Agenda of Development & Environment Committee

Minutes of the Development & Environment Committee

Meeting Date: Tuesday, 2 April 2019

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

Time: 5.00pm

The following members were present:

Clr Amanda Findley

Clr Joanna Gash - Chairperson

Clr John Wells

Clr John Levett

Clr Nina Digiglio

Clr Annette Alldrick

Clr Kaye Gartner

Clr Bob Proudfoot

Mr Russ Pigg - General Manager

Apologies / Leave of Absence

Apologies were received from Clr White, Clr Pakes, Clr Kitchener, Clr Guile and Clr Watson.

Confirmation of the Minutes

RESOLVED (Clr Findley / Clr Digiglio) MIN19.204

That the Minutes of the Development & Environment Committee held on Tuesday 05 March 2019 be confirmed.

CARRIED

Declarations of Interest

Nil

Call Over of the Business Paper

RESOLVED (Clr Gash / Clr Wells) MIN19.205

That the Chairperson Call Over all the items on the Agenda.

CARRIED

Mayoral Minutes

Nil

Deputations and Presentations

DE19.18 - Update - Planning Proposal - Lot 4 DP83425, Beach Road, Berry

Mr Matt Philpott, representing Allen Price & Scarratts, addressed the meeting and spoke for the recommendation.

DE19.21 - Development Application No.18/1844 – 120 Macleans Point Road, Sanctuary Point – Lot 653 DP 27855

Mr Greg Edwards, representing Basin View Forum and Sanctuary Point Community Pride, addressed and spoke against the recommendation.

Dr Judith Stubbs, representing the owners of the land, addressed the meeting and spoke to the recommendation.

DE19.24 - Further Update - Possible Heritage Listing - Former Huskisson Anglican Church

Dr Shirley Fitzgerald addressed the meeting and spoke for the heritage listing.

Mr Ian Deck, representing the Anglican Church, addressed the meeting and spoke against the recommendation.

Mr Stephen Bartlett, representing Kamsley Pty Ltd, addressed the meeting and spoke against the recommendation.

Procedural Motion - Bring Item Forward

RESOLVED (Clr Wells / Clr Digiglio) MIN19.206

That the following matters be brought forward for consideration:

· DE19.18 - Update - Planning Proposal - Lot 4 DP83425, Beach Road, Berry

· DE19.21 - Development Application No.18/1844 – 120 Macleans Point Road, Sanctuary Point – Lot 653 DP 27855

· DE19.24 - Further Update - Possible Heritage Listing - Former Huskisson Anglican Church

CARRIED

Reports

DE19.18 Update - Planning Proposal - Lot 4 DP83425, Beach Road, Berry

HPERM Ref: D19/40102

Recommendation (Item to be determined under delegated authority)

That Council:

1. Amend the Planning Proposal (PP) for Lot 4 DP83425, Beach Road, Berry to:

a. Reflect the revised maps provided with the report; and

b. List the Aboriginal Scarred Tree identified on the site as an item of Aboriginal Heritage

2. Submit the revised PP to the NSW Department of Planning and Environment for consideration as required by the Gateway determination.

3. Undertake the necessary Government Agency consultation prior to public exhibition as required by the Gateway determination.

4. Prepare a draft site-specific Development Control Plan (DCP) chapter to support the PP.

5. Publicly exhibit the PP and supporting draft DCP chapter, subject to completion of the above matters.

6. Advise the proponent of this resolution.

RESOLVED (Clr Proudfoot / Clr Wells) MIN19.207

That Council:

1. Amend the Planning Proposal (PP) for Lot 4 DP83425, Beach Road, Berry to:

a. Reflect the revised maps provided with the report; and

b. List the Aboriginal Scarred Tree identified on the site as an item of Aboriginal Heritage

2. Submit the revised PP to the NSW Department of Planning and Environment for consideration as required by the Gateway determination.

3. Undertake the necessary Government Agency consultation prior to public exhibition as required by the Gateway determination.

4. Prepare a draft site-specific Development Control Plan (DCP) chapter to support the PP.

5. Publicly exhibit the PP and supporting draft DCP chapter, subject to completion of the above matters.

6. Advise the proponent of this resolution.

For: Clr Findley, Clr Gash, Clr Wells, Clr Levett, Clr Digiglio, Clr Alldrick, Clr Gartner, Clr Proudfoot and Russ Pigg

Against: Nil

CARRIED

DE19.21 Development Application No.18/1844 – 120 Macleans Point Road, Sanctuary Point – Lot 653 DP 27855

HPERM Ref: D19/70515

Recommendation (Item to be determined under delegated authority)

That Development Application No.18/1844 be determined by way of approval subject to the imposition of suitable conditions of consent as contained in attachment 1.

RESOLVED (Clr Findley / Clr Proudfoot) MIN19.208

That:

1. Council defer consideration of DA18/1844 120 Macleans Point Road, Sanctuary Point – Lot 653 DP 27855, pending the General Manager providing a supplementary report to Council in respect of

a. restrictions on smoking in the area near the nursery/garden centre

b. stormwater

c. the ongoing management of the boarding house

2. The report be brought to the April Ordinary meeting of Council.

For: Clr Findley, Clr Gash, Clr Wells, Clr Levett, Clr Digiglio, Clr Alldrick, Clr Gartner, Clr Proudfoot and Russ Pigg

Against: Nil

CARRIED

DE19.24 Further Update - Possible Heritage Listing - Former Huskisson Anglican Church

HPERM Ref: D19/99451

Recommendation (Item to be determined under delegated authority)

That Council

1. Receive the report for information.

2. Note the letter received from the Heritage Council of NSW on 27 March 2019.

3. Decide whether it wishes to reconsider its previous resolved position in this regard and consider the possible heritage significance of the site through the LEP listing process.

Motion (Clr Wells / Clr Gash)

That Council

1. Receive the report for information.

2. Note the letter received from the Heritage Council of NSW on 27 March 2019.

For: Clr Gash, Clr Wells and Russ Pigg

Against: Clr Findley, Clr Levett, Clr Digiglio, Clr Alldrick, Clr Gartner and Clr Proudfoot

LOST

RESOLVED (Clr Levett / Clr Alldrick) MIN19.209

That Council

1. Receive the report for information

2. Note the letter received from the Heritage Council of NSW on 27March 2019

3. Seek to list the site in the Local Environmental Plan (LEP) as a Local Heritage Item through the formal planning proposal process.

4. Authorise staff to endeavour to add this to the next Housekeeping Amendment dealing with Heritage in June 2019.

5. Encourage the proponents (i.e. the land owner and the proposed developer) and the community to come together in an endeavour to reach an agreed outcome.

For: Clr Findley, Clr Levett, Clr Digiglio, Clr Alldrick, Clr Gartner and Clr Proudfoot

Against: Clr Gash, Clr Wells and Russ Pigg

CARRIED

Note: A rescission motion was received on this item.

DE19.19 Draft Planning Proposal - Review of Subdivision Provisions - Shoalhaven LEP 2014

HPERM Ref: D19/59990

Recommendation (Item to be determined under delegated authority)

That Council:

1. Endorse the Review of Subdivision Provisions Planning Proposal (PP027) (Attachment 1) and submit it to the NSW Department of Planning and Environment for a Gateway determination.

2. Following receipt of the Gateway determination, exhibit PP027 as per legislative and Gateway determination requirements.

3. Receive a further report following the conclusion of the public exhibition period.

4. Advise key stakeholders of this decision, including relevant Community Consultative Bodies and Development Industry representatives.

RESOLVED (Clr Findley / Clr Digiglio) MIN19.210

That Council:

1. Endorse the Review of Subdivision Provisions Planning Proposal (PP027) (Attachment 1) and submit it to the NSW Department of Planning and Environment for a Gateway determination.

2. Following receipt of the Gateway determination, exhibit PP027 as per legislative and Gateway determination requirements.

3. Receive a further report following the conclusion of the public exhibition period.

4. Advise key stakeholders of this decision, including relevant Community Consultative Bodies and Development Industry representatives.

For: Clr Findley, Clr Gash, Clr Wells, Clr Levett, Clr Digiglio, Clr Alldrick, Clr Gartner, Clr Proudfoot and Russ Pigg

Against: Nil

CARRIED

DE19.20 Sustainability Program Update

HPERM Ref: D19/58433

Recommendation (Item to be determined under delegated authority)

That Council:

1. Adopt the recommendations outlined in the report – Attachment 1.

2. Endorse the development of a Sustainability Policy for Council.

3. Endorse the development of a Sustainability Action Plan for Council.

Authorise the General Manager (Director Planning, Environment & Development) to establish a reference Group consisting of interested Councillors and appropriate staff to advance 1, 2 and 3 above, and that at least quarterly progress reports are provided to Council.

RESOLVED (Clr Wells / Clr Findley) MIN19.211

That Council:

1. Adopt the recommendations outlined in the report – Attachment 1.

2. Endorse the development of a Sustainability Policy for Council.

3. Endorse the development of a Sustainability Action Plan for Council.

4. Authorise the General Manager (Director Planning, Environment & Development) to establish a reference Group consisting of interested Councillors and appropriate staff to advance 1, 2 and 3 above, and that at least quarterly progress reports are provided to Council.

For: Clr Findley, Clr Gash, Clr Wells, Clr Levett, Clr Digiglio, Clr Alldrick, Clr Gartner, Clr Proudfoot and Russ Pigg

Against: Nil

CARRIED

DE19.21 Development Application No.18/1844 – 120 Macleans Point Road, Sanctuary Point – Lot 653 DP 27855

HPERM Ref: D19/70515

Item dealt with earlier in the meeting see MIN19.208

DE19.22 Shoalhaven River Estuary Coastal Management Program - Acceptance of NSW OEH Grant - Coast and Estuary Grant Program

HPERM Ref: D19/82267

Recommendation

That Council:

1. Accept the NSW OEH grant funds of $75,000, for the preparation of Shoalhaven River Estuary Coastal Management Program, over two (2) years.

2. Provide matching funds of $75,000 over two (2) years from the existing coastal management planning budget as previously resolved (MIN17.1087) to match the $75,000 offered by the NSW Government, to prepare Shoalhaven City Council’s Coastal Management Program (CMP) for the Shoalhaven River Estuary.

3. Write to the NSW Minister for Environment, Heritage and Local Government, thanking them for the grant funding offer.

Recommendation (Clr Findley / Clr Wells)

That Council:

1. Accept the NSW OEH grant funds of $75,000, for the preparation of Shoalhaven River Estuary Coastal Management Program, over two (2) years.

3. Write to the NSW Minister for Environment, Heritage and Local Government, thanking them for the grant funding offer.

For: Clr Findley, Clr Gash, Clr Wells, Clr Levett, Clr Digiglio, Clr Alldrick, Clr Gartner, Clr Proudfoot and Russ Pigg

Against: Nil

CARRIED

DE19.23 Exhibition Outcomes and Proposed Finalisation - Shoalhaven Contributions Plan 2019

HPERM Ref: D18/375094

Recommendation (Item to be determined under delegated authority)

That Council:

1. Adopt the Shoalhaven Contributions Plan 2019 as exhibited with the proposed amendments described in Table 2 of this report and proceed to finalise the plan.

2. Give effect to the Shoalhaven Contributions Plan 2019 by publishing a written notice in local newspapers in accordance with legislation.

3. Notify development industry representatives, Community Consultative Bodies and those who made submissions, of Council’s decision.

4. Endorse the position that all funds from deleted projects are to remain within each relevant planning area and be transferred to a “recoupment fund”, with those funds used as Council's apportionment towards projects and to provide seed funding for community infrastructure projects identified in the revised contributions plan.

5. Endorse the preparation of a future amendment to the adopted Shoalhaven Contributions Plan 2019 to:

a. update project costings, apportionment, and timeframes,

b. clarify calculation of credits, when contributions are charged for industrial/commercial subdivision, dedication of land and works in kind, and how merit assessment for miscellaneous development types is to be undertaken; and

c. address general housekeeping matters that may arise.

RESOLVED (Clr Findley / Clr Proudfoot) MIN19.212

That Council:

1. Adopt the Shoalhaven Contributions Plan 2019 as exhibited with the proposed amendments described in Table 2 of this report and proceed to finalise the plan.

2. Give effect to the Shoalhaven Contributions Plan 2019 by publishing a written notice in local newspapers in accordance with legislation.

3. Notify development industry representatives, Community Consultative Bodies and those who made submissions, of Council’s decision.

5. Endorse the preparation of a future amendment to the adopted Shoalhaven Contributions Plan 2019 to:

a. update project costings, apportionment, and timeframes,

c. address general housekeeping matters that may arise.

For: Clr Findley, Clr Gash, Clr Wells, Clr Levett, Clr Digiglio, Clr Alldrick, Clr Gartner, Clr Proudfoot and Russ Pigg

Against: Nil

CARRIED

DE19.24 Further Update - Possible Heritage Listing - Former Huskisson Anglican Church

HPERM Ref: D19/99451

Item dealt with earlier in the meeting see MIN19.209

DE19.25 Two (2) Bushcare Group Action Plans - Review

HPERM Ref: D19/99736

Recommendation (Item to be determined under delegated authority)

That Council adopt the following two (2) reviewed Bushcare Group Action Plans:

1. Warden Head; and

2. Bangalee Reserve.

RESOLVED (Clr Findley / Clr Gash) MIN19.213

That Council adopt the following two (2) reviewed Bushcare Group Action Plans:

1. Warden Head; and

2. Bangalee Reserve.

For: Clr Findley, Clr Gash, Clr Wells, Clr Levett, Clr Digiglio, Clr Alldrick, Clr Gartner, Clr Proudfoot and Russ Pigg

Against: Nil

CARRIED

Note: A Rescission Motion was received in relation to DE19.24 - Further Update - Possible Heritage Listing - Former Huskisson Anglican Church signed by Clr Wells, Clr Gash and Clr Pakes.

There being no further business, the meeting concluded, the time being 8.15pm.

Clr Gash

CHAIRPERSON

Development & Environment Committee – Tuesday 07 May 2019

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DE19.27 Proposed Amendment - Shoalhaven Development Control Plan 2014 - Low Density Residential

HPERM Ref: D19/106139

Group: Planning Environment & Development Group

Section: Strategic Planning

Attachments: 1. Draft Chapter G12: Dwelling Houses and Other Low Density Residential Development (under separate cover) ⇨

2. Draft Dictionary (under separate cover) ⇨

Purpose / Summary

Obtain the required resolution to exhibit the draft amendment to the Low Density Residential Chapter (G12) of Shoalhaven Development Control Plan (DCP) 2014.

Recommendation (Item to be determined under delegated authority)

That Council:

1. Support the exhibition of the draft Low Density Residential Amendment to Shoalhaven Development Control Plan 2014 for a period of 28 days as per legislative requirements.

2. Receive a further report on the draft Low Density Residential Amendment following the conclusion of the public exhibition period.

3. Continue to investigate the possibility of an off-site mature tree replacement scheme for Shoalhaven in line with MIN18.955(4) and receive a future report on this matter.

4. Advise key stakeholders, including relevant industry representatives, of this decision.

Options

1. As recommended.

Implications: This is the preferred option as it will enable the resolution of operational issues and matters that require clarification to improve the function of the Chapter.

The Amendment will also result in provisions that holistically consider local character and context, good quality design, amenity, universal design (optional) and more broadly the public interest.

2. As recommended with the Councillor-suggested changes (in part or full) as outlined in Table 2 and Table 3 of this report.

Implications: This will depend on the extent of any changes. The staff comments in Table 2 - 3 explain the intent of the proposed provisions and resulting implications as appropriate. Any changes to Attachment 1 and 2 should be considered in the context of the DCP as a whole, and more specifically the Medium Density DCP Amendment (Chapter G13 of the DCP), as a number of the provisions in this draft Amendment are the same or similar.

3. Adopt an alternative recommendation.

Implications: This will depend on the extent of any changes and could delay the implementation of updated and more appropriate low density residential development provisions.

4. Not adopt the recommendation.

Implications: This could stop the implementation of more appropriate and better structured low density residential development provisions.

Background

Amendment Context

Council resolved on 2 June 2015 to commence a large-scale systematic review/amendment of Shoalhaven DCP 2014 to address several existing Council resolutions and other matters identified since the commencement of the original plan on 22 October 2014.

Stage 5 of the review/amendment included the review of the DCP Chapters related to subdivision and residential development, namely:

· Chapter G11: Subdivision of Land.

· Chapter G12: Dwelling Houses, Rural Workers’ Dwellings, Additions and Ancillary Structures.

· Chapter G13: Dual Occupancy Development.

· Chapter G14: Other Residential Development.

The Medium Density Amendment to Shoalhaven DCP 2014 addressed Chapter G13 and G14; and came into effect on 31 October 2018. An amendment to Chapter G11 is identified as a priority project on the Strategic Planning Works Program and will be reported separately to Council for consideration in due course.

The updating of Chapter G12 is considered as part of this reported amendment.

The Draft Low Density Residential Amendment

The proposed draft Low Density Residential Amendment includes:

· The repeal of existing Chapter G12.

· Proposed new Chapter G12: Dwelling Houses and Other Low Density Residential Development (Attachment 1).

· Proposed consequential amendment to the DCP Dictionary (Attachment 2).

The proposed new Chapter G12 applies to:

· Dwelling houses, including additions and alterations.

· Rural workers’ dwellings, including additions and alterations.

· Relocation of second-hand dwellings.

· Detached habitable rooms.

· Secondary dwellings.

· Ancillary structures.

· Non-habitable structures on vacant land.

Essentially, the draft Amendment proposes to improve the function of low density residential and ancillary development controls, address policy gaps and operational issues or matters that need clarification that have been identified since the Shoalhaven DCP 2014 originally became effective on 22 October 2014.

In January 2019, the draft Low Density Residential Amendment was initially reported to the Development & Environment Committee seeking a resolution to exhibit. The most notable components of the draft Amendment are outlined in the following table:

Table 1: Summary of the Draft Amendment

Theme	Proposed content
General	· Introduction of a more logical layout, consisting of general controls that apply to all low density residential (and ancillary) development and further controls based on the proposed land use.
General Controls	· Introduction of provisions that encourage the retention where possible of mature shade/large canopy trees, vegetation and shrubs.
Dwelling Houses, Rural Workers’ Dwellings and Associated Development	· Introduction and/or clarification of provisions relating to: - Noise generating equipment. - Minimum landscape requirements (based on Codes SEPP complying development requirements). - Private open space requirements. - Laundries in garages. - Storage. - Detached habitable rooms/studios. - Universal design (only applies when an applicant designs a dwelling to be accessible or adaptable). - Bin storage, presentation and collection. · Refinement of provisions relating to the relocation of secondary dwellings.
Secondary Dwellings	· Deletion of existing provisions relating to ‘granny flats’. · Introduction of provisions for ‘secondary dwellings’ to supplement the relevant provisions within the Affordable Rental Housing SEPP; e.g. visual and acoustic privacy, solar and daylight access.
Ancillary Structures	· Introduction of eave height for garages (or similar structures) in the R1, R2 and SP3 (> 2000m2), R3 and RU5 zones. · Greater consideration of solar and daylight access. · Introduction of provisions regarding swimming pools.
Non-Habitable Structures on Vacant Land	· Introduction of new provisions regarding non-habitable structures on vacant land, e.g. density, height, setbacks and solar/daylight access.
Dictionary	· Introduction of new terms to support draft Chapter G12: Detached habitable room, Detached studio, Solar access and Solar collector. · Deletion of the Detached habitable room (existing definition) and Granny flat definitions.

The Committee resolved (MIN19.5) to “defer this matter pending a workshop of Councillors, before the Proposed Amendment – Shoalhaven DCP 2014 – Low Density Residential is placed on draft exhibition”.

In accordance with the resolution, a Councillor workshop was held on 25 March 2019, with six (6) Councillors were in attendance. Feedback from the Councillor workshop was generally supportive; however, some changes were suggested as outlined in the following table.

Table 2: Summary of Suggested Changes from Councillor Workshop

Issue	Suggested Change	Staff Comment
1	Section 5.6 Trees and Vegetation Opportunity for replacement trees to be replanted elsewhere (e.g. Council owned land or public land) and at the scale of 2-3 replacement trees for each mature tree lost.	This suggestion has merit and has been successfully implemented in other local government areas in NSW (e.g. Sutherland Shire). On 11 December 2018, Council also resolved (MIN18.955(4)) to “Consider a subsequent report on the detail of a possible ‘tree replacement policy’ in line with those of other Councils and the previous Council resolution (MIN18.733).” It is recommended that these investigations be undertaken and reported back to Council prior to any amendments to the DCP being made in this regard.
2	Section 6.2.3 Landscaping Amend the note associated with Acceptable Solution A19.1 to make it clear that decks and hardstand areas are counted towards meeting landscape requirements.	This change could be made; however, it is noted that Shoalhaven LEP 2014 defines landscaped area as: a part of a site used for growing plants, grasses and trees, but does not include any building, structure or hard paved area The definition in the LEP excludes decks and hardstand areas from landscaped areas and prevails to the extent of any inconsistency with the DCP.
3	Section 6.2.4 Private Open Space In relation to Acceptable Solution A20.1, replace “at least 50m2” with “not less than 50m2”.	This change appears to have minimal implications and the wording has been updated at Attachment 1.

Councillors were also provided the opportunity to submit further feedback on the proposed Amendment during a two-week period following the workshop. One set of comments was received from Clr Watson.

The following table provides a summary of Clr Watson’s comments, as well as staff commentary in relation to the issues presented.

Table 3: Summary of Councillor Submission

Issue	Submission Summary	Staff Comment
1	The DCP is too prescriptive. It should be clearly performance based to avoid assessment staff taking a tough line on everything.	The draft Amendment follows the established ‘performance-based’ model where the acceptable solutions represent the preferred solution, but not necessarily the only solution. It is reasonable for a DCP to guide applicants in regard to desired outcomes in that these can be considered in the design process. If an acceptable solution cannot be readily achieved, a performance solution is always able to be put forward. Further advice would be required to identify which provisions within the Chapter require modifications, beyond those outlined below.
2	Section 5.6 – Trees and Vegetation The whole of Section 5.6 should be removed as large shade trees can cause structural damage, harbour white ants and breach the 45-degree rule. There is no space for large shade trees on small blocks.	The basis of the comment is acknowledged. The whole section has been established to retain existing mature shade/large canopy trees, vegetation and shrubs wherever practicable. This has been drafted into the commentary, objectives, performance criteria and acceptable solution. Applications would be assessed on a site by site basis as to the practicality of retention.
3	Section 6 Dwelling Houses, Rural Workers’ Dwellings and Associated Development On large properties, rural workers dwellings should provide for separation depending on the site and the location of services.	There is nothing in the proposed Amendment that restricts the separation of a rural workers dwelling from a dwelling house. It would be more appropriate for the DCP to remain silent and allow applicants to respond accordingly.
4	Section 6.1.2 Height and Setbacks It is too restrictive; if most of the houses in a street are single story a two-story dwelling cannot be erected.	Acceptable Solution A13.3 does not act to prohibit a two-storey dwelling next to a single storey dwelling. It is noted that this provision has also been adopted in the recent Medium Density Amendment to the DCP (refer to Chapter G13).
	The restriction on overshadowing recreation space is over the top and cannot always be complied with on small lots.	Acceptable Solution A13.2 seeks only to minimise the shading of adjacent private open space. Acceptable Solution A18.3 further quantifies that 10m² of private open space for the adjacent dwelling should receive at least 3 hours of direct sunlight at the winter solstice. It is reasonable for a DCP to guide applicants in regard to desired outcomes in that these can be considered in the design process.
	Front setbacks are too restrictive. Insert the word ‘generally’.	Except for introducing general rear and battle-axe setbacks, the provisions in the draft Amendment are as existing. Instead of adding the word ‘generally’ to Acceptable Solutions A14.1-A14.3, it is suggested more appropriate to rely on the existing mechanism in the DCP which enables provisions to be varied (refer to Chapter 1: Introduction of the DCP).
5	Section 6.2.3 Landscaping 35% landscaping is too restrictive and should be flexible because of other restrictions.	This provision is existing and has also been adopted in the recent Medium Density Amendment to the DCP (refer to Chapter G13). It would be more appropriate for the DCP to retain this provision for consistency with Chapter G13 and rely on the mechanism in the DCP which enables provisions to be varied (refer to Chapter 1: Introduction of the DCP). It is reasonable for a DCP to guide applicants in regard to desired outcomes, in that these can be considered in the design process.
6	Section 6.2.4 Private Open Space Insert the word “generally” to enable a private open space forward of the building line where there are constraints behind the front building line.	The provisions in the draft Amendment relating to private open space seek to ensure privacy, safety, opportunities for active and passive outdoor recreational activities and consider impact on the streetscape. These matters are generally best achieved when the private open space is located behind the building line. It would be more appropriate for the DCP to retain the proposed private open space provisions and rely on the mechanism in the DCP which enables provisions to be varied (refer to Chapter 1: Introduction of the DCP). Again, It is reasonable for a DCP to guide applicants in regard to desired outcomes, in that these can be considered in the design process.
7	Section 6.2.5 Storage and Laundry Facilities Supports the provisions, however notes that the garage dimensions are too small.	Section 6.2.5 does not prescribe garage dimensions, except to demonstrate minimum dimensions of a car and circulation space where a laundry is proposed in a garage. Chapter G21 sets a 2.6m x 5.5m dimension per space in a garage, however Council could decide to set larger garage space dimensions. Further direction would be required in this regard and any changes may require an amendment to Chapter G21.
8	Section 6.2.6 Car parking This section should be less prescriptive particularly in respect of carports where they are being retrospectively added.	It is assumed that this comment relates to Acceptable Solution A24.2 which requires car parking to be wholly located behind the building line. Where a carport is proposed, the setbacks in the DCP are to be considered which would set the structure behind (or aligned) with the front building line. To require otherwise may have the result that parking in front of the building line becomes the norm, and as such it is considered more appropriate to rely on the mechanism in the DCP which enables provisions to be varied (refer to Chapter 1: Introduction of the DCP).
9	Section 6.3.1 Building Form, Design and Materials Defeats in some cases the ability to have a two-car garage.	Acceptable Solution A26.2 specifies that the width of garage facades, where they address the street, shall not exceed 9m or 50% of the length of the frontage, whichever is the lesser. The purpose of this provision is to balance the elements along the front façade and to also enable the integration of elements (like doors and windows) which enhance the streetscape and promote passive surveillance. This provision has been adopted in the recent Medium Density Amendment to the DCP (refer to Chapter G13).
9	Same with front door, some designs look good with a side entrance. It is not possible for all balconies to overlook a public space.	Front doors, windows and balconies enable passive surveillance opportunities which is in the broader public interest. It would be more appropriate to rely on the mechanism in the DCP which enables provisions in the DCP to be varied (refer to Chapter 1: Introduction of the DCP). Again, it is reasonable for a DCP to guide applicants in regard to desired outcomes, in that these can be considered in the design process.
10	Section 6.3.2 Detached Habitable Rooms and Studios The controls on detached rooms should purely be performance-based dependant on the site constraints. There is nothing wrong with the current provisions.	The provisions for detached habitable rooms have been strengthened and made more specific. Following consideration of legal advice submitted by an applicant in relation a development application for a detached habitable room, it is considered appropriate to include: · Specific objectives relating to detached habitable rooms. · An all-weather connection between the principal dwelling and the detached habitable room. · A numeric standard to define what ‘close proximity’ means in relation to the principal dwelling.
10	Should be re-worded to generally be no further than 10m from the dwelling. There are often cases where structures exist which may be converted to studios etc.	The purpose of this provision is to reinforce that detached habitable rooms are to function as part of the principal dwelling. Council will consider applications on a case by case basis and it would be more appropriate to rely on the mechanism in the DCP which enables provisions to be varied (refer to Chapter 1: Introduction of the DCP).
11	Section 8.2 Building Form and Design There should be more flexibility with garages.	It is assumed that this comment relates to Acceptable Solution A40.2 which specifies that the width of garage façades, where they address the street, shall not exceed 9m or 50% of the length of the frontage, whichever is the lesser. Refer to the related commentary at Issue 9 in this table. This provision could be changed by Council; however, it would be appropriate to consider A26.2 and A40.2 together.

Conclusion

The recommendation seeks to proceed with Option 1 which reflects the general consensus that Council staff took from the Councillor workshop. However, it is noted that Option 2 would see the changes suggested in the workshop (issues 1 and 2 at Table 2) and the Councillor submission (Table 3) made to the draft Amendment package prior to exhibition (in part or full), should Council wish to pursue that option. It is noted that Option 2 requires some clarification in relation to certain content which can be sought prior to proceeding to exhibition.

Community Engagement

The draft Low Density Residential Amendment will be publicly exhibited for at least 28 days in accordance with legislative requirements at the Nowra Administrative Building. Documentation will also be available on Council’s website and at the Ulladulla Administrative Buildings. Development Industry representatives will be directly notified of the exhibition arrangements.

Policy Implications

The draft Low Density Residential Amendment seeks to introduce user-friendly DCP provisions in a logical structure that address gaps in policy and respond to operational matters that have arisen following the passing of time. Should the Amendment not proceed, these fundamental concerns will not be addressed.

It is proposed that draft Chapter G12: Dwelling Houses and Other Low Density Residential Development will ultimately replace existing Chapter G12: Dwelling Houses, Rural Workers’ Dwellings, Additions and Ancillary Structures.

Financial Implications

The draft Low Density Residential Amendment to Shoalhaven DCP 2014 will continue to be resourced within the existing Strategic Planning budget.

Risk Implications

Should the draft Low Density Residential Amendment not proceed, there is a risk that Council will not be able to respond to low density residential development in a way that holistically considers matters such as local character and context, good quality design and amenity and more broadly the public interest. This could result in poor built form and liveability outcomes for both residents and the broader community. There are also matters that need to be revised to ensure the planning controls continue to operate as expected/intended and resolve inconsistencies.

Development & Environment Committee – Tuesday 07 May 2019

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DE19.30 Public Exhibition Outcomes - Planning Proposal (PP023) - Anson Street, St Georges Basin - Building Heights

HPERM Ref: D19/106974

Group: Planning Environment & Development Group

Section: Strategic Planning

Attachments: 1. Submissions Summary - 2019 Exhibition - Planning Proposal - Anson Street, St Georges Basin ⇩

Purpose / Summary

Detail the outcomes of the recent exhibition of this Planning Proposal (PP) and consider the resultant next steps to finalise this proposal.

Recommendation (Item to be determined under delegated authority)

That Council

1. Proceed to organise a Public Hearing for Planning Proposal No. PP023 that applies to part of Lot 1 and Lot 6 DP 1082382, Anson Street, St Georges Basin.

2. Consider a further report on this matter and its possible finalisation following the Public Hearing.

Options

1. Resolve not to hold Public Hearing (with reasons), adopt the PP as exhibited and exercise delegation to make the resultant Plan.

Implications: This option is open to Council and would enable the PP to be finalised by Council. In resolving not to hold the Public Hearing, as requested by one of the submissions, it will be necessary to indicate the reasons. These could include:

· One submission requested a Public Hearing (being the landowner’s town planner).

· Council considers that the issues raised are not of such significance that they should be the subject of a public hearing

· Community and landowner views are established and well known

· Landowner has had the opportunity to provide comment, the detail of which is clear

· Holding a Public Hearing is unlikely to change the overriding community view or to raise any new issues not already known/considered.

If Council resolves to proceed to finalise the PP as exhibited, it also needs to decide whether, as either a standalone PP or as part of the regular Housekeeping PPs, to consider establishing a consistent mapped height of buildings (8.5m) for the other B4 and R1 zoned land to the north and south of the subject land. This is flagged in the letter from the Department that accompanied the Gateway determination and is also raised in the landowner’s submission to the PP. It may also be supported by the broader community given the concerns that have arisen with the potential development of the subject land.

2. Resolve not to hold a Public Hearing (with reasons), resolve to adopt the PP, but not exercise the delegation to make the Plan.

Implications: This option is also open to Council and would enable the PP to be finalised by Council. Given the contentious nature of this PP, the Council could opt not to use its delegations to make the Plan and write to the NSW Department of Planning & Environment and advise them of this decision. This would essentially mean that Council adopts and finalises the PP and then requests the Department to consider and make the resulting Plan.

3. Proceed to hold a Public Hearing prior to considering whether to adopt the PP.

Implications: If it was considered that the issues raised are of such significance that a public hearing should be held, the hearing would need to be independently chaired and a report prepared. The outcomes of the public exhibition period and the Public Hearing would then be reported back to Council to consider.

4. Proceed with an amended PP

Implications: Depending on the nature of any amendments, for example changing the proposed height from 8.5m to another height, the PP may require an amended Gateway determination and need to be re-exhibited to enable the community and landowner to comment.

5. Discontinue the PP process

Implications: This would see the existing height limit of 13m remain in place contrary to the Council’s original intent when it proposed the PP and contrary to community opposition.

Background

The PP covers part (eastern) of Lot 1 and Lot 6 DP 1082382, Anson Street, St Georges Basin, both of which are owned by Mr D DeBattista.

The subject land is currently zoned B4 Mixed Use and R1 General Residential under Shoalhaven LEP2014 as shown on the following map from the PP:

Current Land Use Zones – Shoalhaven LEP2014

Note: the zoning of the subject land is not proposed to be changed via this PP.

As part of the Shoalhaven Local Environmental Plan (LEP) 2014 process a 13-metre mapped height of buildings control was applied to the subject land following a submission from the landowner. The height in the surrounding areas under the LEP is a mix of 8 metres, 8.5 metres and up to 11 metres – see map below.

Council resolved on 6 December 2016 to:

Retain the current 8m height control over the western part of Lot 1 DP 1082382 and prepare a planning proposal to amend the height of buildings map over the remainder of Lot 1 and the whole of 6 DP1082382 Anson Street, St Georges Basin and remove the current 13m height and replace with 8.5m mapped height.

This triggered the start of a PP process to reduce the mapped height of buildings control from 13 metres to 8.5 metres. The following maps from the PP show the current and proposed height of buildings in this location:

Comparison Maps – Height of Buildings

Current Shoalhaven LEP2014 and Planning Proposal

Note: ‘uncoloured’ or white on the above maps means the current general height control under LEP Clause 4.3(2A) of up to 11 metres applies in these areas.

Following the December 2016 Council resolution, the Gateway determination for the PP was signed on 29 November 2017. The determination enabled the PP to proceed with conditions, including Government Agency consultation, community consultation (minimum 28 days) and a completion timeframe of 12 months (extended until 29 November 2019).

The accompanying letter from the NSW Department of Planning & Environment (DP&E) also confirmed that the ‘Plan making powers’ had been delegated to Council and recommended that Council also consider reviewing the adjoining 11 metre building height control to ensure a consistent approach in the area.

Following the issuing of the Gateway determination, the PP was publicly exhibited from 20 December 2017 until 2 February 2018.

On 14 December 2018 the Land and Environment Court of NSW declared in DeBattista v Minister for Planning and Environment [2018] NSWLEC 202 that the community consultation process was void and of no effect.

Council elected to address the defects in the PP and recommence the community consultation process. As a result, this report presents the outcomes of the most recent public exhibition process.

Public Exhibition

The PP was publicly exhibited for review and comment from 27 February until 29 March 2019 (31 days) inclusive. The PP was available at Council’s Administrative Centre in Nowra and on Council’s website during this time.

The exhibition package contained:

· Newspaper Public Notice

· Explanatory Statement

· Planning Proposal document

The exhibition package can still be viewed on Council’s internet site at the following link under the heading “Planning documents on exhibition”:

http://www.shoalhaven.nsw.gov.au/My-Council/Public-exhibition/Documents-on-exhibition

In addition to the public notice in the South Coast Register, the affected land owner, local Community Consultative Body (CCB) (Basin Villages Forum) and others were directly advised in writing of the public exhibition arrangements.

As a result of the public exhibition period a total of 217 submissions were received. The next section of this report provides further commentary with regard to the submissions received.

Overview - Submissions

Attachment 1 provides a summary of each of the submissions received during the exhibition period. Copies of the actual submissions will also be available for review in the Councillors’ Room prior to the meeting.

The following is the numerical break-up of the 217 submissions received:

· Support: 167 (includes 3 community petitions containing 483 signatures)

· Comment: 49

· Oppose: 1

In addition to the detail in Attachment 1, the following is an overview of the submissions and where relevant staff comment is provided.

Support (167)

The bulk of the submissions received were of a brief nature and detailed the following main themes or reasons for supporting the exhibited PP or opposing the current 13m height:

Overall – believe proposed 8.5m will be a better and more appropriate planning outcome that still recognises the intent of strategic planning documents. Do not want overdevelopment.

Previous Decision – decision to raise the height to 13m as part of the new LEP was wrong and needs to be corrected. Current height is not soundly based and was against staff advice.

Character – current height is inconsistent with the existing and future desired character of area. Concerned about the development that could result – 4 storey developments inappropriate for the area. Destroy its character and create an undesirable precedent. Development should be set at 8.5m consistent with other developments and buildings that are 1-2 storeys in height.

Amenity – 13m development will have a range of amenity impacts including noise, overshadowing, loss of village feel and privacy concerns, particularly on adjacent development. Some mentioned overcrowding and a move to the area to get away from high rise development. Believe 8.5m development will enable amenity to be maintained.

Visual Impact – 13m or 4 storey developments will be out of place in area and will have visual impacts. Will potentially block views to St Georges Basin. 8.5m is more in keeping with existing development and will help minimise visual impacts.

Environment – 13m will have environmental impacts. Concerns raised regarding potential stormwater impacts and associated impacts on the water quality of St Georges Basin. Some submissions refer to illegal clearing that may have occurred.

Infrastructure/Services – current and proposed infrastructure does not support development that is possible under the current 13m height. Proposed height of 8.5m is more manageable. Traffic and parking concerns raised. Inadequate public transport. Impacts and pressure on existing schools, community services and emergency services.

Viability/Land values – questions over the viability of development under the 13m height. Proposed height does not sterilise the land by encouraging economically unviable development. Smaller development of villas/townhouses and some commercial more suitable. Concerns about impact of 13m development on existing land values.

Social Impacts – Multi level development more suited to larger centres of Nowra and Ulladulla. Question who will occupy the proposed units, is there even a demand? Concerned about potential for low cost housing next to hotel/bottle shop. Will there be employment opportunities for the new residents? Not convinced development (13m) is in the community interest.

The following community groups made submissions in support of the PP:

Basin Villages Forum (CCB) – Believe the current 13m height control was an erroneous decision previously made without supporting planning basis.

The proposed 8.5m height is supported by infrastructure, is consistent with the existing and desired character, is sympathetic with existing built form and natural features, allows sustainable growth that is planned and managed, provides an appropriate density, protects and improves scenic quality, does not sterilise the land by allowing economically non-viable development and also recognises the intent of strategic planning documents for the site. Look forward to approval of the PP.

Jervis Bay Regional Alliance – PP will resolve an erroneous decision. Believe there was no justification for the original change that occurred.

The proposed height is supported by infrastructure, will provide an appropriate density, recognises the intent of strategic planning documents, allows for careful urban growth and does not sterilise the land. Congratulate Council on the initiative.

Comment (49)

The submissions that are categorised as ‘comments’ do not expressly note support or otherwise for the exhibited PP. Rather they generally comment negatively or in opposition to high rise unit development generally or as proposed under the approved and proposed developments that relate to the site.

Like the submissions in support, the ‘comment’ submissions raise jobs, infrastructure, traffic, parking, character, services, social impacts, appropriate height, school capacity, overshowing, environmental and various other concerns

Oppose (1)

The submission from Cowman Stoddart Pty Ltd on behalf of affected landowner, Mr D DeBattista, provides the following reasons for objecting to the PP:

Ad hoc Planning Proposal – Is not being pursued for proper planning reasons. Trying to thwart development proposal currently before Court. Height reduction would have effect of prohibiting the development. Client invested money based on existing controls.

Acknowledge can amend planning controls – should occur strategically, following due process. Should review height limits in the overall area, not just client’s land. Gateway determination includes statement about revising the 11m height control on adjacent land to ensure a consistent approach in the area.

Have failed to undertake broader review. Propose a more stringent height on the subject land when compared to adjacent and same R1 and B4 zones without strategic justification.

The 2016 Council resolution on Strategic Planning Works Program included the following: undertake assessment of the urban areas in the Bay and Basin area. Height should be considered in an exercise like this. Have failed to act on the resolution. The July 2017 Works Program does not include the project - suggests there is not a high priority or need to review the planning provisions in this locality, including building heights.

Failure to undertake this broader consideration reinforces view that PP is premature and specifically intended to thwart the proposal before Court. There is no strategic process underpinning. It should result from a broader review. PP has not been subject of such an assessment and is premature.

Staff Comments – The PP does not thwart development of the land, though it would mean that the concept proposals currently the subject of appeals in the Court would be hard to justify unless a savings provision was included in the Plan. It is unusual to include savings provisions in amendments to LEPs and the Department has not required one to be included. Should the PP be adopted and the LEP be amended then the new height becomes one of the principal controls for consideration for the Court but does not necessarily prohibit the development.

The Council resolved to request the General Manager prepare a report considering options for reducing the height limit for this land on 25 October 2016 and then to prepare the PP on 6 December 2016. The development application currently before the NSW Land and Environment Court was lodged with the Council on 24 March 2017, some months after the date the Council resolved to prepare the PP. There is therefore no substance in the suggestion that the PP was specifically intended to thwart the proposal before the Court.

Councils are able to undertake amendments to their planning controls following the processes set in legislation. This does not necessarily need to follow or be an outcome of a strategic planning process. In this regard, for example, it is noted that the current 13m height control resulted from an individual submission received during the Shoalhaven LEP2014 process. It did not result from a strategic or more detailed investigation to establish a specific height for the subject land or the broader locality.

The actual Gateway determination that was issued for this PP dated 29 November 2017 does not, as suggested, require or recommend that Council review the current adjoining 11m building height controls to ensure a consistent approach in the St Georges Basin Area. This recommendation is actually in the covering letter from the NSW Department of Planning that accompanied the determination and it is noted in the letter for Council to ‘consider’.

The recommendation from the Department regarding reviewing the overall 11m building height control is still open to Council to consider should it wish to ensure consistency in the area, but it was not a recommendation or requirement of the Gateway determination, otherwise this would have been addressed prior to the PP proceeding to public exhibition.

Undertaking a review of the 11m building height control that currently applies to the adjoining land that is similarly zoned B4 and R1 is discussed in this report as an option that Council can consider.

The current Strategic Planning Works Program that was adopted by Council on 5 June 2018 does include an active ‘high priority’ project to review the Shoalhaven Growth Management Strategy, as part of this the Jervis Bay Settlement Strategy will also be reviewed. This is the outcome of the previous Council resolution referred to in the submission re “an assessment of the urban areas in the Bay and Basin area”. This will essentially be a higher order consideration of the opportunities for additional new longer term urban areas in the Jervis Bay-St Georges Basin area and will not necessarily focus on reviewing or setting building heights in existing urban areas.

Council has commenced the review of the Shoalhaven Growth Management Strategy and an initial Discussion Paper was released for comment in late 2018.

Inconsistency with s117 Directions – PP must demonstrate consistency with Ministerial Directions, including Directions 1.1 Business & Industrial Zones and 3.1 Residential Zones.

The Directions outline circumstances where a PP may be inconsistent if the planning authority can satisfy the Department the inconsistences are: justified by strategy, justified by study, in accordance with a Regional Plan or minor.

PP justifies Direction 1.1 and 3.1 inconsistencies on basis of minor significance (range of reasons provided in PP to support this). Have contrary view – PP cannot be considered minor.

Council’s own PP Guidelines define a ‘minor’ PP as needing one or more specialist study – this PP relies on two specialist studies. Thus, cannot be considered ‘minor’.

Just because the PP only applies to a small portion of the similarly zoned land in the area and City, this alone should not form the justification for the PP. Dangerous precedent for ad-hoc proposals that are not consistent with strategic planning.

No consideration given to potential lost housing yield. Reduced opportunity here will potentially lead to pressure on urban fringe - Contrary to objectives of Direction 3.1. Also, no broader review undertaken of similarly zoned land.

Fail to provide sufficient justification that PP is minor. If it is not minor, then needs to be justified by a strategy or study – in the absence of this justification, the PP should not proceed as it will be inconsistent with Directions 1.1 and 3.1.

Staff Comments – The views regarding the consistency of the PP with the Ministerial Directions are noted, however the PP contains Council’s justification for the inconsistency with the Directions. Briefly the justifications in the PP document are as follows:

Direction 1.1 – inconsistencies are of minor significance because:

· PP relates to small defined area at St Georges Basin and does not propose to change its zone.

· The part in the B4 zone comprises a small portion (0.92%) of the overall B4 zoned land in the City.

· Proposed height is more consistent with existing provisions that apply to other B4 zoned land in the St Georges Basin Town Centre that is mapped at 8.0 metres in the LEP.

Feasibility analysis also considers the Direction’s objectives and the inconsistency is also potentially justified by this analysis.

Direction 3.1 - inconsistencies are of minor significance because:

· PP relates to small defined area at St Georges Basin and does not propose to change its zone.

· Existing zones will still provide for a variety of housing types and choices.

· Affects only a 1.97ha portion, or approximately 19%, of the R1 zoned land in this location.

· Subject land comprises small portion (0.14%) of the total R1 zoned land within the City.

The Feasibility analysis also provides some relevant commentary in this regard.

The covering letter from the NSW Department of Planning & Environment that accompanied the 2017 Gateway determination also indicates that “I have also agreed, as delegate of the Secretary, the Planning Proposal’s inconsistency with Section 117 Directions 1.1 Business and Industrial Zones and 3.1 Residential Zones are justified in accordance with the Directions”.

The Department is obviously comfortable with the PP’s inconsistency with the directions in question, otherwise they would not have issued the Gateway determination or would have required additional justified, possibly prior to exhibition, which was not the case.

In regard to the comments about not meeting the ‘minor’ designation under Council’s own PP Guidelines, it is noted in part in the ‘Purpose’ section of the Guidelines that:

“It provides a framework for all PPs within the City with a particular focus on issues associated with proponent initiated PPs”.

The focus of the Guidelines is mainly on circumstances when the Council will consider proponent-initiated PP’s and the process that they need to follow, not the present circumstances where the PP is initiated by the Council.

Irrespective of the submissions conclusion that the PP should not proceed on the basis that it will be inconsistent with Ministerial Directions 1.1 and 3.1, in issuing the Gateway determination the NSW Department of Planning & Environment concluded that any inconsistency is justified in accordance with the Direction. Thus, the PP can be considered.

Inconsistency with broader strategic planning framework – PP is unable to demonstrate consistency with broader planning strategies: Illawarra-Shoalhaven Regional Plan, Jervis Bay Settlement Strategy and Coastal Design Guidelines.

It does not articulate how reducing height (and residential density) will achieve the objectives of these strategies. The PP is not consistent with their objectives.

The Character Assessment and Urban Design Review states the strategies have strong themes around recognising existing character – this is not correct. Their objectives seek to meet changing demand, with development character to meet existing or desired future character (including up to 4 storeys in height).

Staff Comments – The PP is not considered to be inconsistent with the objectives of the strategies. The planning strategies in question are by their nature broad and high level. They are not specific about, for example, proposed heights of building at St Georges Basin. It is also noted that the underlying zones are not proposed to be changed and as such a range of activities are still able to be considered which is in keeping with the intent of the strategies.

The PP indicated that overall it is ‘not inconsistent’ with the broad goals of the Regional Plan. The Regional Plan does, for example, encourage growth in locations where population growth is already occurring, such as the Nowra Centre that is identified as a ‘major regional centre’ in the plan. Vincentia and Ulladulla are also identified under the Plan as ‘regional centres’, but St Georges Basin is not identified. Centres in Shoalhaven that are identified as a focus for increased housing activity include Nowra-Bomaderry, Huskisson and Ulladulla.

The Regional Plan goes on to note that, based on planning analysis of existing urban areas, and current market conditions multi-unit development is likely to occur in parts of Wollongong and Kiama, apartments in metro Wollongong and a lesser extent Kiama and dual occupancies in Huskisson and Berry. It also acknowledged that demand for multi-unit housing is uneven. It suggests that a ‘place-based’ approach consider centres that have access to transport.

It is noted that the ‘urban renewal’ section of the Jervis Bay Settlement Strategy does encourage “mixed use developments in commercial centres, including shop top housing”. It is however not specific about setting heights in centres. The PP still allows growth or urban renewal as the underlying zones are retained unchanged. These zones combined with the proposed height of 8.5m still enable a range of development opportunities, including shop-top housing, town houses, dual occupancies and villas, all of which are more suitable and in character than four storey residential flat buildings and four-storey shop-top housing.

Under the NSW Coastal Design Guidelines, St Georges Basin on its own is considered to be a ‘coastal town’. The Guidelines note that ‘coastal towns’ are small centres with populations between 3,000 and 20,000. Council’s population forecast data indicates that the 2019 population of the combined St Georges Basin – Basin View area is estimated at 4,658.

If the ‘coastal town’ designation is accepted, the Guidelines note the following relevant issues:

· Under pressure to grow

· More at risk from impact of increased traffic and potential loss of identity

· Less likely to benefit from public transport and less able to accommodate large scale new buildings than cities

· Existing character can easily be lost to suburban sprawl or tall buildings

In the commentary on ‘Desired Future Character’ for ‘coastal towns’ the Guidelines, amongst other considerations, suggests the following are relevant in this circumstance:

Buildings

· Predominant building types in town centres are small apartment buildings, mixed use, shop top housing, town houses, terraces, detached houses/commercial/retail, education and civic buildings.

· Predominant building types in suburban area include small apartment buildings, town houses, semi-detached and detached dwellings.

· Development is predominantly low scale.

Height

· Generally heights of up to four storeys in town centres.

· Generally heights of up to two storeys in suburban areas.

· Heights are subject to place-specific urban design studies. New development is appropriate to the predominant form and scale of surrounding development (either present or future), surrounding landforms and the visual setting of the settlement.

Thus, whilst it is noted that the Guidelines indicate that up to four storeys may be appropriate in town centres they also go on to advise that heights are also subject to place-specific urban design studies. The subject land also sits outside the ‘neighbourhood centre’ identified in the existing DCP.

In this case a specific urban design review was undertaken, and it concluded that a two-storey maximum on this site would create a modest transition of a maximum of one storey between existing and new development which is consistent with the existing character of the surrounding area.

Regarding the suggestion in the submission that the Character Assessment and Urban Design Review is wrong and is suggesting the existing strategies have strong themes around recognising existing character, it is noted that the three documents in question include commentary (in some cases limited) on existing character and desired future character. For example, the Jervis Bay Settlement Strategy includes the following commentary in the ‘Urban Renewal’ Section:

“The challenge is to ensure that future demands for housing and accommodation can be achieved without detrimental impacts on the Region’s natural attributes, are consistent with urban servicing and infrastructure capabilities, and are designed to complement rather than detract from the Region’s Character”.

The Coastal Design Guidelines also includes the following comment in the ‘Forward’ from the then NSW Minister for Planning, Dr Andrew Refshauge MP:

“This direction gives importance to the special qualities of each and every place. It recognises what these qualities are and offers design solutions which maintain a rich and diverse coast for everyone. The Guidelines provide a best practice framework for ensuring that design reflects the character of different places”.

Thus, the existing strategies recognise the importance of existing character and protecting it wherever possible. They equally also recognise desired future character and the need to establish this through appropriate processes giving due consideration to what is existing.

Desired character of development – Attempt to justify height reduction based on the surrounding development, particularly residential areas to east and west. The example areas are zoned R2.

The R2 zone focusses on low density development primarily of detached housing. Objectives of R1 and B4 zones focus on different development forms, not low-density housing, and a range of higher density housing forms are permissible.

The PP tries to justify the height also on the DCP for the adjacent neighbourhood centre which seeks to limit height to a bulk/scale related to existing surrounds/natural attributes. DCP provisions are subservient to LEP. Subject land not part of neighbourhood centre. DCP identifies higher density housing as suitable land use for site – reducing height would not be consistent with this.

Support material fails to integrate the desired future character for the land that is zoned differently to other referenced land. Zones permit higher density, not appropriate to set same height as is applied to lower density zones. Should also investigate similarly zoned lands.

Inappropriate to compare R2 zoned land with R1/B4 zoned land. Fail to demonstrate sufficient strategic planning merit to reduce height.

Staff Comments – Irrespective of the zoning of surrounding or adjacent land it is still reasonable and appropriate to consider the existing and likely form (e.g. building height) of development in these areas to enable impacts associated with overshadowing, amenity etc. to be better managed. Not that this was the sole basis for justifying the height reduction.

The comment that DCPs are subservient to LEPs is acknowledged. However, the B4 zoned land (part of which is in the same ownership as the subject land) to the west of the subject land that is within the ‘neighbourhood centre’ identified in the DCP is already mapped at 8.0m in the LEP.

The part of the subject land that is zoned B4 is subject to the provisions of the DCP. In this area that is shown on the DCP map as “#Future Uses See Statement#”, the following ‘performance criteria’ and ‘acceptable solutions’ are relevant:

Performance Criteria - The land adjoining the Neighbourhood Centre may be used for a number of uses which support the economic viability of the area.

Acceptable Solutions - Appropriate land use activities may include Seniors Living, Tourist accommodation establishments, Tourist and Recreation Facilities, Higher Density and Medium Density Housing.

There are a range of other provisions in the DCP that are relevant to this part of the subject land and that are also relevant regarding desired development outcomes, including:

· need to retain vegetation to promote habitat for yellow bellied glider and treed amenity.

· building design to reinforce neighbourhood character while promoting good innovative design which delights and interests the local community.

· Building mass/scale should complement rather than dominate its natural surroundings.

Also looking back at the original Planning Statement (1985) for the then Business 3(g)(development) zoned part of the land (part now zoned B4) gives an insight into the original thinking behind the larger zone in this location and what it was envisaged it would become. The Statement notes the following ‘objective’:

“To promote the development of a small neighbourhood shopping centre, together with associated activities to serve the local area”.

The Statement goes on to note that “recreation/tourist accommodation/residential uses to be on the higher land towards the east and north”.

As such the original Statement was silent on the form of residential use and its height/density.

Character is not solely determined by the existing zoning of land; various considerations come into play and not just the fact that an existing zone allows a more intensive form of development. In this regard the long established DCP for this area includes various provisions relevant to character and development outcomes.

It is also still open to Council to consider whether it also wishes to review the current height of buildings control that applies to the other B4 and R1 zoned land in this area. Most of the other B4 zoned land to the north is currently vegetated and largely undeveloped. The other R1 zoned land to the south is currently occupied by a manufactured home village (Rosedale Village) made up of predominantly low scale single storey dwellings, large vegetated lots with single dwellings. Further south is another area of B4 zoned land that is occupied by the Aveo Retirement Village which is made up of predominantly single storey development.

The community has raised strong concerns about the nature of the development that could occur on the subject land under its current zoning and height of building control. Depending on the nature of future development on the remaining B4 and R1 zoned areas there is the potential for future community concern. As such it may also be appropriate to review the current general height provision of 11m that applies to these areas and determine whether it needs to ultimately be consistent with the subject land or a specific height applied.

Feasibility analysis – Existing height could actually ‘sterilise’ land is not justified. There are various scenarios possible under current zones and height. If 13m development is not financial, will do something else that is permissible (e.g. multi dwelling housing) and that will deliver a suitable return.

Staff Comments – The Feasibility Assessment referred to is a reasonable assessment of what could eventuate if a potentially unrealistic height control is retained on the land and the expectations that are created as a result.

Concluding Comments – There is insufficient strategic planning merit to justify the change. It should not proceed and not be supported by Council. If Council decides to proceed, then a public hearing is requested, with the results to be considered before Council decides whether to make the plan.

Staff Comment: As noted, the existing underlying zones will be retained and along with the proposed building height of 8.5m; this will still enable a range of possible land uses that would complement and build on the existing St Georges Basin centre consistent with the broad intent of existing strategies.

In regard to the public hearing request, the Gateway determination that was issued on 29 November 2017 includes the following condition:

“A public hearing is not required to be held into the matter by any person or body under Section 56(2)(e) of the Act. This does not discharge Council from any obligation it may otherwise have to conduct a public hearing (for example, in response to a submission or if reclassifying land).”

The previous Section 57(5) of the NSW Environmental Planning & Assessment Act also provided that, if:

“(1) a person making a submission on a planning proposal requests a public hearing; and

(2) the Council considers that the issues raised in the submission are of such significance that they should be the subject of a hearing,

the relevant planning authority (in this case Council) is to arrange a public hearing on the issues raised in the submission”.

However, this legislative provision has been repealed.

The NSW Department of Planning & Environment’s Guide to Preparing Local Environmental Plans however still includes Section 6.5.3 Public Hearings which says that a Planning Proposal Authority (PPA), in this case Council, can decide to conduct a public hearing into any issue associated with a PP. A person making a submission on a PP can also request that a public hearing be held into the issues raised in their submission. If the PPA considers that the issues raised are of such significance that they should be the subject of a hearing, then PPA must arrange a public hearing.

Whilst there is no legislative requirement to hold a public hearing, it is prudent for Council to consider whether the issues raised in this submission are significant enough that they need to be the subject of a public hearing. The following comments are offered on relevant considerations in this regard:

Give proper consideration to the issues raised – The submission received from Cowman Stoddart Pty Ltd on behalf of the affected landowner is detailed and documents various comments and concerns regarding the PP. An overview of the information contained in the submission (full copy available for review in Councillors’ Room prior to meeting) is provided above and where relevant Council staff comment is provided on the issues raised. Thus, Council can properly consider the issues raised in determining whether to proceed with the PP.

Has landowner had sufficient opportunity to make representations about the proposed height limit change – The submission received from the landowner is a detailed focus of this report and he (or his representatives) will be afforded an opportunity to give a deputation to the Committee when this matter is considered. This will provide a further opportunity for the landowner to make direct representations to the Committee on the PP.

Whether a public hearing would facilitate public debate about the desirability of the proposed change – A public hearing is not an end in itself. Its function would be to inform potential outcomes where the views of the community are not otherwise known. In this instance a Public Hearing would provide an additional opportunity for both the landowner and the community to express their views on the PP. However as outlined in this report there is widespread community support for the PP and the proposed height of 8.5m, no alternative commentary was received, other than from the landowner and his representatives. The debate has been conducted by the community already. As such it is unlikely that a Public Hearing would result in a change in community views on the PP or greater understanding of the issues.

Issues raised with PP – only one (1) of the two hundred and seventeen (217) submissions received by Council objected to the PP, raising several issues to support this objection. This submission was received from Cowman Stoddart Pty Ltd on behalf of the landowner. The issues raised are detailed in this report, along with Council staff commentary where relevant.

Would a Public Hearing assist Council to consider the issues raised in the submission – This would potentially provide an opportunity for the issues raised in the submission to be further outlined, discussed and documented. However, it is envisaged that these will most likely be the same as the points already raised in the written submission that Council has received. As such holding a Public Hearing may not actually further assist Council consider the issues being raised and is not likely to result in new matters that have not been considered.

Council essentially has two options in this regard to the Public Hearing request:

Option 1 – Not hold a Public Hearing and proceed to consider the finalisation of the PP without one. If this option is taken it will be necessary to record Council’s consideration of the request and its reasons for deciding why a Public Hearing is not required in this instance.

Option 2 – Resolve to hold a Public Hearing on the PP. This would involve giving notice of the Public Hearing arrangements in a local newspaper and letting relevant parties know the arrangements at least twenty-one (21 days) before the date of the hearing. The hearing would need to be independently chaired and a report prepared. The outcomes of the public exhibition period and the Public Hearing would then be reported to Council to consider.

Conclusions

There is obviously community interest in the subject land and the PP that has been exhibited as shown by the number of submissions that supported or commented on the proposal.

Council needs to consider the next steps that it wishes to take regarding the PP. In this regard as part of the submission from the affected landowner, that objected to the PP, it was requested that Council hold a Public Hearing prior to considering the finalisation of the PP.

As discussed in the report it may prudent to hold the requested Public Hearing before considering the finalisation, or otherwise, of the PP, noting the principal reason for doing so is that the issues raised are of such significance that they should be the subject of such hearing.

Also, as discussed in the report, should Council ultimately decide to proceed to finalise the PP, it would also be appropriate to consider applying a consistent mapped height of buildings (e.g. 8.5m) to the other adjacent B4 and R1 zones in this location. This could be done via a stand-alone PP or as part of one of the Housekeeping PP’s.

Community Engagement

The PP was formally public exhibited in accordance with the Gateway determination from 27 February until 29 March 2019 (31 days) inclusive. This report details the submissions received as a result of the public exhibition.

Council has received a request to hold a Public Hearing regarding the PP and needs to decide whether to hold one. If a Public Hearing is held, this will provide a further opportunity for comment engagement.

Policy Implications

Given that similar zones exist to the north and south of the subject land, Council needs to decide whether to also adjust the height of buildings provision for this similarly zoned land to reflect the outcome of this PP when determined.

This would ensure that a consistent height control also applies to the adjacent B4 and R1 zones, that are currently unmapped and rely on the general 11m height provision. This could be done as a standalone PP or as part of a future Housekeeping PP.

It is noted that most of the remaining B4 zoned land is vegetated and undeveloped. The R1 zone is however already partially developed as 1 to 2 storey development, with the remainder undeveloped and vegetated. There is the potential that applying a lesser height control (e.g. 8.5m) may be resisted by the affected landowners but may also be supported by the broader community given the issues that have arisen with the proposed development of the subject land.

Financial Implications

This PP is currently being managed within the existing Strategic Planning budget.

Risk Implications

The December 2018 Land & Environment Court Judgement regarding this PP is the subject of an appeal to the NSW Court of Appeal, the outcome of which is unknown at this point.

There is also the potential that if a Public Hearing is not held this could create grounds for further legal challenge.

Development & Environment Committee – Tuesday 07 May 2019

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DE19.32 Proposed Submission - Aboriginal Land Claim No.25421 and Part Claims No.42499, 42454, 42448 and 42485 - Ulladulla

HPERM Ref: D19/103982

Group: Planning Environment & Development Group

Section: Strategic Planning

Attachments: 1. Request For Information - Aboriginal Land Claims (ALCs) 25421 / Part Claims 42454 / 42448 / 42499 / 42485 - Ulladulla ⇩

2. Map - Council Utilities - Aboriginal Land Claims (ALCs) 25421 / Part Claims 42454 / 42448 / 42499 / 42485 - Ulladulla ⇩

3. Overview of Contributions Plan 1993 Projects - 05ROAD0006 & 05ROAD0008 ⇩

Purpose / Summary

Obtain endorsement to make a submission on Aboriginal Land Claim (ALC) Numbers 25421 (full) and part claims 42499, 42454, 42448 and 42485 at Ulladulla, which are now being investigated for determination by the NSW Government.

Recommendation (Item to be determined under delegated authority)

That Council notify the NSW Department of Industry – Crown Lands Aboriginal Land Claims Investigation Unit that:

1. In relation to part Claim Numbers 42448 and 42485 over Lot 16 DP 1105304:

a. Council has no objection to these claims subject to:

i. The exclusion of land identified for the planned future southern extension of St Vincent Street, which also contains Council infrastructure for drainage and wastewater disposal; and

ii. The exclusion of land on the western boundary that contains Council infrastructure for wastewater disposal.

2. In relation to Claim No. 25421 and part Claim Numbers 42499 and 42454 over Part Lot 245 DP 755967, and part Claim Numbers 42448 and 42485 over Lots 286 & 287 DP 755967 and Lot 2 DP 631894:

a. Council does not support these claims because at the date of claim lodgement:

i. The land was likely to be needed for an essential public purpose, being the planned future southern extension of St Vincent Street and connector road and roundabout to the Princes Highway; and

ii. The land contains a significant amount of Council infrastructure for drainage, water supply and wastewater disposal that services the southern Ulladulla area.

Options

1. Advise the NSW Department of Industry (DoI) – Crown Lands Aboriginal Land Claims Investigation Unit (ALCIU) that Council has no objection to part ALC Numbers 42448 and 42485 over Lot 16 DP 1105304 subject to the exclusion of land identified for the planned future southern extension of St Vincent Street, and land on the western boundary that contains existing Council infrastructure that is not currently protected by an easement. However, Council does not support ALC Number 25421 and Part Claims 42499 and 42454 over Part Lot 245 DP 755967, and Part Claims 42448 and 42485 over Lots 286 & 287 and Lot 2 DP 631894 because, at the date of claim lodgement, the land was likely to be needed for an essential public purpose and contained a substantial amount of drainage, water and wastewater infrastructure that services the south Ulladulla area.

Implications: This is the preferred option, as it enables Council to assist DoI with their investigations into the status of the land at the date the claims were lodged. This option ensures that the land that is subject to the planned future southern extension of St Vincent and associated connector road and roundabout to the Princes Highway is preserved for this significant project, which will enable the orderly development of the surrounding employment lands.

2. Provide alternative advice to the DoI as directed by Council.

Implications: This option is not preferred, having regard to the known history of the land at the date the claims were lodged.

3. Not respond to the invitation to comment on these ALCs.

Implications: This is not preferred as it does not enable Council to present evidence to DoI regarding the status of the land at the date the claims were lodged.

Background

Council received advice from DoI on 5 March 2019 that ALC Number 25421 and part Claim Numbers 42499, 42454, 42448 and 42485 at Ulladulla, were under investigation for determination.

These claims were lodged over land in the Industrial / Bulky Goods precinct at South Ulladulla, which is subject to a future road project that has been identified for over forty (40) years. The investigation of these claims was initiated at Council’s request to resolve the claims and provide some certainty for the future viability of the Council road project and the subsequent development of the surrounding employment lands.

The claims affect the land as follows (as shown in Figure 1):

· ALC No. 25421 – Part Lot 245 DP 755967

· Part ALC No. 42499 (blanket claim) – Part Lot 245 DP 755967

· Part ALC No. 42454 (blanket claim) – Part Lot 245 DP 755967

· Part ALC No. 42448 (blanket claim) – Lots 286 & 287 DP 755967, Lot 16 DP 1105304 and Lot 2 DP 631894

· Part ALC No. 42485 (blanket claim) - Lots 286 & 287 DP 755967, Lot 16 DP 1105304 and Lot 2 DP 631894

Figure 1: Aerial image of the subject land, outlined in orange.

Council has been asked to provide comment on the claims (see Attachment 1) and specifically whether, at the date the claims were lodged, the subject land was:

· Lawfully used or occupied

· Needed or likely to be needed for an essential public purpose.

Any comment, assertion or statement that is made by Council should be as at the date of claim lodgement (see below) and must be supported by evidence.

· ALC No. 25421 – lodged 3 June 2010

· Part ALC Nos. 42454 & 42448 – part of the blanket claims lodged 15 December 2016

· Part ALC Nos. 42499 & 42485 – part of the blanket claims lodged 19 December 2016

Council has been granted an extension of time until 17 May 2019 to respond to the claims to enable the matter to be reported for consideration.

Overview Summary of the Subject Land

As noted above, the subject land consists of five (5) lots that are located within the Industrial / Bulky Goods Precinct at South Ulladulla. The land is bounded by the Princes Highway to the east, Camden Street to the west, and other Industrial / Bulky Goods-zoned land to the north and south, including the former Ulladulla Sewage Treatment Plant (STP). Council is not Trust Manager for any of the five lots affected by the claims.

The land is subject to a future Council road project that is identified within Council’s Contributions Plan (CP) 2010 (Project 05ROAD3008), as shown in Figure 2 below. This project is recognised as a critical piece of infrastructure to enable the orderly development of the surrounding employment lands and provide connectivity to the future Milton-Ulladulla Bypass, with the land being earmarked for this project for over forty years.

Figure 2: Extract from Council's Contributions Plan 2010 Road Project 05ROAD3008,
subject land outlined in black dashed line, future road shown in red.

A summary of each of the affected lots is provided below.

Lot 16 DP 1105304

Has an area of approximately 8,647m² and is zoned IN2 Light Industrial. The land is reserved for “Future Public Requirements” and was gazetted as such on 29 June 2007. It adjoins the Dunn & Lewis Centre to the north and is affected by the proposed future extension of St Vincent Street along the south-western extent of the lot.

The land is heavily vegetated and does not contain any structures; however, it does contain some Council utilities for wastewater and drainage (as shown in Attachment 2), some of which are protected by existing easements measuring 2.4 and 20m wide.

Lot 2 DP 631894

Has an area of approximately 1.38ha and is zoned part IN2 Light Industrial and part B5 Business Development. The land is reserved for “Future Public Requirements” and was gazetted as such on 29 June 2007. It adjoins the former Ulladulla STP site and is affected by the proposed future extension of St Vincent Street and Connector Road to the Princes Highway. It should be noted that this lot was formerly owned by Council; however, it was transferred to Crown Lands on 7 November 1983.

The land is heavily vegetated except for a small clearing on the western corner, which is used for informal access to the adjoining land to the south. The land does not contain any structures; however, does contain a significant number of Council utilities for wastewater, water supply and drainage, which are not currently protected by any easements.

Part Lot 245 DP 755967

Has an area of approximately 5,950m² and is zoned part IN2 Light Industrial and part B5 Business Development. The land is reserved for “Future Public Requirements” and was gazetted as such on 15 May 1968. It adjoins the Princes Highway to the east, and the south-western corner is affected by the proposed future Connector Road to the Princes Highway, although the final alignment is yet to be determined.

The land is predominantly vegetated, although there is a clearing with direct access from the highway that appears to be used for informal parking for neighbouring businesses. The land does not contain any structures; however, it does contain Council utilities for wastewater and drainage, which are not currently protected by any easements.

Lot 286 DP 755967

Has an area of approximately 3,430m² and is zoned part IN2 Light Industrial and part B5 Business Development. The land is reserved for “Future Public Requirements” and was gazetted as such on 29 June 2007. A large portion of the lot is affected by the proposed future Connector Road to the Princes Highway and the roundabout intersection.

The land is predominantly vegetated and does not contains any structures; however, it does contain Council utilities for wastewater and drainage, which are not currently protected by any easements.

Lot 287 DP 755967

Has an area of approximately 3,430m² and is zoned IN2 Light Industrial. The land is reserved for “Future Public Requirements” and was gazetted as such on 29 June 2007. A large portion of the lot is affected by the proposed future Connector Road to the Princes Highway and the roundabout intersection.

The land is predominantly vegetated and does not contain any structures; however, it does contain Council utilities for wastewater and drainage, which are not currently protected by any easements.

Overview of Future Road Project

As noted earlier in this report, all five (5) lots are subject to a Council road project that is identified in Council’s CP 2010, being Project Code 05ROAD3008. The project involves:

· Southern extension of St Vincent Street;

· Connector road between Camden Street and the Princes Highway (which will be extended to the west to connect to the future Milton-Ulladulla Bypass); and

· Roundabout intersection at Connector Road / Princes Highway / Dowling Street.

This project was retained during the recent review of the CP 2010 as it is deemed critical to enabling the orderly development of surrounding employment lands and connection to the future bypass. It should be noted that Council formally endorsed the revised CP on 2 April 2019, and this will become effective on 29 May 2019 as the CP 2019.

Project History

The project was initially identified in the late 1970s-early 1980s during the preparation of the Milton-Ulladulla Planning Scheme Proposal, which was used to inform the preparation of the Shoalhaven Local Environmental Plan (SLEP) 1985. This report predicted that St Vincent Street would play a more important role in the local street network and proposed to extend the road to the south and link this to the Princes Highway, which was subsequently identified in the SLEP 1985 (see Figure 3).

Figure 3: Extract from the SLEP 1985, dated 12/12/1984, identifying the proposed road alignment.

A further study of the Milton-Ulladulla arterial road system in 1987 predicted that future traffic demand in the Milton-Ulladulla area would increase significantly and recommended a two-stage solution, being the extension of St Vincent Street, and construction of a new Connector Road to the future bypass and intersection at the Princes Highway. The two projects were subsequently included in Council’s CP 1993 as Project Codes 05ROAD0006 and 05ROAD0008, with the aim of enabling the orderly and logical development of surrounding employment lands, diverting heavy vehicular traffic away from nearby residential areas and, in the longer term, connecting to the future Southern Link Road/Milton-Ulladulla Bypass and possible future urban expansion area. An overview of these projects is provided in Attachment 3. An amendment to the CP 1993 in 2000 saw the two projects amalgamated to form the current project 05ROAD3008, which was then incorporated into the CP 2010 and subsequently retained through the recent CP review.

It is important to note that this project has been identified as part of the long-term strategy for the Milton-Ulladulla road network for forty (40) years and the project has been gradually refined over the years as Council moves closer toward project delivery. Although detailed survey and design works for this road have not yet been undertaken, Council still intends to construct this road and intersection at the appropriate time as demand increases and contributions are levied.

Thus, it is important for these claims to be resolved in a timely manner to enable Council to have some certainty over the viability of this future road project and also the development of surrounding employment lands.

Impact of Native Title

In addition to the subject ALCs, the land is also affected by the blanket Native Title Claim that was lodged by the South Coast People over the South Coast of NSW in August 2017. The Native Title Claim does not prevent Council from undertaking the necessary works required for the road if the land remains in public ownership. However, if the ALCs are granted, Council will be unable to negotiate land acquisition or the creation of easements with the benefitting Aboriginal Land Council until Native Title has been determined. This does have the potential to delay the project.

Summary of Claims

As noted above, a total of five (5) ALCs have been lodged over the subject land and are now the subject of investigation by DoI. Four of these claims are part of the “blanket” claims that were lodged by the NSW Aboriginal Land Council in December 2016.

The following comments are provided regarding Council’s interests in relation to each claim.

Claim Number 25421

Lodged over the entire Part Lot 245 DP 755967 on 3 June 2010. At the date of claim lodgement, the land was vacant apart from some Council utilities, being a gravity-fed sewer main that was installed in 1976 and a stormwater drainage line that was installed in 1972. This infrastructure is not currently protected by an easement. As noted earlier in this report, the land has been identified for an essential public purpose, being a road, for over forty years.

Thus, Council should not support this claim on the basis that, at the date of claim, the land was likely to be needed for an essential public purpose.

Part Claim Numbers 42454 and 42499

Part of the blanket claims lodged on 15 and 19 December 2016, respectively, and affects the entire Part Lot 245 DP 755967. As noted above, at the date of claim lodgement the land was identified for a future Council road project and was vacant apart from some Council utilities that are not protected by an easement.

Thus, Council should not support this part of the claims on the basis that, at the date of claim, the land was likely to be needed for an essential public purpose.

Part Claim Numbers 42485 and 42448

Part of the blanket claims that were lodged on 15 and 19 December 2016, respectively, and affect Lots 286 & 287 DP 755967, Lot 16 DP 1105304 and Lot 2 DP 631894. As noted above, at the date of claim lodgement the land was vacant; however, it did contain a substantial number of Council utilities, being water supply, wastewater and stormwater drainage, as shown in Attachment 2.

As noted earlier in this report, the land has been identified for an essential public purpose, being a road, for over forty years. For Lot 16 DP 1105304, the proposed alignment of the future extension of St Vincent Street is relatively straightforward and can be accommodated within the 20m wide easement on the eastern portion of the lot. Thus, Council should not object to the part of the claims that affect Lot 16 subject to the exclusion of land identified for the future extension of St Vincent Street, and the area along the western boundary that contains Council wastewater infrastructure.

However, Council should not support the parts of the claims that affect Lot 286 & 287 DP 755967 and Lot 2 DP 631894, as detailed survey and design work has not yet been undertaken and the precise alignment of this section of the road is not known. Thus, to protect the future road corridor and existing Council utilities, it would be prudent to refuse these parts of the claims on the basis that, at the date of claim lodgement, the land was likely to be needed for an essential public purpose.

Financial Implications

There are no direct financial implications in providing this advice to DoI. As Council is not Trust Manager for the land, there is no financial responsibility for Council regarding maintaining the land; however, Council is responsible for the maintenance of all Council utilities located on the land.

Should the claims be refused (except for part of Lot 16 DP 1105304 noted above), the alignment of the future road reserve will be protected, which will provide certainty for the future viability of the road and development of the surrounding employment lands. Council will continue to be responsible for the maintenance of all Council utilities located on the land.

Should the claims be granted subject to the creation of easements for existing Council utilities, the future of the road project will be uncertain as Council will be unable to enter negotiations to acquire the land from the benefiting Aboriginal Land Council until Native Title has been determined, which could take many years.

Risk Implications

There is no risk to Council in providing this information to DoI, as it ensures that all relevant information is made available to assist in determining these claims.

Should the claims be refused, the alignment of the future road corridor will be protected, which will provide some certainty for the future development of the surrounding employment lands and connection to the future Milton-Ulladulla Bypass.

Should the claims be granted, the land will be transferred into private ownership, which will present significant challenges for Council in acquiring the land at the appropriate time due to the land also being affected by the undetermined Native Title claim.

Development & Environment Committee – Tuesday 07 May 2019

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DE19.33 Update - Planning Proposal - Warrah Road, Bangalee

HPERM Ref: D19/39829

Group: Planning Environment & Development Group

Section: Strategic Planning

Attachments: 1. Traffic Assessment Report (under separate cover) ⇨

2. Proponent's Bushfire Assessment Report (under separate cover) ⇨

3. Proponent's request to biodiversity certify the Warrah Road PP ⇩

4. Aboriginal Cultural Heritage Assessment (Confidential - under separate cover)

Purpose / Summary

Update Council on the Planning Proposal (PP) covering land at Warrah Road, Bangalee, and obtain approval to proceed to publicly exhibit the PP.

Recommendation (Item to be determined under delegated authority)

That Council:

1. Prepare and submit a revised PP to seek a revised Gateway determination for the Warrah Road PP that:

a. Reflects the revised zone and lot size maps provided in this report

b. Includes provisions relating to the subdivision of the residual environmental and rural land into no more than four allotments

2. Apply to the NSW Office of Environment and Heritage to biodiversity certify the PP.

3. Not commence the requirements under Part 6 of the LEP to actually release this land for urban development until after BOTH the duplication of the Princes Highway/Shoalhaven River Bridge and the Far North Collector Road are complete.

4. Place the PP and biodiversity certification application on public exhibition, subject to the receipt of a satisfactory revised Gateway determination.

5. Advise the proponent, affected land owners and previous submitters of this resolution.

6. Consider adding the review of the southern component of the Crams Road Urban Release Area as a new project to the Strategic Planning Works Program that is developed for 2019/2020.

Options

1. As recommended.

Implications: This will essentially result in the following outcomes:

a) The PP will be updated based on the revised lot size and zoning maps provided in this report. These maps are consistent with the results of the specialist studies that have been undertaken for the PP.

b) The PP will be updated to include arrangements for the private management of the residual rural and environmental land.

c) The necessary steps will be taken to have the PP biodiversity certified, locking in the development footprint and conservation areas.

d) The PP and biodiversity certification application will be publicly exhibited concurrently. The outcomes of the exhibitions will be reported back to Council for consideration.

2. Not seek a revised Gateway determination

Implications: The current Gateway determination provides some flexibility with lot sizes. It is also possible to biodiversity certify and exhibit the PP without a new Gateway determination. However, some of the proposed changes to the zone map will require an amendment to the Gateway determination to secure a more certain outcome, as will the proposed outcomes in respect of the residual private land. It is considered that these outcomes warrant seeking of a new Gateway determination.

3. Adopt different arrangements for the PP

Implications: Advice can be provided as needed if Council wish to consider different arrangements for the PP.

4. Not proceed with the PP

Implications: The PP is consistent with the strategic planning framework. It has previously been supported by Council and will resolve the deferred status of the land under the current LEP. As such this option is not favoured.

Background

Introduction

The overall Crams Road Urban Release Area (URA) was originally identified in the Nowra-Bomaderry Structure Plan (NBSP). The subject land was part of the original URA.

The NBSP stated that a range of investigations, including biodiversity, would need to be completed to determine the potential extent of residential development.

Due to conflicting biodiversity studies, part of the Crams Road URA was ultimately ‘deferred’ from the Shoalhaven LEP 2014 to enable further investigations to be undertaken to determine an appropriate development footprint for the subject land.

In 2014, the owners (Southbank Land Pty Ltd/Huntingdale Developments Pty Ltd) of Lot 24 DP714096, Warrah Road, Bangalee submitted a PP to commence the process to resolve the zoning of the site. In an attempt to reconcile the conflicting biodiversity studies over the subject land, Council engaged NGH Environmental Pty Ltd in early 2015 to undertake an independent peer review of the biodiversity studies that existed over the site and make recommendations to inform a PP.

In December 2015, Council resolved to prepare and advance a PP based on the findings of the peer review. The Warrah Road PP (PP005) was subsequently submitted to the NSW Department of Planning and Environment (DP&E) and a Gateway determination issued on 12 July 2016. The Gateway determination allowed the PP to proceed subject to several terms and conditions.

On 8 August 2017 the Development Committee considered a report on this PP and resolved that Council:

1. Adopt the attached Land Use Zone (Attachment 5) and Lot Size (Attachment 6) maps as the basis for preparing the specialist studies required to enable public exhibition of the Planning Proposal.

2. Forward these maps to the NSW Department of Planning and Environment with a request to revise the Gateway determination that:

a. Reflects the proposed new development footprint;

b. Removes condition 1, which is covered by the new footprint;

c. Removes items (c) and (d) from condition 2 in the current determination; and

d. Adds a condition allowing the minimum lot size of 1500 m² to be revised if appropriately supported by the traffic and bushfire assessments undertaken for the planning proposal.

3. That the proposal be reported back to Council prior to exhibition.

A revised PP was sent to DP&E on 5 September 2017. On 10 April 2018 DP&E issued a revision to the Gateway determination that rejected Council’s proposed zoning and lot size maps. Specifically, DP&E rejected the proposed ‘squaring up’ of the development footprint where it would have resulted in some residential development occurring within the ‘remediation area’ under the former Native Vegetation Act 2003 that affects part of the subject land.

The PP area, as amended by the requirements of the 2018 Gateway determination, was then investigated in relation to Aboriginal Heritage, Traffic and Bushfire. The traffic and bushfire studies are provided as attachments to this report. The Aboriginal Heritage assessment contains sensitive information and will be provided to Councillors separately to this report.

Aboriginal Cultural Heritage Assessment

The Aboriginal Cultural Heritage Assessment prepared for the proponent concluded:

“The current ACHA report is sufficient supporting documentation to inform the Aboriginal archaeological assessment of the Gateway Planning Proposal. There are no Aboriginal archaeological constraints to the rezoning of the subject land and no further archaeological work is required prior to the submission of the Planning Proposal.”

It is considered that this ACHA report is suitable to allow the public exhibition of the PP and referral to the NSW Office of Environment and Heritage (OEH).

Traffic Assessment

Council commissioned and managed the Traffic Assessment (Attachment 1) for this PP because of the community concerns with this aspect of the proposal. This assessment considered the impacts of development of the subject land on the existing road network and the road infrastructure requirements for the development. It also modelled and considered the time it would take to evacuate the development area in the event of a bushfire.

The assessment investigated seven (7) intersections between the subject land, Moss Vale Road and the Princes Highway as shown below:

Intersections Considered in Traffic Assessment

The traffic assessment did not recommend the opening of the current closed section of Warrah Road between Bimbimbie Avenue and Illaroo Road. All modelling assumed that this road would not be opened.

The intersection modelling found that all the intersections except for the intersection of Illaroo Road and the Princes Highway (IRPH intersection) will continue to satisfactorily operate with relatively minor augmentation if development were to proceed. The modelling predicts that the IRPH intersection will fail (reach a peak time level of service F) in 2022 without the development and in 2021 with the development. That is, the release of this land will accelerate the failure of this intersection by one year.

The report also modelled the traffic conditions following the duplication of the Princes Highway Bridge and associated intersection improvements at the IRPH intersection. The report assumed this work would follow the Far North Collector Road. It predicts that after the bridge duplication (and therefore the Far North Collector Road) the intersection will satisfactorily operate with or without the development.

Under the Urban Release Area (URA) provisions in the LEP, Council can rezone this land but defer its release until such time that infrastructure issues are resolved and a DCP is in place. In this scenario, Council would rezone the land but its actual ‘release’ would be deferred until a later date when a DCP is prepared to allow development and satisfactory infrastructure is planned/provided.

The release of this URA (Crams Road) is currently envisaged as the last phase in the current planning for growth in the Nowra-Bomaderry area that was identified under the Structure Plan. In late 2017 Council adopted the following phasing approach:

Phase 1 – Mundamia and Worrigee

Phase 2 – Moss Vale Road South and Moss Vale Road North

Phase 3 – Cabbage Tree Lane

Phase 4 – Crams Road

All landowners within the URAs were written to and advised of this phasing.

Council is currently actively working to release the URAs in Phase 2 and staff time is currently dedicated to that. It is not envisaged at this stage that the detailed planning for Phase 4 will commence for some time and will need to be considered in the preparation of future Council Strategic Planning Works Programs.

As such It is recommended that in this case, Council proceed with the PP to finalise the zoning of land whilst also resolving not to prepare a DCP (under Part 6 of the LEP) and associated infrastructure plans until after both the duplication of the Princes Highway Shoalhaven River bridge and the Far North Collector Road are complete and actual ‘release’ is needed in terms of the overall area.

The traffic assessment otherwise found no issues that significantly impact on the progression of the PP.

Bushfire Assessment

The proponent’s Bushfire Assessment (Attachment 2) concluded:

“The (proposal) exceeds the minimum “Deemed-to-Satisfy” specifications set out in Chapter 4 (Performance Based Control) and the aim and objectives of Planning for Bushfire Protection 2006 and affords occupants of the future dwellings adequate protection from exposure to a bushfire.”

It is considered that this bushfire report is suitable to allow the public exhibition of the PP after referral to the NSW Rural Fire Service (RFS). Additional work may be required at the Development Control Plan stage of the process to ensure a satisfactory bushfire planning outcome, including access/egress.

Revised PP Maps

Following the completion of these studies the PP maps were reviewed considering the Gateway determination and a new set of maps were prepared that have been informed by the assessments. Noting that the subject land is currently “deferred” from the LEP various map layers are required. The proposed revised maps (and existing extracts) are provided below:

Existing and Proposed Zone Map

Existing and Proposed Lot Size Map

Existing and Proposed Watercourses Map

Existing and Proposed Height of Buildings Map

Existing and Proposed Acid Sulfate Soils Map

Existing and Proposed Clauses Map

Existing and Proposed Urban Release Areas Map

Whilst the proposed zone and minimum lot size maps may look complicated/detailed they have been worked up to recognise various matters and set an outcome.

It is recommended that the proposed maps shown above be adopted for inclusion in the PP that will be exhibited for comment.

Biodiversity Certification

On 18 December 2018, Council received written advice (see Attachment 3) from the proponent that they wish to also biodiversity certify this PP. Biodiversity certification is an arrangement that allows a proponent to “lock in” environmental conservation and impacts at the PP stage so that these matters do not need to be addressed at the development application stage. It is the approach that Council has previously adopted for the Halloran Trust Lands PPs.

Council staff met with officers from DP&E and OEH to discuss this request and both agencies advised that they support the approach of biodiversity certifying this PP.

It is recommended that Council apply to OEH to biodiversity certify this PP.

Management of the Residual Land

The eventual development of the land will most likely result in approximately 55 hectares of residual land. This includes 43 hectares of land to be zoned E2 – Environmental Conservation and 12 hectares of land to be zoned RU2 – Rural Landscape that will form part of the Western Bypass Corridor around Nowra-Bomaderry.

The landowner has indicated that they do not wish to dedicate the land to Council. This means that if Council wished to acquire it as a public reserve, which is not necessarily the case, it would need to purchase the land through an acquisition process.

The proponent has instead indicated they would wish to subdivide the residual E2 land into three (3) lots with each lot being partially in the urban release area. Essentially, the environmental land will then be connected to one of three dwelling sites within the development footprint.

This proposed arrangement is broadly considered satisfactory because:

- The E2 land is proposed as an offset as part of the biodiversity certification of the site. This means that the land will be subject to a binding conservation agreement with funding available in perpetuity for the future land owner.

- Council taking ownership of the land will not necessarily result in an improved conservation outcome.

- The proposed subdivision will allow for a subdivision into manageable parcels that can be better supervised by a land owner.

- Purchasing the land in this instance offers poor value for money because its purpose as a biodiversity reserve will be achieved with the land remaining in private ownership.

The proponent has also advised that they do not wish to dedicate the land identified as part of the future road corridor for the Princes Highway bypass of Nowra. Given the likely timeframe for the delivery of this bypass, it is not desirable to acquire this land at this time. The proponent instead proposes a similar arrangement to the E2 zoned land, with only one dwelling site being linked to the road corridor land. They are proposing to separate the ownership of road corridor land and the E2 land.

If Council is agreeable to this approach, it will be necessary to insert a subclause into Clause 4.1E of the LEP. This is recommended as an outcome of this report.

The Gateway Determination

The proposed changes to the PP will require the current Gateway determination to be amended because:

- A new R5 zone is proposed for 3 lots on the edge of the development area (i.e. the R5 zone is not listed in the Gateway determination).

- A new clause is proposed to allow the subdivision of the E2 and RU2 as outlined above.

- There is a Gateway condition relating to the remediation areas on site that will be breached by a small amount (approx. 400 m²) to allow for roads into the development. OEH have verbally indicated that this would be acceptable if the PP is biodiversity certified.

- There are ambiguities in the current Gateway determination that could create difficulties when the PP reaches the finalisation step in the process.

Accordingly, it is recommended that Council seek an amended Gateway determination for this PP to enable it to then move forward to formal public exhibition.

Community Engagement

Assuming DP&E issue a favourable Gateway determination for the proposed amendments the PP would be ready to refer to RFS and then place on public exhibition. This exhibition would be undertaken in accordance with Council’s PP Guidelines as a Broader Impact Major PP. It is noted that there has been considerable community interest in this PP previously and this is likely to be the case moving forward.

It is recommended that Council resolve to exhibit the PP if a favourable Gateway determination is received. If not, the matter will be reported back to Council.

Policy Implications

Once the likely development future of the subject land is resolved, the other area that possibly requires Council’s reconsideration is the other remaining component of the Crams Road URA.

The history of the Crams Road URA is covered in the earlier reports on this matter. Through the Shoalhaven LEP2014 process the southern parts of the URA were zoned R1 General Residential and the northern part was ‘deferred’ from the LEP. The following extracts from the LEP mapping provide an overview of the two areas.

Given the physical separation of the two parts of the URA and the zoned configuration of the southern part that is focussed along Crams Road there is a need to have a closer look at how the southern areas could possibly develop. This review will also need to consider whether it is practical, depending on potential yield, servicing etc. that this part (southern) is retained as a URA.

As such it is also recommended that Council consider adding the review of the southern part of the Crams Road URA as a new project on the Strategic Planning Works Program when it is reconsidered in coming months.

Financial Implications

This PP is being funded on a 100% cost recovery basis by the proponent in accordance with Council’s PP Guidelines.

Development & Environment Committee – Tuesday 07 May 2019

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DE19.34 Options - Review of Proposed Service Lane, St Georges Basin Village Centre - Shoalhaven DCP 2014 and Shoalhaven Contributions Plan 2010

HPERM Ref: D19/119586

Group: Planning Environment & Development Group

Section: Strategic Planning

Attachments: 1. Plans - Draft 90% Civil Engineering Drawings - Proposed Service Lane St Georges Basin (under separate cover) ⇨

2. Shoalhaven DCP 2014 Chapter N23 St Georges Basin Village Centre - Supporting Map ⇩

Purpose / Summary

Review proposed service lane currently identified in Shoalhaven Development Control Plan (the DCP) 2014 Chapter N23: St Georges Basin Village Centre and Shoalhaven Contributions Plan (the CP) 2010 (Project 03ROAD2113) having regard to the updated engineering design, construction costs and land valuations.

Recommendation (Item to be determined under delegated authority)

That Council:

1. In recognition of the broader Strategic Plan for St Georges Basin Village Centre, reaffirm the proposed Service Lane identified in Shoalhaven Development Control Plan (DCP) 2014 Chapter N23: St Georges Basin Village Centre with minor changes following design approval of the updated engineering design plans.

2. Prepare an amendment to the Shoalhaven Contributions Plan (CP) 2019 to:

a. Delete the project 03ROAD2113 St Georges Basin Service Lane as a standalone project and include the proposed Service Lane in Project 03ROAD2023 St Georges Basin Village Access Road and Traffic Facilities that is part of the Village Road Network required to facilitate the development of the overall B4 Mixed Use zone and support the future population growth in St Georges Basin.

b. Include the updated engineering design, land valuation and construction cost estimates in the updated project.

c. Identify the remaining works for construction in the CP Project 03ROAD2023 Village Access Road and update the project cost estimates for the remaining works.

3. Depending on the outcome of the proposed amendment to Shoalhaven Contributions Plan 2019:

a. Fund initial expenditure on the first stage of the service lane works to provide essential rear lane access to the properties 144-152 Island Point Road and land acquisition using recoupment funds that may be available following the adoption of the Shoalhaven Contributions Plan 2019 or through general revenue allocations in the future Capital Works Program of up to $600,000 (2018/19 Indexed Estimate for 63% of the Project Costs rounded up) and request a further report should more than this amount be required.

b. Include the construction of the remaining section of the St Georges Basin Village Centre Service Lane and Village Access Road in Council’s capital works planning.

c. Recoup the expended funds through Section 7.11 development contributions levied by Shoalhaven Contributions Plan 2010 for future development.

4. Prepare a minor housekeeping amendment to Shoalhaven DCP 2014 Chapter N23: St Georges Basin Village Centre to reflect the updated design for the proposed service lane and include the final design approved engineering plans as a supporting document.

5. Undertake a broader review of Shoalhaven DCP Chapter N23: St Georges Basin Village Centre to complete/update the precinct planning for the “Future Uses” area identified in the DCP Chapter Supporting Map as part of Council’s Strategic Planning Works Program.

6. Advise the applicant of DA17/2435 of the intended changes and support a future application under Council’s Policy Payment of Development Contributions and Section 64 Headworks Charges by Deferment or Instalments (under Special Circumstances) to defer the payment of contributions levied in the development consent for Project 03ROAD2113 of $45,541.91 (2018/19 Financial Year) until the future of the Service Lane is resolved and consider waiving of the requirement for a bank guarantee given the circumstances incumbered by the applicant through this review process.

7. Advise the affected landowners of this resolution and the next steps.

Options

1. Adopt the recommendation outlined above.

Implications:

The detailed work arising from the Council resolution of 28 August 2018 has flagged a substantial potential increase to the total project cost. The resultant Equivalent Tenement (ET) amount would be a substantial development cost to landowners/developers and it would not be appropriate to burden landowners with this amount of contributions.

Demand still exists for the proposed service lane as part of the overall local road network that is critical for the longer-term development of the B4 Mixed Use zone area in St Georges Basin Village Centre identified in Shoalhaven DCP 2014 Chapter N23: St Georges Basin Village Centre

Amending the CP to combine the service lane and the village access road projects mean the wider Contribution Area would contribute to the service lane. The nexus between the wider Village Access Road and service lane to the anticipated development can be generally established/argued. The demand for both projects exists to deliver local roads and a service lane to facilitate coordinated and managed development of the overall village centre that will service the growing population and needs of the broader St Georges Basin community.

In planning for a wider village centre, the overall community need must be considered. It is acknowledged that the restriction on front access to properties along Island Point Road burdens 5 of the 8 commercial properties that adjoin the service lane; however, the future amenity, redevelopment potential and vehicle and pedestrian safety on Island Point Road must also be considered in the longer-term planning for the centre.

2. Retain the proposed service lane and front vehicular access restriction in Shoalhaven DCP 2014, remove Council’s intention to deliver the service lane as a Contributions Project and require each landowner/developer to design and construct rear service lane access from the existing partially constructed service lane with a ‘Right of Carriageway’ of 4.2m along the rear of each property to enable clear sign distances and vehicle manoeuvrability in the service lane.

Minor variations to the service lane design can be considered on a case by case basis to consider site constraints etc. Council could also consider removing the requirement to include a footpath and provide a low speed environment through this option, recognising the laneway as a service laneway only.

Implications:

This option would still potentially deliver the planned outcome and not require a financial contribution from Council. It however would potentially impact on the coordinated delivery of the service lane and would require each landowner/developer to facilitate the service lane as part of the development of their land. This may result in a “staggered” uptake of the rear lane pending development of individual allotments and would discourage pedestrian movements via the laneway. The issue of ongoing maintenance of the laneway would also need to be considered with a preference that a service lane of this type be ultimately transferred to Council and managed as a public road.

If Council resolves to retain the service lane in the DCP but remove the project from the CP, the DCP should be amended to require the creation of ‘Right of Carriageways’ or easements through future developments to ensure service lane access, site distances and that manoeuvrability is not restricted by future development close to the rear boundary.

3. Remove the proposed service lane from the DCP and CP and allow front access from Island Point Road to the four (4) relevant properties, excluding Lot 45 DP 25550 where vehicle access from Island Point Road would not be practical.

Implications:

Whilst this option can be pursued, the proposed service lane has existed in the DCP since 1998 as part of the St Georges Basin village centre plans and has been reinforced through subsequent Council decisions. As the broader B4 Mixed Use area is developed and the population increases, there will potentially be further demand for retail/ commercial activities in this area to support the population. The proposed service lane allows for coordinated servicing arrangements and higher potential amenity, safety and capacity for redevelopment for the commercial properties on Island Point Road in the longer term.

If Council resolves to remove the proposed service lane from the DCP and CP and to allow front access from Island Point Road. Lot 45 DP 25550 should be excluded from this change given distance from the Tasman Road intersection and future roundabout at this intersection. Truck manoeuvrability for larger service vehicles will also be difficult to achieve on Island Point Road given the traffic volume and pedestrian/vehicle safety.

Council will ultimately need to update the relevant provisions via amendments to the DCP and CP that follow the legislative process. The applicant (Harpley) would also be required to redesign the development to provide access from Island Point Road.

Background

This report seeks Council’s direction on the future of the proposed service lane in the St Georges Basin Village Centre. Following the Council resolutions of 28 August 2018 and 8 May 2018 (reproduced below), draft engineering design drawings and updated project costs have now been obtained and are detailed in this report.

Ordinary Meeting - 28 August 2018

That Council, depending on the outcome of detailed design review, commit to funding the upfront costs for the construction of the remaining section of the St Georges Basin Village Centre Service Lane identified in Contribution Project (CP) 03ROAD2113 through:

1. Funding the initial expenditure of the works and land acquisition using recoupment funds that may be available following the completion of the Shoalhaven Contributions Plan review or through general revenue allocations in the future Capital Works Program of up to $200,000 (2018/19 Indexed Estimate for Project Costs rounded up) and request a further report should it require more than this amount.

2. Recouping the expended funds through Section 7.11 development contributions levied by Shoalhaven Contributions Plan 2010 for future development.

3. Including the design and construction of the remaining section of the St Georges Basin Village Centre Service Lane with an additional minimum width of 4.2m within properties that adjoin the existing service lane area adjacent to the IGA supermarket in Council’s capital works planning.

4. Commencing the process of land acquisition for land required for the ultimate construction of the service lane and existing service areas identified in CP 03ROAD2113 to allow full public access in the service lane.

Development Committee Meeting - 8 May 2018

That Council:

1. Resolve to reaffirm the current requirements of Chapter N23: St Georges Basin, Village Centre, SDCP 2014 and Shoalhaven Contributions Plan 2010 (SCP 2010) in support of the rear service lane arrangement to have one-way access, noting the available width; and

2. Receive a report on providing the road using recoupment of section 7.11 (former s 94) contributions funds once the review of the current contributions plan is complete.

The proposed service lane in question has existed since 1998 when it was added to the then DCP 17 - St Georges Basin Village Centre. Prior to 1998 the previous DCP version included a shared access arrangement from Island Point Road.

Through the assessment of DA17/2435 (Harpley) for a commercial building in the area, there have been various and ongoing discussions including two reports to Council in 2018 on the future of the service lane and the controls in the DCP that currently restrict vehicle access from Island Point Road for five (5) properties along Island Point road.

The current DCP Chapter N23 can be viewed on the internet at:

http://dcp2014.shoalhaven.nsw.gov.au/content/st-georges-basin-village-centre

A copy of the supporting map that is part of the DCP is included as Attachment 2 to this report.

The proposed service lane between Village Access Road and Island Point Road contained in the DCP was also included in Shoalhaven Contributions Plan 2010 in May 2010. The CP project detail can be viewed at:

http://www3.shoalhaven.nsw.gov.au/Section94/Document1.aspx?ProjectCode=03ROAD2113

Recent Considerations

Development Application, DA17/2435 for a 2-storey commercial building at 148 Island Point Road, St Georges Basin was lodged in November 2017. During the assessment process, the DA was reported to Council in May 2018 and August 2018 (resolutions above) and the key issue of the proposed service lane was discussed at both meetings.

In August 2018, Council resolved to pursue the initial funding of $200,000 for the Contributions Project, depending on the outcome of the detailed design, so that it could start ahead of schedule. The Contributions Project is 100% apportioned to development and the timeframe is ‘development dependent’. This means that Council would recoup the full cost of the service lane through future development contributions levied on relevant landowners/ developers through future development approvals on the land. The current project estimate for the CP is $197,306.92 with a contribution rate of $12,331.68 per Equivalent Tenement (ET). The number of ETs that are ultimately payable depends on the type of development proposed.

The current cost estimates in the CP Project were based on rough concept design costs and land valuations from 2010. The current estimates also assume that land was dedicated as part of the supermarket development, however the development consent allowed an option of dedication or providing a ‘right of access’. The ‘right of access’ option has now been executed and therefore the land acquisition costs still need to be accounted for in the total project costs unless dedication occurs.

Following the resolution of August 2018, Council engaged an external firm to prepare engineering design drawings for the proposed service lane in accordance with the DCP and CP concept plans. A land valuation was also obtained to update the value of the area identified for acquisition in the CP Project map based on a m2 rate. The engineering design plans are now at 90% concept design stage and include plans for acquisition, demolition, traffic (including future one-way access to Island Point Road) and manoeuvrability for servicing vehicles (see Attachment 1).

Based on the updated/detailed design provided at Attachment 1, the construction estimates have now increased to $530,000 and the total land valuation is now between $178,000 and $409,000 (approximate) based on a m2 rate.

Depending on the area required for possible land acquisition from the existing supermarket site, the revised project costs are now estimated between $718,900 and $950,000 (approximate). This is a substantial increase to the earlier cost estimate and would result in a contribution rate of between $44,930 and $59,365 per ET.

This ET amount would be a substantial development cost to landowners and Council now needs to decide whether the proposed service land is still viable as a standalone project and if the financial burden to landowners and future developers is acceptable/justifiable.

The following table provides a breakdown of the current (2010) and updated (2019) project costings.

Table 1: Comparison table of updated and current cost estimates for CP project 03ROAD2113 – St Georges Basin Service Lane

Considering the updated project costs, the following possible funding arrangements could be considered for the proposed service lane:

1. Amending the project to change the apportionment from 100% with Council contributing to some of the costs.

This option would require funds from Council’s general revenue (or from within the CP funding if possible) which is not recommended given other priorities and the fact that this service lane does not benefit the wider rate base.

Even if Council decided to pay 50% of the project costs, for example, there is still a substantial increase to ET rate.

2. Deleting the project from the Contributions Plan and requiring landowners to facilitate the proposed service lane identified in the DCP.

This option would not require a financial contribution from Council, but would reduce the coordination of the service lane and would require the landowner/developer to facilitate this service lane through the redevelopment of their land as part of the development assessment process.

This does not provide the best outcome for the amenity of Island Point Road and the village, the capacity of the site for redevelopment, or the safety of pedestrians/vehicles on Island Point Road. There have been other examples of private car parking/servicing arrangements that have resulted in poor outcomes. Right of Carriageways can often lead to civil disputes without clear plans for maintenance. Council would most likely still ultimately be drawn into this option if pursued.

3. Including the proposed Service Lane in the larger project 03ROAD2023 St Georges Basin Village Access Road and Traffic Facilities (preferred option).

Through a review of the recently adopted Shoalhaven Contributions Plan 2019 and the projects in St Georges Basin Village Centre, particularly 03ROAD2023, it has been identified that the demand still exists for the other proposed service lane and access road. This lane will support the retail and fringe commercial area as part of the local road network and is critical for the development of the broader B4 Mixed Use zone area in St Georges Basin Village Centre.

The option of amending the CP to combine the service lane in question with the Village Access Road means the wider Contribution Area would contribute to the service lane. There is a nexus between the future service lane and the wider contribution area.

The existing nexus for the CP Project 03ROAD2023 St Georges Basin Village is detailed below:

“The project is a critical part of the local road network and necessary to enable land zoned 3(g) Business (Development Area) (now B4 Mixed Use in Shoalhaven LEP 2014) to the east of Island Point Road to develop”.

The current indexed amount for this project is $3,110,322.04 with an ET rate of $7,672.23 spread across potentially 405 future ETs. The timing for delivery is 2012/2016 and part of the Village Access Road has been constructed at the entry points as a Council delivery project and through a ‘works-in-kind’ agreement in lieu of contributions though the Supermarket Development. The remaining costs given increases to construction costs in recent years should be estimated and included in any amendment to the CP.

If Council resolves to include the proposed service lane in with the Village Access Road project, the total cost will increase to $4,056,200 (approximate) and the ET rate will increase to $10,015.30.

This option is perhaps the most suitable to ensure the proposed service lane can continue as planned, be delivered through the CP and to provide the best outcome for the future development and resulting population growth in St Georges Basin.

Conclusion

More detail has now been obtained on the potential cost and options to implement the service lane that is identified in the DCP and CP.

Given the costs involved Council needs to decide how to best take this matter forward, acknowledging that there is still merit in the thinking behind the original service lane concept. The preferred option presented in the report would see the service lane retained in the CP, with the cost spread over a larger area.

Community Engagement

Any proposed amendments to DCP and CP will need to be publicly exhibited for a minimum period of 28 days and further landowner and broader community feedback will be undertaken at that point.

A letter was sent to landowners affected by the current Contributions Project 03ROAD2113 on 11 April 2019 providing background on the proposed service lane and advising that a report on the future of the service lane will be considered by Council at the May Development & Environment Committee Meeting. This letter provided an opportunity for initial feedback and any that is received will be presented to Councillors at a briefing before the Committee meeting.

Policy Implications

Depending on the decision, Council will ultimately need to update the relevant provisions in the DCP and the CP. Council will be required to follow certain procedures to amend these plans including public exhibition.

Financial Implications

There is currently no funding available or set aside for acquisitions or project delivery for the proposed Service Lane; however, Council previously resolved to consider the initial funding of $200,000 through general revenue or potential CP recoupment funds.

Seed funding to deliver the remainder of the service lane will be required from general revenue or potential CP pool funds that may be available following the completion of the Contributions Plan review prior to development in this area and recoupment through levied development contributions.

Development & Environment Committee – Tuesday 07 May 2019

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DE19.35 Development Application – SF10671 proposed 2 lot subdivision at Lot 9 DP792386 (no.96) Princes Hwy Milton

DA. No: SF10671

HPERM Ref: D19/84342

Group: Planning Environment & Development Group

Section: Development Services

Attachments: 1. Draft Conditions of Development Consent (under separate cover) ⇨

2. Section 4.15 Assessment Report (under separate cover) ⇨

Description of Development: Proposed 2 Lot subdivision of Lot 9 DP792386 Princes Hwy Milton

Owner: J & N Pryor

Applicant: Phillip Brown Surveyor

Notification Dates: 13 – 28 September 2018

No. of Submissions: One (1) objection

Purpose / Reason for consideration by Council

This application is reported for determination, in accordance with Section 3.3.5. of the Council Policy– ‘Dealing with Development Applications Lodged by Council Staff or Councillors’, POL16/235. One of the land owners is a staff member within the development assessment section of the Planning, Environment and Development (PED) Group.

Additionally, the application involves the use of a narrow laneway as a primary frontage for a proposed vacant block of land, therefore is inconsistent with Council’s interim policy - Development Adjoining Narrow Laneways POL18/55.

Recommendation (Item to be determined under delegated authority)

Council resolve with respect to the development application SF10671, proposed 2 lot subdivision of Lot 9 DP792386 Gumley Lane, Milton, to:

1. Support the variation to Council Interim Policy 18/55, and use of Gumley Lane for access,

2. Support the development and determine the application by way of approval subject to conditions of consent, as outlined in the attached Draft Consent, Attachment 1.

Options

1. Support the recommendation.

Implications: Should the application be approved, it would enable the subdivision to occur, providing an additional vacant block in the Milton Village.

2. Alternatively, the Council may choose to not support the application, and determine the application, by way of refusal.

Implications: Should the application be refused, the applicant is able to take the matter further, by way of a Section 8.2 Review of Determination or an Appeal to the Land and Environment Court (LEC).

Location

The subject land is Lot 9 DP792386 (No.96) Gumley Lane, Milton. The land is situated between Church Street and Gordon Street, on the northern side of the Princes Highway, Milton. The land falls away from the Highway, to the north towards Gumley Lane.

Figure1 – Subject land – Location Figure 2 – Subject Land

Background

Proposed Development

The application is for a 2 lot Torrens title subdivision (and removal of 3 fruit trees). Proposed Lot 91 will continue to utilise existing access to/from the Highway, including the existing dwelling, garage and swimming pool, with an area of 929.5m².

The proposed vacant lot, Lot 92 will have a total area of 502.8m².

Figure 3 – Proposed Subdivision

History

The application was lodged in April 2018. (Prior to exhibition and/or adoption of the interim policy for Development Adjoining Narrow Laneways.) Following requests for additional information, and receipt of that additional information, including revised plan and Statement of Environmental Effects (SEE), in May 2018, and later in September 2018, the application was notified, and referrals made. A further revised plan was submitted December 2018; however, the applicant has confirmed the original plan is the plan for assessment (see Figure 3 above).

Referral comments have been received from other sections of Council. Where appropriate and relevant, conditions have been included in the draft consent. Refer to Attachment 1.

Zoning

The subject land is zoned R2 under Shoalhaven Local Environmental Plan 2014 (SLEP 2014). The objectives of the zone are:

· To provide for the housing needs of the community within a low density residential environment.

· To enable other land uses that provide facilities or services to meet the day to day needs of residents.

· To provide an environment primarily for detached housing and to ensure that other development is compatible with that environment.

The proposal is not inconsistent with the zone and the staff assessment is in agreement with the applicant’s statement in support of the zone objectives:

· “the proposal results in the creation of an allotment to contain a new detached residential dwelling and therefore increases the supply of available housing’

· The subject site is within an area developed with single dwelling houses on reasonably sized allotments, and this application continues this pattern of development;

· It will result in development that is compatible with the surrounding area, replicating the subdivision undertaken on the adjoining land to the west; and

· It is well located, being close to the commercial and health care facilities provided within Milton”

Figure 4 – Zoning of the land

Issues

Clause 5.10 Shoalhaven Local Environmental Plan 2014 (SLEP 2014) – Heritage Conservation

There are several heritage items identified within the vicinity of the subject land.

Figure 5 – extract of GIS Heritage mapping overlay

Applicant’s Submission

The proposed lot will be vacant, future development will be undertaken in consideration of the requirements of SLEP 2014 and SDCP 2014. Further, the applicant notes that, “it is not expected that any adverse impacts arise on the heritage significance of the identified heritage items located in the vicinity of the subject site”.

Comment

Council is required to consider the extent to which the proposal will affect the heritage significance of these heritage items. The proposal is for a 2-lot subdivision; in itself it will have little impact. To an extent, future impacts of any residential development will be mitigated by the size of the lot. Further, any future development will be assessed with regard to the relevant planning considerations at that point in time.

DCP 2014 Chapter G11

Refer to the detailed assessment report, Attachment 2.

The development meets the objectives and performance criteria set out in G11.

With regard to A79.2 (lot dimensions / width): This issue is addressed in detail in the assessment report.

Importantly, the variation will not result in a lot with deficient area for a dwelling. Dimensions are acceptable taking into account the large variety of dwelling designs available.

Applicant’s Submission & Comment

A variation statement has been submitted. The applicant advises that the variation is sought due to location of a proposed common boundary to enable retention of existing dwelling, garage and pool, plus suitable setbacks.

As mentioned previously, the new lot will have adequate area and dimensions, suitable for future development. The departure is considered minor and will not result in any adverse impacts.

The proposed boundary enables the existing development, which is a substantial investment, including the garage, which is the only covered car accommodation for proposed lot 91, to be retained.

“It is considered that the proposed allotment size and shape, whilst slightly less than the 30m required, will not adversely impact the amenity or environment of the locality and will, despite not strictly complying, still achieve the performance criteria of Section 5.13 of Chapter G11 of Shoalhaven DCP. Given these circumstances it is considered that the proposed allotment depth of Lot 92 is justified.”

Planning Assessment

This application has been assessed in accordance with the requirements of section 4.15 of the Environmental Planning and Assessment Act 1979 (EPA Act 1979). (Attachment 2.)

A draft consent has also been prepared, see Attachment 1, noting that a positive recommendation has been made in light of a favourable s4.15 assessment.

Policy Implications

Shoalhaven Development Control Plan 2014 (SDCP 2014)

The alternate solution to A79.2 of Chapter G11 of SDCP2014 is of a minor nature, for only part of the lot 92. The DCP requires the lot have a depth of 30m. Proposed lot 92 varies from 30.85m to 28.16m. The proposed lot would be readily able to be further developed and is of sufficient area/dimensions to ensure such future development can be in compliance with relevant policies and requirements. The alternate solution meets the objectives and performance criteria of the acceptable solution.

Council Policy POL16/235 Dealing with Development Applications Lodged by Council Staff of Councillors.

As one of the landowners is a Council employee, the assessment of the development application has been undertaken considering Council Policy POL16/235 Dealing with Development Applications Lodged by Council Staff or Councillors. The Policy provides that development applications lodged by (or on behalf of) Council staff or Councillors must be dealt with in the normal manner in accordance with Council’s policies and procedures and establishes a protocol for contact between the staff member (or Councillor) and the assessing officer.

Clause 3.3 of the Policy establishes criteria which, if triggered, require the reporting of the DA to Council for determination.

“Generally, any DA lodged where the applicant and/or land owner is a Council staff member or Councillor, the DA should be processed in the normal manner, which may include determination under delegated authority. Nevertheless, if one (1) or more of the following matters are triggered, the DA is to be reported to the elected Council for determination:

3.3.5. The applicant and/or land owner is a staff member within the development assessment sections of the Planning, Environment and Development (PED) Group; and

3.3.6. The extent of any public perception of a possible conflict of interest that may exist between the DA lodged and the applicant’s and/or landowner’s relationship with the PED Group (i.e., relevant assessment staff).”

In this instance, one of the landowners in an employee within the Development Section of the PED Group.

Interim POL18/55 - Development Adjoining Narrow Laneways

This interim policy was adopted by Council on 6 November 2018 and seeks to ensure that the use of laneways by new developments does not cause adverse effects, for example, traffic and amenity impacts.

The provisions of this Policy include:

a. Laneways are not to be used as primary frontages, except in cases where the laneway is the only legal and practical access.

b. Development proposals to increase vehicular access and servicing along narrow laneways that have a road reserve width of less than 10m, are generally not supported. Intensification of lots with rear lane access would need to propose access and servicing from the primary street.

c. Development proposals to increase vehicular access and servicing along laneways that have a road reserve width of 10m or greater may be supported where Council can be satisfied that:

i. The development results in minimal impact on existing residential amenity and

ii. Provision of infrastructure, car parking and waste collection is adequate to facilitate the development.

d. Where Area Specific Development Control Plan Chapter exists, it prevails over the interim policy position.

e. That this policy apply until suitable development controls are in place in Shoalhaven DCP 2014.

Applicant’s Submission

The applicant comments:

· “Suitable amenity will be provided in the future development of proposed Lot 92’;

· Proposed lot 92 can be developed in a manner consistent with the requirements of the Shoalhaven DCP Chapter G12 – Dwelling Houses, Rural Worker’s Dwelling, Additions and Ancillary Structures;

· Gumley Lane is properly constructed, provided with a sealed surface, and kerb and gutter along the northern edge, and therefore adequate infrastructure is already available for waste collection. Indeed, waste collection is already required due to the extent of established development along the laneway;

· Gumley Lane is well utilised, providing access for a number of residential properties (including land to the west where it is the only access) and the Milton Ulladulla Hospital;

· The proposal will generate very little traffic along Gumley Lane (9 trips per day) when compared with traffic that is already generated by the Milton Ulladulla Hospital.”

Comment

The proposal is inconsistent with the interim policy, because it proposed that the laneway would be the primary frontage for a future dwelling.

The interim policy is an interim measure until specific measures and development controls for development fronting laneways are in place.

However, in this case:

a) The lot has frontage to both the Princes Highway and Gumley Lane. Access to the Princes Highway for the proposed lot is not practical because;

a. There is an existing dwelling/garage etc that is to be retained, preventing physical access the Princes Hwy, and

b. In accordance with the State Environmental Planning Policy (SEPP) Infrastructure 2007, where there is alternate access, development must not be approved with access to a classified road, i.e. the Highway.

b) Gumley Lane currently has a road reserve width of 6.095m. The lane is used to access several rear/side yards for dwellings, and the Milton Hospital and associated carpark.

Figure 6 – Gumley Lane Milton

c) One additional lot is a minimal impact in this location; and

d) The proposed lot layout and size will adequately address provision of infrastructure and future onsite car parking. Currently waste collection services do not service the laneway, it is possible for waste to be collected via Church Street to the west, approx. 40m away.

Figure 7 Gumley Lane (14/3/19) Figure 8 Gumley Lane (14/3/19)

Figure 9 - Looking west along Gumley Lane – subject land on left, past carpark exit

Consultation and Community Engagement:

One (1) public submission was received in relation to Council’s notification of the development. The notification was made in accordance with Council’s Community Consultation Policy with letters being sent within a 25m buffer of the site. The notification was for a 2-week period, from 14 till 28 September 2019.

Key issues raised in that submission include heritage and Gumley Lane.

Heritage

Concern expressed relating to comments made by the applicant regarding the heritage listing of the adjacent property at 94 Princes Hwy, as being dismissive, particularly regarding views.

Comment

The potential impact on the adjoining and nearby Heritage items has been considered.

The proposed vacant lot is the lower part of the land. There is an existing 2 storey modern (2008 approved) dwelling erected immediately to the west of the proposed vacant lot, which also faces Gumley Lane. This proposal, (i.e. subdivision) by itself will not have a visual impact. Future development on the proposed lot will be assessed on its own merit.

Use of Gumley Lane

Council needs to upgrade Gumley Lane. The rapid growth of the community and hospital does and will put pressure on the lane.

If the application is approved, a request has been made that:

1) Gumley Lane be made one way.

2) “foot traffic needs also to be looked at as there is not formed footpath for pedestrians”

3) “No parking” restriction would have to be applied in the lane to prevent vehicles from parking in the lane and further impeding traffic flow

“As a regular user of this lane I can assure you that there is no room for two cars to pass without one moving onto what is an unformed pedestrian footpath/unformed gutter on the northern side of the road. Cars leaving the IGA parking area often use the lane to access Gordon Street.”

Comment

This proposal is consistent with land / development immediately to the west.

Further, SEPP (Infrastructure) 2007 states:

“(2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that:

(a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and….”

Gumley Lane provides a practicable and safe alternative.

Financial Implications:

In the immediate term, there are unlikely to be any cost implications or issues for Council noting that this development will only generate approximately 9 vehicle trips per day. Noting that the hospital uses the lane along with an existing approved dwelling, the additional lot will not have a significant impact.

In the longer term, should other like applications be received/approved, then there may be reason for Council to undertake improvements to Gumley Lane, including potential road widening, directional signage, drainage and kerb and gutter works.

At this point in time however there is no specific DCP or contributions plan for potential future engineering works, such as kerb and gutter on the southern side of the lane.

Observing the proposed lot is on the southern side of the lane, which does not have kerb and gutter, the draft consent includes a requirement for provision of kerb and guttering for the lot frontage.

It is likely however that this may need to be deferred to enable Council to consider whether it will consider further road widening in the laneway. In previous applications for subdivisions in proximity to the site, one of the subdivisions did not require widening, in relation to another widening was required. With the latter application, monies were paid for kerb and gutter works, however these works did not eventuate.

The kerb and gutter issue could be resolved post-determination. For example, a bond / bank guarantee arrangement with respect to the kerb and gutter (southern side).

Legal Implications

Should the application not be approved, the applicant has the right to seek a formal Review and/or Appeal.

Summary and Conclusion

With regard to the interim policy for Development adjoining Narrow Laneways, it is noted that the application was lodged in April 2018, prior to the policy being adopted in November 2018. Irrespective, this policy has been taken into account. Whilst the laneway will be the main frontage for the lot, the laneway has been sealed and kerbed on one side and services a major development, being the hospital. Additionally, the laneway access satisfies the provisions of a SEPP which provides a safe an alternative access to the classified road, being the Highway.

Proposed Lot 91 comprises the southern portion of the site and there will be no change to the existing access and use of that part of the land. Proposed lot 91 will have an area of 929.5m². Proposed Lot 92 comprises the northern portion of the site, fronting Gumley Lane, and will have an area of 502.8m², compliant with lot size controls.

The application includes

· Consideration under Council’s Interim Laneway policy POL18/34; and

· An alternate solution to A79.2 of Chapter G11 SDCP 2014.

Gumley Lane is different to many other laneways:

· It has been used for many years as access for the Hospital;

· It is sealed;

· the northern side of the lane does have kerb and gutter and stormwater is provided;

· Pedestrians can access the hospital via either the Highway or Gumley Lane;

· This proposal, for one additional lot when compared to the number of vehicles using the Hospital/carpark. Whilst no counts have been made of the lane, the additional lot adding 9 potential extra movements is relatively insignificant; and

· It provides for a safe and practical alternative access for development observing the requirements of the SEPP (Infrastructure) 2007.

The application has been favourably assessed having regard to section 4.15 (Evaluation) under the Environmental Planning and Assessment Act 1979. As such, it is recommended that Development Application No. SF10671 be approved subject to appropriate conditions of consent.

Development & Environment Committee – Tuesday 07 May 2019

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DE19.36 RD18/1007 – 315 Princes Highway Bomaderry – Lot 2 DP 777260

DA. No: RD18/1007/4

HPERM Ref: D19/114426

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 ⇩

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 was determined by way of Refusal by Council’s Acting Group Director – Planning, Environment, & Development Group, the subject application is required to be determined by the Development & Environment Committee.

Recommendation (Item to be determined under delegated authority)

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 the first reason for refusal 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. Any such approval would be conditional and require a further report to Council detailing draft conditions.

3. In considering this report and supporting information, Council may express general support for the proposed development and, having regard to the legislative timeframes associated with the Review process, 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; it would also provide a general direction for the applicant to achieve a positive outcome.

Background

Division 8.2 Reviews, Environmental Planning and Assessment Act 1979

An application lodged under section 8.2 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.

Plans and documentation depicting the proposed development are provided at Attachments 2, 3 and 4. 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

The following provides details on post-lodgement actions and general site history for context:

· The Development Application was determined by way of refusal on 30 November 2018 for the following reasons:

“1. The information submitted with the development application does not satisfactorily demonstrate that the development addresses the matters for consideration under Clause 45 of the State Environmental Planning Policy (Infrastructure) 2007. (Section 4.15(1)(a)(i) of Environmental Planning and Assessment Act, 1979)

2. The information submitted with the development application does not satisfactorily demonstrate that the development addresses the matters for consideration under Clause 102 of the State Environmental Planning Policy (Infrastructure) 2007. (Section 4.15(1)(a)(i) of Environmental Planning and Assessment Act, 1979)

3. The information submitted with the development application does not satisfy the objectives of the B4 Mixed Use zone, which Council must have regard for under Clause 2.3(2) of the Shoalhaven Local Environmental Plan 2014. (Section 4.15(1)(a)(i) of Environmental Planning and Assessment Act, 1979)

4. Insufficient information has been submitted to demonstrate compliance with the requirements of chapter G2 Sustainable Stormwater Management and Erosion/Sediment Control of the Shoalhaven Development Control Plan 2014, particularly as it relates to the design of the drainage system. (Section 4.15(1)(a)(iii) of Environmental Planning and Assessment Act, 1979)

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. (Section 4.15(1)(a)(iii) of Environmental Planning and Assessment Act, 1979)

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. (Section 4.15(1)(a)(iii) of Environmental Planning and Assessment Act, 1979)

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. (Section 4.15(1)(a)(iii) of Environmental Planning and Assessment Act, 1979).

8. The information submitted with the development application does not satisfactorily demonstrate that there will not be significant adverse amenity affects upon adjoining properties or upon the future residents of the development. (Section 4.15(1)(b) of Environmental Planning and Assessment Act, 1979)

9. The information submitted with the development application does not satisfactorily demonstrate that the site is suitable for the proposed development. (Section 4.15(1)(c) of Environmental Planning and Assessment Act, 1979)

10. Having regard to the variations to planning controls within the Shoalhaven Development Control Plan 2014 and the inconsistency with the objectives of the zone under Shoalhaven Local Environmental Plan 2014, the granting of development consent is not considered to be in the public interest. (Section 4.15(1)(e) of Environmental Planning and Assessment Act, 1979).”

· A section 8.2 Application to review this determination was lodged on 4 December 2018 disagreeing with the determination and offering up the following as addressing the reasons for refusal:

1. Clause 45 of State Environmental Planning Policy (Infrastructure) 2007 relates (in part) to development to be carried out within or immediately adjacent to an easement for electricity purposes (whether or not the electricity infrastructure exists). Subclause 45(2) states that before determining an application, the consent authority must:

(a) give written notice to the electricity supply authority for the area in which the development is to be carried out, inviting comments about potential safety risks, and

(b) take into consideration any response to the notice that is received within 21 days after the notice is given.

The stated reason for refusal is that the information submitted with the development application does not satisfactorily demonstrate that the development addresses the matters for consideration under Clause 45 of State Environmental Planning Policy (Infrastructure) 2007.

Therefore, the onus for satisfying the requirements of Clause 45 lies with Council as the consent authority, rather than being a requirement for information to be provided by an applicant.

As such, it is considered that the basis for this reason for refusal is flawed and is therefore invalid.

2. Clause 102 of State Environmental Planning Policy (Infrastructure) 2007 relates to the impact of road noise or vibration on non-road development and applies to development for residential accommodation, where it is adjacent to a road with an average annual daily traffic (AADT) volume of more than 20,000 vehicles (based on the traffic volume data published on the website of RMS). Under this clause, a consent authority must not grant to development unless it is satisfied that appropriate measures will be taken to achieve the nominated noise criteria.

The RMS data indicates that the Princes Highway at Bomaderry carries an AADT volume of 22,000 vehicles. However, although the site has a narrow battle-axe handle that fronts the Princes Highway and provides vehicular and pedestrian access to the site, the site itself, is not located adjacent to the road corridor and is separated by the allotments on which the Avaleen Lodge Motor Inn and Bomaderry Motor Inn are located. As such, these buildings provide an acoustic buffer and separation between the Princes Highway and the proposed development and it is considered that the proposed development will not be adversely affected by road noise or vibration.

3. The stated objectives of the B4 Mixed Use zone are:

(a) To provide for a mixture of compatible land uses.

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

The proposed residential land use is considered to be compatible with the surrounding land uses. Further, it is noted that the proposed residential land use of the land was chosen in preference to a significantly larger mixed-use development that incorporated a commercial component – as was discussed with Council at the Pre-DA stage. Having regard to the B4 Mixed Use zoning, the 11m height limit set under Shoalhaven DCP 2014 and that a maximum floor space ratio for the site is not prescribed under the LEP, three different concept schemes (Options A, B & C) were presented at the Pre-DA meeting, as detailed below. The proposed built form in each of these options were between 3 and 6 storeys and incorporated both residential and non-residential floor space.

· Option A – 4 storey mixed use development comprising 150 apartments in 4 blocks, 2,124m2 commercial/retail floor space, including a child care centre.

· Option B – 3-4 storey mixed use development comprising 100 apartments in 6 blocks, 1,822m² commercial/retail floor space including a child care centre.

· Option C - 3-6 storey mixed use development with a green roof and ‘punched’ courtyards, comprising 165 apartments and 2,992m2 of commercial/retail floor space.

Despite not all schemes complying with the 11m height limit, it was noted that each of these development types were permissible with consent. However, following a discussion with Council’s (then) Section Manager – Development after the meeting, Council’s officer advised that the concept schemes could not be supported in the form presented at the Pre-DA meeting and a built form more compatible with the existing surrounding scale should be investigated.

4. The applicant has continuously worked with Council officers to address all requests for additional information regarding the stormwater drainage design for the proposed development and on several occasions, further information was sought. It is considered that the stormwater drainage design can be amended to satisfy all concerns raised by Council.

5. The proposed landscaping for the site incorporates a combination of soft and hard landscaping, as well as turf cell and is considered to provide a suitable landscaping scheme for the site. The objectives of Chapter G3 of Shoalhaven DCP 2014 are to:

i. Blend new developments, where appropriate, into the existing streetscape and neighbourhood character.

ii. Enhance the appearance, amenity and energy efficiency of new developments for the users and for the community in general.

iii. Provide landscaping within a development that relates to the scale and type of existing elements in the neighbouring landscape.

It is considered that the landscape scheme for the proposed development achieves these objectives and provides a suitable landscape context and setting for the proposed development.

6. The applicant decided not to pursue a commercial component on the site and instead, proposed a purely residential scheme, that took advantage of the sites B4 Mixed Use zoning (i.e. not within an R3 Medium Density Residential environment), but proposed a built form similar to multi dwelling housing set in the context of an ‘integrated community’. The design ‘ideology’ is that 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.

As a consequence of this categorisation, Council’s assessment of the proposed development has been based on the provisions for multi dwelling housing set out in Chapter G14: Other Residential Accommodation of Shoalhaven DCP 2014. However, it is respectfully submitted that while these controls would be suitable for a multi-dwelling housing development in an R3 Medium Density Residential zone, to seek to rely on these controls for a development in a B4 Mixed Use zoning is contrary to the zoning objectives.

Council has indicated that the scale and density of the proposed development is unsatisfactory and is contrary to the objectives and performance criteria of Chapter G14: Other Residential Accommodation in Shoalhaven DCP 2015. However, it is considered that the site has the environmental capacity to support a higher residential density than would be acceptable in an R3 Medium Density Residential zone and the proposed density is appropriate for this site, where it is located on a major traffic thoroughfare, with good access to public transport and in proximity to a range of retail and commercial facilities accessible by walking and cycling.

Council’s attention is drawn to the provisions of Section 4.15(3A) of the Environmental Planning & Assessment Act 1979 which states:

(3A) Development control plans

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c) may consider those provisions only in connection with the assessment of that development application.

In this subsection, standards include performance criteria.

Having regard to subclause 4.15(3A)(b), it is considered that the flexible application of the DCP controls is appropriate with respect to the proposed development.

It is considered that the proposed development, when considered in its context, has sufficient planning merit such that the strict application of the DCP controls is unwarranted in the circumstances. The proposed development will add to the housing choice and diversity in the locality, consistent with the emerging and desired mixed-use environment.

There is currently no dominant character or built form in the locality. However, commensurate with the above objectives, as an emergent mixed use urban area, the proposed multi dwelling housing development will contribute to the achievement of this mixed-use character through the integration of residential development in a location with good access to public transport services.

The redevelopment of this site will provide a quality multi dwelling housing development that represents an appropriate scale and built form in this location. The relationship of the building to the surrounding residential and non-residential development is acceptable and 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.

7. The proposed on-site parking provision complies with the numerical requirements of Shoalhaven DCP 2014. 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.

8. The proposed development is considered to be appropriate for the existing and likely future context and setting of the locality. The redevelopment of this site will provide a quality multi dwelling housing development that represents an appropriate scale and built form in this location. The relationship of the building to the surrounding residential and non-residential development is acceptable and 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. The proposed development is considered to be a significantly more modest scheme that the zoning and environmental capacity of the site would allow for.

The proposed development is considered to be appropriate for the existing and likely future context and setting of the locality. The redevelopment of this site will provide a quality residential development that represents an appropriate scale and built form in this location. The relationship of the building to the surrounding residential and non-residential development is acceptable and 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. The two-storey built form is compatible with the height of surrounding residential development and the relationship and separation between the proposed development and the adjoining residential properties is such that appropriate visual and acoustic privacy will be maintained. There will also be no overshadowing impacts on the adjoining residential uses arising from the proposed development.

9. The site is considered suitable for the proposed development for the following reasons:

· the site has the environmental capacity to support the proposed residential density and built form.

· 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.

10. As discussed earlier, it is considered that the proposed development is entirely consistent with the objectives of the B4 Mixed Use zone and the proposed development is in the public interest. 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.

Issues

Review of Determination

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

The Development Application (DA18/1000) was externally referred to Endeavour Energy for comment on 15 January 2018 due to the vicinity of the development to an existing easement (30.48m wide) for transmission lines which partially traverses the southern and western corner of the site.

The following pertinent comments were raised by Endeavour Energy in their referral response provided on 5 February 2018:

“Some of the dwellings (Blocks 4 and 6) are proposed to be constructed against the easement area. All parts of the building must be outside of the easement i.e. porches, verandahs, awnings, pergolas, balconies, architectural features as well as the eaves and gutters / downpipes or any type of projections from external walls such as stairs, chimneys, services etc. must not encroach the easement area and this applies regardless of the Council’s allowable building setbacks etc. under its development controls. From the elevations and the Parking Floor Plan it appears parts of the dwellings may encroach the easement area?

There are driveways, stormwater pipes, onsite stormwater detention tank, fencing, landscaping etc. located within the easement area.

Endeavour Energy’s preference is for no activities or encroachments to occur within its easement areas. However, if this is not reasonably possible and the proposed works (as is the case here) will encroach/affect Endeavour Energy’s easements, contact must first be made with the Endeavour Energy’s Easements Officer, Jennie Saban.”

Council referred revised plans to Endeavour Energy for further comment, however the applicant failed to address the original concerns with the following comments provided by Endeavour Energy in correspondence received on 31 October 2018:

Comparing the original and revised site plans below there appears to be no revisions made to the plans in regard to the easement area. Endeavour Energy has noted that the request for additional information etc. does not appear to address the easement. Endeavour Energy’s Easements Officer, Jennie Saban, has advised that the applicant has not contacted her to discuss the proposed controlled activities and encroachments in the easement area.

Accordingly, the objection to the Development Application and the recommendations and comments previously made by Endeavour Energy remain valid.

In accordance with Clause 45 of the ISEPP, the consent authority is required to ‘take into consideration any response to the notice that is received within 21 days after the notice is given’. Considering Endeavour Energy’s above objection to the proposal, the assessment officer (as the consent authority) considered that Clause 45 of the ISEPP had not been satisfactorily addressed.

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 Essential 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 be should be removed from the determination notice, if the recommendation 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 the purpose of 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.

Clause 102(3) of the ISEPP requires that a consent authority is not permitted to grant consent to a development unless it is satisfied that appropriate measures would be undertaken to ensure that;

(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 very high traffic volume of the Princes Highway and the 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 Development Application that the applicant has not addressed how the development would comply with the requirements of Clause 102.

In their submission provided as part of the Review of Determination Application, the applicant provided that given the separation of the allotment by the Avaleen Lodge Motor Inn and Bomaderry Motor Inn the development would not be adversely affected by road noise or vibration.

Whilst this is noted, no evidentiary proof (such as the submission of an Acoustic Noise Report) has been provided to confirm that the ambient noise levels of the dwellings located closest to the Princes Highway would comply with the specified noise levels stated within Clause 102(3).

As such Council’s position that the applicant has not satisfactorily demonstrated compliance with Clause 102 of the ISEPP has not changed.

Conclusion: Reason for Refusal No. 2 should therefore be retained within the determination notice issued to the applicant.

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. 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 so as 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.

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 is not sufficient and 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 pre-developed 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 cell would wear out, it is likely that pollutant loads would eventually 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 Development Application, 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.

· Personal safety has been sufficiently considered as landscaping will not provide opportunities for concealment and is generally consistent with CPTED principles.

· Landscaping must be in accordance with the principles of Appendix 5 of ‘Planning for Bush Fire Protection 2006’ as per NSW RFS comments.

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, it is acknowledged that a Development Control Plan 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, observing the number of units, building footprint and concentration of development, amenity for occupants is important and to this end the provision of good quality landscaping would be beneficial for occupants, and in this regard, 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 as was recommended by the assessment officer in the initial assessment. 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.

It is noted that no alteration has been made to the design of the development as it pertains to 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 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 made by the assessment officer 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.

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

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

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 Development Application, 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 concern. The scale of development having regard to 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.

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:

Notification was undertaken in reference to the proposed development as part of the original Development Application for a two (2) week period between 20 April 2018 and 5 May 2018 and as part of the Review of Determination Application for a two (2) week period between 12 March 2019 and 27 March 2019. Six (6) public submissions were received within these notification periods. Six (6) were in objection to the development. Zero (0) were in support of the development. The notification was made in accordance with Council’s Community Consultation Policy with letters being sent within a 120m buffer of the site.

Key issues raised as a result of the notification are provided below.

· Noise Impact;

· Amenity/Privacy Impact;

· Traffic Impact;

· Construction Sequence;

· Emergency Services Access;

· On-Site Waste Service Collection;

· Chapter G3 (Landscaping) Objectives;

· Chapter G14 (Other Development) Objectives;

· Commercial Impact;

· Floor Space Ratio Variation;

· Location of Car Parking;

· Lighting Impacts;

· Car Parking Impacts (Construction Period) upon Approved Aldi Development;

· Car Parking Impacts (Operational Period) upon Approved Aldi Development; and

· Amenity Impacts for Future Residents given the Close Proximity to Approved Loading Dock of Aldi Supermarket.

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.

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 however recommended that the Determination be reissued removing the first reason for refusal. This matter has been resolved given that Endeavour has decided to conditionally support the proposal.