Agenda of Development Committee

Minutes of the Development Committee

Meeting Date: Tuesday, 10 October 2017

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

Time: 5.03pm

The following members were present:

Clr Joanna Gash - Chairperson

Clr Patricia White

Clr John Wells – left the meeting, the time being 6.41pm.

Clr Amanda Findley

Clr Kaye Gartner – arrived, the time being 5.08pm.

Clr Nina Cheyne

Clr Annette Alldrick

Clr John Levett

Clr Mitchell Pakes

Clr Greg Watson

Clr Mark Kitchener – arrived, the time being 5.21pm.

Clr Bob Proudfoot

Mr Russ Pigg - General Manager

Apologies / Leave of Absence

An apology was received from Clr Guile.

Confirmation of the Minutes

RESOLVED (Clr White / Clr Cheyne) MIN17.892

That the Minutes of the Development Committee held on Tuesday 12 September 2017 be confirmed.

CARRIED

Declarations of Interest

Nil

Deputations and Presentations

Mr Andrew Dawes, JACA Property Group, addressed the Committee in relation to item DE17.74 DA16/2070 – 7 Beach Street, Huskisson – Lot B DP 359526 – Proposed Residential Flat Building

Note: Clr Gartner arrived, the time being 5.08pm.

Ms Joy Lever, addressed the Committee in relation to item DE17.74 DA16/2070 – 7 Beach Street, Huskisson – Lot B DP 359526 – Proposed Residential Flat Building

Note: Clr Kitchener arrived, the time being 5.21pm

Reports

Procedural Motion - Bring Item Forward

RESOLVED (Clr Pakes / Clr Levett) MIN17.893

That the matter of item DE17.74 DA16/2070 – 7 Beach Street, Huskisson – Lot B DP 359526 – Proposed Residential Flat Building be brought forward for consideration.

CARRIED

DE17.74 DA16/2070 – 7 Beach Street, Huskisson – Lot B DP 359526 – Proposed Residential Flat Building

HPERM Ref: D17/253749

Recommendation (Item to be determined under delegated authority)

That Development Application DA16/2070 to demolish the existing dwelling and ancillary outbuilding and construct a residential flat building at Lot B DP 359526, 7 Beach Street, Huskisson be approved subject to the recommended conditions of consent contained in Attachment 6 of this report.

RESOLVED (Clr White / Clr Gartner) MIN17.894

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

Against: Nil

CARRIED

DE17.67 Possible Affordable Housing Opportunity - Coomea Street, Bomaderry - Initial NSW Government Response	HPERM Ref: D17/285258
Recommendation (Item to be determined under delegated authority) That Council 1. Acknowledge the advice received from the NSW Government in this regard; 2. Continue to work on the possible demonstration affordable housing project at Coomea Street, Bomaderry; 3. Approach the five first phase service providers under the Social and Affordable Housing Fund (SAHF) to see if they are interested in being part of the project; and 4. Request the NSW Minister for Social Housing to consider making a budget bid for additional social and affordable housing in Shoalhaven and ensure that the NSW Government work with Council on redeveloping some of their land to a higher and better use to assist in this regard.
RESOLVED (Clr Findley / Clr Cheyne) MIN17.895 That Council 1. Acknowledge the advice received from the NSW Government in this regard; 2. Continue to work on the possible demonstration affordable housing project at Coomea Street, Bomaderry; 3. Approach the five first phase service providers under the Social and Affordable Housing Fund (SAHF) and other providers to see if they are interested in being part of the project; and 4. Request the NSW Minister for Social Housing to consider making a budget bid for additional social and affordable housing in Shoalhaven and ensure that the NSW Government work with Council on redeveloping some of their land to a higher and better use to assist in this regard. 5. Endorse the Mayor continuing to advocate in respect to affordable housing to State and Federal Ministers. For: Clr White, Clr Gash, Clr Wells, Clr Findley, Clr Levett, Clr Cheyne, Clr Alldrick, Clr Gartner, Clr Pakes, Clr Watson, Clr Kitchener, Clr Proudfoot and Russ Pigg Against: Nil CARRIED
Note: The Committee thanked Gordon Clark for his work on this project.

DE17.68 Proposed Submission - Options Paper: Short Term Holiday Letting in NSW

HPERM Ref: D17/306769

Recommendation (Item to be determined under delegated authority)

That Council make a submission to the NSW Government on the Options Paper: Short Term Holiday Letting in NSW consistent with the content of the report and continue to be involved as required in any outcomes that eventuates.

RESOLVED (Clr Wells / Clr Findley) MIN17.896

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

Against: Nil

CARRIED

DE17.69 Berry Landcare Grant - Berry Wildlife Corridor - Inclusion on Terrestrial Biodiversity Map - Shoalhaven LEP 2014

HPERM Ref: D17/268800

Recommendation (Item to be determined under delegated authority)

That Council:

1. Support making ongoing amendments to the Terrestrial Biodiversity Map as part of a Shoalhaven Local Environmental Plan 2014 housekeeping amendment process, where landholders in Berry and surrounds have accepted public money for revegetation and agreed to enter into a conservation agreement over that land.

2. Write to the Berry Landcare group to congratulate them on gaining a substantial grant to improve the biodiversity linkages in the area, and advise them that this will be reflected in the Shoalhaven Local Environmental Plan 2014 through future amendments.

RESOLVED (Clr Wells / Clr White) MIN17.897

That Council:

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

Against: Nil

CARRIED

DE17.70 Shoalhaven Development Control Plan 2014, Chapter N19 Huskisson Mixed Use Zones - Draft Amendment Preparation and Proposed Public Exhibition

HPERM Ref: D17/216331

Recommendation (Item to be determined under delegated authority)

That Council:

1. Prepare and publicly exhibit Draft Chapter N19 Huskisson Mixed Use Zones of Shoalhaven Development Control Plan 2014 for a minimum period of 28 days in accordance with the Environmental Planning & Assessment Act 1979.

2. Advise the relevant Community Consultative Body (Huskisson Woollamia Community Voice) of the public exhibition.

3. Report the outcomes of the public exhibition period to Council when appropriate.

RESOLVED (Clr Gartner / Clr Cheyne) MIN17.898

That Council:

1. Prepare and publicly exhibit the proposed amendments to Draft Chapter N19 Huskisson Mixed Use Zones of Shoalhaven Development Control Plan 2014 for a minimum period of 28 days in accordance with the Environmental Planning & Assessment Act 1979.

2. Advise the relevant Community Consultative Body (Huskisson Woollamia Community Voice) of the public exhibition.

3. Report the outcomes of the public exhibition period to Council when appropriate.

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

Against: Nil

CARRIED

DE17.71 Update - Nowra Riverfront Precinct - Strategic Direction and Next Steps

HPERM Ref: D17/286874

Recommendation (Item to be determined under delegated authority)

That Council:

1. Receive this update on the progress of the Nowra Riverfront Precinct planning work for information; and.

2. Receive a further report once the draft detailed urban design controls have been prepared in accordance with the recommended strategic directions, that considers how to proceed with a potential Planning Proposal for new zones/building heights and supporting planning controls

RESOLVED (Clr Gartner / Clr Watson) MIN17.899

That Council:

1. Receive this update on the progress of the Nowra Riverfront Precinct planning work for information; and.

3. In preparing the draft urban design controls, consider retaining the height controls within the citywide DCP chapter N7 and give further consideration to a more flexible height within the precinct east of the Osborne Street corridor.

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

Against: Nil

CARRIED

DE17.72 Shoalhaven DCP 2014 - Required Amendment - Chapter G4: Tree & Vegetation Management - NSW Government Land Management & Biodiversity Conservation Reforms

HPERM Ref: D17/308277

Recommendation (Item to be determined under delegated authority)

That Council:

1. Adopt the draft Amendment 21 to Shoalhaven Development Control Plan 2014 which includes amendments to Chapter G4 Tree and Vegetation Management and to the Dictionary (detailed in Attachment 1) and which is consistent with Option 1 in the report; and

2. Exhibit the draft Amendment for a minimum period or 28 days in accordance with legislation; and

3. Consider a further report after public exhibition to consider any submissions received and to adopt the amendment for finalisation.

Note: Clr Wells left the meeting, the time being 6.41pm.

Note: Clr Gartner left the meeting, the time being 6.43pm.

RESOLVED (Clr Findley / Clr Levett) MIN17.900

That Council:

2. Exhibit the draft Amendment for a minimum period or 28 days in accordance with legislation; and

3. Consider a further report after public exhibition to consider any submissions received and to adopt the amendment for finalisation.

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

Against: Nil

CARRIED

DE17.73 Development Application – proposed 2 lot subdivision at Lot 4 DP1027849 (no.22) James Farmer Grove, Woollamia

HPERM Ref: D17/99695

Recommendation (Item to be determined under delegated authority)

That the request to permit the provision of effluent pump out services to proposed lot 1 and subdivide the flood affected land:

1. Be supported.

2. Refer the application back to staff for determination.

RESOLVED (Clr Watson / Clr Pakes) MIN17.901

That the request to permit the provision of effluent pump out services to proposed lot 1 and subdivide the flood affected land:

1. Be supported.

2. Refer the application back to staff for determination.

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

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

Against: Nil

CARRIED

DE17.74 DA16/2070 – 7 Beach Street, Huskisson – Lot B DP 359526 – Proposed Residential Flat Building

HPERM Ref: D17/253749

Item dealt with earlier/later in the meeting see MIN17.894.

DE17.75 Yalwal Camping Area (Danjera Dam)

HPERM Ref: D17/320884

Recommendation (Item to be determined under delegated authority)

That Council:

1. Close the Yalwal camping area and temporarily close the area to public access after advertisements and notifications to legitimate known user groups

2. Prepare a plan for upgrading of the area for day use in consultation with key user groups.

3. Explore the opportunity for biobanking the credits associated with the EEC, excluding the proposed day-use area

4. Explore opportunities with adjoining landowner for eco tourism potential.

Motion (Clr Gash / Clr White)

That Council:

1. Close the Yalwal camping area and temporarily close the area to public access after advertisements and notifications to legitimate known user groups

2. Prepare a plan for upgrading of the area for day use in consultation with key user groups.

3. Explore the opportunity for biobanking the credits associated with the EEC, excluding the proposed day-use area

4. Explore opportunities with adjoining landowner for eco tourism potential.

Amendment (Clr Watson / Clr Pakes)

That this item be deferred to the next Development Committee Meeting, Tuesday 14 November 2017, pending a site inspection with Councillors and Council Staff.

Note: Clr Alldrick left the meeting, the time being 7.06pm.

For: Clr Pakes and Clr Watson

Against: Clr White, Clr Gash, Clr Findley, Clr Levett, Clr Cheyne, Clr Gartner, Clr Kitchener, Clr Proudfoot and Russ Pigg

lost

RESOLVED (Clr Gash / Clr White) MIN17.902

That Council:

1. Close the Yalwal camping area and temporarily close the area to public access after advertisements and notifications to legitimate known user groups

2. Prepare a plan for upgrading of the area for day use in consultation with key user groups.

3. Explore the opportunity for biobanking the credits associated with the EEC, excluding the proposed day-use area

4. Explore opportunities with adjoining landowner for eco tourism potential.

5. A Councillor inspection of the site be arranged.

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

Against: Clr Watson

CARRIED

There being no further business, the meeting concluded, the time being 7.17pm.

Clr Gash

CHAIRPERSON

Development Committee – Tuesday 14 November 2017

Page 9

DE17.76 Rezoning Investigations - Goodland Road - Landowner Committment and Future Investigation

HPERM Ref: D17/182093

Group: Planning Environment & Development Group

Section: Strategic Planning

Attachments: 1. Report to 9 October 2013 Development Committee - Planning Proposal - LP384 - Woollamia - Goodland Rd (under separate cover) ⇨

Purpose / Summary

To update Council on representations received from landowners in the small lot rural subdivision area at Goodland Road, Woollamia and provide possible options to reconsider the rezoning investigations given changes to legislation, land tenure and the removal of an unauthorised building in the investigation area.

Recommendation (Item to be determined under delegated authority)

That Council:

1. Recommence the Planning Proposal and Planning Agreement process to resolve the development potential of the small lot rural subdivision at Goodland Road, Woollamia, but only on the following basis:

a. No additional development will be identified outside of Council’s preferred exhibited Development Scenario (and its key elements) included in this report; and

b. All owners confirm in writing that they accept that the progression of the PP will only be on the basis of this Development Scenario and provide a written in-principle agreement that they will each sign a revised Voluntary Planning Agreement.

2. Amend the previously exhibited Landowner Agreement and Voluntary Planning Agreement, subject to the above, to include further detail on costings for all landowners, and times at which payments are to be made.

Options

1. Adopt the recommendation.

Implications: This option is preferred as it provides another opportunity to resolve this long standing planning issue. A number of changes have occurred since Council discontinued this matter previously, including change in land ownership, which will hopefully ensure this time that there is more success than the previous attempts to realise the identified development scenario that faltered due to landowner agreement issues. The broader community will benefit if this long-standing issue is resolved consistent with the actions specified within the Jervis Bay Settlement Strategy (JBSS). This option also aims to recoup the investigation costs from landowners. Without resolution of this rezoning investigation, there is no other mechanism for Council to recoup these costs.

The identified and preferred development scenario has the following key elements – defined development footprint, not more than 7 dwellings and the remainder of the land in community title.

2. Council not proceed with the rezoning investigations and provide in principle support for landowners who wish to prepare and fund a private Planning Proposal in accordance with the identified preferred Development Scenario included as Attachment 1 to this report and the JBSS.

Implications: This option removes Council from the funding commitment and provides the landowners support should they wish to prepare and fund their own Planning Proposal. This option would still require updated studies and investigations, however this means that the previous planning work undertaken by Council has not gone to waste and the actions specified in the JBSS are not abandoned.

3. Council not proceed with the rezoning investigations until such time as all affected landowners fully commit to the matter and the costs associated with it. This could possibly be done through getting the owners to sign a deed of agreement or similar prior to the matter recommencing.

Implications: if this is possible, it would at least ensure that all owners are fully committed prior to the matter recommencing and would avoid last minute landowner disagreement or lack of commitment derailing the process once considerable work has again been undertaken to resolve it.

Background

Investigations to rezone this land first commenced in the 1990s and considerable resources and staff time have been expended on the project to date with no outcome achieved.

The Report to Council’s Development Committee Meeting held on 9 October 2013 details the complex background to this matter. A community title development option and rezoning of the land to allow 7 dwelling houses (see Figure 1 below) was proposed through the exhibition of the Goodland Road Planning Proposal (PP), draft Voluntary Agreement and draft Landowners Agreement. A copy of the report to Council’s Development Committee with the exhibited documents is included as Attachment 1.

Figure 1: Preferred Development Scenario

The overall aim of the exhibited PP was to resolve the development potential of the small lot rural subdivision at Goodland Road, Woollamia. The purpose of the PP was to identify land suitable for development purposes and to ensure the conservation of land unsuitable for development consistent with the action in the Jervis Bay Settlement Strategy (JBSS) to investigate the development potential of the Woollamia Farmlets, including Goodland Road.

The previously exhibited PP sought to rezone the land from Rural to part E2 Environmental Conservation and part E4 Environmental Living in the now finalised Shoalhaven LEP 2014. An amendment to the minimum lot size to 1500m² in the proposed E4 zoned land was also required to allow for 7 potential dwelling entitlements following re-subdivision of the land. The remaining E2 zoned land was proposed to be mapped with a minimum lot size of 40 hectares.

Due to lack of consensus and commitment from the landowners, Council resolved on 9 October 2013 to:

a) Receive the outcomes of the exhibition of the Goodland Road Planning Proposal, Draft Voluntary Agreement and Draft Landowners Agreement for information;

b) Not proceed with the Goodland Road Planning Proposal at this time;

c) Reconsider a future subsequent Planning Proposal if and only when landowner agreement is reached and the Voluntary Planning Agreement is signed by all landowners.

Since this resolution, the landowners have not reached formal agreement or signed the Voluntary Planning Agreement and Council discontinued the previous Planning Proposal.

Following a request from landowners, Council staff met with landowners in February 2015 to discuss options to move forward. Based on this discussion and further investigations it was apparent that it was difficult for any future rezoning investigations to proceed with the unauthorised works that were previously located at Lot 212. The unauthorised structure has now been removed following compliance action from Council including court proceedings.

Current Land Ownership

Since Council’s resolution in 2013, a number of properties in the Goodland Road investigation area have been sold. This includes the separation of the largest landholding (Lots 220-222 and 216-218) into 3 separate landholdings. This landholding was previously a further sticking point in the rezoning investigations as the landowner had no legal ability to act on the land as it was in the hands of Trustees.

There are 12 lots in the investigation area and currently there are 9 landowners in total (previously there were 7). Council’s preferred community title development scenario indicates 7 potential building envelopes. This means that not all landowners will receive a dwelling entitlement if Council’s preferred development scenario progresses through a PP and is ultimately rezoned.

8 of the 9 landowners have provided a signed form to one of the landowners who has been trying to coordinate things and they were forwarded to Council for consideration. The commitment forms stated that the owner/s of land in Goodland Road “intend for our land in Goodlands Road, Woollamia be rezoned to allow for a residential home to be built upon it”. The remaining landowner who did not provide a commitment form has indicated through recent discussions with their representative that they would like to be included in the PP, however are not in a financial position to contribute costs and would prefer to be bought out of the subdivision by the other landowners.

It is noted that the advice provided by the owners in somewhat non-committal. Should Council recommence the process it should only be on the basis of the previously exhibited plan and only if all of the owners provide a written in-principle agreement that they will each sign a revised Voluntary Planning Agreement

If Council decides to again recommence the rezoning investigations, there would still be a requirement for a community title subdivision to be undertaken. This means there would be 7 lots with potential building envelopes and 1 community title lot collectively owned by the 7 owners. The 7 owners would be responsible for the majority of the costs and there would need to be some sort of landowner agreement to determine compensation for the landowners who would not receive a building lot and would effectively be bought out of the estate.

Voluntary Planning Agreement

A Voluntary Planning Agreement (VPA) between the landowners and Council is still considered to be the most appropriate mechanism to recoup the costs of rezoning investigations and to facilitate re-subdivision of the land.

The legal drafting and execution of a VPA and Landowner Agreement was difficult to achieve previously due to some landowners not agreeing to pay the costs and the fact that the majority of the land was in the ownership of an Estate with no legal ability to sign on behalf of the land at that time.

The purpose of the previously exhibited draft VPA was to:

a) Assist the rezoning of the developable envelope of the Land as E4 Environmental Living with the remainder of the Land being zoned E2 Environmental Conservation (under the new Shoalhaven LEP and in accordance with the Standard Instrument);

b) Facilitate a re-subdivision of the Land under the Community Land Development Act 1989. It is proposed that the 12 lots that currently comprise the land be firstly consolidated into a single allotment and then re-subdivided into 7 smaller lots (Zoned E4) and one large Community Lot (Zoned E2). The smaller lots would range in size from 0.10 – 0.17ha (1,000 m2 – 1,700 m2). The residual community lot would be 2.52ha.

The draft VPA also included:

· Specifics relating to development, such as requirements for bushfire protection, restoration works;

· Subdivision, electricity, road drainage and management of the community title allotment;

· The recoupment of Council’s costs totalling $160,000 (capped at expenditure up to 2010) which pertain to the rezoning process and studies that have already been completed;

· Council’s agreement and obligations to the landowners relating to the rezoning process;

· Landowners’ and Council’s agreement of the development standards such as water supply;

· Building construction standards, dwellings, effluent disposal systems bushfire protection;

· Measures that will apply to any development proposed for the subject land; and

· Dispute resolution processes and other legal specifics.

The draft VPA would need to be revised and updated based on current ownership patterns and the costs within it updated. The potential staging of costs could be considered if this is a sticking point for the landowners.

Paper Subdivision Provisions

The Environmental Planning and Assessment Amendment (Paper Subdivisions) Regulation 2013 (the Regulation) and corresponding paper subdivision provisions now contained in Schedule 5 of the Environmental Planning and Assessment Act 1979 (EPA Act) (PS Amendments) commenced on 8 March 2013.

The provisions in the EP&A Act and Regulation provide a potential mechanisms to help overcome common barriers to development such as fragmented ownership, rezoning and infrastructure requirements for current subdivision standards. A copy of the relevant Guidelines are available online: http://www.planning.nsw.gov.au/Policy-and-Legislation/Buildings/~/media/EA53A0E32FF84942B4E47E961B880864.ashx

Investigations into whether the Paper Subdivisions Legislative Provisions could be utilised in this case previously concluded that there was not 60% of landowners or 60% of the landholdings that were willing to continue with the PP.

As a result of property sales and new landowners, there is a possibility that the level of landowner support needed to use these provisions (at least 60% of the landowners and the owners of at least 60% of the total area of the land) could be reached. As such, this legislation could potentially be used to allow Council (should it wish to take on this role) to compel other landowners to co-operate with the majority of landowners in the process. Landowner support can only be demonstrated through a formal ballot process.

However, the process to prepare a Development Plan and Subdivision Order and potentially implementing the Development Plan appears to be onerous and expensive and in this case, would draw Council into a potential dispute among private landowners over compensation. As such, it may not be an appropriate use of Council resources.

Under the legislation, there are limited authorities for the subdivision of land including:

· the corporation (meaning the corporation sole established under section 8 of the

EP&A Act), or

· Local council, or

· Urban Growth NSW, or

· Development corporation established under the Growth Centres (Development Corporations) Act 1974 NSW, or

· Any other body prescribed by the Regulation (Note: Currently, none are prescribed).

Given the complexity of the above provisions, they should only be considered as a last resort if the recommended approach does not work.

Landowner Costs

There are two sets of landowner costs currently associated with this rezoning. The first set relate to Council recouping the money expended to date associated with the preparation of environmental studies, valuations, legal costs, consultant costs and any additional costs to finalise the rezoning and VPAs as per a previous resolution of Council.

The second set are the future costs associated with the implementation of any development scenario over the site (i.e. subdivision and development costs). In order for Development Scenario 4, or any alternative development scenario, to proceed, it is necessary for landowners to make a commitment to cover these costs. Council previously sought an undertaking from landowners to pay these current and future costs as part of the implementation of Development Scenario 4 via a land owner survey sent out in late 2010. At that point, not all owners indicated a commitment to paying current and future costs based on Development Scenario 4. Some owners indicated that they did not have sufficient funds to finance them.

A number of landowners have indicated that they would be willing to fund the rezoning and development costs at the appropriate point in time. The landowners felt that previous proposals required a risky commitment to pay high costs without any guarantee of some development or benefit.

Community Engagement

The broader community will benefit if this long-standing issue is resolved one way or another consistent with the actions specified within the Jervis Bay Settlement Strategy.

Community engagement would occur as part of the exhibition of a PP and draft VPA if the investigations recommence. The directly affected landowners have had the opportunity to comment during previous rezoning investigations and would again be directly advised of any public exhibition.

Financial Implications

To date, Council has expended more than $180,000 on studies, valuations, legal costs and consultant costs. Many of these costs were to be recouped via the VPA. It was previously indicated through Council discussions that no more funds should be expended on the resolution of this small lot rural subdivision without gaining a commitment from owners to pay all current and future costs.

The continuation of the PP will require significant staff time. Staff have already expended considerable time previously on this project and there is no indication that recoupment of costs will be achieved. Council needs to determine if it wishes to continue to spend staff time and Council resources on this project when no resolution is clear or guaranteed. Council also needs to determine whether this project should be included in the Strategic Works Program given the other important strategic planning projects such as Urban Release Area planning that is being undertaken at this time.

Development Committee – Tuesday 14 November 2017

Page 15

DE17.77 Hitchcocks Lane, Berry - Proponent Initiated Planning Proposal

HPERM Ref: D17/325322

Group: Planning Environment & Development Group

Section: Strategic Planning

Attachments: 1. Executive Summary - Proponent's Planning Proposal ⇩

2. Plans of Proposal - Proponent's Planning Proposal ⇩

3. Berry Forum Committee Submission ⇩

4. Proponent Response to Berry Forum Committee Submission ⇩

Purpose / Summary

Detail a proponent initiated Planning Proposal (PP) that has been received to enable a residential expansion opportunity at Berry and obtain direction in this regard.

Recommendation (Item to be determined under delegated authority)

That Council:

1. Prepare a Planning Proposal to rezone part (as detailed in the plans within this report) of Lots 762 and 763 DP 1224932, Hitchcocks Lane, Berry, to an R2 - Low Density Residential Zone with:

a. A 500 m² minimum lot size; and

b. An 8.5 m maximum height of buildings.

2. Forward this Planning Proposal to the NSW Department of Planning and Environment for a Gateway determination with a request that the determination be subject to a condition allowing up to 25% of the site to be provided with a lot size as small as 350 m² subject to specialist studies and community consultation.

3. Advise the NSW Department of Planning & Environment that the following studies are considered appropriate as part of the post Gateway stage of the Planning Proposal (prior to public exhibition):

a. Stormwater assessment including conceptual design details for the proposed drainage reserve

b. Stage 1 preliminary contaminated site assessment

c. Aboriginal cultural heritage assessment

d. Flood risk assessment

e. Traffic study

f. Visual impact assessment

g. Infrastructure study and delivery plan (including “soft” infrastructure)

h. Master plan including detailed urban design and built form guidelines

4. Advise the proponent of this resolution and that the proposal will be subject to fees and charges for proponent initiated Planning Proposals, including a requirement that the full cost of all specialist studies be borne by the proponent.

5. Advise the Berry Forum of this resolution.

6. Consider a report on the Planning Proposal prior to public exhibition.

7. Request a future report that provides options for a policy framework for considering Planning Proposals that accelerate consideration of an area ahead of its timing in Council’s adopted strategic plans.

Options

1. Request a Gateway determination for the PP that:

a. Only includes the land identified in the Shoalhaven Growth Management Strategy (GMS); and

b. Includes a condition requiring a detailed masterplan with urban design guidelines to be prepared and incorporated into a Development Control Plan (DCP).

Implications: This will allow the investigation of the land for residential rezoning to proceed further in accordance with the area identified in the adopted GMS.

It will allow for a single community engagement process to address both the PP and DCP issues. It will also allow for LEP controls (e.g. height of buildings) to be provided in response to the urban design investigation. This option is the preferred option.

2. Request a gateway determination for the PP that:

a. Only includes the land identified in the GMS, and

b. Identifies the land as an urban release area (URA) under Part 6 of the LEP, requiring a detailed masterplan with urban design guidelines to be prepared and incorporated into a DCP after the rezoning but prior to it being developed.

Implications: This would allow the rezoning investigation to proceed ahead of the detailed urban design process, with community engagement undertaken at each stage. Release of the land would be subject to Part 6 of the LEP. There are no compelling reasons to support this staged approach in this instance. This option is not recommended, but could potentially be considered.

3. Seek a Gateway determination for the PP that includes all of the land identified in the proponent’s PP.

Implications: This would commit Council to investigating additional land for urban residential zoning beyond the position adopted in the GMS. This option is not recommended given that it is inconsistent with relevant strategic planning considerations for this area as noted later in the report. Given the nature of this inconsistency with strategy, the NSW Department of Planning & Environment (DP&E) may be unlikely to issue a Gateway determination.

4. Not proceed with the PP at this point pending the review of the GMS.

Implications: This would defer the potential rezoning of the site to a later date. There is little benefit in deferring this matter when the subject land has already been identified as a long term investigation area, provided relevant matters can be considered moving forward including community engagement on urban design and built form.

Background

The Site

The subject land to which this proponent initiated PP relates is Lots 762, 763 and part of 764 DP 1224932, located on the southern edge of the Berry Urban area. The land is adjoined to the southeast by the Princes Highway, to the north by the Huntingdale Park residential estate and to the southwest by rural land. It is crossed by two drainage lines which flow eastward. The site is largely cleared and maintained as pasture.

Maps showing the subject land and its location are provided below:

Subject Land – Location

Subject Land - Lots 762, 763 and 764 (part of) DP 1224932

The subject land was previously part of the “Graham Park” complex that was previously owned by Council and used by the University of Wollongong (UOW) as an educational facility. The former administrative buildings were subdivided from the rest of the Graham Park site in 2016 and are currently used as a place of public worship. The subdivided land is Lot 601 DP 1188616 and is not part of the PP.

There are a number of agricultural outbuildings on the site which were previously used for livestock related uses when the facility was a stock breeding centre. Most of these buildings are concentrated along the south-western boundary of Lot 764 in an area that is not proposed under the PP for rezoning to residential use.

The Proponents PP

The proponents PP was received on 8 September 2017 from Cowman Stoddart Pty Ltd (on behalf of the owners P&P Bice) and seeks to:

· Rezone Lots 762, 763 and part of 764 from RU1 Primary production to R1 General Residential.

· Rezone areas along drainage paths and the Princes Highway to RE1 Public Recreation.

· Modify the minimum lot size map for the rezoned area to show a 350 and 500 square metre minimum lot sizes.

· Modify the maximum building height limit for the rezoned area to be 8.5 metres.

The proponent’s submission includes a draft PP and a range of supporting documentation including agricultural assessment, water and sewerage strategy, electricity supply strategy, traffic noise intrusion assessment and landscape plans.

The GMS identifies the subject land as a Long Term Investigation Area for urban development (LTIA). The proponents have argued that this area needs to be considered in the shorter term due to the take up of residential zoned land in Berry and its rezoning should be brought forward.

The PP seeks to include the northern part of Lot 764, using the existing watercourse and associated approved vegetated riparian corridor as a boundary between the RU1 and proposed R1 zones. This represents an expansion of the area of land shown in the GMS as a LTIA. Further comment is provided in this regard later in the report. The following table shows the anticipated yields that the PP could generate and also an overview relative to the LTIA identified in the GMS:

Lot Type/Size	Area within the LTIA	Area beyond the LTIA	% expansion beyond the LTIA
500 m²	8.36 ha (93 lots)	2.78 ha (25-30 Lots)	29.2%
350 m²	1.16 ha (24 lots)	Nil	29.2%
Drainage Reserve	1.48 ha	1.13 ha	76.4%
Total	11.0 ha	3.91 ha	35.5%

The proponents PP is available for viewing on Councils website at:

https://shoalhaven.nsw.gov.au/Planning-amp-Building/Strategic-planning/Planning-Proposals

Hard copies of the proponent’s documentation will be available in the Councillors Room prior to the meeting. The executive summary and plans from the proponents PP are also provided as Attachment 1 and 2.

Strategic Planning Overview

The following is an overview of relevant strategic planning documents that are relevant to this proposal.

· Shoalhaven LEP 2014

The subject land is currently RU1 Primary Production under Shoalhaven LEP 2014. The objectives of this zone relate to conserving and maintaining prime crop and pasture land and facilitating primary industries. Parts of the subject land are also identified on the flood planning area map that forms part of the LEP. This primarily relates to the drainage lines that run through the land. The riparian and watercourses overlay also affects the south eastern corner of Lot 763.

· Illawarra-Shoalhaven Regional Plan

The Regional Plan was released by the NSW Government in late 2015. Under Direction 2.1 -Provide sufficient housing supply to suit the changing needs of the region, recognises the role of new releases identified under the Illawarra Urban Development Plan and the Shoalhaven GMS.

As noted above, this area is currently identified in the GMS as a LTIA. More commentary in this regard is provided below.

· Shoalhaven Growth Management Strategy

Council began its consideration of future urban expansion opportunities on this edge of Berry in late 2002. This related to discussions that were held with the local community in regard to the proposed sale of Graham Park by Council and interest in the future use of the land. Council considered a report on this matter on 17 September 2002 and the following concept plan produced at that time identified potential urban expansion opportunities

The 2002 concept plan showed the subject land, specifically the former Lots 75 and 76 DP 4468, as ‘possible urban expansion’. The plan also showed a proposed open space area to be revegetated along the Princes Highway edge. Under this plan approximately 9.5 hectares of land west of the Princes Highway was identified as ‘possible urban expansion’.

This ultimately led to the inclusion of the part of the land as a LTIA in the GMS that was finalised in 2014 when it was endorsed by the NSW Government. The relevant map from the GMS is provided below:

The south-western boundary of the LTIA shown in the GMS was set based on the adjacent residential zone boundaries that existed in the LEP. The intent was to extend the urban area in the longer term to fill a gap between the existing urban area and the Princes Highway and finish the urban edge in this location. This resulted in two of the lots that made up the former Graham Park being included and the remainder being excluded from the LTIA. It was envisaged that this would provide a south-western boundary to the urban extent of Berry.

The GMS currently identifies this area as part of the long term planning for the City. This means that it was intended that the area not be released for 15 years after the GMS was finalised. This timeframe was determined in context of the broader economic climate, uncertain development at that time of the Huntingdale Park subdivision and to also allow for community engagement as part of the development of planning controls for the site. It was intended that the desired future character for this new area would be determined in conjunction with the community following additional engagement as part of a GMS Version 2.

The Huntingdale Park subdivision is nearly half complete, with 107 of 251 lots being released. Many of the remaining lots are understood to have been purchased prior to release and two more stages (63 lots) are expected to be released in coming months. There are no other release areas in Berry to provide ongoing additional residential land supply once the Huntingdale Park subdivision is complete, which is likely to occur prior to the completion of a PP for Graham Park. This outcome was not anticipated by the GMS which appears to have assumed that Huntingdale Park would meet demand for residential land for at least a decade.

This change in circumstances provides some justification to bring forward the timing of this investigation area from that described in the GMS, the underlying aim of which would be to ensure the steady supply of housing sites in Berry but also allow for community engagement on built form and urban design controls as originally envisaged.

The development of Huntingdale Park provides a context for the preparation of built form and urban design controls for the Graham Park site if the PP proceeds. This is an important prerequisite to conducting community engagement for a PP and DCP for the site.

• Berry Community Strategic Plan

The Berry Community Strategic Plan was prepared by The Berry Forum during 2016. Council resolved in December 2016 to:

Endorse the Berry Community Strategic Plan as a community plan and consider the themes and strategic priorities contained within the plan as part of Council’s planning processes.

This plan contains some detail that is directly relevant to this PP and the consideration of it, specifically under Theme 4 – Town Planning. The objective of this theme is: To maintain the history, setting and unique character of the Berry area through careful planning and development. The following are the relevant ‘strategic focus’ areas and their ‘priority’ under this plan:

4.2 Define the edge of the town

Provide a distinct town edge that retains views to the escarpment to the north and minimises residential subdivisions and housing release at the rural interface.

Priority: high

4.3 Explore ways to improve housing affordability into the future

Examine options for promoting improved housing affordability within the town whilst retaining key attributes of the town in terms of heritage retention (Strategic Focus 4.1) and definition of the town edge (Strategic Focus 4.2).

Priority: Medium

4.4 Update planning controls

To acknowledge changes brought by the bypass and to ensure that the character both within and external to the town is retained and reinforced, review and update relevant planning controls and strategic documents to reflect the desired future of the town.

Priority: medium

There is other content within this plan that is of relevance to the PP and should be considered should Council resolve to support the matter proceeding.

· Planning Proposal (Rezoning) Guidelines

These guidelines detail the circumstances when a PP is likely to be supported by Council and provide a range of detail on the PP process. The guidelines were adopted by Council in 2016 and note that Council is likely to support a PP in the following circumstances:

· Proposed amendment is supported by Council or State Government strategy or plan.

· Clear zoning anomaly exits on site.

· Proposed amendment is considered to be minor in nature and has been sufficiently justified to Council.

The guidelines also note that the proponents should have pre-lodgement dialogue with Council staff before formally lodging a PP.

The guidelines make it clear that PP’s that are not supported by a strategy or plan and are considered speculative will generally not be supported by Council.

Pre-lodgement engagement with the proponents in regard to this matter took place during 2015 and earlier this year and Council staff advised that there was a need to consider consistency with the GMS (specifically at that point the timing), residential demand/supply, infrastructure servicing, housing affordability, urban design/character, landscaping/setback to the highway and having a dialogue with the local community on desired outcomes for the area

Assessment of Proponent’s PP

The NSW Guide to Preparing Planning Proposals provides an assessment framework for PP’s. This framework requires the planning authority (Council) to answer a number of questions in determining the merit of a PP. These are considered below:

Q1. Is the Planning Proposal a result of any strategic study or report?

The PP is largely consistent with the GMS, however, there are inconsistencies with the currently adopted strategy in terms of extent and timing.

As noted earlier in the report, the proponents PP proposes a larger area for rezoning. This represents a 35.5% extension on what is nominated in the adopted GMS. This inconsistency with the GMS is not supported by any strategic study or report. This would also be contrary to the intent of finishing off this edge of the town and could lead to additional requests for rezoning on adjoining land, particularly to the west.

Thus, it is recommended that this extension not be supported.

Also as discussed above, the proposal is inconsistent with the timing for this area in the GMS (currently shown as long term). It is considered that the early consideration of this area will achieve the underlying intention of the GMS to ensure the steady supply of housing sites in Berry, but steps should still be taken to enable early community engagement on urban design controls for the area.

Q2. Is the Planning Proposal the best means of achieving the objectives or intended outcomes, or is there a better way?

The PP process is the most appropriate mechanism to achieve the outcome of the GMS, other than waiting for the next general review of the LEP. The actual detail of the PP and its provisions are to be determined following the outcomes of specialist studies.

Q3. Is the Planning Proposal consistent with the objectives and actions of the applicable regional, sub-regional or district plan or strategy (including any exhibited draft plans or strategies)?

The Illawarra-Shoalhaven Regional Plan is the relevant regional strategy. There is no relevant sub-regional or district plan for this area.

The Regional Plan identifies Berry as a centre for increased housing activity in Direction 2.2.

The GMS provides strategic direction on potential urban expansion in the areas not covered by an adopted structure plan or settlement strategy. The GMS is also recognised under Direction 2.1 in this Plan.

As such, proceeding with a PP to the extent identified in the GMS is consistent with the Illawarra-Shoalhaven Regional Plan, provided the inconsistent timing is accepted.

Q4. Is the Planning Proposal consistent with a Council’s local strategy or other local strategic plan?

The PP is largely consistent with the adopted GMS. As noted, there is a 35.5% expansion to the area proposed that is inconsistent with the GMS and is not supported by any strategic study or report. It is recommended that this extension not be supported.

The proposal is inconsistent with the timing for the area in the GMS. However, the early consideration of this area will achieve the underlying intention of the GMS to ensure the steady supply of housing sites in Berry while allowing for community engagement on urban design controls.

Q5. Is the Planning Proposal consistent with applicable State Environmental Planning Policies?

A number of technical matters will need to be further investigated to demonstrate consistency with the relevant State Environmental Planning Policies. There are however no apparent inconsistencies at this stage.

Q6. Is the Planning Proposal consistent with applicable Ministerial Directions?

There is an inconsistency with the 117 Directions on Rural Zones and Rural Lands because the PP proposes to rezone rural land to urban residential. This inconsistency can be justified by the GMS only to the extent of the LTIA adopted in this strategy. This is a further reason for recommending that the proposed extension not be supported.

A number of technical matters will need to be investigated to demonstrate consistency with other relevant Ministerial Directions.

Q7. Is there any likelihood that critical habitat or threatened species, populations or ecological communities, or their habitats, will be adversely affected as a result of the proposal?

The site has been extensively cleared and managed as pasture. It is not identified in Council’s mapping or modelling as being an area of ecological significance.

Q8. Are there any other likely environmental effects as a result of the Planning Proposal and how are they proposed to be managed?

A number of technical matters will need to be investigated to demonstrate that the PP is satisfactory with regard to a range of environmental effects.

Q9. Has the Planning Proposal adequately addressed any social and economic effects?

A number of technical matters will need to be investigated to demonstrate that the PP is satisfactory with regard to a range of social and economic effects.

Q10. Is there adequate public infrastructure for the Planning Proposal?

The required infrastructure to support the proposal will need to be investigated as part of the PP process. The proponents have provided a Water & Sewerage Strategy and Electricity Supply Strategic Review as part of their PP.

Q11. What are the views of State and Commonwealth public authorities consulted in accordance with the Gateway determination?

The required consultation will be undertaken if the PP proceeds.

Conclusions – Revised PP

As detailed above, there is considered to be some merit in supporting this PP. However, the proponent’s proposed expansion of the investigation area identified in the GMS is not supported. The inconsistency with the timing nominated in the GMS is acknowledged, but there is merit in advancing the investigation of this area now to ensure there is a continued land supply in Berry, provided there is community engagement on potential built form and urban design controls for this new area.

The following set of revised PP maps have been prepared to ensure consistency with the nominated area in the GMS. The proposed 350 m² lot size has been removed from the minimum lot size map at this point. It is considered that a smaller lot size may be appropriate on part of the site, but that this should be determined as part of the specialist studies and master planning of the site. A Gateway condition will be sought to facilitate this.

To facilitate the advancement of the PP if Council supports it advancing, it is recommended that a Gateway determination be sought requiring the following specialist studies to be prepared:

a. Stormwater assessment, including conceptual details for the proposed drainage reserve

b. Stage 1 preliminary contaminated site assessment

c. Aboriginal cultural heritage assessment

d. Flood risk assessment

e. Traffic study

f. Visual impact assessment

g. Infrastructure study and delivery plan (including “soft” infrastructure)

h. Master plan including urban design and built form guidelines, prepared in consultation with the community.

Community Engagement

The adjoining owners and The Berry Forum were notified as a courtesy in accordance with standard procedures of the receipt of this PP.

The Berry Forum Committee initially responded, contesting comments made by the proponent in their PP document that they had consulted with the Forum.

The proponent was advised of The Berry Forum Committee’s submission and provided a response and an amended version of the PP.

Both The Berry Forum Committee Submission (Attachment 3) and the proponent’s response (Attachment 4) are attached.

The Berry Forum met on 12 October 2017 and considered the PP. The forum resolved to unanimously oppose the PP for four (4) reasons which are considered below:

Reason	Comment
The GMS identifies Long Term Investigation (15+ years) land for potential future development. This is the only land that should be considered for rezoning at the appropriate time.	The proponent’s proposed expansion of the investigation area identified in the GMS is not supported. The inconsistency with the timing nominated in the GMS is acknowledged, but there is merit in advancing the investigation of this area now to ensure there is a continued land supply in Berry, provided there is community engagement on potential built form and urban design controls for this new area.
The GMS was developed using the principles of Ecologically (Sustainable) Development, including the Precautionary Principle. We believe this requires Council not to progress this Planning Proposal until Huntingdale Park Estate is completed and the full impact of this development (HPE) on the infrastructure of Berry, including schools, is apparent.	There is some merit in considering this PP now ahead of the complete development of the Huntingdale Park subdivision to ensure that there is a continued land supply in Berry. The PP process includes an assessment of infrastructure impacts. There will also be consultation with relevant infrastructure agencies, including the Department of Education. If there is doubt over the capacity of local infrastructure to support this development then there are a number of mechanisms that can be investigated to meet the shortfall.
Any claimed ‘shortage’ of land for development should be viewed in the context of the Moss Vale Road major land release.	The Moss Vale Road release area is a different locality to Berry and is not comparable from a land supply perspective.
There are potentially serious safety issues with an overall development containing more than 400 homes (incl. Huntingdale Park Estate) with only one entry/exit road.	This concern is appreciated and will be investigated as part of the PP process. The PP includes an opportunity to investigate provision of a left-out access on to the Princes Highway Off Ramp which will increase evacuation options to the broader precinct. This will require consultation with the Roads & Maritime Service as part of the PP process.

If the PP progresses, community engagement will be specified in the Gateway determination and formal public exhibition will be required at the appropriate point in accordance with the Act.

Policy Implications

Shoalhaven Planning Proposal (Rezoning) Guidelines

Subject to the variations to the proponent’s PP outlined in this report, the proponent’s PP otherwise forms a satisfactory basis to proceed to request a Gateway determination.

Precinct Sequencing

The GMS identifies the investigation areas in Berry as long term, i.e. beyond 15 years (2029). The sequencing that could result from this proposal would result in this area being released before a number of investigation and release areas that were not identified as “long term”. The GMS did not intend this precinct to be released so soon after its adoption.

In this case, it has been concluded that the early consideration of this area is justifiable given current circumstances and it will achieve the underlying intention of the GMS. It is noted, however, that Council has no adopted policy position for how this type of situation is to be addressed. Consequently, it is also recommended that Council resolve to investigate a policy document in this regard.

Financial Implications

The PP will be prepared on a 100% cost recovery basis to be funded by the proponent. Infrastructure requirements for the proposal are to be thoroughly investigated in the PP process to ensure that there are no adverse impacts on Council’s adopted budget and forward estimates.

Development Committee – Tuesday 14 November 2017

Page 43

DE17.78 Draft Chapter G18 Streetscape Design for Town and Village Centres - Shoalhaven Development Control Plan 2014 - Preparation and Public Exhibition

HPERM Ref: D17/330934

Group: Planning Environment & Development Group

Section: Strategic Planning

Attachments: 1. Draft Development Control Plan Chapter G18 Streetscape Design of Town and Village Centres (under separate cover) ⇨

2. Draft Streetscape Technical Manual (under separate cover) ⇨

3. Subject Streets Map (under separate cover) ⇨

4. Draft Development Control Plan Dictionary (under separate cover) ⇨

Purpose / Summary

Seek endorsement to prepare and public exhibit Draft Chapter G18 Streetscape Design for Town and Village Centres (Draft Chapter), Shoalhaven Development Control Plan (DCP) 2014.

The Draft Chapter will introduce streetscape design controls for nominated town and village centre streetscapes and certain development types. The provisions build on the controls that previously existed in now rescinded DCP No. 80 Streetscape Guidelines for Paving and Tree Planting in the Nowra CBD.

Recommendation (Item to be determined under delegated authority)

That Council:

1. Prepare and publicly exhibit Draft Chapter G18 Streetscape Design for Town and Village Centres and Dictionary of Shoalhaven DCP 2014 for a six (6) week period and in accordance with the Environmental Planning & Assessment Regulation 2000.

2. Advise relevant Community Consultative Bodies of the public exhibition.

3. Receive a further report on the draft Chapter G18 Streetscape Design for Town and Village Centres following the conclusion of the public exhibition period.

Options

1. Adopt the recommendation.

Implications: The preparation and public exhibition of the Draft Chapter will allow Council staff to enact a previous position of Council, which sought to review the now rescinded DCP No. 80 and insert a new chapter covering streetscape design controls into Shoalhaven DCP 2014.

The Draft Chapter will provide an endorsed policy direction for streetscape upgrades when required by a Development Application (DA). The Draft Chapter will ensure a coordinated approach to streetscape design and construction that is sympathetic to the character of the relevant nominated town and village centre. The Streetscape Technical Manual will also have the ability to be used by Council staff or contractors working on behalf of Council in undertaking work within the public domain.

2. Adopt an alternative recommendation.

Implications: This may significantly delay the preparation and exhibition of the Draft Chapter and the ability to provide streetscape upgrades in nominated town and village centres in a coordinated manner.

Background

Following the notification of Shoalhaven Local Environmental Plan (LEP) 2014 on 22 April 2014, Council had six months to exhibit and finalise the Shoalhaven DCP 2014. Due to the limited time available to review and consolidate over 100 DCPs, a number of DCP’s were unable to be reviewed and amended as necessary, including the now rescinded DCP No. 80 Streetscape Guidelines for Paving and Tree Planting in the Nowra Central Business District (CBD).

Prior to the LEP being made, the Nowra CBD Action Committee at its meeting on 8 April 2013 considered a report from the General Manager relating to the review of DCP No. 80. The report provided an update on the progress of reviewing DCP No. 80 and noted that it would have to complement the Citywide DCP which was underway at the time. The report also noted that whilst DCP No. 80 applied only to Nowra CBD, the new Chapter would need to consider other towns and villages across the City.

Following consideration of the report, the Nowra CBD Action Committee resolved that:

a) The report of the General Manager (Strategic Planning & Infrastructure) regarding the review of DCP 80 be received for information;

b) It be noted that the approach for the design of new paving in the City is being undertaken consistent with Council’s resolution; and

c) The approach for the maintenance/repair of existing paving be undertaken as outlined in the report.

On 6 August 2014, Nowra CBD Action Committee considered a report relating to ongoing civic improvements and resolved to receive it for information. The report noted that due to the age of DCP No. 80 it required a significant review in order to prepare a new DCP Chapter in the Citywide DCP. The report also noted that the new DCP Chapter would address the following points:

· Apply in both a citywide context as well as reference treatments / themes for specific towns and villages areas.

· Define streetscape character with general guiding principles.

· Provide guidance for the provision of the following main items / elements (as a minimum) in the CBD streetscape environment:

o Entry treatments;

o Trees (including root barriers and structural soils);

o Public artwork (within streetscape infrastructure and standalone artwork);

o Footpath surface / delineation / hierarchy (which recognises “Council’s preference for “attractive concrete designs rather than pavers”);

o Street amenities (furniture, bins, tree guards, planter boxes, lighting, etc.);

o Embellishment of civic spaces.

· Consideration of:

o existing CBD attributes / view lines;

o integration of the public / private domains (i.e. boundary of public / private land);

o existing infrastructure within the streetscape (i.e. car parks, vehicle lanes, drains, pit covers, multi utilities, etc.) and how to transition such infrastructure in a streetscape improvement program;

o accessibility / pedestrian / cycling needs;

o priority items to upgrade streetscapes;

o the economics of lifecycle infrastructure (maintenance) costs.

The review of the DCP 80 is now complete and the new Draft DCP Chapter and supporting Streetscape Technical Manual (Manual) has been prepared and is attached to this report (Attachment 1 and 2).

Draft DCP Chapter G18 Streetscape Design for Town and Village Centres

The draft Chapter proposes to introduce streetscape design controls for subject streets in thirteen (13) nominated town and village centres that have a defined centre and commercial presence, these include:

· Berry;

· Shoalhaven Heads;

· Kangaroo Valley;

· Bomaderry;

· Nowra;

· Culburra Beach;

· Huskisson;

· Vincentia;

· Sanctuary Point;

· St Georges Basin;

· Sussex Inlet;

· Milton; and

· Ulladulla.

In addition to the nominated centres, the Draft Chapter will also apply to other streetscapes where a development application (DA) is received for a commercial premises, mixed use development, multi-dwelling housing, attached dwelling, residential flat building, shop top housing or seniors housing development. This is to ensure that appropriate streetscape upgrades are provided as development is conditioned and occurs.

The Draft Chapter builds on the development controls contained in the former DCP No. 80 and includes controls relating to streetscape, character and function, streetscape components, and unique town and village centre features. These controls are generic in nature and will apply to specific streets within the nominated centres and to specific land use types. The Draft Chapter is supplemented by a supporting ‘Subject Streets Map’ which identifies the streets subject to the application of the DCP chapter. The supporting Subject Streets Map is provided as Attachment 3.

The development controls contained within the Draft Chapter refer to the Manual, which is a new document proposed to supplement the Draft Chapter. The Manual has been prepared by Council’s City Design Team and contains individual design and construction technical detail to guide the provision of footpaths, planting palette, colour palette, street furniture and unique features for each of the nominated centres, as per the report to Nowra CBD Action Committee in August 2014. A generic design has also been prepared for use in other localities.

The palettes for each centre have been designed to represent the unique character of each centre and acknowledge the preference for use of aggregate concrete over pavers in footpaths. Use of pavers has been restricted to decorative borders, except for in Berry, Kangaroo Valley and Milton where the use of pavers in footpath design has been retained to reflect the heritage character of the centres. In addition, the use of pavers in the design of footpaths in Sussex Inlet has also been retained as a result of a recent community consultation exercise on the streetscape design.

In response to the issues faced with the previous DCP No. 80 regarding products changing and the availability of materials, the Manual has been prepared to be used as a technical guide to ensure that updates to proprietary products can be easily made where products are discontinued without the need for a formal DCP amendment. Compliance with the Manual is required through development controls contained in the Draft Chapter and can be used to condition Development Consents and as a reference for Council when undertaking works in the streetscapes of nominated town and village centres.

Internal Engagement

The Draft DCP Chapter and Manual have been reviewed by Council’s Works and Services, and Development Services areas. Feedback received during this process has been considered and incorporated where deemed appropriate.

Other Amendments Required

As a result of the Draft Chapter, the Dictionary of Shoalhaven DCP 2014 will also require a minor amendment to insert two new definitions that are referred to in the Draft Chapter. The two new definitions relate to footpaths and pathways. The Draft Dictionary is provided as Attachment 4.

Community Engagement

The Draft Chapter, Dictionary and Manual will be publicly exhibited for a six (6) week period and in accordance with the requirements of the Environmental Planning & Assessment Regulation 2000. Given that the public exhibition of the Draft Chapter is likely to go over the holiday period, Council will run an extended exhibition period.

The Community Consultative Bodies from the nominated town and village centres will also be advised of the public exhibition and if necessary staff will arrange to meet with these bodies (as required) to explain and discuss the proposals.

Policy Implications

The Draft Chapter is proposed to be a new chapter within Shoalhaven DCP 2014. The Draft Chapter enacts a previous position of Council to undertake a review of DCP 80 and replace it with a new DCP Chapter that applies to the City. As part of the preparation of the Citywide DCP 2014, Chapter G18 was reserved for the Draft Chapter.

Financial Implications

Preparation and finalisation of the Draft Chapter is being undertaken within the existing Strategic Planning budget.

Risk Implications

If the Draft Chapter is not implemented, there is a risk that streetscape design will not be adequately considered in future DA’s which may result in a haphazard approach to streetscape design and the eventual deterioration of the unique streetscape character within nominated town and village centres in Shoalhaven. The Draft Chapter is expected to mitigate against these risk implications.

Development Committee – Tuesday 14 November 2017

Page 47

DE17.79 Outcomes - Building Height Review - Southern Part of Ulladulla CBD

HPERM Ref: D17/333579

Group: Planning Environment & Development Group

Section: Strategic Planning

Attachments: 1. Review of Building Heights Report (Part Ulladulla CBD) (under separate cover) ⇨

2. PP025 Gateway Determination 29 August 2017 (under separate cover) ⇨

Purpose / Summary

To present the outcomes of the Building Heights Review relating to the southern part of the Ulladulla CBD as per MIN17.218.

Recommendation (Item to be determined under delegated authority)

That Council:

1. Prepare a Planning Proposal to amend Shoalhaven Local Environmental Plan 2014 to increase the height across the Study Area (excluding land subject to PP025) to part 11 metres and part 14 metres as per the Review of Building Heights Report.

2. Prepare an amendment to Chapter S8: Ulladulla Town Centre of Shoalhaven Development Control Plan 2014 to reflect proposed height modifications and address resulting implications across the Study Area, including land subject to PP025.

3. Consider a further report/s that contains the detail of the Planning Proposal for submission to the NSW Department and Planning and Environment for Gateway determination and the associated amendments to Chapter S8: Ulladulla Town Centre of Shoalhaven Development Control Plan 2014.

4. Notify Ulladulla & Districts Community Forum, affected landowners and workshop attendees of this decision and of further opportunities to be involved as this matter progresses.

Options

1. Adopt the recommendation.

Implications: This is the preferred option as it will commence the process to amend the heights in Shoalhaven Local Environmental Plan (LEP) 2014 relating to the Study Area (excluding land subject to PP025) to reflect the outcomes of the review. It will also facilitate the required amendments to Shoalhaven Development Control Plan (DCP) 2014 to reflect the proposed change in height across the Study area and enable good design and built form outcomes.

2. Adopt an alternative recommendation.

Implications: Depending on its nature, an alternative recommendation could delay the revision and updating of height provisions in Shoalhaven LEP 2014 and could result in provisions that do not facilitate appropriate development outcomes within the Study Area.

3. Not amend the height of building provisions in Shoalhaven LEP 2014 across the Study Area.

Implications: Given the review that has been undertaken and its recommendations, this is not a preferred option as the existing height provisions in Shoalhaven LEP 2014 will not be amended and it will be difficult to stimulate and facilitate development consistent with a CBD location.

Background

On 14 March 2017, Council’s Development Committee considered a development application (DA16/2412) for a three (3) storey office building at proposed Lot 15 Parson Street, Ulladulla.

The proposal sought a 46% (3.5 metre) variation to the 7.5 metre height prescribed in the Shoalhaven LEP 2014 for the land. Although the Committee originally resolved to support the variation (MIN17.183), a rescission motion was considered at the 28 March 2017 Ordinary Meeting (MIN17.217) and it was resolved to not support the proposed variation (MIN17.218). As part of this resolution, Council also resolved (part 2) to:

Undertake a review of the 7.5 metre building heights in this part of the Ulladulla Town Centre in the next 6 months which is limited to the area south of Deering Street and the B5 and R3 zones.

It is noted that the area of the review was expanded beyond that of the Council resolution to ensure a holistic review of land in this vicinity with a building height of 7.5 metres in the LEP.

The Study Area (Figure 1) is located within the southern precinct of the Ulladulla CBD and is generally bounded by St Vincent Street, Parson Street, Burrill Street South, Jubilee Avenue, Deering Street and the Princes Highway, Ulladulla. The Study Area includes all land with a building height currently mapped at 7.5 metres (Figure 2) as indicated in Shoalhaven LEP 2014 and is zoned B4 Mixed Use, B5 Business Development and R3 Medium Density Residential.

Figure 1: Study Area

Figure 2: Existing Height of Buildings

Consultants, City Plan Services and Atlas Urban were engaged in June 2017 to undertake a Building Height Review as an urban design and strategic planning exercise to investigate and reconsider the urban form height controls for the Study Area. The Review is based on a detailed analysis of the Study Area and context, as well as targeted consultation with the Ulladulla & Districts Community Forum, community and Council representatives.

Community Consultation

On 31 July 2017, two consultation workshop sessions were held; one with the Ulladulla & Districts Community Forum and community (approximately 30 attendees), and another with Councillors. The purpose of the workshops was to enable stakeholders to provide feedback on the height strategy proposed by the consultants. Generally, there were varying opinions as to what the planned heights should be, from no change to up to 17 metres. Other key themes included relationship to the existing neighbourhood character and height, preservation of views, affordable housing opportunities and the ability to stimulate economic growth and job opportunities.

It was identified during the CCB/community workshop that certain members of the community were unable to attend the workshop due to work commitments, and as a result, the consultant’s workshop presentation was made available for public review for a period of one week between 2 and 9 August 2017. As a result of this, seven (7) submissions were received:

· Three (3) were in support of an increase in height, two (2) specifying a height of 17m.

· Three (3) did not support any increase in height.

· One (1) considered a height increase appropriate only where existing amenity and character is maintained and quality design controls are provided.

Refer to the Review of Building Heights Report at Attachment 1 for more detail.

Outcomes of the Building Height Review

Balancing the outcomes of the targeted consultation and the strategic, statutory and physical parameters of the Study Area, the Review of Building Heights Report prepared by the consultants (Attachment 1) recommends considering an increase in height across the Study Area from 7.5 metres to part 11 metres and part 14 metres as shown in Figure 3 below.

Figure 3: Proposed Height of Buildings

The recommended change in height enables a modest transition to lower density development to the south, east and west and reflects the height of the Ulladulla CBD core to the north of the Study Area. It also will enable the stimulation and facilitation of development consistent with the vision and strategic direction of the:

· Milton-Ulladulla Structure Plan; and

· General future desired character and amenity expectations as outlined in Chapter S8: Ulladulla Town Centre of Shoalhaven DCP 2014.

Proposed approach

Should Council be comfortable with the changes recommended by the consults, to enable the change in building height across the Study Area, a formal amendment to Shoalhaven LEP 2014 will be required. This would be facilitated via a Planning Proposal (PP).

In this regard, on 5 June 2017, the Development Committee resolved (MIN17.476) to give in principle support for a proposed rezoning and building height review for a site located within the Study Area (Figure 4), known as Lots 1-7, 9 DP 21597 and Lot CP SP 42583, St Vincent and Deering Streets, Ulladulla.

The Gateway determination (Attachment 2) for this Planning Proposal (PP025) included a condition requiring the final height for the site to be shaped by the outcomes of the Review of Building Heights Report. PP025 is proponent initiated and it is considered, in the interest of clarity and transparency, that:

· The land subject to the proponent PP (identified as pink in Figure 4) be excluded from the Building Height Review Planning Proposal; and

· The proponent PP should continue to progress independently to any future PP relating to the Review of Building Heights Report.

Figure 4: Study Area and PP025 Area

The Review of Building Heights Report recommends that Chapter S8: Ulladulla Town Centre of Shoalhaven DCP 2014 also be amended to reflect the proposed change in height across the overall Study Area (including PP025 area). This would facilitate good design and built form outcomes and would relate (not exclusively) to the general context, built form and character, views and vistas, setbacks and height references in the area.

Any associated amendments to the Shoalhaven DCP 2014 would be exhibited concurrently with the PP and PP025 to ensure a strategic approach to planning provisions across the broader Study Area.

Conclusion

The Review of Building Heights Report discussed in this report recommends an increase in height across the Study Area from 7.5 metres to part 11 metres and part 14 metres. It is considered that an amendment to Shoalhaven LEP 2014 and Shoalhaven DCP 2014 would effectively facilitate this increase in height.

Community Engagement

The community engagement undertaken as part of the Review of Building Heights Report is outlined above.

Any future PP would be subject to the exhibition requirements set out in the Gateway determination in accordance with the relevant legislation. This will involve notifying all affected landowners, adjoining landowners, relevant community groups and other interested parties.

Any amendments to Shoalhaven DCP 2014 would be exhibited concurrently with the PP’s, in accordance with the relevant legislation.

Policy Implications

The existing height provisions in Shoalhaven LEP 2014 are dated and somewhat inconsistent with the proposed direction of the Milton-Ulladulla Structure Plan and general future desired character and amenity expectations outlined in Chapter S8: Ulladulla Town Centre of Shoalhaven DCP 2014.

The proposed height increase would assist in facilitating development and resolve the current inequitable and inconsistent building height controls that exist - the adjacent lower density residential areas currently has a greater height limit (8.5 metres) than the Subject Area (7.5 metres).

Should a PP be prepared to amend the height, then amendments will also be required to Shoalhaven DCP 2014 to reflect new heights and to resolve any inconsistencies resulting from the modifications.

Financial Implications

As per MIN17.476, the funding for the Building Heights Review is based on a pro rata arrangement between the Strategic Planning budget and the proponent of PP025.

Any future amendments to Shoalhaven LEP 2014 and Shoalhaven DCP 2014 would be managed within the existing Strategic Planning budget.

Fees for the remaining stages of PP025 will be charged in accordance with Council’s Fees and Charges.

Development Committee – Tuesday 14 November 2017

Page 53

DE17.80 Submissions Consideration - Planning Proposal (PP022) - LEP Housekeeping Amendment 2016 - Minor Mapping & Instrument Changes

HPERM Ref: D17/334914

Group: Planning Environment & Development Group

Section: Strategic Planning

Attachments: 1. Explanatory Statement - Shoalhaven LEP 2014 - Housekeeping Amendment 2016 ⇩

Purpose / Summary

The purpose of this report is to:

· Consider the submissions received during the exhibition of this Planning Proposal (PP) and consider recommend changes;

· Adopt the revised PP; and

· Progress the finalisation of the proposed amendment to Shoalhaven LEP 2014 in conjunction with Parliamentary Counsel Office.

Recommendation (Item to be determined under delegated authority)

That Council:

1. Adopt the Planning Proposal (PP022) with the minor amendment outlined in this report;

2. Forward Planning Proposal (PP022) to NSW Parliamentary Counsel Office to draft the requirement amendment to Shoalhaven Local Environmental Plan 2014; and

3. Make the resulting amendment to the Local Environmental Plan using the delegations issued under Section 23 of the NSW Environmental Planning and Assessment Act 1979 related to plan making.

Options

1. Consider the submissions made during the exhibition period, adopt the PP (with the change outlined in this report) for finalisation and progress the resulting amendment to Shoalhaven LEP 2014.

Implications: This is the preferred option as it will ensure that the relevant housekeeping matters in Shoalhaven LEP 2014 are addressed to ensure the LEP operates as intended.

2. Adopt an alternative recommendation.

Implications: Depending on its nature, this could delay the progress of the PP and the resulting amendment of Shoalhaven LEP 2014.

Background

Council continuously reviews Shoalhaven LEP 2014 to ensure it aligns with strategic documents, is improved where necessary and delivers positive outcomes for the community. As a result, Council has an ongoing process of housekeeping amendments to improve the operation and maintain the accuracy of the plan.

This housekeeping amendment PP (PP022) addresses those non-urgent matters that were identified during the course of 2016 and early 2017.

The intended outcome of this PP is to:

· Add or amend provisions to the instrument and maps to improve the operation of the LEP and address issues that have arisen through registration of new land titles, landowner requests, staff identified anomalies, development assessment and as resolved by Council; and

· Amend a number of LEP maps to correct identified anomalies or inconsistencies.

A list of the proposed changes covered by this PP can be viewed in the Explanatory Statement which is included as Attachment 1.

The PP was granted Gateway determination by the NSW Department of Planning and Environment (DP&E) on 13 June 2017. A revised Gateway determination was then received on 25 August 2017 (one matter that was delaying things was removed to allow for further investigation and possible inclusion in a future housekeeping PP).

DP&E also granted delegated authority to Council for this PP. Accordingly, Council will liaise directly with the NSW Parliamentary Counsel Office (PCO) to prepare and finalise the LEP amendment for commencement.

Public Exhibition

The PP was publicly exhibited for a period of 30 days from Wednesday 6 September to Friday 6 October 2017 (inclusive). The public exhibition included the display of the PP, the Gateway determination and an explanatory statement at the City Administration Building, Nowra and on Council’s website.

The PP was referred to the NSW Office of Environment and Heritage and the NSW Rural Fire Service as required by the Gateway determination. NSW Roads & Maritime Services (RMS) were also advised of the exhibition. Affected landowners were directly notified by mail.

The exhibition document can be viewed at the following link:

http://leptracking.planning.nsw.gov.au/PublicDetails.aspx?Id=4933

Submissions:

A total of three (3) written submissions were received from:

· Two Landowners

· RMS

The two landowner submissions relate to Map Change 18 – these submissions are summarised and discussed below, copies will also be available in the Councillors Room prior to the meeting. The RMS submission noted that they had no objections to the PP.

Map Change 18 - Lot 159 Highview Drive, Dolphin Point

The two submissions from landowners related to the same issue, the proposal to rezone Lot 159 DP 755972 (Portion 159) Highway Drive, Dolphin Point from E3 Environmental Management to E2 Environmental Conservation to ensure consistency with the previous Shoalhaven LEP 1985 zone of Environment Protection 7(f2) (Coastal Reservation) and to ensure Clause 5.1 Relevant Acquisition Authority of the LEP clearly applies (with the Minister administering the Environmental Planning and Assessment Act 1979 as acquisition authority).

Summary of submissions

- There are more lots zoned E3 Environmental Management in this location than there are E2 Environmental Conservation and as such there is better argument for consistency to zone the E2 lots to E3 and not the other way around.

- If DP&E were interested in acquiring these lots it would not have allowed substantial development to occur on them.

- Map Change 18 should be removed from the PP i.e. subject lot retain its E3 zone.

- The other E2 zoned lots in the locality should be rezoned to E3.

Staff comment:

Whilst there is merit in the proposed rezoning, there is also no urgency for the rezoning to occur now. DP&E has indicated that resolving the issue of acquisition may take some time. In order not to slow down this PP, there are no concerns with removing Map Change 18 from the PP and revisiting the issue through a later housekeeping amendment PP.

Conclusion - Proposed changes to PP

It is recommended that the PP be adopted as exhibited, with a minor amended to remove proposed Map Change 18 as discussed above. This matter will be reconsidered in a future housekeeping amendment PP.

Financial Implications

The PP is being resourced within the existing Strategic Planning budget.

Development Committee – Tuesday 14 November 2017

Page 59

DE17.81 Proposed Submission - Issues Paper: Review of Environmental Planning and Assessment Regulation 2000

HPERM Ref: D17/350165

Group: Planning Environment & Development Group

Section: Development Services

Attachments: 1. Proposed Submission Issues - EP&A Regulation Review ⇩

Purpose / Summary

The purpose of this report is to advise Council of the release by the NSW Department of Planning & Environment (DP&E) of on Issues Paper dealing with the Review of the Environmental Planning and Assessment Regulation 2000 and obtain endorsement to make a submission based on the issues outlined in Attachment 1.

Recommendation (Item to be determined under delegated authority)

That Council make a submission to the NSW Department of Planning and Environment on Review of the Environmental Planning and Assessment Regulation 2000 Issues Paper based on the issues outlined in Attachment 1.

Options

1. Adopt the resolution and make a submission based on Attachment 1 to the NSW Department of Planning and Environment (DP&E).

Implications: This is the preferred option as it enables Council the opportunity to identify the key areas of the Regulation that could benefit from review, and make suggestions for updating and improving the functionality and efficiency of the Regulation.

2. Make changes to the issues outlined in Attachment 1 and submit to DP&E for consideration.

Implications: This option will still enable Council the opportunity to identify areas of the Regulation that could benefit from review; however, the implications of any possible changes are unknown and may require closer consideration or refinement.

3. Not make a submission.

Implications: This action is not recommended as it will mean that Council will not provide any input or suggestions into the preliminary review of the Regulation and the opportunity to identify issues for consideration or resolution will be missed.

Background

The NSW Environmental Planning and Assessment Act 1979 (EP&A Act) is the primary piece of planning legislation in NSW. It first came into effect on 1 September 1980 and has been in force for almost four decades. The EP&A Act is supported by the NSW Environmental Planning and Assessment Regulation 2000 (the Regulation), which is the primary subordinate legislation containing key operational provisions for the NSW planning system.

As part of the NSW Government’s ongoing planning reforms, DP&E commenced consultation in 2016 with the aim of improving the EP&A Act, to which Council made a detailed submission. As a result of this consultation, a number of amendments have now been proposed, including:

· Enhancing community participation: establishing a new part of the Act that consolidates community consultation provisions, and requiring decision-makers to give reasons for their decisions

· Completing the strategic planning framework: through local strategic planning statements, up to date Local Environment Plans and more consistent and workable Development Control Plans

· Development pathways: improvements to the various development pathways and preventing the misuse of modifications

· State significant development: better environmental impact assessment and more effective conditions of consent

· Clearer building provisions: simplified and consolidated building provisions, allowing conditions on construction certificates and ensuring consistency with development approvals

· Elevating the role of design: through a new design object in the act, and a Design-Led Planning Strategy

· Improving enforcement: with the introduction of enforceable undertakings in compliance actions.

The NSW Environmental Planning and Assessment Amendment Bill 2017 was introduced into NSW Parliament in October 2017 and will be considered again when Parliament sits in mid-November.

The review of the Regulation follows on from the review of the EP&A Act. As a first step, DP&E have prepared an Issues Paper outlining the key operational provisions of the Regulation and are seeking feedback from stakeholders with regard to known issues and suggestions for updating and improving the functionality of existing provisions.

The Issues Paper is currently on exhibition for eight (8) weeks until 24^th November 2017 and can be viewed at:

http://www.planning.nsw.gov.au/Policy-and-Legislation/Under-review-and-new-Policy-and-Legislation/EPA-Regulation-review

DP&E is seeking feedback on the current Regulation to identify specific areas that are considered to be outdated, overly complex, or inefficient.

Proposed Submission

The Issues Paper was circulated internally to all Groups of Council for comment. The feedback received has identified a number of key areas where the Regulation may be improved, as detailed in Attachment 1.

A number of issues are proposed to be raised and covered within Council’s submission, including:

· Proposed technology updates

· Proposed changes to public exhibition requirements

· Standardisation of conditions of consent

· Development contributions

· Planning certificates

Further detail on these issues is contained in Attachment 1.

Community Engagement

The Issues Paper is currently open for public comment until 24 November 2017.

The feedback received during this period will be used to inform the preparation of a draft Regulation, which is intended to be released for formal public consultation in 2018. As such there will be a further opportunity to review and comment on the detail of the proposed changes to the Regulation.

Policy Implications

There are no immediate policy implications for Council in providing feedback and making a submission on the Issues Paper. However, depending on the outcome of the proposed changes in the draft Regulation review, the potential policy implications for Council could be significant and wide ranging. The policy implications will become clearer once DP&E releases the draft Regulation for review in 2018.

Financial Implications

There are no immediate financial implications for Council in making a submission on the issues paper for the Regulation review, this is being managed within the Strategic Planning budget.

Risk Implications

Should Council resolve not to make a submission on the preliminary consultation phase of the Regulation review, there is a risk that some of the issues outlined in Attachment 1 may be overlooked and subsequently excluded from the draft Regulation when it released for formal public consultation.

Development Committee – Tuesday 14 November 2017

Page 69

DE17.82 Woncor Avenue Nowra Hill - Proponent Initiated Planning Proposal

HPERM Ref: D17/340215

Group: Planning Environment & Development Group

Section: Strategic Planning

Attachments: 1. Proponent's Concept Plan for a Highway Service Centre ⇩

2. Preliminary Advice from Roads and Maritime Services ⇩

Purpose / Summary

Detail a proponent initiated Planning Proposal (PP) that has been received to permit a proposed highway service centre on a site adjacent to the Princes Highway at Nowra Hill and obtain direction in this regard.

Recommendation (Item to be determined under delegated authority)

That:

1. Council resolve not to proceed with a Planning Proposal to permit a highway service centre at Lot 2 DP 1154597, Woncor Avenue Nowra Hill, for the following reasons:

a. The proposal is not the result of any local, regional or state strategic plan or study; and

b. The proposal will draw commercial activity and investment away from existing employment lands precincts and is inconsistent with the Nowra-Bomaderry Structure Plan; and

c. The proponent has not satisfactorily demonstrated the need for the facility in this location; and

d. The proposal is inconsistent with part 4 of Council’s Planning Proposal (Rezoning) Guidelines and would set an adverse precedent if supported; and

e. The RMS has raised a number of significant concerns including that this proposal is not compatible with the grade-separated interchange required for the Shaolin Temple tourist development; and that the proposal would result in significant delays and road safety issues, particularly for the right turn out of BTU Road.

2. Council advise the proponent and those who were notified of the proposal of this resolution.

Options

1. Resolve not to proceed with the PP.

Implications: The PP would not be supported by Council. This is the preferred option and would be consistent with the Nowra-Bomaderry Structure Plan (NBSP) and other relevant considerations that are detailed in the report.

The proponent would however have the option of pursuing a Pre-Gateway review and having the decision reviewed by the Joint Regional Planning Proposal (JRPP). Should this occur Council Staff would detail Councils reasons for rejection of the proposal before the JRPP if this were to occur.

2. Resolve to proceed with the PP as submitted.

Implications: The PP would be sent to the NSW Department of Planning & Environment (DP&E) with a request for a Gateway determination. If DP&E were to support the proposal, Council would be committed to undertake the PP process and may find it difficult to abandon the proposal at a later stage. The ultimate outcome could be an inappropriate development on the site that would divert economic activity and investment from other centres. This option is not recommended.

3. Resolve to proceed with the PP with amendments.

Implications: Council staff have considered possible amendments to the proposal to achieve a satisfactory planning outcome. It has been concluded that the site is fundamentally unsuitable for commercial development because of its isolation from existing commercial centres and the complication of the BTU Road and Forest Road intersections with the Princes Highway. Consequently, no alternative version of the PP is recommended.

Background

The Site

The subject land to which this proponent initiated PP relates is Lot 2 DP1154597 Woncor Avenue, Nowra Hill. The land is located adjacent to the Princes Highway between the intersections of BTU Road and Forest Road with the Princes Highway. The subject land has an overall area of 7.2 hectares, is largely cleared and maintained as pasture. There are no improvements on the site.

Woncor Avenue is essentially part of a large lot rural residential/lifestyle subdivision that contains existing dwellings and some limited other uses (e.g. vet clinic, boarding kennels etc.).

Maps showing the subject land and its location are provided below:

Subject Land – Location

Subject Land – Lot 2 DP1154597

The Proponent’s PP

The proponent’s PP was submitted by SET Consultants Pty Ltd (on behalf of owner Recep Haliloglu) and seeks to apply an additional permitted uses provision to the subject land. The effect of this provision would mean that a ‘highway service centre’ could potentially be approved on the subject land without the need for a change in the land use zone.

The proponent’s submission includes a draft PP, economic assessment report, traffic assessment report and a conceptual development plan for a highway service centre on the subject land.

The proponent’s justification for the PP relates to the needs of heavy vehicle drivers travelling along the Princes Highway. The documentation suggests that permitting a highway service centre on this site would allow the establishment of private infrastructure that would provide rest facilities for road users in accordance with NSW Roads & Maritime Service (RMS) requirement. It has been suggested that an additional permitted use provision is the only way of enabling the requested use given that ‘highway service centres’ are a prohibited use in all zones in Shoalhaven LEP 2014

The proponents PP is available for viewing on Councils website at:

https://shoalhaven.nsw.gov.au/Planning-amp-Building/Strategic-planning/Planning-Proposals

Hard copies of the proponent’s documentation will be available for review in the Councillors Room prior to the meeting and the preliminary concept plan from the proponents PP is provided as Attachment 1.

Strategic Planning Overview

The following is an overview of relevant strategic planning documents that are relevant to the proposal.

· Shoalhaven LEP 2014

The subject land is currently zoned RU2 Rural Landscape under Shoalhaven LEP2014. The objectives of this zone relate to encouraging primary industry production, maintaining the rural landscape character of the land and providing for compatible land uses, including extensive agriculture.

Under the RU2 zone, ‘highway service centres’ are a prohibited land use. It is noted that during the construction of the Shoalhaven LEP 2014 that Council consciously did not make this use permissible in any zone. It was noted at the time that if a use of this nature could be justified in a particular area or location then it would be considered on its merits.

· Nowra-Bomaderry Structure Plan (NBSP)

The NBSP was prepared by Council and endorsed by the NSW Government in 2008. The subject land is located within the NBSP area.

The NBSP aims to facilitate sustainable living, economic vitality and community wellbeing. It identifies areas for commercial and industrial expansion as shown in Maps 4.1 and 4.2 below.

The Shoalhaven Growth Management Strategy (GMS) prepared by Council and finalised in 2014 reflects the NBSP in relation to the subject land. Both the GMS and NBSP did not identify any need for additional commercial uses in this location.

The former Roads & Traffic Authority (RTA) completed a strategic study of vehicle rest areas in 2010. This study considered the Princes Highway from Bulli to the Victorian border. It found a deficiency in rest areas southbound between Nowra and Batemans Bay and a northbound between Batemans Bay and Wollongong. It proposed an upgrade of the Jerrawangla and Bewong rest areas to address these deficiencies.

Since the publication of that study, upgrade work has also been undertaken for the service station on the Princes Highway, Tomerong (The Log Cabin). These works provide additional truck parking and north and south bound access to the site from the Princes Highway.

It is also noted that the RMS has recently commenced work on a Network Strategy for Nowra-Bomaderry which will consider amongst other things key road networks in the area.

· Planning Proposal (Rezoning) Guidelines

These guidelines detail the circumstances when a PP is likely to be supported by Council and provide a range of detail on the PP process. The guidelines were adopted by Council in January 2016 and note that Council is likely to support a PP in the following circumstances:

· Proposed amendment is supported by a Council or State Government strategy of plan.

· Clear zoning anomaly exists on site

· Proposed amendment is considered to be minor in nature and has been sufficiently justified to Council.

The guidelines also note that proponents should have pre-lodgement dialogue with Council staff before formally lodging a PP.

The guidelines make it clear that PP’s that are not supported by a strategy or plan and are considered speculative will generally not be supported by Council.

Pre-lodgement engagement with the proponent in regard to this matter took place during 2016 and Council staff advised of a range of concerns including inconsistency with strategy.

NSW Roads & Maritime Services (RMS) Comments

Given the nature of the PP, the location adjacent to the Princes Highway, potential impact on the highway, comment was sought from RMS on the proposal.

It is also noted in the proponents PP documentation that they also discussed the proposal with the RMS and they advised that: “notwithstanding the provision of rest areas at Bewong and Mount Ousley, they would generally support the provision of heavy vehicle facilities at a new highway service centre”.

The advice from the RMS dated 18 October 2017 is provided as Attachment 2. The advice raises a number of concerns, as summarised below.

· The footprint of the required grade-separated interchange (for the Shaolin Temple tourist development) at Forest Road could have significant impacts on the subject property, beyond affecting the proposed direct off ramp.

· RMS is concerned with the suitability of the junction of the Princes Highway and BTU Road to cater for the increased demands associated with this development. RMS is concerned the traffic volumes would result in significant delays, particularly for the right turn out of the BTU Road and that these delays could lead to road safety issues.

· Concerns about a number of assumptions used in the proponent’s traffic modelling.

· Concerns about the constructability of the required direct off ramp or left turn slip lane.

Assessment of Proponent’s PP

The NSW Government’s Guide to Preparing Planning Proposals provides an assessment framework for PPs. This framework requires the planning authority (Council) to consider a number of questions in determining the merit of a PP. These are considered below:

Q1. Is the Planning Proposal a result of any strategic study or report?

The proposal is not the result of a strategic study or report. Council’s GMS and the NBSP do not support the provision of additional commercial or industrial floor space in this location. The strategic planning undertaken to date by RMS has not identified this site as having particular merit or need for providing a service centre/rest area for heavy vehicles. Thus there appears to be no basis for the proposal in any strategic plan or report.

Q2. Is the Planning Proposal the best means of achieving the objectives or intended outcomes, or is there a better way?

The proponent’s submission seeks to justify the PP and the overall proposed use by arguing that it meets a broader need for improved amenities for heavy vehicle drivers passing through the City.

However, given the number of existing facilities located on the Highway in close proximity to this site, this objective can be achieved through existing service station sites and rest areas without drawing commercial activity away from existing centres.

Q3. Is the Planning Proposal consistent with the objectives and actions of the applicable regional, sub-regional or district plan or strategy (including any exhibited draft plans or strategies)?

The Illawarra-Shoalhaven Regional Plan (ISRP) is the relevant regional strategy. The ISRP does not identify the Princes Highway as a key freight route, nor does it recommend a focus on this type of development. Rather, it envisages the focusing of development around existing centres, which is not the case for this proposal. There is no relevant sub-regional or district plan for this area.

Q4. Is the Planning Proposal consistent with a council’s local strategy or other local strategic plan?

Council’s GMS and the NBSP do not support the provision of commercial or industrial floor space in this location. As such the proposal is considered to be inconsistent with existing local strategies.

Q5. Is the Planning Proposal consistent with applicable State Environmental Planning Policies?

The provisions of a number of State Environmental Planning Policies would need to be investigated in detail as a part of the specialist studies stage of the proposal if supported. However given that the proposal is inconsistent with the GMS and the NBSP, it will be difficult to justify/support.

Q6. Is the Planning Proposal consistent with applicable Ministerial Directions?

The PP is considered to be inconsistent with Ministerial Direction 1.1 Business and Industrial Zones. This direction requires that “proposed new employment areas are in accordance with a strategy that is approved by the Director-General of the NSW Department of Planning”. The proposed additional permitted use will create an employment area that is not identified in any strategy approved by Council or the NSW Department of Planning & Environment.

Q7. Is there any likelihood that critical habitat or threatened species, populations or ecological communities, or their habitats, will be adversely affected as a result of the proposal?

This would need to be investigated in detail as a part of the specialist studies stage of the proposal if supported. However given that the proposal is inconsistent with the GMS and the NBSP, it will be difficult to justify/support.

Q8. Are there any other likely environmental effects as a result of the Planning Proposal and how are they proposed to be managed?

This would need to be investigated as a part of the specialist studies stage of the proposal. It is considered however, that the proposal should not proceed to this stage because it is fundamentally inconsistent with the GMS and the NBSP.

Q9. Has the Planning Proposal adequately addressed any social and economic effects?

The proponent has provided an Economic Impact Assessment (EIA) as part of their submission. This assessment concluded that there is a need for the proposal for four reasons, which are discussed and commented on in the table below.

Proponent’s EIA Conclusion	Comment
There are no similar high service centres meeting RMS guidelines along the Princes Highway South of Sydney to Eastern Melbourne.	There is no plan or strategy that identifies a need for this type of facility to combat driver fatigue. The Princes Highway is not the principle freight route from Sydney to Melbourne. The 2010 RMS review of the Princes Highway did not find a need for this type of service centre for this route. If this type of facility is required for the Princes Highway, it should follow a strategic study of the whole length of the Highway to determine the optimum locations along its total length. In the absence of such a study, there is no basis to conclude that there is a broader need for this type of facility on this route.
All of South Nowra’s Princes Highway service stations are located on the southbound side of the highway and the proposed highway service centre will be safely accessible by northbound and southbound travellers.	There is a service station located at Tomerong which is on the western (northbound) side of the Highway. This service station is safely accessible by northbound and southbound travellers and has bowsers and parking for B-doubles. It also has provision for a food and drink premises and convenience store.
The development will generate net community benefits through its contribution to road safety for the motoring public and especially heavy vehicle drivers.	There is no plan or strategy that identifies a need for this type of facility to combat driver fatigue. The Princes Highway is not the principle freight route from Sydney to Melbourne. The 2010 RMS review of the Princes Highway did not find a need for this type of service centre for this route. The supposed community benefit will only result if there is a need and this request does not demonstrate that such a need exists. The RMS in their comments have also noted concerns regarding potential impact on functioning of the Prince Highway/BTU Road intersection.
Its potential economic impacts will not threaten the viability or level of service presently enjoyed by residents and visitors but it will enhance that level of service by providing a facility not available in the region. Any potential impacts are likely to be short term and would be made good through the provision of a new and multifunctional facility.	It is unclear how the development of a multifunction facility will “make good” on the potential for the development to pull economic activity and investment from established commercial centres. The proponent needs to demonstrate that there is a regional need for this type of facility on the Highway that cannot be met by existing centres. Such a need has not been identified by RMS or the DP&E in any strategic study or plan. If there is not a regional need for through traffic then the patrons of this facility will be drawn from existing commercial centres, which is contrary to the ISRP, NBSP and GMS.

In conclusion, in terms of economic impacts, the proposal is likely to result in the diversion of commercial activity and investment to this site from existing centres, and is unjustified. There is no established need for this proposal in any current strategic planning document from Council, DP&E or the RMS.

Q10. Is there adequate public infrastructure for the planning proposal?

This would need to be investigated as a part of the specialist studies stage of the proposal should it proceed. It is considered however, that the proposal should not proceed to this stage because it is inconsistent with the GMS and the NBSP. It has been noted that the site is awkwardly located at an intersection of the Princes Highway with BTU Road and Forest Road. These intersections are proposed to be grade-separated in the long term and it is considered that this outcome could be hindered or complicated by the proposal.

Q11. What are the views of state and Commonwealth public authorities consulted in accordance with the gateway determination?

Council has undertaken preliminary engagement with RMS. Their advice is provided as Attachment 2. This advice raised a number of concerns and technical matters for consideration if the proposal were to progress to Gateway. No commentary was provided in support of the proponent’s claim that this development is needed to service the highway on a regional level.

Conclusion

Consistent with the commentary provided in the report it recommended that Council not support or resolve to proceed with the PP to permit a highway service centre in this location given:

· It has not resulted from any local, regional or state strategic plan or study;

· Will draw commercial activity and investment away from existing employment lands precincts and is inconsistent with the NBSP;

· Is inconsistent with Council’s Planning Proposal (Rezoning) Guidelines and would set an adverse precedent if supported;

· RMS has raised a number of significant concerns; and

· The proponent has not satisfactorily demonstrated the need for the facility in this location.

Community Engagement

Upon receipt of the proponent’s PP the surrounding landowners and the Nowra Business Chamber were notified in writing. At the time of writing, Council was awaiting feedback from the Chamber. Should a submission be received prior to the Council meeting it will be provided to Councillors.

One submission was received from a local truck business operator supporting the proposal. It is considered however, that the increased flexibility that would be provided to local businesses does not warrant the impacts the proposal would have on existing commercial centres nor does it justify the proposal’s inconsistencies with the GMS and NBSP.

Policy Implications

The PP is inconsistent with the adopted NBSP and the GMS. Council’s adopted Planning Proposal (Rezoning) Guidelines provide that Council will generally not support significant proposals that are inconsistent with these plans. If Council were to support this PP it could further undermine Council’s strategic direction for Nowra-Bomaderry, and create an adverse precedent that would change the expectations of other rural landowners in the City.

It is recommended that Council’s current policy position expressed in these plans and guidelines be upheld and PP not be supported.

Financial Implications

If Council was to support the PP, it would be on a 100% cost recovery basis, to be funded by the proponent. Infrastructure requirements for the proposal could result in an increased future cost for Council and/or the RMS depending on the implications of the proposal for nearby roads.

Development Committee – Tuesday 14 November 2017

Page 83

DE17.83 Applications (multiple) to Modify Development Consents – Release of Easement for Carparking over Lot 1 DP 785956 & affecting Lot 4 DP785956 Island Point Road, St Georges Basin

DA. No: DS17/1147

HPERM Ref: D17/267465

Group: Planning Environment & Development Group

Section: Development Services

DA. No’s: DS16/1375, DS16/1499, DS16/1500, DS16/1501, DS17/1147

Description of Development: Modifications to consents to enable release of an easement for car parking purposes associated with the Cooee Hotel.

Owner: Bovalu Pty Limited

Applicant: John Wilmott, “Your Urban Design”

Notification Dates: 20 September – 5 October 2017

No. of Submissions: Nil

Purpose / Reason for consideration by Council

The 32.2% variation to Shoalhaven Development Control Plan 2014 (SDCP14), Chapter G21 exceeds the delegated authority of Council staff.

Recommendation (Item to be determined under delegated authority)

That the Development Committee

1. Support the 32.2% variation to the car parking requirements; and

2. Refer the modification applications back to staff for determination.

Options

1. Recommended: approve the 32.2% variation to the car parking requirements for the hotel (characterised as Pub & Registered Clubs under the Shoalhaven Local Environmental Plan 2014 (SLEP14)). This is a variation to the requirements of section 5.1 Car Parking Schedule of SDCP14, Chapter G21 Car Parking & Traffic of Council’s SDCP14.

Implications: Modifications to the affected development approvals could be determined, which will permit the release of the ‘Easement for Car parking’ on Lot 4 DP 785956. In doing so, the applications may be perceived as a precedent for significant variations to the car parking schedule in the SDCP14. Accordingly, for licensed premises, a case must be made having regard to the particular circumstances but also appreciating that over the passage of time, the way that customers patronise licenced premise has changed as a result of changes to liquor laws and drink driving campaigns.

2. Not approve the variation to the car parking requirements.

Implications: The development of Lot 4 could still proceed however, the easement would be retained on the land. This would mean that the proposed subdivision development that triggered the modification applications for the Cooee Hotel would require some adjustment.

Background

Subject Land

Figure 1: Location Map Cooee Hotel (RATU over adjoining land)

Figure 2: Subject land with location of easement

No. 124 Island Point Rd, St Georges Basin, Lot 1 DP 785956 and ‘Easement for Car parking’ on adjacent Lot 4 DP 785956

Proposed Development

The applicant is seeking to remove the ‘Easement for Car parking’ on Lot 4 DP 785956 that benefits the Cooee Hotel, which is located on Lot 1 DP 785756 as shown in Figure 2 above. Chapter N23 St Georges Basin Village Centre, of the SDCP14 requires alternative arrangements to be made (see extract from the SDCP14 below). As there are a number of approvals that refer to car parking and / or the easement, these also require modification. The modifications must be resolved (i.e. approved) before the easement can be released by Council:

From the SDCP14:

“P6 Onsite car parking is to be provided to meet the needs of future development.

A6.5 The easement for car parking over Lot 4 DP785956 shall remain in favour of the Hotel development on Lot 1 DP 785956 (124 Island Point Rd) unless a satisfactory alternative is approved or the development consent condition for the Hotel is amended by Council.”

The affected approvals and conditions are detailed in the following table 1 below.

Table 1 Affected Development Approvals for the Cooee Hotel

Current Application	Existing consents (BA or DA)	Development	Condition/s to be varied/deleted	Current proposal Modification sought
DS16/1375 (30/8/16)	DA85/0252	Single Storey Tavern with 1^st Floor Manager’s Residence	Condition no. 8 – “In accordance with Council’s recently adopted carparking code for taverns which requires 1 space per 3.5sqm of licenced floor area provision shall be made for 82 car parking spaces. The carpark and driveway areas shall be linemarked in accordance with Council’s Car Parking code. Council will allow 29 spaces to be provided as a grass overflow on adjoin land to the north. Details as shown in the attached sketch to be included with the Building Application. The “attached sketch” denoted 29 spaces being provided on adjoining land – in the area of the RATU.	Modify condition to reflect current car parking arrangements, i.e. 39 car parking spaces and 1 car parking space dedicated for use of Bottleshop customers
DS16/1500 (16/11/16)	BA89/2216	Brick/Fibro Dwelling	Condition 15 – “The applicant is to relocate five (5) spaces for carparking to the adjoining property and cause the necessary adjustments to be made to the s88B of the conveyancing Act particulars to allow such carparking spaces t be used by the tavern. Such amended subdivision is to be submitted prior to occupation of the tavern.”	Delete condition
DS16/1499 (16/11/16)	DA90/2031 amended 18/2/1991	Cool Room & Bottle Shop Extension	Condition 5 – “As the proposal will result in the loss of two (2) carparking spaces, provision shall be made at the rear of the land for an additional two (2) spaces. The location of these spaces shall be shown on the plans submitted with the Building Application for the approval of the City Planner.”	Delete condition
DS16/1501 (16/11/16)	BA91/0124	Commercial Extensions (Extend Bottleshop)	Condition 4 “As the proposal will result in a loss of two (2) carparking spaces, provision shall be made at the rear of the land for an additional two (2) spaces. Condition 5 “an overflow carparking area shall be provided as indicted on the approved plan.	Delete conditions
DS17/1147 (21/4/17)	DA04/1283 ((DS04/1341))	Extensions to Existing Tavern Verandah	Condition 11 “In accordance with Council’s Development Control Plan DCP18 Car Parking Code a total of seventy (70) car parking spaces shall be provided i.e. 41 onsite and a further 29 spaces on the grass overflow area at the rear. Two spaces shall be dedicated and appropriately marked for disabled parking.”	Modify condition to reflect current car parking arrangements, i.e. 39 car parking spaces and 1 car parking space dedicated for use of Bottleshop customers

Car parking

Current car parking provisions for the Cooee Hotel, 124 Island Point Rd, St Georges Basin, Lot 1 DP 785956 consist of:

a) 39 car parking spaces and 1 additional car parking space identified for use of bottleshop patrons located on the hotel site (lot 1); and

b) an ‘Easement for Car parking’, 21m wide over Lot 4 DP 785956 - benefitting Lot 1 DP 785956 (hotel).

Figure 3: Existing car parking spaces at the Cooee Hotel (Lot 1)

The car parking space that has been ‘crossed out’ cannot be used for car parking (site inspection 3/3/17). The adjoining car parking space is for the use of bottleshop patrons.

History

The reason for the request to release the car parking restriction is that another development proposal is affected by the easement.

The applicant has also lodged an application (DS15/1515) to modify the development consent for a subdivision, referenced number - SF9847, which was originally approved on 14 August 2007, and has already been modified multiple times:

1. DS09/1478 – 29 October 2010;

2. DS08/1543 – 15 December 2008;

3. DS08/1438 – 25 September 2008;

4. DS08/1314 - 22 July 2008; and

5. DS07/1414 – 12 October 2007 & 12 November 2007.

SF9847 relates to Lots 68 & 29 The Old Wool Road and Lot 4 DP785956 Island Point Road St Georges Basin, which approved the subdivision of these 3 lots to create 11 lots.

DS09/1478, the currently approved plan (reference:4006V9) dated August 2010 is reproduced below.

Figure 4 - Current approved plan of subdivision

DS15/1515 (which amends the subdivision shown above)

The modification DS15/1515 to SF9847 was lodged on 23 December 2015, with additional information submitted to Council on 24 August 2016 and the multiple s96 applications lodged over the adjoining Cooee Hotel land, to facilitate the removal of the ratu.

For the 11 lot subdivision to proceed (refer to Figure 5), the applicant has requested the removal of the restriction for parking over the ‘Cooee land’, and submitted the related modification applications to the Cooee Hotel consents.

Figure 5 overleaf, is the ‘Concept plan of proposed subdivision modification of development consent’ by ESG dated, 1 December 2016. The application for modification is changing the subdivision layout. However, the open space as originally nominated is retained and the residential lots are recast in an alternative design. The proposal remains a subdivision of land albeit it is now for 11 lots. Figures 4 and 5 respectively illustrate the current approved layout and the proposed layout.

This modification application is currently under assessment. If the car parking restriction is not removed from the land, in favour of the Cooee Hotel, the subdivision as submitted will not be able to be supported in its current design. Council is still to complete its assessment of the subdivision application however, this is contingent on the resolution of the other modification applications.

Figure 5 Proposed (DS15/1515) Plan of Subdivision

Issues

Car Parking

Car parking for the hotel does not currently comply with existing approvals or the provisions of 5.1 Car Parking Schedule, Pubs & Licensed Clubs of SDCP14 Chapter G21 Car Parking & Traffic. The table below details what is required and what has been provided. A total of 40 spaces is proposed. Fifty nine (59) are required to achieve strict numerical compliance.

Table 2 - Car parking requirements in accordance with Shoalhaven development Control Plan 2014 (SDCP14) Chapter G21 Car Parking and Traffic

5.1 Car Parking Schedule

Land Use Type	Standard	Assessment for Cooee Hotel
*Pubs and Registered Clubs*	1 space per 5m² of licensed floor area, i.e. bar, lounge, beer garden and games room. 1 space per 40m² gross floor area of office space. Function rooms/restaurant or cafe - 1 space per 24m² gross floor area within CBD areas or 1 space per 6.5m² gross dining area outside CBD area. Dance areas and other recreation areas will be considered separately. *Note:* Alternatively, car parking requirements may be determined by Council following the completion and submission of a parking impact and needs study by an independent suitably qualified professional. Comparisons must be drawn with other similar clubs/hotels in Similar locations. Depending on individual circumstances, Council may accept some grassed overflow areas as overflow Parking. Provision should be made for emergency vehicles (doctors/ambulance) to gain ready access to the club.	The licensed floor area is 263m². Car parking space requirements are calculated at 1 space per 5m² of floor space this equates to 52 car parking spaces. The office space has an area of 17m². Car parking space requirements are calculated at 1 space per 40m². No additional spaces are required for this use. The restaurant and office area is 65m. Car parking space requirements are calculated at 1 space per 24m² of floor space this equates to 3 car parking spaces.
Lot 1 DP 785956 is within the area subject to Chapter N23 St Georges Basin, Village Centre of the SDCP14, as such, the car parking requirements for a CBD are applied.
Squash and tennis court Bowling Alley	3 spaces per court. 3 spaces per lane.	A single full sized billiard table occupies 22m² of floor area. The car parking requirement for this component on similar land uses. Therefore, 3 car parking spaces area required.
Total car parking space requirement		59

Applicant’s Submission

The applicant has made the observation that “on not less than 12 occasions over the past twelve months and the hotel carpark has been 50% full.”

Discussion

The site

The ‘overflow’ car parking within the ‘Easement for Car parking’ on Lot 4 has not been formally constructed with the area used in an ad hoc manner. The applicant has provided aerial photographs dating to 2004 that show:

 Demand for parking was such (low) that the overflow car parking area was not constructed after this date;

 The occupation of the hotel car parking is consistent with the applicant’s observations, that is, “on not less than 12 occasions over the past twelve months and the hotel carpark has been 50% full”.

Aerial photographs (D17/268837, D17/268849, D17/268852 & D17/268855) dating from May 2004 to March 2016 indicate that the ‘overflow car parking’ has not been constructed within the ‘Easement for Car parking’ on Lot 4.

Use of the site

The location of the hotel is within walking distance for many patrons. Several observations and inspections were made of the site over the duration of the assessment. Six patrons were observed arriving on foot during a site inspection carried out by the assessing officer on 3 March 2017.

Since issue of the development consents for the Cooee Hotel, as identified in Table 1 earlier, the supermarket and associated shops and car parking area (DA07/1059) have been constructed on adjacent lots to the west.

The supermarket/shopping centre car parking area now provides additional car parking for the St Georges Basin business area. Shoppers are able to park in the car park and frequent the shops in the IGA complex but also access other shops / facilities nearby.

A search of Council’s Merit system has not revealed any complaints about car parking associated with the hotel. The Council Ranger responsible for this area for the past 18 months has advised that he has not dealt with any car parking related issues at or in within the public roads with frontage to the hotel site.

Since changes to liquor laws and drink driving campaigns, it is generally accepted that the car parking for licence premises no longer requires the same provision as that required historically. Many licenced premises also provide a curtesy bus to address to ensure that patrons have transport to and from the premises.

The Cooee Hotel has such a bus. Having regard to these matters and that this particular small local hotel serves the immediate community, it is not unreasonable to consider a reduction in the number of car parking spaces in this context. Council has similarly accepted reduced parking for other licenced premises observing changes to driving habits in light of drink driving campaigns and changes to social behaviour.

With regard to car parking provision and Chapter G21, the reduction in car parking does not frustrate the objectives of the SDCP14 in that there will be adequate provision for the hotel having regard to the context of the development and use of the hotel.

Policy Implications

There are no negative policy implications. The SDCP14 acknowledges that the car parking arrangement may be reconsidered by virtue of the provisions contained in Chapter 23

“…The easement for car parking over Lot 4 DP785956 shall remain in favour of the Hotel development on Lot 1 DP 785956 (124 Island Point Rd) unless a satisfactory alternative is approved or the development consent condition for the Hotel is amended by Council.”

However, in doing so the applicant has formally sought a variation to the car parking provisions contained in Chapter 18, which requires a certain number of car parking spaces.

Consultation and Community Engagement:

The application was notified from 20 September – 5 October 2017.

No submissions were made. Importantly, the notification made reference to all the affected consents and specifically, the car parking easement. Council also provided an information sheet and uploaded this onto DA Tracking.

Financial Implications:

No financial implications for Council unless the matter is the subject of an appeal before the Land and Environment Court of NSW.

Legal Implications

There are no legal implications for Council unless the decision is appealed.

Summary and Conclusion

The growth of the St Georges Basin CBD area has reduced the reliance on car parking within the Cooee Hotel site. The demand for on-site car parking by hotel patrons is further alleviated by the hotel curtesy bus serving the local residents in response to changes to drinking / patronage habits as a result of stronger enforcement of liquor laws and active drink driving campaigns.

The demand for on-site parking at the Cooee Hotel has not resulted in a car parking deficiency in the locality nor required the development of the ‘overflow’ car parking on Lot 4. Accordingly, the variation to 5.1 Car Parking Schedule, Pubs & Licensed Clubs of SDCP14 Chapter G21 Car Parking & Traffic is supported.

Development Committee – Tuesday 14 November 2017

Page 94

DE17.84 Development Application - 405 Princes Highway, Bomaderry – Lot 14 DP 20626

DA. No: DA17/1780/4

HPERM Ref: D17/335451

Group: Planning Environment & Development Group

Section: Building & Compliance Services

Attachments: 1. Plans - Amended Site Plan - Elevations - 405 Princes Highway Bomaderry - Lot 14 DP 20626 ⇩

2. 79C Assessment Checklist (under separate cover) ⇨

3. Development Consent ⇩

Description of Development: Proposed detached shed and relocation of two shipping containers

Owner: A & V Lloyd

Applicant: A Lloyd

Notification Dates: 06 July 2017 to 21 July 2017

No. of Submissions: Nil in objection

Nil in support

Purpose / Reason for consideration by Council

The applicant and land owner is a staff member working in the Planning, Environment and Development Department. In accordance with Council’s adopted policy for Dealing with Development Applications Lodged by Council Staff or Councillors (POL16/235), where the applicant or land owner in respect of a development application (DA) is a Council staff member and where the development application seeks a substantive variation to any performance-based Development Control Plan (DCP) or Council Policy, the DA is to be reported to Council for determination.

Recommendation

That the Development Committee approve the application subject to the conditions contained in this report.

Options

1. Approve the application as recommended.

Implications: Nil.

2. Resolve not to support the proposed variations.

Implications: This would result in the applicant needing to reconsider the design and location of the shed or possibly not proceeding with the development.

Location Map

Figure 1:- Aerial view of the subject site.

Background

Proposed Development

The application is for the construction a new detached shed and the relocation of two existing shipping containers on the site. The shed will be located approximately 40m from the front boundary and 1.5m from the northern boundary (refer site plan at attachment 1).

The shed is 12m wide x 8m deep and has a wall height of 3.5m. The shed consists of 3 parking bays and the applicant has advised it will be used for the storage of a caravan, boat and car. The shed is to be constructed from pre-coloured steel (colorbond) and it will be woodland grey in colour (walls and roof).

Subject Land

The subject land is identified as Lot 14, DP20626, No.405 Princes Highway, Bomaderry. The land is located west of the Anglican College (Refer Figure 1).

The land is irregular in shape with an eastern frontage of 44.275m to Princes Highway and northern and southern depths of 108.465m and 104.111m respectively. The western boundary to Bomaderry Creek is 46.045m. The land has an area of 4,357m2.

Site & Context

The subject site is located within residential R2 zone under the provisions of Shoalhaven Local Environmental Plan 2014 (SLEP-2014) (Refer Figure 2).

Surrounding allotments on the northern and southern side of the subject site are also zoned R2. These neighbouring allotments are of varying sizes and all have been developed containing dwellings and ancillary structures.

Figure 2:- Zoning map from SLEP2014

History

The site has an existing weatherboard cottage fronting the Princes Highway and two detached outbuildings. The cottage was built prior to 1973.

The most recent application was in 2012 for the erection of a garage, the relocation of an existing carport and the use of shipping containers. The approved garage is located 4m from the northern side boundary and it is further west of the proposed location of the new shed (refer site plan at attachment 1).

Issues

Section 5.2.3 Chapter G12 of SDCP-2014

The site is subject to side boundary setback of 7.5m which applies to all allotments with an area between 4,001m2 and 10,000m2. The application seeks to locate the shed 1.5m from the northern boundary and this represents an 80% variation to SDCP-2014.

Section 5.3.8 Chapter G12 of SDCP-2014

The maximum wall height for ancillary structures is set at 3.0m above natural ground level. The application seeks to have a wall height of 3.5m and this represents a 16% variation to SDCP-2014.

Planning Assessment

The Development Application has been assessed under Section 79C of the Environmental Planning and Assessment Act 1979. Matters for consideration in determining this development application includes land use, height of buildings, floor space, overshadowing, privacy and loss of views.

Apart from the variations highlighted in this report, the application satisfies the requirements of Section 79C of the Environmental Planning and Assessment Act 1979 (refer attachment 2).

Policy Implications

Environmental Planning Instrument - Shoalhaven Development Control Plan 2014

Issue: Chapter G12 – 5.2.3 and 5.3.8

The purpose of Chapter 12 of SDCP-2014 is to outline controls and guidelines of residential development in the Shoalhaven. The objectives of the DCP are to ensure the development is sympathetic to the constraints of the site and ensure appropriate levels of amenity.

Clause 5.2.3 - Side setback variation

Clause 5.2.3 deals with setbacks and building lines for development within R2 zones that are on allotments greater than 2,000m2 in area. Having a site area of 4,357m2, the acceptable solution for the side boundary setback for dwellings and ancillary development is 7.5m.

The applicant proposes a setback of 1.5m to the northern boundary and this represents an 80% variation. In support of this location, the applicant submits that “The proposed setback is consistent with other lots within this residential area and is not out of character.”

Comments

The reason larger allotments have increased side boundary setbacks is to preserve the amenity and privacy of the area. In new subdivisions this is applied consistently however, in older areas the lot sizes are not consistent and therefore the requirement loses its purpose.

The applicant’s submission is supported as there is clear evidence of building encroachments for larger lots into the required side boundary setbacks. Properties on the eastern side of the Princes Highway and the adjoining property to the south are all less than 2,000m2 and therefore have a 0.9m side boundary setback requirement. The properties to the north at No.403 and No.401 both have structures within 2.5m and 3.1m respectively.

Whilst there is room on the site to relocate the shed to comply with the 7.5m side boundary setback requirement, this would impact on the existing driveway and turning circles. The site is also constrained by a sewer main located centrally through the lot and any movement further south would necessitate concrete encasement of the sewer main.

Additionally, the shed constructed in 2012 is located 4.0m from the northern boundary and this set a precedent that is less than the 7.5m distance.

The variation to the side boundary setback is justified. This type of variation is sought throughout the Shoalhaven on a regular basis and they are approved under delegation.

Wall height variation

Clause 5.3.8 deals with the height for ancillary structures. The acceptable solution requires that the maximum height of the wall from the finished ground to the underside of the roof should not exceed is 3.0m.

The applicant proposes a wall height of 3.5m and this represents a 16% variation. In support of this height, the applicant submits that “The wall height is necessary to enable the storage of a large caravan and boat”.

Comments

The wall height restriction is set to reduce the impact of overshadowing, bulk and scale on smaller allotments. On larger allotments where structures can be located clear of adjoining dwellings, the impact is much less.

The increase in wall height meets the performance requirement as it does not impact on the amenity or solar access on the adjoining property to the north. It is also considered acceptable and consistent with recent applications for caravan and boat storage in the city.

The variation to the wall height is justified and it will not set an undesirable precedent in the locality.

Consultation and Community Engagement:

The application was notified in accordance with Council’s Community Consultation Policy with letters being sent within a 25m buffer of the site. No submissions were received in relation to Council’s notification of the development.

Financial Implications:

Should the application be determined by way of refusal, the applicant is entitled to appeal to the Land and Environment Court. Council would incur costs in defending its decision in this event.

There are no other financial implications.

Legal Implications

If the application is refused, or if the applicant is dissatisfied with Council’s determination in the event of a deferred commencement consent, the applicant is entitled to appeal to the Land and Environment Court.

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

Summary and Conclusion

The nominated building line and wall height requirement have been thoroughly assessed against the objectives and performance criteria of SDCP-2014. The assessment has considered the applicants justification for the variations including the amenity of the adjoining properties. It is concluded that the proposal satisfies the performance criteria and the variation of the side setback from 7.5m to 1.5m and the wall height from 3.0m to 3.5m for the proposed shed are both supported. The variations will not set an undesirable precedent.

The shed meets the assessment requirements of Section 79C of the Environmental Planning and Assessment Act 1979. The shed is located in the rear yard, is not viewable from the Princes Highway and is located approximately 18m from the dwelling on the adjoining property. The development will not have a significant impact on the adjoining property owners by way of overshadowing, privacy view loss or the like.

Development Committee – Tuesday 14 November 2017

Page 110

DE17.85 DS17/1233 – 12 Currambene Street, Huskisson – Lot 2 DP 662583

DA. No: DS17/1233/4

HPERM Ref: D17/345909

Group: Planning Environment & Development Group

Section: Development Services

Attachments: 1. Planning Report ⇩

2. Urban Design Statement ⇩

Description of Development: S96(2) – Addition of Rooftop Communal BBQ Area, Covered and Enclosed Seating Area and Ancillary Facilities

Owner: Michael Hanna

Applicant: Allen Price & Scarratts

Notification Dates: 27 June 2017 to 12 July 2017

No. of Submissions: Two (2) in objection

Nil in support

Purpose / Reason for consideration by Council

Councillors called in the application for public interest reasons on 25 July 2017.

Recommendation (Item to be determined under delegated authority)

That Council resolve to refuse Application DS17/1233 to modify Development Consent DA15/2561 to include a rooftop communal BBQ area with covered and enclosed seating area and ancillary facilities at Lot 2 DP 662583, 12 Currambene Street, Huskisson for reasons relating to:

1. Insufficient information submitted with the application to satisfactorily demonstrate that the development (as modified) conforms to the provisions of section 96(3) of Environmental Planning and Assessment Act, 1979 in relation to consideration of State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development. (Section 79C(1)(a)(i) of Environmental Planning and Assessment Act, 1979)

2. An inadequate statement by a qualified designer has been submitted with the application to satisfy that required by clause 115(3A) of Environmental Planning and Assessment Regulation, 2000. (Section 79C(1)(a)(iv) of Environmental Planning and Assessment Act, 1979)

3. The development (as modified) is considered unsuitable having regard to potential adverse amenity impacts including visual impact and residential amenity, including noise, privacy and solar access. (Section 79C(1)(b) and (c) of Environmental Planning and Assessment Act, 1979)

4. Having regard to insufficient information being submitted with the application to satisfy the relevant provisions of Environmental Planning and Assessment Act, 1979 and Environmental Planning and Assessment Regulation, 2000, along with amenity impacts, the granting of modification to Development Consent DA15/2561 is not considered to be in the public interest. (Section 79C(1)(e) of Environmental Planning and Assessment Act, 1979)

Options

1. Refuse the application in accordance with the recommendation of this report.

Implications: A section 96AB review or an appeal with the Land and Environment Court are possible in the event of a refusal of the application.

2. Approve the application.

Implications: Council could choose to approve the application if it considers that the provisions of section 79C(1) have been satisfactorily addressed. Any such approval would be conditional and require a further report to Council detailing draft conditions.

3. Alternative recommendation.

Implications: Council could specify an alternative recommendation and advise staff accordingly.

Figure 1 – Location Map

Background

Proposed Development

The application seeks approval to include a rooftop communal BBQ area with covered and enclosed seating area and ancillary facilities (being a toilet cubicle) to the mixed use development approved by Development Consent DA15/2561. The approved development comprises two (2) ground floor retail units and eight (8) x 2 bedroom residential units.

Figure 2 – Site/Ground Floor Plan

Figure 3 – Roof Top Common Area Plan (also see Figure 7 later in this report)

Figure 4 – Elevations

Figure 5 – External Colours Schedule

Subject Land

The development site comprises Lot 2 DP 662583 (12 Currambene Street, Huskisson). Refer to Figure 1.

Site & Context

The development site:

§ Previously contained a single dwelling house with ancillary shed, which were removed as part of Development Consent DA15/1561, which approved a three (3) storey building comprising retail units on the ground floor and two (2) levels of residential units. Construction is underway.

§ Is zoned B2 Local Centre and has an area of 1,012sqm;

§ Has two (2) existing frontages, a primary frontage to Currambene Street and secondary frontage to an unnamed laneway. Vehicular access is proposed from the laneway; and

§ Adjoins land zoned B2 Local Centre, under the Shoalhaven Local Environmental Plan 2014 (SLEP 2014) as illustrated in Figure 6.

Figure 6 – Zoning Extract

History

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

§ The application was lodged on 19 June 2017.

§ As a result of detailed assessment of the application, additional information was requested from the applicant on two (2) occasions – 14 July 2017 and 11 August 2017.

§ On 19 July 2017, the applicant submitted additional information, being a statement by a qualified designer in accordance with the relevant provisions of the Environmental Planning and Assessment Regulation 2000.

§ On 11 August 2017, following review of this statement and internal referrals, additional information was requested to include an evaluation of the design quality of the development (as modified), demonstrating how it achieves compliance with the design quality principles and Apartment Design Guidelines (ADGs), in accordance with State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development (SEPP 65). An acoustic report assessing the potential noise nuisance from the development (as modified) and addressing noise controls as required, was also requested.

§ On 28 September 2017, the applicant submitted an amended statement (refer to Attachment 2) and acoustic report.

§ On 10 October 2017, the acoustic report was referred to Council’s Environmental Health Officer for technical comment.

Issues

1. State Government Design Guidelines:

State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development (SEPP 65) and Apartment Design Guide (ADG)

As this application is for the modification of a development consent under section 96(2) of the Environmental Planning and Assessment Act 1979 relating to residential apartment development and a development application which was accompanied by a design verification from a qualified designer under clause 50(1A), it was required to be accompanied by a statement by a qualified designer in accordance with clause 115(3) of the Environmental Planning and Assessment Regulation 2000.

The provisions of clause 115(3A) of the Regulation also require that:

“The statement by the qualified designer must:

(a) verify that he or she designed, or directed the design of, the modification of the development and, if applicable, the development for which the development consent was granted, and

(b) provide an explanation of how:

(i) the design quality principles are addressed in the development, and

(ii) in terms of the Apartment Design Guide, the objectives of that guide have been achieved in the development, and

(c) verify that the modifications do not diminish or detract from the design quality, or compromise the design intent, of the development for which the development consent was granted.”

Whilst a statement has been submitted by a qualified designer, being Eduardo Villa of Villa & Villa, it is considered that the statement has not adequately addressed subclauses (b) and (c).

The written statement is substantially the same submitted for the original development application, with very minor amendments referencing the proposed modifications to the approved development. It does not provide detailed explanation of how the design quality principles are addressed or in particular, the objectives of the ADG have been achieved in the development (as modified). Further to this, no verification is included that the proposed modifications do not diminish or detract from the design quality, or compromise the design intent, of the approved development.

2. Council’s LEP Controls:

Clause 4.3 (Height of buildings)

The maximum building height is 10m.

The development site is also identified as being land in the Huskisson Town Centre and an increased building height of 13m is available in certain circumstances under clause 7.26 of SLEP 2014. However, this clause is not applicable to this development site as it does not satisfy the provisions of subclause (3) with respect to lot size and building height.

The communal BBQ area with covered and enclosed seating area and ancillary facilities proposed as part of this application exceeds the 10m maximum building height by up to 3.65m, being 36.5%. It also exceeds the 13m height allowable for development on certain sites in this locality, being a 5% contravention.

Although it is acknowledged that the requirement of the development standard is ‘bypassed’ under section 96 of the Environmental Planning and Assessment Act 1979 and an ‘exception’ pursuant to clause 4.6 of SLEP 2014 is not required; the provisions of section 79C(1) are still a consideration in accordance with section 96(3) of the Environmental Planning and Assessment Act 1979.

A statement by a qualified designer was submitted with the application. However, the statement is not analytical, detailed and explanatory having regard to the provisions of SEPP 65 and the ADG. The statement does not provide sufficient support/explanation in regard to the impacts of the proposal and how the overarching Objectives of SEPP65 have been met particularly in regard to the suitability of the site for the development (as modified).

It is also evident that the development (as modified) is not compatible with the height, bulk and scale of the existing character of the Huskisson Town Centre and as it is proposed to exceed the maximum height (along with the incentive height) it is considered that it will neither be compatible with existing nor the desired future character, having regard to the strategic controls (zone, DCP) for the locality.

Further to this, the proposed rooftop communal BBQ area with covered and enclosed seating area and ancillary facilities will detract from the aesthetics of the approved building, affect the amenity of the streetscape when viewed from Currambene Street in particular, and increase loss of privacy (i.e. particularly with regard to acoustic impacts) and solar access to neighbouring sites. In addition to this, public submissions were also made objecting to the development.

3. Noise Impacts

Acoustic Report by Harwood Acoustics (Reference No. 1708007E-R)

The following issues have been identified with the acoustic report submitted with this application:

§ The report only considers the “main source of noise associated with the proposal will be human voice noise” for ten (10) human voices. There are no practical controls on residents inviting others to the rooftop terrace and estimations of predicted noise exceeding acceptable noise limits. The number of people on the rooftop is only constrained by the size of the terrace area.

§ There is no consideration for other noise sources such as music (amplified/speakers or ambient), instruments, etc. The report concedes through the following statement “main source of noise associated with the proposal will be human voice noise” that there may be other noise sources on the rooftop terrace which have not been considered.

§ A full background noise assessment was not carried out due to the property currently being under construction. Short-term background noise measurement were taken for one (1) hour (8:30pm to 9:30pm).

§ Noise from the lift and stairs extended to the proposed rooftop terrace was not taken into consideration and any mechanical plant that may be installed or modifications to the existing mechanical plant that may occur due to the redesign of the rooftop.

§ No other sensitive receptors were identified in the assessment (e.g. apartments on the corner of Owen Street, residences at the corner of Morton Street, apartments at the rear along Hawke Street).

§ The restriction of use to the rooftop area and how this will be achieved so that “the rooftop area will be for residents only and will not be open to the public” has not been specified through a plan of management or impact statement. It is a likely scenario that residents will have invited guests and expect full ability to utilise the rooftop entertaining area. No hours of operation were specified for the use of the rooftop terrace either. The plan of management for the rooftop terrace should ideally be developed so that time restrictions are placed on the use of the area as well as restrictions to music and general behaviour of residents using the area. However, enforcement and compliance issues then arise with such a plan.

Plans of management however rely on human behaviour and intervention to ensure impacts are controlled. To this end, if a building or development can be designed in a manner which controls use, activity and noise, this is a better outcome. By way of example, a substantially reduced area could possibly reduce the number of people on the terrace and its use.

Figure 7 – Detail of Proposed Terrace

Planning Assessment

The application has been assessed under s96 of the Environmental Planning and Assessment Act 1979. Refer to Attachment 1. It is important to note, that Council cannot reconsider the whole application. The assessment can only relate to the application put before Council.

Consultation and Community Engagement:

Notification was undertaken in accordance with Council’s Community Consultation Policy with letters being sent within a 60m buffer of the site, including the Huskisson Woollamia Community Voice and Huskisson Chamber of Commerce and Tourism Inc. during the period 27 June 2017 to 12 July 2017.

Two (2) submissions were received in relation to Council’s notification of the development. They were objections to the development.

Key issues raised as a result of the notification include, but were not limited to, matters listed below. A more detailed analysis can be found in the attached section 96 assessment report.

§ Scale of the development, particularly height and density;

§ Solar access;

§ Privacy; and

§ Noise.

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 an appeal in the Land and Environment Court of NSW.

Legal Implications

A section 96AB review or an appeal with the Land and Environment Court are possible in the event of a refusal of the application.

Summary and Conclusion

SEPP 65 sets out the NSW Government’s policy direction for certain mixed use developments with a residential accommodation component (such as this) in NSW and is underpinned by the ADG, which provides guidance on how these proposals can meet the design principles embedded in the SEPP. In this regard, insufficient information has been submitted with this application to satisfactorily demonstrate that the development (as modified) conforms to these provisions.

Other issues raised in this report and attachments, relating to the excessive scale of the development, further loss of solar access and privacy, and increased noise impacts are not demonstrated to be acceptable and for this reason the development is not considered to be in the public interest. Accordingly, refusal is recommended.

Development Committee – Tuesday 14 November 2017

Page 136

DE17.86 Development Application – Parson St Ulladulla – Proposed Lot 15 in Subdivision of Lot 3 DP746228 and Lots 5 & 6 DP805221

DA. No: DA16/2412/4

HPERM Ref: D17/349640

Group: Planning Environment & Development Group

Section: Ulladulla Service Centre

Attachments: 1. Report to Development Committee 14 March 2017 ⇩

2. DA Plans ⇩

3. Site Context Photos ⇩

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).

Council has previously considered the application (MIN17.183 & MIN17.218) and the plans for consideration remain unchanged from the plans previously considered in the Council report (DE17.23) to the Development Committee on the 14 March 2017. The Ulladulla CBD Heights Review is being considered by Council in a separate report to this committee and it is appropriate to reconsider this application in conjunction with the height review.

Recommendation (Item to be determined under delegated authority)

That Council:

1. Confirm that it supports the proposed variation to the maximum building height of 7.5m to a maximum of 11m for the main building;

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

Options

1. Resolve to support the proposed 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.

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.

Location Map

Background

On 14 March 2017, Council’s Development Committee considered a development application (DA16/2412) for a three (3) storey office building at proposed Lot 15 Parson Street, Ulladulla.

Undertake a review of the 7.5 metre building heights in this part of the Ulladulla Town Centre in the next 6 months which is limited to the area south of Deering Street and the B5 and R3 zones.

Building Height Review

Consultants, City Plan Services and Atlas Urban were engaged in June 2017 to undertake a Building Height Review. The Review considered a detailed analysis of the Study Area and context, as well as community consultation with the Ulladulla & Districts Community Forum, community and Council representatives.

The outcome of the review recommends an increase in height across the Study Area from 7.5 metres to generally 11 metres with a small area of 14 metres. The report recommends that in the location of the subject site that the maximum building height be increased from 7.5 metres to 11 metres.

Height consideration at 11m

The height of the building would be consistent with an 11 metre building height standard as recommended by the review. The extent of encroachments above the 11 metre building height standard would be limited to the flag pole.

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 identified a need to review the appropriateness of the height controls in the precinct and the recommendations from the Building Height Review will assist in facilitating development and providing direction in the development of the surrounding area.

Should the recommendations of the Building Height Review be adopted, then amendments will also be required to the Shoalhaven LEP & DCP 2014 to reflect new heights and to resolve any inconsistencies resulting from the modifications.

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 were discussed in detail in the previous report included in Attachment 1.

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 considered 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 which is supported by the recommendations of the Building Heights Review.

Development Committee – Tuesday 14 November 2017

Page 162

DE17.87 Development Application SF10591 – 18 Calder Close, Vincentia – Lot 34 in DP 713629

DA. No: SF10591/4

HPERM Ref: D17/350005

Group: Planning Environment & Development Group

Section: Development Services

Attachments: 1. Plan - Survey - Lot 34 DP 713629 - 18 Calder Cl Vincentia ⇩

Description of Development: Two (2) Lot Residential Subdivision

Owner: Wolfgang Witz & Kathryn Ross

Applicant: Wolfgang Witz

Notification Dates: 20^th July to 4^th August 2017

No. of Submissions: No submissions received

Purpose / Reason for consideration by Council

The applicant proposes a Clause 4.6 exception to the minimum lot size, as specified by Shoalhaven Local Environmental Plan 2014 (SLEP 2014). The extent of the exception, or variation exceeds the delegated authority level (greater than 10%) of staff, and is therefore required to be considered by Council.

Recommendation (Item to be determined under delegated authority)

That the Committee:

1. Pursuant to Clause 4.6 (Exceptions to development standards) of SLEP 2014, support the applicant’s request to vary the minimum subdivision allotment size in respect of proposed Lot 2 from 500m² to 433.9m²; and

2. Refer the development application (SF10591) back to staff for determination.

Options

1. Support the application, and the exception to Clause 4.1 of SLEP 2014, under Clause 4.6 of SLEP 2014, as submitted.

Implications: Subject to the completion of a satisfactory 79C assessment the application be determined under delegated authority.

2. Decline to support the exception to Clause 4.1 of SLEP 2014, under Clause 4.6 of SLEP 2014.

Implications: The application would not be able to be supported, and would therefore be determined by way of refusal, under delegated authority. The applicant would be entitled to appeal against Council’s refusal in the Land and Environment Court.

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

Location Map

Figure 1 – Location Map

Background

Proposed Development

The applicant proposes a two (2) lot Torrens title subdivision of the subject site. Proposed Lot 1 will have an area of 500m² and will contain the existing dwelling house, and will have a frontage to Calder Close.

Proposed lot 2 will have an area of 433.9m², and will be vacant land and will have a frontage to Frederick Street.

The applicant is seeking an exception (or variation) with respect to proposed Lot 2, pursuant to clause 4.6 of the Shoalhaven Local Environmental Plan 2014 (SLEP 2014), to the minimum allotment size of 500m².

Subject Site

The subject site is identified as Lot 34 in DP 713629 No.18 Calder Close. The subject site consists of an irregular-shaped allotment of land, situated on the eastern side of Calder Close and extending through to Frederick Street (see Figure 1). The site has a frontage of 13.405m to Calder Close and a frontage of 19m to Frederick Street, with side boundary lengths of 57.43m (southern boundary) and 52.97m (northern boundary). The site currently contains a two-storey dwelling house at its western end, with direct access from Calder Close. The rear of the site, sloping down to Frederick Street, consists of planted gardens.

Site Context

The subject site is located within an established residential area of Vincentia. The neighbouring property to the north is a Council-owned public reserve. The adjoining property to the south (No.17 Calder Close) is of similar size and configuration to the subject site, and contains a dwelling house at its Calder Close frontage.

As noted in the table below, the subject site (highlighted in bold) is one of five (5) residential allotments on the eastern side of Calder Close that have a dual street frontage with Frederick Street.

Property	Area	Existing Development
15 Calder Close (Lot 30 DP 713629)	1,014m²	Dwelling house centrally-located within the allotment.
17 Calder Close (Lot 33 DP 713629)	978.5m²	Dwelling house located towards Calder Close frontage.
18 Calder Close (Lot 34 DP 713629)	933.1m²	Dwelling house located towards Calder Close frontage.
20 Calder Close (Lot 35 DP 713629)	894.2m²	Vacant Land
21 Calder Close (Lot 36 DP 713629)	890.5m²	Dwelling house located towards Calder Close frontage.

Figure 2 – Site Context

Issues

Shoalhaven Local Environmental Plan 2014 – Clause 4.1 Minimum subdivision lot size

Clause 4.1 of SLEP 2014 is reproduced below.

4.1 Minimum subdivision lot size

(1) The objectives of this clause are as follows:

(a) to ensure that subdivision is compatible with, and reinforces the predominant or historic subdivision pattern and character of, an area,

(b) to minimise any likely impact of subdivision and development on the amenity of neighbouring properties,

(c) to ensure that lot sizes and dimensions are able to accommodate development consistent with relevant development controls.

(2) This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Plan.

(3) The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land.

(4) This clause does not apply in relation to the subdivision of individual lots in a strata plan or community title scheme.

The subject land is identified on the SLEP 2014 Lot Size Map as having a minimum lot size of 500m². Proposed Lot 1 has an area of 500m² and achieves the minimum lot size. Proposed Lot 2 has an area of 433.9m² and is 13.22% less than the minimum lot size.

Clause 4.6 Exceptions to development standards enables development standards, such as the minimum lot size, to be varied and requires the applicant to provide a written request seeking to justify the contravention of the development standard by demonstrating that,

· compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

· there are sufficient environmental planning grounds to justify contravening the development standard.

Applicant’s Submission

The applicant has made a formal submission (attached) requesting a variation the minimum lot size under Clause 4.6. In accordance with sub-clause 4.6(3)(a) the applicant contends that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, for the following reasons,

Strict compliance with the standard is unreasonable and unnecessary in this particular case as the development achieves the objectives of both the zone and the development standard. It is not possible for the development standard of 500m² to be achieved and the additional 66.1m² required would not positively impact upon either the amenity of the adjoining residents to the south.

Any perceived potential adverse impact through overlooking or overshadowing is an internal impact within this development. The existing house is a known factor for a purchaser and a dwelling can be designed to protect their privacy and amenity. The existing dwelling however is designed to look over the property to vistas beyond rather than look down into this lot.

Council can be secure in the knowledge that the land is unlikely to be used for the purpose of a dual occupancy development as it is undersized for that purpose but that it is suitable for a single residential dwelling house similar to that illustrated in the accompanying plans.

Development of the lot for a dwelling house will not result in a development that has an overshadowing or overlooking impact upon adjoining lots, it will allow for the erection of a dwelling house that is of similar bulk and scale to those existing in the street and will therefore be compatible with the character of the surrounding residential zone.

In accordance with sub-clause 4.6(3)(b) the applicant contends that there are sufficient environmental planning grounds to justify contravening the development standard for the following reasons,

Our application demonstrates compliance with the zone objectives and the objectives of the development standard despite the 13% contravention in the lot size.

The environmental planning grounds include:

· Compatibility with the character of the existing residential locality including bulk, scale and height of potential residential dwellings.

· Maintenance of the privacy and amenity of the adjoining and adjacent residents.

· No likely overlooking or overshadowing of existing development through the construction of new development.

· There will not be a significant increase in traffic in the locality as a result of the creation of a vacant lot for the purpose of a future dwelling house, an additional dwelling will generate approximately 6 - 9 additional traffic movements daily which is within the environmental capacity of the road network.

· The proposal will not pose a significant drain on Council supplied infrastructure such as water or sewer, kerb and gutter exists to both frontages and the land can be provided with electricity and telephone services for the benefit of residents.

· The land is not mapped as bushfire prone and the development will not increase the density of development in an area which may suffer from intermittent bushfire threat. This reduces the risk to both residents and fire fighters in the event of a bushfire emergency.

Comments and Discussion

In accordance with sub-clause 4.6(4)(a)(i) of SLEP 2014, Council cannot grant consent to the development proposal unless it is satisfied the applicant has adequately addressed the matters in sub-clauses 4.6(3)(a) and (b); and, is satisfied that the proposal is in the public interest because it is consistent with the objectives of both the development standard and the zone in which the development is proposed. With this in mind, it is considered that the applicant’s justification statement,

· Has demonstrated that the 500m² minimum allotment size development standard is unreasonable and unnecessary under the circumstances of the case. It is the applicant’s submission that strict compliance with the development standard is unreasonable and unnecessary “as the development achieves the objectives of both the zone and the development standard”. With regard to the objectives of the development standard insofar as they relate to the compatibility with the character of the area and reinforce the predominant or historic subdivision pattern, the applicant considers:

“the subdivision character in this locality is generally recti-linear and this proposal provides two lots which comply with and reinforce that character.

The area however is not characterised by a regular grid pattern street layout due to the topography and the proposed lots respond positively to the site topography allowing the maintenance of privacy between lots while taking advantage of the outlook of the adjoining drainage reserve”.

To the extent that the objectives relate to the minimisation of the likely impact on the amenity of neighbouring properties, the applicant contends that the proposal “will not have an adverse or significantly detrimental impact on the amenity of the adjacent and adjoining residential area. Privacy can be retained between dwellings and the lots, with the retention of vegetation”. It is noted that proposed Lot 2 is adjoined on its northern side by a public reserve and on its southern side by the vegetated rear yard area of No.17 Calder Close. In addition, a 2.4m wide easement is proposed along the southern boundary of Lot 2, further increasing the setback to its southern neighbour. It is therefore likely that a future dwelling house erected upon Lot 2 will not detrimentally impact upon the amenity of the neighbouring properties. On this point, it is also noted that no objections to the proposal have been received.

The final objective relates to the adequacy of lot sizes and dimensions to accommodate development the applicant notes that,

“plans accompanying the application demonstrate that a dwelling is readily accommodated on the land with compliant car parking. The lot takes advantage of the adjacent public reserve allowing a wider expanse of open space to maintain the amenity of the proposed lot”.

A concept site layout plan, provided by the applicant, demonstrates that a dwelling house can be sited on proposed Lot 2 with a compliant 6m setback to Frederick Street (6m is applicable as the lot is less than 30.5m deep) and a 3m rear boundary setback. Having regard to these setbacks, the minimum 900mm setback to the northern side boundary and the 2.4m wide easement proposed inside the southern boundary, a building footprint of 194m² would be achievable. As any dwelling erected upon Lot 2 is likely to incorporate a second level on its downslope side (facing Frederick Street), it is quite possible to have a reasonably-sized (max. 216.95m²) dwelling house erected on Lot 2.

The subject site is not mapped as bushfire prone land or flood prone land, and does not contain vegetation, which is identified as being of particular ecological or biodiversity significance, which much of the vegetation on the site consisting of exotic species. There are no environmental constraints affecting the site, which would preclude its subdivision. The subject site has the benefit of dual road frontages (Lot 1 will front Calder Close and Lot 2 Frederick Street), which gives each lot a separate street address and access point. Utility services are currently connected to the existing allotment and can be extended to proposed Lot 2. Stormwater from Lot 1 is able to be drained through proposed Lot 2 directly to Frederick Street.

Having regard to the above, and the applicant’s submission, it is considered that there are sufficient environmental grounds to justify the variation to the development standard.

In accordance with sub-clause 4.6(4)(a)(ii) of SLEP 2014, Council must be satisfied that the proposed development “will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out”.

The objectives of clause 4.1 of SLEP 2014 are,

(a) to ensure that subdivision is compatible with, and reinforces the predominant or historic subdivision pattern and character of, an area,

(b) to minimise any likely impact of subdivision and development on the amenity of neighbouring properties,

(c) to ensure that lot sizes and dimensions are able to accommodate development consistent with relevant development controls.

As outlined above (in consideration of the applicant’s submission) the development proposal is considered to achieve the objectives of standard.

The site is zoned R2 under SLEP 2014 and the objectives of the R2 zone are as follows,

· 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 proposed subdivision will provide an allotment that can be developed for a dwelling house in accordance with the provisions of Chapter G12 of SDCP 2014, with the end result of that development being no greater in density than a detached dual occupancy (which is currently able to be constructed, and Torrens Title subdivided on the subject site). The development proposal is therefore consistent with the first zone objective.

The second zone objective is not applicable to the proposal.

The third zone objective is achieved as the proposed allotment will provide an allotment upon which a separate, detached dwelling house can be erected.

Have regard to the above comments and discussion, it is considered that the development proposal has adequately addressed the matters in sub-clause 4.6(3) and will achieve consistency with the objectives of the development standard and the R2 zone. Therefore, the clause 4.6 justification is considered to be well-founded and Council is able to grant consent to the development proposal.

Planning Assessment

The DA has been favourably assessed under s79C of the Environmental Planning and Assessment Act 1979.

Policy Implications

There are no specific policy implications that arise from this matter. Clause 4.6 of SLEP 2014 provides the legal ability for Council to grant the variation to development standards and Council’s adopted Internal Procedure PRD15/143 provides the framework to ensure the process is conducted in a manner which does not undermine the development standard.

Consultation and Community Engagement:

Notification was carried out in accordance with Council’s Community Consultation Policy with letters sent to the owners of the adjoining and adjacent properties. The notification was for a 14 day period.

No submissions were received during the notification period.

Financial Implications:

There may be financial implications for Council if the matter is challenged via an appeal in the Land and Environment Court of NSW.

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

Summary and Conclusion

The applicant’s submission has provided sufficient justification to demonstrate that given the specific circumstances of this case, strict compliance with the 500m² minimum allotment size development standard is unreasonable or unnecessary, and that there are sufficient environmental planning grounds to justify a variation to this standard. Accordingly, support for the variation is recommended.

Development Committee – Tuesday 14 November 2017

Page 171

DE17.88 Serious and Irreversible Impact - Biodiversity Conservation Act - Yerriyong Moto Complex

HPERM Ref: D17/358665

Group: Planning Environment & Development Group

Section: Environmental Services

Attachments: 1. Guidance Notes - Office of Environment & Heritage ⇩

Purpose / Summary

As resolved by Council at its Ordinary Meeting on 17 October 2017, this report provides Council advice in relation to serious and irreversible impacts under the new Biodiversity Conservation Act in relation to the proposed Yerriyong Motor Sports Complex.

Recommendation (Item to be determined under delegated authority)

The report is provided to the Committee for its consideration.

Options

1. The Committee may choose to adopt an alternative recommendation.

Implications: Unknown

Background

At the Ordinary Meeting of Council on 17 October 2017, Council resolved that:

1. In recognition of the strategic importance and economic value of developing a motor sports complex in our area, that Council, after reviewing the previous development application (DA) by Motorcycling NSW, prepares and submits a DA as proponent for this project.

2. Council establish a project working group to oversee the process, comprising relevant Council staff and representatives of the South Coast Motor Sports Club Inc.

3. Council continue to explore and where applicable apply to both Federal and State Government programs to facilitate funding for the project and private partnership.

4. That initial costs associated with the review and DA submission be funded through the economic development budget

5. Recoupment of all costs be factored into any future lease arrangements

6. The General Manager provide a detailed report on how “serious and irreversible impacts” have been addressed in similar situations, and what precedents have been established in that regard.

This report addresses Part 6 of the resolution.

Previous studies of flora and fauna

The vegetation and associated fauna of Lot 3 DP1029731 Braidwood Road and Lot 7309 DP 1148878 Braidwood Rd Yerriyong, and Lot 7308 DP 1147573 Yerriyong Road Yerriyong have been the subject of ecological surveys and assessment for the former motor sports complex development application as listed below. The environmental constraints and biodiversity values of the site have been identified in these assessments as well as Council’s flora and fauna assessment completed in 2011 and the South Coast Regional Conservation Plan (2010).

 Biosis - Motorcycling NSW Peak Motorcycle Facility, Yerriyong: Flora and Fauna Assessment. Final reports dated 29 January and 19 February 2016, and two Addendum reports dated 25 May and 6 June 2016.

 Orchid survey of Lot 7309 DP 1148878 by Alan Stephenson (NSW Office of Environment & Heritage (OEH) recognised local orchid expert), February 2017.

 Comments on reports and impact assessments by Biosis have been provided by OEH and expert Claire deLacey dated 15 March 2016 on behalf of the Parma Yerriyong Community Group.

The flora and fauna surveys (by Biosis) identified known habitat for 11 threatened fauna species and one flora species (confirmed by Alan Stephenson), and potential habitat for three threatened fauna species east of Braidwood Road. Additional species were identified west of Braidwood Road.

Based on these studies, the NSW Office of Environment & Heritage (OEH) recommended, amongst other things, that the proponent undertake a Species Impact Statement for the former Development Application. This requirement was imposed due to identified impacts on the Leafless Tongue Orchid Cryptostylis hunteriana and potentially other threatened fauna species, and was a result of the amount of high conservation value habitat proposed to be cleared. The Leafless Tongue Orchid is listed as Vulnerable under both State and Commonwealth legislation. The large number of hollow-bearing trees (HBTs) to be cleared and a lack of survey to discount utilisation of these HBTs by threatened species was also of particular concern.

Having regard to the acknowledged environmental significance of the site, there are potentially two pathways available to assess compliance with current NSW Biodiversity Conservation Act requirements.

NSW Threatened Species Act (TSC) 1995

The NSW TSC Act was repealed with effect on 25 August 2017 with transitional arrangements for applications already started.

For local developments in the Shoalhaven an application must be submitted within 3 months (before 25 November 2017) to be eligible for assessment under the previous legislation (TSC and EP&A Act).

Having regard to the fact that OEH have previously advised that a Species Impact Statement is required to accompany the application, the time frame to comply with the transitional requirements would not be able to be met.

NSW Biodiversity Conservation (BC) Act 2016

An application pursuant to the BC Act would require an assessment under the Biodiversity Offset Scheme, using the Biodiversity Assessment Methodology (BAM) and the preparation of a Biodiversity Development Assessment Report (BDAR).

In undertaking an assessment, an applicant must use the services of an “accredited person” to undertake field work and the collection of data, used to determine any “offset” (expressed as an Ecosystem Credit total for each Plant Community Type (PCT) impacted and a Species Credit total for each Species Credit species impacted).

The ‘accredited person” must follow the Biodiversity Assessment Methodology (BAM) referred to in Section 6.7 of the BC Act. The BAM is structured around three primary stages with Stages 1 & 2 relevant to the proposal;

1. Stage 1 establishes a single consistent approach to assessing the biodiversity values on land.

2. Stage 2 provides for the impact assessment on biodiversity values. This stage includes the guidelines and requirements that apply to the hierarchy of avoid, minimise and offset, for assessing direct and indirect impacts.

3. Stage 3 provides for the assessment of the management requirements at a proposed biodiversity stewardship site and the likely improvement in biodiversity values that are predicted to occur over time.

In the hierarchy mentioned above, the applicant must demonstrate that a project is located to avoid biodiversity values. If an “accredited person” cannot adequately demonstrate avoidance of direct and indirect impacts, justification for the location must be provided. Actions to demonstrate avoidance would include a search for and analysis of alternate sites without significant biodiversity values.

This same rationale applies to the minimise requirement, in that a proposal should demonstrate that it is located in a position of least environmental impact. Justification, in either regard, must be documented in the Biodiversity Development Assessment Report (BDAR) produced by the “accredited person”.

Thus a proponent’s decision in regard to the location of a proposed development in an environmentally sensitive area, needs to be based upon informed study of the area and must show full consideration of the sites ecological values and the resulting location of the proposed development being in a location of least environmental impact.

Under the BC Act, a determination of whether an impact is serious and irreversible (a SAII) must be made in accordance with the principles prescribed in section 6.7 of the BC Regulation. The reference to the meaning of serious and irreversible within the BC Act is at Cl6.5 and states;

“ serious and irreversible impacts on biodiversity values of proposed development or activity means serious and irreversible impacts on biodiversity values as determined under section 6.5 that would remain after the measures proposed to be taken to avoid or minimise the impact on biodiversity values of the proposed development or activity"

There is guidance to assist a decision-maker to determine a serious and irreversible impact (OEH, 25 August 2017) with the “decision maker” definition including consent authorities for development applications under Part 4 of the NSW EP&A Act. The consent authority would be guided by the “accredited person” undertaking the Biodiversity Assessment and its review of that assessment. The Act places responsibility on the consent authority to ensure the assessment has been carried out in accordance with the Act and the BAM. A copy of the guidance notes issued by the Office of Environment and Heritage are attached.

The guidance notes include four principles for determining SAII, with C.hunteriana likely to be included as a SAII candidate species based on these principles. C.hunteriana is currently not listed as a SAII candidate, but it is possible for the decision-maker to consider entities that are not currently specifically identified, where they meet the principles. Currently there are a number of species which have been listed as candidates i.e. species that need to be assessed for SAII, along with guiding benchmarks that will assist to categorise impact. This however is not a definitive list and the principles mentioned above must be considered when assessing SAII.

Of the threatened species or habitat for threatened species previously identified on the site and the locality, the following are listed as SAII candidates, meaning the application would have to be refused should impact beyond an acceptable threshold be identified during the BAM process:

 Pterostylis vernalis orchid

 Pterostylis ventricosa orchid

 Large-eared Pied-bat (breeding habitat only)

 Eucalyptus langleyi Albatross Mallee

 Genoplesium baueri orchid

 Eastern Bent-wing Bat (breeding habitat only)

 Sooty Owl (cave breeding habitat only)

The BDAR, which must be produced by an “accredited person” will identify whether a SAII candidate species is impacted beyond an acceptable threshold. Should this be the case, the decision-maker is required to refuse to grant development consent.

If it can be successfully demonstrated that impact on significant biodiversity values were avoided and or minimised, and SAII entities are not to be impacted beyond an acceptable threshold, the “accredited person” upon application of the BAM will then calculate a credit total for the loss of native vegetation plant communities (expressed as an “ecosystem credit total”) and any species credit species (“species credits”) for the remaining impacts. Retiring “credits” must be completed prior to commencement of works should the application be approved. This is an upfront cost before works can commence.

Based on the list of threatened species currently identified on the site, and potential for other threatened species to be identified through the BAM process, it is likely there will be a significant (large) number of credits to be “retired” before any development can commence, not with-standing the potential for the application to be refused due to SAII or because it is unable to meet the ‘avoid and minimise’ requirements of the BAM.

There is no guidance at this time in regard to similar situations or precedents that have been encountered under the newly adopted BC Act. Having regard to the existing body of information available in regard to the environmental constraints present on the site, and the guidelines associated with the BC Act, it is clear that there are potentially significant issues that may either prevent, or define the nature and extent of development on the site.

Having regard to the above, any proponent would be strongly advised to have an accredited person carry out a review of documentation currently available, in regard to the environmental constraints that have been identified as existing or potentially existing on the site, and determine what level of further quantitative/qualitative assessment is necessary to determine overall viability of development of the site and development for the purpose proposed. This approach is favoured with a view to identifying evident “red light” or significantly limiting issues at an early stage, which will then guide ensuing actions including preparation of a Development Application.

Financial Implications

The methodology as mentioned above would ensure investigation work is done in a sequence to inform later stages of the process and expenditure made accordingly.

Risk Implications

Due to the significant environmental values of the Yerriyong site, a negative recommendation may result from the biodiversity assessment methodology (BAM) due to impacts not being able to be avoided, minimised or if serious and irreversible impacts on candidate species are determined.