Agenda of Development Committee

Minutes of the Development Committee

Meeting Date: Tuesday, 14 February 2017

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

Time: 5:02pm

The following members were present:

Clr Amanda Findley

Clr Patricia White - Chairperson

Clr Joanna Gash

Clr John Wells

Clr John Levett

Clr Nina Cheyne

Clr Annette Alldrick

Clr Kaye Gartner

Clr Andrew Guile

Clr Mitchell Pakes

Clr Greg Watson

Clr Mark Kitchener

Clr Bob Proudfoot

Mr Russ Pigg - General Manager

Apologies / Leave of Absence

Nil

Confirmation of the Minutes

RESOLVED (Clr Wells / Clr Guile) MIN17.73

That the Minutes of the Development Committee held on Monday 23 January 2017 be confirmed.

CARRIED

Declarations of Interest

Clr Kitchener – DE17.17 – DA Fee Exemption South Coast Branch Surf Life Saving – less than significant non pecuniary interest declaration – is a member of the Mollymook Surf Life Saving Club, a reasonable person might consider I am taking an advantage to Surf Life Saving – will remain in the room and will take part in discussion or vote.

Clr Pakes – DE17.17 – DA Fee Exemption South Coast Branch Surf Life Saving – significant non pecuniary interest – he is the elected vice president of the South Coast Surf Life Saving Branch – will leave the room and will not take part in discussion or vote.

Clr Alldrick – DE17.11 – Notice of Motion – Subdivision Application – 7 Bangalee Road, Tapitallee – pecuniary interest – she is a resident of Tapitallee – will leave the room and will not take part in discussion or vote.

Clr Wells – DE17.12 – Notice of Motion – Development Application – Coastal Palms Caravan Park - Shoalhaven Heads – DA17/1019 – significant non pecuniary interest – his mother in law resides permanently at this property – will leave the room and will not take part in discussion or vote.

Deputations and Presentations

Mr Andrew Lesley made submission but withdrew his request to provide a deputation in relation to DE17.14 – Council Land Reclassification Housekeeping Planning Proposal - Post Exhibition Consideration and Finalisation.

Mr Peter Price addressed the Committee in relation to DE17.15 – Development Application DA16/1123 – 56 - 69 Graham St, Nowra, Lots H, J & K & DP 39320

Mr Matthew Wales (Wales & Associates) addressed the Committee in relation to DE17.15 – Development Application DA16/1123 – 56 - 69 Graham St, Nowra, Lots H, J & K & DP 39320

Procedural Motion - Bring Item Forward

RESOLVED (Clr Wells / Clr Gash) MIN17.74

That the matter of item DE17.15 Development Application DA16/1123 – 56 - 69 Graham St, Nowra, Lots H, J & K & DP 39320 be brought forward for consideration.

CARRIED

DE17.15 Development Application DA16/1123 – 56 - 69 Graham St, Nowra, Lots H, J & K & DP 39320

HPERM Ref: D17/217

Recommendation (Item to be determined under delegated authority)

That Council:

1. Confirm that it supports the height variation

2. Refer the application back to staff for determination.

RESOLVED (Clr Gash / Clr Gartner) MIN17.75

That Council:

1. Confirm that it supports the height variation

2. Refer the application back to staff for determination.

For: Clr Findley, Clr White, Clr Gash, Clr Wells, Clr Levett, Clr Cheyne, Clr Alldrick,
Clr Gartner, Clr Guile, Clr Pakes, Clr Kitchener and Russ Pigg

Against: Clr Watson and Clr Proudfoot

CARRIED

Notices of Motion / Questions on Notice

DE17.11 Notice of Motion - Subdivision Application - 7 Bangalee Road, Tapitallee	HPERM Ref: D17/39662
Clr Alldrick – pecuniary interest – she is a resident of Tapitallee – left the room and did not take part in discussion or vote.
Recommendation (Item to be determined under delegated authority) To report to Council recommendations and updates on the progress of the Tapitallee Development Application.
RESOLVED (Clr Cheyne / Clr Gartner) MIN17.76 That the report in relation to Notice of Motion - Subdivision Application - 7 Bangalee Road, Tapitallee be received for information. For: Clr Findley, Clr White, Clr Gash, Clr Wells, Clr Levett, Clr Cheyne, Clr Gartner, Clr Guile, Clr Pakes, Clr Watson, Clr Kitchener, Clr Proudfoot and Russ Pigg Against: Nil CARRIED

DE17.12 Notice of Motion - Development Application - Coastal Palms Caravan Park - Shoalhaven Heads - DA17/1019	HPERM Ref: D17/39684
Clr Wells – significant non pecuniary interest – his mother in law resides permanently at this property – left the room and did not take part in discussion or vote.
Note: Clr Alldrick returned to the meeting, the time being 5.50pm. Note: Clr Gartner left the meeting, the time being 5.55pm.
Recommendation (Item to be determined under delegated authority) That the time for consideration of DA17/1019 be extended to allow for more considered feedback to Council and that an information evening be held with Council representation to attend the meeting to further explain the elements of the DA.
RESOLVED (Clr Cheyne / Clr Guile) MIN17.77 That the time for consideration of DA17/1019 be extended to allow for more considered feedback to Council and that an information evening be held with Council representation to attend the meeting to further explain the elements of the DA. For: Clr Findley, Clr White, Clr Gash, Clr Levett, Clr Cheyne, Clr Alldrick, Clr Guile, Clr Pakes, Clr Watson, Clr Kitchener, Clr Proudfoot and Russ Pigg Against: Nil CARRIED

DE17.13 Notice of Motion - Crown Land adjacent to Shoalhaven Heads Golf Course	HPERM Ref: D17/40293
Recommendation (Item to be determined under delegated authority) That 1. The General Manager report back to Council on the botanical status of the land at Lot 7010 DP 1035145, Scott Street, Shoalhaven Heads, and 2. If it is confirmed that it is littoral rainforest, council consider submitting making an additional submission to have the land identified in the final State Environmental Planning Policy (Coastal Management) 2016, maps as a coastal wetland and littoral rainforest area.
Note: Clr Wells and Clr Gartner returned to the meeting at 5:58pm
RESOLVED (Clr Cheyne / Clr Findley) MIN17.78 That under the delegation of the Development Committee, the note from the General Manager be received for information. For: Clr Findley, Clr White, Clr Gash, Clr Wells, Clr Levett, Clr Cheyne, Clr Alldrick, Clr Gartner, Clr Watson, Clr Kitchener, Clr Proudfoot and Russ Pigg Against: Clr Guile and Clr Pakes CARRIED

Reports

DE17.14 Council Land Reclassification Housekeeping Planning Proposal - Post Exhibition Consideration and Finalisation

HPERM Ref: D16/393791

Recommendation (Item to be determined under delegated authority)

That Council:

1. Adopt the Planning Proposal as exhibited with the following change:

· Amend the Planning Proposal to refer to MIN 812 in relation to the sale of 50 Shoalhaven Heads Road, Shoalhaven Heads.

2. As per Council’s delegated functions as Relevant Planning Authority, forward the Planning Proposal to NSW Parliamentary Counsel to draft the amendment to the Shoalhaven Local Environmental Plan 2014 and enable it to proceed to finalisation.

3. When considering the future management of the Lively Street, Vincentia land; have regard to issues raised in submissions at Attachment 1 and those identified in the 3 November 2015 Development Committee Report (D15/324914); and

4. Notify submitters and Community Consultative Bodies of this resolution, and again when the Planning Proposal is notified and comes into effect.

RESOLVED (Clr Watson / Clr Proudfoot) MIN17.79

That Council:

1. Adopt the Planning Proposal as exhibited with the following change:

· Amend the Planning Proposal to refer to MIN15.812 in relation to the sale of 50 Shoalhaven Heads Road, Shoalhaven Heads.

4. Notify submitters and Community Consultative Bodies of this resolution, and again when the Planning Proposal is notified and comes into effect.

For: Clr Findley, Clr White, Clr Gash, Clr Wells, Clr Cheyne, Clr Alldrick, Clr Gartner,
Clr Guile, Clr Pakes, Clr Watson, Clr Kitchener, Clr Proudfoot and Russ Pigg

Against: Clr Levett

CARRIED

DE17.15 Development Application DA16/1123 – 56 - 69 Graham St, Nowra, Lots H, J & K & DP 39320

HPERM Ref: D17/217

Item dealt with earlier/later in the meeting see MIN17.75.

DE17.16 Development Application – 1 Brooks Lane, Kangaroo Valley – Lot 102 in DP 1056895

HPERM Ref: D17/31245

Recommendation (Item to be determined under delegated authority)

That the Council:

1. Support the variations to the 5.5 metre height limit set by clause 4.3 of SLEP-2014;

2. Refer the application back to staff for determination

RESOLVED (Clr Guile / Clr Wells) MIN17.80

That the Council:

1. Support the variations to the 5.5 metre height limit set by clause 4.3 of SLEP-2014;

2. Refer the application back to staff for determination.

For: Clr Findley, Clr White, Clr Gash, Clr Wells, Clr Levett, Clr Cheyne, Clr Alldrick,
Clr Gartner, Clr Guile, Clr Pakes, Clr Watson, Clr Kitchener, Clr Proudfoot and
Russ Pigg

Against: Nil

CARRIED

DE17.17 DA Fee Exemption - South Coast Branch Surf Life Saving (NSW) - Proposed Administration, Training & Storage Facility - Integrated Emergency Management Centre, 92 Albatross Road, Nowra.

HPERM Ref: D17/26984

Clr Kitchener – less than significant non pecuniary interest declaration – is a member of the Mollymook Surf Life Saving Club, a reasonable person might consider I am taxing an advantage to Surf Life Saving –remained in the room and did take part in discussion & vote.

Clr Pakes – significant non pecuniary interest – he is the elected vice president of the South Coast Surf Life Saving Branch – left the room and did not take part in discussion or vote.

Recommendation (Item to be determined under delegated authority)

For Committee’s consideration.

RESOLVED (Clr Wells / Clr Gash) MIN17.81

That the fees be waived for the South Coast Branch Surf Life Saving (NSW) - Proposed Administration, Training & Storage Facility - Integrated Emergency Management Centre, 92 Albatross Road, Nowra.

For: Clr Findley, Clr White, Clr Gash, Clr Wells, Clr Levett, Clr Cheyne, Clr Alldrick,
Clr Gartner, Clr Guile, Clr Watson, Clr Kitchener, Clr Proudfoot and Russ Pigg

Against: Nil

CARRIED

Procedural Motion - Matters of Urgency

Note: Clr Pakes returned to the meeting, the time being 6.43pm.

RESOLVED (Clr Pakes / Clr Guile) MIN17.82

That an additional item the old Service Station at Culburra Beach Contamination be introduced as a matter of urgency.

CARRIED

The Chairperson ruled the matter as urgent as it deals with contamination.

DE17.18 Contamination - Culburra Beach Old Service Station Site

RESOLVED (Clr Pakes / Clr Guile) MIN17.83

That Council receive a verbal report on:

1. The progress of the clean up and clean up order issued to the property owner

2. Options available to Council should the property owner not comply with the clean up orders

3. Receive the verbal report from the Director Planning and Development Services for information

CARRIED

Procedural Motion - Matters of Urgency

RESOLVED (Clr Proudfoot / Clr Findley) MIN17.84

That an additional item DS16/1532 - Section 96 amendment for the quarry on Parnell Rd, Tomerong – Extend Time for Submissions be introduced as a matter of urgency.

CARRIED

The Chairperson ruled the matter as urgent as the submissions close tomorrow.

DE17.19 DS16/1532 - Section 96 Amendment for the Quarry on Parnell Rd Tomerong - Extension of Time for Submissions

RESOLVED (Clr Proudfoot / Clr Findley) MIN17.85

That

1. Regarding DS16/1532 Section 96 Amendment Quarry Parnell Rd Tomerong, public submissions be extended by a further 21 days.

2. And a residents briefing be held

CARRIED

There being no further business, the meeting concluded, the time being 6.52pm.

Clr White

CHAIRPERSON

Development Committee – Tuesday 14 March 2017

Page 8

DE17.20 Subdivision Controls in Greenwell Point - Legal Advice and Policy Direction

HPERM Ref: D17/28315

Group: Planning & Development Services Group

Section: Strategic Planning

Attachments: 1. Legal Advice - Marsden Law Group - 15 December 2016 (Confidential - under separate cover)

2. Correspondence - Greenwell Point emergency classification - State Emergency Services ⇩

3. Adopted Greenwell Point Floodplain Risk Management Options Feasibility Study (councillors information folder) ⇨

Purpose / Summary

This report is provided in response to Council’s resolution of 7 November 2016 to adopt Amendment No. 5 to Shoalhaven Development Control Plan (DCP) 2014 and “defer the draft changes to Chapter G9: Development on Flood Prone Land relating to subdivision in Greenwell Point to seek legal advice and remove the current wording in the DCP pending a further report on further advice”.

The report considers and addresses the appropriateness of planning controls relating to subdivision in Greenwell Point and legal advice in this regard.

Recommendation (Item to be determined under delegated authority)

That Council:

1. Form a position on development controls relating to flood risk management in Greenwell Point by selecting Option 1 or 2; and,

2. Undertake a review of the Lower Shoalhaven River Flood Risk Management Plan, Shoalhaven Local Environmental Plan 2014 and Chapter G9 of Shoalhaven Development Control Plan 2014 as required by this Interim Policy position.

Options

1. Adopt an Interim Policy position to refuse new or expanded development that will increase the population within in the village of Greenwell Point including subdivision (Torrens title and strata), dual occupancy, medium density and tourist development. The objective of this is to reduce the risk to property and life and reduce the burden on emergency services during a flood event.

Implications: This option ensures that Council maintains protection from statutory indemnity provided under Section 733 of the Local Government (LG) Act 1993 by providing development controls that are consistent with the Lower Shoalhaven River Flood Risk Management Study and Plan (FRMS&P) and has followed the process set out in the NSW Floodplain Development Manual 2005.

This option is consistent with the advice from SES – refer Attachment 2.

The current FRMS&P includes actions that require specific planning responses to address the evacuation issues caused by the isolation of the village of Greenwell Point during a flood event. A number of mitigation options were investigated through the FRMS&P including:

· Construction of levees to protect existing properties;

· Raising Greenwell Point Road; and

· Possible house raising.

Community feedback received during the exhibition of the Greenwell Point Floodplain Risk Management Options Feasibility Study (the Study) showed little support for the engineered/structural mitigation options outlined above. Planning responses and community awareness were the preferred methods of implementing flood risk management at Greenwell Point as reflected in the adopted Study.

In reporting the exhibition outcomes of the draft Shoalhaven DCP 2014 (Housekeeping Amendment Stage 2) and a further review of the FRMS&P and the controls provided in the version of Chapter G9: Development on Flood Prone Land prior to the adoption of the DCP Amendment No. 5, it became clear that the actions adopted in the FRMS&P were not appropriately elevated for consideration in the Local Environmental Plan (LEP).

If Council resolves to restrict new or expanded development, a detailed review of the appropriate zoning and controls in Shoalhaven LEP 2014 is required to provide the controls intended by the FRMS&P. As outlined in the report to Council’s Development Committee dated 7 December 2016, a Development Control Plan (DCP) cannot prohibit development that the LEP potentially enables, thus any controls to limit development will need to be reflected in an amendment to the LEP zones and controls.

2. Not provide additional development restrictions in Greenwell Point and consider each development application on its merit in accordance with the provisions of Shoalhaven LEP 2014 and Shoalhaven DCP 2014.

Implications: Greenwell Point is somewhat unique from Shoalhaven’s other villages and towns that are also flood affected, given that the village becomes isolated creating an island in which evacuation and access is severely affected for an extended period of time. The liability for Council in allowing further population intensification of Greenwell Point, contrary to the recommendations of the relevant flood study, could at this stage, be significant. It is difficult to determine the scale of litigation that Council could be open to, if a major flood event occurs and there is substantial damage to assets.

Following consideration of the legal advice, it is apparent that the most straight forward approach to ensure the indemnity offered by Section 733 of the Local Government Act is protected, requires Council to follow the process prescribed in the Floodplain Manual and undertake actions in ‘good faith’ to maintain this indemnity. If Council resolves to not restrict development in Greenwell Point as recommended by the FRMS&P, it must acknowledge that if challenged, Council will need to demonstrate how, and on what basis it has acted in ‘good faith’ even though it did not comply with the processes set out in the Floodplain Development Manual. The loss of indemnity is not limited to any policy decisions made by Council regarding its planning controls, but potentially impacts on future decisions by Council in determining development applications in accordance with Council’s adopted policy position.

A review of the FRMS&P is due to commence shortly and it will be carried out in accordance with the principles and process set out in the NSW Floodplain Development Manual 2005. Section 2.7 of which states that “this review should account for changes across the full range of issues originally addressed and consider any associated emergent issues”. A detailed explanation of the process prescribed in the Manual is provided in this report and the attached legal advice (Confidential Attachment 1).

One-off changes to the FRMS&P would still require to follow the process in the Manual and any review would need to be facilitated by a Floodplain Risk Management Committee appointed by the Council to make recommendations following a proper and reasoned process that substantially accords with the principles contained in the Floodplain Development Manual.

This option requires no change to Shoalhaven LEP 2014 or Shoalhaven DCP 2014 (as per the amendment that commenced 30 November 2016), however given that Council would be adopting this option, prior to undertaking any review of the flood study and plan, it would potentially be inconsistent with the existing FRMS&P and Council’s adopted Greenwell Point Floodplain Risk Management Options Feasibility Study 2014 (Attachment 3 – Councillors Information Folder). Until the review is completed in approximately 2 years time and assuming that this review would resolve the current inconsistency between the Floodplain Plan and Council’s DCP, the Council would be exposed and need to be confident it could defend the position adopted.

Background

Following a Notice of Motion, Council resolved on 15 December 2015 to amend the Shoalhaven DCP 2014 (Part D in Schedule 5 of Chapter G9) (MIN15.813) to:

allow the subdivision of land and the creation of strata title lots within the Village of Greenwell Point subject to the lots whether strata or real property having access to flood free land, in compliance with Shoalhaven LEP 2014.

Council’s Development Committee considered the exhibition outcomes and finalisation of Amendment No. 5 to Shoalhaven DCP 2014 on 7 November 2016 (MIN16.838). At this meeting, the matter of subdivision of flood free land within the village was again raised in considering submissions received during the public exhibition of the draft amendment to the DCP.

Consistency with the FRMS&P is important, not only to ensure Council’s planning documents include suitable controls consistent with the Floodplain Development Manual and Guidelines but to also ensure Council is afforded statutory indemnity under Section 733 of the Local Government (LG) Act 1993 when providing flood risk controls.

There was however concern that the Council resolution could be inconsistent with the FRMS&P and therefore Council could be seen to have planning controls that are inconsistent with the ‘good faith’ test in regard to Section 733 of the LG Act.

Council ultimately resolved at the November 2016 Development Committee Meeting to adopt Amendment No. 5 to Shoalhaven Development Control Plan (DCP) 2014 and “defer the draft changes to Chapter G9: Development on Flood Prone Land relating to subdivision in Greenwell Point to seek legal advice and remove the current wording in the DCP pending a further report on further advice”.

In accordance with the resolution, Amendment No. 5 to the DCP was notified on 30 November 2016 including the removal of the wording relating to subdivision in Greenwell from Part D, Schedule 5 in Chapter G9: Development on Flood Prone Land.

Legal Advice

Legal Advice was sought from Marsdens Law Group (Confidential Attachment 1) which considers the following main points and the relationship between them:

· Whether Shoalhaven DCP 2014 and Shoalhaven LEP 2014 are consistent with the Floodplain Development Manual 2005, Floodplain Risk Management Plan 2008 and Floodplain Risk Management Study 2008;

· Whether Council and its Councillors would benefit from the statutory indemnity provided by Section 773 of the LG Act; and

· What amendments could be made to Shoalhaven DCP 2014 or Shoalhaven LEP 2014 in relation to subdivision in Greenwell Point?

As the advice is confidential and privileged, it has been included as a confidential attachment. A confidential Councillor Briefing was held to discuss the details and implications for Council raised in this advice. .

Section 733 of the Local Government (LG) Act 1993

Section 733 of the LG Act provides Council with a statutory exemption from liability in respect of advice furnished or things done or omitted to be done in “good faith” in so far as it relates to the likelihood of land being flooded or the nature or extent of any such flooding. Section 733 applies to (among other things):

· The preparation or making of an environmental planning instrument, or a development control plan under the Environmental Planning and Assessment Act 1979 (EP&A Act),

· The granting or refusal of consent to a development application under the EP&A Act,

· The determination of an application for a complying development certificate under the EP&A Act.

Council would normally be considered to have acted in good faith if it acts substantially in accordance with the principles contained in the Floodplain Development Manual and the Guideline.

Council has mostly demonstrated compliance with the principles and processes contained in the Floodplain Development Manual and Guideline in respect of the process undertaken and in accordance with Section 2 of the NSW Floodplain Development Manual 2005. The process lead to development controls being included in Shoalhaven Development Control Plan No.106 Amendment No. 1 (adopted by Council April 2011). The specific subdivision controls for Greenwell Point were carried across into Chapter G9: Development on Flood Prone Land of Shoalhaven DCP 2014, however those controls were removed in accordance with Council’s resolution of 7 November 2016 to adopt Amendment No. 5 to DCP 2014 and “defer the draft changes to Chapter G9: Development on Flood Prone Land relating to subdivision in Greenwell Point to seek legal advice and remove the current wording in the DCP pending a further report on further advice”.

The legal advice (Confidential Attachment 1) addresses the changes proposed through Council’s resolution of 7 November 2016 to allow subdivision in Greenwell Point.

NSW Floodplain Manual 2005

The NSW Floodplain Manual has been in place since April 2005, and is supplemented by the “Guideline on Development Controls in Low Flood Risk Areas” dated January 2017.

The primary objective of the Manual is to “reduce the impact of flooding and flood liability on individual owners and occupiers of flood prone property, and to reduce private and public losses resulting from floods, utilising ecologically positive methods wherever possible.” The process for adopting and implementing a Floodplain Management Plan and Study is detailed in Figure 1 below.

The manual recognises that the management of flood prone land is, primarily, the responsibility of councils. The NSW Department of Planning & Environment (DP&E) has a lead role in the development of regional strategies and plans under the Environmental Planning and Assessment Act (EP&A Act) and ensuring that any Planning Proposals are consistent with the Minister for Planning’s Section 117 Directions, including Direction 4.3 Flood prone Land issued 1 July 2009.

The NSW Government, through the Office of Environment and Heritage (OEH) and the State Emergency Service (SES) play an important role in providing specialist technical assistance on all flooding and land use planning matters. The NSW Government continues to provide funding to subsidise flood risk management studies, works and measures through their Floodplain Management Program.

Fig 1: The Floodplain Risk Management Process

(NSW Floodplain Development Manual 2005)

Lower Shoalhaven River Floodplain Risk Management Plan and Study (FRMS&P)

The FRMS&P examines flooding issues relating to the floodplain of the Lower Shoalhaven River and identifies issues raised in the course of the study relating to “Subdivision of Land and Evacuation Access” at Greenwell Point. A copy of the Flood Study Report, the Risk Management Study and Plan as well as the Climate Change Assessment completed in 2011 for the Lower Shoalhaven River are available from Council’s website at:-

http://shoalhaven.nsw.gov.au/Environment/Flood-risk/Flood-program#lowershoalhaveninprog

Section 5.2.4 of the FRMS&P states (pp 43-44):

Any proposal for further subdivision of land at Greenwell Point will increase the population at risk and potential damages due to flooding for the area. There will also be a greater reliance on emergency services, since the subdivision is likely to attract new people to the area who are not necessarily flood aware.

Ensuring that high hazard flood prone land situated in the existing developed areas is zoned low density and enforcing minimum floor height restrictions will prevent large increases in population or potential flood damages.

Land not classified as flood prone should have similar low density restrictions because the entire area can be isolated from services such as fresh water, sewer and electricity during major flood events. Even though there will be no threat to property in the flood free areas there will still be a burden for emergency services because of the isolation. Any further expansion or new development beyond the current residential zoning should not be permitted at all.”

The FRMS&P is due for review and Council’s Natural Resources team are currently developing a project brief and anticipate that the tender process will commence in the next month or so. This review will take approximately 2 years to fully complete and will be undertaken in accordance with the principles and processes defined in the Floodplain Development Manual

Greenwell Point Evacuation Issues

The village of Greenwell Point experiences access and evacuation difficulties in potentially as little as a 10% AEP design event and greater. Greenwell Point is classified as an ‘island’ under the Floodplain Manual 2005. The formation of islands in the floodplain during a flood is a potentially dangerous situation. People trapped on the island and their rescuers will be placed at undue risk. Thus, the development of land that becomes isolated prior to ultimate inundation needs to be carefully considered.

In comparing Greenwell Point to other villages and townships, the following were considered (although not directly the same):

· Burrill Lake;

· Conjola Lake;

· Lake Tabourie;

The flood behaviour for the above villages is similar in regard to:

· Catchment flooding,

· Oceanic inundation,

· Low-level persistent flooding, or

· Combination of the above.

However none of the above villages become totally isolated (island) for extended periods of time during floods. The lower Shoalhaven River catchment is large and has flat topography, thus flood waters can remain for longer periods.

Advice was provided by the State Emergency Services (SES) State Headquarters in relation to a current development application for subdivision in the village. The detailed response from SES is included as Attachment 2. The SES acknowledge that an assessment to determine emergency response classifications has not been conducted for Greenwell Point, however it is likely that there are areas above the Probable Maximum Flood (PMF) level that would be classified as ‘high flood islands’.

Greenwell Point Floodplain Risk Management Options Feasibility Study

The Greenwell Point Floodplain Risk Management Options Feasibility Study (Attachment 3 – Councillors Information Folder) thoroughly investigated the floodplain mitigation and management measures recommended in the adopted FRMS&P. The Feasibility Study demonstrates that the structural mitigation options of a levee and the raising of Greenwell Point Road would provide significant flood benefits. However, these measures were generally not supported by the community and are therefore not considered feasible at this time.

Based on the community feedback, the adopted study recommended planning and education initiatives as the most feasible measures that can be implemented for the area.

Council resolved on 10 February 2015 to:

a) Adopt the Greenwell Point Floodplain Risk Management Options Feasibility Study;

b) Remove the site specific flood related development controls from the table in Chapter G9 (formerly DCP 106) of Shoalhaven DCP 2014, Schedule 5 Part D for the properties: 3, 7, 9, 11, 42, 59 Adelaide Street; 59 Haiser Road, 2 Keith Avenue, 1 Church Street and 68, 70, 76 Greens Road in Greenwell Point through the Shoalhaven DCP 2014 ‘Housekeeping Amendment’ Part 1;

c) Continue to work with the SES on community awareness and education programs to raise awareness of the flood risk at Greenwell Point;

d) Request Council’s Roads Manager, for any future upgrade works of Greenwell Point Road, assess the possibility of incrementally raising the lower sections of the road without impacting on drainage effectiveness

The change to Chapter G9 of Shoalhaven DCP 2014 detailed in part b) of this resolution was made effective on 1 July 2015. The possible raising of the lower sections of Greenwell Point Road is being investigated and Council’s staff will continue to work with the SES on community awareness and education programs to raise awareness of flood risk at Greenwell Point.

Shoalhaven LEP 2014

Clause 7.3 Flood Planning in the Shoalhaven LEP 2014 is a ‘model clause’ provided by the NSW Department of Planning & Environment (DP&E) that has been slightly adapted to meet the local situation in Shoalhaven.

Clause 7.3 (3) in Shoalhaven LEP 2014 includes the following criteria for the assessment of development applications that are affected by this clause:

Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development:

a) is compatible with the flood hazard of the land, and

b) will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and

c) incorporates appropriate measures to manage risk to life from flood, and

d) will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and

e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding, and

f) will not affect the safe occupation or evacuation of the land.

DP&E’s drafting instructions related to this Clause encourages Council’s to:

“first identify flood planning areas through their strategic work and to zone appropriately, wherever possible. Care should therefore be taken in determining the permissible development on land that may be subject to flooding to ensure that appropriate uses are included and that relevant types of development require consent under the applicable zones. Councils are then encouraged to apply this model clause in flood planning areas, particularly where flooding matters cannot be fully addressed by limiting land uses e.g. in areas where an existing zone and existing land uses include residential accommodation.”

As shown in Figure 2 below, the majority of Greenwell Point is currently zoned R2 Low Density Residential (with a minimum lot size of 500m2). There are some areas that are also zoned SP3 Tourist, B2 Local Centre, R1 General Residential, IN2 Light Industrial and R3 Medium Density. Most of the zones were a ‘best fit’ transfer from the previous Shoalhaven LEP 1985.

As discussed at Council’s Development Committee Meeting held on 7 November 2016, Council had resolved to rezone Lot 1 DP 530097 and Lots A-D in DP 391663 at 1 Greens Road, Greenwell Point from industrial to residential in July 2005. Arising from the introduction of the Standard Instrument LEP, Council was advised by DP&E that rezoning proposals should not be considered while Councils were in the process of preparing their Standard Instrument LEP’s. The draft Shoalhaven LEP under this process included a change of zone to residential in accordance with Council’s resolution. The draft LEP was exhibited twice, showing this change and it was eventually included in the notified Shoalhaven LEP 2014. This zoning did not follow the general process required for Planning Proposals which would have required an assessment against the FRMS&P, the Floodplain Development Manual or relevant Section 117 Planning Directions.

Following consideration of the legal advice, the importance of the reconciliation of the rezoning of the additional land in Greenwell Point (Greens Road) to Zone R2 Low Density Residential under Shoalhaven LEP 2014 after the adoption of the Flood Management Risk Study (FMRS) in October 2007 was highlighted; especially in terms of it’s consistent with either the principles of the Floodplain Development Manual or with the floodplain risk management process that had been undertaken by Council.”

The rezoning, based on the existing flood study and adopted plan, is unlikely to be considered as “substantially in accordance with the principles contained in the Floodplain Development Manual” or to accord with the floodplain risk management process set out in the Manual. As a result, the Council would have to demonstrate how it acted in good faith if challenged. .

Fig 2: Shoalhaven LEP 2014 zoning map

Shoalhaven DCP 2014

The previous wording in the DCP was problematic in that it did not have the power to prohibit subdivision or additional development, only an Environmental Planning Instrument (e.g. LEP) can prohibit development. The DCP can however provide controls and criteria that must be considered in any development application and Council may refuse development applications where the proposed development does not meet the requirements in the DCP.

Any amendment to Part D of Schedule 5 in the DCP in line with the 2015 notice of motion is unlikely to have the benefit of the indemnity from liability provided in section 733 of the LG Act as it is not “substantially in accordance with the principles contained in the Floodplain Development Manual”, nor does it accord with the floodplain risk management process that has been undertaken by Council. It is therefore recommended that any changes to restrict development in accordance with the FRMS&P be undertaken through a review of the land zoning and minimum lot size controls in Shoalhaven LEP 2014 and a subsequent review of the DCP to ensure consistency.

Subdivision Application

A Development Application (DA) for a 9 lot residential subdivision over 1 Greens Road, Greenwell Point was submitted on 20 December 2016. The application is currently under assessment, however concerns have been raised through the referral process for this application.

Conclusion

Even though the flood behaviour is similar, what makes Greenwell Point unique is that it becomes an isolated island where evacuation and access is severely affected for an extended period of time. The liability for Council of allowing further population intensification is difficult to estimate and would require further investigation to determine the scale of the liability. Following consideration of the legal advice, it is clear that Council’s indemnity offered by Section 733 of the Local Government Act requires Council to either follow the process prescribed in the Floodplain Manual and undertake actions in ‘good faith’ to maintain indemnity or alternately be able to demonstrate how it has acted in good faith, and on what basis.

Following consideration of the legal advice (confidential Attachment 1), it is important to ensure that ‘one-off’ changes are not made to the management plan or the Council’s planning instruments and controls that have potential consequences on the flood risk to life and property associated with the use of land. Council must determine a clear policy position in relation to development at Greenwell Point by adopting either Option 1 or 2 following consideration of the implications outlined in this report.

Community Engagement

Council has met its current legislative requirement for consultation through the exhibition of Amendment No. 5 to Shoalhaven DCP 2014.

Any further review of Shoalhaven LEP 2014 or Shoalhaven DCP 2014 will involve consultation with the community and affected landowners. Any resultant draft amendments would also need to be exhibited as required by legislation.

Policy Implications

The current FRMS&P was prepared in accordance with the Floodplain Development Manual and Guidelines.

Council needs to clarify and resolve the difference between the existing zoning provisions that imply further development ability and the recommendations of the FRMS&P, which suggest restrictions on the intensification of development. A review of the FRMS&P will enable Council to determine whether any changes should be made to enable further expansion or new development in Greenwell Point.

The controls within Shoalhaven DCP 2014 are ultimately the last stage in the process and implement the actions of the FRMS&P.

Financial Implications

There are no immediate and direct financial implications for Council if development is restricted in Greenwell Point in accordance with the FRMS&P and legal indemnity is maintained. A future review of Shoalhaven LEP 2014 and Shoalhaven DCP 2014 would be resourced within the existing Strategic Planning budget. Any review of the FRMS&P will potentially need to be resourced within the Environmental Services budget.

If there is a mind to not restrict development in Greenwell Point, Council may not be afforded protection under Section 733 of the LG Act, unless it can demonstrate how it has acted in good faith. If Council is legally challenged on this decision, there is a risk that Council could be liable for damages following a flood event if it is found to not have acted in good faith by providing suitable flood risk management controls in accordance with the FRMS&P.

Risk Implications

Increased density through subdivision or new development will potentially increase the existing burden on emergency services and will increase the number of people at risk during a flood event.

Consistency with the FRMS&P is the most straight forward way to ensure Council’s planning documents include suitable controls consistent with the Floodplain Development Manual and Guidelines and to ensure Council is acting in good faith when providing flood risk controls maintain legal indemnity.

Development Committee – Tuesday 14 March 2017

Page 26

DE17.22 Future Potential Subdivision within the R2 Zone Hyams Beach

DA. No: SF10534

HPERM Ref: D17/46796

Group: Planning & Development Services Group

Section: Development Services

Attachments: 1. Report - Development Committee 23 January 2017 ⇩

2. Subdivision Potential Hyams Beach Village ⇩

Purpose / Reason for consideration by Council

Development Committee (23 January 2017) deferred consideration of Development Application (DA) SF10534 – Proposed 2 lot subdivision at Lot 7 DP249396 (No.1) Tulip Street, Hyams Beach to the “Development Committee Meeting, Tuesday 14 March 2017 in order to assess the flow on effects of future potential subdivisions”. The report to Development Committee of 23 January 2017 is available in full, in ATTACHMENT 1.

Since consideration of the matter on 23 January 2017, the applicant has chosen to amend the DA. The revised plan of subdivision (Figure 1), submitted 15 February 2017, has adjusted the proposed boundary so that Lot 1 has an area of 437m² and proposed Lot 2 has an area of 436.1m².

Figure 1

Extract of revised plan of subdivision for SF10534 submitted 15/2/17

The applicant proposes variations to the minimum lot size of 12.6% and 12.8% to proposed Lots 1 and 2 respectively. This however is still a 25.4% variation over two lots instead of an equivalent variation for a single lot.

Given the change to the application and submission of additional information, due process must be observed and in this regard, referrals are underway (Rural Fire Service (RFS) and Threatened Species Officer (TSO). The proposal is also being renotified to ensure neighbours and submitters are aware of the change.

On receipt of all referral responses the revised application will be subject to the full assessment process that includes consideration of submissions and the policy direction provided by Council.

Recommendation (Item to be determined under delegated authority)

That:

1. Council note the findings of this report; and

2. Confirm the variations to the minimum lot size proposed in development application SF10534, as modified, not be supported and the application be determined under delegated authority.

Options

1. Support the recommendation.

Implications: The revised application would not proceed and would result in a refusal given that the lot size variation is not supported. This could result in an appeal to the Land and Environment Court. There would also be cost implications to Council if litigation ensued.

2. Given the significant implications of permitting the variations, that prior to making any decision, the whole village be invited to comment on a Hyam’s Beach lot size policy variation.

Implications: This would require Council to write to the community, seek comments, compile the results of the consultation and potentially report the matter to Council. This information could potentially inform a potential amendment to the minimum lot size map in SLEP14 with respect to Hyams Beach. This would be the most equitable approach if Council wishes to allow smaller lot sizes within the village.

3. Not support the recommendation.

Implications: The Committee would need to provide direction to staff.

Background

The following analysis of potential subdivision in Hyams Beach is based solely on existing lot size. A detailed assessment of constraints that may limit or preclude subdivision would require a detailed investigation of building and environmental impacts on individual lots.

ATTACHMENT 2 maps the lot sizes and subdivision potential with the R2 zone in Hyams Beach.

Table 1 shows the subdivision potential for the village of Hyams Beach based on lots that may comply with minimum lot sizes and lots that may be subdivided with a total variation of 25% to the minimum lot sizes.

Table 1

Subdivision Potential R2 Zone Hyams Beach

Extent of variation to minimum parent lot size	No. lots with subdivision potential	Additional lots	Additional lots less than 500m² after subdivision
Nil variation	11	12	23
25% variation	36	36	72
Total	47	48	95

Assumptions:

· The number of lots with subdivision potential includes the lot subject of this report, i.e. Lot 7 DP 249396.

· Lots within R1 zone are not included.

· Subdivision potential is based on lot size only. Environmental or building constraints that may affect the suitability of a lot for further subdivision are not considered.

· Lots with subdivision potential, nil variation required:

§ Corner lot subdivision: 2 x 500m² = 1000m²or greater;

§ Battle-axe lot subdivision: 500m² + 650m² + 60m²(handle, 4m x 15m) = 1210m² or greater.

· Lots resulting from 25% variation to minimum parent lot size:

§ Corner lot subdivision: 1000m²/0.75 = 750m²;

§ Battle axe lot subdivision: 1210m²/0.75 = 907.5m², adjust to 900m².

Table 2 below shows the existing number of lots less than the minimum 500m² and the potential impact on the subdivision pattern should the potential subdivisions in Table 1 proceed . This does not include seven lots in Community Title Schemes for approved tourist developments.

Table 2

Lot Size in the R2 Zone Hyams Beach

Existing lots	218	Potential lots	266
Existing lots <500m²	5	Potential lots <500m²with 25% variation	72
% existing lots < 500m²	2.29%	% potential lots < 500m²	27%

The result of the subdivision is potentially a higher density of development which is of concern, noting the isolated location (only one road into / out) of Hyams Beach.

The following table shows the subdivision potential for the village of Hyams Beach based on lots that may comply with minimum lot sizes and lots that may be subdivided with a total variation of 25% to the minimum lot sizes.

Table 3

Subdivision Potential – lots with a 25% Variation

Extent of variation to minimum lot size	No. lots with subdivision potential	Additional lots
Nil variation	11	12
25% variation to minimum parent lot size	36	36
Total	47	48

Again, there have been certain assumptions made. Refer to the information associated with Table 1.

Policy Implications

Approval of a subdivision with a 25% variation is considered to create an undesirable precedent that may facilitate and provide weight to further subdivision within the Hyams Beach village.

Significant variation to the minimum lot size will compromise the integrity of the development standards of the SLEP14, and over time increase densities to a greater level than that currently allowed; inevitably this will change the character of the village.

Consultation and Community Engagement:

The revised plan of subdivision, Statement of Environmental Effects, bushfire report and flora and fauna assessment are being been re-notified to persons making previous submissions. Additionally, technical referrals have also been made.

Summary and Conclusion

Based on the application of 25% variation to minimum lot size, there is potential for an additional 36 residential lots, this could result in 72 lots less than the minimum lot size, see Table 1. In addition, the potential for subdivision without variation is for 12 additional lots equal to or greater than the minimum lot size. The total subdivision potential is 48 additional lots, this includes lots that meet the minimum lot size and lots with a 25% variation.

There are a small number of existing lots (5) in the R2 zone that are less than the minimum lot size, that is, 2.29% of existing R2 zoned lots. A 25% variation to the minimum lot size has the potential to create 72 lots less than the minimum, an increase of 27% in the number of lots less than the minimum, see Table 2.

Supporting the lot size variations creates a potential that may lead to other applications and possibly also for greater variation. Council’s ability to withstand substantial departures from the minimum lot size, in the event of an approval, will be compromised which in turn will call into question the integrity of the development standard.

The potential for additional lots is not insignificant. The impacts of the additional lots will result in additional development and population in a sensitive coastal village that currently enjoys a very attractive and somewhat distinctive character. Hyams Beach is a unique coastal village accessed by a single road that is bushfire affected. The village places significant demands on Council resources during peak holiday periods and the increased population and associated demands with any increased residential densities may contribute further to these holiday impacts.

Support for the proposed variations subject of the current application will not by itself necessarily change the character of the village but it will encourage further similar development which cumulatively, will contribute to alterations in the appearance of area which in turn will impact on the low scale and low density ‘coastal village’ character of Hyams Beach.

Development Committee – Tuesday 14 March 2017

Page 41

DE17.23 Development Application – Parson St Ulladulla – Proposed Lot 15 in Subdivision of Lot 3 DP 746228 and Lots 5 & 6 DP 805221

DA. No: DA16/2412/4

HPERM Ref: D17/50496

Group: Planning & Development Services Group

Section: Ulladulla Service Centre

Attachments: 1. Site Context Photos ⇩

2. DA Plans ⇩

Description of Development: Construction of a three storey office building, car parking, landscaping and associated infrastructure

Owner: ET & ME Oberg

Applicant: Triple A Developments

Notification Dates: 12 December 2016 to 9 January 2017

No. of Submissions: 4 in objection

Nil in support

Purpose / Reason for consideration by Council

The purpose of this report is to seek Council direction with respect to a request for a variation of a development standard (building height) applicable to the site under Clause 4.6 of the Shoalhaven Local Environmental Plan 2014 (SLEP 2014).

Recommendation (Item to be determined under delegated authority)

That Council:

1. Confirm that it supports the proposed height variation to the 7.5m height limit and allow the increase sought;

2. Refer the application back to staff for determination by delegation;

3. That a review of the 7.5m building heights in this part of the town centre be included in any future review of DCP2014 Chapter S8 – Ulladulla Town Centre

Options

1. Resolve to support the propose variation to the development standard for height from 7.5m to 11m and refer the application back to staff to determine the application under delegated authority.

Implications: This would enable the application to be finalised and conditions prepared to enable consent to be issued. The objectors could choose to pursue the matter through the land and environment court. It would however be necessary to demonstrate that due process was not observed with respect to the processing of the DA.

2. Resolve not to support the proposed variation to the development standard and refer the application back to staff to negotiate with the applicant to redesign the proposal to meet the 7.5m height standard.

Implications: This would mean that the application could not be supported in its current form. This would require modifications to be made to specifically adjust the height which could have implications on the development and its commercial viability for the owners of the site. This option could also potentially result in litigation by the applicant.

3. Adopt an alternative recommendation and provide direction to staff.

Figure 1 Location Map

Background

Proposed Development

The application proposes construction of a three (3) storey office building comprising ground floor car parking and two levels of office space (refer to Attachment 1 – Plans). More specifically the application can be summarised as follows:

· Overall maximum building height is 11 metres.

· The predominant height expressed to Parson Street is 10.5 metres at the south-western corner to 11 metres at the south-eastern corner. The building reduces in height in a south to north direction with lowest part of the building being to the rear of the structure at 6.48 metres in the north-west corner.

· Building design is contemporary with a mix of materials including concrete, render, metal/aluminium cladding, perforated metal screening and glazing.

· A total of 25 (including 1 accessible space) car spaces are proposed on the ground level.

· Two office levels comprising floor areas of 504m² (first floor) and 492m²(second floor).

· Vehicle entry and egress to and from the site is proposed via Parson Street.

Subject Land

The site is located on the northern side of Parson Street approximately 124 metres west of the Princes Highway and will be created by a separate approval for the consolidation and boundary adjustment of Lots 5 & 6 DP805221 and Lot 3 DP 746228.

The land upon finalisation of a consolidation plan will have a frontage to Parson Street of 33.84 metres and a slightly variable depth averaging 38.5 metres with a total site area of 1303m². The land has a fall of approximately 4.5 metres from the northwest to southeast. The site is currently vacant.

The lot will be encumbered by a 1m wide drainage easement along the western and southern boundaries and a 3m wide drainage easement along the eastern boundary.

Site & Context

The site is in surrounded by a range of commercial premises which are characteristic of the B5 Business Development zone.

To the immediate north is a storage facility whilst to the western boundary abuts two lots which comprise a storage facility and car wash with frontages to St Vincent Street. A Right of way adjoins the eastern boundary and beyond this is a car dealership and commercial building with multiple occupancies along the Highway.

On the southern side of Parson Street is the Home Maker Centre with multiple commercial and retail occupancies whilst the Dunn & Lewis Centre and Bunnings are located further west and south-west of the site.

Strategic Context

The development site is located within an existing commercial precinct identified as Precinct 5: Business Development under chapter S8 Ulladulla Town Centre of the Development Control Plan (DCP 2014). The site is characterised by predominantly commercial uses. Buildings are typically single storey however there are more recent larger developments in the immediate surrounds including the Dunn & Lewis Centre, Bunnings and Project Lighting.

The area bounded by Deering Street, St Vincent Street, Parson Street and the Princes Highway is an area of mixed built form and character, with a mix of large format retail buildings with either multiple occupancies or single buildings purposely built such as the car wash and storage facilities, Bunnings and McDonalds restaurant. The area is essentially a mix of business and warehouse and bulky goods premises which are consistent with the objectives of the zone. (refer to Attachment 2 – Site Context Photos)

The site is located approximately 400 metres from the Commercial Core of Ulladulla.

Figure 2 Aerial view of subject site and surrounding area

The 7.5 metre height control was originally set in DCP 56.4 in 2008 as an acceptable solution and then incorporated into SLEP 2014 as a development standard. Figure 3 shows the various maximum heights in the locality of the proposal.

Figure 3 Height Limit Map

History

The site was previously approved for expansion of the storage units, however, the owners have decided to limit the extent of the storage units and develop this proposed residual vacant lot more in keeping with the type of development to the south and west of the site.

The building height controls on this site were originally established as 8m and 2 storeys under DCP 56 in 1995, as it applied to most of the town centre area other than some specified locations where 11m or 14m was permitted. DCP 56.4 was adopted in 2008 which included significant changes to building heights, particularly in the business core, of up to 14m with key development precincts of up to 25m, however, in the location of this development the height control was reduced to 7.5m with the intent of insuring that development along the ridge of Deering Street did not impact visually on the appearance of the town centre as viewed from the harbour end of town. This site is well south of this ridge and at least 6m lower than Deering Street.

The adoption of DCP 56.4 caused considerable concern within the Ulladulla community, which stimulated the establishment of the Ulladulla and Districts Community Forum and a sustained campaign to review the heights that were adopted in the plan. Following considerable consultation with the community the heights were revised down and adopted in DCP 56.5 in 2011. The building heights south of the town centre were not highlighted in this review nor was the 7.5m building height reviewed in the preparation of SLEP 2014, which rezoned the low density area to R3 Medium Density in the southeast of the town centre DCP area.

Issues

Clause 4.3 Height of Buildings

The site is situated within an area where Height Building Maps under cl.4.3 of SLEP 2014 provides for a maximum building height of 7.5m. This application seeks to vary this building height development standard.

A variation of 46% (3.5m) is sought along the southern elevation and to a lesser degree to the remaining elevations.

Clause 4.6 Exceptions to Development Standards

The NSW planning system provides flexibility in planning controls by providing the ability for Council to vary development standards in certain circumstances. In this regard, the concurrence of the Secretary of the Department of Planning and Environment (DP&E) can be assumed as provided in DP&E publication – Varying development standards: A Guide – August 2011 (the Guide). Clause 4.6 enables a development standard to be “contravened”, provided the applicant has submitted a written request that adequately justifies the exception (variation) from the development standard by demonstrating that:

a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case; and

b) that there are sufficient environmental planning grounds to justify contravening a development standard.

Further, the consent authority must be satisfied that:

i. the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

ii. the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objective for development within the zone in which the development is proposed to be carried out.

Applicant’s Submission

The applicant provided Council with a justification to variation of the development standards as follows:

There are no nearby buildings apart from the adjoining rear storage sheds, the corner Car wash is 8.0 M away to the west and the Car dealership is 28.0 M to the east.

The proposed development will be a landmark Office Building just off the Princes Highway and because the site elevation and location of surrounding buildings, the proposed development will have a stand alone appearance.

The proposed building will be three levels, a Car Park and two Office floors above, the Car Park will be excavated into the rear of the site so that the rear of the building appears two levels and is under the 7.50 M height requirement while the building appearance from Parson Street will be 3 levels with open Car parking across the frontage and the top storey roof facade will be 10.00 M high above natural ground.

The proposed building frontage has been design to go diagonally across the site following the existing contours of the land with the building frontage set back at the Entry at 5.50 M to the furthest point set back 28.50 M off the front boundary, by following the contour of the land the building design maintains a constant height across the site above natural ground and the bulk of the building height recedes to the rear of the site so there is not a lot of building bulk at the street There is also a precast concrete blade with flag pole which reflects the masthead on a ship which is 11.0 M above ground and ties in with the front Office Terraces, this is a significant feature of the building design as it stands out from the building as the Office terraces recede to the back of the site.

Apart from the Entry frontage and feature concrete blade which are position towards the front of road the building frontage consist mainly of an open Car Parking area with side driveway access, the top floor Offices continues to recede back to the rear of the site, this design reduces the height and bulk appearance of the building from the street frontage.

The fall in the land has made it difficult to keep the building height under the 7.50m limitation the diagonal frontage will reduce the impact of the building height on the streetscape and the sweeping curved front terraces will provide an attractive appearance, due to the unique site location there will not be any adjoining buildings next to the building proposal, the building will not compete or detract from the adjoining sites, the request for building height variation in this instance will have no impact on the adjoining and surrounding sites.

The proposed development will have minimal impact on adjoining buildings as the height variation requested will not cause any loss of views, privacy and solar access.

The applicant has also submitted plans which illustrate the extent of the intrusion of the building above the 7.5m height plane.

Discussion

In accordance with 4.(a)(i) of Clause 4.6 of the SLEP 2014, the applicant’s written request is considered to have adequately addressed the matters required to be demonstrated by subclause (3) that is,

a) Compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and

b) There are sufficient environmental grounds to justify contravening the development standard.

After reviewing the applicant’s submission, it is considered that the variation is reasonable and acceptable for the following reasons:

· The building height varies with the slope of the block and is contextually appropriate.

· The building height variation does not generate overshadowing impacts on the surrounding properties.

· The proposal is consistent with the desired future character of the area. The area is identified in the Ulladulla Town Centre DCP as a Business Development Precinct located on the fringe of the central business area which will become increasingly important as an area for support activities to the Commercial Core Precinct and provides a buffer to the industrial areas to the south.

· The proposal is considered to be consistent with the objectives of the height standard, to ensure that the height of development is appropriate to the condition of the site and its context.

· Where the variation is the greatest in the southern elevation it incorporates large expanses of glass and balconies to the first and second floors which provide articulation and reduces the perceived height from the street level. The curved shape of the front elevation also provides relief and softens the appearance of the building from Parson Street.

· Height controls can be appropriate so long as they appropriately designed to facilitate good planning outcomes. In this instance it is considered that this might not be the case and a review of the current height controls in the precinct would be beneficial to identify the desired outcomes and the appropriateness of the controls. There is considerable variation in the building height controls in the immediate surrounds of this proposal. An 11m height control applies to the west side of St Vincent Street, a 10m height limit applies to the south side of Parson Street (opposite the site) which is the same B5 zoning. Low density residential land surrounding this precinct has an 8.5m height control but medium density R3 within the precinct has a 7.5m height control (Refer Figure 3).

Consistency with the underlying objectives of the standard:

The objective of the Height Standard is listed at Clause 4.3 (1) of SLEP 2014.

a) to ensure that buildings are compatible with the height, bulk and scale of existing and desired future character of the locality,

b) to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development,

c) to ensure that the height of building on or in the vicinity of a heritage item or within a heritage conservation area respect heritage significance.

The proposal is consistent with bulk and scale of the existing development and the desired future character of the locality. The proposed height of the development is appropriate to the context and is compatible with the prevailing pattern of buildings in the locality. The extension of the building beyond the 7.5m height control is predominant at the front of the building (southern elevation) and gradually reduces towards the rear of the building.

The proposal positively responds and satisfactorily addresses the particular characteristics of the site and its broader context. The proposal is of a height and scale that is sympathetic to its immediate context.

The proposed development, when viewed from the street, will not dominate the streetscape and will be compatible with newer developments in the vicinity including Project Lighting, the Dunn & Lewis Centre and Bunnings that are of a similar bulk and scale within close proximity of the site. The proposal is contemporary commercial design which is consistent with the surrounding environs and the objectives of the B5 zone.

Planning Assessment

The application will be fully assessed under s79C of the Environmental Planning and Assessment Act 1979 following determination of the application for variation to development standards.

Policy Implications

The application identifies a need to review the appropriateness of the height controls in the precinct and it is recommended that this be included in the next review of DCP 2014 Chapter S8 Ulladulla Town Centre.

Consultation and Community Engagement:

The notification was made in accordance with Council’s Community Consultation Policy to properties within a 60 metres of the site and a newspaper advertisement The notification was for a 4 week period to account for the Christmas/New Year’s holidays and 4 submissions were received.

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

Issue

Development should comply with the existing height controls/Development will set undesirable precedent if approved at proposed height.

Comment

It is considered that this issue has been addressed in the preceding assessment.

Issue

Not enough time given for public evaluation.

Comment

Whilst the application was notified over the Christmas/New Year period, it was advertised for four (4) weeks rather than the regular two (2) week period timeframe to account for the holiday period. It is considered that notification of the application was undertaken in a fair and reasonable process.

Issue

Increased traffic demand and pressure on existing infrastructure.

Comment

The proposed use is of a size and intensity which would be anticipated in the zone and is unlikely to cause significant traffic impacts. Whilst there is congestion in peak holiday periods at the roundabout at the intersection of The Princes Highway and Parson Street this is not directly related to the proposal and it is unlikely to contribute significantly as traffic can enter and exit away from the roundabout on local roads.

Issue

Appearance of building out of character and not ‘coastal’ in appearance. Large blank walls

Comment

The proposed building is consistent with surrounding built form character and consistent with the objectives of the Business Development precinct (S8 Ulladulla Town Centre DCP) by providing an attractive and active street frontage. The DCP does not require a coastal design in this precinct.

In relation to the comments on the blank wall on the western boundary and its visibility from adjoining properties, these walls will be in part obscured by the car wash and storage facility on the western boundary. Also the design of the wall incorporates delineation of the different levels of the building which will provide some relief.

Financial Implications:

Not applicable

Legal Implications

If the application is refused, or if the applicant is dissatisfied with Council’s determination, the applicant is entitled to appeal to the Land and Environment Court.

Under some circumstances, third parties may have a right to appeal Council’s decision to the Land and Environment Court.

Summary and Conclusion

It is recommended that the variation is reasonable and acceptable and in this instance, strict compliance with the height development standard is considered to be unnecessary as the development is appropriate in the location and can achieve relevant planning objectives.

It is considered that there are sufficient planning grounds to justify the departure from the height development standard prescribed in the Shoalhaven LEP 2014. Therefore, the proposed variation to the building height development standard is considered to be well founded in this instance.