Agenda of Ordinary Meeting

Ordinary Meeting

Meeting Date: Tuesday, 28 May, 2019

Location: Council Chambers, City Administrative Building, Bridge Road, Nowra

Time: 5.00pm

Membership (Quorum - 7)

All Councillors

Please note: The proceedings of this meeting (including presentations, deputations and debate) will be webcast and may be recorded and broadcast under the provisions of the Code of Meeting Practice. Your attendance at this meeting is taken as consent to the possibility that your image and/or voice may be recorded and broadcast to the public.

Agenda

1. Acknowledgement of Traditional Custodians

2. Opening Prayer

3. Australian National Anthem

4. Apologies / Leave of Absence

5. Confirmation of Minutes

· Ordinary Meeting - 30 April 2019

6. Declarations of Interest

7. Call Over of the Business Paper

8. Presentation of Petitions

9. Mayoral Minute

Mayoral Minute

MM19.9....... Mayoral Minute - Trial Change of Arrangements for Public Access (Deputations)........................................................................................................................ 1

10. Deputations and Presentations

11. Notices of Motion / Questions on Notice

Notices of Motion / Questions on Notice

CL19.127..... Rescission Motion - CL19.123 Outcome of Industry Forum - Design Review Panel for Shoalhaven..................................................................................................... 3

CL19.128..... Notice of Motion - CL19.123 Outcome of Industry Forum - Design Review Panel for Shoalhaven..................................................................................................... 4

CL19.129..... Notice of Motion - Support to Creative Company.......................................... 5

CL19.130..... Notice of Motion - Voluntary Compensatory Tree Planting Policy - Proposal 8

CL19.131..... Notice of Motion - Collingwood Beach Dunecare Group - Formation........... 9

CL19.132..... Notice of Motion - Mobile Food Vans........................................................... 10

CL19.133..... Notice of Motion - Shoalhaven Heads Pump Track..................................... 11

CL19.134..... Notice of Motion - Millards Creek, Ulladulla - Gross Pollutant Traps.......... 13

12. Committee Reports

CL19.135..... Report of the Strategy & Assets Committee - 14 May 2019........................ 14

SA19.53...... March 2019 Quarterly Budget Review

SA19.54...... Jervis Bay Maritime Museum - Long Term Management Agreement

SA19.55...... One-off Crown land vesting application - Formalisation of main access to Integrated Emergency Management Centre (IEMC) and Nowra Racing Complex

SA19.56...... Acquisition of Lot 86 DP 29970, Unnamed Road Nowra Hill for the Western Bypass Corridor

SA19.59...... Notification to Minister for Lands & Forestry of appointed Council Native Title Manager

SA19.62...... Refund Request - Fee Waiver - Shoalhaven Neighbourhood Services Inc - DA17/1741 and CD18/1535

SA19.65...... Acquisition of Easement - Sewer Purposes - South Nowra

CL19.136..... Report of the Shoalhaven Tourism Advisory Group - 6 May 2019.............. 17

TA19.19....... River Festival Committee Update

CL19.137..... Report of the Inclusion & Access Advisory Group - 6 May 2019................. 18

IA19.22........ National Disability Strategy - Federal Government Review

IA19.21........ Ulladulla Subway and Services NSW accessible parking investigation

CL19.138..... Report of the Youth Advisory Committee - 8 May 2019.............................. 19

YA19.4........ Youth Advisory Committee Action Plan

YA19.5........ Improving Nowra CBD for Young People

YA19.8........ Bus Overcrowding and Safety - Write to State Member

CL19.139..... Report of the Shoalhaven Traffic Committee - 14 May 2019...................... 27

TC19.21...... Isa Rd WORRIGEE - Lot 2 DP 1130415 -New Commercial - construct neighbourhood shopping village (PN 3531)

TC19.22...... Give Way Signage- Line Marking- Patonga Street Nowra (PN 3540)

TC19.23...... Apex Park Berry - Accessible Amenities - Line marking and Signage (PN 3541

TC19.24...... Bunnings Group Ltd - 145 & 159 South Nowra - Lot A DP 403839 (PN 3544)

TC19.25...... Bus Zone Relocation - 82 Greenwell Point Rad - Greenwell Point (PN 3545)

13. Reports

Finance Corporate & Community Services

CL19.140..... Code of Meeting Practice - Adoption and Summary of Submissions.......... 29

CL19.141..... Code of Conduct and Procedures - Adoption.............................................. 32

CL19.142..... Investment Report - April 2019.................................................................... 37

Assets & Works

CL19.143..... TC19.20 - Proposed Line Marking - The Lake Circuit Culburra Beach....... 43

CL19.144..... Tenders - Management and Operation - Holiday Haven Bendalong.......... 44

CL19.145..... Tenders - Management and Operation - Holiday Haven Lake Conjola...... 46

Planning Environment & Development

CL19.146..... Development Options DA17/2435 - Removal of St Georges Basin Service Lane...................................................................................................................... 48

CL19.147..... RD18/1007 – 315 Princes Highway Bomaderry – Lot 2 DP 777260........... 50

CL19.148..... Petition - Reinstatement - Sustainable Futures Committee - Natural Resource & Floodplain Management Committee............................................................ 72

Shoalhaven Water

CL19.149..... Sustainable Energy Policy............................................................................ 75

CL19.150..... Tenders - Shoalhaven Water Pump Procurement....................................... 81

14. Confidential Reports

Committee Reports

CCL19.8...... Report of the Strategy & Assets Committee - 14 May 2019

CSA19.3...... Proposed Disposal of Vacant Land - St Georges Basin.

Local Government Act - Section 10A(2)(c) - Information that would, if disclosed, confer a commercial advantage on a person with whom the Council is conducting (or proposes to conduct) business.

There is a public interest consideration against disclosure of information as disclosure of the information could reasonably be expected to reveal commercial-in-confidence provisions of a contract, diminish the competitive commercial value of any information to any person and/or prejudice any person’s legitimate business, commercial, professional or financial interests.

CSA19.4...... Proposed Acquisition of Open Space Land identified in the Moss Vale Road South Urban Release Area

Local Government Act - Section 10A(2)(c) - Information that would, if disclosed, confer a commercial advantage on a person with whom the Council is conducting (or proposes to conduct) business.

CSA19.5...... Shoalhaven Affordable Housing Strategy -
Property Acquisition Matters

Local Government Act - Section 10A(2)(c) - Information that would, if disclosed, confer a commercial advantage on a person with whom the Council is conducting (or proposes to conduct) business.

Reports

CCL19.9...... Tenders - Management & Operation - Holiday Haven Bendalong

Local Government Act - Section 10A(2)(d)(i) - Commercial information of a confidential nature that would, if disclosed prejudice the commercial position of the person who supplied it.

CCL19.10.... Tenders - Management & Operation - Holiday Haven Lake Conjola

Local Government Act - Section 10A(2)(d)(i) - Commercial information of a confidential nature that would, if disclosed prejudice the commercial position of the person who supplied it.

CCL19.11.... Tenders - Shoalhaven Water Pump Procurement

Local Government Act - Section 10A(2)(d)(i) - Commercial information of a confidential nature that would, if disclosed prejudice the commercial position of the person who supplied it.

Ordinary Meeting – Tuesday 28 May 2019

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CL19.140 Code of Meeting Practice - Adoption and Summary of Submissions

HPERM Ref: D19/149783

Group: Finance Corporate & Community Services Group

Section: Human Resources, Governance & Customer Service

Attachments: 1. Draft Code of Meeting Practice (POL19/27) (under separate cover) ⇨

Purpose / Summary

To adopt the Draft Code of Meeting Practice that was placed on Public Exhibition and to report on the submissions received.

Recommendation

That Council

1. Note the details of the submissions received during the public exhibition period as outlined in the report

2. Adopt the Draft Code of Meeting Practice provided as attached to the Report.

Options

1. As Recommended

Implications: Council is required by the OLG to adopt a Model Code of Meeting Practice by 14 June 2019.

2. Amendments be made to the Code of Meeting Practice prior to adoption.

Implications: In accordance with the provisions of Section 362 of the Local Government Act, further amendments must be publicly advertised if they make substantial change or propose to amend mandatory provisions of the Model Code. Any resolution to amend the Code must also include direction as to advertisement of the proposed changes to the Code.

Background

At the Council Meeting held on 12 March 2019, Council considered a report outlining the Draft Code of Meeting Practice and resolved (MIN19.184)

“That

1. In accordance with Section 361 of the Local Government Act, the Draft Code of Meeting Practice be placed on public exhibition to obtain community feedback, with an amendment to the Note after Clause 5.17 on page 15 as follows:

Note: Clause 15.14 authorises chairpersons to expel persons other than councillors from a council or committee meeting.

2. A report be provided at the completion of the exhibition period, outlining the submissions received and providing a Final Draft Code of Meeting Practice for adoption by the Council prior to 14 June 2019.”

As outlined in the previous report to the Council, the Draft Code reflects the outcome of a Councillors Workshop on the Code of Meeting Practice which was held on 21 February 2019.

As prescribed by the Office of Local Government, Council is required to adopt the Code by 14 June 2019, being (6) six months since the commencement of the Model Code.

In accordance with the requirements and resolution of the Council, the Draft Code of Meeting Practice was placed on public exhibition for 42 days being from 9 April 2019 to 21 May 2019

Submissions:

During the submission process, the Draft Policy was viewed 70 times. The Draft Code of Meeting Practice together with the Draft Code of Conduct were also included in the 2 May 2019 edition of the Council’s Newsletter and 44 of the 2,300 subscribers (0.2%) clicked on the link to view the Codes.

Two (2) submissions were received from members of public with respect to the Draft Model Code and are provided below:

Submissions

It is important to have a robust Model Code of Meeting Practice so that the disgusting, disrespectful and bullying behaviour that some Councillors regularly display can be stopped.

I commend Council in the development of this Code of Conduct and trust that it will be endorsed and applied effectively.

Both comments reflect the desire to ensure appropriate behaviour at Council meetings, one (1) indicating that observed conduct is not satisfactory. Although the submissions do not identify any amendments to be made to the Draft Code, the Council needs to remain mindful that the Meetings are now publicly accessible via webcasting and that strict adherence to the Code of Meeting Practice and the Code of Conduct is required.

In this context, there are several non-mandatory provisions of the Model Code which the Council has indicated they do not wish to include in the Draft, and these may need to be revisited in the future to ensure Shoalhaven City Council Meetings are aligning with best practice. Examples include: Limits to Mayoral Minutes and Notices of Motion for expenditure of funds where the works and services requested are not included in the Council’s current Operational Plan; Deputations vs. Public Access Meetings; Pre- Meeting Briefing Sessions; and the Order of Business.

By way of reminder, there are several key changes between the Council’s Current Code and the Draft Code of Meeting Practice. They can be summarised as follows:

· Clauses 3.29 and 9.5 – A Motion of dissent cannot be moved against a ruling of the Chairperson on whether a matter is of great urgency under cl.3.27(b) or under cl.9.3(b).

· Clause 9.9 – A Mayoral Minute must not be used to put without notice matters that are routine and not urgent or matters for which proper notice should be given because of their complexity.

Note: This will require Mayoral Minutes to be included and distributed with the business paper unless it is a new matter of such urgency it requires consideration and a decision before the next scheduled Ordinary Meeting.

· Clause 10.24 – Despite clause 10.22 (which entitles a councillor to speak for no longer than 5 minutes), the council may resolve to shorten the duration of speeches to expedite the consideration of business at the meeting.

· Clause 15.3 – Points of Order – A point of order must be taken immediately it is raised. The Chairperson must suspend the business before the meeting and permit the councillor raising the point of order to state the provision of this Code they believe has been breached.

Note: This implies that councillors will need to be conversant with the Code in detail to be able to quote relevant provisions. Also note the difference between “Points of Order” and “Questions on Order”.

· Clauses 18.2 and 18.3 – If the business of the Council does not conclude by 9pm a resolution may be passed to extend the meeting. If the meeting remains unfinished at 10pm the Chairperson must either defer all remaining items for consideration at the next meeting or adjourn to another meeting (at time and date fixed by the Chairperson).

Community Engagement

Submissions from the public were called via Council’s ‘Get Involved’ page which was for the prescribed period from 9 April 2019 until 21 May 2019.

Policy Implications

Advertisement and adoption of the Code of Meeting Practice is required to be in accordance with the relevant provisions of the Local Government Act provided below:

Section 361 and 362 of the Local Government Act 1993 states:

361 Preparation, public notice and exhibition of draft code

(1) Before adopting a code of meeting practice, a council must prepare a draft code.

(2) The council must give public notice of the draft code after it is prepared.

(3) The period of public exhibition must not be less than 28 days.

(4) The public notice must also specify a period of not less than 42 days after the date on which the draft code is placed on public exhibition during which submissions may be made to the council.

(5) The council must publicly exhibit the draft code in accordance with its notice.

362 Adoption of draft code

(1) After considering all submissions received by it concerning the draft code, the council may decide:

a. to amend those provisions of its draft mandatory code that are non-mandatory provisions, or

b. to adopt the draft code as its code of meeting practice.

(2) If the council decides to amend its draft code, it may publicly exhibit the amended draft in accordance with this Division or, if the council is of the opinion that the amendments are not substantial, it may adopt the amended draft code without public exhibition as its code of meeting practice.

If the Council does not adopt a new Code of Meeting Practice by 14 June 2019, any provisions of the council’s adopted meeting code that are inconsistent with the mandatory provisions of the Model Meeting Code prescribed under the Regulation will automatically cease to have any effect to the extent that they are inconsistent with the mandatory provisions of the Model Meeting Code.

Ordinary Meeting – Tuesday 28 May 2019

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CL19.141 Code of Conduct and Procedures - Adoption

HPERM Ref: D19/149833

Group: Finance Corporate & Community Services Group

Section: Human Resources, Governance & Customer Service

Attachments: 1. Draft Code of Conduct (POL18/24) (under separate cover) ⇨

2. Draft Code of Conduct Procedures (POL18/25) (under separate cover) ⇨

Purpose / Summary

1. To adopt the Draft Code of Conduct that was placed on Public Exhibition and to report on the submissions received.

2. To adopt the Model Code of Conduct Procedures.

Recommendation

That Council

1. Note the details of the submissions received during the public exhibition period of the Draft Code of Conduct as outlined in the Report

2. Adopt the Draft Code of Conduct (POL18.24) as attached to the Report

3. Adopt the Draft Procedures for the Administration of the Code of Conduct (POL18/25) as attached to the Report.

Options

3. As Recommended

4. That amendments be made to either the Code of Conduct or the Procedures before adoption.

Implications: In adopting a new code of conduct and procedures, Council may include provisions that are supplementary to those contained in the Model Code of Conduct and Procedures. Council may also impose more onerous requirements than those prescribed under the Model Code of Conduct. However, Council must not dilute the standards prescribed under the Model Code of Conduct.

Background

At the Council Meeting held on 26 March 2019, Council considered a report outlining the Draft Code of Conduct and resolved (MIN19.185)

“That

1. The Draft Code of Conduct (Attachment 1) be placed on public exhibition for a period of 28 days to obtain community feedback.

2. A report be provided at the completion of the exhibition period, outlining the submissions received and a Final Draft Code of Conduct and Procedures for adoption by the Council by 14 June 2019.”

As outlined in the previous report to the Council, the Draft Code of Conduct and Procedures reflect the outcome of a Councillors Workshop on the Model Code of Conduct and the Procedures which was held on 21 February 2019.

As prescribed by the Office of Local Government, Council is required to adopt a Code of Conduct and Procedures by 14 June 2019, being (6) six months since the commencement of the Model Code.

In accordance with the requirements and resolution of the Council, the Draft Code of Conduct was placed on public exhibition from 9 April 2019 to 9 May 2019.

Code of Conduct - Submissions:

During the submission process, the Draft Code of Conduct and Procedures on the ‘Get Involved’ webpage was visited 105 times by 97 different people. The Draft Code of Conduct together with the Draft Code of Meeting Practice were also included in the 2 May 2019 edition of the Council’s Newsletter and 44 of the 2,300 subscribers (0.2%) clicked on the link to view the Codes.

The Draft Code of Conduct was placed on Public exhibition from 9 April to and open to submissions until 9 May 2019. A total of five (5) submissions were received.

Three (3) submissions were received from members of public with respect to the Draft Code and are provided below in Table (1)

TABLE 1

Submission Comment

I have read with interest the general conduct rules and applaud them. Who will make sure that the behaviour of Councillors follow these rules?

I appreciate that Council is reviewing the Code of Conduct. My overarching comment is that my observation, when attending Council meetings, is the notable lack of respect and decorum in meetings and lack of respect shown to the Mayor. I am saddened by this and no Code of Conduct will help unless every Councillor takes responsibility for his/her behaviour. You represent our citizens and we deserve to see better behaviour from our leaders.

I commend Council in the development of this Code of Conduct and trust that it will be endorsed and applied effectively. I am particularly glad to see the section on Public Comment in going some way to curbing improper use of Media outlets as a tactical device during discussion and debate of issues. Also, the clauses dealing with bullying; now becoming well established in the workplace more widely it is essential that the same rules apply to Councillors when engaged in meeting debates. Holding public office does not exclude the application of decency and courtesy, or endorse pomposity and grandstanding, all too evident at meetings of late.

In summary the submissions made comment commending the Code with respect to

· management of the conduct of Council Officials, particularly in relation to conduct during meetings

· the provisions with respect to public comment

and sought advice on how Councillors will be held accountable to the Code. These comments did not identify or suggest amendments.

A further two (2) submissions were received which made enquiries on the content of the new Code. Those submissions and responding comments are outlined in Table 2 below:

TABLE 2

Submission

Responding Comment

Do Sections 3.23-3.27 apply to a Council official giving evidence in a court situation? I think it would be inappropriate if it could be applied. For example:

1. A Council officer must be able to give expert evidence without being bound to Council's adopted position in accordance with the rules of the court

2. A Council officer must be able to give truthful evidence of events, even if the evidence will adversely affect Council's reputation.

I recommend some additional text to explicitly exclude evidence given in court this from the definition of "public comment".

It is not considered that providing evidence to a court or tribunal would meet the definition of public comment. The law requires the provision of truthful evidence in all such situations and this is supported by Sections 3.1 and 3.2 of the Code.

It is not considered that an additional provision as suggested is required.

See below a few items that may not be in the code of conduct, I assume they are obviously in a different form

· Obligations of staff

6.3 The General Manager is responsible for the efficient and effective operation of Council’s organisation and for ensuring the implementation of the decisions of Council without delay.

· 6.4 Members of staff of Council must:

a. give their attention to the business of Council while on duty

b. ensure that their work is carried out efficiently, economically and effectively

c. carry out lawful directions given by any person having authority to give such directions

d. give effect to the lawful decisions, policies, and procedures of Council, whether or not the staff member agrees with or approves of them

e. ensure that any participation in political activities outside the service of Council does not conflict with the performance of their official duties.

· Obligations during meetings

6.5 You must act in accordance with Council’s Code of Meeting Practice and the Local Government (General) Regulation 2005 during Council and committee meetings.

6.6 You must show respect to the chair, other Council officials and any members of the public present during Council and committee meetings or other formal proceedings of Council.

· The previous Section 6.3 is covered by the new provision at 7.4 in the Draft Code

· The obligations in relation to meetings are now covered at Sections 3.19 to 3.22 in the Draft Code. The new Model Code has replaced obligations for ‘Respect’ with more defined behaviours such as bullying, disruptive behaviour and disorder. The meeting behaviour provisions have been removed from the Code of Meeting Practice and the Code of Conduct outlines the obligations for Council officials during meetings.

No amendments are proposed to the Draft Code or Procedures in response to the submissions.

Procedures for the Administration of the Code of Conduct

The Procedures recommended to be adopted by the Council reflect the Model Code of Conduct Procedures without amendment.

There are two (2) administrative appointments related to the adoption of the procedures:

1. The Establishment of a panel of Conduct Reviewers

In accordance with Clause 3.1 to 3.9 of the Procedures the council must appoint a conduct review panel every four (4) years. The Council appointed the current panel on 22 August 2017. A further Expression of Interest process for a Conduct Review Panel will be undertaken prior to the expiration of the four (4) year period (i.e. before 22 August 2021) or should it be identified a new panel is required in the interim.

2. The Appointment of a Complaints Coordinator

In accordance with Clause 3.17 of the Procedures the General Manager is required to appoint a Complaints Coordinator. Since the commencement of the last Model Code in 2013, the Public Officer has been appointed as the Council’s Complaints Coordinator.

Community Engagement

The Draft Code of Conduct which includes amendments to the Model Code was placed on Public Exhibition via Council’s ‘Get Involved’ page from 9 April 2019 until 9 May 2019.

The Draft Procedures recommended to be adopted by the Council reflect the Model Code of Conduct Procedures without amendment.

Policy Implications

Adoption of the Code of Conduct and Procedures are required to be in accordance with the relevant provisions of the Local Government Act provided below:

“440 Codes of conduct

(1) The regulations may prescribe a model code of conduct (the model code) applicable to councillors, members of staff of councils and delegates of councils.

(2) The regulations may provide that the provisions of the model code relating to the disclosure of pecuniary interests are also to apply to the following persons:

(a) a member of a committee of a council (including the Audit, Risk and Improvement Committee),

(b) an adviser to a council.

(3) A council must adopt a code of conduct (the adopted code) that incorporates the provisions of the model code. The adopted code may include provisions that supplement the model code.

(4) A council’s adopted code has no effect to the extent that it is inconsistent with the model code as in force for the time being.

(5) Councillors, members of staff and delegates of a council must comply with the applicable provisions of:

(a) the council’s adopted code, except to the extent of any inconsistency with the model code as in force for the time being, and

(b) the model code as in force for the time being, to the extent that:

(i) the council has not adopted a code of conduct, or

(ii) the adopted code is inconsistent with the model code, or

(iii) the model code contains provisions or requirements not included in the adopted code.

(6) A provision of a council’s adopted code is not inconsistent with the model code merely because the provision makes a requirement of the model code more onerous for persons required to observe the requirement.

(7) A council must, within 12 months after each ordinary election, review its adopted code and make such adjustments as it considers appropriate and as are consistent with this section.

(8) (Repealed)

(9) This section applies to an administrator of a council (other than an administrator appointed by the Minister for Primary Industries under section 66) in the same way as it applies to a councillor.”

“440AA Administration of code of conduct

(1) The regulations may prescribe a procedure (the model procedure) for administering the model code.

(2) The model procedure is to set out the procedures for dealing with alleged contraventions of the model code.

(3) A council must adopt a procedure (the adopted procedure) that incorporates the provisions of the model procedure. The adopted procedure may include provisions that supplement the model procedure.

(4) A council’s adopted procedure has no effect to the extent that it is inconsistent with the model procedure as in force for the time being.

(5) Councillors, members of staff and delegates of a council must comply with the applicable provisions of:

(a) the council’s adopted procedure, except to the extent of any inconsistency with the model procedure as in force for the time being, and

(b) the model procedure as in force for the time being, to the extent that:

(i) the council has not adopted the model procedure, or

(ii) the adopted procedure is inconsistent with the model procedure, or

(iii) the model procedure contains provisions or requirements not included in the adopted procedure.

(6) This section applies to an administrator of a council (other than an administrator appointed by the Minister for Primary Industries under section 66) in the same way as it applies to a councillor.”

If a council fails to adopt a new code of conduct and procedures based on the new Model Code of Conduct and Procedures by 14 June 2019, the provisions of the new Model Code of Conduct and Procedures will automatically override any provisions of a council’s adopted code of conduct and procedures that are inconsistent with those contained in the Model Code of Conduct and Procedures (unless the inconsistent provisions of a council’s adopted code of conduct are more onerous than those contained in the Model Code of Conduct).

Following the adoption of the Code of Conduct a review will be undertaken of related policies of the Council to ensure that there is consistency in the standards applied.

Risk Implications

The new obligations created by the adoption of the Code of Conduct will require an intensive training and education program specialised for Councillors, Staff, Committee Members and Contractors. This program of education will be undertaken throughout the remaining months of 2019 and be incorporated in future induction training packages.

Ordinary Meeting – Tuesday 28 May 2019

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CL19.147 RD18/1007 – 315 Princes Highway Bomaderry – Lot 2 DP 777260

DA. No: RD18/1007/4

HPERM Ref: D19/157226

Group: Planning Environment & Development Group

Section: Development Services

Attachments: 1. Determination of Development Application - Refusal ⇩

2. Site Plan ⇩

3. Landscape Plan ⇩

4. Aerial Perspective ⇩

5. Assessment Report (under separate cover) ⇨

6. Water Quality Report (under separate cover) ⇨

7. Amended Landscaping Plan - Review of Determination ⇩

8. Acoustic Report (under separate cover) ⇨

9. Draft Conditions (under separate cover) ⇨

Description of Development: Demolition of existing structures and construction of a staged multi-dwelling housing development comprising 40 dwellings.

Owner: Sabra Company Pty Ltd

Applicant: Sabra Company Pty Ltd

Notification Dates: 12 March 2019 to 27 March 2019

No. of Submissions: Two (2) in objection

Purpose / Reason for consideration by Council

In accordance with Section 8.3(4)(b) of the Environmental Planning and Assessment Act 1979 (the Act), a Review of Determination Application lodged in accordance with section 8.2 of the Act is to be conducted by another delegate of Council who is not subordinate to the delegate who made the determination or decision. A determination of such review must be made within 6 months of the original determination date.

As the initial Development Application (DA) was determined by way of Refusal by Council’s Acting Group Director – Planning, Environment & Development Group, the subject application was to be determined by the Development and Environment Committee.

On 7 May 2019 the Development and Environment Committee Meeting resolved:

That Council defer the determination of this matter to allow the applicant to provide the information required with an addendum report to be submitted to the Council meeting on 28 May 2019.

This is the addendum report as per the resolution of 7 May 2019.

Recommendation

That Council:

1. Reaffirm the determination (refusal) of DA18/1000, dated 30 November 2018, for the demolition of existing structures and construction of a staged multi-dwelling housing development comprising 40 dwellings at Lot 2 DP 777260, 315 Princes Highway, Bomaderry.

2. Reissue the determination notice removing Reason for Refusal No. 1 as Endeavour Energy has conditionally supported the proposal.

Options

1. Reaffirm the decision to refuse the application in accordance with the recommendation of this report.

Implications: This would result in the determination remaining in place. An appeal with the Land and Environment Court is possible in the event of a refusal of the application. There is no ability for further review (section 8.2(3)).

2. Support the development

Implications: Council could choose, following the consideration of the section 8.2 application, to support and ultimately approve the development application if it considers that the provisions of section 4.15(1) have been satisfactorily addressed. Council would need to provide reasons for supporting the development. Draft conditions of consent have been prepared in the event that Council chooses to support the development (refer attachments).

3. In considering this report and supporting information, Council may choose to express general support for the proposed development and, having regard to the legislative timeframes associated with the Review process (which is nearly complete), invite the applicant to submit a new development application, particularly addressing the issues of noise attenuation within residential units (Clause 102 of the State Environmental Planning Policy (Infrastructure) 2007), increase in landscaping and reduction of impact on adjoining development and acceptable stormwater disposal concept.

Implications: This option would need to be adopted in conjunction with option 1, due to legislative timeframes for the review; it would also provide a general direction for the applicant to achieve a modified proposal, addressing amenity issues.

Background

Division 8.2 Reviews, Environmental Planning and Assessment Act 1979

An application lodged under section 8.2 of the Act allows an applicant to request a consent authority to review a determination or decision which they made. After conducting its review, the relevant consent authority (in this instance Council) may reaffirm or change its determination or decision.

Proposed Development

The applicant sought approval as part of the Development Application (DA18/1000) to develop the site by undertaking the following works:

· Demolition – Demolition of existing structures including a disused commercial building (southern part) and concrete slab (northern part).

· Staged Multi-Dwelling Development – Construction of a multi–dwelling housing development consisting of a total of 40 x 3-bedroom, two storey dwellings together with an internal road network, visitor car parking areas, and landscaping/open space.

A Site Plan depicting the layout of the proposed development is provided at Attachment 2. The Assessment Report of DA18/1000 is provided at Attachment 5.

Subject Land

The development site is described as Lot 2 in DP 777260 and is located at No. 315 Princes Highway Bomaderry. Figure 1 – Location Map (see below) depicts the property and its location with respect to the surrounding locality.

Figure 1 – Location Map

Site & Context

The following provides a description of the property and its context with respect to neighbouring and surrounding development sites:

· Contains an existing disused industrial building in the southern part and disused concrete pad in the northern part with the remainder of the site being vacant;

· Has a minor slope downwards from a high point adjacent to Princes Highway towards a low point at the western rear boundary;

· Is a battle-axe lot where the sole point of vehicular access is obtained via the access handle to the Princes Highway;

· Is zoned B4 Mixed Use subject to the Shoalhaven Local Environmental Plan (SLEP) 2014 (refer Figure 2 – Zoning Extract below);

· Is surrounded by a mix of uses including Council-owned land occupied by tennis courts to the west, an existing building used for indoor recreation purposes to the south, an existing commercial building occupied by several tenants to the north, and a mixture of existing detached residential development and tourist and visitor accommodation to the east; and

· The site is located within close vicinity to the location of the approved Aldi Supermarket (Lot 54 DP 747129 Narang Road, Bomaderry) and Woolworths Supermarket (320 Princes Highway, Bomaderry).

Figure 2 – Zoning Extract

History

A detailed history of the proposal was previously provided in the 7 May Report and is detailed in the attached Assessment Report.

Issues

Review of Determination

Reason for Refusal No. 1 – Non-Compliance with Clause 45 of State Environmental Planning Policy (Infrastructure) 2007

Following lodgement of the s8.2 Review of Determination Application, Council conducted a further external referral with Endeavour Energy on 3 March 2019 who provided the following pertinent comments:

Since Endeavour Energy’s submission made to Council on 5 February 2018 the applicant has been in contact with Endeavour Energy’s Easements Officer, Jennie Saban, who has provided the following advice regarding progress in resolving the easement management issues related to the Development Application:

· 27 February 2019. Email to Council copied to Sabra Company advising that:

After careful review, Endeavour Energy will give conditional approval for the DA18/1000 with the following requirements to be confirmed at construction certificate phrase:

1. That low voltage service conductor running parallel to the side boundary will be placed underground.

2. A report is provided by an electrical engineer/ASP that the earthing of any structures (e.g.; drainage pits etc.) complies with Australian/New Zealand Standards As/NZS 3000:2018.

· 25 March 2019. Email received from the Director of AA Power Engineering, Ali Alaouie, including the attached earthing design. The email indicates ‘Please note this earthing is to comply with AS3000 and a certificate is to be provided by the electrician at the end of the job’. The applicant has advised Endeavour Energy that no parts whatsoever of the proposed dwellings / town houses will encroach the easement area for the 33 kV high voltage overhead power lines.

· Based on the foregoing and the further recommendations and comments Endeavour Energy’s submission made to Council on 5 February 2018, Endeavour Energy has no objection to the Development Application.

Based upon the above advice provided by Endeavour Energy and the requirement of Clause 45 of the ISEPP to ‘take into consideration any response to the notice that is received within 21 days after the notice is given’, it is considered that the applicant has now demonstrated compliance with Clause 45 of the ISEPP.

Conclusion: Reason for Refusal No. 1 should be removed from the determination notice, if the recommendation to reaffirm the refusal determination is adopted.

Reason for Refusal No. 2 – Non-Compliance with Clause 102 of State Environmental Planning Policy (Infrastructure) 2007

Clause 102 of the State Environmental Planning Policy (Infrastructure) 2007 provides that this section is applicable to land in or adjacent to the road corridor for a freeway, tollway or transitway or any other road with an annual average daily traffic volume of more than 20,000 vehicles (based on the traffic volume data published on the website of RMS) and that the consent authority considers is likely to be adversely affected by road noise or vibration:

(a) residential accommodation,

(b) a place of public worship,

(c) a hospital,

(d) an educational establishment or centre-based child care facility.

It was noted by the assessment officer that the proposed development is for residential accommodation (being a multi-dwelling housing development) and has direct frontage to a freeway with a traffic volume of more than 20,000 vehicles.

In accordance with clause 102(2), the Director-General has issued guidelines (Development near Rail Corridors and Busy Roads – Interim Guideline 2008) for noise attenuation for suitable indoor noise levels for residential developments with open windows allowing natural ventilation of indoor areas being:

(a) in any bedroom in the residential accommodation—45 dB(A) at any time between 10 pm and 7 am,

(b) anywhere else in the residential accommodation (other than a garage, kitchen, bathroom or hallway)—50 dB(A) at any time.

In accordance with Clause 102(3), a consent authority is not permitted to grant consent to a development unless it is satisfied that appropriate measures would be undertaken to ensure the following noise levels are achieved for residential developments (closed windows);

(a) in any bedroom in the residential accommodation—35 dB(A) at any time between 10 pm and 7 am,

(b) anywhere else in the residential accommodation (other than a garage, kitchen, bathroom or hallway)—40 dB(A) at any time.

Given the high traffic volume of the Princes Highway and sensitive nature of the proposed land use, the development has the potential to be adversely affected by traffic noise. It was noted in the initial assessment of the DA that the applicant had not addressed how the development would comply with the requirements of Clause 102.

In response to the resolution of the Development and Environment Committee Meeting on 7 May 2019, the applicant provided an Acoustical Report prepared by Koikas Acoustics Pty Ltd (dated 13 May 2019).

The Acoustical Report made the following conclusions;

· The townhouses can be sufficiently insulated against existing external sources of noise (Scenario 1) in the area such as road traffic through the use of standard building materials. No additional acoustic attenuation measures are required. In this case, road traffic noise levels are not significant and naturally ventilated rooms are expected to achieve the ‘open windows’ noise criteria described in this report.

· Based on the results of the analysis in noise model scenario 2, the future project road traffic noise level with inclusion of the townhouse development is found to be LAeq.1hr 44dB and therefore comply with the Road Noise Policy. No additional acoustic attenuation measures are required.

The Acoustical Report was reviewed by Council’s Environmental Services which made the following comments regarding the Report as part of a referral response;

The consultant has concluded that the building as proposed will not require any additional treatment to meet the planning noise levels as required by the ISEPP.

The acoustical assessment shows anticipated noise levels to be 53 – 57 dbA at the closest buildings to the highway on the ground floor and 57 – 59 dbA to the first floor.

The ISEPP requires noise levels to be below 45dbA in bedrooms with the windows open and 35 dbA with windows closed.

Further discussion with the acoustic consultant has confirmed that the development will meet the noise requirements of the ISEPP.

As provided in the above referral response from Council’s Environmental Services, Council is now satisfied that the development, and in particular the dwellings located closest to the Princes Highway, would achieve compliance with the noise levels required in accordance with clause 102 of the ISEPP.

Should Council choose to approve the proposed development, it is recommended that a condition be imposed that details of any noise attenuation measures proposed to be installed to permit compliance be required to be detailed at Construction Certificate stage.

Conclusion: Reason for Refusal No. 2 should be removed from the determination notice, if the recommendation to reaffirm the refusal determination is adopted.

Reason for Refusal No. 3 – Non-Compliance with the objectives for the B4 Mixed Use Zone under the Shoalhaven Local Environmental Plan (SLEP) 2014.

In the assessment of the initial Development Application, the assessment officer identified that insufficient consideration was given to the impact of the development on the amenity of adjoining properties and the treatment of common boundaries. Further, whilst the residential development is in an accessible location, it was identified that the proposal would have the potential to result in land use conflicts, which reinforces the need for retention of amenity levels within the site. The assessment officer therefore determined that the proposal does not satisfy the objectives of Zone B4.

The zone objectives are:

· To provide a mixture of compatible land uses.

· To integrate suitable business, office, residential, retail and other development in accessible locations to maximise public transport patronage and encourage walking and cycling.

The applicant provides within the Review of Determination Application that ‘the proposed residential land use is considered to be compatible with the surrounding land uses’. However, it is noted that no further reasoning was provided as to why/how the proposal would be compatible with the surrounding land uses. It is also noted that no further consideration was given to the treatment of common boundaries as a measure to reduce amenity impacts upon sensitive land uses within the locality and enhance the amenity of proposed residents.

No changes have been proposed to the design of the development, including the number of proposed dwellings, the layout, or positioning of perimeter roads with respect to the property boundaries. In this regard it is assessed that the proposal still does not provide for a mixture of compatible land uses where suitable business, office, residential, retail, and other development are integrated.

Given the vastly differing nature of land uses bordering the site, it is assessed that the interface between neighbouring land uses needs to be further addressed through increased separation and/or buffering through landscaping, to maintain suitable levels of visual and acoustic amenity within the locality. It is considered that the current proposal would result in a reduction in acoustic and visual amenity for residents of the site as well as for occupants of neighbouring properties and is therefore not considered to be compatible or suitable in its current form.

Conclusion: Reason for Refusal No. 3 should be retained within the determination notice issued to the applicant.

Reason for Refusal No. 4 – Insufficient information submitted to demonstrate compliance with Chapter G2 Sustainable Stormwater Management and Erosion/Sediment Control of the Shoalhaven Development Control Plan 2014.

As part of the initial Development Application, the applicant submitted a Concept Stormwater Drainage Plan detailing how stormwater would be disposed from the impervious surface areas associated with the development. As per the submitted plan, a series of pits and pipes were proposed to collect runoff throughout the development, discharging to an on-site detention tank in the north-western corner of the site via a gross pollutant trap.

Overflow drainage from the detention tank was then proposed to be discharged via a pipe over the adjoining Council reserve, discharging to an existing Council stormwater main.

As part of Council’s response to the submitted concept plan, the applicant was advised of the following issues relating to the submitted drainage design (following a review of the proposal by Council’s Development Engineer):

Consideration should be given to the layout of the line, which includes several changes of direction (some up to 90 degrees). As per Council’s engineering design specifications, pits are required at all changes of direction. A drainage long section plan should be provided to assess the suitability of the proposal, taking into account the effect of the deflections in the line.

The capacity of the existing pit and outlet pipe on the south-western corner of the tennis courts is also unknown. It appears that (at least a proportion of) the drainage from the tennis courts enters this pit.

It was noted by the assessment officer that Council’s Development Engineer was generally satisfied with the proposal, subject to the submission of amended drainage concept plans and consideration given to assessing pollutant loads from the development, and the provision of calculations to ensure that Council’s stormwater main has the capacity to cater for the additional loads produced by the proposed development.

A further information request was sent to the applicant seeking to address the matters raised by the Development Engineer; however, further design detail to the satisfaction of the Development Engineer was not provided.

The assessment officer therefore determined that insufficient information was submitted to permit compliance with Chapter G2 Sustainable Stormwater Management and Erosion/Sediment Control of the Shoalhaven Development Control Plan 2014.

As part of their Review of Determination Application, the applicant provided the following documentation to assist in satisfying the concerns raised by the Development Engineer:

· Amended Stormwater Drainage Concept Plans depicting pits at each change of direction;

· Drainage long section plan and associated velocity/flow calculations;

· Plans for a proposed stormwater drainage easement through the Council reserve area; and

· Water Quality Report identifying pre-and post-development flow calculations (Attachment 6).

Whilst the applicant has submitted amended drainage documentation addressing the Development Engineer’s concerns, specific reference is made to the submitted Water Quality Report which provides the following:

· The post-developed site would increase the pollutant load (TSS volume) from the predeveloped state from 27.447kg to 40.478kg which represents a 47.5% per annum increase. The report further states that, with the inclusion of turf cell paving, the pollutant load would be reduced to below the pre-developed levels.

Council’s Development Engineer’s advice regarding the turf cell pavement is noted, in particular the following comments:

Evidence provided by the applicant supports Council’s initial view that the proposed paving is not suitable for the proposed purpose, i.e. as a high use circulation roadway within a medium density development. It is more suitable as a parking bay, i.e. where a vehicle is likely to park and remain all day, rather than a roadway which is subject to traffic. This is a situation that will see the surface subject to potentially hundreds of vehicle movements each day. Regardless of the strength of the product, this is a level of traffic that will lead to the turf wearing out.

Given the above comments, it is assessed that whilst pollutants may be reduced initially, given the likelihood that the turf and turf cell would wear out, it is likely that pollutant loads would increase to above the pre-developed levels.

As such the concerns raised by the Development Engineer remain outstanding and Council’s position that insufficient information has been submitted to demonstrate compliance with Chapter G2 Sustainable Stormwater Management and Erosion/Sediment Control of the Shoalhaven Development Control Plan 2014 has not changed.

Conclusion: Reason for Refusal No. 4 should be retained within the determination notice issued to the applicant.

Reason for Refusal No. 5 – The development in its current form does not satisfy the objectives and performance criteria of chapter G3: Landscaping Design Guidelines of Shoalhaven Development Control Plan 2014.

As part of the assessment of the initial DA, the assessment officer noted the following with regard to deficiencies with the submitted Landscape Plan:

· The development is well set back from the Princes Hwy with only the access handle providing an interface with the streetscape. However, with regard to the adjoining development it is noted that only a minor landscaping buffer is proposed as a transition between adjoining developments. Along the eastern boundary there is an approximate 1m landscaping strip with mainly shrubs proposed and one tree. Further to the south, where the development adjoins dwelling houses, this increases to allow for more substantial plantings.

· Along the southern and western boundaries there is largely no landscape buffer, excepting the corners of the site. Although it is noted that there is commercial development to the south and a Council public reserve to the west (buffered by an electricity easement). Along the northern boundary there is an approximate 0.55m landscape buffer, which is an insufficient width for substantial plantings. This does increase along the access handle.

Further to the above comments regarding the submitted Landscape Plan, it was also noted by the assessment officer that, under Chapter G14 of the SDCP 2014, 35% of the site must be landscaped.

In October 2018 Chapters G13 – Dual Occupancy Development and G14 – Other Residential Development were combined into one Chapter being G13 – Medium Density and Other Residential Development.

While Chapter G13 does not apply in this instance, as the application was lodged prior to its adoption, it is worth noting that it would require 10% of the site to be high quality landscaping and a further 20% of the site to be landscaped. While this additional 20% may include areas such as decks, terraces, swimming pools and other recreation areas/structures it does not include driveways or parking spaces. It was estimated that only 19% of the site was proposed to be landscaped when not including ‘turf-cell’ paved driveway and parking spaces given their intended use fundamentally conflicts with the functioning of landscaped areas.

Going to the point made by the applicant about the role of a Development Control Plan (DCP), it is acknowledged that a DCP is a document providing guidance for developers and Council and that there are options to conform to acceptable solutions or satisfy performance solutions and ability to assess development with some flexibility. In this instance the applicant has not offered any solution as to how internal and external amenity levels will meet acceptable standards, as such, observing the number of units, building footprint and concentration of development, the original assessment not supporting the design remains relevant.

Figure 3 – Landscape Plan extract

As part of the Review of Determination Application, the applicant submitted an updated Landscape Plan (Attachment 7). However, it was noted that minimal changes were made to the landscape design. It is therefore assessed that the amended Landscape Plan still does not satisfactorily address the objectives and performance criteria of Chapter G3: Landscaping Design Guidelines of Shoalhaven Development Control Plan 2014.

Conclusion: Reason for Refusal No. 5 should be retained within the determination notice issued to the applicant.

Reason for Refusal No. 6 – The development in its current form does not satisfy the objectives and performance criteria of chapter G14: Other Residential Accommodation of Shoalhaven Development Control Plan 2014, particularly as it relates to 5.22 Scale and Site Density.

As part of the assessment of the initial Development Application, the assessment officer found that the proposed floor space ratio for the development would be 0.46:1, which represents a 31% variation to Acceptable Solution A4.1 of Chapter G14 of the SDCP 2014 which states a maximum floor space ratio of 0.35:1. This equates to a numerical departure of 1,258m².

In the response to Reason for Refusal No. 6, the applicant provides the following:

While the height of the proposed development has been capped at two storeys to be more in keeping with the existing surrounding built form, in terms of density, it is more akin to a residential flat building that could otherwise be built with consent on the site. However, for the purpose of categorising the proposed development under the LEP land use table, the development is referred to as a multi-dwelling housing development.

Council disagrees with the statement that the development is more akin to a residential flat building than a multi-dwelling housing development. For the purpose of the assessment, the SLEP 2014 defines a multi-dwelling housing development as ‘3 or more dwellings (whether attached or detached) on one lot of land, each with access at ground level, but does not include a residential flat building’ and a residential flat building as ‘a building containing three or more dwellings, but does not include an attached dwelling or multi dwelling housing’.

As per the above comments, the definitions for multi-dwelling housing and a residential flat building are not interchangeable. They are completely different developments and separately and distinctly characterised (legally defined in planning definitions).

It is assessed that the proposal is a multi-dwelling housing development given there are more than three dwellings, all of which are accessed at ground level whereas the development could not be accurately described as a single building which contains dwellings where such dwellings are not necessarily accessed at ground level.

Whilst there may be capacity to consider a higher density, this should not be at the expense of future residential amenity of the intended occupants.

To clarify concerns regarding the assessment framework, the characterisation of a development informs the assessment. By way of example if a development is characterised as a residential flat building and meets the criteria specified in the State’s Policy pertaining to the design quality of residential flat buildings, the development is assessed under that Policy and associated guidelines. If the development is a multi-unit development, classed as local development, it is assessed under the ‘local’ planning controls, which in this instance are embedded in Council’s adopted Development Control Plan.

It is noted that no alteration has been made to the design of the development since determined or following consideration by Council on 7 May 2019. The site coverage and the proposed site coverage remains 0.46:1, which is a 31% departure from the stated acceptable solution. It is therefore assessed that the development as proposed does not satisfactorily address the objectives or performance criteria of chapter G14: Other Residential Accommodation of Shoalhaven Development Control Plan 2014, particularly as it relates to 5.22 Scale and Site Density.

Conclusion: Reason for Refusal No. 6 should be retained within the determination notice issued to the applicant.

Reason for Refusal No. 7 – The development in its current form does not satisfy the objectives and performance criteria of Chapter G21: Car Parking and Traffic of Shoalhaven Development Control Plan 2014, particularly as it relates to 5.7 Landscape Design and 5.9 Construction Requirements.

In their response to Reason for Refusal No. 7, the applicant provides the following:

The internal circulation design provisions including aisle widths, bay dimensions will accord with the requirements of AS2890.1 & 6. There will be a two-way circulation arrangement with quite satisfactory provision for turning and manoeuvring.

The reasons given by the assessment officer for the refusal of the Development Application are due to non-compliance with Section 5.7 – Landscape Design and Section 5.9 – Construction Requirements.

The following comments are provided with regard to the proposal’s non-compliance with these sections:

Section 5.7

The amended Landscape Plan submitted by the applicant maintains a nominal setback of 1.0m to the eastern side boundary and 0.55m to the northern side boundary. However, no buffer has been provided to either the southern or western boundaries. It is further noted that there is a general lack of landscaping throughout the development – reference is also made in this regard to the aforementioned variation proposed to the general landscaping requirements of the development.

Section 5.9

The applicant has maintained their proposal for the use of turf cell paving throughout the development which does not meet the general design and construction standard for a medium density residential development specified within A13.4 – Chapter G21 of the SDCP 2014. The aforementioned comments provided by the Development Engineer are noted where it was identified that the evidence provided by the applicant supports Council’s initial view that the proposed paving is not suitable for the proposed purpose.

Given that no alterations have been made to the proposal which would enable compliance Sections 5.7 and/or 5.9, the reason for refusal remains valid.

Conclusion: Reason for Refusal No. 7 should be retained within the determination notice issued to the applicant.

Reason for Refusal No. 8 – The development in its current form does not satisfactorily demonstrate there will not be significant adverse amenity affects upon adjoining properties or upon future residents.

The applicant identifies in their response to Reason for Refusal No. 8 that:

‘the proposed development will not have an unreasonable impact on the adjoining properties in terms of aural and visual privacy, overshadowing, traffic and parking etc’ and further that ‘the relationship and separation between the proposed development and the adjoining residential properties is such that appropriate visual and acoustic privacy will be maintained’.

No evidentiary proof has been provided by the applicant that the proposal would not have an unreasonable impact upon the amenity of neighbouring properties, as it relates to visual amenity, acoustic amenity, and traffic.

To the contrary, it is noted that submissions have been received either from neighbours or by representatives acting on behalf of neighbours, formally objecting to the development on amenity grounds.

It is considered that the proposal would have an unreasonable impact on the adjoining properties in terms of aural and visual privacy, overshadowing, traffic and parking due to the following reasons;

· No interface (i.e. such as landscaping) separating the proposal and the adjoining uses being tourist and visitor accommodation, residences, indoor recreation facility, open space, and commercial premises.

· No landscaping or buffer between the perimeter road and the southern and western side boundaries and the minimal landscaping and buffer to the eastern and northern side boundaries.

· Forty proposed dwellings would result in a large number of traffic movements per day along the perimeter road and would result in impacts associated with acoustic amenity.

· Lack of landscaping or separation along boundaries would provide reduced visual and acoustic privacy for guests of neighbouring motor inns and residences.

It is further noted that no redesign of the development has been undertaken from the original proposal.

It is therefore considered that the proposal does not satisfactorily demonstrate that there will not be significant adverse amenity affects upon neighbouring and surrounding properties.

Conclusion: Reason for Refusal No. 8 should be retained within the determination notice issued to the applicant.

Reason for Refusal No. 9 – The information submitted with the development application does not satisfactorily demonstrate that the site is suitable for the proposed development.

As part of the assessment of the initial Development Application, the assessment officer noted that the site would not be suitable for the proposed multi-dwelling housing development for the following reasons:

· It will result in poor amenity for adjoining properties.

· It will result in inadequate amenity for the future residents of the development.

· There has been insufficient consideration of the interface with adjoining properties and land uses and will likely result in land use conflicts.

· The development in its current format is an overdevelopment of the site.

As part of their Review of Determination Application, the applicant provided that the site would be suitable for the proposed development for the following reasons:

· The site is zoned to accommodate this type and form of development;

· The nature and form of the proposed development is generally consistent with the development controls which apply to the site;

· The scale and nature of the development is compatible with existing and anticipated future development in the locality;

· The size and dimensions of the land are suitable for the scale of the proposed development;

· The site will have access to all utility services to accommodate the demand generated by the proposed development;

· The proposed development is unlikely to result in any adverse traffic impacts; and

· The proposed development will not result in any unacceptable or material environmental impacts in relation to adjoining and surrounding properties, particularly in terms of overshadowing, views, privacy (aural and visual), solar access and natural ventilation.

It is agreed that the site is suitably zoned, is of a configuration that could accommodate multi dwelling development however the review of the determination found that the proposed development would not provide a quality residential development with respect to amenity for occupants. In particular it is found that the current format provides for a substantial development footprint (31% variation to site coverage requirement and a 46% variation to landscaping requirement).

The extent of the development on the site means that there is significant site coverage to the detriment of amenity. There is insufficient separation between the development and land uses on neighbouring sites. An example of the insufficient separation is the lack of landscaping buffer provided between the development and surrounding land uses, particularly as it pertains to the perimeter road.

Conclusion: Reason for Refusal No. 9 should be retained within the determination notice issued to the applicant.

Figure 4 – Landscape Plan extract showing perimeter road relative to boundary and adjoining motel development

Reason for Refusal No. 10 – Having regard to variations to planning controls and inconsistency with objectives, the granting of development consent is not considered to be in the public interest.

As part of their assessment of the initial DA, the assessment officer noted that the development would not be within the public interest for the following reasons:

There has been insufficient consideration of the amenity afforded to future residents of the development. Similarly, there has been insufficient consideration of the impacts upon adjoining properties and how the development is compatible with the future desired character of the area.

As part of their Review of Determination Application, the applicant provided that the development would be within the public interest, with the following response being provided:

The proposed development represents the orderly, economic use and development of the subject land, and the proposed density is well within the environmental capacity of the site. The development proposed under this application is considered to be both reasonable and appropriate in the context of the site. The development will have positive social and economic benefits in terms of creating additional resident population that will in turn support local businesses and services. The proposal provides a responsive design in terms of its relationship with adjoining development and establishes an appropriate human scale through sound urban design principles, whilst ensuring that environmentally sustainable principles are incorporated.

Whilst it is acknowledged that an increased resident population would potentially provide an economic benefit to local businesses within the locality, it is considered that the proposed density is of major concern. The scale of development reflected by the density and site cover is likely to result in impacts upon both residents within the locality and residents/guests of surrounding developments due to the limited setback and buffering/separation between structures and in particular the limited separation between neighbouring properties and the perimeter road.

It is considered that, whilst the design of each individual dwelling is sound, the design is not responsive in terms of its relationship with adjoining developments for the aforementioned reasons. Further, the overall design presents significant environmental concerns, particularly in regard to the use of “turf cell” to reduce stormwater pollutant loads and the ongoing viability of this product for shared vehicle/pedestrian areas

Additionally, whilst the development will provide a type of housing in addition to conventional single dwellings, there is no variety in housing form or choice within the proposed complex. The design is relatively homogenous in architecture and internal layout with all being 3 bedrooms.

Conclusion: Reason for Refusal No. 10 should be retained within the determination notice issued to the applicant.

Planning Assessment

The DA has been assessed under s4.15 (as at the time of assessment) of the Act. This ‘assessment’ is a formal review under the relevant provisions of the Act, having specific regard to the reason for the refusal.

Consultation and Community Engagement

Community consultation was detailed in the May Report.

Financial Implications

There are potential cost implications for Council in the event of a refusal of the application. Such costs would be associated with defending any appeal in the Land and Environment Court of NSW.

Legal Implications

An appeal with the Land and Environment Court is possible in the event of a refusal of the application.

Summary and Conclusion

To summarise, the key issues concerning the proposal remain the same with the original application excepting concerns by Endeavour Energy and noise impacts from the Princes Highway.

The request to formally review the application DA18/1000 has been undertaken in accordance with Division 8.2 (Reviews) under the Act, also having regard to relevant provisions of section 4.15 (Evaluation). As such, it is recommended that the refusal be reaffirmed. If Council is inclined to support the recommendation for refusal, it is recommended that the Determination is reissued removing the first and second reasons for refusal.

If however Council is inclined to support the proposal, a draft determination is attached.

It is recommended that any determination to approve the development includes conditions to address the potential noise impacts from the Princes Highway on the residents, and that paving is required to be used in place of the proposed permeable turf paving on the basis that it will be more practical and maintainable in the long term. The change in paving type would also require a revised stormwater and landscape plan addressing issues outlined in the report.

Ordinary Meeting – Tuesday 28 May 2019

Page 0

CL19.149 Sustainable Energy Policy

HPERM Ref: D19/148148

Group: Shoalhaven Water Group

Attachments: 1. Submission Summary -draft Sustainable Energy Policy names removed (under separate cover) ⇨

2. Original submissions - Sustainable Energy Policy (Confidential - councillors information folder)

3. Draft Sustainable Energy Policy - tracked changes after Public Exhibition ⇩

Purpose / Summary

To provide an overview of submissions received during the public exhibition and a revised Draft Sustainable Energy Policy for adoption.

Recommendation

That Council

1. Note the details of the submissions received during the public exhibition period as outlined in the report.

2. Adopt the revised Draft Sustainable Energy Policy provided as an attachment to the report.

Options

1. As recommended.

Implications: The new Sustainable Energy Policy will provide a driver for future investment in energy efficiency, renewable energy and emissions reduction for Council’s operations. The Policy aligns well with the themes and priorities of Council’s Integrated Strategic Plan 2018, as well as pledges made under the Cities Power Partnership. It also addresses Council’s role in encouraging community renewable energy uptake to ensure future access to affordable, reliable, sustainable and modern energy.

2. The policy is adopted with further amendments.

Implications: Not known

3. Not adopt the Policy at this time.

Implications: Should the Council not adopt a new policy at this time, there is no current alternative policy, objectives or targets to drive investment and effort in future operational and community energy initiatives.

Background

At the Ordinary Meeting of Council held on 13 November 2018, Council resolved (MIN18.902) that:

“Council’s Energy Management Coordinator liaise with the General Manager and Directors with a view to formulating a draft Sustainable Energy Policy for consideration by the February 2019 Strategy and Assets Committee meeting if possible.”

At the Meeting of the Development & Environment Committee held on 5 March 2019, Council considered a report outlining the Draft Sustainable Energy Policy and resolved (MIN19.118):

“That the draft Sustainable Energy Policy (attached) be placed on public exhibition for 28 days and a further report be provided to Council on the results of that exhibition.”

The draft Sustainable Energy Policy was exhibited from 22 March to 18 April 2019. Forty two (42) submissions were received from a range of community individuals and groups, all in support of the Policy.

Submissions:

A table summarising the submissions received during the exhibition period has been provided as Attachment 1 (Under Separate Cover) to this report, with the original copies of the submissions provided for Councillors as Attachment 2 (Councillor’s Information Folder).

In summary, the submissions cover the following main points:

· Comments about the targets not being stringent enough

Some of the submissions suggested that the targets set were not stringent enough to mitigate climate change impacts. They encourage Council to strive for greater reductions in greenhouse gas emissions and more renewable energy generation within shorter timeframes.

Response: The draft Policy includes long-term targets but also interim targets to ensure that progress is made in a timely, environmentally and economically responsible manner. The emissions targets set are science-based and consistent with national and state targets. The proposed renewable energy targets are considered acceptable from Council’s current position. Therefore no changes were made to the draft Policy targets and timeframes.

· Comments about the wording of the policy, e.g. economically feasible

Some of the submissions queried the terminology used in the Policy and offered rewording to better capture and define the meaning. The term ‘economically feasible’ was one such word queried by some members of the public.

Response: It is agreed that better terminology could be used, particularly if this adds clarity to the community. It is suggested that this statement should be amended in the revised Policy as follows:

o Revised Policy wording changed (changes in bold) to ‘At all times, Council will seek the most effective and economic means to achieve its emission reduction targets from all sources, including investing in renewable energy generation projects to ensure clean energy for the future.’

· Comments on some of the technical aspects of the policy

Some comments offered additional technical advice to include within the Policy including battery storage technology, inclusion of gas, electric vehicles etc.

o Revised Policy wording changed to include these additional words, as appropriate.

· Comments about Council needing to also focus on other areas such as sustainability, water, electric vehicles, etc.

The response to these comments was that Council is currently in the process of preparing a new Sustainability Policy (MIN19.211) and recently adopted an Electric Vehicle Charging Station Policy on Public Land (adopted 7 May 2019), so these are being addressed but outside the scope of the draft Sustainable Energy Policy.

Community Engagement

A 28-day public exhibition period was utilised to seek public response to the draft Policy. If Council adopts the Policy, a range of communication mechanisms will be utilised to inform staff and the community.

Policy Implications

If adopted by Council, the Sustainable Energy Policy will supersede Council’s ‘Organisational Energy and Water Management Policy’ (POL12/19) originally prepared in 2007.

Financial Implications

Achieving the objectives and targets set in the Policy will require some additional investment by Council over the coming years. However, many energy efficiency projects (e.g. LED streetlighting upgrade) and renewable energy generation initiatives often have short payback periods and will therefore eventually result in cost savings to Council. An adopted Sustainable Energy Policy would also improve Council’s opportunities to access external grants and funding.

Risk Implications

There is minimal risk in adopting this Policy to Council’s operations and the wider community.

Total Cash and Investments	-$1,740,174
Water Fund	$673,296	Normal operating cycle
Waste Disposal	-$587,772	April was not a rates instalment month
Sewer Fund	$1,454,219	Expenditure on REMS1B has slowed
Unrestricted General Fund	-$2,705,461	April was not a rates instalment month

Tenderer	Location
Lidia & Brendon Hill	Vincentia
(Balfawk Pty Ltd) Keith Balmer & Sharon Fawkes	Culburra Beach
Gary Henderson	East Gippsland
(Denrick Pty Ltd) Ken and Debra Nicholls	Sussex Inlet
Luke and Rhyannan Austin	Ulladulla
(1953 Pty Ltd) Gordon & Julie Steele	Cowra
Paul Windshuttle Lawns & Gardens	Ulladulla

Tenderer	Location
Lidia & Brendon Hill	Vincentia
A.N MacDougall Pty Ltd	Lake Conjola
Gordon & Julie Steele	Cowra
Paul Windshuttle	Ulladulla