Agenda of Development & Environment Committee

Minutes of the Development & Environment Committee

Meeting Date: Tuesday, 1 October 2019

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

Time: 5.00pm

The following members were present:

Clr Joanna Gash - Chairperson

Clr Patricia White

Clr John Wells

Clr John Levett

Clr Nina Digiglio

Clr Annette Alldrick

Clr Kaye Gartner

Clr Mitchell Pakes

Clr Greg Watson

Clr Mark Kitchener

Clr Bob Proudfoot

Mr Stephen Dunshea - Chief Executive Officer

Apologies / Leave of Absence

Apologies were received from Clr Findley and Clr Guile.

Confirmation of the Minutes

RESOLVED (Clr Pakes / Clr White) MIN19.712

That the Minutes of the Development & Environment Committee held on Tuesday 03 September 2019 be confirmed.

CARRIED

Declarations of Interest

Clr Gartner – DE19.105 – Submission – Proposed New Regulatory Framework – Short Term Rental Accommodation - pecuniary interest declaration – owns a short term rental property with spouse – will leave the room and will not take part in discussion or vote.

Call Over of the Business Paper

The following items were called up for debate:

DE19.94, DE19.95, DE19.96, DE19.97, DE19.98, DE19.99, DE19.100, DE19.102, DE19.103, DE19.104, DE19.105, DE19.106.

The remaining item (DE19.101) was resolved en-block (Clr Proudfoot / Clr Wells) at this time. It is marked with an asterisk (*) in these Minutes.

Deputations and Presentations

DE19.94 Notice of Motion - Call In DA19/1841 - 44 Duncan Street, Huskisson (Page 11)

Ms Susan Smith, representing the Huskisson Woollamia Community Voice CCB, spoke for the recommendation.

DE19.95 Development Application 18/2115 – 171B Strongs Rd, Jaspers Brush – Lot 2 & DP 778594 (Page 18)

Mr Stuart Coughlan, representing the Berry Forum, spoke for the recommendation.

DE19.104 Tomerong Quarry - Lot 4 DP 775296 Parnell Rd DA90/1912 (Page 115)

Mr Peter Allison, representing the Tomerong Community Forum, spoke to the recommendation.

Procedural Motion - Bring Item Forward

RESOLVED (Clr Wells / Clr White) MIN19.713

That the following matters be brought forward for consideration:

· DE19.94 - Notice of Motion - Call In DA19/1841 - 44 Duncan Street, Huskisson

· DE19.95 - Development Application 18/2115 – 171B Strongs Rd JASPERS BRUSH – Lot 2 & DP 778594

· DE19.104 - Tomerong Quarry - Lot 4 DP 775296 Parnell Rd DA90/1912

CARRIED

Notices of Motion / Questions on Notice

DE19.94 Notice of Motion - Call In DA19/1841 - 44 Duncan Street, Huskisson

HPERM Ref: D19/316168

Recommendation (Item to be determined under delegated authority)

That Council call in the Development Application DA19/1841 - 44 Duncan Street, Huskisson due to public interest.

RESOLVED (Clr Levett / Clr Pakes) MIN19.714

That Council call in the Development Application DA19/1841 - 44 Duncan Street, Huskisson due to public interest.

For: Clr Gash, Clr White, Clr Wells, Clr Levett, Clr Digiglio, Clr Alldrick, Clr Gartner, Clr Pakes, Clr Watson, Clr Kitchener, Clr Proudfoot and Stephen Dunshea

Against: Nil

CARRIED

Reports

DE19.95 Development Application 18/2115 – 171B Strongs Rd JASPERS BRUSH – Lot 2 DP 778594

HPERM Ref: D19/240144

Recommendation (Item to be determined under delegated authority)

That Development Application No. 18/2115 for the ‘temporary use of land for events/functions including weddings’ be determined by way of refusal for the reasons set out in the Notice of Determination Attachment 1 to this report.

RESOLVED (Clr Proudfoot / Clr Wells) MIN19.715

For: Clr Gash, Clr White, Clr Wells, Clr Levett, Clr Digiglio, Clr Alldrick, Clr Gartner, Clr Guile, Clr Pakes, Clr Watson, Clr Kitchener, Clr Proudfoot and Stephen Dunshea

Against: Nil

CARRIED

DE19.104 Tomerong Quarry - Lot 4 DP 775296 Parnell Rd DA90/1912

HPERM Ref: D19/315873

Recommendation (Item to be determined under delegated authority)

That Council receive this report on Tomerong Quarry for information.

RESOLVED (Clr Levett / Clr Digiglio) MIN19.716

That Council receive this report on Tomerong Quarry for information.

For: Clr Gash, Clr White, Clr Wells, Clr Levett, Clr Digiglio, Clr Alldrick, Clr Gartner, Clr Pakes, Clr Watson, Clr Kitchener, Clr Proudfoot and Stephen Dunshea

Against: Nil

CARRIED

DE19.96 Development Application – No. 20, Lot 3 in DP 539866, The Wool Road Vincentia

HPERM Ref: D19/213103

Recommendation (Item to be determined under delegated authority)

That Council refuse Development Application DA18/1736 for change of use to dual occupancy and strata subdivision at lot 3 DP539866, 20 The Wool Road Vincentia, for the reasons set out in Attachment 1.

RESOLVED (Clr Proudfoot / Clr Wells) MIN19.717

That the matter of Development Application – No. 20, Lot 3 in DP 539866, The Wool Road Vincentia be deferred at the request of the Applicant.

For: Clr Gash, Clr White, Clr Wells, Clr Levett, Clr Digiglio, Clr Alldrick, Clr Gartner, Clr Pakes, Clr Watson, Clr Kitchener, Clr Proudfoot and Stephen Dunshea

Against: Nil

CARRIED

DE19.97 Proposed Public Exhibition - Planning Proposal (PP043) - Additional Permitted Use - South Nowra Industrial Expansion Zone

HPERM Ref: D19/284727

Recommendation (Item to be determined under delegated authority)

That Council:

1. Endorse Planning Proposal (PP043) – Additional Permitted Use – South Nowra Industrial Expansion Zone, updated to include the responses of Public Agency Consultation, for Public Exhibition for a minimum period of 28 days.

2. Receive a further report that provides the results of the Public Exhibition period and recommends the next steps to finalise the Planning Proposal.

RESOLVED (Clr Watson / Clr Digiglio) MIN19.718

That Council:

2. Receive a further report that provides the results of the Public Exhibition period and recommends the next steps to finalise the Planning Proposal.

For: Clr Gash, Clr White, Clr Wells, Clr Levett, Clr Digiglio, Clr Alldrick, Clr Gartner, Clr Pakes, Clr Watson, Clr Kitchener, Clr Proudfoot and Stephen Dunshea

Against: Nil

CARRIED

DE19.98 Urban Greening Strategy and Voluntary Compensatory Tree Planting Policy

HPERM Ref: D19/266523

Recommendation (Item to be determined under delegated authority)

That Council

1. Commence development of an overarching urban greening strategy in-line with other Australian and regional Councils to meet objectives within the Community Strategic Plan 2027, Integrated Strategic Plan 2018, Delivery Program and Operational Plan 2019-2020 and Illawarra Shoalhaven Regional Plan, that includes a compensatory tree replacement policy (except where a development application has triggered entry into the NSW Biodiversity Offset Scheme).

2. Hold a Councillor workshop so that Councillors can provide input into the development of the draft Strategy and Policy.

3. Following the Councillor workshop report back to Council the draft Strategy and Policy for endorsement for public exhibition.

4. Endorse the NSW LGA Increasing Resilience to Climate Change grant applied for in September 2019 to enable Council to undertake a tree canopy audit within urban areas to determine tree canopy and land use distributions, vegetation change and priority areas for potential planting and urban greening to assist in implementation of Council resolution (MIN18.955).

RESOLVED (Clr Proudfoot / Clr Pakes) MIN19.719

That the matter of Urban Greening Strategy and Voluntary Compensatory Tree Planting Policy be withdrawn pending a Councillor briefing and report back to Council.

For: Clr Gash, Clr White, Clr Wells, Clr Levett, Clr Digiglio, Clr Alldrick, Clr Gartner, Clr Pakes, Clr Watson, Clr Kitchener, Clr Proudfoot and Stephen Dunshea

Against: Nil

CARRIED

DE19.99 NSW Heritage Grants 2019-2020: Shoalhaven Local Heritage Assistance Fund

HPERM Ref: D19/289172

Recommendation (Item to be determined under delegated authority)

That Council endorse the allocation of the Shoalhaven Local Heritage Assistance Funds for the 2019-2020 program as listed in Table 1 within the report; and reallocate any declined offers amongst the remaining successful and eligible applicants if required.

RESOLVED (Clr White / Clr Proudfoot) MIN19.720

For: Clr Gash, Clr White, Clr Wells, Clr Levett, Clr Digiglio, Clr Alldrick, Clr Gartner, Clr Pakes, Clr Watson, Clr Kitchener, Clr Proudfoot and Stephen Dunshea

Against: Nil

CARRIED

DE19.100 Nowra-Bomaderry Retail Review - Exhibition Outcomes and Proposed Implementation

HPERM Ref: D19/293966

Recommendation (Item to be determined under delegated authority)

That Council:

1. Commission a detailed, city-wide retail supply and demand analysis modelled on forecast future population growth to inform its strategic land use planning activities.

2. Prepare a Planning Proposal to enable consideration of amendments to Shoalhaven Local Environmental Plan 2014 to:

a. Introduce a new local provision to support retail activity in Nowra CBD.

b. Change the zone objectives for B3 Commercial Core and B4 Mixed Use zones to support retail activity in Nowra CBD, and

c. Exclude general and speciality shops from the South Nowra bulky goods retail area.

3. Commence a detailed project to examine the location, size and function of the planned retail centres intended to service the Moss Vale Road Urban Release Areas and the land use zones associated with the southern centre.

4. Identify Planning Priorities in its Local Strategic Planning Statement to:

a. Develop a city-wide retail strategy to identify the amount and type of retail floor space required across all retail zones and centres, and

b. Develop place-based strategies to guide the future growth and development of Nowra CBD and Bomaderry.

RESOLVED (Clr Proudfoot / Clr Pakes) MIN19.721

That Council not proceed with the implementation of selected recommendations from the Nowra-Bomaderry Centres – Retail & Centres Planning Assessment.

For: Clr Gash, Clr White, Clr Wells, Clr Pakes, Clr Watson, Clr Kitchener and Clr Proudfoot

Against: Clr Levett, Clr Digiglio, Clr Alldrick, Clr Gartner and Stephen Dunshea

CARRIED

Items marked with an * were resolved ‘en block’.

DE19.101 St Andrews Way/Berry's Bay & Woollamia Sewerage Schemes - Waiving of Fees for Approval to Operate On-site Sewage Systems

HPERM Ref: D19/305033

RESOLVED* (Clr Proudfoot / Clr Wells) MIN19.722

1. That Council endorse the waiving of “Approval to Operate Systems of Sewage Management” and associated inspection fees for property owners within the St Andrews Way/Berry’s Bay and Woollamia Sewerage Schemes, during the construction phase of the schemes.

2. Any annual risk inspections required through the construction of the schemes be funded from Council’s sewer fund.

CARRIED

DE19.102 Formation of Collingwood Beach Dunecare Group - Progress Report

HPERM Ref: D19/308998

Recommendation (Item to be determined under delegated authority)

That Council receive the progress report, regarding the formation of the Collingwood Beach Dunecare Group, as per Council resolution (MIN19.318).

RESOLVED (Clr Proudfoot / Clr White) MIN19.723

That:

1. As part of the Natural Area Volunteers Group, a Dunecare Group be formed at Collingwood Beach prior to the Ordinary Meeting of council on 29 October 2019.

2. A draft Collingwood Beach Dunecare Management Plan be presented to the Ordinary Meeting of Council on 29 October 2019. This plan be formulated taking into consideration the submission by Coordinator, Dawn Thompson’s group, the Collingwood Beach Reserve Bushcare Action Plan (2008) and the Collingwood Beach Dune Vegetation Action Two-year Trial Plan.

For: Clr Gash, Clr White, Clr Wells, Clr Digiglio, Clr Gartner, Clr Pakes, Clr Watson, Clr Kitchener, Clr Proudfoot and Stephen Dunshea

Against: Clr Levett and Clr Alldrick

CARRIED

DE19.103 Initial Consideration - Proponent Initiated Planning Proposal - Danjera Dam Camping & Recreation Area

HPERM Ref: D19/309365

Recommendation (Item to be determined under delegated authority)

That Council:

1. Support the Planning Proposal request for the Danjera Dam Camping & Recreation Area submitted for Shoalhaven Water.

2. Prepare and submit the required Planning Proposal documentation to the NSW Department of Planning, Industry and Environment for Gateway determination, and dependent on the outcome proceed to exhibit the PP and report back to Council post-exhibition.

3. Advise the proponent of this resolution.

RESOLVED (Clr Watson / Clr Kitchener) MIN19.724

That Council:

1. Support the Planning Proposal request for the Danjera Dam Camping & Recreation Area submitted for Shoalhaven Water.

3. Advise the proponent of this resolution.

For: Clr Gash, Clr White, Clr Wells, Clr Levett, Clr Digiglio, Clr Alldrick, Clr Gartner, Clr Pakes, Clr Watson, Clr Kitchener, Clr Proudfoot and Stephen Dunshea

Against: Nil

CARRIED

DE19.104 Tomerong Quarry - Lot 4 DP 775296 Parnell Rd DA90/1912

HPERM Ref: D19/315873

Item dealt with earlier in the meeting see MIN19.716.

DE19.105 Submission - Proposed New Regulatory Framework - Short Term Rental Accommodation

HPERM Ref: D19/316058

Recommendation (Item to be determined under delegated authority)

That Council

1. Endorse the draft submission that was made on the proposed Short Term Rental Accommodation reform package (provided as Attachment 1 to this report) and advise the NSW Government accordingly.

2. Continue to play an active role, as required, in this important matter and received future reports as needed.

Clr Gartner - pecuniary interest declaration - owns a short term rental property with spouse – left the room and did not take part in discussion or vote.

Note: Clr Gartner left the meeting at 6.17pm.

RESOLVED (Clr Proudfoot / Clr White) MIN19.725

That Council:

1. Endorse the draft submission that was made on the proposed Short Term Rental Accommodation reform package (provided as Attachment 1 to this report) and advise the NSW Government accordingly.

2. Continue to play an active role, as required, in this important matter and received future reports as needed.

For: Clr Gash, Clr White, Clr Wells, Clr Levett, Clr Digiglio, Clr Alldrick, Clr Pakes, Clr Watson, Clr Kitchener, Clr Proudfoot and Stephen Dunshea

Against: Nil

CARRIED

Note: Clr Gartner returned to the meeting at 6.34pm.

DE19.106 Ministerial Representations - Chapter G4 Tree & Vegetation Management - Shoalhaven DCP2014

HPERM Ref: D19/316102

Recommendation (Item to be determined under delegated authority)

That Council

1. Determine relevant action having regard to options provided below or other appropriate actions,

2. Advise the NSW Minister for Planning & Public Spaces of this decision and keep him advised of the progress of the review/possible amendment to the DCP.

Clr Gartner raised a Point of Order against Clr Pakes for suggesting that some Councillors made accusations about illegal and wrong doing work taking place at the Huskisson Anglican Church site and those accusations haven’t been made by her.

The Chair did not rule as a Point of Order as accusations were made by signs being put up at Huskisson, that Clr Gash, Clr Watson and Clr Pakes had “ruined Huskisson” because of the trees.

Clr Gartner raised a Point of Order against Clr Pakes for saying that the Hon Justin Field, MLC was unfamiliar with the area and stated that he lives in the Shoalhaven. The Chair did not rule as a Point of Order.

RESOLVED (Clr Proudfoot / Clr White) MIN19.726

That Council:

1. Note the request received from the Minister that essentially requests that Council reconsider the current provisions in this regard and advise the Minister of Council’s decision to retain the current provisions for the overriding reason of public safety, noting that Council is also considering policy options to address tree loss within the City more generally.

2. Write to all tree lopping and tree removal contractors on an annual basis to explain their obligations before a tree is removed, under the “45 degree rule”. In addition, that the maximum penalties for any breaches be clearly outlined in the correspondence.

3. Advise the NSW Minister for Planning & Public Spaces of this decision.

For: Clr Gash, Clr White, Clr Wells, Clr Pakes, Clr Watson, Clr Kitchener, Clr Proudfoot and Stephen Dunshea

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

CARRIED

Note: A Rescission Motion was received on this Item.

Procedural Motion - Matters of Urgency

Motion (Clr White / Clr Pakes)

That an additional item in relation to DA16/1465, corner of Albatross Road and Kinghorne Street, Nowra be introduced as a matter of urgency.

The Chairperson ruled the matter as urgent as it is in the public interest.

DE19.107 Additional Item - Development Application - Residential Units and Commercial Space - 173 Kinghorne Street, Nowra

RESOLVED (Clr Watson / Clr Pakes) MIN19.727

That DA16/1465 – Residential Units and Commercial Space – 173 Kinghorne Street, Nowra be called in to Council for determination due to significant public interest.

For: Clr Gash, Clr White, Clr Wells, Clr Levett, Clr Digiglio, Clr Alldrick, Clr Gartner, Clr Pakes, Clr Watson, Clr Kitchener, Clr Proudfoot and Stephen Dunshea

Against: Nil

CARRIED

Note: A Rescission Motion was received in relation to DE19.106 – Ministerial Representations – Chapter G4 Tree & Vegetation Management – Shoalhaven DCP2014 signed by Clr Gartner, Clr Digiglio and Clr Levett. It will be considered at the Ordinary Meeting on Tuesday 29 October 2019 at 5pm in the Council Chambers.

There being no further business, the meeting concluded, the time being 7.42pm.

Clr Gash

CHAIRPERSON

Development & Environment Committee – Tuesday 05 November 2019

Page 1

DE19.109 Draft Low Density Residential Amendment - Shoalhaven DCP 2014 (DCP2014.25) - Post Exhibition Consideration and Finalisation

HPERM Ref: D19/332187

Group: Planning Environment & Development Group

Section: Strategic Planning

Attachments: 1. Exhibition Submission Summary ⇩

2. Chapter G12 - Post Exhibition Version (under separate cover) ⇨

Purpose / Summary

To consider the:

· Submissions received as a result of the public exhibition of the draft Low Density Residential Amendment (the Amendment) to Shoalhaven Development Control Plan (DCP) 2014.

· Amendments proposed at the 3 September 2019 Development & Environment Committee meeting.

· Finalisation of the Amendment.

Recommendation (Item to be determined under delegated authority)

That Council:

1. Adopt the draft Low Density Residential Amendment (the Amendment) as exhibited, with the inclusion of the changes to draft Chapter G12 as shown in Attachment 2, based on:

a. The summary of submissions at Attachment 1.

b. The amendments in Table 1 in this Report that were proposed at the 3 September 2019 Development & Environment Committee meeting; as modified by the Staff recommendations in Column 2 of Table 1.

2. Notify the adoption of the Amendment in local newspapers in accordance with the requirements of the Environmental Planning and Assessment Act 1979 and Regulations.

3. Rescind existing Chapter G12: Dwelling Houses, Rural Worker's Dwellings, Additions and Ancillary Structures of Shoalhaven Development Control 2014 when the Amendment is made effective.

4. Advise key stakeholders, including relevant industry representatives, of this decision and when the Amendment will be made effective.

Options

1. As recommended.

Implications: This is the preferred option as it will enable the resolution of operational issues and matters that require clarification to improve the function of the low density residential development provisions in Shoalhaven.

The Amendment will also result in provisions that holistically consider local character and context, good quality design, amenity, universal design (optional) and more broadly the public interest. It also gives due consideration to the submissions received and also the matters raised at the 3 September 2019 Development & Environment Committee meeting.

2. Adopt an alternative recommendation.

Implications: This will depend on the extent of any changes and could further postpone the finalisation of the Amendment. Depending on the extent of any changes that may be made to the exhibition version of the Amendment, re-exhibition may be appropriate.

One such alternative recommendation could be to adopt the changes proposed at the 3 September 2019 Development & Environment Committee meeting:

· Verbatim (i.e. column 1 of Table 1) and not as recommended in Column 2 in Table 1.

· With staff recommendations and further augmentation.

3. Not adopt the recommendation.

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

Background

On 7 May 2019, Council’s Development & Environment Committee resolved (MIN19.291) to:

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

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

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

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

The Amendment seeks to improve the function of low density residential development controls within the DCP and also address policy gaps/operational issues or matters that need clarification that have been identified in regard to this development form since the Shoalhaven DCP 2014 originally became effective on 22 October 2014.

The Amendment includes:

· The repeal of existing Chapter G12: Dwelling Houses, Rural Worker's Dwellings, Additions and Ancillary Structures.

· Proposed new Chapter G12: Dwelling Houses and Other Low Density Residential Development.

· Proposed related amendments to the DCP Dictionary.

Draft Chapter G12 applies to dwelling houses and rural workers’ dwellings (including additions and alterations), relocation of second-hand dwellings, detached habitable rooms, secondary dwellings, ancillary structures and non-habitable structures on vacant land.

Public Exhibition

In accordance with the resolution, the Amendment package was publicly exhibited for a period of 30 days from Wednesday 29 May to Friday 28 June 2019 (inclusive).

Notices appeared in local newspapers on 29 May 2019. All Community Consultative Bodies, relevant development industry representatives (91) and one interested community member were notified directly in writing.

The exhibition material included the:

· Explanatory Statement.

· Draft Chapter G12: Dwelling Houses and Other Low Density Residential Development and the draft Dictionary. To view a copy of these Chapters, refer to the attachments to item DE19.27 considered at the 7 May 2019 Development & Environment Committee Meeting (MIN19.291).

· Newspaper advertisement.

As a result of the exhibition, two (2) formal submissions were received from development industry representatives.

A detailed summary of the submissions, with a Council staff response is provided in Attachment 1.

Copies of the actual submissions will also be available for review in the Councillors’ Room prior to the meeting.

Post-Exhibition Amendments

Attachment 1 covers the content of the two submissions received, comments on them and highlights adjustments where required, justified etc.

Resulting from the submissions received, various amendments are proposed to the exhibited draft Chapter G12 as shown at Attachment 2. For convenience, the proposed changes are highlighted within the Chapter.

The recommended post exhibition amendments to draft Chapter G12 are summarised briefly below:

· Consolidation of content, as appropriate, to reduce length of the chapter and reduce duplication.

· Clarify content relating to ‘restriction as to user’ and ‘certain’ areas in relation to building materials, textures and colours.

· Clarify that setbacks may need to be reduced to respond to the prevailing setbacks in the streetscape. Also clarify that only the setbacks in the general vicinity of the subject land need to be considered when determining the prevailing setback in a street.

· Restructure and refine Table 2 (setbacks in urban areas), including the deletion of setbacks for development on battle axe lots and reduction of rear setbacks to 3m (average) as per Chapter G13 (Medium Density Residential Development) of the Shoalhaven DCP 2014 as recently amended by Council.

· Refine and delete provisions relating to storage for consistency with Chapter G13 as recently amended by Council.

· Removal of the restriction requiring car parking spaces to be provided behind the building line.

No changes are recommended in relation to the DCP Dictionary.

Consideration of subsequent proposed amendments

On 3 September 2019, the Development & Environment Committee initially considered the post-exhibition finalisation report for this Amendment. It was resolved (MIN19.616):

That this Item be deferred to a Councillor briefing to allow consideration and discussion of Clr Pakes’ proposed amendments prior to the next Council meeting.

The further amendments proposed by Clr Pakes to the exhibited Chapter G12 are outlined in column 1 of Table 1 below.

A Councillor briefing was held on 19 September 2019 to enable the consideration and discussion of the additional proposed amendment content. The Council staff response/feedback to the proposed amendments is outlined in column 2 of Table 1.

It is recommended that the proposed amendments in Table 1 also be made, as modified by the Council staff recommendations in column 2 of Table 1.

Column 1

Councillor Pakes’ Proposed Amendments

Column2

Staff Response/Recommendations

a. Objective ii in section 6.3.2 is amended to read:

ii. Ensure detached habitable rooms / studios function /operate as part of the principal dwelling and are linked by a continuously roofed, or, all weather hard stand connection.

No issue with proposed addition. Change supported.

b. P27, dot point 4 is amended to read:

Rely or the principal dwelling for either a laundry, bathroom, or kitchen

It is recommended that P27 (dot point 4) be amended as follows: “Rely on the principal dwelling for laundry and ~~bathroom~~ kitchen facilities”.

This is consistent with the proposed Dictionary term ‘detached habitable room’ and ‘detached studio’, the latter being a defined term in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.

This enables the detached habitable room to function as part of the principal dwelling, not as a separate dwelling, which is the clear intent.

c. A27.2 is deleted

This will remove the suggested 10m separation distance requirement between the detached habitable room and the principal dwelling.

This is not preferred as it becomes difficult for the detached habitable room to function as part of the principal dwelling, which is clearly the required intention. Note that this is an acceptable solution and may be varied having regard to the performance criteria.

Recommend retention as exhibited

d. A27.3 is amended to read:

A27.3 An all-weather connection shall be provided between the detached habitable room / studio and the principal dwelling ~~so they are physically connected~~.

No issue with proposed addition. Change supported.

e. A32.1 dot point 4 is amended to read:

Division 2 of State Environmental Planning Policy (Affordable Rental Housing) 2009. Additionally, Schedule 1 – Development Standards for Secondary Dwellings is to be used as a guide. Where a proposal does not meet Schedule 1 development standards, Council will require proponents to demonstrate consistency with relevant performance criteria within Parts 5 & 6 of this Chapter.

Note: Should be dot point 2, not dot point 4. Dot point 4 relates to compliance with the Building Code of Australia requirements.

Recommended that the exhibited A32.1 dot point 2 and associated note box be adapted as follows. This has the same intent but matches DCP drafting for consistency.

· AHSEPP - Schedule 1 Development standards for secondary dwellings, as a guide.

Note: Where the proposal does not comply with a provision in Schedule 1 of the AHSEPP, a ~~variation statement~~ ~~must form part of the~~ ~~development~~ ~~application in accordance with Chapter 1: Introduction of this~~ ~~Development Control Plan~~ the proposal must demonstrate consistency with the relevant performance criteria within Sections 5 and 6 of this Chapter.

f. Delete A33.2 and Table 4

This issue was identified by the Building & Compliance Section and is a significant issue in residential areas (‘monster sheds’).

The provision is existing, except for Figure 10 which provides guidance. The provision now also includes SP3 land.

It is recommended that the provision be retained, however if it is deleted then Figure 10 should also be deleted as it is referred to in Table 4.

Conclusion

The draft Amendment, with recommended post exhibition changes and certain components of changes proposed at the September 2019 Development & Environment Committee, holistically considers the planning/design of low density residential development in Shoalhaven into the future. As such, there is merit in now adopting and finalising the Amendment, noting that DCP controls can always be varied, set aside etc. where appropriate/justified.

Community Engagement

The draft Amendment was publicly exhibited for 30 days at the Nowra Administrative Building in accordance with legislative requirements. Two (2) submissions were received which are summarised at Attachment 1.

Policy Implications

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

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

Financial Implications

The finalisation of the Amendment will continue to be resourced within the existing Strategic Planning budget.

Risk Implications

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

Development & Environment Committee – Tuesday 05 November 2019

Page 1

DE19.110 Development Application – 52 Cyrus Street Hyams Beach – Lot 58 & DP 577627

DA. No: DA16/1341/4

HPERM Ref: D19/294076

Group: Planning Environment & Development Group

Section: Building & Compliance Services

Attachments: 1. Independent Planner Report - Kerry Gordon - Peter Stutchbury Architecture - Newport (under separate cover) ⇨

2. Conditions - Independent Planner - Kerry Gordon - Peter Stutchbury Architecture (under separate cover) ⇨

3. NSW Land & Environment Court Determination - Platford v Van Veenendaal and Shoalhaven City Council ⇩

Description of Development: Demolition of the existing dwelling and construction of two storey dwelling and boat house.

Owner: T G Van Veenendaal

Applicant: Peter Stutchbury Architecture

Notification Dates: 6 to 21 April 2016, renotified 10 to 25 October 2016, renotified 17 February to 6 March 2017, renotified 4 – 16 August 2018 and renotified 4 – 19 December 2018.

No. of Submissions: 41 submissions (17 of these were made on behalf of the owner at 54 Cyrus Street)

Purpose / Reason for consideration by Council

The Land and Environment Court determined that development consent granted for DA16/1341 is invalid and of no effect. The development application therefore remains undetermined.

This report provides an independent assessment of the application and recommends approval.

Recommendation (Item to be determined under delegated authority)

That Council approve Development Application DA16/1341 for demolition of the existing dwelling and construction of a two-storey dwelling and boat house situated at 52 Cyrus Street, Hyams Beach legally described as Lot 58 in DP577627, subject to the recommended conditions of consent contained in Attachment 2 of this report.

Options

1. Approve the development application (DA) in accordance with the recommendation of this report.

Implications: This would allow the applicant to proceed with the proposal and seek a construction certificate for development on the subject site.

2. Alternative recommendation

Implications: Council will need to specify an alternative recommendation and advise staff accordingly.

Background

Proposed Development

The proposed development seeks approval for demolition of the existing dwelling and construction of a two-storey dwelling and boat house.

Figure 1 – Proposed site plan

Figure 2 – Elevation

Subject Land

The subject site is located on the eastern side of Cyrus Street and is known as 52 Cyrus Street, Hyams Beach. The site is legally described as Lot 58 in DP 577627.

The site is an irregular shape allotment with an angled rear boundary to the foreshore and total site area of 941.7m². The site has a frontage of 13.715m to Cyrus Street and a rear boundary dimension of 21.925m. The southern side boundary dimension of 77.22m and northern side boundary dimension of 60.115m.

Figure 3 – Subject Site

History

The subject application was lodged with Council on 22 March 2016. The application has undergone several amendments and in particular the design of the boat shed. A number of geotechnical and coastal hazard assessments have been provided in response to requests for information from Council.

The application, in its various forms, has been notified five (5) times and received a total of 41 submissions. Of these submissions, 17 were received by or on behalf of the owner of the adjoining property at 54 Cyrus Street.

It was resolved by Council at its Ordinary Meeting of 28 February 2017 to call in the application for determination due to the significant public interest. The application was considered at Council’s meeting of 17 July 2017 where it was approved. Development Consent DA16/1341 was issued on 25 July 2017.

Subsequent to the issue of Development Consent DA16/1341, the owner of 54 Cyrus Street challenged the legal validity of the consent in the Land and Environment Court. The proceedings were heard by Preston CJ and a decision was handed down on 9 March 2018 with Orders as follows:

The Court:

(1) Declares that the development consent granted by the second respondent on or about 25 July 2017 in respect of the Development Application 16/1341 for development at 52 Cyrus Street Hyams Beach (“Purported Consent for DA 16/1341”) is invalid and of no effect.

(2) Sets aside the Purported Consent for DA 16/1341.

(3) Grants an injunction restraining the first respondent from undertaking any development in reliance upon the Purported Consent for DA 16/1341.

(4) Lists the proceedings at 9:30am on 26 March 2018 for directions concerning the question of the costs of the proceedings.

The effect of the Court’s decision is that DA16/1341 remains undetermined as consent granted by the Council on 17 July 2017 has been set aside. A copy of this determination is included at attachment 3.

Subsequent to the judgement, amended plans were submitted by the applicant, with changes confined to the design of the boat shed and boat shed arm to address wave run up.

Given the history of the development application, Council engaged an independent Town Planning Consultant to undertake a section 4.15 assessment.

Planning Assessment

The development application has been assessed against the provisions of section 4.15 of the Environmental Planning and Assessment Act 1979. The independent Town Planning Consultant’s assessment is attached and forms the basis of the recommendation contained in this report (Refer attachment 1).

The recommendation is based upon full and complete assessment, including the provisions within Chapter G6 Coastal Management Area of the Shoalhaven Development Control Plan 2014, including the contrary view articulated in the objector’s legal advice. The primary concern raised was the potential impact from wave runup in a 1 in 100 storm event.

The applicant has submitted revised plans to address this issue. The revised design includes suspended decking supported by concrete encased piers. This will ensure that any wave runup will be dispersed as opposed to hitting a solid wall which could potentially redirect the storm surge and impact upon the adjoining property.

In addition to the above, the proposed boat shed is in close proximity to the Banksia integrifolia which are identified to be retained and the works required for the footings of the boat shed have the potential to impact on these trees as depicted below in figure 3.

Figure 4 – Banksia Integrifolia to be retained

The trees will provide screening and softening of the visual impact of the boat shed as viewed from the beach to the east and their retention is considered appropriate for this reason.

In order to ensure the retention of the trees, the independent town planning consultant has recommended a condition to be placed upon the consent requiring the boat shed to be relocated 1.5m to the west, with the subsequent shortening of either the vegetable garden or outdoor wash area to accommodate the relocation. Condition eight (8) of the consent reads as follows:

Amended plans

1. Prior to the issue of the construction certificate, the applicant must submit to the PCA amended building plans that address the following:

a. The boat shed arm and boatshed must be reduced in length landwards such that its eastern extent is relocated 1.5m westward;

b. The WC within the boat shed arm shall be elevated such that the base of the slab shall be above RL 4.4 AHD;

c. The subfloor beam of the boat shed and boat shed arm shall be raised such that the base of the beam is at or above RL 4.4 AHD. This shall be achieved without increasing the height of the structure above RL 7.76 AHD;

d. The boat shed and entire boat shed arm shall be constructed on piled footings in accordance with the recommendations of the Report on Geotechnical Investigation by Douglas Partners Pty Ltd ref no Project 89244.00 R.001. Rev2 dated 15 February 2017;

e. All electrical, wiring, fuel lines or any other service pipes and connections to the boathouse arm must be located at least 500mm above the wave runup level; and

f. No filling shall be placed and no retaining walls shall be constructed in the wave runup area.

In summary, the independent Town Planning Consultant recommended that the development application should be supported subject to the attached conditions of consent.

Should Council determine that the provisions of Chapter G6 of SDCP prohibit the boat shed and boat shed arm seaward of the ZRFC 2025, contrary to the attached independent planners assessment, then it is recommended that Council grant partial consent to the development application without the boat shed and boat shed arm, with the following changes to the conditions:

1. Condition 3 be deleted and replacement with the following:

The boat shed and boat shed arm are not approved under this consent and are to be deleted from the Construction Certificate plans prior to issue of the Construction Certificate.

a. The boatshed arm and boat shed shall be deleted.

2. Condition 26 be amended by deletion of c, d and e.

3. Deletion of Conditions 8, 10 and 45.

A close up of a map

Description automatically generated

Figure 2 – Proposed Section Plan of the Boat Arm.

Consultation and Community Engagement:

The application, in its various forms, has been notified five (5) times;

· Initial notification 6 to 21 April 2016 (extended to 2 May 2016 in response to neighbour’s request). A total of 13 submissions were received from or on behalf of 6 respondents.

· Renotified 10 to 25 October 2016 (extended to 31 October 2016 in response to neighbour’s request) – amended plans, boat shed arm design statement, initial and supplementary Coastal Hazards Risk Assessment Reports. A total of 10 submissions were received from or on behalf of 6 respondents.

· Renotified 17 February to 6 March 2017 – additional information on geotechnical and coastal hazard assessment issues. A total of 16 submissions were received from or on behalf of 15 respondents.

Since the Court’s decision to set aside the consent granted by the Council, the application has been amended and renotified a further two times.

· The fourth notification occurred from 4–16 August 2018. In response to this notification 13 submissions were received.

· The fifth notification period occurred from 4–19 December 2018. In response to this notification 2 submissions were received.

All notifications were undertaken in accordance with Council’s Community Consultation Policy, with the letters for the first notification sent to the owners of four (4) properties lying within a 25m buffer of the site. Subsequent notifications were sent to the owners notified in the first round of notification and to those people who made submissions during the first and second rounds.

A summary of each submission and response has been provided in the attached Section 4.15 Assessment Report prepared by an independent Town Planning Consultant.

Financial Implications:

The development application was subject to a Class 1 appeal in the Land and Environment Court. The amended development application has addressed the issues raised as part of the Class 1 appeal which relate to wave run up. As a result, no further financial implications are likely to occur due to the previous proceedings.

Legal Implications

Pursuant to Section 8.2 of the EP&A Act, a decision of the Council may be subject of a review by the applicant in the event of an approval, partial approval or refusal. Alternatively, an applicant for development consent who is dissatisfied with the determination of the application by the Council may appeal to the Court against the determination pursuant to Section 8.7 of the EP&A Act.

Summary and Conclusion

Based upon the finding within the attached independent section 4.15 assessment report. It is recommended that Council approve DA16/1341, subject to the conditions at Attachment 2.

Development & Environment Committee – Tuesday 05 November 2019

Page 1

DE19.111 Development Application - SF10689 – Greens Road GREENWELL POINT – Lot 1 DP 625828

DA. No: SF10689/4

HPERM Ref: D19/306348

Group: Planning Environment & Development Group

Section: Development Services

Attachments: 1. Draft - Determination - Refusal - Greens Road, GREENWELL POINT - Lot 1 DP 625828 ⇩

2. Draft - Determination - Approval - Greens Road, GREENWELL POINT - Lot 1 DP 625828 (under separate cover) ⇨

3. Plans of Proposed Development (complied documents) for Council Report - SF10689 - Lot 1 DP 625828 - Greens Road, GREENWELL POINT ⇩

4. Planning Report – S4.15 Assessment Greens Rd GREENWELL POINT - Lot 1 DP 625828 (under separate cover) ⇨

Description of Development: Four (4) lot Torrens Title subdivision and placement of fill to create building platforms

Owner: J Farnham and V Farnham

Applicant: PDC Planners

Notification Dates: 29 April 2019 – 14 May 2019

No. of Submissions: 1 submission (objection)

Purpose / Reason for consideration by Council

At the Ordinary Meeting of 25 June 2019, Council resolved the following:

That Council call in the Development Application SF10689 - proposed 4 lot subdivision, Lot 1 DP 625828 Greens Road, Greenwell Point due to public interest. (MIN19.451)

This report has been prepared on the basis that the ‘call in’ is to determine the application.

Recommendation (Item to be determined under delegated authority)

That Development Application SF10689 for a ‘four (4) lot Torrens Title subdivision and placement of fill to create building platforms’ be determined by way of refusal for the reasons set out in the Notice of Determination (Attachment 1) to this report.

Options

1. Refuse the Development Application (DA) in accordance with the recommendation. (See Attachment 1.)

Implications: The application would not proceed. The applicant can apply for a section 8.2 review of Council’s decision and/or could lodge an appeal with the NSW Land and Environment Court against Council’s decision.

2. Approve the DA.

Implications: Council would have to determine the grounds on which the DA is to be approved, that is, provide reasons to support the development, having regard to section 4.15 considerations. A suite of conditions is attached in the event that Council supports the proposal (Attachment 2). Under some circumstances, third parties (i.e. objectors) can seek a judicial review of Council’s decision in the NSW Land and Environment Court.

3. Alternative recommendation

Implications: Council will need to specify an alternative recommendation and advise staff accordingly.

Location Map

Figure 1: Location Map

Background

Proposed Development

On 6 June 2018, Development Application (DA) No. SF 10689 was submitted, seeking development consent for a four (4) lot Torrens Title subdivision and placement of fill to create building platforms at Greens Road (Lot 1 DP 625828) as described in the Statement of Environmental Effects (SEE) prepared by PDC Planners (Ref: S18-019) dated June 2018 and amended 26 July 2018.

The subdivision is proposed pursuant to Clause 4.1 of Shoalhaven Local Environmental Plan 2014 (SLEP 2014).

Plans of the proposed development are shown in Attachment 3

Subject Land

The subject site is located at Greens Road, Greenwell Point and is legally described as Lot 1 in DP 625828.

Site & Context

The development site:

· is currently vacant and contains some established native vegetation with part of the land being mapped as ‘coastal wetlands’ under State Environmental Planning Policy (Coastal Management) 2018. Other areas of the site are mapped as ‘proximity area for coastal wetland’. The land mapped as ‘coastal wetlands’ is also identified as ‘excluded land’ on the Terrestrial Biodiversity Map in the SLEP 2014;

· has a steep drop in slope away from Greens Road on the western portion of the site, with the eastern portion of the site largely flat;

· is zoned R2 Low Density Residential and the property has a site area of 6,750m²;

· is identified as flood prone land with the majority of the site categorised as high hazard floodway;

· is mapped as Acid Sulfate Soils Class 5 and Class 2 in lower lying areas of the site; and

· is mapped as bush fire prone land.

The surrounding area is residential in character with the development site being adjoined by low density residential development to the west, an existing caravan/tourist park to the north and environmental conservation land to the south and east.

The Crookhaven oyster farming area is located approximately 200m to the east of the site.

History

The subject property was excised from the E2 Environmental Conservation zoned land to the east by way of subdivision which was registered 7 May 1982.

The subject site is vacant and has not been previously developed.

Post Lodgement

The following correspondence and actions have taken place with the applicant following the lodgement of SF10689:

6 June 2018	Application lodged with Council.
4 July 2018	Additional information requested by Council for applicant to clarify the proposed development, provide details of proposed filling and provide a variation statement to DCP controls with regard to subdivision and placement of fill on flood prone land
13 July 2018	Applicant submitted additional information in response to Council requests.
1 August 2018	Additional information requested by Council for applicant to clarify if proposal is considered to be ‘Designated Development’ under the Environmental Planning and Assessment Act 1979.
11 September 2018	Applicant provided legal opinion indicating that the application should not be considered as ‘Designated Development’.
23 April 2019	Legal advice received from Council’s Legal Department concurring that the application should not be considered as ‘Designated Development’
24 April 2019	Additional information requested by Council for the applicant to consider the proposed development’s impact on Acid Sulfate Soils, existing infrastructure, nearby oyster farms and associated infrastructure and provide additional information in regard to proposed filling.
12 June 2019	Applicant submitted additional information in response to Council requests.
13 May and 13 June 2019	Additional information requested by Council for applicant to consider the appropriateness of the development given site is mapped as flood prone land – high hazard floodway.
17 June 2019	Additional information requested by Council for applicant to provide geotechnical report and additional stormwater drainage infrastructure.
25 June 2019	At an Ordinary Meeting of Council, it was resolved that Council call-in SF10689 due to the public interest (MIN19.451).
30 June 2019 and 12 August 2019	Applicant submitted additional information in response to Council requests. This additional information indicated: a) A ‘variation statement’ will not be provided as the submitted Flood Impact Statement has already considered the performance criteria set out in Chapter G9 of SDCP 2014. b) Additional stormwater information has been provided, however, if further information is necessary, applicant is happy to liaise further with Council. This would occur if the elected Council decide to support the proposal on the grounds of flooding.

Issues

Issue – Clause 7.3 (Flood Planning) of Shoalhaven LEP 2014

Clause 7.3 of the SLEP 2014 specifies that development consent must not be granted to development on land at or below the flood planning level unless the consent authority is satisfied that the development:

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

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

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

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

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

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

Applicant’s Submission

The applicant submitted a ‘Flood Impact Statement’ and ‘Supplementary Letter’ in support of the application. The applicant contends that the proposal is satisfactory in regard to the considerations of Clause 7.3 of the SLEP 2014, by making the following comments:

*LEP Requirement*	*How the Proposal Addresses the Requirement*
To minimise the flood risk to life and property associated with the use of land,	Future risk to property and life is minimised by: · Improvement of residentially zoned land that is flood free in the 1% AEP event, including allowances for climate change. · Ensuring habitable floor levels (of future residential development) set at a minimum of the 1% AEP flood level plus 500mm. · All lots having reliable access available to Greens Road. · Safe refuge (of future residential development) available in the Probable Maximum Flood.
To allow development on land that is compatible with the land’s flood hazard, taking into account projected changes as a result of climate change	It is our view that the development is compatible with the lands flood hazard, as it will directly facilitate appropriate future development in accordance with the residential zoning. Sea level rise has been directly taken into account in the supplied FPL from SCC, and we have adopted this FPL for use in this study.
To avoid significant adverse impacts on flood behaviour and the environment.	It is our view that the impacts arising from the proposed development are not significant or adverse on flood behaviour or the environment, as they are directly commensurate with the lands zoning. Losses of flood storage in the Lower Shoalhaven River are immaterial.
The development is compatible with the flood hazard of the land.	It is our view that the proposed development is compatible with the flood hazard of the land. In effect, the development seeks to change the flood hazard on part of the land to enable future residential development to occur.
The development will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development of properties.	It is our view that the impacts arising from the proposed development are not significant or adverse on the potential flood affectation of other development of properties.
The development incorporates appropriate measures to manage risk to life from flood	It is our view that the proposed development meets this requirement. The proposed building areas are entirely above the 1% AEP flood planning level, and future residential development can readily meet the controls of SCC’s DCP (Chapter G9).
The development will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of riverbanks or watercourse	It is our view that the proposed development would cause no such environmental effects.
The development is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding	It is our view that the proposed development will not result in unsustainable social and economic costs to the community as a consequence of flooding. This is demonstrated, and managed, by: · Improvement of residentially zoned land that is flood free in the 1% AEP event, including allowances for climate change. · Ensuring habitable floor levels (of future residential development) set at a minimum of the 1% AEP flood level plus 500mm. · Safe refuge (of future residential development) in the PMF.
The development will not affect the safe occupation or evacuation of the land.	It is our view that the proposed development does not hinder evacuation, where it is ever required.

Discussion

The land is mapped as flood prone land and is categorised as high hazard floodway. The proposed subdivision will create four lots with dwelling entitlements with the implied right to construct a dwelling.

To facilitate the subdivision, the development also includes the placement of significant fill - up to 2.3m above natural ground level to create building platforms above the 1% AEP flood planning level. The proposal will place ‘obstructions’ in the high hazard floodway and will result in an increased dwelling density within a high hazard flood area as a result of the creation of additional allotments of land.

Council’s Natural Resources and Floodplain Unit (NRFU) provided referral comments on 8 August 2018 and 10 May 2019 noting numerous non-compliances with the SDCP 2014 and other flood controls and raising objection to the proposal.

Referral comments indicated that the application should not be supported as the proposed subdivision increased potential dwelling density in high hazard floodway land which presents a significant risk to life and property. The NRFU concluded that the development is not compatible with the land’s flood hazard and should not be supported.

The NRFU referral comments also note that rather than demonstrating any quantitative analysis, the Flood Impact Study only provides that in the view of the flood consultant the proposed development will not have any significant adverse impact and the proposal is suitable in the opinion of that flood consultant. The Flood Impact Study also does not assess any hydraulic impact towards the neighbouring property due to the filling.

The NRFU also noted that although this section of Greens Road is above the 1% AEP flood level, only a small area of land in this part of Greenwell Point is above the present day 1% AEP flood level and is isolated from the main Greenwell Point township and the rest of the local government area during the 1% AEP flood event (see Figure 2).

Figure 2: Map showing extent of flooding during the 1% AEP flood event.

Subject property is highlighted in blue. Greenwell Point is shown to the north

The proposed development is not suitable with regard to the considerations of clause 7.3 (3) of SLEP 2014, specifically:

a) The proposed subdivision and placement of fill is not compatible with the flood hazard (high hazard floodway) of the land as it will likely negatively alter floodwater behaviour and present an increased risk to life and property. The applicant has not demonstrated to the contrary.

b) The placement of substantial amounts of fill within the high hazard floodway would likely alter floodwater behaviour and potentially displace floodwater onto adjoining properties. The application has not adequately demonstrated that the development, particularly the placement of fill, will not significantly adversely affect flood behaviour resulting in detrimental increase in the potential flood affectation of adjoining properties.

c) The placement of fill within a high hazard floodway may potentially exacerbate erosion and siltation processes during flood events and lead to additional sediment entering the adjoining coastal wetland. This could have an adverse impact on riparian vegetation within nearby sensitive wetland environments. The application has not adequately demonstrated that the development will not significantly adversely affect the environment or not exacerbate erosion or siltation processes or lead to the destruction of riparian vegetation by altering floodwater behaviour. The applicant provided some additional information; however, it is considered that the information provided has not adequately addressed how erosion and siltation processes will be managed and adverse impacts minimised.

d) The proposed subdivision is of land within a high hazard floodway where safe evacuation out of the immediate area may not be achievable, thereby increasing the dependence on emergency services. It is considered that the proposal is likely to result in additional social and economic costs to the community as a consequence of flooding by increasing dwelling density in a flood area with restricted evacuation, presenting an increased risk to life and property and increasing burden on emergency services for the community.

e) Safe occupation or evacuation from the immediate area may not be achievable in a flood event and access will also be cut off from the Greenwell Point township during the 1% AEP flood. Greenwell Point is also itself cut off. Refer to Figure 2.

Issue – State Environmental Planning Policy (Coastal Management) 2018

The subject land is mapped as “coastal environment area”, “coastal use area”, “proximity area for coastal wetlands” and “coastal wetlands” under SEPP (Coastal Management) 2018.

Part 2 of the SEPP identifies the matters for consideration for development on land identified within coastal wetlands, on land in proximity to coastal wetlands and land within the coastal use area and coastal environment area. The matters for consideration are discussed in detail in the section 4.15 Planning Report for SF10689 (Attachment 4).

As discussed in the section 4.15 Planning Report for SF10689, the application has not demonstrated that the proposal is suitable in relation to the considerations set out in SEPP (Coastal Management 2018), specifically potential adverse impact of proposed developments on nearby mapped “coastal wetlands”. For example, the proposed placement of fill within the high hazard flooding area may alter floodwater behaviour and potentially exacerbate erosion and siltation processes which may lead to additional sediment being displaced and deposited onto the coastal wetland area. This may have adverse impacts on sensitive vegetation and the integrity of the coastal wetland. The applicant provided additional information; however, it is considered that the information provided has not adequately addressed the potential environmental impacts on coastal wetlands or any measures proposed to protect the biophysical, hydrological and ecological integrity of the coastal wetland. The application is not supported on this basis.

Issue – Shoalhaven DCP Chapter G9 (Development on Flood Prone Land)

Objectives of Chapter G9: Development on Flood Prone Land, SDCP 2014

The objectives of the Chapter are to:

i. Reduce risk to life and property resulting from floods.

ii. Ensure that the impacts of the full range of flood sizes up to and including the probable maximum flood (PMF) are considered when assessing development on flood prone land.

iii. Ensure that the impact of climate change is considered when assessing development on flood prone land.

iv. Ensure the future use of flood prone land does not cause undue distress to individuals or unduly increase potential flood liability to individuals or the community

v. Incorporate site specific floodplain management recommendations from local floodplain risk management plans into Council’s overall planning framework.

The proposed development involves the placement of fill and subdivision of land within a high hazard floodway. The application has not demonstrated that the development is compatible with the current or predicted future flood hazard of the land and, rather, presents an increased risk to life and property. The proposed subdivision would increase dwelling density in an area with restricted flood evacuation from the immediate area and so increasing reliance on emergency services and community resources. The proposal is inconsistent with the overall objectives of Chapter G9.

Objectives and Performance Criteria P2 of Control 5.2 Fill or Excavation on the Floodplain, Chapter G9: Development on Flood Prone Land, SDCP 2014

Objectives

The objectives of Control 5.2 are to:

i. Ensure that filling or excavation within the floodplain does not have a significant impact on flood behaviour, conveyance and storage capacity, as well as surrounding properties or structures and the environment in the specific area where the development is proposed.

The application has not provided any quantitative analysis of flood behaviour. The submitted Flood Impact Report only provides, that in the view of the flood consultant, the proposed development will not have any significant adverse impact. The Flood Impact Study also does not assess any hydraulic impact towards the neighbouring property due to the filling. Assessment staff are not satisfied that the application and submitted Flood Impact Study has demonstrated that the proposed development and proposed filling within the high hazard flood area will not significantly adversely affect flood behaviour and have a detrimental impact on adjoining properties, structures and sensitive environments though displacement of floodwaters. The proposal is inconsistent with the objectives of Control 5.2.

Performance Criteria

P2 states that:

“Filling or excavation on flood prone land will meet the following:

· High hazard floodway areas are kept free of fill and/or obstructions.

· The proposed fill or excavation will not unduly restrict the flow behaviour of floodwaters.

· The proposed fill or excavation will not unduly increase the level or flow of floodwaters or stormwater runoff on land in the vicinity, including adjoining land.

· The proposed fill or excavation will not exacerbate erosion, siltation and destruction of vegetation caused by floodwaters flowing on the land.

· The proposed fill or excavation will not be carried out on flood prone land if sufficient flood free area is available for development within the subject property.

· The proposed excavation does not create new habitable rooms, non-habitable storage areas or carparks with floor levels below the existing ground level.”.

The proposed development involves the placement of fill within a high hazard floodway area to facilitate the subdivision. Furthermore, the application has not adequately or quantitively demonstrated that the placement of fill within the floodway will not adversely affect flood behaviour by displacing floodwater and will not have a detrimental impact on adjoining properties. Insufficient information has been provided to demonstrate that the development and proposed filling will not exacerbate erosion and siltation processes which may lead to additional sediment being deposited on nearby sensitive coastal environments. The proposed development is inconsistent with P2.1.

Performance Criteria P3.1, P3.2 and P3.3 of Control 5.3 Subdivision in the Floodplain, Chapter G9: Development on Flood Prone Land, SDCP 2014

Objectives

The objectives of Control 5.3 are to:

i. Ensure that the creation of new lots does not increase potential flood risks to landowners or the community.

ii. Ensure that new lots that are created on the floodplain are suitable for, and capable of, being developed for their intended future use.

The proposal involves subdivision of land within a high hazard floodway with restricted evacuation access from the immediate area. Subdivision of high hazard flood areas is not supported in the DCP as it presents and increased risk to life and property. The application has not adequately or quantitatively demonstrated that the proposed placement of fill within the floodway will not have a detrimental impact on adjoining properties and nearby sensitive environments. Further, the restricted evacuation access from the immediate area increases the community’s reliance on emergency services during a flood event.

The proposal necessitates the placement of substantial amounts of fill, up to 2.1m above natural ground level, within the floodway in order to create building envelopes above the 1% AEP flood level. The proposal is inconsistent with the objectives of Control 5.3.

Performance Criteria

P3.1 states that “The development (subdivision and intended future use) is a suitable land use, and is adequately designed, for the defined hazard/hydraulic category.”

P3.2 states that “the proposed subdivision will not create new lots that are affected by a high hazard area, or floodway in today’s flood conditions or in climate change conditions up to the year 2100.”

P3.3 states that “the proposed subdivision will not increase the potential population density in any areas (flood prone or flood free) with restricted evacuation access.”

The proposed development involves subdivision of high hazard floodway and the creation of four additional dwelling sites with restricted evacuation access from the flood affected area. The proposal is therefore inconsistent with P3.1 and P3.3 and in direct contrast to P3.2.

Applicant’s Submission

The Flood Impact Statement contends that the proposal is satisfactory in regard to the performance criteria set out in Section 5.2 Fill or Excavation on the Floodplain in Chapter G9 of the SDCP 2014, by making the following comments:

*DCP Performance Criteria*	*How the Proposal Addresses the Performance Criteria*
High hazard floodway areas are kept free of fill and/or obstructions.	Minor amounts for fill are proposed in the high hazard floodway areas, specifically to generate modest building envelopes to support development on the land commensurate with its zoning. The impacts of this filling are unquantifiable because they are so minor. Given that the minor amount of filling is specifically for the purposes of supporting residential development on residentially zoned land, there is no engineering-based reason why such filling is not reasonable.
The proposed fill or excavation will not unduly restrict the flow behaviour of floodwaters.	The proposed fill does not unduly restrict the flow behaviour of floodwaters, as the fill simply extends an embankment adjacent to Greens Road.
The proposed fill or excavation will not unduly increase the level or flow of floodwaters or stormwater runoff on land in the vicinity, including adjoining land.	The proposed fill does not unduly increase the level or flow of floodwaters or stormwater runoff on land in the vicinity, including adjoining land, as the fill simply extends an embankment adjacent to Greens Road.
The proposed fill or excavation will not exacerbate erosion, siltation and destruction of vegetation caused by floodwaters flowing on the land.	We do not consider the proposed earthworks will exacerbate erosion, siltation and destruction of vegetation caused by floodwaters flowing on the land.
The proposed fill or excavation will not be carried out on flood prone land if sufficient flood free area is available for development within the subject property.	The proposed residential development would be very difficult to achieve without the accompanying fill. The entire site is zoned for R2 residential purposes.
The proposed excavation does not create new habitable rooms, non-habitable storage areas or carparks with floor levels below the existing ground level.	No excavation is proposed.

The Flood Impact Statement does not provide any commentary specifically addressing the performance criteria set out in Section 5.3 Subdivision in the Floodplain in Chapter G9 of the SDCP 2014.

Discussion

Referral comments from Council’s NRFU note that the proposal is inconsistent with the development controls and the performance criteria set out in Chapter G9 of SDCP 2014. Referral comments conclude that the proposal should not be supported due to the non-compliances with the relevant performance criteria and implications and impacts of allowing placement of substantial amounts of fill to facilitate a subdivision on land categorised as high hazard floodway.

The proposed development is not suitable having regard to the SDCP 2014, specifically due to the non-compliance with the performance criteria (P2.1, P3.1, P3.2 and P3.3) set out in Chapter G9. The application is not supported because:

a) The proposal involves the placement of a substantial amount of fill (up to 2.1m above natural ground level) within a high hazard floodway land to create building platforms above the 1% AEP land. P2.1 requires that “high hazard floodway areas are kept free of fill and/or obstructions” and the proposal is in direct contrast to this requirement. The proposal is inconsistent with performance criteria P2.1.

b) P2.1 requires that “The proposed fill or excavation will not unduly restrict the flow behaviour of floodwaters” and “The proposed fill or excavation will not unduly increase the level or flow of floodwaters or stormwater runoff on land in the vicinity, including adjoining land”. The application has not adequately considered the impact of this filling on adjoining property and the environment. It is considered that the proposed filling would likely affect the flow and behaviour of floodwaters and would have an adverse impact on adjoining property by redirecting flows onto adjoining land. The proposal is inconsistent with performance criteria P2.1.

c) P2.1 specifies that “The proposed fill or excavation will not exacerbate erosion, siltation and destruction of vegetation caused by floodwaters flowing on the land”. The application has not adequately demonstrated that the proposal would not exacerbate erosion or siltation processes.

Further, adequate information has not been provided for Council to be satisfied that the proposed development would not have a significant impact on native vegetation or nearby environmentally sensitive ecosystems, such land mapped as ‘coastal wetland’ as a result of the alteration to floodwater behaviour. The proposal is inconsistent with performance criteria P2.1.

d) P3.1 requires that “the development (subdivision and intended future use) is a suitable land use, and is adequately designed, for the defined hazard/hydraulic category”. The proposed subdivision of residential land necessitates the placement of substantial amounts of fill on high hazard floodway land and is therefore not considered to be a suitable land use given the flood hazard of the land. The proposal is inconsistent with performance criteria P3.1.

e) P3.2 states that “the proposed subdivision will not create new lots that are affected by a high hazard area, or floodway in today’s flood conditions or in climate change conditions up to the year 2100”. The proposed development involves creation of additional lots that are affected by a high hazard area and is therefore in direct contrast to this requirement. The proposal is inconsistent with performance criteria P3.2.

f) P3.3 requires that “the proposed subdivision will not increase the potential population density in any areas (flood prone or flood free) with restricted evacuation access”. Although the property has access to a section of Greens Road which is above the 1% AEP flood level, flood free access from the immediate area is unachievable and the site would be isolated from the Greenwell Point township which is also isolated during the 1% AEP flood event. As such, it is considered that the development is inconsistent with performance criteria P3.3.

Issue – Stormwater Drainage

The application proposes to direct stormwater from any future dwellings to absorption trenches and level spreaders 3m from the eastern boundary of each proposed lot.

Applicant’s Submission

Stormwater information and a Report on Geotechnical Investigation was submitted in support of the application. The applicant has also provided the following comments in relation to stormwater issues raised by Council:

Whilst the stormwater plan submitted proposes absorption trenches, it also specifies a level spreader for each lot. The stormwater plan basically assumes zero absorption, and it therefore assumes all runoff that isn’t stored in the absorption trenches will percolate thru the ground surface and then discharge across the rear boundary as shallow sheet flow – much like it does now.

With respect to the size, shape and location of absorption trenches, it is our position that the provision of this information is premature and it is more appropriate that these requirements be calculated at DA stage for future dwellings.

We are happy to liaise further with the Council in relation to stormwater if required and should the elected Council make a decision to support the proposal on flooding grounds, however we do not think this is necessary. Sufficient information has been provided to Council to date in order for it to make a planning decision for the application in relation to stormwater and the submitted concept plan is sound.

Discussion

Council’s Asset and Works – Drainage Engineer provided referral comments on 31 May 2018 and 15 August 2019 firstly requiring a geotechnical report and additional stormwater information be submitted and also noting potential issues with the site’s suitability for on-site stormwater disposal. Upon reviewing the additional information provided by the applicant, the following referral comments were made:

I have reviewed the additional information provided including the Geotech report:-

1) I can conclude from the geo report that absorption trench, as proposed, is an unsuitable method of stormwater dispersal at this site.

2) Given point (1) above, applicant needs to demonstrate how the site will manage its stormwater discharge. How and where a suitable site stormwater discharge will be achieved.

3) Location and method of stormwater discharge will impact adjoining properties, in particular, if overland discharge is proposed. I note that a caravan park adjoins this site. I have concerns related to the impact of the proposed stormwater discharge onto this caravan park and request further information on measures proposed to mitigate overland flow impacts.

4) Overland runoff will exacerbate waterlogging in an area already prone to water issues.

In this regard, the follow concerns arise:

a) Based on a review of the hydraulic conductivity of the site, it does not appear that the proposal could effectively utilise absorption trenches to manage stormwater discharge from future development of the lots.

b) On-site stormwater disposal may have an adverse impact on adjoining property. If absorption trenches do not have capacity to manage stormwater from future residential development on the lots, overflow would flow onto adjoining land.

c) The filling and proposed stormwater drainage methods could have an adverse impact on adjoining land and nearby environmentally sensitive ecosystems (e.g. ’coastal wetland’) by exacerbating waterlogging in an area already prone to water issue.

Noting that alternatives can potentially be explored and designed by the applicant, stormwater management is not considered an overwhelming or fatal issue. However, any solution will need to have regard to Council’s stormwater requirements and could result in unforeseen time and expense to the applicant.

Planning Assessment

The DA has been assessed under section 4.15 of the Environmental Planning and Assessment Act 1979. Please refer to Attachment 4.

The issues relating to the flood hazard of the land and stormwater disposal are the reasons for recommending refusal.

Policy Implications

SDCP 2014 Chapter G9

The proposed development conflicts with the Performance Criteria P3.1, P3.3 and is in direct contrast to P2.1 and P3.2 of Chapter G9 of SDCP 2014.

The NSW Floodplain Development Manual provides the following guidance for circumstances such as are brought into focus by the current application:

“Case-by-case decision making cannot account for the cumulative impacts on flood behaviour and risks, caused by individual developments of works. This form of assessment contravenes the principles of the manual.” (NSW Floodplain Development Manual, p.5).

“A fundamental principle of floodplain risk management is to assess development applications within the strategic framework of a floodplain risk management plan and not in isolation or individually.” (NSW Floodplain Development Manual, p.12).

If Council were of a mind to approve SF10689, this would be inconsistent and in direct contrast to the performance criteria set out in Chapter G9 of the SDCP 2014, specifically those that prohibit the placement of fill or other obstructions in high hazard floodway and also those that prohibit the creation of additional lots in high hazard flooding areas or any floodway.

Approval of the current application would potentially compromise flood related performance criteria set out in Chapter G9.

Consultation and Community Engagement:

One (1) public submission was received objecting to the development in relation to Council’s notification of the development.

The notification was made in accordance with Council’s Community Consultation Policy with letters being sent within a 25m buffer of the site. The notification was for a two week period.

Key issues raised in the objection are as follows:

Issue – Subdivision and filling of high hazard floodway

Concern raised about the proposed subdivision and impact of proposed filling in a high hazard floodway. The submission identified that filling of the land would have an adverse impact on adjoining land, leading to altered flood behaviour and detrimental increases in the potential flood affectation of nearby and adjoining land and properties.

Comment

The application has not adequately demonstrated that the proposed development will not adversely impact on adjoining properties.

Similar concerns in relation to subdivision and filling high hazard floodway land have been raised by Council’s NRFU and by assessment staff. It is considered that the proposed development may adversely impact on adjoining land by altering flows and floodwater behaviour. The proposed subdivision and filling of land presents an increased flood risk to life and property.

Issue – Stormwater management and water quality

Concern raised about the proposed stormwater design and the impact of the development on water quality and how this will impact on nearby oyster leases.

Comment

The application has not adequately demonstrated that the proposed stormwater drainage design with disposal by way of absorption trenches and level spreaders is appropriate.

Similar concerns in relation to stormwater disposal have been raised by Council’s Assets – Drainage Engineer and by assessment staff. Based on a review of the provided stormwater information and the hydraulic conductivity of the site, it does not appear that the proposal could effectively utilise absorption trenches to dispose of stormwater from future development.

With regard to nearby oyster leases, referral comments from NSW Department of Primary Industries recommend that appropriate sediment and erosion controls must be in place to ensure that development does not impact on the health and lifecycle of aquatic organisms. Erosion and sediment controls could be applied to minimise impact on nearby oyster leases.

Issue – Integrated development – proximity to watercourse

Is the development integrated development? Therefore, it would require a controlled activity approval under the Water Management Act.

Comment

The proposed development does not involve work within 40m of ‘waterfront land’ or a ‘river’ as defined under the Water Management Act 2000. The current application is not nominated integrated development under the Water Management Act 2000.

Issue – Acid Sulfate Soil (ASS)

Concerns were raised in relation to the impact of the proposed development, specifically the proposed absorption trenches on acid sulfate soils.

Comment

The application has been supported by a Geotechnical Investigation Report. This Report identified that the land is likely to contain ASSs and recommended that appropriate measures be implemented on site where ASS is disturbed. It is considered that subject to compliance with the recommendations of the Report on Geotechnical Investigation, the development will not have an unacceptable impact on ASSs.

Financial Implications:

There are potential cost implications for Council in the event of a refusal of the application. Such costs would be associated with defending any appeal in the NSW Land and Environment Court, should the applicant utilise appeal rights afforded under the EP&A Act.

Legal Implications

Council is protected in its decisions relating to floodplain management by section 733 of the Local Government Act 1993 (LG Act), provided it acts in good faith. That is, Councils have due regard to the policy framework, controls applicable and the circumstances of the particular case.

Council may not be seen to have acted in good faith if it were to approve a development application that is clearly inconsistent with the performance criteria set out in an adopted development control plan, and in the absence of sound planning reasons to support a development. Council in such a scenario could be exposed to challenge in relation to losses encountered due to flooding of the approved development or in increasing the risk to other properties, people and emergency services personnel.

Summary and Conclusion

This application for a four (4) lot Torrens Title subdivision and placement of fill at Greens Road (Lot 1 DP 625828) is inconsistent with the provisions of Clause 7.3 of SLEP 2014, SEPP (Coastal Management) 2018 and also performance criteria (P2.1, P3.1, P3.2, P3.3) of Chapter G9 of SDCP 2014 as outlined in this report.

Given the issues that have arisen with regard to flooding, a negative recommendation has been made. As a secondary issue, the application has not adequately demonstrated that stormwater can be appropriately managed from future development on the lots. However, subject to suitable design this secondary issue could potentially be resolved and / or addressed via conditions of development consent.

Development & Environment Committee – Tuesday 05 November 2019

Page 1

DE19.112 Development Application SF10741 – 636 Murramarang Road KIOLOA – Lot 9 DP 245582

DA. No: SF10741/4

HPERM Ref: D19/344549

Group: Planning Environment & Development Group

Section: Development Services

Description of Development: Two (2) lot Torrens Title subdivision

Owner: E Beard & S Clelland

Applicant: E Beard & S Clelland

Notification Dates: 30 May 2019 – 14 June 2019

No. of Submissions: Nil

Purpose / Reason for consideration by Council

Variation to Chapter G8 – Onsite Sewage Management of Shoalhaven Development Control Plan (SDCP) 2014

· The development application (DA) proposes a variation to Chapter G8 – Onsite Sewage Management of Shoalhaven Development Control Plan (SDCP) 2014, to permit the provision of effluent pump out services to proposed lots to be created via the subdivision of land as proposed in SF10741.

· Provision of pump out services to new lots requires Council approval.

· Section 5.3 of Chapter G8 of SDCP 2014 specifies “new pumpout services are not to be provided to new subdivisions or new rezonings”. As such, the matter is reported to Council for confirmation that the variation to SDCP 2014 is supported.

Recommendation (Item to be determined under delegated authority)

That Council:

1. Support the request to permit the provision of new additional effluent pumpout services to proposed Lot 1 (Development Application SF10741 - 636 Murramarang Road, Kioloa)

2. Refer the application back to staff for determination.

Options

1. Support the variation to SDCP 2014 with respect to the provision of new pumpout services to proposed Lot 1:

Implications: This will enable the completion of the s4.15 assessment and determination of the application.

2. Not support the variations to SDCP 2014.

Implications: The DA as currently submitted will not be able to be supported and would therefore be determined by way of refusal under delegated authority.

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

Location Map

Figure 1: Location map

Background

Proposed Development

On the 20 May 2019, Development Application (DA) No. SF10741 was lodged with Council. The DA is for a two (2) lot Torrens Title subdivision at 636 Murramarang Road, Kioloa (Lot 9 DP 245582) as described in the Statement of Environmental Effects (SEE) prepared by Planscapes Town Planning Consultancy and dated 19 April 2019. The subdivision is proposed pursuant to Clause 4.1 of Shoalhaven Local Environmental Plan 2014 (SLEP 2014).

Plans of the proposed development are shown in Attachment 1.

Subject Land

The subject site is located at 636 Murramarang Road, Kioloa and is legally defined as Lot 9 DP 245582.

Site & Context

The development site:

· currently contains a commercial/retail building (food and drink premises) on the eastern portion of the site. This building is currently undergoing renovations and refurbishment as approved by DA18/1320 (as modified). DA18/1320 (as modified) also approves the use of the land immediately to the west of the existing commercial building for a car park for the food premises. All these existing structures and associated infrastructure are contained within proposed Lot 2. The western portion (proposed Lot 1) of the site is vacant.

· has a gentle slope to the east, towards Murramarang Road.

· is zoned RU5 Village and the property has a site area of 1,719.91m².

· is mostly mapped as containing acid sulfate soils class 5, with a small portion of the eastern part of the site mapped as class 3.

· is mapped as bush fire prone land.

The surrounding area is residential in character with the development site adjoined by low density residential development to the north, a caravan park/tourist park to the east, community facilities (rural fire station and community hall) to the south and bushland to the west.

History

The subject property forms part of the Kioloa township. The lot was created in 1954 at the same time as the other residential lots to the north.

The subject site contains an existing commercial/retail building (food and drink premises) which is currently undergoing renovations and refurbishment as approved by DA18/1320 (as modified).

Post Lodgement

The following correspondence and actions have taken place with the applicant following the lodgement of SF10689:

20 May 2019	Application lodged with Council.
28 May 2019	Additional information requested by Council for applicant correct errors within submitted SEE
29 May 2019	Applicant submitted additional information in response to Council requests.
31 July 2019	Email sent to applicant advising that integrated referral payment through the ePlanning Portal was outstanding. Advised to organise payment to NSW Rural Fire Service.
2 August 2019	Integrated development fee paid to NSW Rural Fire Service
23 August 2019	General Terms of Approval issued by NSW Rural Fire Service

Issues

Issue – Shoalhaven DCP 2014 – Chapter G8 Onsite Sewage Management

Section 5.3 – Effluent Management

Section 5.3 of Chapter G8 of SDCP 2014 states that:

The following is required to ensure that the installation of pumpout systems is environmentally and economically efficient:

· New pumpout services must be generally allowed on existing lots within unsewered residential or commercially zoned land within Shoalhaven that was existing before the adoption of Council’s former Effluent Pumpout Policy on 28 August 2007.

· New pumpout services are not to be provided to new subdivisions or new rezonings.

· Pumpout services are not to be provided to multi-unit housing in villages not designated for future reticulation services. Future reticulation services are identified in Council’s adopted 20 year financial and capital works forward plan.

The proposed development relies on the provision of pumpout services to both lots. Proposed Lot 2 already contains an existing commercial/retail building and associated pumpout services/infrastructure. The current proposal will create an additional lot (Lot 1) that would be reliant on effluent pumpout services.

Applicant’s Submission

The applicant has provided the following commentary in in support to the proposed variation to Chapter G8 of SDCP 2014:

The subject land as it is today, is a parcel that existed prior to the adoption of Council’s former Effluent Pumpout Policy in 2007. If a house were built on the land prior to the subdivision taking place, it would be able to have an effluent pumpout system.

This is not a new subdivision in the sense of the abovementioned requirements, it is an infill subdivision of an existing parcel in an area which benefits from pumpout. The ‘new subdivisions’ mentioned above relates to urban expansion areas and the subdivision of larger parcels into numerous lots, its intention wasn’t to apply to subdivision of this nature.

Council has approved numerous subdivisions since 1995 where the lots benefit from pumpout services. In this instance, the subdivision is primarily to cut off the café so that it can be separately owned and rated as a business.

The landowners are fully cognisant of the requirement for a restriction on the title for full cost to be borne by the developer / owner of lot 1 for the provision of pumpout services. We request therefore that this application be reported to Council in this regard.

Discussion

· The western portion of the site is vacant and has the potential for a dwelling to be constructed on it.

· The proposed subdivision is consistent with the historic subdivision pattern of the residential area immediately to the north of the site.

· Based on the available land area and dimensions of the site, other methods of on-site effluent management are unfeasible.

· Shoalhaven Water has reviewed the application. Shoalhaven Water does not object to the proposal.

· There are no plans to connect the Kioloa township to the reticulated sewer or water network and it is unlikely that this would occur in the foreseeable future.

· As per Chapter G8 of SDCP 2014, new pumpout services must be generally allowed on existing lots within unsewered residential or commercially zoned land within Shoalhaven that was existing before the adoption of Council’s former Effluent Pumpout Policy on 28/8/2007.

· The subject lot was existing prior to 2007 and has the potential for further development (e.g. construction of a residential dwelling on the western portion of the site). Effluent management for proposed Lot 1 through provision of additional effluent pumpout services is considered satisfactory having regard to the circumstances of the case.

Planning Assessment

The DA will be assessed under s4.15 of the Environmental Planning and Assessment Act 1979.

Policy Implications

Shoalhaven Development Control Plan 2014 (SDCP 2014)

Chapter G8 of SDCP 2014 does not support the provision of new pump out services unless the environmental impacts are minor or the alternative carries a greater environmental risk. In this instance, the proposal is a reasonable solution noting that other options are not practical or achievable.

Consultation and Community Engagement:

· No public submissions were received during the notification period.

· The notification was made in accordance with Council’s Community Consultation Policy with letters being sent within a 25m buffer of the site.

· The notification was for a two (2) week period.

Financial Implications:

In the event that Council decides to adopt the recommendation, the application will still need to have a favourable final s4.15 assessment to enable consent to be issued however the ‘policy’ issue concerning effluent disposal would be resolved.

It is also important to note Council resolved on 19 December 1995 that:

If Council resolves to allow a new effluent pump out service for a particular circumstance which is not in accordance with policy then the pump out service be at the full cost of providing the pump out service and this will be noted on the Section 149 Certificate and Title Deeds (p.13, Chapter G8 of SDCP 2014)

If the provision of effluent pumpout services is not supported (resulting in an unfavourable assessment), the applicant could potentially seek a review and / or appeal the decision in the Land and Environment Court. Legal action would have cost implications for Council.

Legal Implications

Should the provision of effluent pumpout services not be supported and the application ultimately refused. The applicant could however, as mentioned above, choose to seek a review and / or may appeal to the Land and Environment Court.

Summary and Conclusion

· The RU5 Village zoning of proposed Lot 1 creates an expectation that the land can be used and developed for residential or other permissible purposes.

· Whilst there are environmental risks associated with the provision of additional pump out service to proposed Lot 1, it is acknowledged that this arrangement is not out of place with the Kioloa township and is the only feasible option for development of the land.

· The original lot was created prior to the adoption of the Effluent Pumpout Policy in 2007.

· The proposal for pump out services is considered a suitable option in the circumstances of the case. The proposed variation to Chapter G8 of SDCP 2014 is considered capable of support.

Development & Environment Committee – Tuesday 05 November 2019

Page 1

DE19.113 Exhibition Outcomes & Finalisation - Planning Proposal PP018, Draft DCP Chapter N18 and Draft Planning Agreement - 510 Beach Road, Berry

HPERM Ref: D19/319484

Group: Planning Environment & Development Group

Section: Strategic Planning

Attachments: 1. Exhibited Explanatory Statement ⇩

2. Post-Lightning Assessment of Scarred Tree ⇩

3. Post Exhibition Version DCP Chapter N28 ⇩

Purpose / Summary

· Report the outcomes of the combined public exhibition of Planning Proposal PP018 for Lot 4 DP 834254 (510 Beach Road) Berry and associated Development Control Plan 2014 Chapter N28 (Draft Amendment No 36) and Draft Planning Agreement No 14.

· Enable the amendments to Shoalhaven Local Environmental Plan (LEP) 2014 and Shoalhaven DCP 2014 to proceed to finalisation.

Recommendation (Item to be determined under delegated authority)

That Council:

1. Adopt and finalise the Planning Proposal (PP018) as exhibited with the changes outlined in this report.

2. Adopt and finalise Chapter N28 of Shoalhaven Development Control Plan (DCP) 2014 (Amendment 36) as exhibited with the changes outlined in this report.

3. Based on advice from the Environment, Energy and Science (EES) group of the NSW Department of Planning, Industry and Environment (DPIE) that Council is not required to be a party to the Planning Agreement, liaise with the proponent and EES to have Council removed from the final Planning Agreement.

4. To ensure that the legal mechanism for the transfer of the E1 land to NPWS is secured, only forward the Planning Proposal to DPIE for finalisation after the Planning Agreement has been signed by both parties.

Options

1. Adopt PP018 and DCP Chapter N28 as exhibited with the changes recommended in this report. Not proceed to be part of the Planning Agreement as there is no requirement for Council to be part of it.

Implications: The proposed changes to the LEP and DCP controls resolve the relevant issues raised during the public exhibition phase. The proposed LEP and DCP controls are consistent with the environmental and land capability assessments and will deliver planning outcomes that are consistent with the adjoining land.

2. Adopt the PP018 and DCP as exhibited with no changes. Procced (or not proceed) to be part of the Planning Agreement that was also part of the exhibition package.

Implications: Not recommended as several issues raised in the public exhibition warrant changes to the exhibited LEP and DCP controls.

3. Adopt an alternative recommendation.

Implications: Depending on its nature, this could delay finalisation of this planning proposal.

Background

Subject Land

The subject land is Lot 4 DP 834254, at 510 Beach Road, Berry and is located east of the township of Berry as shown in Figure 1 below.

Figure 1 – Location of subject land

Planning Proposal Overview

Council initially received a proponent-initiated PP request for the subject land on 3 October 2015. The request sought to rezone the land from a mix of RU1 - Primary Production, and E2 - Environmental Conservation to:

· R5 - Large Lot Residential,

· E1 - National Parks and Nature Reserves,

· E2 – Environmental Conservation, and

· E3 - Environmental Management.

The PP also proposed to transfer that part of the land within the Coomonderry Swamp to the NSW Government for incorporation into the Seven Mile Beach National Park. (It has since been confirmed that this transfer is to be facilitated through a planning agreement.)

On 18 January 2016, Council resolved to support the PP ‘in principle’ subject to:

· Revising the proponent’s proposed minimum lot size to ensure the size of future lots is consistent with adjacent subdivisions and can adequately accommodate on site effluent disposal.

· Revising the proponent’s proposed zoning to ensure appropriate environmental zoning for the swamp and buffer area and other ecologically significant areas on the subject land including, but not limited to, protection of Coomonderry Swamp/SEPP 14 wetland and ecologically significant areas such as the patch of forest known as ‘Jim’s Forest’ and Berry Wildlife Corridor.

· Resolving the proposed transfer of land to National Parks and Wildlife Service, and the possible need for a Voluntary Planning Agreement.

The proponent then pursued a pre-Gateway review of Council’s decision. This review was undertaken by the then Southern Joint Regional Planning Panel (JRPP). The JRPP’s advice was provided to the NSW Minister for Planning in November 2016 and it did not contradict the Council resolution.

The Gateway determination was then subsequently received in June 2017, requiring information to be updated or prepared prior to public exhibition of the PP.

A report on the updated PP and a draft DCP was considered by Council’s Development and Environment Committee on 2 April 2019. Council resolved to:

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

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

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

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

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

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

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

Public Exhibition

The PP (PP018) and supporting documents, including a draft DCP Chapter and a draft Planning Agreement, were publicly exhibited at Council’s Nowra Administration Building from 17 July to 16 August 2019. They were also made available on Council’s website, including via Documents on Exhibition and Get Involved.

A notice was placed in the South Coast Register on 17 July 2019. Adjoining landowners, the Berry Forum and people who had previously made submissions were advised of the arrangements in writing.

The exhibited documents included:

· Explanatory statement (Attachment 1 to this report)

· PP018: seeks to amend Shoalhaven Local Environment Plan (LEP) 2014, to rezone the land to a mix of large lot residential and environmental protection zones. The proposed LEP changes are consistent with adjoining zones and the land’s environmental and cultural heritage values.

· New chapter (Chapter N28) in Shoalhaven Development Control Plan (DCP) 2014: proposed to provide additional site-specific objectives and controls to ensure that buildings are located north of the ridgeline and that development is sympathetic to the land’s environmental and cultural heritage values.

· Draft Planning Agreement: seeks to facilitate the transfer of the southern part of the subject land that forms part of Coomonderry Swamp to the NSW Government for inclusion in Seven Mile Beach National Park.

It is noted that the draft Planning Agreement was prepared by the proponent to detail how the subject land transfer that is associated with this PP will occur. It also covers the potential transfer of two other land parcels owned by the proponent to the NSW Government that are outside the PP process.

Public Exhibition - Submissions

Submissions were received from:

· The landowner/proponent

· Three adjoining landowners (two to the east and one to the west of the subject land)

· Berry Landcare Group

· Internal Council submissions

Government agency responses were received from:

· NSW Rural Fire Service (RFS)

· Environment, Energy & Science group of the NSW Department of Planning, Industry & Environment

· Endeavour Energy

These are summarised below, and copies of submissions are provided in the Councillors’ room for review prior to the meeting.

1. Landowner: Aboriginal Cultural Heritage (D19/290624)

The landowner/proponent raised concerns as follows about the proposed LEP and DCP controls that were based on the outcomes of the Aboriginal Cultural Heritage Assessment (ACHA).

1.1 Area of Potential Archaeological Deposit (PAD) – Stone Artefacts

Inconsistency between the ACHA and the PP: Areas with moderate to high likelihood of subsurface Aboriginal artefacts. The possibility of any significant Aboriginal Artefacts being found during the construction of the subdivision is unlikely.

1.2 Aboriginal Scarred Tree

The Aboriginal Scarred tree has been significantly damaged by fire and is now in a state which should exclude the tree from being heritage listed. The Scar Tree has been dead for an extended period of time, it has been damaged by fire and the climate and is now in a dangerous structural condition. Removing the Scar Tree from the site appears to be the safest and best option.

Council Staff Comments:

Refer to discussion later in report in ‘response to submissions’ under Aboriginal Cultural Heritage and proposed changes to the PP and DCP chapter.

2. Adjoining Landowner: Internet Speeds (D19/287017 & D19/281263)

“… it is incumbent on Council to require the developers of the proposed 510 Beach Road subdivision to pay the costs involved to upgrade or augment Telstra's copper wire network along Beach Road so that there is no subsequent reduction or deterioration in the level of the internet service currently available…”

Council Staff Comments:

This is not a matter that Council can control or resolve through the current planning processes. Any concerns about declining internet speeds need to be directed to the service provider in the first instance. The ACCC advises that if the service provider does not resolve the issue, a complaint should be lodged with the Telecommunications Industry Ombudsman.

Developers are required to contribute to the cost of providing phone and internet infrastructure to their chosen carrier (e.g. NBN) in accordance with the Australian Government’s Telecommunications Infrastructure in New Developments (TIND) policy. This will be further considered when the development of the subject land reaches the subdivision stage.

3. Adjoining Landowner: Stormwater Runoff and Hydrology Adjoining Campbells Run (D19/281299)

· Already have significant problems with the water coming off the ridge. Concerned about increased runoff from at least 1 or 2 houses.

· We have a small spring on our property behind the house and we have had to replace a section of the hedge twice in front of the house because of the water running under the residence.

Council Staff Comments:

Refer to discussion later in the report in ‘response to submissions’ under stormwater and groundwater and proposed change to the DCP chapter.

4. Adjoining Landowner: Alignment of zoning / ridgeline and exclusion of buildings from Coomonderry Swamp (D19/280701)

· Inconsistency between stated intent of the PP to exclude buildings from the Coomonderry Swamp catchment and the PP and DCP mapping

Council Staff Comments:

The alignment of the ridgeline has been validated and corrected using the spatial analysis tool in GIS and detailed contour mapping (1 m contour intervals). Changes to the maps in the PP and DCP are discussed later in this report.

5. Berry Landcare: Ecology / Wildlife Corridors (D19/281040)

· Tree canopy along Beach Road is an important corridor for the local glider population including the locally endangered Greater Glider.

Internal Council Submissions

Environmental Services Section - Ecology (D19/248125)

· Key ecological values within the site are identified in the report by Biosis.

· Development must be excluded from all areas within Coomonderry Swamp. ‘Jim’s Forest’ is south of the ridgeline and should be E2 not E3 as proposed.

· All remnant vegetation should be protected from development.

· The proposal provides an opportunity to revegetate areas such as around springs and along ephemeral drainage lines (proposed to be E3) to protect water quality, increase vegetation in the locality and across the city to combat the impacts of climate change, and improve the amenity of future residents. Controls to ensure revegetation should be written into the LEP / DCP for the locality.

Council Staff Comments:

Refer to discussion later in the report in ‘response to submissions’ under Stormwater and Groundwater; and Ecology and Proposed Changes to the DCP Chapter.

Environmental Services Section – Land Contamination (D19/248167)

· The land is not currently flagged as potentially contaminated.

o Comment: In accordance with the Phase 1 Contaminated site assessment, the land has been added to Council’s Potentially Contaminated Land (PCL) register noting that any contamination downslope of the homestead (underground diesel tank) can be remediated to be suitable for its intended use subject to further assessment at the subdivision development application stage.

· Area affected by ASS are in the area where no development is proposed (edge of Coomonderry Swamp).

· ‘Jim’s Forest’ should be zoned E2 not E3 as proposed.

Council Staff Comments:

A Phase 1 Contaminated Site Assessment completed over the land concluded that:

1. Most of the site has been used for agricultural purposes including a dairy operation and more recently grazing for beef cattle.

2. Some lands near the homestead and immediately downslope may have been contaminated by past practices, including an underground diesel tank.

3. The land can be remediated to be suitable for its intended use subject to further assessment at the subdivision development application stage.

The site has been added to Council’s Potential Contaminated Lands Register to ensure this is further assessed and conditioned if appropriate at the subdivision development application stage.

Environmental Services Section – Onsite Effluent Management (D19/248092)

· The spring/well in the NW corner of the subject land is a bore and will need a 100 m buffer.

· The spring in the NE corner of the subject land has a pipe coming out of it and is a bore and will need a 100 m buffer.

· The Windmill in the Southern part of the property is a bore and will need a 100 m buffer, which will extend the buffer from Coomonderry Swamp.

· Figure 2 in Draft DCP Chapter N28 identifies what appears to be a 100 m buffer from the Windmill. However, the remaining two springs identified above that are considered to be a bore only appear to have a 40 m buffer. Two potential options to rectify this include:

a. decommissioning the NW and NW bores prior to re-zoning; or

b. increase the buffer around these bores to 100 m in Figure 2.

· A soil bore completed in the NW of the property confirmed that soils in this location are subject to periodic saturation and are unsuitable for effluent land management.

· The Shoalhaven Soil Landscape is potentially present in the NNE part of the property. The soils here were not examined to confirm the extent of the Shoalhaven Soil Landscape.

· Soil investigation should be completed in this location to confirm whether soils subject to periodic saturation are also present in this location and accordingly, whether the exclusion area in Figure 2 in Draft DCP Chapter N28 needs to be extended.

Council Staff Comments:

As noted above, the landowner may choose to either comply with the 100 m setback requirement in DCP Chapter G8 or decommission the bores. An acceptable solution has been added to the revised DCP Chapter N28 to ensure this is addressed at subdivision stage.

Community and Recreation Section (D19/343601)

· Draft DCP Chapter N28 does not include specific social objectives of connecting people and places. This is considered an omission and should be addressed - if not now, then possibly when the Rural Residential Strategy is being prepared and may precipitate a review of the DCP Chapter.

Council Staff Comments:

This submission raises an issue that is essentially outside the scope of this draft DCP Chapter, noting that it deals with a piece of infill rural residential development. The thrust of the submission (connecting people and place) will however be considered as part of the preparation of the new Local Strategic Planning Statement (LSPS). The LSPS along with the Community Strategic Plan (CSP) will consider embedding the principle or objective of connecting people and places, and will outline a broad vision for, amongst other things:

· well managed development protecting the special character of Shoalhaven’s towns, villages and neighbourhoods, and

· infrastructure, parks and facilities supporting active, healthy and connected communities

This work will ultimately inform future potential amendments to the Shoalhaven DCP2014.

Shoalhaven Water (D19/344522)

· Town water and sewerage are not available in the area.

· The land is rural in nature and it will not be serviced with water supply and/or sewerage in the foreseeable future.

· The future land parcels must be large enough to ensure that on-site sewage treatment systems can operate efficiently

Council Staff Comments:

The individual future lots will be self-sufficient in terms of water and wastewater (onsite effluent) management.

Government Agency Submissions

NSW Rural Fire Service (D19/213323)

· No objection to the proposal provided the future subdivision complies with Planning for Bushfire Protection requirements including in respect of:

o asset protection zones (APZ)

o access

o services

Council Staff Comments

Noted and will need to be considered at the subdivision development application stage.

Environment, Energy & Science Group, NSW Department of Planning, Industry & Environment (D19/284645)

· Support the proposed location of development on the northern side of the ridgeline supported by building and wastewater exclusion areas to protect the Swamp's catchment.

· Support the retention of ‘Jim's Forest’ in single ownership subject to management measures specified at DA stage.

· E2 zoning should apply to ‘Jim's Forest’ in the area currently identified as E3 and within the Swamp's catchment

· The exact location of the ridgeline and catchment boundary, and any associated refinements to zone boundaries, should be confirmed prior to rezoning.

· A native vegetation buffer in the E2 zone, which acts as a natural buffer between future NPWS land and the developable lots, should also be provided and secured at DA stage. A functional native vegetation buffer is also critical to ensuring connectivity of the broader environmental corridor linking the escarpment to Berry and Seven Mile Beach National Park. We recommend considering a provision in the DCP requiring native vegetation planting in non-developable areas of future lots within the E2 zone

· Any asset protection zones for new dwellings should be located wholly outside of the E2 zone and avoided in the E3 zone wherever possible to allow opportunities for revegetation.

· The draft VPA is still being refined between the applicant and NPWS and will be finalised following exhibition of the PP.

· In areas that have been mapped as having archaeological potential, we recommend archaeological test excavation occur as soon as possible to provide certainty to all parties about the extent and nature of the Aboriginal heritage sites and any management requirements. We note that the applicant should ensure appropriate time and funding resources are provided to prepare Aboriginal Cultural Heritage Assessments and any necessary permit applications.

· An Aboriginal Heritage Management Plan is recommended to manage the interface between the proposed heritage listed tree and the proposed residential subdivision. Finally, we request the opportunity to review the detailed Cultural Heritage Study once it is completed.

Council Staff Comments

Refer to discussion later in the report in ‘response to submissions’.

Endeavour Energy (D19/351621)

Generally, no objection to the PP - previously provided a Technical Review Advice dated 24 August 2017, which generally remains valid.

The existing nearby pole mounted substations are unlikely to be able to service the proposed development. A new padmount substation will be required within the development. However, the proposed method of supply and the extent of the works required to the local network will not be determined until the final load assessment is completed. Endeavour Energy’s preference is to alert proponents / applicants (and Council) of the potential matters that may arise as rezoning and development of non-urban areas continues to occur.

In due course the applicant for the future proposed development of the site will need to submit an application for connection of load via Endeavour Energy’s Network Connections Branch to carry out the final load assessment and the method of supply will be determined.

Council Staff Comments

Noted and will need to be considered at the subdivision development application stage.

Substantive Submissions - Response

Aboriginal Cultural Heritage Assessment (ACHA) – Area of Stone Artefact Potential Archaeological Deposit (PAD)

The ACHA report identified an area of Potential Archaeological Deposit (PAD) in which 11 stone artefacts were excavated during the assessment. The ACHA report states that the PAD area is likely to retain additional subsurface archaeological deposits and recommends that:

· Future development in the study area should seek to avoid or limit impacts to the stone artefact and PAD site.

· future proponents wishing to impact the stone artefact and PAD site within the study area should apply to OEH for an AHIP

· Approval for reburial of excavated artefacts [excavated during AMBS’s assessment] should be sought as a condition of future AHIP applications in the study area.

· The PAD has …low overall significance for Aboriginal heritage, and further archaeological investigation of the site is unlikely to increase the current scientific understanding of the region and that … establishment of a conservation area encompassing the site is not recommended. Conservation area refers to a ‘heritage conservation area’.

In conclusion, despite the low overall significance of the stone artefacts and PAD, an Aboriginal Heritage Impact Permit (AHIP) is legally required if excavation or ground disturbance is proposed. If no ground disturbance is proposed, an AHIP is not required.

The proposed changes to the DCP Chapter N28 include the addition of more detail to clarify the legal requirements concerning the PAD. Refer to Table 2 below.

Aboriginal Cultural Heritage – Scarred Tree

An Aboriginal Scarred Tree was identified within the part of the subject land identified for development. The ACHA report prepared by AMBS recommended that this tree be listed in the LEP as a ‘heritage item’ because of its heritage significance.

The tree was however subsequently struck by lightning after the ACHA report was prepared and while this PP was under assessment. As a result, the tree was significantly damaged. When this matter was previously considered by Council, a further report was pending to help determine whether the remains of the tree still warrant heritage listing.

AMBS completed a post-lightning condition assessment of the scarred tree remains in September 2019. A copy of their report is provided in Attachment 2. AMBS concluded that:

· While the culturally scarred tree site has experienced significant impacts and loss of heritage value, it remains an Aboriginal Object protected under the National Parks and Wildlife Act 1974 (NPW Act). Under Section 90 of the NPW Act, it is an offence to destroy, deface, damage or desecrate an Aboriginal Object or Aboriginal Place, unless an Aboriginal Heritage Impact Permit (AHIP) has been issued.

· AMBS does not recommend inclusion of the culturally scarred tree site as a ‘heritage item’ in the Local Environmental Plan, as had been previously recommended.

· Consultation with the Jerrinja Local Aboriginal Land Council (LALC) has indicated that the tree retains moderate cultural significance to the local Aboriginal community, despite the significant physical damage and loss of some aspects of its scientific, historic and aesthetic heritage values. The Jerrinja LALC are aware that it is unlikely that the tree will survive indefinitely in its current location and identified that they were likely to support two management outcomes.

· The Jerrinja LALC have identified that their preferred options are either:

o make the tree safe and retain it in place, and allowed to degrade naturally over time, or

o that the tree be carefully trimmed and felled and removed to a keeping place nominated by the community for conservation and ongoing preservation.

· The Jerrinja LALC indicated that they would discuss the options internally and identify their preference for inclusion within the AMBS report, however, to date feedback has not yet been received.

· A copy of this report should be provided to the Jerrinja LALC for their review, input and feedback, and any additional information received should be appended to this report where appropriate.

· In the absence of advice from the Jerrinja LALC and their nomination of a suitable keeping place, AMBS recommends that the culturally scarred tree be trimmed to a height that will render it safe, and the remaining tree trunk be retained in place and allowed to decay naturally. The extent of the trimming of the tree should be limited to that necessary to prevent the risk of limb fall or collapse of the trunk and should be guided by advice from a suitably qualified arborist, however the portion of the trunk containing the cultural scars should remain.

· Future residential development in the study area has potential to impact the Aboriginal heritage site. To avoid the risk of accidental impacts during future development a buffer area around the site should be established during construction in the vicinity of the site. The buffer area should be as wide around as the trimmed tree remains high and should be clearly demarcated during future development activities to prevent accidental impacts arising from the works, possibly through the use of temporary fencing.

· Any impact to the Aboriginal heritage site, including trimming of branches or felling or removal of the tree, will require an approved AHIP granted by Office of Environment and Heritage (OEH). An application for an AHIP is required to be accompanied by an ACHA report specifically assessing the proposed impacts, prepared in consultation with the local Aboriginal community.

Based on the AMBS condition assessment report, it is now proposed to not list the tree remains in the LEP as a ‘heritage item’. Changes are proposed to the draft DCP Chapter to remove ambiguity around when an Aboriginal Heritage Impact Permit (AHIP) will be required - refer to Table 2 below for more detail.

Ecology – Wildlife Corridors

Submissions from Berry Landcare, Council’s Environmental Services Section and DPIE (EES) suggest that there is an opportunity to improve wildlife linkages between Coomonderry Swamp, ‘Jim’s Forest’ and vegetation along Beach Road. The Council staff submission also identified the opportunity to establish native vegetation along the drainage line.

The PP exhibition package included a Flora and Fauna Assessment (FFA) prepared by Biosis Pty Ltd on behalf of the proponent. The FFA concluded that the proposal will not significantly impact upon threatened communities or biota. This conclusion is based on limiting removal of native vegetation and habitat to 0.29 ha of Bangalay Sand Forest EEC.

The FFA also indicates that a Biodiversity Development Assessment Report (BDAR) will not be required at the subdivision stage. Notwithstanding the conclusions of the FFA, there is an opportunity to achieve a range of positive outcomes (including in respect of ecology, local amenity, water quality and visual impact) by establishing native trees/shrubs along:

· the north-eastern boundary linking Beach Road and ‘Jim’s Forest’

· the eastern boundary linking ‘Jim’s Forest’ and Coomonderry Swamp

· the drainage line that flows north to Beach Road

· Beach Road (i.e. private land adjacent to the road reserve)

· the southern edge of the proposed E2 land, adjoining the proposed E1 land

· 30 m wide ‘regeneration’ buffer

An additional proposed control has been added to the draft DCP requiring a positive covenant to be established at subdivision stage. Refer to Table 2.

Stormwater and Groundwater

The PP exhibition package included a Groundwater Impact Assessment prepared by Larry Cook Consulting Pty Ltd (2018). The Assessment identified two relatively small shallow groundwater discharge zones (springs) on the northern side of the ridgeline. The submission (D19/281299) concerns the western-most of these springs.

The Assessment recommended the following setbacks from the springs be adopted for onsite effluent management:

· 15 m side slope

· 30 m upslope

· 50 m downslope

These recommendations were incorporated into the exhibited DCP Chapter.

The PP exhibition package included a Water Cycle Assessment (WCA) completed by SEEC on behalf of the proponent. The WCA does not identify the need for any specific stormwater-related controls for the subject land. The WCA proposes that a Stormwater Plan be prepared at subdivision stage to comply with the generic stormwater controls in DCP Chapter G2. It is noted however that the WCA does not discuss or address the springs.

The WCA provides basic stormwater management information which is generally satisfactory given that detailed stormwater design will be required at subdivision stage. Information will also be required to demonstrate how the water quality will be managed and fully address the controls in DCP Chapter G2.

To address concerns about the springs, controls have been added to the attached draft DCP Chapter N28 based on feedback from Council’s Senior Flood Engineer. Refer to Table 2 below.

Proposed Changes - Planning Proposal

The proposed changes resulting from the public exhibition are summarised in Table 1 below.

Table 1 - Proposed Changes to the Planning Proposal

Change	Comments
Zoning map: revise the E2 zone boundary to align it with the ridgeline separating the Coomonderry Swamp and Foys Swamp catchments. See Figure 2 below.	As alluded to in several submissions, the exhibited map unintentionally proposed some E3 and R5 land within the Coomonderry Swamp including ‘Jim’s Forest’. The alignment of the ridgeline was validated using the spatial analysis tool in GIS and detailed contour mapping (1 m contour intervals). This was contrary to Council’s resolution on 18/1/16 and the ‘Explanation of Provisions’ in section 3 of the PP which specifically states that land within the Coomonderry Swamp catchment will be zoned E1 and E2.
Minimum Lot Size map: revise the boundary between the 1ha and 2ha minimum lot size areas to match the ridgeline alignment. See Figure 3 below.	This change is needed to ensure consistency between the minimum lot size and zoning maps.
Not list the Aboriginal scarred tree as a Heritage Item in the LEP.	As discussed above, the tree was badly damaged by lightning/fire – refer to the findings of the post-lightning condition assessment. The tree is however still protected under the NPW Act.

Figure 2 - Proposed zoning maps: exhibited (left) and final proposed (right)

A close up of a map

Description automatically generated

Figure 3 - Proposed minimum lot size maps: exhibited (left) and proposed (right)

Proposed changes - DCP Chapter N28

The proposed changes to draft DCP Chapter N28 resulting from the public exhibition are summarised in Table 2 below and shown in track-changes in Attachment 3.

Table 2 - Proposed changes to DCP Chapter N28

Change	Comments
Figure 2 - Wastewater exclusion map: align the wastewater exclusion area with the ridgeline	Ensure wastewater is not applied on land that drains to Coomonderry Swamp. Refer to discussion on the ridgeline under zoning map changes.
Figure 3 - Building exclusion map: align the building exclusion area with the ridgeline	Refer to zoning map changes. Will ensure consistency.
Aboriginal Cultural Heritage: · Provide options to remove/retain the scarred tree · Add detail on when an AHIP will be required in the area of Potential Archaeological Deposit (PAD)	As discussed above, changes are required to: · Reflect the recommendations of the post-lightning assessment of the scarred tree. · Improve clarity around the statutory requirements.
Add provision requiring landscape planting of native shrubs and trees to facilitate wildlife movement between Beach Road, ‘Jim’s Forest’ and Coomonderry Swamp and along the drainage line.	In summary the proposed provisions are required based on: · Corridor width generally 10 m but can be averaged to ensure dwelling yield is not reduced and bushfire construction standard is BAL-29 or less. · Corridor along Coomonderry Swamp is 30 m wide (based on information provided by the proponent). · Tree/shrub planting corridors to be shown in a landscaping plan to be provided with the subdivision application. · Positive covenants to be established at subdivision stage. · Planting required at individual development application stage. These provisions will also provide a range of other benefits including visual, landscape amenity, water quality, hydrology, and privacy.
Add provision to require the groundwater discharge zones to be appropriately drained at subdivision stage.	To minimise the risks associated with the groundwater discharge zones including potential adverse impacts on adjoining properties.

Conclusion

This matter is now at a point where Council needs to consider the outcome of the public exhibition period and determine how it wishes to proceed to finalise things. It is recommended that the PP and DCP Chapter be finalised consistent with the table of changes and associated material provided within the report, responding to the submissions received.

Financial Implications

This Planning Proposal has been funded by the proponent in accordance with Council’s Planning Proposal Guidelines and fees and charges. Any outstanding fees will be payable prior to submitting the PP to DPIE/Parliamentary Counsel for finalisation.

Development & Environment Committee – Tuesday 05 November 2019

Page 1

DE19.114 Quarterly review for compliance matters

HPERM Ref: D19/317494

Group: Planning Environment & Development Group

Section: Building & Compliance Services

Attachments: 1. List of penalties and cautions issued July to September 2019 (under separate cover) ⇨

Purpose / Summary

At Council’s Ordinary meeting held on 13 November 2018 it was resolved to receive a detailed quarterly report on compliance activities (MIN18.907).

This report provides information on the period July to September 2019 (first quarter 2019/2020).

Recommendation (Item to be determined under delegated authority)

That Council receive the quarterly report on compliance matters for information.

Options

1. Council receive the report for information

Implications: Nil

2. Council receives the report and provides additional direction for future reports.

Implications: Any changes or additional matters can be added to future reports.

Report

Compliance activities are completed by the following Teams within the Planning, Environment and Development Group:

(a) Compliance Team: Development compliance matters including unauthorised development, development not in accordance with development consent, land and water pollution incidents (including building sites), land use management issues, fire safety and swimming pool safety issues.

(b) Environmental Health: Pollution incidents (noise and water), environmental incidents, food shops and the operation of on-site sewage waste management facilities.

(d) Rangers: Animal control, littering, unauthorised camping, rubbish dumping and other environmental offences.

This report provides Councillors with an update on the penalties issued (number, type and ticket value), penalty reviews dealt with by the Review Panel and any Local or Land and Environment Court matters determined or progressing.

This report relates to July - September 2019 (first quarter).

1.0 Penalties issued during the period

A combined total of 1043 penalty notices were issued by the Teams during the period. These penalties have a face value of $351,466. Historically Council stands to receive approximately 70% of this ticketed figure. A total of 283 cautions were also issued during the period. Attachment 1 to this report provides a breakdown of the penalties and cautions issued.

The following is a summary of the penalties issued for each team:

Team	Number Issued	Total Amount	% of total amount	Cautions issued
Compliance	51	$136,920	38.5%	95
Compliance – Fire Safety	0	0	0%	1
Compliance – Pools	1	$550	1%	10
Environmental Health	9	$10,710	3%	3
Rangers – Animal issues	124	$51,205	14.5%	17
Rangers – Environmental issues	16	$9,070	2.5%	4
Parking	838	$127,011	36%	150
Sewer Management Facility	4	$16,000	4.5%	3
Total	1043	$351,466	100%	283

Penalties related to Compliance issues

The following details are provided in relation to the 51 compliance penalty notices issued:

a) Bawley Point: The property owners constructed a two storey addition and first floor timber deck additions without obtaining a construction certificate or appointing a principal certifier. One penalty notice issued to two owners for development not in accordance with consent – class 1a or 10 building – Individual ($1500) (Total $3000).

b) Brooman: One penalty notice issued to one owner for permitting a music stage/platform to be constructed upon the property without consent – Carry out specified development prohibited on land – any other case – Corporation ($6000).

c) Vincentia: One penalty notice issued to one owner for unauthorised construction of a deck, pergola, balcony and the relocation of a kitchen – Development without development consent – class 1a or 10 building – Individual ($1500).

d) Cambewarra: Seven penalty notices issued to one owner for construction of a farm shed, tennis cabana, storage shed, carport, outdoor gym pergola and two attached verandas to the house – Development without development consent – class 1a or 10 building – individual ($1500) (Total $10,500)

Four penalty notices issued to one owner for construction of a filled ramp and earthworks, driveway and hardstand area, earthworks within a riparian area and earthworks under buildings ancillary to the tennis court – Development without development consent – any other case – individual ($3000) (Total $12000).

Two penalty notices issued to the Builder for the construction of a Tennis Cabana and Storage Shed – Development without development consent – class 1a or 10 building – Corporation – ($3000) (Total $6000).

One penalty notice issued to the Builder for construction of a driveway and hardstand area - Development without development consent – any other case – Corporation – ($6000)

One penalty notice issued to Plumber for unauthorised works in association with the Tennis Cabana - Development without development consent – class 1a or 10 building – individual – ($1500).

One penalty notice issued to the Plumber relating to plumbing work done to a driveway and hard stand area - Development without development consent – any other case – individual – ($3000)

Two penalty notice issued to the Plumber for not providing notice of work to plumbing regulator – individual - ($550) (Total $1100).

e) Wattamolla: Two penalty notices issued to one owner for land clearing - Development without development consent – any other case – individual ($3000) (Total $6000).

Seven penalty notices issued to one owner for pollute water offences relating to works undertaken within or near a creek/causeway – pollute waters – individual – ($4000) (Total $28000).

Two penalty notices issued to one owner for Earthworks (road building) and works within a causeway – development without development consent – any other case individual – ($3000) (Total $6000).

f) Tomerong: Five penalty notices issued to the owner for the installation of a shipping container to be used as a shed, building works associated with an ablution block extension, construction of a wedding shed, hayshed and pool cabana - development without development consent – Class 1a or 10 Building – corporation – ($3000) (Total $15000).

One penalty notice issued to the owner for the operation of a campground – development without development consent – any other case - corporation – ($6000).

Three penalty notices issued to the owner for operating a sewage management system without approval – ($330) (Total ($990).

Two penalty notices issued to one owner for allowing wedding event and associated camping to proceed – fail to comply with the terms of a development control order – Corporation – ($6000) (Total $12000).

g) Falls Creek: One penalty notice to one owner for the construction of an in-ground swimming pool – development without development consent – class 1a or 10 building – individual – ($1500).

h) Hyams Beach: One penalty notice issued to one owner for unauthorised alterations to existing building and associated timber deck – development without development consent – class 1a or 10 building – individual – ($1500).

i) Termeil: One penalty notice issued to one owner for failing to install a temporary swimming pool barrier – not comply with written direction – owner – ($550).

j) Callala Beach: Two penalty notices issued to one owner for construction of 2 site sheds for habitable purposes – development without development consent Class 1a or 10 Building – individual – ($1500) (Total $3000).

k) Woodstock: One penalty notice issued to the owner for operating a sewage management system without approval – ($330).

One penalty notice issued to the Builder in relation to building works – development without development consent – Class 1a or 10 Building – corporation – ($3000).

l) Basin View: One penalty notice issued to the Builder – non- compliance with development consent - development not in accordance with development consent – class 1a or 10 Building – ($3000).

Warnings related to Compliance issues

A total of 95 warning notices were issued for compliance matters in the period and these equate to $230,000 in ticket face value. Potentially the Compliance Team could have issued $366,920 in penalties for the period. The caution rate is approximately 65%.

Penalties related to Rangers issues

a) Illegal Dumping: One penalty notice was issued for dumping household waste on Moss Vale Road, Barrengarry Mountain. Offence – Transport waste to unlawful waste facility – ($2,000). The perpetrator was ordered to clean up the waste and disposed of it to the Nowra Waste Facility.

b) Fail to prevent dog escaping: Rangers issued 34 penalty notices for failing to prevent dogs escaping. On each occasion the dog owner is first educated on responsible pet ownership and potential measures to assist in securing their dog. Upon the animal escaping for a subsequent time, a penalty notice is issued. Each penalty has a face value of $220 and this equates to $7480 in total.

c) Dog attacks: The number of dog attacks during the period was 63 with 18 still under investigation. This resulted in the issue of 4 fines totalling $5,280. The dogs involved in these attacks have been given a “dangerous dog listing”.

d) Stock on Road: On going issues with stock and horses being located unsecured on public roads has resulted in Rangers issuing 7 penalty notices to owners for cause or permit animal to be unattended. Each penalty has a face value of $330 and this equates to $2,310 in total.

e) Opt in parking offences: A total of 506 parking penalties were issued under the reduced opt in amount of $82 and this totalled $41,492. Under the previous $114 penalty amount this would have resulted in a total of $57,684. This represents a $16,192 difference in income.

f) Warnings related to parking issues:- A total of 136 warnings were issued during the period and this equates to $37,366 penalty notice face value.

2.0 Penalty infringement panel reviews

During the period, the review panel met on 4 July, 1 August 2019 and 9 September 2019. There were nineteen (19) penalty infringement appeals considered during this period.

(a) Development without development consent – Class 1a or 10 building – Individual ($1500) and Development not in accordance with the Development Consent – any other case ($3000)

This matter related to two penalties issued; one for the construction of the access bridge and the other for the occupation of the shed structures occurred without development consent.

Considerable works had been undertaken without the required construction certificate being issued for the access bridge. The unauthorised sheds are located within designated bushfire prone land without any consideration or protection provided.

Council staff had shown leniency by issuing a single penalty notice for all the offences in relation to development without development consent and by issuing a single penalty notice for all the offences in relation to development not in accordance with the development consent.

The panel considered the matter on 4 July 2019 and agreed each of the penalty notices should stand. Further, Councils Compliance Officers will monitor the progress of the current Development and Building Information Certificate applications to ensure further unauthorised works are not undertaken.

(b) Development without development consent – any other case –Individual ($3000)

The penalty notices relate to the unauthorised occupation of an industrial unit located at Ulladulla. Both the owner and the tenant admitted to using the industrial unit for residential accommodation since February 2018 and each received a penalty.

· An industrial building was being used for residential accommodation (Land zoned IN1 – General Industrial).

· The owner was fully aware that the tenants were leasing the industrial building for residential accommodation since February 2018 and made no effort to stop this unlawful use.

· No development consent had been issued to use the industrial building for residential accommodation.

· The industrial building did not contain a smoke alarm or other fire safety measures required for residential use and this triggered immediate health and fire safety concerns (imminent threat to life).

· Residential accommodation is a prohibited activity pursuant to the SLEP 2014 in land zoned IN1 – General Industrial.

Council worked with and showed leniency to the owner and the tenants in the following manner:

· An Emergency Stop Use Order was not issued by Council because the occupants offered to install temporary smoke alarms and subsequently remove the sleeping facilities from the subject premises.

· A formal caution had been issued to one of the tenants.

· Further penalties were not issued to the owner for the lack of essential fire safety measures in the industrial building.

The tenant is now renting a residential premise in the Shoalhaven area and is no longer offending. It was considered that a caution to the tenant was the correct decision in this instance.

The panel considered the matter on 4 July 2019 and determined that penalty notices should stand for the owner and the penalty notice to the tenant be withdrawn and a formal caution be issued.

The owners had carried out unauthorised works and they had received penalties for that activity. They were then given a formal direction not to carry out any further works on the works. The owners did not comply with this direction and each was issued with further penalties for failing to comply with the direction.

The panel were advised:

· Both owners were served the formal stop work order,

· Both owners were fully aware of Councils requirements and chose not to abide by the terms of the order,

· Both owners were equally involved in the decision to carry out the work,

· This is the second time the owners had breached the terms of a formal order.

· The works were completed on a Heritage Item without prior approval and without consideration or oversite from an Archaeologist or Heritage Consultant. Relics may have been discovered, exposed, moved, damaged or destroyed.

· Both owners made a business decision to ignore the formal stop work order to meet their own personal deadlines. Substantial excavation works had been undertaken without prior approval from Council.

The panel considered the matter on 4 July 2019 and agreed that both owners were aware of the requirements to stop and they indicated they would continue. This was a deliberate act and the panel resolved that the penalties should stand.

(d) Development without development consent – class 1a or 10 building – Individual ($1500).

Council’s Compliance Officers became aware of the unauthorised structures on Council reserve following a phone call from a member of the public concerned with the amount of unapproved merchandise stands creating trip hazards in Huskisson.

On two occasions Council contacted the owner of the business advising that the merchandise, sign and cart would need to be removed from Councils land until such time as Development Consent approval was given.

A further site inspection identified the structures still on Council’s road reserve. One penalty notice was issued to the business owner. Council staff had shown leniency for not issuing $1,500 penalty notices for each day the merchandise was identified on Council reserve. This non-compliance went on for several months.

The panel considered the matter on 4 July 2019 and agreed that in this instance an official caution was warranted. The penalty notice was withdrawn and a formal caution has been issued.

(e) Fail to comply with terms of development control order – individual (x2) ($6000).

Council has received numerous complaints since early 2016 relating to the fire damaged and partly demolished dwelling located at Mollymook Beach.

Council issued orders to both owners to demolish the damaged and dilapidated building.

Council has previously received legal advice enabling multiple penalty notices being issued for the same offence relating to a breach of a development control order. This advice enabled Council to issue one development control order and multiple penalty notices under that order for the same offence, without the requirement of issuing a new development control order after each penalty notice.

Council has received subsequent legal advice contradicting the original advice. As such Staff recommended both penalty notices be withdrawn due to the updated legal advice.

The Review Panel considered the matter on 1 August 2019. The Panel was satisfied with the Staff recommendation and the penalty notices were withdrawn.

(f) Development without development consent – class 1a or 10 building – Corporation ($3000).

During a mandatory on-site sewer management facility inspection, it was identified that the dwelling was under-going demolition and construction works. A review of Council records revealed no formal approvals were in place for these works and the matter was referred to the Compliance Team for investigation.

This matter relates to the unauthorised demolition and reconstruction of a 90m2 detached shed (Class 10a building). The main dwelling was partially demolished and substantially rebuilt without development consent, a construction certificate or the appointment of an Accredited Certifier.

It was determined the property owner allowed considerable unauthorised works to be undertaken on the property.

Council staff had shown leniency by issuing the owner with two formal cautions rather than additional penalty notices.

The Panel considered the matter on 1 August 2019 and agreed the single penalty should stand.

(g) Development without development consent – class 1a or 10 building – Corporation (x2) ($6000).

This matter relates to the Builder who undertook the unauthorised development in the review listed in (f) above. The Builder had been issued with two penalty notices.

Council staff recommended both penalty notices should stand for the following reasons:

· The builder has completed considerable unauthorised works. A firm but fair message should be sent to both the property owner and the builder.

· The builder has enabled the owner to undertake the works and should be held accountable. This is the builder’s core area of business and he should have taken the time to educate himself on the legislative framework that he works under. Particularly the requirements of the SEPP (Exempt & Complying Codes), which he could have used to demonstrate to the property owner that consent was required prior to commencing works.

· The builder has profited from the works undertaken to date and has admitted to making a business decision to continue demolition and reconstruction works once he formed the view Council approval was required.

The Panel considered the matter on 1 August 2019. The panel acknowledged the representations made and the hardship being experienced by the Builder and opted to withdraw one of the penalty notices. The other penalty notice was to stand.

(h) Pollute Waters – class 1 officer – Corporation (x2) (16,000) and fail to comply with Prevention Notice - class 1 officer – Corporation ($8000)

A heavy rain event in November 2018 triggered the overflow of a detention basin on the property located in Bomaderry. Sediment laden water discharged from the property through inadequate sediment and erosion controls onto Cambewarra Road and the Princes Highway. Formal cautions were issued to the organisation in relation to this breach of the Protection of the Environment & Operations Act (POEO Act).

Investigation into the breach revealed that the sediment and erosion controls were not executed onsite in accordance with the Environmental Site Management Plan approved by Council.

To address these deficiencies, Council issued a prevention notice to the organisation requiring additional sediment controls and maintenance of existing controls to be implemented immediately. No action was undertaken on site by the organisation as a result of the prevention notice.

The following weekend, after these works were completed, there was another rain event and strong winds. The sediment and erosion control measures that had been implemented failed, and the strong winds damaged the banners secured to the boundary fence creating a further water pollution event. This resulted in the issuing of three (3) penalty notices which were the subject to the review.

Council staff recommended:

· Penalties to be withdrawn as they were issued contrary to law due to the incorrect payment timeframes printed on the notice. This position is based on legal representation.

· The penalties be reissued with the correct time frames.

The Panel considered the matter on 9 September 2019 and agreed with Council staff recommending that all penalty notices be withdrawn. It was further recommended that two new penalty notices be issued and one formal caution be issued. The new penalty notices reflected the 28 day requirement.

(i) Development without development consent – class 1a or 10 building – Individual ($1500).

The owner of a property located in Bangalee advised Council that his tenant has installed an above ground pool without approval from himself or a consent authority.

Council’s Compliance Officers investigated the property and found the above ground pool, associated timber deck and swimming pool barrier have been installed without prior approval from a consent authority.

A review of Council’s records found that the tenant was issued with a formal caution in September 2015 for the installation of the same swimming pool on the same property. This pool was dismantled in 2015 as a result of that investigation.

Council staff have shown leniency by issuing a formal caution in 2015 for installing a swimming pool without consent from a consent authority. At that time Council advised the tenant of the need to obtain approval prior to erecting the pool.

The Panel considered the matter on 9 September 2019. The Panel recommended that the penalty should stand. This matter has since been Court elected and it is set for mention on 1 November 2019 in Nowra Local Court.

(j) Development without development consent – any other case – Individual (x2) ($6000) and Pollute Waters – class 1 officer – Individual ($4000)

This investigation was initially brought to Council’s attention in May 2019 by a neighbour of a property located in Wattamolla. A photograph was produced depicting significant earthwork cuttings which the neighbour stated was part of larger works being conducted by the owner of the neighbouring property.

A review of the Council records revealed no development consent existed for these works. Investigations identified the following:

· Six (6) creeks had been filled with earth using an excavator. Some of the creeks had a 350 mm pipe in them in an attempt to build a culvert. These works were unauthorised and caused significant land and water pollution.

· Approximately one (1) hectare of land had been cleared at the northern end of the property. This activity was completed with the stated purpose of building a dwelling at a future time. A significant number of trees had been felled on the property. These works were unauthorised and caused significant land pollution.

· During a subsequent inspection in May 2019; another smaller cleared area was located. Adjacent to this clearing, a creek flowing out of Budderoo National Park was dammed with earth and rubble. These works were unauthorised and caused a significant water pollution event.

· During a further inspection in June 2019, Council officers located a series of unauthorised earthworks in a right-of-carriageway. The works consisted of six (6) separate earthworks done on switchback turns with the stated intention of widening the right-of-carriageway to enable passage of a larger vehicle. These works were unauthorised and had potential to cause significant water pollution.

· A further unauthorised development had also been done by filling a creek crossing at the bottom of the right of carriageway and covering it with shale-like stone. These works were unauthorised and caused significant water pollution.

As a result of this incident a total of 11 penalty notices had been issued with a face value of $30,000. Council had also issued 28 cautions with a face value of $100,000.

The submission made on behalf of the owner’s Solicitor identified hardship and this was having an impact on him completing the required rehabilitation works. Council staff recommended the three penalty notices the subject to this review be withdrawn on those grounds.

The Panel considered the matter on 9 September 2019. The panel agreed Council is focussed on the rehabilitation of the site and it is considered that the costs associated with the penalties would be best spent on those works. The Panel determined to withdraw the three penalties and formal cautions were issued.

(k) Development not accordance with consent – class 1a or 10 building – Individual – ($1500)

The penalty related to the construction alterations and additions without a construction certificate.

Council received a development application for a proposed dwelling extension and deck area in August 2018. Council’s Building Surveyor assessing the development application identified unauthorised works when comparing the proposed development against the historic approved Building Application.

· An attached unauthorised first floor deck and associated stairway access had been constructed upon the premises without approval.

· A 3.8m X 7.5m concrete slab attached to the dwelling constructed for the garage extension.

Council had issued six formal warning notices and two penalty notices for these offences. One of the owners requested that a penalty be withdrawn.

Council has shown considerable leniency by not issuing separate penalty notices for all breaches. Council staff recommended the penalty stand.

The Panel considered the matter on 9 September 2019 and concluded that the penalty should stand.

3.0 Other activities by Ranger Services

a) Illegal dumping education: Rangers in collaboration with Illawarra Shoalhaven Joint Organisation (ISJO) commenced an education campaign aimed at providing the public with information on our ‘Community Recycling Centres’ across the LGA. The campaign identifies and promotes where assorted items can be disposed of free of charge. The campaign is also focussed on encouraging our community to report illegal dumping and providing information on how to report alleged offences.

The campaign has seen Rangers visit hardware stores around the LGA providing advice and information to the building industry.

b) Mollymook Beach patrols: Rangers conducted 67 patrols of Mollymook Beach in the period. This included three on leash areas and 64 prohibited areas. During these patrols eight dogs were sighted and six people were spoken with about their dogs. As a result, one verbal caution, one official warning and five penalty notices to the total value of $1650 were issued.

This beach features highly on the complaints register. Patrols will continue in an effort to educate pet owners about responsible pet ownership and the regulations.

c) Other beach patrols: Rangers have completed 145 patrols of other beaches in the area during the period. The beaches patrolled have included Shoalhaven Heads, Culburra Beach, Abrahams Bosom Beach, Collingwood Beach, Shark Net Beach, Nelsons Beach, Moona Moona Beach, Moona Moona Creek, Blenheim Beach, Narrawallee Beach, Berrara Beach, Conjola Lake Ocean Beach and Spit, Tabourie Point Beach, Bawley Point Beach and Burrill Beach.

Beach patrols will pick up in the next 2 quarters as historically these will see an increase in usage during the warmer months.

d) Shorebirds: A meeting with stakeholders was held on 11 September 2019 to discuss strategies for the shorebird recovery programme including patrols for dogs on beaches. Council will collaborate with National Parks and Wildlife Services on this programme.

Representatives from Wollongong, Shellharbour and Kiama Councils attended the meeting. Both Eurobodalla and Bega Councils were also involved in an effort to share the responsibility of helping to protect the shorebirds.

Council stakeholders include Ranger Services, Executive Strategy, Tourism, Tourist Parks, Sustainability, Community & Recreation and Parks Operations.

Strategies to develop for annual programme include:

· Creating networks and processes to share information and create solutions.

· Media campaign targeting both tourists and local residents including television and radio, social media and information on Council’s website in line with National Parks’ Communication Plan.

· Address ongoing complaints from the public about problems with dogs not under control in public places, including shorebird nesting areas, which escalates during holiday season. This would include additional ranger patrols after hours.

· Beach visits by Rangers and shorebird volunteers to provide education, information and enforcement where necessary.

· Providing information to holiday accommodation and surf clubs about shorebirds and threats to their breeding success.

· Ensuring signage and fencing is in place.

Community expectation continues to increase and Council will provide resources in conjunction with National Parks to protect breeding sites.

e) Additional casual Assistant Rangers: Three casual Assistant Rangers have been recruited to address the increased workload during the busy holiday period from November to January inclusive.

4.0 Land and Environment Court matters

Jerberra Estate – Hearing – Contempt Proceedings – Garry Knight.

Unauthorised works were undertaken by the owner Garry Knight and he had failed to comply with Council’s direction to remedy the situation. This matter was taken to the Land and Environment Court in 2014 where the Court issued orders for the works to be completed.

The owner then failed to comply with the Court orders and this resulted in contempt of Court proceedings against him.

The matter was heard on 27 May 2019. The landowner attended Court on this occasion and entered a guilty plea to the contempt of court. Council indicated its intention to enter the land and execute the orders. The owner was allowed a further 4 weeks to remove any personal items.

On 28 June 2019 Council entered the land to conduct a safety assessment prior to executing the terms of the Court Order.

The matter was heard on 1 July 2019 where it was adjourned to 19 September 2019 to allow Council to execute the terms of the Court Order.

The landowner was ordered to reimburse the Council $17,270.25 towards the costs incurred in carrying out the clean-up of the site.

The landowner pleaded guilty to the contempt and incurred a fine of $12,750 which was significantly reduced to $1000 based on the owner’s immediate financial circumstances and realistic prospect of his ability to pay such penalty (Note:- the fine issued by the Court is paid to Consolidated Revenue and not Council).

Council sought legal costs in this matter. The landowner was ordered to pay Councils legal costs in a gross sum of $158,387.38.

5.0 Local Court matter

There was only one Local Court matter in the period and this related to the prosecution of the Australian Hotel for unclean food premises.

On 18 September 2019, the Nowra Local Court issued the Hotel with a fine of $6000. The Hotel was also required to pay $4000 towards Council’s costs.

Development & Environment Committee – Tuesday 05 November 2019

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DE19.116 Draft Shoalhaven Tree and Vegetation Vandalism Prevention Policy - Post Exhibition Consideration and Finalisation

HPERM Ref: D19/318186

Group: Planning Environment & Development Group

Section: Environmental Services

Attachments: 1. Summary of Submissions for Shoalhaven Tree and Vegetation Vandalism Prevention Policy ⇩

2. Draft Shoalhaven Tree and Vegetation Vandalism Prevention Policy (under separate cover) ⇨

Purpose / Summary

To consider the submissions received as a result of the public exhibition of the draft Shoalhaven Tree and Vegetation Vandalism Prevention Policy and to consider the finalisation of the Policy, in accordance with Council resolution MIN19.490.

Recommendation (Item to be determined under delegated authority)

That Council:

1. Adopt the draft Shoalhaven Tree and Vegetation Vandalism Prevention Policy as exhibited, with amendments following consideration of Summary of Submissions for Shoalhaven Tree and Vegetation Vandalism Prevention Policy received during public exhibition as highlighted in Attachment 1;

2. Notify the adoption of the Policy to all who made a submission and CCBs;

3. Notify the adoption of the Policy via media release and provide a link on Council’s website to the new Policy;

4. Advise key stakeholders, including relevant industry representatives, of this decision, and when the Policy will be made effective; and

5. Amend Council’s Foreshore Reserves Policy and Compliance Policy to reference the Shoalhaven Tree and Vegetation Vandalism Prevention Policy.

Options1. As recommended.

Implications: This is the preferred option as it will address the growing concern of vegetation vandalism in the Shoalhaven. The Policy focuses on four key strategies of education; monitoring, recording and prevention; regulation and enforcement; and rehabilitation with the aim of engaging and involving the community.

2. Adopt an alternative recommendation.

Implications: If the alternative recommendation involves amendments other than those proposed in this report, depending on the extent of any changes that may be made to the exhibited version of the Draft Policy, re-exhibition may be appropriate. This may postpose the finalisation of the Draft Policy.

3. Not adopt the recommendation.

Implications: This option is not preferred as Council would continue to have no policy in place to direct and manage tree and vegetation incidents across the Shoalhaven. This means that incidents of vandalism would be considered on a case-by-case basis without a guiding framework or consistent approach.

Background

On 23 July 2019, Council resolved (MIN19.490):

That Council:

1. Place the Draft Shoalhaven Tree and Vegetation Vandalism Prevention Policy on public exhibition for a period of 28 days; and

2. Receive a report following the exhibition period outlining submissions received and any recommended amendments to the Draft Policy prior to adoption by Council.

Community Engagement

The Policy was publicly exhibited for a period of 30 days from Tuesday 30 July to Wednesday 28 August 2019 (inclusive).

The draft policy was exhibited via the following:

· Council’s Community Engagement platform, Get Involved Shoalhaven - https://getinvolved.shoalhaven.nsw.gov.au/tree-and-vegetation-vandalism-prevention

· Council’s website - On Exhibition page https://www.shoalhaven.nsw.gov.au/My-Council/Public-exhibition/Documents-on-exhibition;

· Notice sent to all CCBs;

· Council’s Facebook page;

· Poster advertising the exhibition in the foyer of Nowra Administration Building;

· Council’s newsletter; and

· Hardcopies of the document were placed in Council’s Administration Buildings in Nowra and Ulladulla.

As a result of the exhibition, fifty-seven (57) formal submissions were received. Graph 1 is a representation of the types of submissions received.

Graph 1: Types of submissions received during the exhibition phase

· For Policy: submissions that considered the Policy satisfactory and were supportive of the Policy.

· Against Policy: submissions that did not support the Policy.

· Policy Deficient: submissions that considered the Policy to be deficient and potentially not robust enough to act as a deterrence.

· Opinion only: submissions that did not directly address the Policy, however general opinion regarding vegetation vandalism was provided.

· Enquiry only: submissions that were an enquiry only and did not directly relate to the Policy.

· Technical Review: submission that provided a technical review by Council’s internal Strategic Planning team.

A representation of the most common themes raised in the submissions received by Council is shown in Graph 2.

Graph 2: Common Submission Themes

In support of signage and barriers: 25% of submissions considered the use of signage and barriers (including signs, banners, and physical barriers) as an effective way of deterring ongoing vandalism.

Additional Surveillance: 18% of submissions considered the installation of surveillance such as CCTV cameras and compliance officers as an effective way of deterring ongoing vandalism.

In support of Education: 11% of submissions considered ongoing education including education in schools and through the distribution of pamphlets as an effective way of deterring ongoing vandalism.

Risk of Fire: 11% of submissions were concerned that the Policy did not consider the risk of fire.

Access to vistas, water views, vantage points and mobility of impaired people: 10% of submissions emphasized the importance of views and accessibility to them.

Risk of falling trees and branches: 10% of submissions identified falling trees and branches as a significant cause of power failures, bushfires, property damage, injury and death.

Resources required to implement policy: 6% of submissions were concerned about the ongoing provision of resources by Council to ensure the effective implementation of the Policy.

Revoke 45-degree rule: 5% of submissions considered exemption 5.2.3(d) in the Shoalhaven DCP Plan 2014 – Chapter G4, Tree & Vegetation Management should be revoked.

Weed concern: 4% of submissions were concerned about weeds in the Shoalhaven and their potential to block views and reduce biodiversity.

A detailed summary of the submissions, including a Council staff response for each is provided in Attachment 1.

Copies of the actual submissions will also be available for review in the Councillor’s Room prior to the meeting.

Post-Exhibition Amendments

Following consideration of the key themes and issues raised in the 57 submissions, amendments to the draft policy are recommended. These amendments are shown by the track changes in Attachment 2.

The recommended post exhibition amendments to the draft Policy are summarised briefly below:

Section in Policy	Recommended Change and Reason
2.Objective	Opening statement moved from ‘Objective’ to ‘Introduction’ as this was considered a general statement rather than an objective.
3.Policy Statement	Removed the opening paragraph as it was considered superfluous information.
3.Policy Statement	Remove reference to ‘public and private land’ to emphasize that the policy applies to all land except for state forests, defence land, land reserved or acquired under the National Parks and Wildlife Act, Marine Parks and National Parks.
3.1 Scope	Emphasize that the Policy prevails over all other policies rather than supersedes.
3.2 Background	Include ‘public and private land’ in opening paragraph to emphasise that the Policy is applicable to all land.
3.2 Background	Include sentence in fourth paragraph with the potential to create polarisation and conflict within the community to highlight additional problems created by acts of vandalism.
4.Provisions	Reference to ‘public land’ deleted to de-emphasize focus on a particular type of land.
4.2 Definitions	Removed superfluous information under the definition of ‘Tree’.
4.2 Definitions	Reference to removal (dead or alive) included under 4.2 Definitions: Tree and Vegetation Vandalism The Local Government Act 1993 s 629 specifies that it is an offence to wilfully or negligently injure, damage or unnecessarily disturb any plant, animal, rock or soil in a public place. Additionally, a person, without lawful excuse who removes a plant, animal, rock or soil from a public place is guilty of an offence.
6.1 Community Education	Update reference to mowing within Council reserves to provide clarity.
6.2 Monitoring, Recording and Prevention	Remove Point 5 ‘Record the number of incidents and requests reported by members of the community’. Record keeping is already captured in Point 1.
6.2 Monitoring, Recording and Prevention	New Point 5: Retain poisoned vegetation on site unless assessed as a safety hazard rather than remove after 12 months. Retention recognises the importance of dead wood and stags as important habitat for wildlife.
Appendix 2	Tree and Vegetation Vandalism Include Background Information in the title to clarify that the information provided in this appendix is additional information to the main body of the Policy. Removal of superfluous information: Recognition of the broad tree and vegetation vandalism issues being experiences in the Shoalhaven as a result of Council passing a resolution to develop a robust tree and vegetation vandalism policy. Policy responses Remove reference to “ANZ Standard (Draft) or similar”. The type of calculation used will depend on the type of vegetation loss i.e. one tree or an area of vegetation.
Appendix 3	Update legislative framework table to reflect reference to Environmental Planning and Assessment Act 1979 rather than the Shoalhaven Development Control Plan. Update table identifying other areas not managed by Council.
Appendix 6	Include reference to private land in opening paragraph. Under Low and Medium Impact Events: Include wording until rehabilitated tree or vegetation has been assessed to be adequately re-established. The retention of signage until vegetation has been adequately re-established may discourage further vandalism from occurring. Under High Impact Events: change number of trees and vegetation in rehabilitation works from three to five to provide consistency with section 6.2 Monitoring, Recording and Prevention.
Appendix 7	Include loss of birdlife and other native species in the example template letter to further educate impact of vandalism on the environment. Change number of trees and vegetation in rehabilitation works from three to five which provides consistency with section 6.2 Monitoring, Recording and Prevention.
Appendix 9	Update tree education sign to show tree growing on land rather than water.

Policy Implications

The Policy seeks to prevent vegetation and tree vandalism in a logical structure that provides a guiding framework to Council staff and the public. Should the Policy not proceed, these fundamental growing concerns of the community will not be addressed.

If the Shoalhaven Tree and Vegetation Vandalism Prevention Policy is adopted, the Shoalhaven Foreshore Reserve Policy and Compliance Policy will need to be updated and show the links between Council’s policies that relate to the management of trees and vegetation as well as Council’s Compliance Policy.

Financial Implications

The finalisation of the draft Policy will continue to be resourced within the existing Environmental Planning and Development budget.

Risk Implications

There are risks in not taking action to implement a citywide Policy in the Shoalhaven. Vegetation vandalism occurring in the Shoalhaven is extensive and ongoing. A lack of action from Council may also be seen by the community as ‘doing nothing’ in terms of implementing Council’s previous resolutions to adopt a robust Policy and addressing the community submissions Council has received in recent years requesting that vegetation vandalism occurring at Collingwood Beach and other hotspots across the Shoalhaven be addressed.

Development & Environment Committee – Tuesday 05 November 2019

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DE19.117 Berry Grey-headed Flying-fox Camp Emergency Grant 2019

HPERM Ref: D19/350495

Group: Planning Environment & Development Group

Section: Environmental Services

Purpose / Summary

To inform Council that Local Government NSW have reduced the maximum grant funding available for managing a Grey-headed Flying-fox (GHFF) colony at Berry to $17,500 and to re-confirm Council’s in-kind commitment of $50,000, as per MIN19.645.

Recommendation (Item to be determined under delegated authority)

That Council:

1. Accept the grant funding of $17,469 from Local Government NSW;

2. Council support the grant with a $50,000 in-kind commitment from existing operational budget to manage the ongoing flying fox issues currently experienced in the Shoalhaven LGA; and

3. Write to the Minister of Local Government NSW and the State Member for Kiama thanking them for the grant funding and also outlining concerns regarding the reduction in grant funding and seeking restoration of the full funding of $50,000 for this round and into the future.

Options

1. As recommended above

Implications:

The existing in-kind commitment of $50,000 (as per MIN19.645) is from existing budget for staff salaries and equipment. It is vital in assisting with the management, continued education and allocation of mitigation measures at the Berry Flying Fox Camp. The funds will also assist with the management of other flying fox camps in the Shoalhaven such as those located in Bomaderry and Kangaroo Valley, as well as new camps that may form in the future and require community liaison and education.

A community expectation has evolved that Council manage the impacts of flying foxes within the Shoalhaven. With the grant funding from Local Government NSW being reduced, Council staff will need to work closely with the community to determine which mitigation items are fully funded by the grant and which ones will require a monetary contribution.

2. Only approve a like for like contribution

Implications: Should Council approve a like for like contribution i.e. $17,500 to match the Local Government NSW contribution of $17,500, the total funds of $35,000 will be insufficient to implement mitigation measures as well as fund staff time to manage the impacts of the flying foxes in Berry as well as other areas of the Shoalhaven to the degree originally contemplated.

3. Not accept the grant funding for $17,469 and write to the Minister for Local Government and State Member for Kiama outlining concerns regarding the reduction in grant funding and seek restoration of the full funding of $50,000 for this round and the need for future rounds.

Implications: A community expectation has evolved that Council provide some sort of assistance or solutions if local residents are impacted by living in close proximity to a GHFF colony. Should Council not accept the $17,469 grant funding, there will be no budget to purchase items to assist residents. There will likely be community angst and the number of complaints received is likely to escalate.

4. Council provide an alternative resolution.

Implications: This would depend on the resolution.

Background

Flying Foxes in the ShoalhavenGrey-headed Flying-fox (GHFF) is a threatened species listed as vulnerable to extinction under both the NSW Biodiversity Conservation Act 2016 (BC Act) and Commonwealth Environment Protection & Biodiversity Conservation Act 1999 (EPBC Act). Actions related to the species, such as removal of roosting trees, requires a licence from the Department of Planning, Industry and Environment (DPIE) and potentially approval from the Federal Environment Minister.

A relatively small number of GHFF were known to be present at Berry from time to time as advised by residents. In the past, Council did not receive any complaints about GHFF in this area as the animals were most likely contained within the lower parts of the backyards along the naturally occurring gully. However, the number of GHFF dramatically increased in June and July 2019.

During an initial inspection undertaken by Council officers and DPIE in mid-June 2019, the GHFF camp was found to be mainly restricted to the backyard of one property at Kentia Crescent, Berry. The property has been vacant for some time. An estimated count of the GHFF population at the time was approximately 500 individuals. During a subsequent site visit on 16 July with DPIE staff, a survey of GHFF numbers found that the population had greatly increased to approximately 2025 individuals and were occupying another backyard in Kentia Close within close proximity to a house and sleeping rooms (see Figure 1).

It is unknown whether the GHFF camp at the subject site is made up of a local population from an existing camp formerly located next to the Princes Highway in Berry or from the Bomaderry Camp located approximately 12 km south-west of Berry.

Some residents expressed concern, either via visits to Council’s administration centre or through official telephone complaints to Council officers, that residents were waking them in the early hours of the morning because of air horns and banging of pots in an effort to dissuade the GHFF from roosting in certain trees/backyards in Kentia Close. It should also be noted that a number of residents that DPIE and Council officers have spoken to during community consultation were in favour of the GHFF and appreciative of the natural phenomenon.

At the time of writing, a total of 84 hours of Council staff time has been dedicated to door knocking, addressing complaints and completing the application for emergency grant funding.

Documented attempts to disperse GHFF camps at various locations in Queensland, Northern Territory and New South Wales between the years 1990 and 2013 show that in most cases the flying-foxes did not leave the local area and the local population size was not reduced. The cost of dispersal, the amount of resources required, and the obtrusive nature of the dispersal methods does not make this a viable option.

A licence from DPIE would also be required and is unlikely to be granted. Therefore, dispersal is considered a last resort response.

A picture containing tree

Description automatically generated

Figure 1 – Location of the Grey-headed Flying-fox Camp, Berry

Grant Funding

LGNSW has available “emergency grant funding” which can include funding of:

· possible removal of native and non-native trees to create a buffer between the camp and the residents’ houses; and

· items such as air conditioners, double glazed windows, high pressure cleaning systems, clothesline covers, and car covers etc for protection from GHFF faeces.

Staff applied for a grant from Local Government NSW in relation to managing a Grey-headed Flying-fox colony located on private property between Sabal Close and Kentia Crescent, Berry. The maximum amount, $50,000, was applied for, with an in-kind Council contribution of $50,000. This action was resolved on 20 September 2019 (MIN19.645). However, due to the number of flying fox issues occurring in other NSW local government areas, Council was notified by Local Government NSW that the maximum amount available has been reduced to $17,500. Council resubmitted the grant application to reflect the reduced grant amount available as per the request of Local Government NSW which was granted on 24 October 2019.

The grant is subject to Council providing a matching or greater in-kind contribution for managing and implementing the grant. The full amount for managing the GHFF colony and community expectations at Berry was previously estimated at a maximum total of $100,000 (including grant money).

In order to reduce costings of goods to a maximum of $17,500 a number of milestones have been excluded from the grant. Negotiations will have to be made with local residents regarding the types of goods that will offer the greatest mitigation to the effects of the flying fox colony as well as their level of monetary contribution (up to 50%). The grant funds are limited to the purchase of mitigation measures such as double-glazed windows, air conditioning units, pool covers, tree removal/ lopping, high pressure cleaning equipment etc.

Local Government NSW has advised that grant funding to manage flying foxes in local government areas will no longer be available in the foreseeable future.

It is therefore recommended that Council approach the local Member and the Minister for Local Government to seek restoration of full funding of $50,000 for this round and into the future.

Community Engagement

Since June 2019, Council’s Environmental Services officers have responded to 13 complaints in relation to GHFF roosting (camped) in trees in close proximity to homes and have been in regular contact with the most affected residents (four households). Council reported the colony and the complaints from residents to DPIE.

Council’s Environmental Services officers and DPIE visited the area and door knocked residences surrounding the colony on five separate occasions to date. Information about GHFF and the perceived disease risk was left with residents or in letter boxes along with contact details for an Environmental Services Staff member. Council has advised residents a grant application for an emergency funding grant has been prepared in order to provide alleviation measures and direct measures such as habitat modification (subject to the DPIE licence) was also provided.

It should be noted that a DPIE licence comes with strict conditions in relation to the timing of actions around habitat modifications with no actions permitted if the GHFF will be unduly disturbed.

Council officers continue to contact and listen to affected residents as well as residents in support of the GHFF colony. Council continues to liaise with DPIE about possible management actions. DPIE do not support attempting to relocate the GHFF colony as this is not considered a viable option as it was unlikely to work, very expensive and that the number of persons affected was relatively small.

Proposed future actions will include the contacting of residents to inform them of the reduced funding amount and the requirement to provide monetary contributions for certain mitigation measures.

Policy Implications

Lessons learned from the Berry camp in relation to the impacts of the GHFF on residents and the benefits of GHFF are useful for future management plans. Council is currently working with DPIE to review the GHFF management plan to include camps located in Berry and Kangaroo Valley area and any other new camp formations in the LGA.

Financial Implications

Council Staff time since June 2019 has come from existing operations budgets, approximately 84 hours to date. This includes time allocated to the following:

· Various door knocks to document complaints, educate owners of flying-fox ecology and disease, mitigation options and suggest coping strategies;

· Receiving complaints over the phone and in person at the front counter;

· Camp counts to determine level of impact;

· Preparation of relevant information to affected and neighbouring properties;

· Dissemination of relevant information to affected and neighbouring properties;

· Liaising with stakeholders including DPIE and Local Government NSW;

· Administrative time to document issues; and

· Completion of the grant, including amending the grant to reflect reduced funds as per Local Government NSW request.

The grant offered is limited to the procurement of mitigation measures. Any additional staff time in managing the Berry camp, community expectations and other future issues associated with flying fox camps in the Shoalhaven will have to be met by Council.

Regardless of the reduction in grant funding, Council’s commitment of a $50,000 in-kind contribution is still required as the work associated with the management of flying foxes in the Shoalhaven is essential and is likely to be a recurring issue.

Risk Implications

Shoalhaven City Council may be viewed as ignoring the concerns of its residents directly affected by the GHFF colony at Berry, should Council be unable to effectively manage the impacts of the flying fox colony.

Development & Environment Committee – Tuesday 05 November 2019

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DE19.118 Proposed 2019 Heritage Housekeeping Amendment - Shoalhaven Local Environmental Plan 2014 (PP036)

HPERM Ref: D19/250223

Group: Planning Environment & Development Group

Section: Strategic Planning

Purpose / Summary

Obtain the necessary resolution to progress the 2019 Heritage Housekeeping Amendment Planning Proposal (PP) which seeks to make a range of required housekeeping amendments to the heritage components of Shoalhaven Local Environmental Plan (LEP) 2014.

The PP also seeks to list the cottages and former timber railway on Chinaman’s Island, Lake Conjola as local heritage items as resolved by Council.

Recommendation (Item to be determined under delegated authority)

That Council:

1. Submit the 2019 Heritage Housekeeping Amendment Planning Proposal (PP036) to the NSW Department of Planning, Industry and Environment for initial Gateway determination and, if favourable, proceed to formal public exhibition in accordance with the terms of the determination and legislative requirements.

2. Advise key stakeholders, including relevant Community Consultative Bodies and any directly affected landowners, of the public exhibition arrangements.

3. Receive a further report on PP036 following the conclusion of the public exhibition period.

Options

1. As recommended.

Implications: This is the preferred option as it will enable Council to address the identified inaccuracies in the LEP, make necessary adjustments and ensure it remains accurate and correctly identifies the location of local heritage items within the Shoalhaven. This will also ensure that steps are taken to recognise the heritage significance of the cottages and former timber railway on Chinaman’s Island in the Shoalhaven LEP 2014.

2. Adopt an alternative recommendation. This could include endorsing the PP with the exception of the map changes relating to 14 items which seek to include private properties not currently identified in the map layer of the LEP within the heritage listing of existing items. Two alternatives could potentially be considered regarding these specific items:

· Consider as part of a separate standalone subsequent PP that can be given specific consideration; or

· Not proceed with them and discontinue the relevant proposed changes.

Note: an alternative recommendation can be presented at the meeting if one of these alternatives is considered.

Implications: This will depend on the extent of any changes. Depending on its nature, an alternative recommendation could delay the resolution of the identified housekeeping matters and heritage listing of the cottages and former timber railway on Chinaman’s Island. Amendments to the instrument may still be required to address property description and other minor housekeeping matters relating to some of these items.

3. Not proceed with the PP.

Implications: This is not favoured as the identified housekeeping matters will not be resolved and the cottages and former timber railway on Chinaman’s Island will not proceed to heritage listing.

Background

Since its commencement in 2014 Council has continued to update and revise the Shoalhaven LEP 2014 via on-going housekeeping amendments.

As part of the housekeeping review process, a number of issues and anomalies have been identified in relation to the heritage items listed in LEP Schedule 5 and the associated heritage map.

In addition; on 8 May 2018, Council’s Development Committee resolved (MIN18.333) to list the cottages and the former timber railway at Chinaman’s Island, Lake Conjola as local heritage items in LEP Schedule 5.

2019 Heritage Housekeeping Amendments

The 2019 Heritage Housekeeping Amendment Planning Proposal (PP) seeks to amend LEP Schedule 5 and the associated heritage map in Shoalhaven LEP 2014. The amendments to the LEP are predominantly administrative in nature, responding to anomalies or issues that have been identified through the operation of the Plan since 2014, including:

· Errors during the making of Shoalhaven LEP 2014 (e.g. items incorrectly or incompletely identified in the instrument or map);

· Locational inaccuracy, including property description, street address and map, due to a variety of factors (e.g. road network reconfiguration, subdivisions, cadastre shifts/updates);

· Changes to the heritage significance of items (No.241 Hampden Bridge has been included in the NSW State Heritage Register and No.A5 Greenwell Point wharf and surrounds has been nominated for inclusion in the NSW State Heritage Register); and

· Physical changes to items due to development or other factors (e.g. tree removal, subdivision or natural disaster).

In addition to these largely administrative changes the PP also seeks to:

· Include new components for two (2) existing items – No.202 Lady Denman heritage complex and No.215 Bundanon;

· Include one (1) existing item additionally as an archaeological site – No.407 Nowra Wharf; and

· Include two (2) new items (the cottages and former timber railway at Chinaman’s Island, Lake Conjola) within LEP Schedule 5.

The range of proposed amendments are summarised in Table 1 below, along with a brief explanation of why the change/adjustment is required.

Table 1: Summary of the proposed amendments

Summary of proposed amendment	Rationale
64 items within LEP Schedule 5 require administrative amendments only to the Instrument. These amendments include: updating the item names, addresses and property descriptions.	The proposed changes respond to issues that have been identified in the accuracy of the current schedule. These changes are administrative only and amend the item name, address and/or property description due to identified inaccuracies or respond to the lack of adequate detail within the heritage listing.
Eight (8) LEP Schedule 5 items are located within a road reserve and have been incorrectly mapped, with the heritage layer covering the entire road reserve, rather than the specific location. It is proposed to remove the heritage map layer from the road reserve and only map the location of the item and its immediate curtilage. Associated amendments to the item address and property description are also required to reflect the proposed changes to the heritage map. Note: three (3) of the proposed changes will also affect private properties that are not currently identified on the heritage layer in the LEP (refer to Items No.33, 41 and 45 in the PP).	The entire road reserve does not need to be identified as a heritage item. The proposed change will ensure the heritage layer is placed solely over the actual item and its immediate curtilage. This will allow for better identification of the item’s specific location and remove heritage controls from land that does not contain a heritage item. The three (3) properties that are not currently identified on the heritage layer in the LEP are however identified within the Heritage Inventory Sheets for the heritage items as containing a portion of the item in question. Amending the listing and associated heritage map to cover the curtilage of the heritage items (including the three (3) private properties) will better align LEP Schedule 5 with the data in the supporting Heritage Inventory Sheets.
25 items within LEP Schedule 5 include a heritage significant tree(s) where the dripline of the tree(s) extends beyond the current heritage map layer. It is proposed to extend the heritage layer for these items to include the entire curtilage of the tree(s). Associated amendments to the item address and property description are required to reflect the proposed changes to the heritage map. Note: these changes only affect private land that is currently identified on the heritage layer in the LEP or that is owned or managed by Council (including a road reserve). None of the proposed changes will affect private property that is not currently identified on the heritage layer in the LEP - the tree drip line has been interrupted to avoid these additional private properties. See map example below:	Extending the heritage layer to include the dripline of the heritage listed tree(s) will enable better identification of the location of the heritage item in question or that component of a heritage item. This only applies to properties on the existing heritage layer in the LEP or land that is owned or managed by Council (including the road reserve). This change will allow for: · Better identification of the specific location of the heritage items. · Better management and maintenance of items on public land. · The correct identification of land affected by heritage controls on Planning Certificates provided under section 10.7 of the Environmental Planning and Assessment Act 1979.
52 items within LEP Schedule 5 require amendments to the heritage map with some items also requiring associated amendments to the Instrument. Some of these amendments include adding and/or removing lots from the heritage listing. One of the proposed amendments is to Item No.241 Hampden Bridge to reflect its inclusion on the NSW State Heritage Register. In September 2018, Council supported (MIN18.800) the inclusion of the bridge on the NSW State Heritage Register. The State listing was Gazetted on 2 August 2019. Note: 14 of these amendments will or could affect additional private properties that are not currently identified on the heritage layer in the LEP (refer to Item No’s 6, 36, 114, 124, 135, 226, 325, 344, 405, 432, 444, 489, 509 and 532 in the PP).	The proposed changes respond to inaccuracies within LEP Schedule 5 and the associated heritage map. The amendments are only proposed where the instrument or heritage map are either incorrect or incomplete due to errors in the preparation of the original Shoalhaven LEP 2014. Lots are only proposed to be removed from the heritage map when the item has been incorrectly identified as being located on these lots. This will ensure heritage controls only apply to land that actually contains a heritage item. Lots are only proposed to be included on an item’s heritage map when the Heritage Inventory Sheet lists the item as being located on that lot. Note: Should Council wish to exclude the 14 proposed amendments that seek to specifically map private property not currently identified on the heritage map in the LEP, these items should possibly still be considered as part of a separate process. Council could also discontinue completely the amendments associated with these items. However, amendments to the instrument may still be required to address property description and other minor housekeeping matters.
Six (6) items currently identified within LEP Schedule 5 require amendments to the associated heritage map layer as a result from a shift in Council’s cadastre. Some of these map changes also require complementary instrument changes.	Shoalhaven is constantly being surveyed with more accurate locational information becoming available in the process. At times this results in a physical shift in the Council’s official cadastre, on which all GIS and map data is based. The proposed amendments to the heritage map layer will ensure the map identifies the entire lot a heritage item is located on.
Eight (8) items within LEP Schedule 5 require amendments due to physical changes to the heritage item (e.g. subdivisions, lawful developments and natural disasters) that have altered the heritage item.	Eight (8) heritage items have been physically altered since the LEP was originally compiled in 2014. The proposed amendments reflect the physical alterations to the heritage items and ensure that lots that no longer possess heritage significance are not identified within LEP Schedule 5 or the associated heritage map. It is noted that none of the proposed amendments will remove an item from LEP Schedule 5.
Item No.378 (St Michael’s Roman Catholic Church including two storey Victorian presbytery and grounds) and Item No.380 (St Michael’s Roman Catholic Cemetery) are proposed to be combined into a single heritage listing.	These two items are located within the same lot and share a combined history and use. The cemetery that makes up Item No.380 was donated to the church (Item No.378) to be used as a burial ground for the congregation. The Heritage Inventory for the two items additionally refers to the shared group value of the two items. Recognising the shared heritage significance of the two items under a single listing reflects the combined history of the site and strengthens their related nature in the LEP.
The Jervis Bay Maritime Museum (Lady Denman Heritage Complex) custodians have requested that Council amend the name of Item No.202 to recognise the heritage significance of four (4) vessels located at the site.	Four (4) vessels located at the Lady Denman Heritage Complex (Item No. 202) have been identified as having heritage significance. It is proposed to amend the name of Item No.202 to include the names of these four vessels (Crest, Kingfisher, Porthole, Seabee Runabout) to recognise their heritage significance. This will allow the Museum to apply for conservation-based grant funding to help preserve the vessels.
Amend the item name, property description and heritage map for Item No.215 (“Bundanon”-homestead including outbuildings and natural landscape) to align the local listing with the Commonwealth Heritage List Inventory Sheet.	Item No.215 is additionally listed within the Commonwealth Heritage List. It is proposed to amend the item name to reference the four (4) properties that make up Item No.215. It is also proposed to amend the property description and associated heritage map to include Lot 1, DP 1232368. This will ensure the local listing is consistent with the Commonwealth listing.
Amend the heritage map of the Pulman Street Heritage Conservation Area (HCA) to include an additional lot (Lot 1, DP 558065).	Lot 1, DP 558065 is recognised in the Heritage Inventory Sheet of the Pulman Street HCA as a component of the HCA. The heritage map should be amended to include all lots associated with the HCA.
Amend the heritage map of the Hampden Bridge HCA to be visible over the heritage item map layer.	The hatched HCA map layer for the Hampden Bridge HCA is not visible through the solid polygon heritage item map layer. Amending the HCA map layer to be visible over the heritage item layer will help better identify the location of both the HCA and the heritage item.
On 19 April 2016, Council resolved (MIN16.275(c)) to request the NSW Office of Environment and Heritage to place the old Berry’s Wharf site (Item No.A5) at Greenwell Point on the NSW State Heritage Register. This was supported by a maritime archaeological survey of the site. To reflect this, it is proposed to amend the significance of Item No. A5 (Greenwell Point Wharf and Surrounds) in the LEP to reflect the item’s State significance nomination. It is also proposed to amend the item name to replace ‘Greenwell Point Wharf’ with ‘Berry’s Wharf’ and include the ‘breaking chain’ within the item name. The heritage map is also proposed to be amended to include Lot 7302, DP 1165443.	Existing Item No.A5 has been nominated for inclusion on the State Heritage Register. While the outcome is unknown at this point in time, Practice Note PN11-001 requires that the items significance be listed as ‘nominated item of State significance’ until a decision is made by the Heritage Council of NSW. Updating the name to also reference the breaking chain will better identify the item and all its components and amending the item name to replace ‘Greenwell Point Wharf’ with the more common name ‘Berry’s Wharf’ will strengthen the identification of the heritage item. LEP Schedule 5 lists the heritage item as partially located on Lot 7302, DP 1165443. Updating the heritage map to also include Lot 7302, DP 1165443 will align the heritage map with the LEP Schedule 5 heritage listing.
Add the Chinaman’s Island (Lake Conjola) cottage group as a heritage item and the Chinaman’s Island former timber railway as an archaeological site to LEP Schedule 5.	On 8 May 2018, Council resolved (MIN18.333) to list the cottages and the former timber railway as local heritage items in LEP Schedule 5.
Include the Nowra Wharf (which forms part of heritage item No.407) as an archaeological item in LEP Schedule 5.	The Nowra Sailing Club Heritage Assessment identified that the wharf possesses archaeological potential. While the wharf has been removed as it posed a public safety risk, the early footing is to be retained in-situ. These remains are proposed to be listed in LEP Schedule 5 as an archaeological site as supported by a Statement of Heritage Impact for the Nowra Wharf.

Following initial endorsement by Council, the PP will be submitted to the NSW Department of Planning, Industry and Environment for a Gateway determination. Depending on the response it will then proceed to formal public exhibition.

Community Engagement

Should the PP receive a favourable Gateway determination, it will be exhibited for comment in accordance with Council’s Community Engagement Policy at Level 1 to ‘inform’ and ‘consult’, and in accordance with the relevant legislative requirements.

The Gateway determination will specify the minimum exhibition period and any government agencies who should be consulted.

Any directly affected landowners will be advised of the exhibition arrangements in writing, as well as all Community Consultative Bodies.

Financial Implications

There are no immediate financial implications for Council. This PP is being resourced within the Strategic Planning budget.

Risk Implications

Ensuring the heritage listings within LEP Schedule 5 and the associated heritage map are accurate will help protect these heritage items from unsympathetic development or other impacts.

Development & Environment Committee – Tuesday 05 November 2019

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DE19.119 Public Exhibition Outcomes - Proposed Finalisation - Coastal Hazard Review Planning Proposal and Coastal Management Areas DCP Amendment

HPERM Ref: D19/335874

Group: Planning Environment & Development Group

Section: Strategic Planning

Attachments: 1. Public Exhibition Submission Summary (under separate cover) ⇨

2. Proposed Post Exhibition Changes to Chapter G6 (under separate cover)

Purpose / Summary

· Detail the outcomes of the combined public exhibition of Planning Proposal PP026 – Coastal Hazards Review (PP) and Development Control Plan (DCP) Amendment No. 20 Chapter G6: Coastal Management Areas.

· Provide details on the community information session that was held on 26 August 2019 following the initial August 2019 consideration of this matter by the Committee.

· Enable the amendments to Shoalhaven Local Environmental Plan (LEP) 2014 and Shoalhaven DCP 2014 to proceed to finalisation.

Recommendation (Item to be determined under delegated authority)

That Council:

1. Adopt the Planning Proposal (PP026) as exhibited and forward to the NSW Department of Planning, Industry and Environment (DPIE) for finalisation.

2. Adopt and finalise the Shoalhaven Development Control Plan 2014 Chapter G6: Coastal Management Areas Amendment as exhibited, with the inclusion of the changes highlighted in Attachment 2.

3. Advise key stakeholders, including all CCBs, relevant industry representatives, submitters and/or people who attended the community information session, of this decision, and when the LEP and DCP amendments will be made effective.

Options

1. As recommended.

Implications: This is the preferred option as it will ensure the amendments proceed to finalisation. This will increase the dependability of Council’s coastal risk information in the planning process and also address several housekeeping matters within Chapter G6: Coastal Management Areas.

2. Adopt an alternative recommendation.

Implications: Depending on its nature, this could delay the progress of the amendments to the LEP and DCP.

3. Not adopt the recommendation.

Implications: This option is not preferred as the coastal risk planning maps will remain in the LEP, resulting in potentially lengthy delays to update these maps on an ongoing basis as needed. The DCP housekeeping matters will also remain outstanding, which will potentially negatively impact on the overall application and use of the Chapter.

Background

Some public and private properties along the coast are at risk from coastal hazards such as beach erosion, shoreline recession, coastal entrance instability, sand drift, coastal inundation, storm water erosion, and slope instability. Council’s planning instruments assist to identify and manage this risk.

On 14 August 2018, Council’s Development Committee resolved (MIN18.609) to:

1. Endorse the Coastal Hazards Review Planning Proposal (PP026) (Attachment 1) and submit it to the NSW Department of Planning and Environment for Gateway determination

2. Following receipt of the Gateway determination, concurrently exhibit PP026 and draft Chapter G6: Coastal Management Areas of Shoalhaven Development Control Plan 2014 (Attachment 2), for a period of 28 days as per legislative requirements.

3. Support the preparation of the online coastal hazard mapping based on current coastal risk data.

4. Receive a further report on PP026 and draft Chapter G6: Coastal Management Areas following the conclusion of the public exhibition period.

5. Advise key stakeholders, including relevant Community Consultative Bodies, of this decision.

The following is an overview of the PP and DCP amendment.

Planning Proposal

Seeks to amend the current coastal hazard related controls in the LEP by:

· Removing the Coastal Risk Planning Maps from the LEP (Note: detailed coastal hazard mapping is now publicly available on Council’s website and will be used if this removal occurs);

· Amend Clause 7.4 Coastal Risk Planning to apply to all land at risk of coastal hazards identified within the Shoalhaven Coastal Zone Management Plan, coastal management programs and/or supporting studies.

The PP was submitted to the then NSW Department of Planning and Environment (DP&E) following the August 2018 resolution and received a favourable Gateway determination on 24 October 2018. Council was not given delegated authority to finalise the LEP amendment which means the PP will ultimately need to be submitted to the NSW Department of Planning, Infrastructure & Environment (DPIE) for finalisation.

DCP Amendment

The proposed amendments to DCP Chapter G6: Coastal Management Areas respond to operational issues and matters that require clarification. The key changes are summarised below:

· Insert references to the Shoalhaven Coastal Hazard Interactive Mapping.

· Replace references to 2025 Zone of Reduced Foundation Capacity (ZRFC) with 2030 ZRFC throughout.

· Clarify that sites landward of Precinct 2 (i.e. 2100 ZRFC) have limited restrictions, not no restrictions.

· Include additional commentary and provisions relating to wave runup.

· Include Bendalong Boat Harbour Beach as a known area of beach erosion and/or oceanic inundation, and Narrawallee as a known area of cliff/slope instability.

· Insert references to recently adopted studies (e.g. Royal Haskoning DHV Report – Shoalhaven Coastal Cliffs and Slopes Risk Management Program – 2018).

· Clarify that the side setback requirements also apply to lots on the landward side of an unformed road that adjoins a waterfront reserve.

· Include several provisions adopted from Council Policy POL12/217 Coastal Areas – Planning and Development relating to mitigating loss of public amenity and managing aesthetic and environmental impacts on the foreshore and other public areas.

· Expand foreshore development controls in Section 5.2 to also apply to non-residential development.

· Include new provisions relating to public infrastructure on public land.

· Include provisions to reflect the revised content of the Generic Community Lands Plan of Management – Natural Areas and Foreshore Reserves Policy (e.g. Stormwater from adjoining residences should be managed via inter-allotment drainage and discharged directly into a stormwater facility of Council).

· Update all images to enhance the readability of the Chapter and consistency across the DCP.

Government Agency Feedback

Prior to public exhibition, the PP was referred to the NSW Office of Environment and Heritage (OEH) as required by the Gateway determination. The comments from OEH and the Council staff response is summarised in Table 1 below.

Table 1: OEH Comments on the Planning Proposal

OEH Comments	Council Staff Response
Cleary demonstrate that removing the coastal hazard mapping will not affect or remove existing development controls for development on land subject to coastal hazards.	The PP was updated prior to exhibition to include the following additional commentary in Section 3.2 Map Change: “It (the online coastal mapping) will be updated as and when Council adopts new or updated coastal risk data (for example, Coastal Zone Management Plan). The removal of the CRP Map from SLEP 2014 will not affect or remove existing development controls on land subject to coastal hazards.”
Cleary demonstrate that there is a legal planning mechanism in place to trigger and apply appropriate coastal hazard related development controls for land subject to coastal hazards.	The PP was updated prior to exhibition to include the following additional commentary in Section 2 Part 1 Intended Outcome: “The SLEP 2014 will then be used in conjunction with the Shoalhaven Coastal Management Plan (CZMP) 2018 and the Shoalhaven Development Control Plan 2014 (SDCP) to apply appropriate development controls to areas at risk of coastal hazards as identified in the online coastal risk mapping.”
Clarify how the proposed mapping will be linked to the development controls within Shoalhaven LEP 2014 and Shoalhaven DCP 2014.
Update the proposed amendment to Clause 7.4(2) as follows: “This clause applies to the land identified as being at risk of coastal hazards in Council's Coastal Zone Management Plan, Coastal management programs and/or supporting studies.”	The PP was updated prior to exhibition to reflect this request.
Outline how the intent of the PP is consistent with the Shoalhaven Coastal Management Plan.	The following additional commentary was included in Section 4.2.2 of the PP prior to exhibition: “It is more appropriate to remove the CRP Mapping from SLEP 2014 and move the mapped coastal risk data to Council’s online mapping system. This will allow for more timely updates of new risk data in perpetuity. “The PP is considered consistent with this Action, as although the mapping is not included in SLEP 2014 or SDCP 2014, both draft documents refer to all risk areas, including the revised Advisian Risk Assessment Maps, via the content and relationship to the proposed online coastal risk mapping.”

Public Exhibition

In accordance with the Council resolution (MIN18.609) and Gateway determination, the PP and proposed DCP amendment were publicly exhibited for a period of 30 days, from 6 February to 8 March 2019 (inclusive).

Notices appeared in local newspapers on 6 February 2019. All CCBs, Development Industry Representatives and affected landowners were notified directly in writing.

The exhibition material consisted of the following:

· Planning Proposal (PP026) – Coastal Hazards Review.

· Draft DCP 2014 Amendment No. 20 Chapter G6: Coastal Management Areas.

· Explanatory Statement.

· Gateway determination dated 24 October 2018.

· Agency consultation responses.

· Newspaper advertisement.

As a result of the exhibition, twelve (12) formal submissions were received including:

· One (1) submission from a consultancy firm.

· Nine (9) submissions from the community.

· Two (2) internal Council submissions: Environmental Services and Strategic Planning Sections.

A detailed summary of the submissions with a Council staff response to all comments raised is provided in Attachment 1.

Copies of the actual submissions will also be available for review in the Councillors’ Room prior to the meeting.

Post-Exhibition Amendments

As a result of the submissions received, various minor amendments are proposed to the Draft Chapter G6 as shown at Attachment 2. For convenience, the proposed changes are highlighted in yellow, with strikethroughs to note deletions. The recommended post exhibition amendments to Draft Chapter G6 are briefly summarised below:

· Include a link to the Shoalhaven Coastal Hazard Interactive Mapping in Section 1.

· Amend the purpose to apply to development in areas of coastal risk instead of development in areas of coastal management.

· Amend the context to correct the number of beaches, bays and headlands and include a link to the Shoalhaven Coastal Zone Management Plan 2018.

· Remove the word physical from objective ii) in section 4 Key Objectives.

· Remove reference to planned retreat in acceptable solution A1.9.

· Include the Narrawallee – Surfers Avenue/Bannister Head Road/Tallwood Avenue, Geotechnical Scoping Study and Stability Assessment, Douglas Partner 2012 within acceptable solution A2.1.

· Include additional wording to section 5.2 to correct a grammatical error.

· Remove reference to the Advisian hazard mapping and Shoalhaven Coastal Zone Management Plan as examples of properties identified but not studied.

· Include the 2016 Shoalhaven Coastal Mapping Review within Section 6.2.

No changes are recommended or required to the Coastal Hazard Review Planning Proposal following public exhibition.

Community Information Session

Following the initial consideration of the public exhibition outcomes, Council’s Development & Environment Committee resolved on 2 July 2019 (MIN19.456(1)) that;

1. Consideration of the Planning Proposal (PP026) be deferred to allow for:

a. a briefing be held for Councillors to address the concerns raised at the 2 July 2019 Development and Environment Committee Meeting

b. The provision of an avenue for affected community members to address any of the concerns raised at the 2 July 2019 Development and Environment Committee meeting

2. Following the briefing and community consultation, that a further report on the proposal be brought to the July 2019 Ordinary Council meeting for adoption, if possible.

3. No changes be made with respect to Coastal Mapping unless a report has been provided to the Council and prior community consultation undertaken with affected residents.

Consistent with this resolution, a Community Information Session was held at the Council Chambers on 26 August 2019. All landowners affected by the coastal hazard mapping were advised of this session in writing, with approximately 29 affected landowners and some Councillors attending.

Generally, no issues were raised by the landowners at this session regarding the proposed amendments to DCP Chapter G6: Coastal Management Areas. There were however concerns raised surrounding the Planning Proposal and the approach being taken, which are generally summarised in Table 2 below, along with a Council staff response/comment.

Table 2: Community Comments on the Planning Proposal

Community Comments

Council Staff Response/comment

Is it legal for Council to remove the coastal hazard mapping from the LEP?

There is no legislative requirement for a Council to have a coastal hazard map within its LEP (this has been confirmed by the DPIE).

Additionally, out of the 20 coastal councils in NSW (excluding Shoalhaven) 14 do not have a coastal hazard related map within their LEP.

How was the new online coastal hazard map determined?

The online coastal hazard map is based on information obtained from the 2016 Coastal Hazards Mapping Review, and Coastal Cliffs and Slopes Risk mapping 2008, 2011 and 2012.

This mapping was previously exhibited along with the 2018 Coastal Zone Management Plan for the Shoalhaven Coastline.

Can Council change the online map without notifying residents?

It is noted that on 2 July 2019 (MIN19.456(3)), Council’s Development & Environment Committee resolved that no changes be made with respect to Coastal Mapping unless a report has been provided to the Council and prior community consultation is undertaken with affected residents.

As such, the online mapping will not be changed without notifying owners and providing an opportunity to comment and reporting any change through Council.

Conclusion

The primary concern raised at the Community Information Session was that the online mapping would be changed without Council notifying affected landowners. However, the resolution by Council’s Development & Environment Committee on 2 July 2019 (MIN19.456(3)) ensures that no future changes will be made to the online mapping unless prior community consultation is undertaken with affected owners etc.

It is still considered prudent to finalise the PP as exhibited and to ensure that the most relevant information is available and being used. Thus, as a result of the Community Information Session, no changes are recommended to the exhibited PP.

Policy and Risk Implications

Council will no longer rely upon the Coastal Risk Planning maps within Shoalhaven LEP 2014 to identify land subject to coastal risk. Instead, land subject to coastal risk will be identified by the Shoalhaven Coastal Zone Management Plan, coastal management programs and/or supporting studies.

This approach is more responsive and better manages coastal hazard risk in Shoalhaven. As new information is obtained or information is updated the online mapping can be revised in a timelier manner, acknowledging that the 2 July 2019 direction from Council will also be complied with.

Financial Implications

Finalisation of the PP and draft DCP amendment will continue to be undertaken within the existing Strategic Planning budget.

Development & Environment Committee – Tuesday 05 November 2019

Page 1

DE19.122 Review of Tabourie Lake Entrance Management Policy

HPERM Ref: D19/345193

Group: Planning Environment & Development Group

Section: Environmental Services

Attachments: 1. Tabourie Lake - EMP - Summary of Community Consultation Submissions ⇩

2. Draft Lake Tabourie Entrance Management Policy (under separate cover) ⇨

Purpose / Summary

To inform Council regarding the review of the Tabourie Lake Entrance Management Policy and present the policy for adoption.

Recommendation (Item to be determined under delegated authority)

That Council adopt the Tabourie Lake Entrance Management Policy (June 2019), with the policy recommendation to increase the trigger level, for mechanical opening, from 1.17m AHD to 1.3m AHD.

Options

1. As recommended

Implications: Would be in-line with the recommendation of the policy review and the equally highest ranked preferred option based on community feedback.

2. As recommended with a trial time frame

Implications; This would allow assessment of impact during periods when Tabourie Lake are at or above trigger levels

3. Not adopt the Tabourie Lake Entrance Management Policy (June 2019)

Implications: Reviewing the Tabourie Lake Entrance Management Policy was a key recommendation of the adopted Lake Tabourie Flood Risk Management Plan 2016. Not adopting the reviewed Policy would place Council in conflict with this recommendation.

4. Alternative recommendation

Implications: Would depend on the recommendation.

Background

Council, together with the NSW Government, manages five estuary entrances for flood mitigation purposes. Historical land use planning and development of estuary catchments and floodplains has resulted in low-lying properties being at risk from flooding under certain rainfall and entrance conditions.

History of the Review of Tabourie Lake Entrance Management Policy (EMP)

Cardno Pty Ltd was engaged by Shoalhaven City Council to review the existing Entrance Management Policy (EMP) for Tabourie Lake. Tabourie Lake is an Intermittently Closed and Open Lake or Lagoon (ICOLL) and has periods during which the entrance is closed off from the ocean by the formation of a berm. The study area for the EMP comprises the tidal waterway of Tabourie Lake, its foreshores, and the adjacent lands.

The Tabourie Lake Floodplain Risk Management Study/Plan (FRMS, 2016), proposed a review of Council’s existing Tabourie Lake Entrance Management Policy (EMP, 2005) and the accompanying Review of Environmental Factors (REF). The ocean storm event in June 2016 further highlighted the importance of this review.

A Draft Entrance Management Policy and REF was developed for Tabourie Lake by Peter Spurway & Associates in 2005. The Draft EMP has been used since that time by Council to guide the management of the entrance of Tabourie Lake for flood mitigation purposes. Under the Draft EMP the entrance is mechanically opened by Council when:

· Lake water levels are equal to, or in excess of, 1.17m AHD, this initiates an immediate entrance opening; or

· Lake water levels stabilise after rainfall at a level between 1.00m and 1.17m AHD and a period of over two months has elapsed since attaining that level, resulting in below floor level flooding of foreshore land.

Peter Spurway & Associates (2005) recommends that the assumptions of the Draft EMP and the management framework contained therein be reviewed following adoption of the Tabourie Lake Floodplain Risk Management Study and Plan (FRMS&P). The FRMS&P was completed in 2016, and one of the recommended actions in the FRMS&P was to review the Draft EMP considering the improved understanding of flood behaviour.

Given the significant amount of time that has passed since the Draft EMP was prepared, and acknowledging the changes in the catchment and improved understanding of flood behaviour, Council resolved to proceed with a review of the Draft EMP and preparation of a final EMP.

EMP Considerations

The review of the EMP considered the detailed flood modelling results presented in the 2016 FRMS&P, the combined risks associated with catchment and ocean flooding, and the potential impact of climate change on flooding and entrance behaviour.

There is a range of existing information for Tabourie Lake, that is of relevance to understanding the need and context for the EMP. ICOLL behaviour, entrance behaviour and flooding processes are important determinants of the level of risk to low-lying development from inundation, and aid in determining potential entrance management options.

The statutory and policy context, and environmental and social values of Tabourie Lake are important in assessing the appropriateness and acceptability of entrance management options from both regulatory and stakeholder perspectives.

EMP Review – Management Options

Options were identified and presented to the community. The following options were presented in the following order:

· Option 1: A “Do Nothing” option. Under this scenario, there is no active management of the lake entrance. For the ‘do nothing’ option the entrance berm would be overtopped when water levels rise during a rainfall event and the entrance breaks out naturally without any intervention.

· Option 2: The continuation of the existing management approach, comprising mechanical entrance opening, when lake water levels reach the trigger level of 1.17 m AHD.

· Option 3: Raising the trigger Level to 1.3m AHD. This would lead to fewer mechanical openings of the entrance of Tabourie Lake, thereby reducing the environmental impact on the Lake.

· Option 4: Berm height management. This involves managing the entrance berm height (when closed) such that it does not exceed a pre-determined level; this is known as maintaining a ‘dry notch’, which is a low or ‘saddle’ point in the entrance berm, which the water can preferentially flow across. The purpose of the notch is to dispense with the need to mechanically open the lake when a flood occurs.

· Option 5: Construction of a permanently open entrance, using rock armoured training walls.

· Option 6: Implementation of a pilot channel - a mechanical excavation of sand from the entrance berm 1 – 3 days before a large storm is scheduled to arrive, by digging a pilot channel starting from the ocean. The exercise is intended to reduce the volume of sand required to be removed to instigate a lake breakout, thereby inducing an earlier breakout and reducing flood levels within the lake.

Management Options - Community Consultation

An online questionnaire was distributed during the consultation period and over 90 responses were received from the community. In the questionnaire, the community was asked to rank the options presented (refer above) from a scale 1 to 5. It was found there was a wide range of opinions within the community.

As demonstrated in Table 1, final scores for Options 2 to 5 were very similar, with Option 1 scoring the least. Therefore, the options assessment based on community feedback concluded that options will come down to cost and impacts to the community.

Table 1: Summary of results from the community questionnaire

Option No.	Average Score	Rank
1	4.9	6
2	3.2	3
3	3.1	1
4	3.1	1
5	3.4	4
6	3.4	4

Table 1 above shows the options ranking results, including an indication of how respondents ranked each option. An average score is also provided, whereby each respondent ranked their most preferred option ‘1’ and their least preferred option ‘6’. The survey results were inconclusive, with no clear preference indicated by the community. The ‘most preferred’ options were Options 3 (Raise trigger level) and 4 (Dry notch) with an average score of 3.1 out of 6, followed closely by Option 2 (Existing approach) with a score of 3.2.

The least preferred option was Option 1 (Do nothing), which would allow flooding to occur with no intervention. Option 6 (Construction of a permanently open entrance) appeared to be a fairly polarising option, being scored as the most preferred option by 38.8% of respondents, and least popular by 30.6% of respondents.

Management Options Modelling

Computer-based numerical modelling of various sub-sets of the entrance management options was undertaken using the Delft3D hydrodynamic and morphological model of the Tabourie Lake Estuary, which was established during the Tabourie Lake FRMS&P (Cardno, 2016). The same model set-up and catchment inflow data was used, as in the Cardno 2016 study.

Numerical modelling was undertaken to assess the impact of three of the potential management options on peak flood levels and durations for the more regularly occurring 20% Annual Exceedance Probability (AEP) event. It is noted that the 1% AEP flood event occurs so rapidly that entrance management is not feasible for purposes of flood mitigation; hence it was not considered in the options assessment.

Option 1 was not modelled as it was lowest ranking and was considered unacceptable to the community. Option 5 was not modelled as it was considered unacceptable due to its lower ranking, high cost of implementation and risk of coastal inundation (refer to Section 4.5 of the 2019 Draft Policy). Despite being ranked equal number one by the community, Option 4 was not modelled due to its higher cost and the fact that its technical feasibility was questionable (refer to Section 4.4 of the 2019 Draft Policy).

The remaining three options modelled were:

· Option 2: Existing approach with trigger level of 1.17 m AHD;

· Option 3: Raising the trigger level to 1.30 m AHD; and

· Option 6: Incorporation of a pilot channel (in conjunction with the existing trigger level).

Each of the three options was modelled under five discrete conditions, summing to a total of 15 model simulations (as detailed below). These are different scenarios tested for each option to indicate the peak water levels. Further detail on the modelling methodology is provided in Section 5.3 of Attachment 2:

· Condition A: High High Water Springs (HHWS) and initial berm height of 2.1 m;

· Condition B: HHWS and initial berm height of 1.8 m;

· Condition C: 1% AEP ocean level and initial berm height of 2.1m;

· Condition D: 1% AEP ocean level and initial berm height of 1.8m;

· Condition E: HHWS + 0.4m sea level rise and initial berm height of 2.2 m.

Note: High High Water Springs (HHWS) refers to the highest level that spring tides reach on average over a period of time. The 2.1m berm height is deemed to be the maximum probable berm height.

Table 2: Peak Water Levels for Each Option for Each of Model Run

Option	Condition A	Condition B	Condition C	Condition D	Condition E
2	1.86	1.86	2.52	2.53	1.86
3	1.93	1.93	2.52	2.53	1.93
6	1.76	1.76	2.52	2.52	1.77

Management Options Modelling Results and Comparisons

Comparison of results for Options 2 and 3 (Table 2) shows that raising the trigger level from 1.17 m AHD to 1.30m AHD (an increase of 13cm) would result in an increase in the maximum flood level. However, the increase in flood level is not one for one, and flood levels only increase for Option 3 by around 7 cm (from 1.86 to 1.93 m AHD) for conditions A and B. The increase is non-linear due to the fact that as flood level increases, so too does the available flood storage. Additionally, the flood levels are likely heavily influenced by the geometry of the entrance channel, which constricts the rate of lagoon outflow.

The results also show the same level of storm tide inundation for Options 2 and 3. This would suggest that Options 2 and 3 result in a comparable level of entrance scour, and therefore allow ingress of the storm tide to the same degree.

Cardno Pty Ltd has recommended that Council adopt Option 3 (raising trigger level to 1.3 m AHD) in the Tabourie Lake EMP, as described in the attached Tabourie Lake Entrance Management Policy. This recommendation is based on the technical assessment presented in Section 5.4 of the 2019 Draft Policy), which included a triple bottom line cost-benefit assessment. The assessment resulted in highest score for Option 3 out of the six options considered.

If adopted, the Entrance Management Plan for Tabourie Lake presented in the 2019 Draft Policy (Attachment Two) will henceforth supersede the previous Peter Spurway & Associates (2005) EMP. The 2019 Draft EMP sets out the procedure by which Council will decide to open the entrance of Tabourie Lake for flood mitigation purposes, whether in response to a flood event or to alleviate below floor level inundation of foreshore land.

It is anticipated the implementation of the measures outlined in the 2016 FRMS&P would, in the future, likely remove the need to undertake entrance management and mechanical lake opening as a means of mitigating below floor level flooding. These options included structural options aimed at preventing, avoiding or reducing the likelihood of flood risks – including the construction of levees behind properties and raising roads in specific locations.

Therefore, it is intended that the EMP be adopted, until the relevant measures outlined in the 2016 FRMS&P have been fully funded and implemented.

Please note that Appendices A to E are not included in the Draft Tabourie Lake Entrance Management Policy (Attachment Two), as they are the accompanying operational documents.

Community Engagement

The outcome of the options assessment and the 2019 Draft EMP were subject to public exhibition by Council between 21 January 2019 and 22 March 2019. As part of this public exhibition, the 2019 Draft EMP was presented to the local community on 20 February 2019 at a Community Workshop at the Tabourie Lake Rural Fire Service (RFS) Shed. More than 30 community members attended this workshop.

In total 13 online submissions were received, of which seven submissions were in support of the draft EMP, 1 was neutral, and 4 were against. Of the submissions that were not in favour of the Draft EMP, one submission was made by ten residents. Please refer to Attachment One for a summary of submissions received.

Furthermore, a petition with 105 signatures against raising the trigger and to continue with the current management was presented by Councillor White at the Ordinary Meeting of Council, held on 30 April 2019. This petition was lodged post consultation period.

Policy Implications

The current Tabourie Lake Entrance Management Policy (final draft, 2005) remains current until such time as this review is completed and formally adopted by Council.

Financial Implications

The review of the Tabourie Lake Entrance Management Policy was completed within budget.

The project is for the provision of consultancy works and does not have any direct or immediate implications on Council’s assets. The project is managed by staff from the Natural Resources and Floodplain Unit.

Once the Draft Tabourie Lake EMP is adopted, Council is required to prepare a Review of Environmental Factors, as per the requirements of Part 5 of the NSW Environmental Planning and Assessment Act 1979. The cost of this is estimated to be approximately $15,000. There are sufficient funds in the Flood Programme budget for this work.

Risk Implications

Opening of the entrance of the lake will not prevent flooding of property and dwellings in many circumstances. For example, even if the entrance is fully open at the start of a large flood event, if the flood is greater than a 10% Annual Exceedance Probability (AEP), it is expected that there are existing dwellings that would be affected by flooding

The Policy aims to reduce (where possible) but not eliminate the impacts of catchment flooding. Further, there may be circumstances (e.g. closed access roads, night, or dangerous sea conditions) where, despite its best endeavours, Council cannot act to mechanically open the entrance of the lake at the levels indicated in this Policy.

Legal advice was sought on a submission received from a resident, who is in favour of Option 2 (keep current trigger level) and made the following comments:

· Believes that adopting Option 3 could lead to legal action from residents who are potentially negatively impacted by the entrance management (e.g. destruction of assets and health and safety concerns).

· Makes a note about the costs and lead time involved with potential legal action for Council, as well as any potential media attention.

· Believes that the outcomes of the Study (Option 3) is led by environmental arguments and Council is not well-informed.

The legal response and acknowledgement to this submission is contained within Attachment One. In summary, under the provisions of Section 733 of the Local Government Act, if Council acts in good faith it is protected from legal action in instances such as this. The “good faith” principle would be supported by the scientific study completed in regard to the Tabourie Lake catchment.

Development & Environment Committee – Tuesday 05 November 2019

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DE19.123 Lake Conjola Entrance Update and other matters relating to Mayoral Minute MIN19.143

HPERM Ref: D19/349266

Group: Planning Environment & Development Group

Section: Environmental Services

Attachments: 1. Email correspondence from Red Head Villages Association and Conjola Community Association ⇩

Purpose / Summary

To provide Council with an update on progress in accordance with the Mayoral Minute, (MIN19.143) dated 26 March 2019.

Recommendation (Item to be determined under delegated authority)

That Council:

1. Receive the report providing an update on Parts 3, 8 and 10 of the Mayoral Minute (MIN19.143) regarding Lake Conjola for information; and

2. No longer seek approval from the NSW Government Ministers of Crown Lands, Office Environment and Heritage and Department of Primary Industries (Fisheries) to immediately prepare and maintain a “dry notch” at the entrance to Lake Conjola to allow “break out” of the lake should flooding occur.

Options

1. As recommended

Implications: Council will be better informed and updated on Lake Conjola.

2. Propose an alternative recommendation.

Implications: Would depend on the recommendation

Background

On 26 March 2019 Council passed Mayoral Minute (MIN19.143), relating to the management of Lake Conjola entrance (MIN19.143). The following is a summary of the progress to date relating to the following parts of MIN19.143:

· Part 3: Seek approval from the NSW Government Ministers of Crown Lands, Office Environment and Heritage and Department of Primary Industries (Fisheries) to immediately prepare and maintain a “dry notch” at the entrance to Lake Conjola to allow “break out” of the lake should flooding occur. This is to be maintained until a new Coastal Management Plan is approved by the Minister.

· Part 8: Report timeframe and priority status for preparation of Coastal Management Plan for Lake Conjola to Council.

· Part 10: Provide monthly update reports to Councillors on all issues concerning Lake Conjola.

Proposed Dry Notch

Council staff have completed a draft Lake Conjola “Flood Dry Notch” proposal report based on the current available scientific data, contained within existing current studies. The difficulty with such a report is it is not able to guarantee accuracy or completeness to the full extent of the subject matter, given there is an information gap.

Any proposal, without being informed by relevant data and a specific study, looking into social, environmental and economic implications, can be prone to inaccuracy, as coastal processes are a complex science.

Council staff presented the “Lake Conjola Flood Dry Notch” proposal to Councillors on 26 September 2019. The outcome of the presentation was for Council staff to consult directly with the Red Head Villagers and Conjola Community Association, including offering to give the presentation to the association.

The offer to present the proposal for the Lake Conjola ‘Flood Dry Notch” was not taken up by ether CCB, as they have decided not to undertake any further investigations into a proposed flood dry notch (see Attachment 1).

In light of the community’s decision, it is recommended that Council no longer seek approval from the NSW Government Ministers of Crown Lands, Office Environment and Heritage and Department of Primary Industries (Fisheries) to immediately prepare and maintain a “dry notch” at the entrance to Lake Conjola to allow “break out” of the lake should flooding occur.

Lake Conjola Costal Management Program

In April 2019, Council applied for a grant from the NSW Government – Coast and Estuary Program to prepare a Coastal Management Program (CMP) for Lake Conjola. In June 2019, Council was awarded and signed a grant agreement with the NSW Office of Environment and Heritage (OEH). The grant timeframe is from 01/09/2019 to 01/09/2021.

Further to advice received from the NSW Coastal Council, Council pursued the development of the Scoping Study (as per the first phase of the Coastal Management Program (CMP)) for the whole of the city. The Scoping Study was to include the open coast and all estuaries. Further detail regarding subsequent grant variations has been emailed to Councillors.

Council engaged Advisian - WorleyParsons to prepare the citywide scoping study and engaged the RPS Group to undertake the community engagement. This means that all current and future CMPs will not have to undertake a scoping study as part of their CMP preparation, including Lake Conjola.

The community engagement phase of the citywide scoping study was rolled out across the city, with six (6) Focus Workshops and Community Information Drop-In Sessions held at the following locations:

1. Ulladulla;

2. St Georges Basin;

3. Nowra;

4. Lake Conjola;

5. Sussex Inlet; and

6. Shoalhaven Heads.

The milestones, outputs and timeframe for the Lake Conjola CMP are as follows:

Milestone	Outputs	Timeframe
Citywide Scoping Study	Scoping Study Community Engagement report Scoping Study questionnaire evaluation Final Scoping Study report	31/12/2019
Additional studies	Working group established Consultant engaged Additional studies commenced	30/04/2020
Draft CMP	Draft CMP complete and on public exhibition	17/12/2020
Final CMP	Final CMP adopted by Council Grant acquitted.	31/08/2021

Table 1: Lake Conjola CMP grant Milestones, Outputs and Timeframe

Condition of the entrance

Further to part ten of the Mayoral Minute (MIN19.143), the following is an update of the condition of the Lake Conjola entrance, including the current lake levels. Any further updates will be provided to Councillors via an email.

On 13 June 2019, Council opened the lake to the ocean and have been closely monitoring the condition of the entrance. The entrance closed on 12 August 2019.

Since closure of the lake entrance, Council have been monitoring the water level and rainfall. Between 16 and 17 August 2019, Lake Conjola received 60mm of rainfall over 24 hours resulting in water level increase from 0.64m to 0.74m. No other significant rainfall has been experienced to date. Lake levels at 12:00 hours on 25/10/2019 were 0.699m AHD.

Figure 1: Lake Conjola Entrance – Looking South 27/9/2019

Community Engagement

Council have collaborated closely with both the Red Head Villages Association and Lake Conjola Community Association throughout the planning and implementation process of the recent lake opening. Council have setup a ‘Get Involved Page’ providing information about Lake Conjola entrance management.

As part of the preparation of the citywide scoping study, six focus workshops and community information drop-in session were held across the Shoalhaven from 24/919 to 3/10/19, at six locations across the City.

13 residents from Conjola and surrounding areas attended the focus group workshops across various locations, with five representatives from the Conjola Community Association attending.

The scoping study community engagement report and the draft scoping study report are scheduled to be presented to Council in December 2019 for approval to publicly exhibit.

As part of the preparation of the Lake Conjola CMP, a Working Group, will be formed. This working group will have community representatives from Lake Conjola, including Council staff and State Government Agencies staff.

Policy Implications

The community consultation and associated works will contribute to the production of updated coastal policy.

Financial Implications

Grant variations were required to facilitate the completion of a city-wide scoping study process.

Development & Environment Committee – Tuesday 05 November 2019

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DE19.124 Potential Impact of Invasive Aquatic Weeds on Sydney Drinking Water Catchment and Shoalwater Infrastructure

HPERM Ref: D19/342970

Group: Planning Environment & Development Group

Section: Environmental Services

Attachments: 1. Greater Sydney's Water Supply System ⇩

Purpose / Summary

To inform Council of the concerns raised by WaterNSW regarding the potential impact of Water hyacinth (Eichhornia crassipes), Long-leaf willow primrose (Ludwigia longifolia) and other invasive aquatic weeds on critical drinking water infrastructure managed by WaterNSW and Shoalhaven Water and to seek endorsement to act appropriately on these concerns.

Recommendation (Item to be determined under delegated authority)

That Council:

1. Write to the Minister for Agriculture and Western New South Wales, urging the Department to introduce a Special Biosecurity Zone for management of aquatic weeds in the WaterNSW Sydney Drinking Water Catchment and Shoalhaven River Catchment;

2. Write to the Illawarra Shoalhaven Joint Organisation (ISJO) seeking their support for establishment of the Special Biosecurity Zone;

3. Write to other councils that have land management roles in the broader Sydney Drinking Water Catchment seeking their support for establishment of the Special Biosecurity Zone. These councils are:

a. Wollondilly Shire Council;

b. Wingecarribee Shire Council;

c. Blue Mountains City Council;

d. Lithgow City Council;

e. Goulburn Mulwaree Council;

f. Queanbeyan Palerang Regional Council;

g. Oberon Council; and

h. Upper Lachlan Shire Council.

4. Write to the Local Land Services regional weed committees that are established in the catchment area seeking their support for establishment of the Special Biosecurity Zone. These weeds committees are:

a. South East Regional Weed Committee;

b. Greater Sydney Regional Weed Committee; and

c. Central Tableland Regional Weed Committee.

Options

1. Adopt the recommendation:

Implications: Supporting the establishment of the Special Biosecurity Zone - Aquatic Weeds in the Declared Sydney Drinking Water Catchment and Shoalhaven River Catchment will provide protection for critical State infrastructure and water supply not only for Sydney, but also the Shoalhaven area, as serviced by Shoalhaven Water. Attachment 1 provides an overview of the infrastructure in Greater Sydney’s Water Supply System.

2. Not adopt the recommendation:

Implications: Not supporting the establishment of the Special Biosecurity Zone - Aquatic Weeds in the Declared Sydney Drinking Water Catchment and Shoalhaven River Catchment will potentially expose critical State and Council water infrastructure to risk of degradation by establishment of invasive aquatic species.

Background

In early December 2007 extremely intense rainfall in the Kangaroo Valley area washed Water hyacinth from an ornamental lake in Kangaroo Valley into an adjoining farm dam and then into the Kangaroo River.

This infestation was not known to Council’s Noxious Weeds staff at the time of the incident and was reported by a local resident.

The infestation was carried into the Kangaroo River and into Lake Yarrunga behind Tallowa Dam.

Control Action

Council staff took immediate action to contain existing plants in the farm dam and treat this infestation with herbicide and mechanically remove plants from the farm dam. Council also immediately alerted the former Sydney Catchment Authority [Water NSW] of the incident.

Sydney Catchment Authority weed control staff commenced mechanically removing Water hyacinth from Tallowa Dam/Lake Yarrunga. This involved control activity on excess of 30 km of foreshore and when completed the labour component of the project exceeded 60 days of labour.

It was recorded that the extreme rainfall event that led to the carriage of the Water hyacinth into Lake Yarrunga, scoured the creek line and Kangaroo River watercourse, carrying the Water hyacinth into the lake.

Council staff continue to monitor dams, ponds, creeks and rivers in this area on a seasonal basis.

South East Regional Weed Committee

At a recent meeting of the South East Regional Weed Committee, the representative of WaterNSW tabled a document seeking support from Shoalhaven City Council and other members of the committee to include the Sydney Drinking Water Catchment as part of the State Water hyacinth Biosecurity Zone.

Currently, the “Water hyacinth Biosecurity Zone” applies to all land within the State, except for the following regions: Greater Sydney and South East (but only in the local government areas of Eurobodalla, Kiama, City of Shellharbour, City of Shoalhaven or City of Wollongong).

Considering that part of the Sydney Water Catchment and the Shoalhaven Catchment are critical infrastructure, these areas are worthy of special consideration to ensure protection of the drinking water supply to Sydney and the Shoalhaven.

Water NSW has requested support from local councils, including Shoalhaven City Council and Local Land Services boards in lobbying the Minister for Agriculture and Western New South Wales, The Hon. Adam Marshall MP, for establishment of a Special Biosecurity Zone - Aquatic Weeds in the Declared Sydney Drinking Water Catchment and Shoalhaven River Catchment.

Legislative provisions

Biosecurity Act 2015 & Biosecurity Regulation 2017

Currently, under the Biosecurity Regulation 2017, Water hyacinth and Alligator weed (Alternanthera philoxeroides) are identified as priority weeds. A biosecurity zone is established for Water hyacinth and Alligator weed.

Under Division 2, Clauses 68 and 69 of the Biosecurity Regulation 2017, the Alligator weed biosecurity zone is described in the following terms:

68 Establishment of biosecurity zone

1. A biosecurity zone, to be known as the alligator weed biosecurity zone, is established for all land within the State except land in the following regions:

a. Greater Sydney

2. The alligator weed biosecurity zone is established to manage the biosecurity risk of the weed Alternanthera philoxeroides (Alligator weed).

69 Regulatory measures

An owner or occupier of land in the alligator weed biosecurity zone on which there is the weed Alternanthera philoxeroides (Alligator weed) must:

a. if the weed is part of a new infestation of the weed on the land, notify the local control authority for the land as soon as practicable in accordance with Part 6, and

b. eradicate the weed or, if that is not practicable, destroy as much of the weed as is practicable and suppress the spread of any remaining weed.

Under Division 4, Clauses 72 and 73 of the Biosecurity Regulation 2017, the Water hyacinth biosecurity zone is described in the following terms:

72 Establishment of biosecurity zone

1. A biosecurity zone, to be known as the Water hyacinth biosecurity zone, is established for all land within the State except land in the following regions:

a. Greater Sydney

b. South East (but only land in that region that is in the local government area of Eurobodalla, Kiama, City of Shellharbour, City of Shoalhaven or City of Wollongong).

2. The Water hyacinth biosecurity zone is established to manage the biosecurity risk of the weed Eichhornia crassipes (Water hyacinth).

73 Regulatory measures

An owner or occupier of land in the Water hyacinth biosecurity zone on which there is the weed Eichhornia crassipes (Water hyacinth) must:

a. if the weed is part of a new infestation of the weed on the land, notify the local control authority for the land as soon as practicable in accordance with Part 6, and

b. eradicate the weed, or if that is not practicable, destroy as much of the weed as is practicable and suppress the spread of any remaining weed

Other Aquatic Plants

Under s. 24 of the Biosecurity Act 2015 other invasive aquatic species (refer to table below) are captured as “prohibited plants” or under “mandatory measures” which specify what land managers must do in respect of the identified biosecurity matter [weed].

Prohibited matter

Common name	Botanic name	Mandatory measure
Anchored water hyacinth	Eichhornia azurea	Prohibited matter
Frogbit	Limnobium laevigatum – Inc. all species of Limnobium	Prohibited matter
Lagarosiphon	Lagarosiphon major	Prohibited matter
Pond apple	Annona glabra	Prohibited matter
Spongeplant	Limnobium spongia	Prohibited matter
Water caltrop	Trapa spp	Prohibited matter
Water soldier	Stratiotes aloides	Prohibited matter

Prohibited matter

A person who deals with prohibited matter or a carrier of prohibited matter is guilty of an offence. A person who becomes aware of or suspects the presence of prohibited matter must notify the Department of Primary Industries.

Mandatory measures

Common name	Botanic name	Mandatory measure
Alligator weed	Alternanthera philoxeroides	Alligator weed biosecurity zone (excludes Shoalhaven City Council) Recommended Regional Measure 1.
Water hyacinth	Eichhornia crassipes	Water hyacinth biosecurity zone (excludes Shoalhaven City Council) Recommended Regional Measure 1.
Hygrophila	Hygrophila costata	Recommended Regional Measure 2.
Kidney-leaf mud plantain	Heteranthera reniformis	Recommended Regional Measure 2.
Long-leafed willow primrose	Ludwigia longifolia	Recommended Regional Measure 2.
Ludwigia	Ludwigia peruviana	Recommended Regional Measure 2.
Salvinia	Salvinia molesta	Recommended Regional Measure 2.
Senegal tea	Gymnocoronis spilanthoides	Recommended Regional Measure 2.
Water lettuce	Pista stratiotes	Recommended Regional Measure 2.
Sagittaria	Sagittaria platyphylla	Recommended Regional Measure 3.

Recommended regional measure 1

Within the Biosecurity Zone this weed must be eradicated where practicable, or as much of the weed destroyed as practicable, and any remaining weed suppressed. The local control authority must be notified of any new infestations of this weed within the Biosecurity Zone.

Recommended regional measure 2

Land managers should mitigate the risk of new weeds being introduced to their land. The plant should be eradicated from the land and the land kept free of the plant. The plant should not be bought, sold, grown, carried or released into the environment. Notify local control authority if found.

Recommended regional measure 3

Plant should not be allowed to be spread to priority sites of high environmental, economic or social value.

Policy Implications

Policy implications will be limited as the application of the relevant legislation is already addressed by Council’s weed biosecurity management program. The creation of the special biosecurity zone will enhance Council’s ability to effectively manage aquatic weeds by enforcement of the Biosecurity Act 2015 and Biosecurity Regulation 2017.

Financial Implications

Limited in the current situation. However, if aquatic weeds are allowed to establish in the Shoalhaven drinking water supply and the Sydney Drinking Water Catchment, then the costs of management of aquatic weeds in these areas will increase exponentially.

Risk Implications

The risk posed to the Shoalhaven drinking water supply and the Sydney Drinking Water Catchment by aquatic weeds cannot be understated. Recent infestation and eradication of Water hyacinth and current control activity on Long-leafed willow primrose, demonstrate the vulnerability of these critical state infrastructure assets to potential threat from invasive aquatic weeds.

Establishment of a special Biosecurity Zone for management of aquatic weeds in the WaterNSW Sydney Drinking Water Catchment and Shoalhaven River Catchment will substantially mitigate the risk posed by serious aquatic weeds.

Development & Environment Committee – Tuesday 05 November 2019

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DE19.125 Drought Management - Implementation of Water Restrictions

HPERM Ref: D19/364372

Approver: Stephen Dunshea, Chief Executive Officer

Attachments: 1. Communicating Water Restrictions - Survey Results (under separate cover) ⇨

2. Communicating Water Restrictions - Additional Analysis ⇩

Reason for Report

This report seeks Council’s concurrence to implement Level 1 water restrictions from 2 December 2019 whether or not the trigger levels in the Drought Management Plan are met. It also seeks Council’s support to review its Drought Management Plan following a recent community survey.

Recommendation (Item to be determined under delegated authority)

That Council

1. Note the current water supply situation.

2. Implement Level 1 Water Restrictions from 2 December 2019 irrespective of trigger levels in Council’s Drought Management Plan being met.

3. Undertake a full review of the Drought Management Plan, incorporating “Permanent Water Conservation Measures”, following the recent community survey.

4. Receive a further report at the completion of a revised Draft Drought Management Plan, prior to public exhibition.

5. Review and implement marketing strategies to support the key findings and recommendations from the “Communicating Water Restrictions in the Shoalhaven LGA” Report, August 2019.

Options

1. Adopt the recommendation with regard to implementation of Level 1 water restrictions.

Implications: Level 1 water restrictions will be implemented on 2 December 2019, with water saving messages being aired in the lead-up to the implementation date.

2. Council could resolve to implement water restrictions in accordance with the trigger levels in the Drought Management Plan.

Implications: Staff consider that, if water restrictions are not implemented over the peak holiday period, this could convey a negative message to the local community with regard to water conservation.

3. Adopt the recommendation with regard to reviewing the Drought Management Plan.

Implications: The Drought Management Plan was last updated in 2014 and is outdated. The review would be undertaken incorporating “Permanent Water Conservation Measures” and a full review of other restriction Levels

4. Council could resolve to leave the Drought Management Plan in the status quo.

Implications: The Drought Management Plan was last updated in 2014 and is outdated. The recent community survey suggests that the community (particularly the younger generation) are in favour of permanent water conservation measures.

Background

Current Water Supply Situation

At mid October, 98.4% of NSW was in drought, with the worst affected areas being in the north-west (Namoi/Peel, Macquarie and Border Rivers) and the far west (Barwon-Darling and Lower Darling Valleys). Towns such as Bourke, Orange, Tamworth, Dubbo, Bathurst, Glenn Innes, Cobar, Coonabarabran, Nyngan, Walgett, Walcha and Murrumundi are rated as high risk of running out of potable water supply. A number of smaller villages in these areas are already receiving potable water by water carting.

Sydney’s water storages were at 48% of capacity, and falling at 22 October 2019. Sydney Water customers have been on Level 1 water restrictions since 1 June 2019.

Eurobadalla Shire Council introduced Level 1 water restriction from 14 October 2019.

At 22 October 2019, Shoalhaven’s dams were at a total 87% of capacity; individually the dams capacities were:

· Bamarang Dam – 98%

· Danjera Dam – 84.2%

· Porters Creek Dam – 73.2%

The WaterNSW-owned Tallowa Dam was at 1.5 metres below spill level and the flow into Tallowa Dam was 87 megalitres per day (ML/day) and dropping. Shoalhaven Water ceased pumping from the Shoalhaven River to Bamarang Dam on 22 October 2019 when the flow into Tallowa Dam dropped below 90 ML/day, per the Water Sharing Plan and Council’s Drought Management Plan.

WaterNSW has received Ministerial approval to pump water from Tallowa Dam to Fitzroy Dam (Sydney system) until Tallowa Dam drops to 3 metres below spill level, from 27 August 2019. The Hon. Melinda Pavey utilised Powers under Sec.49A of the Water Management Act 2000 to suspend part of the operation of the Water Sharing Plan for the Greater Metropolitan Unregulated River Water Sources 2011 to enable additional pumping. This action has approval to continue until June 2020, or until notified otherwise.

In the past 12 months Shoalhaven has only received its long term average rainfall in 5 of those months and as such has been close to trigger levels for Level 1 water restrictions. Level 1 restrictions are triggered by Bamarang Dam dropping to 60% of capacity and the first release of water from Danjera Dam. Bamarang Dam is drawn down when Shoalhaven ceases pumping from the Shoalhaven River due to the flow into Tallowa Dam dropping to less than 90 ML/day.

The Bureau of Meteorology’s outlook for rain in the Shoalhaven up to the end of November is poor with the current likelihood of receiving average rainfall through this period around 30-40%.

Shoalhaven last implemented water restrictions on 3 September 2018 and removed restrictions from 10 December 2018 (98 days in Level 1 restrictions). Previous to that, restrictions were implemented in 2009/10 for a period of 128 days.

It is estimated that it will take approximately 6 weeks to draw Bamarang Dam down to 60% from the time pumping ceases from the River (from 22 October 2019).

Shoalhaven Water’s Drought Management Team are recommending that Council impose Level 1 water restrictions from 2 December 2019, whether or not the trigger levels are met, based on the following:

· 2 December 2019 is the current projected time for triggering Level 1 restrictions based on no significant rainfall.

· We are heading into the high demand holiday period where water demand traditionally increases by around 40%.

· Many holiday makers are from the Sydney area, who are now accustomed to water restrictions.

· Porters Creek Dam and Milton WTP will be required for use over the peak period. These have not been utilised due to the current level of Porters Creek Dam.

Community Engagement

Council resolved at its Ordinary Meeting in March 2019 as follows:

That Council

1. Engage with the community and seek views on water restrictions, permanent water conservation measures and other possible programs that would be used to develop a new Drought Management Plan and Water Demand Strategy.

2. Consider a further Report after community input has been received.

Following this resolution Shoalhaven Water engaged Iris Research and The Marketing Clan to undertake a community survey and develop marketing strategies. The aims of this research were to:

· Gauge the community’s awareness of the Shoalhaven’s water sources.

· Gauge the community’s awarenes of the various levels of water restrictions and their triggers.

· Investigate the community’s appetite for change to Council’s Drought Management Plan, primarily in terms of whether the status quo should remain or introduce permanent water conservation measures (similar to Sydney Water and Eurobadalla Shire).

· Identify the effectiveness of various communications channels on the community’s behavioural responses to assist Council with it’s marketing strategies.

The full survey results can be viewed in Attachments 1 and 2.

A summary of the key findings from the survey follow.

· Nearly all residents surveyed (96%) are convinced Council’s water restriction messages indicate there are current water shortages.

· More than one third of residents surveyed do not understand the meaning of Level 1, 2, 3, 4 water restrictions.

· When seeking response on whether Shoalhaven should have more severe intermittent water restrictions the total sample was almost split between agreeing and disagreeing (55%:45%), it is interesting to note that the 18-39 year old age group strongly supported (74%) more severe, intermittent water restrictions while the 60-74 year old age group were less supportive (48%) and the 75+ age group were only 38% supportive.

· When seeking response on whether Shoalhaven should introduce permanent water conservation measures, again the total sample was almost split between agreeing and disagreeing (49%:51%), however it was again the 18-39 age group showing the greatest support for permanent water conservation measures (63%).

· Only half of the respondents claimed to be aware of the origins of their water supply. When prompted to name the origins only about half of those claiming to know responded with Shoalhaven River.

The key recommendations from the engagement are as follows

· Increase residents’ understanding of Levels of water restrictions through education.

· Develop water conservation messages and programs raising awareness of water conservation.

· Increase community awareness of of its water sources to engender stronger water conservation attitudes and behaviours.

· Council should have a multimedia approach to messaging.

· Monitoring should be undertaken to assess the success of any water conservation messages and programs undertaken.

Policy Implications

Council has an adopted Drought Management Plan (2014). It is proposed, through a thorough review process, to ultimately adopt a revised Drought Management Plan which takes into consideration feedback from the community and recommendations from the consultation process.

An aim of the review will also to develop a Drought Management Plan to be better aligned with surrounding Water Authorities/Utilities, i.e. Sydney Water and Eurobadalla Shire.