Clippers Anchorage Pty Ltd v Port Stephens Council [2018] NSWLEC 1029

Land and Environment Court New South Wales

Medium Neutral Citation: Clippers Anchorage Pty Ltd v Port Stephens Council [2018] NSWLEC 1029 Hearing dates: 3, 4 and 5 April, 1, 2, 3 November 2017; further written submissions 13 and 21 November 2017 Date of orders: 25 January 2018 Decision date: 25 January 2018 Jurisdiction: Class 1 Before: Martin SC Decision: The Orders of the Court are:

(1) The Appeal is dismissed.

(2) Development Application 16-2015-586-1 for Marina and car parking – extension to Soldiers Point Marina (additional 59 berths), relinquishment of seven swing moorings, line marking to existing car parking, and Car parking (change of use to existing industrial warehouse to provide 33 valet car parking spaces off-site) is determined by refusal.

(3)The Exhibits, save for Exhibits 1, 25, N (that part comprising the SIS), O, Q and U, are returned. Catchwords: DEVELOPMENT APPLICATION - appeal – actual refusal - extension to Marina – transitional arrangements for new Biodiversity conservation legislation - threats to ecology – critically endangered species – endangered species – threatened species - hydrodynamic and sediment transport processes – visual impact - Aboriginal Culture and heritage – adequacy of car parking – off-site valet car parking – adequacy of ecological assessment – site suitability - precautionary approach – appeal dismissed Legislation Cited: Biodiversity Conservation Act 2016 Biodiversity Conservation (Savings and Transitional) Regulation 2017 Environmental Planning and Assessment Act 1979 ss 5A, 77, 77A, 91, 97, 107 Environmental Planning and Assessment Regulation 2000 Environmental Protection and Biodiversity Conservation Act (Cth) 1999 Fisheries Management Act 1994 s 205 Land and Environment Court Act 1979 ss 39, 79C Marine Estate Management Act 2014 National Parks and Wildlife Act 1974 ss 80D, 84, 90 National Parks and Wildlife Regulation 2009 Port Stephens Development Control Plan 2014 Port Stephens Local Environmental Plan 2013 Protection of the Environment Operations Act 1997 State Environmental Planning Policy 71 (Coastal Protection) State Environmental Planning Policy 62 (Sustainable Aquaculture) Threatened Species Conservation Act 1995 ss 94, 110 Cases Cited: NSW Land and Housing Corp v Campbelltown City Council (2002) 126 LGERA 348 at [73] – [76] Category: Principal judgment Parties: Clippers Anchorage Pty Ltd (Applicant) Port Stephens Council (Respondent) Representation: Counsel: Mr Michael Astill (Applicant) Mr Michael Staunton (Respondent)