On a night where Port Stephens councillors approved a modification for the nine-storey residential development at 1 Yacaaba Street in Nelson Bay, the same 10 councillors refused a similar-sized development further up the road at 17-19 Yacaaba Street.
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Both developments are nine storeys high, both are just over 31 metres high and both were recommended for approval.
However, councillors at the May 24 meeting voted 8-2 to refuse the 17-19 Yacaaba Street proposal, forcing developer Rod Salmon to initiate legal action over the decision.
"We will just get on with other projects whilst it goes to the land and environment court. Unfortunately, that just adds to the selling prices for the buyer," Mr Salmon told the Examiner.
"The red tape and barriers to developing are just making apartments and developments more expensive for the buyers.
"We are a well funded family development company so continuing to hold these assets is not an issue. It's just part of doing business."
- ALSO READ: Nine-storey building ready to go in CBD
The majority of councillors cited the height limit breach as a major reason for voting to refuse the 17-19 Yacaaba Street proposal.
Councillors Ryan Palmer and Glen Dunkley voted in favour of the proposal. However, exceeding the height limit was justified according to council planners who recommended approval.
"There are sufficient planning grounds to justify contravening the height of buildings standard and compliance with the standard is unnecessary in the circumstances of this application. On this basis, the building height variation is supported," the planners report stated.
The Tomaree Ratepayers & Residents Association said there was a very important difference between the two proposals.
"The development at 1 Yacaaba St is only 51 cm higher than the already approved height (plus 1.6 per cent), the proposal for the site at 17-19 Yacaaba is 3.2 metres over the 28 metre height limit (plus 11.4 per cent variation and a full 2.9m along the northern wall)."
Mr Salmon, a prominent Port Stephens developer and owner of the idle crane in Church Street, lodged his DA seeking to construct a residential building comprising 24 units, commercial tenancy, strata division, basement parking, landscaping and associated civil works.
Mr Salmon, whose investments in the Bay include the Nelson Bay cinema and recently completed Talmora project, had applied for a 9-storey residential flat building comprising 24 units
- ALSO READ: Salmon apologises for idle CBD crane
A talking point for councillors was the penthouse apartment and communal area on the top floor.
"It's huge ... would have been easier if [the developer] scraped that top floor, if it was more modest I may have had a different view. On its merits it's clear it is unreasonable," Cr Giacomo Arnott said.
Cr Matt Bailey said he was worried "if we approve this with current height, then are we going to set a precedent for future developers".
Mayor Palmer said that while he wished all developers would comply with council's building codes, he was nevertheless happy to support the proposal in its current form.
"Whether the building height is 28m or 31m was really not going to make a difference [for me]."
Council resolved to refuse the DA on seven grounds, including it being inconsistent with LEP, inconsistent with variation principles (EP&A Act), inconsistent with building heights, negative impact on environment, site is unsuitable, and opposition from residents.
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