Clipper’s Anchorage Pty Ltd trading as Soldiers Point Marina v Port Stephens Council

[2024] NSWLEC 1087

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Clipper’s Anchorage Pty Ltd trading as Soldiers Point Marina v Port Stephens Council [2024] NSWLEC 1087

Hearing dates:

5-8 February 2024

Date of orders:

29 February 2024

Decision date:

29 February 2024

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The appeal is dismissed.

(2) Development application no. DA 16-2019-8-1 for alterations and additions to existing Marina (construction of two-storey addition comprising members’ lounge, gymnasium, pool, spa, pool lounge, patio, decking, amenities, storage and plant rooms), landscaping, site preparation works including partial demolition of existing slipway and earthworks on lands known as Lot 539 DP823769, Lot 321 DP 636840, Lot 322 DP 636840, Lot 2071 DP 852662, Lot 1 DP 1058490, being 2A Ridgeway Avenue, 2C Ridgeway Avenue, 2E Ridgeway Avenue, 9 Mitchell Street and 2A Sunset Boulevarde, Soldiers Point; valet car parking facility at Lot 3 SP 59025 being 3/324 Soldiers Point Road, Soldiers Point, is determined by refusal of consent.

(3) The exhibits are returned except for A, B, C, F, G, J, K and 4.

Catchwords:

APPEAL – development application – alterations and additions to existing Marina – adequacy of parking assessment – insufficient evidence – public interest

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.15

Port Stephens Local Environmental Plan 2013, cll 4.3, 4.6

Texts Cited:

Port Stephens Development Control Plan 2014

Category:

Principal judgment

Parties:

Clipper’s Anchorage Pty Ltd trading as Soldiers Point Marina (Applicant)
Port Stephens Council (Respondent)

Representation:

Counsel:
A Galasso SC / M Harker (Applicant)
J Reid (Respondent)

Solicitors:
Rankin Ellison Lawyers (Applicant)
Local Government Legal (Respondent)

File Number(s):

2023/42181

Publication restriction:

Nil

JUDGMENT

Introduction

1. The applicant, Clipper’s Anchorage Pty Ltd trading as Soldiers Point Marina, has appealed against the Port Stephens Council’s refusal of its development application (DA 16-2019-8-1) (DA) for alterations and additions to an existing Marina located at Lot 539 DP 823769, Lot 321 DP 636840, Lot 322 DP 636840, Lot 2071 DP 852662, Lot DP 1058490, Lot 2 DP 1058490, being 2A Ridgeway Avenue Soldiers Point, 2C Ridgeway Avenue Soldiers Point, 2E Ridgeway Avenue Soldiers Point, 2F Ridgeway Avenue Soldiers Point, 9 Mitchell Street Soldiers Point and 2A Sunset Boulevarde Soldiers Point (the site).

2. Situated at the north-western end of the peninsula between Everitt Park and Sunset Beach, the Marina is part of the Port Stephens estuary and directly opposite Dowadee Island.

3. Approved over 60 years ago, the Marina is comprised of 90 berths, a dual slip way, concrete hard stand area and a marina building with the following associated uses: administration offices, restaurant, café, two boat sales offices, workshop, laundry, sauna/massage rooms and amenities. Existing berths are also utilised for weddings and a floating café.

The proposed development (as amended)

4. The development proposes works in the area lying to the north of the Marina, which is currently used as a slipway and includes:

• construction of a new two-storey addition containing;

• members lounge, gymnasium, outdoor swimming pool and spa with a shaded pool lounge and patio;

• three storage rooms;

• bathroom facilities;

• infrastructure and plant room; and

• decking with associated stairwells and enhanced landscaping.

5. The application also offers valet car parking for boat owners, whereby they set down at the Marina and their vehicles are taken to be parked by Marina employees in an 18-space off-site car park at Unit 3/325 Soldiers Point Road (Lot 3 SP 59025) (the valet car park). Ragusa Pty Ltd, the owner of this valet site has provided owner’s consent to the DA on 18 December 2018, and the owners corporation resolved on 7 February 2024 to allow the common property being traversed to access the parking lot, as it presently occurs.

Jurisdiction – cl 4.6

6. The development exceeds the 8 m height control in cl 4.3 of the Port Stephens Local Environmental Plan 2013 (SLEP) by 543mm or 6.787% because of the sloping nature of the site and the need to situate it above the highest Astronomical Tide to ensure that any interference with coastal processes is negligible. In fact, there cannot be a development that complies with the standards required by the Port Stephens Development Control Plan 2014 in relation to floor-to-ceiling height and the two storeys envisaged by the height control, without exceeding the height control.

7. To address this, the applicant has made a cl 4.6 written request for a variation of the height standard and the Council is supportive of the variation (Ex H). In short, the provision of a flat roof, and the reduction in the extent of the upper level to the west to reduce the impact on viewing corridors from Ridgeway Avenue to Dowadee Island has resolved the Council’s initial concern about view impacts generated by the breach of the height standard. The design changes to concentrate the extent of the built form on the first floor toward the east, to reduce the building height as the building projects over the fall in the slipway to the west has facilitated more views of vegetation on Dowadee Island are considered improvements to the design.

8. Clause 4.6 of the SLEP provides for an appropriate degree of flexibility in applying certain development standards such as building height to achieve a better planning outcome. For the reasons outlined in the written request, I accept that the proposed height of the building is appropriate when considering it in relation to the existing natural features of the site such as topography, the location for the site and existing built form. Despite the variation, I accept that the proposed development will achieve the objectives of the development standard and the objectives of the relevant land use zone being E1 Local Centre. Therefore, I find that strict compliance with the height standard is, in this case, unreasonable and unnecessary. The cl 4.6 variation to cl 4.3 of the SLEP is upheld.

9. The proposed development should not be refused based on a variation to the maximum height of building development standard resulting from the development.

Contentions

10. The height of the building is not the only contention of the 11 identified in the Council’s ASOFC (Ex 1) that has been resolved during the hearing through the amendment of the plans and the provision of further expert evidence. All contentions between the parties have now been resolved but for traffic/parking.

11. In that regard, the Council contends that there is insufficient information to properly assess the likely impacts of the additional parking demand generated by the development. In that circumstance, it submits that the Court could not be satisfied that the development will not generate an unacceptable overflow of parking onto the street. A concern also expressed by some of the objectors to the application.

12. In making its case against an approval of the development on the ground of traffic/parking, the Council refers me to the terms of the 1994 development consent (1994 consent) which approved the replacement Marina building and, introduced a restaurant use on the first floor, and additional Marina amenities.

13. It is common ground that the 1994 consent required the provision of 45 car spaces at the site. However, the split of the car parking for the various uses at the site is in contention.

14. The Council maintains that 45 spaces were intended to accommodate the parking needs of all uses of the Marina - the boat owners and the patrons of the two restaurants. This, however, is not the current arrangement at the site as the applicant has installed a boom gate at the entry to Lot 197 (Carpark 1) for the exclusive use of boat owners. The application before the Court relies on this existing parking arrangement and the Council contends that the Court’s approval of the DA would legitimise this unlawful use. The Council, however, is agreeable – should this DA be approved – to a consent with the endorsed requirement that the boom gate be removed or open for general use between 6-11pm each evening and during other non-peak days, a concession proffered by the applicant. (It was noted, significantly, by the applicant that this remedy is strictly not within the bounds of the current proposal. The submitted proposal relies on the existing parking arrangement and relates only to the particular provision of 18 additional car spaces off site catered to by a valet service).

15. Ultimately, the applicant submits in the absence of specific surrender or modifications of earlier consents that there is no need to construe the 1994 consent when the earlier 1980s consents continue to operate and authorise exclusive use of the car park (Carpark 1) for boat owners. The applicant contends all consents operate synonymously; that the application relates to the adequacy of car parking, and the redressed impact of the proposed development. The Marina still has consent to accommodate, as before, 90 berths. The 1994 consent relates not to the number of boats but to the building work; and since, as with this application, the number of boats has not changed subject to a finding that the additional parking needs can be accommodated off site by the valet service, the DA could be approved.

Traffic evidence

16. While the plans in respect of the 1994 consent nominate 45 parking spaces, there is currently a shortfall of 15 spaces (Ex 4 at pars 16, 34 and 42).

17. While not verifying Mr Reisch’s evidence regarding the factors that led to the reduction in the provision of parking from 45 to 30 spaces (Ex 4 at par 14), it appears that seven (7) parking spaces adjacent to the dry boat storage have been given over in part to operational land lining the foreshore footpath and in part to the dry boat storage area which was approved by development consent 16-2001-1111-1 issued by Council on 7 May 2002 (Ex 5 folios 564-567). The Compliance report: Soldiers Point Marina obtained from the Council’s file dated 10 December 2008 (Appendix B to Ex K) gives some context to the erosion of spaces.

18. At the Court view, I observed the current operation of the parking at the site. There are three discrete car parking areas – access to Carpark 1 is controlled by a boom gate in order to provide exclusive use of that parking area to boat owners. The other behind a locked gate.

19. As the marked-up plan below seek to show, there are practical limitations for the parking spaces in Carpark 1 which now only offers 23 spaces. There was also the removal of parking spaces directly adjacent to the barrier gates providing access to Carpark 1.

Figure 1 DA 1994 Approved Parking Spaces and Removed Parking Spaces

20. No changes were made to Carpark 2 located immediately adjacent to the Marina at the western end of Ridgeway Avenue.

21. There are seven (7) spaces along the site frontage (one allocated disabled space and another used as an electric charging station).

22. I also understand that the Marina, for some time, has offered an informal valet parking service for boat owners’ vehicles parked off site on Lot 3 (Carpark 3) which provides capacity for 33 vehicles.

23. Properly construed, the applicant submits that the 1994 consent applies only to the parking provision to the Marina berths and that the Council did not condition parking requirements for the restaurant uses. Having acted upon the 1994 consent and the earlier consents to provide sufficient boat owner car parking areas, the applicant submits that the Court has no authority to change this arrangement through this DA. Two of the existing car parks are operated by a boom gate to secure the exclusive boat owners’ car parking needs and there is no legal justification in this Class 1 DA appeal to require the removal of those boom gates.

24. Leaving aside the proper statutory construction of the 1994 consent, the traffic experts, Mr Reisch and Mr McCarthy, based on different methodologies agree that the required parking for members of the Marina is 29 spaces (Ex 4 at pars 65 and 77). These experts also agreed that existing boat owner parking demand and that generated by the proposal could be accommodated without impact on street parking in the 23 spaces in Carpark 1 and the 18 off site car spaces in the valet car park and 7 spaces along the frontage.

Plan of Management

25. The applicant relies on a valet plan of management (POM) to accommodate the increase in demand from the proposal. It was updated during the hearing (Ex J).

26. This POM sets out the requirements for the management of valet car parking in association with the Marina.

27. It states that the Marina induction pack will include an Information Sheet informing new Marina clients of the details of the operation of the valet service. The contracts between the Marina and each member (whether new or whose memberships is being renewed) are to include a term requiring the member to use the valet car parking:

1. when the member intends to stay on their boat for 2 nights or more; or

2. when Carpark 1 has no capacity for further vehicles.

28. Marina clients will also be encouraged to use the valet service, as opposed to relying on the on-site parking, where possible, and particularly for longer stays. Marina clients will be urged to use the valet service should the Marina Carpark 1 be full.

29. The stated purpose of the valet facility is to reduce the pressure for parking associated with the Marina (and other land uses within the vicinity) which:

1. offers a secure car parking to boat-owning clients of the Marina who do not wish to leave their cars unattended in the on-site parking when they are out on their boats, whether overnight or on longer trips, and

2. recognises that on-site car parking is better suited for short-stay visitors to the Marina including users of the restaurants.

30. The valet service will be available to boat-owning clients every day in December, January and February every year, on all public holidays every year and during the Sail Port Stephens event every year.

31. The valet service will operate at other times at the discretion of the Marina.

32. The valet service must be made available to boat-owning clients whenever 17 of the 19 spaces in the boom-gated areas of Carpark 1 at the Marina are occupied by motor vehicles. The Duty Dockmaster is responsible for monitoring the number of vehicles in Carpark 1. At a minimum, the Duty Dockmaster is to conduct an observation of Carpark 1 to determine the number of vehicles present at half past each hour.

33. The Council contends that the POM has no satisfactory mechanism to ensure that the valet service will “reduce the pressure for parking associated with the Marina (and other land uses within the vicinity)” (Ex J under ‘The purpose of Valet Car Parking’ (p2)).

34. In the absence of any recent parking survey or member survey, the Council submits that the Court cannot properly understand the likely uptake by boat owners of the valet system and the existing parking demand in the area and therefore the real impact of an approval of this DA.

35. The Council emphasises that the contentions called for a parking survey to be completed and is critical of the fact that the applicant has “resisted” to undertake that work. Instead, the traffic experts have been forced to rely on historic information and the traffic evidence of the experts retained in the 2018 Court proceedings (which concerned a DA for the extension of berths (ultimately refused consent)) to understand the parking demand (see Ex 4 par 4 and the briefing note to the traffic experts).

36. Ultimately, the Council submits I simply do not have sufficient information to approve this development without a baseline understanding of current parking demands by the boat owners and other uses, such as the sailing club, tennis court and residences.

37. The Council received over 40 objections to the DA and amended DA and submits on the basis of those objections that there are parking issues in the surrounding road network.

38. The objections were tabled in the Council’s bundle (Ex 5). Collectively, the submitters complained of an existing shortfall of parking in the area. For example, Ms Ross, a local property owner and objector to the DA, in her email submission to the Council dated 18 February 2019 stated that she “constantly struggles with marina staff parking illegally on the kerbside and in the wrong direction to oncoming traffic due to a lack of parking for marina and restaurant patrons” (Ex 5 folio 134). Ms D Hoskins, in her submission dated 27 February 2019 emphasised the same complaint. She observes that there is a lack of parking onsite which significantly impacts local residents. She complains that “…day and night, cars park illegally, ignoring ‘No Standing’ signage, park facing oncoming traffic (usually with boat trailers) and restricting access for Port Stephens buses”; Ms Hoskins believes that the Marina does not have sufficient parking (Ex 5 folio 139). Other submitters refer to cars double parked on the footpaths making it nearly impossible to access the Sunset Boulevarde (Ex 5 folio 141) or their needing to drive around repeatedly circling the area looking for parking spaces (Ex 5 folio 227).

39. Some objectors state that they have resorted to erecting signage on their property boundaries to warn Marina patrons to avoid disturbing access to their properties. Many submitters are fearful that this development with an expanded range of facilities and services, including a swimming pool, will substantially increase parking demand in the local roads and exacerbate the existing parking problems (Ex 5 folios 275 and 387). Parking in the streets surrounding the Marina on busy weekends and holiday periods (Ex 5 folio 391) is described by some as “near impossible”. The Life Members Soldiers Point Community Group submission dated 28 November 2023 identifies that in peak seasons the off-street parking near the Marina is heavily congested (Ex 5 folio 522).

Consideration and findings

40. For my purposes, I accept that there are currently 30 parking spaces (Carparks 1 and 2) (not including Carpark 3), and this represents the total parking for the Marina. It did not change with the enlargement of the Marina under the 1994 consent. As Mr McCarthy, the Council’s traffic expert explained in the joint traffic report, DA 625/1981 approved 90 berths resulting in 45 car parking spaces. A modification to that DA in November 1982 permitted this to occur over various stages between 1982 and 1986 (Ex 4 p10 pars 26-30). DA 872/1994 did not change the number of approved parking spaces (45) but enlarged the Marina building to include a restaurant, additional office and retail space with no additional parking.

41. I do not need to decide whether the 1994 consent required the 45 spaces for all uses because the applicant relies on the earlier consents for the exclusive use of Carpark 1. Nor am I required to deal with any additional parking to meet the historic shortfall which the Council acknowledged and to date has not sought to agitate. My focus, in this Class 1 appeal, is on the additional parking required by DA 2019.

42. As stated, the experts are agreed that the proposed development will generate a need for an additional 18 spaces (Ex 4 at par 66) based on the existing arrangement for Carpark 1. They also agree that the valet parking offered in this application will satisfactorily cater for this increased parking demand, if taken up by the boat owners. However, the assessment of 18 spaces has been derived from assumption rather than fact. As Mr McCarthy stated, this is not normal practice; the “normal practice [is] to complete a full traffic and parking assessment and consider all these aspects with supporting data within your assessment” (Tcpt, 8 February 2024, p 63(37-39)).

40. Instead, in this case the experts were given the GTA report (2015) that assumed 40% of boat owners would uptake the valet system. (The 40% is largely based upon a report that indicated that 40% of boat owners stay for more than one day.) While Mr McCarthy accepted this figure, he expressed reservations as to whether this number still holds true (Ex K p 11). In Court, he gave evidence that “… [if it] doesn’t occur, then it’s just going to go on [the] street” (Tcpt, 8 February 2024, p 62(46-47)) - an outcome that he had cautioned against in the joint report which states:

“intensification of on-street car parking areas should be avoided considering the existing shortfall of parking occurring. … To achieve this, ultimately the development would need to be capable of catering for the increase in car parking demand generated by the proposed works and ensure no overflow car parking on street occurred”.

(Ex K p 10 pars 51-52).

44. The reliance on the evidence in the 2018 Class 1 appeal in respect of a different DA for increased berths at the Marina, and other historical data required, as Mr McCarthy described, a “reverse engineering” exercise being undertaken to derive the number of car spaces generated by this development. The 18 spaces said to be generated was the result of a “sensitivity test”, rather than a determination of actual demand and solely based on the assumption that 40% of boat owners would use the valet parking.

45. Mr Reisch gave evidence that he had not undertaken any survey of how many cars are actually using the applicant’s current valet service, which is optional. Instead, he relied on a travel note from the applicant that 5% of members take up the long-term parking. Mr Reisch also agreed with Mr McCarthy that to be able to usurp the additional demand of the proposed development there would need to be an uptake of 40% of members to achieve the 18 spaces offsite (Tcpt, 8 February 2024, p 49). Mr Reisch accepted in cross-examination that there was no mechanism in the POM (at that stage of the proceedings) that would give the Court any comfort that 40% of the boat owners would use the valet parking (Tcpt, 8 February 2024, p 50(5)). The applicant submits that the amended form (POM) has addressed that issue by requiring current and new members who wish to stay more than 2 days to use the valet service or when Carpark 1 is full.

46. Assuming the valet service (if imposed as a condition on the consent) will provide 18 spaces and the generated demand is 18 spaces, then the DA must be said to satisfy the increased demand by the proposed development. However, for the reasons outlined, this outcome is based on an assumption of 40% uptake by boat owners which has not been interrogated by any recent member or traffic survey.

Conclusion and orders

47. Ultimately, the applicant’s decision to rely on historic information about parking demand at the site rather than carry out new traffic surveys of the existing members to support its case means that the Court does not have a reliable baseline from which to understand the traffic impact of this development. As the Council submits, the Court is invited to approve this application relying on assumptions rather than facts. For the reasons stated, I find that there is insufficient information to properly assess the likely impacts of the proposed development as required by s 4.15 of the Environmental Planning and Assessment 1979. Therefore, the public interest is not served by an approval of this application on the current evidence before the Court.

48. Accordingly, the Court orders:

1. The appeal is dismissed.

2. Development application no. DA 16-2019-8-1 for alterations and additions to existing Marina (construction of two-storey addition comprising members’ lounge, gymnasium, pool, spa, pool lounge, patio, decking, amenities, storage and plant rooms), landscaping, site preparation works including partial demolition of existing slipway and earthworks on lands known as Lot 539 DP823769, Lot 321 DP 636840, Lot 322 DP 636840, Lot 2071 DP 852662, Lot 1 DP 1058490, being 2A Ridgeway Avenue, 2C Ridgeway Avenue, 2E Ridgeway Avenue, 9 Mitchell Street and 2A Sunset Boulevarde, Soldiers Point; valet car parking facility at Lot 3 SP 59025 being 3/324 Soldiers Point Road, Soldiers Point, is determined by refusal of consent.

3. The exhibits are returned except for A, B, C, F, G, J, K and 4.

..........................

S Dixon

Senior Commissioner of the Court

**********

Amendments

03 April 2024 - Correction to typographical error at [47].

Decision last updated: 03 April 2024