PLANNING Minister Anthony Roberts’ bid to head off a Land and Environment Court appeal over a $230 million Anna Bay “eco-tourist” project has failed after evidence “troublesome components” of the project might be dropped.
Mr Roberts applied to the court in January for a restricted hearing on whether Raphael Shin’s The Bay resort complied with the definition of “eco-tourist facility” under Port Stephens Local Environment Plan.
It followed an appeal by Mr Shin against a Department of Planning decision in November that The Bay did not meet the criteria for an “eco-tourist” facility under the plan and was prohibited on the Nelson Bay Road site at Anna Bay.
Mr Shin proposes a $230 million development with 148 hotel rooms, 288 units, undercover parking, a multipurpose theatre, dining and retail space and onsite biodiversity offsets package.
The Department of Planning said The Bay was not sensitively designed and located to minimise bulk and scale or its ecological impact.
During a hearing in March Acting Justice Simon Molesworth was told the proposal would substantially impact endangered ecological communities including saltmarsh and swamp oak, the adjoining Tilligerry Nature Reserve and result in a net loss of vegetation and estuarine habitat.
Lawyers for Mr Roberts argued for a hearing to determine if the proposal was an “eco-tourist facility” under the Port Stephens Local Environmental Plan. If the court ruled it wasn’t then the project would be prohibited within the zone and a full appeal of the council’s decision would not be required, the court was told.
Lawyers for Mr Roberts argued the restricted hearing would “achieve economies in time and expense in the resolution of the proceedings”.
Acting Justice Molesworth ruled the minister’s “optimism that a cheaper and quicker resolution is achievable” was “misplaced”.
It was “far from being straightforward” to determine whether a building or place was sensitively designed, he said.
“There is no hard and fast rule as to what may or may not be sensitive,” he said.
It was also reasonable to expect that because it was a “significantly expensive” proposal, and “with so much at stake”, Mr Shin would pursue the main court appeal regardless of the outcome of the minister’s preferred restricted hearing, Acting Justice Molesworth said.
Mr Shin’s lawyers also made it “clear to the court that it was within contemplation that ‘troublesome components’ of the proposal” could be removed “if the stakes are high enough”, he said.
The court heard a proposed entertainment area within the development was prohibited under the local environmental plan.
A date is to be set for the full appeal.