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[2026] NSWLEC 1018
General information, not legal advice.
Land and Environment Court (NSW)
2026-01-16
Washington C
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Clipper’s Anchorage Pty Ltd v Port Stephens Council [2026] NSWLEC 1018
Hearing dates: 22, 23 September 2025
Date of orders: 16 January 2026
Decision date: 16 January 2026
Jurisdiction: Class 1
Before: Washington C
Decision: The Court orders:
(1) The appeal is upheld.
(2) Development application DA 16-2024-291-1 for alterations and additions to the existing marina, including construction of a two-storey addition, partial demolition of existing slipway, and earthworks on land described as Lot 539 DP 823769, Lot 321 DP 636840, Lot 322 DP 636840, Lot 2071 DP 852662, Lot 1 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, and the use of 3/324 Soldiers Point Road, Soldiers Point, being Lot 3 in SP59025, as valet carparking for the Marina and the use of Lot 539 in DP 8237569 as carparking for the Marina, is determined by way of development consent.
(3) All exhibits are retained except for Exhibit 6, which is returned.
Catchwords: DEVELOPMENT APPLICATIONS — alterations and additions to a marina — parking provision — appeal upheld
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 8.7
Fisheries Management Act 1994 (NSW), ss 205
Marine Estate Management Act 2014 (NSW), Pt 5, Div 6, s 55
Roads Act 1993 (NSW)
Port Stephens Local Environmental Plan 2013, cll 4.3, 4.6, 7.1, 7.2, 7.6, 7.9
State Environmental Planning Policy (Primary Production) 2021, s 2.27
State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11, 2.12, 4.6
Cases Cited: Clipper’s Anchorage Pty Ltd trading as Soldiers Point Marina v Port Stephens Council [2024] NSWLEC 1087
Texts Cited: Port Stephens Council, Port Stephens Coastal Management Program (31 May 2024)
Category: Principal judgment
Parties: Clipper’s Anchorage Pty Ltd (Applicant)
Port Stephens Council (Respondent)
Representation: Counsel:
A Galasso SC (Applicant)
J Reid (Respondent)
Solicitors:
Rankin Ellison (Applicant)
Port Stephens Council (Respondent)
File Number(s): 2024/423951
Publication restriction: Nil
Clipper’s Anchorage Pty Ltd (Clipper’s Anchorage) own the existing Soldier’s Point Marina, located on the western shore of Soldiers Point, NSW, between Everitt Park and Sunset Beach. They have applied to Port Stephens Council (the Council) for development consent for alterations and additions to the marina, which include the construction of a two storey addition to the north of the existing building, with associated landscaping, car parking, partial demolition of an existing slipway, and earthworks.
The marina is located on land described as Lot 539 DP 823769, Lot 321 DP 636840, Lot 322 DP 636840, Lot 2071 DP 852662, Lot 1 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 and the use of 3/324 Soldiers Point Road, Soldiers Point, being Lot 3 in SP59025, as valet carparking for the Marina and the use of Lot 539 in DP 8237569 as carparking for the Marina.
In detail, the application seeks consent for:
A two-storey addition to the existing marina, and swimming pool, for exclusive use by the members of the marina;
Addition of 3 spaces to the existing car park 1, increasing the total from 19 to 22 spaces;
The use of an existing hardstand area as a 28 space parking area (car park 2); and
Valet parking for 33 cars.
The phasing of the works is as set out in the Statement of Facts and Contentions (Ex 1).
These proceedings were brought to the Court pursuant to s 8.7 of the E**nvironmental Planning and Assessment Act 1979 (NSW) (EPA Act). At the commencement of the hearing, the applicant was granted leave to rely on a number of documents that formed an amended application, to reflect agreements made between the parties through joint expert reporting and without prejudice discussions. As a result, the remaining issue in dispute between the parties is whether the proposed development will have an unacceptable adverse impact on parking.
For the following reasons, I find that the proposed development has adequately responded to all matters of merit, including the provision of adequate parking, and that there is no jurisdictional threshold that prevents me from granting consent to this application. Accordingly, I find that the appeal should be upheld and the application determined by way of consent.
The Council submits that the proposed quantity and arrangement of parking is insufficient. The proposed parking arrangements in this application are:
Car park 1 to the south-east of the marina: 22 spaces;
Car park 2 to the north of the marina: 28 spaces;
Car park 3 to the east of the marina: 7 spaces;
Valet parking offsite: 33 spaces.
This equates to an increase from the existing provision of 31 spaces on-site and 33 valet spaces off site.
In consideration of the issue of parking provision, it is helpful to understand some of the background to the marina and its associated uses. Consent was granted in 1982 (DA 625/1981) to extend the existing marina facilities to a total of 90 berths (Ex 2 tab 12). This consent was granted on the basis of car parking being provided in accordance with the Council’s car parking code, which required 1 parking space for every 2 wet berths. This equated to 45 parking spaces.
Plans were provided as part of a 1994 consent (DA 872/1994) demonstrating where the 45 parking spaces were to be located (Ex 2 tab 12). It is uncontested that, for various reasons, the full complement of 45 parking spaces was never provided and the Council has not sought to require the rectification of this shortfall of 15 spaces (Ex 3 p 12).
The marina as it currently exists supports a number of commercial tenancies, including a beauty salon, a 100 seat restaurant, and a café. In granting consent for these uses, the Council did not require the provision of additional parking spaces.
As a result, and pursuant to the requirements of s 4.15 of the EPA Act, the question before me is to consider the likely impacts of the development application. In doing so, I must determine whether the current application provides sufficient parking to meet the additional requirements generated by the proposed alterations and additions.
Expert evidence was provided by Mr Anton Reisch for Clipper’s Anchorage and Mr Matthew McCarthy for the Council, both in oral evidence and in a joint report (Ex 3).
To that end, a parking survey was undertaken on Good Friday and Easter Saturday in 2024, and members surveys were undertaken to determine the likely demand for the valet and the likely increased demand for parking resulting from the new facilities in 2024 and 2025. The result of these surveys is that the increased demand for parking is 13 spaces, which Clipper’s Anchorage say is comfortably accommodated by the new car park 2.
Also contended is whether it is acceptable to restrict access to the car parking, in particular car park 1, by way of a boom gate. Clipper’s Anchorage rely on the 1994 consent which allows the marina parking to be used exclusively by members and staff of the marina, and from this I accept their submission that the management of users through gated access is consistent with the 1994 consent.
A previous appeal before Dixon SC was heard in this Court, Clipper’s Anchorage Pty Ltd trading as Soldiers Point Marina v Port Stephens Council [2024] NSWLEC 1087 (Clipper*’s Anchorage) whereby the same alterations and additions were proposed in Development Application 16-2019-8-1 (the 2019 DA), and any parking shortfall was proposed to be made up through a valet parking system. Dixon SC found at [46] that the reliance on a 40% uptake of the valet service by boat owners had not been interrogated by any recent member or traffic survey. She further found that the applicant’s reliance on historic information about parking demand rather than new traffic surveys meant that the Court did not have a reliable baseline from which to understand the traffic impact of the development (Clipper’*s Anchorage at [47]).
The key difference between the 2019 application and the current application before the Court is that an additional parking area, carpark 2, is proposed in an area that is currently used for dry boat storage. This is located to the north of the existing marina and adjacent to the proposed addition, and provides 28 new parking spaces. Additionally, this application is supported by a Parking Report by Arc Traffic + Transport dated 3 May 2024, which assesses the additional traffic generated by the proposed development, the parking needs of current members, and the likely traffic impacts of the proposed development. This assessment, and the accompanying boat owner survey, were undertaken on Good Friday and Easter Saturday in 2024, based on the historic boat owner usage patterns demonstrating that these days were representative of peak boat owner usage at this time of year (Ex A tab 24). Parking surveys were undertaken of all on and off-site parking areas within appropriate walking distance (approximately 400m) of the marina. This report finds that the peak parking requirement was 43 spaces.
The Council submits that the members survey and parking report is deficient, in that the observed peak capacity at Easter 2024 may have been impacted by the restaurant having been closed until just prior to the survey dates. They identify a further deficiency in that there is no documentation as to the peak requirements at other times of the year including the Christmas period.
The traffic experts then dispute whether parking requirements should be considered on the basis of 100% of this 43 space requirement to account for any potential variation to the surveyed numbers during peak periods, or 85% as per the industry standard established by Ausroads (Ex 3).
Whilst I accept the results of the traffic surveys, I also accept that there are potential variations during other peak periods that have not been accounted for in these surveys. I therefore accept the Council’s position of requiring the provision of parking spaces to meet 100% of the peak capacity, to account for this potential variation.
The impact of this however is negligible: when applying this conservative 100% rate, the evidence in the parking report at Ex 1 tab 24 and Ex 3 demonstrates that the proposed parking provision not only meets, but exceeds the peak demand. Further, on peak days both the valet parking and on-street parking within walking distance are likely to still be underutilised.
In addition to insufficient parking, the Council contends that the parking arrangements are inadequate. They submit that the Operational Plan of Management by Jeffrey d’Albora, the Director of Clipper’s Anchorage Pty Ltd dated 19 September 2025 (Ex C) (POM), is generic in its terms and does not clearly distinguish between the requirements and arrangements for visitors and boat owners. They submit that these arrangements do not account for the use of casual berths, kayak users, and non-members accessing the public facilities within the marina.
Key to this contention is the restricted access to car parks 1 and 2, in that the Council contends that the combination of public and private/member uses within the marina must be provided for in order for the parking to be considered adequate.
In response, Clipper’s Anchorage submit, and I concur, that the POM is adequate, and specific to the marina and its particular parking arrangements. It provides for visitors and casual berths. It does not need to provide for kayak users, as the kayaks at the marina are for the use of marina members. I also concur that the purpose of the on-site parking is principally for marina members. The alterations and additions in this application provide for additional member facilities, not public facilities, and controlling the additional parking allows for the marina to adequately accommodate the parking generated by this application. The provision of additional parking eliminates any need for members to park on the street, which is likely to improve the existing parking situation at Soldiers Point.
For these reasons, it is my considered opinion that the parking provision for the proposed development exceeds the requirements demonstrated by the parking surveys, and that the parking surveys upon which these conclusions are based are appropriate and sufficient.
The development application was adequately notified between 3 and 31 July 2024, and further notified between 24 July and 21 August 2025. 12 submissions were received during the first period, and 4 submissions during the second. Oral submissions were made by 3 residents at the commencement of this hearing on site, and a fourth by proxy. These concerns can be largely grouped as environmental impacts on the waterway and coastal environment, insufficient parking, and encroachment into a designated Aboriginal Place.
The Council has not raised any contentions relating to environmental impacts on the waterway and coastal environment. The proposed alterations and additions occupy an area of an existing slipway, and the proposed parking utilises an existing hardstand. The application does not propose to extend the existing hardstand. The Class 1 application (Ex A) is accompanied by several documents assessing the environmental impacts of the proposed development, including:
Seagrass Impact Assessment by Kleinfelder Australia Pty Ltd dated 6 June 2019
Seagrass Assessment by Bio-Analysis Pty Ltd dated 3 October 2023
Seagrass Addendum Report by Bio-Analysis Pty Ltd dated 3 October 2023
Aquatic Assessment by Coast Ecology dated 10 December 2018 (Aquatic Assessment)
Threatened Shorebirds Assessment of Significance by Gunninah dated 13 May 2019
From these documents, I am satisfied that the proposed development is not likely to cause any unacceptable environmental impact on the waterway or its ecology, including wetlands pursuant to the requirements of cl 7.9 of the Port Stephens Local Environmental Plan 2013 (PSLEP).
Under the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), the land is designated as Coastal environment area (s 2.10) and Coastal use area (s 2.11). Again, from the documents listed above at [27] and the Statement of Environmental Effects by Perception Planning dated 12 June 2024 (SEE), I have considered whether the proposed development is likely to cause an adverse impact on the aspects of the coastal environment area as listed in s 2.10(1), and the coastal use area as listed in s 2.11(1). From this, I am satisfied that the development is designed, sited and will be managed to avoid an adverse impact of the type referred to in s 2.10(1) and s 2.11(1)(a). I am further satisfied that the development is not likely to cause an increased risk of coastal hazards (s 2.12), and I have taken into consideration the relevant provisions of the Port Stephens Coastal Management Program 2024.
I also note that the application has been referred to the NSW Department of Primary Industries (Fisheries), as required under s 205 of the Fisheries Management Act 1994 (NSW) (Fisheries Act). This gives consideration to the environmental impacts of works below the mean high water mark. Concurrence was provided, with no objections to the proposed development subject to conditions which have been incorporated into the conditions of consent.
For these reasons, I am satisfied that the ecological and environmental impacts have been considered in the preparation of this application, and the necessary environmental precautions are in place. Subsequently, I am satisfied that the development is not likely to have an adverse effect on the environmental quality of the marine or coastal environment, and the objectors’ concerns have been addressed.
Issues of insufficient parking have been discussed in this judgment, noting that the Court only has power to consider the impacts of the application before the Court.
Regarding encroachment onto a designated Aboriginal Place, I note that the proposed car park 2 utilises an existing hard stand and existing paved access way. The access way benefits from an existing lease and, despite some submissions that this lease was invalidly granted, is not a matter that the Council has raised nor an issue that the Council upholds. The lease has been demonstrated to the Court in a title search within Exhibit B, and in these circumstances it is beyond the power of the Court in this matter to explore the conditions behind the granting of this lease. I therefore accept that the use of this existing driveway and hardstand is valid within this application.
Regarding impacts on items of Aboriginal significance, I refer to the Class 1 application which contains an Aboriginal Cultural Heritage Assessment Report by RPS Group dated 30 September 2021 (ACHA), and an addendum to the ACHA by Niche Environment and Heritage dated 3 October 2023. Finally, advice has been received from Heritage NSW confirming that an Aboriginal Heritage Impact Permit is not required, and recommending conditions which have been included in the agreed conditions of consent. From this, I am satisfied that the likely impacts of the development on items or places of Aboriginal heritage significance.
The site is zoned part W2 Recreational Waterways and part E1 Local Centre pursuant to PSLEP. Building works for the alterations and additions to the marina are proposed within the E1 zone, and development for the purpose of a marina is permitted with consent in this zone.
The marina meets the relevant objectives of the E1 zone by:
providing a range of retail, business and community uses that serve the needs of people who live in, work in or visit the area;
encouraging investment in local commercial development that generates employment opportunities and economic growth, and;
encouraging business, retail, community and other non-residential land uses on the ground floor of buildings.
PSLEP cl 4.3 sets a maximum height for the site of 8m. The proposed development exceeds this standard, with a height of 9.56m, which represents a variation of 17.06%. This variation occurs to a portion of the water-facing roofline. Accordingly, the application is accompanied by a request to vary this development pursuant to PSLEP cl 4.6, prepared by Perception Planning Pty Ltd dated 24 June 2025.
This request demonstrates firstly that compliance with the development standard is unreasonable or unnecessary because it meets the objectives of the Height of Buildings development standard. The height of the proposed addition is appropriate for the context and character of the area (objective 1) in that it does not exceed the existing building height, and is consistent with the 8m standard from street level. The hierarchy of centres and land use structure is also reflected in the building height (objective 2) so far as it is established in that the building reflects the structure and hierarchy already established by the existing marina and yacht club.
The request further demonstrates that there are sufficient environmental planning grounds to justify the non-compliance because the height exceedance represents a response to both the existing site topography and flood planning/tidal requirements. The visual impact of the additional height has been mitigated through architectural measures including roof form and the arrangement of massing on the site.
For these reasons, I am satisfied that the exceedance of the height of buildings development standard is acceptable in this case, pursuant to cl 4.6 of the PSLEP.
The site is identified as containing both Class 1 and 4 Acid Sulfate Soils. Pursuant to cl 7.1 of the PSLEP, an Acid Sulfate Soils Management Plan has been prepared in accordance with the Acid Sulfate Soils Manual, meeting the requirements of PSLEP cl 7.1 (3).
PSLEP cl 7.2 provides matters for consideration relating to earthworks. Based on the Geotechnical Investigation by JK Geotechnics dated 14 November 2018 (Ex A tab 13) (Geotechnical Investigation) and the SEE, I have considered the matters listed in cl 7.2(3) and am satisfied that the proposed earthworks are both minimal and acceptable.
PSLEP cl 7.6 states that consent must not be granted unless the consent authority is satisfied that all the listed essential services are available. As the site already features a functional marina, I am satisfied that all essential services are available.
Section 4.6 of the SEPP RH considers contaminated land. The application is accompanied by:
A Preliminary Environmental Screening by Environmental Investigation Services dated 30 November 2018 (Ex A tab 12),
The Geotechnical Investigation, and
A Preliminary Contamination Assessment by JM Environments dated 8 August 2023.
A Contamination and Acid Sulfate Soil Assessment by JM Environments dated 2 October 2023.
These documents identify that, although contamination sources have been identified, subject to the relevant conditions of consent the land is suitable for the purpose for which the development is proposed to be carried out, noting that this purpose does not change from the existing marina facility. From this, I am satisfied that the requirements of SEPP RH s 4.6 are met.
Before determining the application, pursuant to s 2.27 of the State Environmental Planning Policy (Primary Production) 2021, I must consider whether the development may have an adverse effect on oyster aquaculture development or a priority oyster aquaculture area.
The Aquatic Assessment states that short term turbidity from construction is the only likely impact, and that this can be managed through appropriate erosion and sediment control. From this, the Concept Erosion and Sediment Control Plan and the relevant conditions of consent, I am satisfied that this impact will be appropriately managed.
The parties jointly filed proposed conditions of consent, of which the majority were agreed between the parties. Proposed conditions (3)(b), (20) and (83) were disputed, and I address each here.
Condition (3)(b) requires a pedestrian footpath from Ridgeway Avenue to the subject site and Sunset Boulevarde. Clipper’s Anchorage request this condition be deleted as it is disproportionate to the impacts of the application. I concur with this position, as the new parking is in a different location to this proposed footpath. Further, Mr Reisch demonstrated in oral evidence that the continued use of the loop road to the marina as a shared access for pedestrians is of low risk and is acceptable.
For the same reason, and following this conclusion, I accept the version of proposed condition 20 proposed by Clipper’s Anchorage, detailing requirements for an approval under the Roads Act 1993 (NSW).
Condition 83 is regarding access to car parking. The Council proposes:
(83) Access to Car Parking - There are to be no barriers, fences or boom gates restricting access to Car Park 1. Car parking associated with these areas are to be freely accessible to all users of the site including the Marina and restaurant and cafe users.
(83) Access to Car Parking - The boom gates installed at Carpark 1 (Lot 197 DP 27084) shall be open to all users of the site including the marina, restaurant and café users between the hours of 6:00 pm and 11:00 pm seven (7) days per week except
from 23 December to 3 January every year
from Good Friday to Easter Monday every year
on public holidays
during the annual Sail Port Stephens event
The Court orders:
The appeal is upheld.
Development application DA 16-2024-291-1 for alterations and additions to the existing marina, including construction of a two-storey addition, partial demolition of existing slipway, and earthworks on land described as Lot 539 DP 823769, Lot 321 DP 636840, Lot 322 DP 636840, Lot 2071 DP 852662, Lot 1 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, and the use of 3/324 Soldiers Point Road, Soldiers Point, being Lot 3 in SP59025, as valet carparking for the Marina and the use of Lot 539 in DP 8237569 as carparking for the Marina, is determined by way of development consent.
All exhibits are retained except for Exhibit 6, which is returned.
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Annexure A (517 KB, pdf)
Clipper's Anchorage Pty Ltd
Port Stephens Council [2026] NSWLEC 1018