“One asks rhetorically … what is it that the provision of a marina on the waterways in front of Kelly’s Bush does to have any effect at all upon [its heritage significance, as set out in a statement of significance]?
“One can well understand if the green ban … came about because someone had proposed a marina, and we now sought to propose a marina. That would be pretty inconsistent with the significance and the heritage context of that item.”
He said the “aesthetics” of the bushland was “not an identified part of its significance”. Rather, “there is a large parkland there which allows persons to understand the consequence of this first green ban was the retention of a parkland”.
“We walked through it [during the court’s the site visit]; it’s a big parkland. It remains. It’s unaffected physically by the development. It remains visible from all vantage points.
“It will now have more boats in front of it, which will be on a fixed mooring rather than a swing mooring. In our submission, Your Honour will be easily satisfied, when the analysis of the heritage concern is done, as we say it must be, in a principled way by reference to the statement of significance, that there’s no impact.”
Likewise, Hemmings said Cockatoo Island was “highly significant for its association with convicts”.
“Again, we ask rhetorically, and we’ll ask it ultimately: how is it [that] the ability to understand the significance of Cockatoo Island … [is] deleteriously affected … because in some viewing locations there will be the presence of … an extended marina?”
The council has said its legal fees totalled $378,000 as at July 11. It has taken the unusual step of asking the community for donations to help meet its legal bills.
Barrister Turvey To, acting for the council, said there was a “rich mosaic of significant heritage places around the marina site”, and the court would need to consider the impact on the heritage significance of not only Kelly’s Bush and Cockatoo Island but the Horse Paddock parkland and Spectacle Island.
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Barrister Edward Cox, SC, representing a number of objectors to the proposal including the volunteer-run Hunters Hill Sailing Club, said the proposal would fundamentally change “the class and size of vessels which would be berthed there”.
“Such an expansion would significantly impede recreational boating, whether it be racing dinghies, training children in dinghies, racing yachts or yachts just passing through the area or rowing vessels,” Cox said. “A loss of navigable area in such a narrow waterway is of significant concern.”
The sailing club said in documents filed in court that the size of the vessels proposed was “exponentially larger”. Some would be “larger than a Parramatta River Class ferry” and others would be “longer than an articulated bus and higher than a double-decker bus”, the documents said.
The Save Our Shores residents’ group has amassed more than 900 signatories against the proposal.
The hearing continues on Monday.
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