The DA for the 80-apartment building is on the Church Street site where the crane has dominated the Nelson Bay skyline for the past four years.

A council spokesperson told the Examiner that application lodged with council had proposed a development variation of 29 per cent.

"The proposed maximum height is 36.157 metres [while the] applicable building height limit for the site is 28 metres. A Clause 4.6 variation request must be provided for any application proposing any additional height over the applicable height limit."

Tomaree Residents & Ratepayers Association members say the proposed building "is simply too high".

President Ben van der Wijngaart said the height variation had defied the clear intent of council in setting new height limits less than a year ago, after more than a decade of community consultation and many expert studies.

"This limit was adopted to protect the character and natural setting of Nelson Bay township and any variation should be minimal and only granted in exceptional circumstances," he said.

"A critical test in the planning law is to demonstrate why complying with the height limit would be unreasonable or unnecessary.

"This application fails to make such a case. If the applicant is prepared to reduce the height of the building so that the proposal complies with the recently adopted limits, it could achieve community acceptance."

Mr Salmon said that new proposed height represented a significantly reduced 29 per cent variation to the height limit, "with the exceedance relating to a small footprint containing landscaped terraces, wet edge pool, communal areas and second level of penthouse apartments".

"The existing DA is the height we are always referring to. That's what we are already allowed to build. We have worked to that height but we added the wing detail on top of the building to give some interesting detail. The wing is a reference to the white bellied sea eagle that is local to the area," he said.

"The new height limits from three years ago are not that relevant to our design, as we have an existing DA with 31.5 m approval. The new design had come about as we were able to purchase the neighbouring site after the last DA was approved. I felt that an integrated development over the complete site was a better outcome. We are well under the allowable floor space ratio, setbacks, overshadowing, etc."

The DA would be ultimately referred to a meeting of council for determination.

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