Port Stephens Council’s recent approval of a high density high-rise apartment building at 11-13 Church St – at 33 metres more than twice the official height limit for the site, may be a game-changing move in the long-running struggle to keep the low-rise character of this unique coastal town, nestled in a natural amphitheatre surrounded by wooded hills.
We’ve been here before!
The local community has for more than 30 years fought off successive attempts to allow high rise apartments in and around the town centre. Key battles were over:
- A proposed 10-12 storey re-development of the Seabreeze hotel and adjacent sites in 2007-08, which was fiercely resisted by the community. In mid-2008, the owner admitted defeat and the sites were subsequently sold off separately, with the new owners of the hotel and motel subsequently making major and welcome investments in renovations without the need for any height increase.
- A bid by Nelson Bay Diggers in 2008 to redevelop its Shoal Bay Road Club with a 7 storey tower, and a subsequent proposal in 2015 by the renamed Wests Diggers for two towers of 8 and 10 storeys. While outside the town centre, the Club land is located on the eastern ridgeline and tower buildings would have dominated the skyline. Neither attempt was successful.
Mayor (formerly Councillor) Bruce Mackenzie and former Mayor and Councillor Bob Westbury have been consistent vocal proponents of high-rise buildings in Nelson Bay. Other Councillors have been inconsistent in their views, apparently torn between the community’s clear desire to retain the low-rise character of the town and what they are told (by developers and their allies) is the only way to revitalise the centre.
In the most recent debates (over the Church St apartments), a clear majority of Councillors bought the latter case, although even some of them are now on record as saying they would not support high buildings in the lower parts of the town centre. It won’t be long before we see how serious they are!
Increased height slips through – but mostly not fatal.
While never relaxing the strict official height controls, which have remained at 15 metres, Council has approved a number of developments that exceed those limits:
- Way back in the mid-1980s, Nelson Towers – a 6 storey apartment and commercial complex across the northern end of the town centre, set an unfortunate precedent and effectively blocked views from elsewhere in the ‘bowl’ to the foreshore.
- In the late 1990s the 7 storey Landmark apartment complex between the Bowling and Golf Clubs was approved. This at least had the merit of being located up against the wooded Kunara Hill, where there is general agreement that some extra height is compatible with the town character.
- In 2014, Council gave approval for a redevelopment of the Magnus Resort on the ridgeline northeast of the town centre, with two towers of 7 and 8 storeys reaching 25m – 65% more than the LEP limit (An earlier 3 tower plan with the highest building reaching 33m (11 storeys) was withdrawn). The 2014 approval was partly justified by the proposed inclusion of a major conference facility. The developer has subsequently failed to get approval for a change to allow only the residential tower to be built, without the public benefit of the conference centre.
Since 2000, a number of other apartment and/or commercial buildings have been approved in the town centre and vicinity which exceed the 15m height limit, but none by more than 2m other than the approval given in the early 2000’s to a previous proposal for 11-13 Church St, for 25 units reaching 18m.
Subsequent attempts by the then owner of 11-13 Church St to gain approval for variations, variously of up to 41 units and 23.5m height were either refused or withdrawn, which is ironic (and must be deeply galling to the previous owner) in light of the recent decision.
Some but not all of the other approvals were taken up and the buildings completed, including the Cote D’Azur at 61 Donald St, the Lure Apartments at 19-23 Church St and the Aqua Apartments at the eastern end of Tomaree St.
We note that several applications have recently been lodged for apartment buildings (e.g. at 16 Church St and 65-67 Donald St), bidding for only modest variation of the height limit. These proposals demolish the argument that only very high buildings are viable.
Strategic plans – enormous effort largely wasted
While all these individual proposals were being considered, Council initiated processes to supposedly take a more strategic view.
In 2007 Council commenced a review of the Nelson Bay Development Control Plan (DCP), in a project also badged Nelson Bay 2030, with ‘pressure to vary the … height controls …’ flagged as a key stimulus. Community workshops late in the year were followed by the release of a Draft Nelson Bay 2030 Strategy (from consultants Rohan Dickson and Associates), and a revised 2030 Strategy went on exhibition in June-July 2008. These 2007-08 plans flagged two sites – The Seabreeze Hotel and the Donald St East car park as possible locations for buildings of up to 12 storeys, but this met with major resistance from community group including TRRA.
The next proposals came in an October 2009 report by Patrick Partners. This proposed significantly increased density, with an expansion of the area in which 15m (5 storey) buildings would be allowed to include the entire foreshore/marina, with up to 12 storeys south of Dowling St.
Again, there was widespread and significant opposition, and the process highlighted the need for a better community voice. In October 2009 EcoNetwork Port Stephens, the Tomaree Ratepayers and Residents Association (TRRA), the Nelson Bay and District Business Chamber, Nelson Bay Town Management and Port Stephens Tourism came together to form a Nelson Bay Town Centre and Foreshore Advisory Group (NBTFAG). Over the next three years NBTFAG engaged with Port Stephens Council and the Department of Lands (which controls the marina and foreshore land).
In August 2010 Council adopted the Nelson Bay Policy for Future Development of the Town Centre and Foreshore Planning Principles. Action proposed for Principle 10 was to:
- Promote low to mid-rise buildings uniformly across the town centre, with the potential for additional height if needed at the upper levels of the town centre…’, and
- Additional height may be considered at the southern edge of town shielded by the backdrop of Kunara Hill
A lengthy further process in which the NBTFAG was closely involved led to a consensus and the adoption by Council, in 2012 of the Nelson Bay Town Centre and Foreshore Strategy, with an accompanying Implementation Programme. This included a continuation of the 15m default height limit in the town centre, but with a ‘variation provision’ to allow up to 2 extra storeys in exceptional circumstances, in exchange for ‘outstanding design excellence’ and ‘strategic public benefit’.
Unfortunately, Council has not taken the next obvious steps of incorporating height limits and floor space ratios (FSRs) from the Strategy into the Local Environmental Plan (LEP) and Development Control Plan (DCP), despite the opportunity presented by reviews of both plans in the next few years, leading to a new Port Stephens Local Environmental Plan 2013 and a new DCP 2014. This has meant that the Strategy has failed to provide any meaningful controls.
In 2016, Council initiated a review of the 2012 Strategy, and in early 2017 released a Discussion Paper, which included a justification for allowing higher buildings in the town centre. Based on questionable economic modelling, and a misleading representation of the variation provisions adopted in 2012, the Paper proposed a general height limit of 24.5m (7 storeys) throughout the town centre, but also a variation mechanism to go higher, without any upper cap.
These proposals have met with major opposition. A public meeting attended by 200 people overwhelmingly rejected a high-rise future, and even a well-attended business chamber meeting expressed significant reservations. There have been at least a hundred submissions and when these are reported to Council in mid-2017 it will be very surprising if most do not oppose high rise development in the town centre.
A new umbrella organisation, Nelson Bay Now, was formed in 2016 as a successor to the earlier NBTFAG and with the same groups as members. Once again, while views vary on exact height limits, there is a strong consensus view that the character of the town must be maintained and that very tall buildings are not compatible with that character.
Council conflict of interest
While one part of Council – the Strategic Planning section – has been progressing the Strategy Review, another part – the Commercial Development section, has been negotiating with developers about the future of the two Council-owned car park sites in the town centre (Donald St east and West). While details of the negotiations remain secret, it is common knowledge that heights of between 14 and 21 storeys have been canvassed.
While Council maintains that there is no connection between the two processes, it is difficult to believe that the strategic planning review is not being influenced by the interests of Council as the owner of the car parks, and this suspicion is borne out by the clear preference in the Review Discussion Paper for major height increases.
Apart from Council’s secret negotiations for the car park sites, the major threat to the character of Nelson Bay is now the precedent set by the Church St approval. TRRA has argued that Council will now find it almost impossible to refuse other applications for developments that exceed height limits, even if new limits are set in a revised Strategy and then incorporated in the LEP and DCP.
Council itself, in the recent Strategy Discussion Paper, admits the likely precedent effect:
‘For example, the variation of 7m (46%) for the approved development at 29-45 Magnus Street, Nelson Bay sets the precedent for similar variations to occur at the Development Assessment Stage and has the potential to reduce the very certainty that development standards are meant to provide in terms of property values, views, over-shadowing, prevailing winds, etc. (p.29)’
While the variation clause in all LEPs (Clause 4.6) potentially allows for any variation from a development standard, State Government guidance and court precedents, as well as common sense, suggest it should be used sparingly and conservatively – otherwise why bother setting a standard, such as a height limit, in the first place?
Other DAs for the town centre have made a case under Clause 4.6 for modest variations of standards, including height limits, which is an appropriate use of the Clause.
But by accepting a Clause 4.6 argument to allow the more than doubling of the current height limit at 11-13 Church St, Council has signalled that it has effectively abandoned its height controls. Owners of other sites in the town centre (and elsewhere!) can now be expected to queue up for similar variations, and to challenge in court any attempt to enforce even new standards, such as for height or density (FSR) that emerge from the Strategy Review.
TRRA fears that the Church St approval may have fatally undermined any future attempt to maintain control over building heights in Nelson Bay. However, we are not throwing in the towel. The Strategy Review remains an opportunity for the local community to send a very clear message as to the preferred character of the town.
But it will require a rejection of the proposed increase of the default height limit to 24.5m (7 storeys) for the entire town centre, and it will take more than general guidelines and vague assurances about quality design to stop developers challenging even the default limits.
The 11-13 Church St experience shows how useless such general guidelines would be – Council ignored the adverse opinion of an independent design panel, and bizarrely accepted that the simple commitment to build anything on a long vacant site represented a major public benefit.
If a revised Strategy is to provide any protection for the remaining character of the town it will need to lead to clear limits on height and density, less than those proposed in the Discussion Paper. It will also need to lead to rigorous tests for ‘variations’ being incorporated in the LEP and DCP instruments – not just left to advisory Guidelines, and will require Councillors and staff to promote and enforce the standards in a way they have not in the past. Only in this way will the community, landowners and developers have the consistency and predictability they deserve.
The tone of the Discussion Paper suggests that Council is already preparing the ground for major increases in building height and density, not just in the town centre but also along the sensitive ridge lines to the east and west. Even without the conflict of interest inherent in Council’s ownership of the car park sites, TRRA cannot see how this reflects a broad community consensus that the low-medium rise character of the town be maintained.
It is time for concerned local residents and ratepayers to stand up and be counted – please get involved in the next round of consultation on the Nelson Bay Strategy later this year.
For more information, contact TRRA’s planning team: Nigel Waters firstname.lastname@example.org and 0407 230 342; John James email@example.com and 0447 158 810, or Steve Latta firstname.lastname@example.org and 0417 470 469.