter’s Hill Council & Ors [2025] NSWLEC 148 at [134].
² Ibid at [407].
³ Ibid at [407].
⁴ Ibid at [407].
⁵ Ibid at [407].