Agenda of Development & Environment Committee

Minutes of the Development & Environment Committee

Meeting Date: Tuesday, 3 March 2020

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

Time: 5.00pm

The following members were present:

Clr Joanna Gash - Chairperson

Clr John Wells

Clr Patricia White

Clr Kaye Gartner

Clr Nina Digiglio

Clr Annette Alldrick

Clr John Levett

Clr Greg Watson

Clr Mark Kitchener

Clr Bob Proudfoot

Mr Stephen Dunshea - Chief Executive Officer

Apologies / Leave of Absence

Apologies were received for Clr Amanda Findley, Clr Kaye Gartner, Clr Andrew Guile and Clr Mitchell Pakes.

Confirmation of the Minutes

RESOLVED (Clr Digiglio / Clr Levett) MIN20.155

That the Minutes of the Development & Environment Committee held on Tuesday 04 February 2020 be confirmed.

CARRIED

Declarations of Interest

Nil

Call Over of the Business Paper

RESOLVED (Clr Proudfoot / Clr Levett) MIN20.156

That the items on the agenda be dealt with as they appear in the paper.

CARRIED

Procedural Motion - Matters of Urgency

RESOLVED (Clr Watson / Clr Gash) MIN20.157

That an additional item “COVID-19 Preparation” be introduced as a matter of urgency.

CARRIED

The Chairperson ruled the matter as urgent as it is a matter of public safety.

DE20.19 Additional Item - COVID-19 Preparation

Motion (Clr Watson / Clr Gash)

That the CEO immediately start the preparation of a response to a possible coronavirus pandemic affecting Australia and as consequence the Shoalhaven Area.

The plan should be informed by the following:

1. The protection of our residents by reducing the risk of exposure through a local education program and possible closure of Public air-conditioned buildings, if determined to be necessary, to reduce the potential of virus transmission.

2. Protection of our employees where practical, by allowing as many as possible to work from home using computer links as air-conditioning and the close work environment may aid in the spread of the disease.

3. Monitoring of the health of employees as they arrive at work.

4. Immediate representation be made to the Minister for Local Government to allow Council Meetings to be conducted remotely using computers should local infections by the coronavirus occur to facilitate the continuation of Council business.

Motion (Clr Wells / Clr White)

That the motion be PUT.

RESOLVED (Clr Watson / Clr Gash) MIN20.158

The CEO immediately start the preparation of a response to a possible coronavirus pandemic affecting Australia and as consequence the Shoalhaven Area.

The plan should be informed by the following:

3. Monitoring of the health of employees as they arrive at work.

4. Immediate representation be made to the Minister for Local Government to allow Council Meetings if required to be conducted remotely using computers should local infections by the coronavirus occur to facilitate the continuation of Council business.

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

Against: Clr Digiglio, Clr Alldrick and Clr Levett

CARRIED

Clr Annette Alldrick raised a Point of Order against Clr Greg Watson for bringing the Councillors into disrepute. The Chairperson ruled on the Point of Order and Clr Watson retracted part of his words about “Political ploys”.

Reports

DE20.14 Chinamans Island - Lake Conjola

HPERM Ref: D19/434563

Recommendation (Item to be determined under delegated authority)

That Council:

1. Receive the report providing an update on investigations by Department of Crown Lands and the three permissive occupants on Chinamans Island in accordance with Part 1 MIN19.872 for information.

2. Endorse Council staff to continue to liaise with Crown Lands following the impact of the Currowan fire and report progress back to Council.

RESOLVED (Clr White / Clr Levett) MIN20.159

That Council:

1. Receive the report providing an update on investigations by Department of Crown Lands and the three permissive occupants on Chinamans Island in accordance with Part 1 MIN19.872 for information.

2. Endorse Council staff to continue to liaise with Crown Lands following the impact of the Currowan fire and report progress back to Council.

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

Against: Nil

CARRIED

DE20.15 Grant Application: Five (5) Projects funded through the Community Environment Program 2019/20

HPERM Ref: D20/14275

Recommendation (Item to be determined under delegated authority)

That Council

1. Note the successful grant of $66,400 (ex GST) from Australian Government through the Department of Industry, Innovation and Science Communities Environment Program Grants for five (5) Shoalhaven projects to be completed by the end of the 2020 calendar year.

2. Provide matching funding (including in-kind contributions) from the existing operational budgets (job numbers 15915, 75714 and 15900 over 2020/21 and 2021/22).

3. Write a letter of thanks to the Member for Gilmore, the Hon. Fiona Phillips MP, for the grant.

RESOLVED (Clr White / Clr Digiglio) MIN20.160

That Council

2. Provide matching funding (including in-kind contributions) from the existing operational budgets (job numbers 15915, 75714 and 15900 over 2020/21 and 2021/22).

3. Write a letter of thanks to the Member for Gilmore, the Hon. Fiona Phillips MP, for the grant.

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

Against: Nil

CARRIED

DE20.16 Proponent Initiated Planning Proposal - 10 Victoria Street, Berry

HPERM Ref: D20/8104

Recommendation (Item to be determined under delegated authority)

That:

1. Council support ‘in principle’ the proposed rezoning of the north eastern area of Lot 6 DP 1204186 (No. 10 Victoria Street) from RU1 – Primary Production to R2 – Low Density Residential.

2. Prepare and submit a Planning Proposal to the NSW Department of Planning, Industry and Environment (DPIE) for Gateway determination.

3. If Gateway is granted, prior to formal public exhibition of the Planning Proposal, complete an Aboriginal Cultural Heritage Assessment (ACHA) in accordance with advice from DPIE.

4. Advise the proponent and the Berry Forum of this decision.

RESOLVED (Clr Wells / Clr White) MIN20.161

That:

2. Prepare and submit a Planning Proposal to the NSW Department of Planning, Industry and Environment (DPIE) for Gateway determination.

3. If Gateway is granted, prior to formal public exhibition of the Planning Proposal, complete an Aboriginal Cultural Heritage Assessment (ACHA) in accordance with advice from DPIE.

4. Advise the proponent and the Berry Forum of this decision.

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

Against: Nil

CARRIED

DE20.17 Exhibition Outcomes - Proposed Finalisation - Planning Proposal (PP043) - South Nowra Industrial Expansion Area: Additional Permitted Use

HPERM Ref: D20/8369

Recommendation (Item to be determined under delegated authority)

That Council:

1. Adopt and finalise the Planning Proposal (PP043) as exhibited.

2. Forward PP043 to the NSW Parliamentary Counsel’s Office to draft the required amendment to Shoalhaven LEP 2014.

3. Make the resulting amendment to Shoalhaven LEP 2014 using Council’s delegation.

4. Advise key stakeholders, including owners of the subject land, adjoining landowners, relevant industry representatives and those who made a submission, of this decision, and when the LEP amendment is made effective.

RESOLVED (Clr Proudfoot / Clr White) MIN20.162

That Council:

1. Adopt and finalise the Planning Proposal (PP043) as exhibited.

2. Forward PP043 to the NSW Parliamentary Counsel’s Office to draft the required amendment to Shoalhaven LEP 2014.

3. Make the resulting amendment to Shoalhaven LEP 2014 using Council’s delegation.

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

Against: Nil

CARRIED

DE20.18 Rezoning Options - Tomerong Quarry - Lot 4 DP775296, Parnell Road, Tomerong

HPERM Ref: D20/35125

Recommendation (Item to be determined under delegated authority)

That Council

1. Seek formal feedback (planning and mineral resources) from the NSW Department of Planning, Infrastructure & Environment on the current significance of the mineral resource at Lot 4 DP775296, Parnell Road, Tomerong and their views on a possible rezoning of the subject land to E3 Environmental Management under Shoalhaven Local Environmental Plan 2014.

2. Receive a subsequent report in this regard once the feedback has been received to enable a decision to be made on whether to pursue a rezoning.

Motion (Clr Wells / Clr Watson)

That the report be received for information.

For: Clr Wells, Clr White, Clr Watson, Clr Kitchener and Stephen Dunshea

Against: Clr Gash, Clr Digiglio, Clr Alldrick, Clr Levett and Clr Proudfoot

LOST ON THE CASTING VOTE OF THE CHAIR

foreshadowed motion (RESOLved) (Clr Levett / Clr Digiglio) MIN20.163

That Council

2. Receive a subsequent report in this regard once the feedback has been received to enable a decision to be made on whether to pursue a rezoning.

For: Clr Gash, Clr White, Clr Digiglio, Clr Alldrick, Clr Levett, Clr Proudfoot and Stephen Dunshea

Against: Clr Wells, Clr Watson and Clr Kitchener

CARRIED

Procedural Motion - Matters of Urgency

RESOLVED (Clr Watson / Clr Gash) MIN20.164

That DS19/5512 - 123 Forster Drive BAWLEY POINT - Willinga Park be called in as a matter of urgency due to public interest.

CARRIED

The Chairperson ruled the matter as urgent due to public interest.

DE20.20 Additional Item - DS19/1522 - 123 Forster Drive BAWLEY POINT - Willinga Park

RESOLVED (Clr Watson / Clr Wells) MIN20.165

That DS19/1522 - 123 Forster Drive BAWLEY POINT - Willinga Park – be called in for determination.

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

Against: Nil

CARRIED

Procedural Motion - Matters of Urgency

RESOLVED (Clr Watson / Clr Gash) MIN20.166

That DA/1846 - 204 Kinghorne Street NOWRA be introduced as a matter of urgency due to public interest.

CARRIED

The Chairperson ruled the matter as urgent due to public interest.

DE20.21 Additional Item - DA19/1846 - 204 Kinghorne Street NOWRA

RESOLVED (Clr Wells / Clr Proudfoot) MIN20.167

That an update be provided on the previous call-in in relation to DA19/1846 – 204 Kinghorne Street Nowra.

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

Against: Nil

CARRIED

There being no further business, the meeting concluded, the time being 6:02 PM.

Clr Gash

CHAIRPERSON

Development & Environment Committee – Tuesday 07 April 2020

Page 1

DE20.22 Development Application – 83 Quay Road, Callala Beach – Lot 17 Sec N DP 8188

DA. No: DA19/1847/4

HPERM Ref: D19/378379

Section: Building & Compliance Services

Approver: Phil Costello, Director Planning Environment & Development Group

Attachments: 1. Draft - Determination - Approval - DA19/1847 - 83 Quay Rd Callala Beach - Lot 17 Sec N DP 8188 - Two Storey Dwelling (under separate cover) ⇨

2. Compiled Plans (under separate cover) ⇨

3. Report - Visual Analysis (under separate cover) ⇨

4. Report - Coastal Engineering (under separate cover) ⇨

5. Planning Report - 4.15 Assessment (under separate cover) ⇨

Description of Development: Two-storey urban dwelling.

Owner: Gail Melinda McCook & Peter Malcolm McCook

Applicant: Craig White Building Design

Notification Dates: 10 September 2019 – 25 September 2019 and

25 September 2019 – 10 October 2019

No. of Submissions: Eleven (11) submissions were received in objection to the application from seven (7) individuals or groups (three (3) objectors made multiple submissions). One (1) submission was received from the Callala Beach Progress Association, a Community Consultative Body.

Purpose / Reason for Consideration by Council

At the Ordinary Meeting of 29 October 2019, Council resolved the following:

That DA19/1847 be called in for determination by Council, because of Public Interest. (MIN19.772)

Recommendation (Item to be determined under delegated authority)

That Council approve Development Application DA19/1847 for construction of a two-storey dwelling at 83 Quay Road, Callala Beach – Lot 17 Sec N DP 8188, subject to the recommended conditions of consent contained in Attachment 1 of this report.

Options

1. Approve the Development Application in accordance with the recommendation.

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

2. Refuse the Development Application.

Implications: The application would not proceed. A Notice of Determination for Refusal will need to be prepared. 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.

3. Alternative recommendation.

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

Location

The subject site is situated at 83 Quay Road, Callala Beach – Lot 17 Sec N DP 8188. The site has a 15.29 metre frontage to Quay Road and a depth of 59 metres with a total site area of 897.90m². The subject site is zoned R2 – Low Density Residential, and the surrounding character is comprised of low density dwellings in a coastal setting.

Callala Beach is an area that is known to be at risk of beach erosion and/or oceanic inundation. Coastal hazard studies have informed the Shoalhaven Coastal Hazard Interactive Mapping, which sets the basis for Shoalhaven Development Control Plan (SDCP) Chapter G6 controls within areas of coastal hazard risk.

The controls are based upon the projected sea level rises that were adopted by Council on 10 February 2015. These are:

· 100mm for 2030;

· 230mm for 2050;

· 360mm for 2100.

The map below shows the Coastal Hazards Lines (CHLs) that overlay the subject property. The coloured lines correspond with the SDCP G6 Precincts as follows:

· Precinct 1: Area seaward of blue 2030 CHL.

· Precinct 2: Area seaward of orange 2050 CHL.

· Precinct 3: Area seaward of magenta 2100 CHL.

· Precinct 4: Area seaward of green Wave Runup line.

Figure 1 Aerial image of subject site with Coastal Hazard Lines overlay. The area of the site landward of the blue line is within SDCP Chapter G6 Precinct 1.

Figure 2 Zoning of subject site - R2 Low Density Residential.

Background

The development application (DA19/1847) seeks a variation to the SDCP Chapter G6: Coastal Management Areas Acceptable Solution of:

A1.1 “No new development is permitted” within Precinct 1 High Risk – Seaward of the 2030 Zone of Reduced Foundation Capacity (ZRFC).

The DA proposes an alternative ‘performance-based’ solution to the acceptable solution of A1.1. This involves the use of deep piled foundations to support the proposed building within the 2100 stable foundation zone.

Council resolution is required to determine if this alternative performance-based solution should be supported for new development within Precinct 1.

Proposed Development

The application seeks approval for a two-storey dwelling and detached habitable room on vacant land. The dwelling proposed is comprised of the following, as shown on the plans below:

Ground Floor

· Detached habitable room with ensuite and living room (connected via the front porch);

· Combined foyer, kitchen, living room, dining room and courtyard;

· Master Bedroom with ensuite and walk in robe;

· Laundry, drying courtyard, rainwater collection tank and air conditioning units;

· Double Garage with additional internal space for boat storage; and

· Covered alfresco.

First Floor

· Stairwell and void;

· Study nook;

· Four (4) bedrooms;

· One (1) common bathroom;

· Upper living room; and

· Cantilevered balcony.

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Figure 3 Site, site analysis and landscaping plan. Coastal Hazard Lines are shown on the plans.

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Figure 4 Elevations and sections plans.

Figure 5 Proposed concrete encased screw piles to support the building within the 2100 Stable Foundation Zone.

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Figure 6 3D representation of proposed dwelling in relation to existing adjoining dwellings and outbuildings (see Attachment 3).

Planning Assessment

The Development Application has been assessed under section 4.15 of the Environmental Planning and Assessment Act 1979 (please refer to Attachment 5) and a recommendation for determination by way of approval with conditions is made (Attachment 1).

The recommendation is based upon:

(1) A full assessment of the applicable planning instruments, including but not limited to:

(a) State Environmental Planning Policy (SEPP) Coastal Management 2018;

(b) Shoalhaven Local Environmental Plan 2014 (SLEP 2014) clause 2.3 Zone objectives and Land Use Table;

(d) SDCP Chapter G6: Coastal Management Area and Clause 7.4 Coastal Risk Planning of Shoalhaven Local Environmental Plan 2014;

(e) SDCP Chapter G12: Dwelling Houses and Other Low Density Residential Development.

(2) Legal advice that Council has received for residential development applications within Precinct 1 of SDCP Chapter G6: Coastal Management Area.

SEPP Coastal Management 2018

The proposed development is consistent with the objectives and planning controls of the Coastal Management 2018 State Environmental Planning Policy (see Attachment 5 “Planning Report” for a full assessment).

Shoalhaven Local Environmental Plan 2014 (SLEP 2014)

The proposed development is consistent with the objectives of the R2 – Low Density Residential Zone – “to provide for the housing needs of the community within a low density residential environment” and is a form of development that is permitted with consent within the zone.

Shoalhaven Development Control Plan

Chapter 1: Introduction of SDCP 2014 sets out a guideline for how the controls and Chapters of the Plan should be interpreted.

As stated within section 7 of Chapter 1, the SDCP consists of a combination of objectives, mandatory controls, performance criteria and acceptable solutions (see snip below):

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The proposed development was assessed against all relevant Chapters of SDCP 2014. There are no mandatory controls within SDCP 2014 that were applicable to the development. The development complies with all relevant acceptable solutions with the notable exception of Chapter G6, section 5.1.1, A1.1.

SDCP 2014 Chapter G6: Coastal Management Areas, section 5.1.1 Areas of beach erosion and/or oceanic inundation

Chapter G6 sets out four (4) Precincts for areas of land that are identified as being affected by beach erosion and/or oceanic inundation.

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As stated, the proposal does not meet the Acceptable Solution of SDCP Chapter G6: Coastal Management Areas, section 5.1.1 Areas of beach erosion - (A1.1): “No new development” (within Precinct 1) as a portion of the proposal (approximately 3.5m linear metres) is within this Precinct (as shown below).

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Figure 7 Site plan of proposed development showing portion (in green) that is within Precinct 1 at the ground surface.

Precinct 1 of SDCP Chapter G6 is delineated by the area of land that is seaward of the 2030 Zone of Reduced Foundation Capacity (ZRFC). The zones of reduced foundation capacity can also be delineated three dimensionally i.e. below the ground surface (as shown in the cross-section for the waffle pod slab layout plan (Figure 8 below) as they are based upon the substrates ability to support the load of a structure accounting for projected sea level rise in future years.

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Figure 8 Schematic representation of coastline hazard zones (after Nielsen et al. 1992). Source: SCC Shoalhaven Coastal Zone Management Plan, Appendix 2 - Risk Assessment 2018 prepared by Advisian.

Section 11 of SDCP Chapter 1 states that “the acceptable solutions are provided as examples of what is considered acceptable for the respective performance criteria and objectives. Council can consider alternative solutions in certain circumstances provided the objectives and performance criteria are met. Justification in the form of a variation statement demonstrating how the objectives will be achieved must be provided with the application.”

Accordingly, the applicant has provided a Coastal Engineering Report, prepared by Advisian (Attachment 4), that addresses the variation to the acceptable solution of SDCP Chapter G6 A1.1 and demonstrates how the objectives of the Chapter are achieved.

The variation to A1.1 (and associated performance solution) proposed is for the building to have concrete encased screw piles extending beyond the 2030 ZRFC and into the 2100 Stable Foundation Zone (this corresponds with Precinct 3 Low Risk (landward of 2100 ZRFC)).

The report states that “the proposed development would meet the performance criteria outlined in SDCP, provided that:

· The proposed building is founded on deep-piled foundations into the 2100 Stable Foundation Zone and designed in accordance with the requirements outlined in Nielsen et al. (1992). The foundations will need to be founded at the required embedment depth below the scour level to resist the shear forces applied to the pile at scour level and develop the required axial and lateral Capacity within the 2100 Stable Foundation Zone.

· The foundation design will need to consider wave loads that could occur on the seaward portion of the foundations after 2050, as the seaward edge of these on the ground floor lie approximately 4 m seaward of the 2100 Zone of Wave Impact.

· Certification by the Structural Engineer that the foundations of the building have been designed in accordance with the requirements of Nielsen et al. (1992) would need to be provided prior to Council issuing a construction certificate for the development.

· The proposed building allows for at least 0.5 m freeboard above the 100-year average return interval (ARI) wave runup level as the finished floor level of the house is 6.3 m Australian Height Datum (AHD) which would be adequate to protect the living areas against the effects of wave inundation. Future inundation risk can be reduced by setting electrical fittings in the lower floor living areas to at least 0.3 m above the finished floor level. “

The applicant has provided a cross-section plan of the slab design of the building that shows concrete-encased screw piles extending into the 2100 Stable Foundation Zone with a design that has been undertaken in accordance with Neilsen et al (1992) and the Advisian Coastal Engineering Report submitted with the application (see Attachment 2).

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Figure 9 Cross-section of slab design showing that the proposed development is founded on deep piled foundations within the 2100 Stable Foundation Zone.

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Figure 10 Annotation of slab cross-section plan stating that the design has been undertaken in accordance with Neilsen et al 1992 and Advisian Coastal Engineering Report.

If determined by way of approval, conditions of consent will be imposed so that:

1. Prior to the issue of a Construction Certificate, a Structural Engineer is to provide certification that the foundations of the proposed building are designed:

a) in accordance with the foundation design criteria of Nielsen A.F., Lord D.B and Poulos H.G. 1992 Dune Stability – Considerations for Building Foundations Vol. CE34 No. 2, June 1992; and

b) in accordance with the recommendations of the Coastal Engineering Report No. 311015-000150CS_REP_001, prepared by Advisian, dated August 2019; and

c) to extend into the 2100 Stable Foundation Zone; and

2. A structural engineering report is to be provided to Council prior to the issue of an Occupation Certificate.

The report is to contain the following information:

a) Details of the depth that each pile has been installed to;

b) The composition of the subsurface material at each metre below ground level in which the piles were installed;

c) The specifications of the constructed pile materials, including dimensions;

d) The construction methods that were used;

e) A slab plan and section of the foundation slab and piles as constructed;

f) Certification from a licenced structural engineer that the development is:

i. Designed and constructed in accordance with the foundation design criteria of Nielsen A.F., Lord D.B and Poulos H.G. 1992 Dune Stability – Considerations for Building Foundations Vol. CE34 No. 2, June 1992 and;

ii. Supported on deep piled foundations into the 2100 Stable Foundation Zone.

It is therefore considered that the proposal will comply with the objectives and performance criteria of section 5.1.1 and the variation to A.1.1 can be supported.

The following should also be noted:

· The proposed building’s footprint is landward of the two adjoining residences and complies with the acceptable solutions for overshadowing and view loss of Council’s DCP.

· If the proposed building’s footprint was to be modified so that it was entirely behind the 2030 Coastal Hazard Line and within the SDCP setback controls (for front and side boundaries plus a viewing corridor of 10%), there would be a remaining land area of approximately 27m x 13m (338m²) to build upon.

Legal Advice

Council has received prior legal advice relating to the application of alternative or ‘performance-based’ solutions for development within Precinct 1.

The advice states that: “Provided a variation statement is provided in accordance with the requirements of Section 11 of Chapter 1 of the SDCP, there is nothing to prevent the Council from considering an performance solution to Acceptable Solution A1.1: “No new development is permitted” provided the relevant objectives and performance criteria are met.”

Consultation and Community Engagement:

Eleven (11) public submissions were received by seven (7) individuals 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.

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

Basis of submission	Response
Building forward of Precinct 1	The applicant has provided a coastal engineering report prepared by Advisian to support a performance solution to build within Precinct 1. The report recommends concrete encased piers anchored into the 2100 Stable Foundation Zone. Development applications situated at 117 & 135 Quay Road have adopted the same performance solution that was approved under delegated authority. In addition, legal advice was sought regarding the DCP wording, which prohibits development within Precinct 1. In summary the legal advice states that the DCP cannot prohibit development and a performance solution must be applied and assessed on its merits. In this instance, the application has satisfied the performance criteria.

Visual impact from the beach	The applicant has submitted a visual analysis report in support of the application (see Attachment 3). As depicted below, the existing vegetation along the foreshore screens the proposed development from Callala Beach. In addition, the proposed building height is 6.8m which complies with the maximum allowable height of 7.5m and maintains the same alignment as the adjoining properties. As a result, the proposed development does not unduly impact upon the existing views from Callala Beach or the adjoining properties.

The bulk and scale of the proposed development is not appropriate for the site.	The proposed development complies with the front/side setback controls and does not exceed the maximum allowable building height of 7.5m. Moreover, the proposed development complies with the 45-degree building envelope control and is architecturally designed to provide adequate visual interest through façade which includes articulation and different use of materials. It is therefore considered that the proposed development is compatible with the surrounding character and is not excessive in bulk and scale.

Overshadowing of 81 and 85 Quay Road	The proposed development has a maximum height of 6.8m and complies with the maximum allowable height of 7.5m. Shadow diagrams were submitted in support of the application and these plans indicate that both 81 and 85 Quay Road will maintain at least 3 hours of direct sunlight between 9am and 3pm during the winter solstice.
Privacy issues associated with 81 Quay Road	The first-floor elevations of the proposed development include adequate fixed screening and high sill windows to preserve privacy and ensure any potential overlooking issues are addressed. In addition, a 1.8m side boundary fence and screen planting will further alleviate any overlooking issues into the adjoining properties.
View loss 81 and 85 Quay Road	The proposed development maintains the same foreshore setback alignment as 81 and 85 Quay Road. The applicant submitted a visual analysis report in support of the application, which clearly demonstrates that existing views from 81 and 85 Quay Road will be maintained.

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 coastal 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 coastal impacts of the approved development or in increasing the risk to other properties, people and emergency services personnel.

Summary and Conclusion

The proposed development is for a two-storey dwelling on a vacant R2 – Low Density Residential zoned lot on the seaward side of Quay Road, Callala Beach.

The site is mapped with Coastal Hazard Lines and is within a Coastal Risk Planning Area. It is therefore subject to coastal risk planning legislation including the State Environmental Planning Policy Coastal Management 2018, clause 7.4 of Shoalhaven Local Environmental Plan 2014 and Shoalhaven Development Control Plan 2014 Chapter G6: Coastal Management Areas.

Whilst the proposal does involve a variation to the acceptable solution of “No new development”, Chapter 1 of Shoalhaven Development Control Plan states that “acceptable solutions are provided as examples of what is considered acceptable for the respective performance criteria and objectives. Council can consider performance solutions in certain circumstances provided the objectives and performance criteria are met” (SDCP Chapter 1: Introduction, p 7).

The applicant submitted a Coastal Engineering Report to support the variation. The report stated that “if the recommendations regarding the foundations for the proposed development are implemented, then the proposed development can be considered to meet the planning criteria listed in the NSW Coastal Planning Guideline and the performance criteria outlined in Council’s DCP” (p 39, Attachment 4).

The applicant has provided a cross-section of the proposed slab design showing that the recommendations of the Coastal Engineering Report will be implemented. Furthermore, conditions of consent can be imposed so that a structural engineer certifies that the design has been carried out in accordance with the recommendations.

It is therefore recommended that Council approve the development in its current form. Other options available to Council are to either refuse the development application, or to propose an alternative recommendation.

Development & Environment Committee – Tuesday 07 April 2020

Page 1

DE20.23 Development Application - DA19/1852 – 43 Tahnee Street, Sanctuary Point – Lot 47 DP 1243551

DA. No: DA19/1852/4

HPERM Ref: D20/86809

Section: Development Services

Approver: Phil Costello, Director Planning Environment & Development Group

Attachments: 1. Planning Assessment (s4.15) Report (under separate cover) ⇨

2. Draft Conditions of Development Consent (under separate cover) ⇨

Description of Development: Construction of Multi Dwelling Housing – Seven (7) Dwellings

Owner: Lawler & Son Pty Ltd

Applicant: Nadine Street Pty Ltd

Notification Dates: 10-25 September 2019

No. of Submissions: 13 in objection

Nil in support

Purpose / Reason for consideration by Council

Councillors called in the Development Application (DA) due to the significant public interest on 8 October 2019.

Recommendation (Item to be determined under delegated authority)

That Development Application DA19/1852 to construct multi dwelling housing (seven (7) dwellings) at Lot 47 DP 1243551, 43 Tahnee Street, Sanctuary Point be approved 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 pursue construction of the development.

2. Refuse the application.

Implications: Council would need to determine the grounds on which the application is refused, having regard to section 4.15(1) considerations.

3. Alternative recommendation.

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

Figure 1 – Location Map

Background

Proposed Development

The DA seeks approval for the construction of multi dwelling housing, comprising seven (7) two (2) storey dwellings:

§ One (1) x 4-bedroom and six (6) x 3-bedroom dwellings; and

§ 14 car spaces provided onsite.

Vehicular access is proposed from Tahnee Street.

Figure 2 – Site Plan

Figure 3 – South and East Elevations

Figure 3 – North and West Elevations

Figure 4 – Landscape Plan

Subject Land

The development site comprises Lot 47 DP 1243551 (43 Tahnee Street, Sanctuary Point). Refer to Figure 1.

Site & Context

The development site:

§ Is located in a newly created subdivision and suburban area of Sanctuary Point. It is vacant with a gradual slope falling from the street towards the rear (northern) boundary which is adjacent to Yellow Bellied Glider Reserve.

§ Is zoned R1 General Residential under the Shoalhaven Local Environmental Plan 2014 (SLEP 2014) and is 1,950sqm in area.

§ Is identified as being wholly bush fire prone land.

§ The site is on the north-eastern corner (low) side of Tahnee Street and has a public pathway sited immediately along the western boundary which connects Tahnee Street to the Yellow Belly Glider Reserve located to the north.

§ Adjoins land zoned R1 General Residential (to the west and south), R2 Low Density Residential (to the east) and RE1 Public Recreation (to the north, being the Yellow Belly Glider Reserve), under SLEP 2014 as illustrated in Figure 5. Adjoining allotments to the west and south contain recently constructed dwellings, being Lot 10 (No.39 Tahnee Street) and Lot 46 (No.45 Tahnee Street) in the registered subdivision. To the east of the subject site is an existing developed residential area with detached dwellings of varied design and construction, ranging from one (1) to two (2) storey in height, with associated ancillary outbuildings.

Figure 5 – Zoning Extract

History

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

§ The application was lodged on 29 August 2019.

§ As a result of detailed assessment of the application, additional information was requested from the applicant on three (3) occasions – 29 October 2019, 5 February 2020 and 16 March 2020.

§ On 12 December 2019 and 12 February 2020, the applicant submitted additional information, which was subsequently referred to the relevant sections of Council for comment.

Issues

Council’s Development Control Plan (DCP) Controls:

The development generally complies with the provisions of Shoalhaven Development Control Plan 2014 (SDCP 2014) except for the following relatively substantive numeric departure for the acceptable solution.

A17.3 of Control 5.3.3 Private Open Space, Chapter G13 Medium Density and other Residential Development, SDCP 2014

There is a non-compliance with A17.3 of Control 5.3.3 Private Open Space and the defined hardstand area of usable space required to be provided for each dwelling.

This area is to be set back at least 1.2m from an external boundary and to have a minimum dimension of 5m x 4m, of which 50% is to be covered to provide protection from the elements.

The defined hardstand area of usable space (decking) proposed with Dwelling No. 1 is only set back 681mm from the western property boundary. The decking proposed with dwellings No. 2 and 3 has a dimension of 5m x 2.8m.

Applicant’s Submission

The applicant provided the following justification for the proposed variation:

“The extent of the proposed variation and the unique circumstances as to why the variation is being sought;

The extent of variation is a reduced depth from 4m to 2.8m for the hardstand private open space areas serving dwellings 2 & 3. The area dimensions require 5m x 4m pursuant to the control. The reduced depth results in an area of 14m2 in place of 20m2, a 30% reduction. The POS areas remain both functional and a component of the larger general area available for the dwellings to utilise for POS activities. Dwelling 2 is provided with a private courtyard space of 60m2 and Dwelling 3 is provided with a private courtyard space of 55m2. The deck areas will be able to accommodate outdoor furniture (table and chairs) and remain functional within the overall POS areas serving the respective dwellings.

Demonstrate how the relevant objectives and performance criteria (as appropriate) are being met with the proposed variations; and,

P17 Performance Criteria details that POS is to be functional and useable all year round and the design and reduced 2.8m depth dimension is able to be accommodate a standard six seat outdoor table setting (table dimension 1500 L x 900 W x 740 H mm) or a smaller ‘café’ style setting. The hardstand area is a component of the overall POS and both dwelling 2 & 3 well exceed the minimum area of POS (35m2) detailed in Table 5 of Control 5.3.3. The 5m x 2.8m deck areas have more than 50% of their respective areas covered with a shade structure. Notably a dwelling comparable in size, but provided at a first floor level would only require a POS area with minimum dimensions of 2m x 3m and the POS hardstand areas, whilst provided at ground floor level, well exceed an acceptable criteria for POS had the dwellings been on the 1st floor of the development. The POS areas are to be well screened through the implementation of the landscape plan and will afford appropriate privacy and amenity to the dwelling occupants.

Refer to Drawing No. P5421-A14 – Issue D, Section E-E, prepared by Algorry Zappia & Associates, wherein the decking POS area and peripheral landscape area above the retaining wall is identified.

Demonstrate that the development will not have any additional adverse impacts as a result of the variation.

The numeric dimensional shortfall does not automatically render the POS areas as lacking having regard to the satisfactory address of the performance criteria. The minimum POS overall areas are exceeded with the development providing a responsive landscape plan and fencing which will assist in the success of the design as it is detailed currently. There are no identifiable adverse impacts associated with the requested variation and the development design represents an appropriate response where infrastructure elements (sewer line depth and position) sometimes provide difficult constraints. The POS areas are an immediate extension of internal living areas and are generous in overall area afforded to the dwelling occupants.”

Discussion

It is considered that the numeric variation proposed results in an area that is still consistent with the objectives of this chapter and the relevant performance criteria. The areas of usable space would be of a suitable size to suit the requirements of future residents.

It is noted that the proposed decking areas for Dwellings No. 2 and 3 would reduce impact to the existing gravity sewer main along the eastern boundary of the site.

The reduced setback from the decking associated with Dwelling No. 1 is satisfactory and is supported considering the boundary adjoins the public pathway (Lot 48 DP 1243551), which serves to connect the Tahnee Street roadway with the public walkway which extends along the north side boundary of the subdivision.

Further, the areas remain useable and accessible. Additionally, the areas are part of a larger open space component.

Comment on DCP variations

Chapter 1 of the Shoalhaven DCP explains that the DCP aims to allow flexibility in the application of development controls and that Council may consider variations to requirements of the DCP. Acceptable solutions are provided as examples of what is considered acceptable for the respective performance criteria and objects. Council can consider alternative solutions in circumstances provided the objectives and criteria are met.

Planning Assessment

The DA has been assessed under s4.15(1) of the Environmental Planning and Assessment Act 1979. Please refer to Attachment 1.

Consultation and Community Engagement:

Notification was undertaken in accordance with Council’s Community Consultation Policy with letters being sent within a 60m buffer of the site, during the period 10 to 25 September 2019.

13 public submissions were received in relation to Council’s notification of the development. They were all objections to the development.

Key issues raised as a result of the notification include but were not limited to matters listed below.

§ Scale of the development, including dwelling design and density;

§ Visual privacy;

§ Traffic impacts;

§ Onsite car parking; and

§ Waste disposal.

The assessment of the application considered the matters raised in the submissions and concluded that the application should be supported.

A detailed analysis can be found in the attached section 4.15 assessment report.

Financial Implications:

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

Legal Implications

A section 8.2 review or an appeal with the Land and Environment Court are possible if the application is refused.

Summary and Conclusion

The proposed development is compliant with the provisions of SLEP 2014 and is broadly consistent with the SDCP 2014 (albeit for the alternative solution to the numeric acceptable standard for hardstand areas of usable space under A17.3 of Control 5.3.3 Private Open Space of Chapter G13, and a minor variation to landscaping under A10.1 of Control 5.7 Landscape Design of Chapter G21).

This application has been subjected to detailed analysis of the main issues identified in this report, being the scale of the development, including dwelling design and density, visual privacy, traffic impacts, onsite car parking and waste disposal. These issues have also been investigated and addressed by the applicant.

The application is considered capable of support as there are no substantive planning reasons to warrant refusal. Accordingly, it is recommended it is approved subject to the recommended conditions of consent as per Attachment 2.

Development & Environment Committee – Tuesday 07 April 2020

Page 1

DE20.25 Development Application – Lake View Drive BURRILL LAKE– Lot A DP21307

DA. No: DA19/1897/4

HPERM Ref: D20/64858

Section: Ulladulla Service Centre

Approver: Phil Costello, Director Planning Environment & Development Group

Attachments: 1. Draft 4.15 Assessment Report (under separate cover) ⇨

2. Draft consent (under separate cover) ⇨

3. Plans - Site Plan (under separate cover) ⇨

4. Plans - Floor Plan (under separate cover) ⇨

5. Plans - Elevations (under separate cover) ⇨

6. Plans - Sections (under separate cover) ⇨

7. Plans - Roof Plan (under separate cover) ⇨

8. Plans - South East Perspective (under separate cover) ⇨

9. Plans - South West Perspective (under separate cover) ⇨

Description of Development: Relocation of the Childrens Playground within the reserve, construction of boat shed for the storage of paddle powered boats

Owner: Shoalhaven City Council

Applicant: PDC Planners

Notification Dates: 20 November 2019 – 20 December 2019

No. of Submissions: 118 submissions have been received:

54 in objection

64 in support

A 198 signature petition in objection was also received

Purpose / Reason for consideration by Council

At the Development & Environment Committee meeting of Council held on 20 January 2020 Council resolved to “call-in” the DA for determination.

Recommendation (Item to be determined under delegated authority)

That the Development Application for relocation of the Childrens Playground within the reserve and the construction of a boat shed for the storage of paddle powered boats on the land at Lake View Drive Burrill Lake - Lots A DP 21307 be approved 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. Refuse the application.

Implications: Council would need to determine the grounds on which the application is refused, having regard to section 4.15 considerations.

3. Alternative recommendation.

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

Location Map

Background

Proposed Development

The application proposes the relocation of the childrens playground within the reserve and construction of a boat shed for the storage of paddle powered boats. More specifically:

· Construction of a boatshed for the storage of the club’s outrigger canoes and kayaks.

· The proposed boatshed slab occupies an area (18m x 15.92m) comprising a total floor area of 286m².

· The boat shed proposes to integrate two shipping containers into the design.

o The shipping containers will be in an L-shaped configuration on the northern and eastern elevations and will be clad in timber.

o A versiclad metal roof will cover the area inside the L-shaped shipping containers.

o 2-metre high powder coated steel picket fences will be located on the perimeter of the slab where there are no solid walls;

o Despite the shipping containers and the roof, the building will essentially be open in design and will not be enclosed by solid walls except for shipping containers on part of the northern and eastern elevations.

o The shipping containers will be utilised for the storage of the kayaks whilst the larger open area under the roof is for storage of the 6-person outrigger canoes.

o An identification sign is proposed to the northern elevation.

· The proposed boatshed has an overall maximum building height of 4.27 metres to the top of the pitched roof but with a predominant wall height of 2.87 metres being the maximum height of the shipping containers.

· The existing playground is required to be removed to accommodate the boat house and the proponents are relocating the playground further north of its current location and installing a new playground in consultation with Council’s Recreation Section.

· No vegetation removal is required.

Fig 1 Floor Plan

Fig 2 North & East Elevations

Fig 3 South & West Elevations

Fig 4 South-West Perspective

Fig 5 South-East Perspective

Subject Land

The subject site is known is Barker Reserve and is Council Managed Land. The site is located north-west of the intersection between Lake view Drive and Moore Street, in Burrill Lake. The site is rectangular in shape and has a total area of 1.21 hectares and has extensive grassed areas, trees & vegetation throughout, a playground, boat launching area and car parking area.

Kayaks and outrigger canoes associated with the paddling clubs are stored near the lake foreshore. Other boats not associated with the club are also stored in the vicinity of the foreshore.

Topographically, the land is relatively flat. The site is not affected by any easements or restrictive covenants

Immediate surrounding area

The site is in a predominantly residential area. Three dwellings with frontages to Honeysuckle Close, abut the western boundary and three dwellings abut the northern boundary.

A single dwelling is located on the south-eastern boundary and Burrill Lake foreshore is located along the southern boundary.

Beyond the immediate surrounds are predominantly residential dwellings and the Princes Highway is located approximatelyt 700 metres south-east of the site.

History

Pre-lodgement

The applicant met with Planning, Shoalwater & Council’s Development Engineer on the 7^th September 2017 prior to lodging the application to discuss the merits of the development on land at the Lions Park in Burrill Lake.

However there were issues with the NSW Natural Resource Access Regulator and the potential impact on reeds in the vicinity of where the boats were to be launched so an alternative location was sought which is the subject of the current development application.

Issues

Suitability of the site for the proposed development

The application has received 118 submissions for and against the proposal. A prominent issue being raised in the submissions is the appropriateness and permissibility of a boatshed on Council land

Planning Context

In addressing the matter, it is appropriate to establish what the Shoalhaven Local Environment Plan 2014 seeks under the various provisions and policies applying to this proposal.

The land is zoned RE1 Public Recreation under Shoalhaven LEP 2014. A boatshed is permitted under the zone with consent. The objectives of the zone are:

• To enable land to be used for public open space or recreational purposes.

• To provide a range of recreational settings and activities and compatible land uses.

• To protect and enhance the natural environment for recreational purposes.

It is considered that the proposal is consistent with the objectives of the zone by providing a building for recreational use which is compatible with the site and maintains the natural environment for recreational purposes.

Local Government Act 1993

Land is classified under the Local Government Act 1993 (the Act) as either:

§ Community Land, or

§ Operational Land

Community Land is defined by the Act as “land which is set aside for community use, such as parks, sportsgrounds, beaches, community centres and walking tracks”. Development and use of this land is subject to the requirements of the Act and these are described in Appendix One.

Any land identified as Community Land must be governed by a Plan of Management.

The Local Government Act details the core objectives and permitted uses of Community Land such as Parks, sportsgrounds, and natural areas.

The Local Government Act provides Council with guidelines to ensure all Community Land is appropriately categorised as one or more of the following – Sportsground, Park, Natural Area, General Community Use and Area of Cultural Significance. Natural Areas must be further categorised as foreshore, bushland, wetland, escarpment or watercourse.

Community Land

The land is identified on Council’s mapping as Community Land and categorised as a Park pursuant to the LG Act 1993.

Core objectives for management of community land categorised as a park

Under the LG Act, the core objectives for management of community land categorised as a park are—

(a) to encourage, promote and facilitate recreational, cultural, social and educational pastimes and activities, and

(b) to provide for passive recreational activities or pastimes and for the casual playing of games, and

(c) to improve the land in such a way as to promote and facilitate its use to achieve the other core objectives for its management.

The Plan of Management relevant to the proposal is Council’s Generic Plan of Management: Parks (2009)

The proposal is consistent with the core objectives for community land categorised as a park by providing a facility to store boats which encourages and promotes recreational activities and social interaction. Therefore, facilitates and encourages the use of the land through a recreational activity.

The proposal is consistent with the Plan of Management for the park and should a consent be issued the proponents will be required to enter into a lease agreement with Council as per the provisions of the LG Act & the Plan of Management.

Planning Assessment

The DA has been assessed under s4.15 of the Environmental Planning and Assessment Act 1979. Please refer to Attachment 1.

Policy Implications

There are no specific policy implications that arise from this matter.

Consultation and Community Engagement:

One hundred and eighteen (118) public submissions were received in relation to Council’s notification of the development. Fifty-four (54) were objections to the development. Sixty-four (64) were in support of the development. A 198-signature petition in objection was also received. The notification was made in accordance with Council’s Community Consultation Policy with letters being sent within a twenty-five (25) metre buffer of the site. The proposal was also advertised in local papers. The notification was for a 4-week period.

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

Issue

Suitability of the site for the proposed development

Comment

This has been discussed in the preceding sections of the report

Issue

Building will obstruct views to the lake / Occupies large part of the reserve

Comment

The proposal is low scale and comprises a design where the structure is open on two sides and where the only walls are derived from the placement of the shipping containers on two elevations. It should be noted that the shipping containers are 12.1 metres in length so they will not run for the entire length of those elevations. For the two ‘walls’ the predominant wall height is 2.87 metres. The building has a maximum height of 4.27 metres at the peak of the roof however it is predominantly a low scale building. Further the low incline of the roof and the low scale open design of the structure keeps the design modest in its context. The building is located where there are existing trees and vegetation hence there are no views through this part of the park through to the lake and the proposed building will not be higher than the existing vegetation.

The park is 1.21 hectares and the building has a total area of building only occupies 286m². Hence the proposal would occupy 2.3% of the total area of the park.

Concerns were also raised that if the boatshed was approved that boats would continue to be left out in the open thereby increasing the areas which the club would occupy. Conditions of consent will be in place to ensure that all boats associated with the club are stored in the boatshed.

Issue

Visual bulk & scale is out of proportion

Comment

The proposed building is considered appropriate in this context. The proposal has been designed to be sympathetic to the surrounding area. It is compatible with the surrounding built form and incorporates design elements such as a predominantly open structure akin to a carport with the only form of wall being the two shipping containers. The open structure provides transparency and reduces the massing and bulk of the building.

Issue

Increase use of park / increase in traffic / lack of parking / sets precedent for other development on public land / increase intensity of use with potential additions of clubrooms, bar etc / create opportunities for unlawful behaviours

Comment

The club currently stores boats in the open near the Barkers Reserve foreshore and have done so for many years. This proposal is essentially to formalise the storage of boats associated with the paddler’s clubs. It is not anticipated that it will increase parking or traffic as the paddlers will continue to utilise the park for training in the early morning as is their current practice. Additional parking is also being provided as part of the proposal. The application is purely for storage of the boats rather than a clubhouse and conditions of consent will also ensure that the use of the boatshed does not morph into a clubhouse and that amenity of the surrounding area is maintained.

Regardless the use is permitted with consent and Council can only consider any future applications on its own merits rather than what has been approved previously.

Whilst it is always difficult to prevent unlawful behaviours the open design of the structure supports the casual surveillance of the structure. Further, the proximity to the proposed playground and to the foreshore where activity will be the most frequent in this portion of the park is likely to be a natural deterrent for unlawful behaviour. The applicant is also able to utilise other security measures such as CCTV if required.

Issue

Not consistent with LEP definition / Land was gifted to Council so proposal not in the spirit of the park use as proposal is for private use

Comment

A boat shed is defined under the Shoalhaven LEP 2014 as follows:

boat shed means a building or other structure used for the storage and routine maintenance of a boat or boats and that is associated with a private dwelling or non-profit organisation, and includes any skid used in connection with the building or other structure.

The proposal is a structure for the storage of boats and the clubs are considered non-profit organisation and therefore consistent with the definition. Although the land has been gifted to Council the gifting of the land does not preclude it from the potential development opportunities through it categorisation as community land and its existing Public Recreation zoning.

Issue

Council not empowered to approve the Development Application due to leasing provisions of the Local Government Act 1993

Comment

The development application is subject to the requirements of the Environment & Planning Act 1979. Hence the leasing aspect of the land is not generally considered in the assessment of the application. Regardless Council’s Property section have provided in-principle support for a ground licence being entered into. Should a consent be issued, the matters raised in the submission regarding the legalities of a lease arrangement with Council will be required to be addressed separate from the DA. Further a condition of consent will require that the proponent enter into a leasing agreement with Council prior to the issue of a Construction certificate.

Issue

There are alternative sites such as Kings Point, Mollymook Oval

Comment

The proponents have advised that the clubs members range in age from young children to retirees and the current location in Barkers Reserve provides shallow and generally sheltered area for launching the boats but also an ideal area for instructing new paddlers. The alternative locations proposed do not allow for this and/or are some distance from the water.

Issue

Loss of playground/residents should not pay for replacement playground

Comment

The club will be required to replace the playground. The clubs are applying for grants for the replacement playground and a condition of consent will require that the applicant demonstrate that funding is confirmed for the playground prior to the issue of a construction certificate.

Financial Implications:

As addressed previously in report.

Legal Implications

Pursuant to Section 8.2 of the EP&A Act a decision of the Council may be subject of an application for review by the applicant in the event of an 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

The proposed development has been assessed in accordance with Section 4.15 of the EP&A Act and is recommended for approval.

· The proposed use and development of part of the site for a boatshed is a use contemplated in a RE1 Recreation Zone

· Amenity issues derived from the proposed use can be addressed by conditions on the consent and in most cases given the extensive setback from the nearest residential dwellings, the perceived amenity impacts are lessened.

· Whilst the expectations of objectors is that this park must be protected from development this needs to be tempered having regard to the context of the site and the proposed location of the boatshed in proximity to the nearest residence, consideration of the objectives of the zone and of community land and consistency with the current plan of management.

· The proposal is consistent with the relevant environmental planning instruments and the Shoalhaven Development Control Plan 2014;

· The height, bulk and scale of the proposed building is satisfactory and consistent with the low scale residential development in the locality;

Development & Environment Committee – Tuesday 07 April 2020

Page 1

DE20.26 Development Application – 1 Princess Avenue South Burrill Lake –Lot 47 DP1051945

DA. No: DA19/2160/4

HPERM Ref: D20/76497

Section: Ulladulla Service Centre

Approver: Phil Costello, Director Planning Environment & Development Group

Attachments: 1. Location Plan (under separate cover) ⇨

2. Site Plan (under separate cover) ⇨

3. Roof Plan (under separate cover) ⇨

4. Elevations (East & South) (under separate cover) ⇨

5. Elevations (West & North) (under separate cover) ⇨

6. View Analysis (under separate cover) ⇨

7. Height Limit (under separate cover) ⇨

8. Render 1 (under separate cover) ⇨

9. Render 2 (under separate cover) ⇨

10. Render 3 (under separate cover) ⇨

11. Render 4 (under separate cover) ⇨

Description of Development: Demolition of existing motel and construction of three storey tourist and visitor accommodation building comprising ground floor parking, food and drink premises, 25 accommodation suites & roof top terrace.

Owner: Luke Ocean Pty Ltd

Applicant: Christopher Beasley

Notification Dates: Letters to affected owners 7 January 2020 -30 January 2020

Notification in the newspapers 10 January -14 February 2020

No. of Submissions: 59 in objection

34 in support

Purpose / Reason for consideration by Council

The purpose of this report is to seek Council direction with respect to a request for a variation of a development standard under Clause 4.6 of the Shoalhaven Local Environmental Plan 2014 (SLEP 2014). The variation relates to building height and is greater than 10%, thus requiring Council approval. The height limit established by SLEP is 11 metres with the application requesting a 12.8m height.

Recommendation (Item to be determined under delegated authority)

That Council:

1. Confirm that it supports the proposed variation, under clause 4.6 of Shoalhaven Local Environment Plan 2014, to the 11m maximum building height to allow for the development of the motel to a maximum 12.8m in height.

2. Refer the application back to staff for determination

Options

1. Resolve to support the propose variation to the development standard for height from 11m to 12.8m for the redevelopment of the Edgewater Motel and refer the application back to staff to determine under delegated authority.

Implications: This would enable the application to be finalised and conditions of consent determined.

2. Resolve not to support the proposed variation to the development standard and refer the application back to staff to negotiate with the applicant to redesign the proposal to comply with the 11m height standard.

Implications: This would give guidance to the applicant in regard to the height issue and allow negotiation with staff or other available action to the applicant.

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

Location Map

Background

Proposed Development

General

a) Demolition of the existing motel

b) New building generally 3 storeys in height with ground level parking, first floor restaurant, bar and outdoor terrace area, 25 accommodation rooms on the second floor and centrally sited roof terrace

c) Maximum predominant height of the building between 10.18m-10.35m. The roof terrace portion provides a maximum height to 12.8m in height

Ground Floor Level

d) Comprises car parking (42 car spaces inclusive of one (1) disabled space), lift & stair cores, bin storage.

e) An additional 10 car spaces are proposed within the front setback to Princess Avenue South road reserve.

f) 12 bicycle spaces are also provided external of the building.

g) Vehicle access to car park is from princess Avenue South.

First floor

h) Comprises open plan reception area, restaurant and function room, lift and stair cores, open kitchen, back of house food preparation area, amenities and administrative areas.

i) A deck is proposed to wrap around the southern and eastern elevation

j) A 1.2m wide public footpath is proposed along the frontage of the site.

k) First floor level comprises a total area of approximately 1204m².

Second Floor

l) The second floor contains 25 accommodation rooms sited around the perimeter of the building with a central communal lounge area containing library and fireplace.

m) Accommodation rooms comprise 19 standard rooms with floor area between 27-37m² and 6 suites with a floor area between 40-44m². These suites are provided with balconies.

n) The rooms are accessed by lift and stair cores.

o) The second floor comprises a total area of 1289m².

Roof Terrace

p) The roof terrace comprises a pergola covered area of approximately 254m².

q) No other facilities such as toilet or bar area are to be provided in this area

r) Access is via lifts and stairs.

s) A separate balustrade is to be provided around this area to restrict access to the perimeter of the building.

Materials

t) The building comprises a predominately glazed façade integrated with silvertop ash timber cladding, concrete panels and bronze powder coated aluminium frame.

Landscaping

u) Integrated landscape plan including landscaping along Princess Avenue South and along a portion of the northern and western boundary.

Subject Land

The subject site is located on the north-western side of Princess Ave South, at the end of the cul-de-sac. The site is irregular in shape with a frontage to Princess Ave South and main frontage to Burrill Lake.

Topographically, the land is relatively flat and at its lowest point has a height of approximately RL 1.5m AHD which is located at the mean high-water mark distinguished by the drop from motel ground level defined by the log retaining wall down onto Burrill Lake edge.

The sites south-western boundary extends to the mean high-water mark

The site has a frontage of 43m to Princess Ave South and a frontage to Burrill Lake of 52 metres with an overall site area of 2411m².

There are no restrictive covenants or agreements registered on the titles.

The site is currently developed with the Edgewater Motel which is predominantly single storey building comprising ten (10) motel rooms and associated car space. An attached two-level building containing office under and a three-bedroom residence over as the managers residence.

The site is largely devoid of landscaping with the exception of some shrubs and plants located in a garden bed and there are a group of Casuarina trees and two (2) Norfolk Pines in the frontage to Burrill Lake and a group of Bangalow Palms on the north-western boundary.

Site & Context

· To the south-west, the waters of Burrill Lake where an informal pedestrian accessway has been created adjacent the subject site as this provides the most direct pedestrian route to the beach from the Highway and other areas to the north-west.

· To the north-east are single storey detached dwellings.

· To the south-east, opposite Princess Avenue South is a caravan park.

· To the south-west is the Princes Highway, with the constructed carriageway separated by pedestrian infrastructure supporting the recent bridge replacement in the form of pedestrian pathways/underpass and landscaping. Beyond this is the old alignment of the Princes Highway which contains single storey detached buildings used for a mix of purposes including commercial and residential.

· The immediate surrounds are essentially a precinct zoned for tourist and commercial development.

Photo 1: Existing Motel

Photo 2: Existing Motel with double storey managers residence and office component in background

Photo 3: Existing Motel with motel rooms in the background

Photo 4: View looking north-east along Princess Avenue South with Existing Motel and north-western boundary of caravan park in background

Photo 5: View looking north-west from Princess Avenue South to nearest immediate residence to the immediate north-east of the site

Photo 6: View looking south-east from Princess Avenue South to caravan park

Photo 7: View looking west from subject site across Burrill Lake to Dolphin Point

Photo 5: View looking north-west along south-western boundary of site with log retaining wall & indicative mean high-water mark

Zoning

The site is zoned SP3 Tourist under the Shoalhaven LEP 2014. The proposed development is best described as Tourist & Visitor Accommodation which is permissible with consent. The objectives of the zone are:

• To provide for a variety of tourist-oriented development and related uses.

• To enable compatible residential and recreational uses.

History

The following applications, listed as considered relevant to the current proposal, have previously been considered for the subject site and/or adjoining sites:

DA number

Description of Proposal

Decision & Date of Decision

Officer Comment

BA78/0055

Motel extension

Approved, January 1978

N/A

BA74/0223

Eight Unit Motel with integrated Managers Residence

Approved, January 1974

N/A

Issues

Clause 4.3 Height of Buildings

The objectives of this clause are as follows;

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

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

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

The property is situated within an area where there is no maximum building height specified hence Clause 4.3 (2A) is applicable where there is no maximum height for any land, the height of a building on the land is not to exceed 11 metres.

This application proposes a maximum building height of 12.8m. The applicant seeks to vary this building height development standard via a Clause 4.6 variation.

A variation of 16% (1.8m) is sought essentially through the middle of the building where the roof top terrace is to be located.

Clause 4.6 Exceptions to Development Standards

Clause 4.6 provides flexibility to vary the development standards specified within the LEP where it can be demonstrated that the development standard is unreasonable or unnecessary in the circumstances of the case and where there are sufficient environmental grounds to justify the departure.

Clause 4.6 states the following:

“(2) Consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument.

(3) Consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) That compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) That there are sufficient environmental planning grounds to justify contravening the development standard.”

Further, the consent authority must be satisfied that:

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

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

Applicant’s Submission

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

This written request seeks to justify the departure to the provisions of Clause 4.3 (2A) of the SLEP 2014 which imposes a maximum building height of eleven (11) metres on the subject land. It is proposed to construct a building containing a food and drink premises, function room and tourist and visitor accommodation with ancillary parking. The vast majority of the proposed building complies with the 11 m height limit (being approximately 10 m in height) however a small section involving the pergola over a portion of the roof top terrace, along with stairs and lifts to access this area, has a height of 12.8 m.

This height is above that allowed under Clause 4.3 (2A) of the SLEP 2014.

This written request demonstrates that compliance with Clause 4.3 (2A) of SLEP 2014 is unreasonable and unnecessary given the specific circumstances of this case; that there are sufficient environmental planning grounds to justify contravention of the maximum height limit restriction; and that the proposal is in the public interest.

COMPLIANCE WITH STANDARD UNREASONABLE OR UNNECESSARY

It is our view that requiring compliance with the maximum height requirement of Clause 4.3 (2A) of the SLEP 2014 under the specific circumstances of this case would be unreasonable and unnecessary.

Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC827 (21 December 2007) provides commentary with respect to establishing whether compliance with a development standard is unreasonable or unnecessary under the specific circumstances of a particular matter. Whilst this case related to the use of SEPP 1, given the similarities between the objects of SEPP No. 1 and Clause 4.6 the findings of Preston CJ does provide guidance with respect to the implementation of this clause.

According to Preston CJ one of the most commonly invoked ways to establish that compliance with the development standard is unreasonable or unnecessary is because the objectives of the development standard are achieved notwithstanding non-compliance with the standard.

The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served).

As outlined in Section 6.0 above, the objectives underpinning the development standard – in this instance the maximum building height of eleven metres is a relevant consideration in determining whether strict compliance with that standard under the specific circumstances of the case would be unreasonable or unnecessary.

The purpose or objective of the height of buildings standard is expressly stated in Clause 4.3 as follows:

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

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

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

The above objectives in my view provide a clear appreciation of the purposes underpinning the height of buildings development standard outlined in Clause 4.3 (2A) and which applies to the subject site.

This written submission will demonstrate that this proposal will not prevent the above objectives from being achieved notwithstanding non-compliance with the eleven-metre height restriction development standard in the specific circumstances of this case.

Having regard to the above objectives, it is my view that the proposal is not inconsistent with these for the following reasons:

· The proposal seeks consent to erect a building containing a food and drink premises, function room and tourist and visitor accommodation with ancillary parking. The subject site is zoned SP3 Tourist and in accordance with the above zoning provisions, the subject land has been identified as being suitable for the provision of tourist infrastructure. Established development in the immediate locality contains an existing one, part two storey motel (the subject site); single detached dwellings (along the north-western side of Princess Avenue South); and a caravan park (opposite Princess Avenue South). It is reasonable to assume that the locality is one that is in transition to the SP3 Tourist land uses, and this application is forming part of this process.

Consequently, it is necessary to also consider this proposal in light of the desired future character. Whilst development on adjoining sites is currently single storey in height, in order to optimise development opportunities, it is expected that, in time, development up to the height limit allowed under the Shoalhaven LEP 2014 will be undertaken to maximise viability of a development. As outlined above, the proposal is largely compliant with the height requirements, with the encroachment restricted to a pergola over a portion of the roof top terrace, and stairs and lifts. The proposal is therefore not incompatible with the bulk and height expected of the desired future character

· The proposal incorporates a high architectural quality in design that will contribute to the character of the development and its context within the public domain. The design adopts a composition of building elements, materials, textures, colours which will have a positive effect in terms of the scale and appearance of the development in context of this local area. In particular and is evident by a review of the elevation and perspective drawings that are included in Annexure 1 of SEE. The façades of the development have been composed in a manner with appropriate scale, rhythm and proportion which responds to the building’s proposed use and locational context.

Furthermore, the colour palette has been carefully selected to ensure the development is not out of context with the surrounding locality. Colours for the buildings have been informed by the building’s coastal location.

· The design of the development has been undertaken in compliance with the statutory requirements of both the SLEP 2014 and SDCP 2014. The minor breach to the maximum building height limit notwithstanding the proposed development complies with the relevant statutory requirements which relate to the anticipated bulk scale and size of development envisaged for this site. Detailed plans of the proposed development are attached as included in Annexure 1 of the SEE.

· The floor level of the proposed building is constrained by the flood liable nature of the site which has resulted in the need to elevate the habitable space.

· The extent to which the proposal exceeds the maximum building height limit is only minor and in consideration of the overall development, would not be readily observable. The proposal will have a compliant height limit for the majority of the development, only a modest section of the overall development exceeds the height limit.

· The proposed encroachment above the 11 m height limit does not result in significant additional visual impacts, disruption of views, loss of privacy or loss of solar access to existing development. In this regard, the proposal:

o Locates the portion of the building that exceeds the height limit in the middle of the building where it is not visible from properties closest to the site,

o Features a design where the encroachment appears mostly as a thin element being the pergola structure, and therefore will not be prominent in the landscape,

o Does not result in any additional view loss,

o Does not result in any additional loss of privacy due to the design of the development which prevents access to the edge of the building where visitors and patrons may be able to view down into adjoining properties, and

o Does not result in any additional overshadowing to adjoining properties, with the shadows being cast on the building itself due to the siting of the space within the centre of the building,

· The subject site, adjoining properties and nearby areas are not identified as containing identified heritage items, or as being within a heritage conservation area.

Given the factors outlined above, it is our view that the proposal has been designed in a manner that is consistent with the scale of development envisaged for this area having regard to the planning provisions that apply to the land; and incorporates design measures that will reduce the overall visual bulk and scale of the development. As a consequence, it is considered that strict compliance with the standard is unreasonable under the circumstances.

ENVIRONMENTAL PLANNING GROUNDS THAT JUSTIFY CONTRAVENING DEVELOPMENT STANDARD

The written request is also required to demonstrate that there are sufficient environmental planning grounds to justify contravening the eleven-metre height restriction.

· The proposal is not inconsistent with state and regional planning provisions applying to this land.

· The subject site is flood liable, requiring habitable floors to be elevated, thus necessitating an increase to the overall height of development.

· The proposal is consistent with the objectives and is permissible within the SP3

Tourist zone that applies to the land.

· Despite a very minor non-compliance with eleven metre height restriction, the proposal is consistent with the stated objectives of Clause 4.3 as they relate to the building height requirements as outlined above in Section 8.1 of this written request.

· The proposed development is representative of the envisaged character of the locality.

· The subject site is eminently suitable for the proposal development.

PUBLIC INTEREST

The written request is also required to demonstrate that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

Section 8.1 of this submission demonstrates that the proposal will be able to satisfy the objectives of the development standard as enunciated within Clause 4.3 notwithstanding contravention of the eleven-metre height restriction.

The subject site is zoned SP3 Tourist under the provisions of the Shoalhaven Local Environmental Plan 2014.

Objectives of the SP3 zone

The objectives of the SP3 zone are:

· To provide for a variety of tourist-oriented development and related uses.

· To enable compatible residential and recreational uses.

The proposal is clearly consistent with the above zone objectives as it seeks approval for tourist-oriented development in the form of high-quality tourist accommodation, and a food and drink premises. It is noted that the zone objectives seek to ensure that tourist-oriented development is the dominant land use, by enabling only residential and recreational uses which are compatible with the other allowable uses.

Amenity

Visual Impact

As described in Section 2.0 of this request, the locality within which the proposed development is situated comprises single detached dwellings and a caravan park, whilst further afield a range of land uses are undertaken including commercial on the former alignment of the Princes Highway. As a result, there is no single distinctive architectural character within the locality.

The design of the development has been undertaken in consideration of the statutory

requirements of the Shoalhaven LEP 2014, however it is noted that the development does exceed the overall height of 11 m due to the extension of the roof top terrace. In this regard, the element is considered satisfactory as it:

· Is located in the middle of the building where no additional overshadowing impacts arise.

· It does not add to the overall bulk of the building, presenting predominantly as a very thin element that is not prominent in the overall landscape.

Having regard to the overall visual impacts of the development, these are considered to be reasonable given the following:

· The building is well designed featuring an interesting design, use of variable building materials, and a design that is articulated to break up the apparent bulk of the building.

· The building presents well to Burrill Lake with a coastal aesthetic, dominated by the deck which has a wharf like appearance accentuating the coastal location of the property.

· The site is set down below the level of the Princes Highway to reduce the overall perceived height of the building when viewed from this main thoroughfare,

· The building is well setback from the adjoining privately owned property being 3.0m from the property to the north-east.

· The locality is an area in transition with the single dwellings not reflecting the SP3 Tourist zone and resultant development that is anticipated in these areas. Consequently, it is expected that in time, further development of these properties will result, inevitably resulting in development having a bulk and scale more compatible with the anticipated character.

Tourist zone and resultant development that is anticipated in these areas. Consequently, it is expected that in time, further development of these properties will result, inevitably resulting in development having a bulk and scale more compatible with the anticipated character.

Given these circumstances it is our view that the proposal has been designed in a manner that is consistent with the scale of development envisaged for this area having regard to the planning provisions that apply to the land; and incorporates design measures that will reduce the overall visual bulk and scale of the development.

Solar Access

Overshadowing of neighbouring privately owned properties is not expected due to the siting of the subject property, which is to the south of those sites. Consequently, overshadowing occurs predominantly to land within the Princess Avenue South road reserve, or the footpath and landscaping adjacent the Princess Highway.

Conclusion

Given these circumstances, it is our view that the proposed building will not be inconsistent with the envisaged character of this locality given the planning provisions applying to the land.

The proposal is consistent with the objectives of Clause 4.3 which imposes the eleven-metre height restriction. Furthermore, it is not inconsistent with the SP3 Tourist zone objectives that apply to the land, as such it is our view that the proposal will be in the public interest having regard to clause 4.6(4)ii) of SLEP 2014.

Clause 4.6(5) Matters for Consideration by Director-General

As outlined above the proposal does not require the concurrence of the Director-General, and therefore those matters outlined under Clause 4.6(5) have no specific relevance to this proposal. Notwithstanding this, it is our view that the proposal the application is not inconsistent with any State or Regional planning policy.

The applicant has also submitted plans which illustrate the extent of the intrusion of the building above the 11m height plane.

Discussion

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

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

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

The applicant’s written request demonstrates sufficient environmental planning grounds to justify contravening the height development standard for this particular proposal for the following reasons:

· The proposal is consistent with the key objectives of the SP3 zone in that it provides a land use that subject to condition is compatible with surrounding tourist land uses and that it provides development in an accessible location to encourage walking and cycling.

· In considering the objectives of the zone for the provision of tourist-oriented development and related uses the proposal is considered contextually appropriate.

· The height of the development exceeds the height of surrounding development in the vicinity however it is consistent with the desired future character of the site and its immediate surrounds.

· The proposed intrusion above the 11-metre height limit is essentially only for a small section of the building being the middle section where the roof terrace is proposed. Most of the building conforms with the height limit.

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

o The proposed roof terrace occupies only a small portion of the roof and is a light-weight open structure which minimises the appearance of the roof structure and eliminates the ‘heaviness’ of a solid roof structure and walls. Landscaping will also soften the appearance of the roof terrace structure.

o The proposed roof terrace has been designed to be sympathetic to the proposed building and its surrounds and will not impact on any views across the site.

· The site is in an area which is identified as flood prone hence the finished floor levels have been raised to ensure that living areas of the building are able to withstand any potential flooding and therefore minimise risk to occupiers of the motel.

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

Consistency with the underlying objectives of the standard:

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

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

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

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

As discussed in the preceding section of the report, the proposed height of the development is appropriate to the context and is compatible with the 11-metre height limit. The extension of the building beyond the 11m height control is predominant at the middle of the building and is essentially only 1.8 metre above the height limit.

The proposal positively responds and satisfactorily addresses the characteristics of the site and its broader context. The proposal is of a height and scale that is sympathetic to its immediate context and does not impede views, it is not visually intrusive, nor does it create privacy or overshadowing issues.

It is also however highlighted that the site is at the interface of the SP3 Tourist Zone and the only four (4) residential dwellings located within this zone. This must therefore temper amenity expectations accordingly. Owners of residential properties within a tourist zone cannot realistically expect the same level of residential amenity as someone residing in the middle of a purely residential area.

The proposal is a contemporary commercial design which is consistent with the desired future character of the immediate surrounds and the objectives of the SP3 zone.

Planning Assessment

The application will be fully assessed under s4.15 of the Environmental Planning and Assessment Act 1979 following determination of the application for variation to development standards.

Policy Implications

Not applicable

Consultation and Community Engagement:

Ninety-three (93) public submissions were received in relation to Council’s notification of the development. Fifty-nine (59) were objections to the development. Thirty-four (34) were in support of the development. A petition was also submitted by one of the objectors with 74 signatures however the signatures were blacked out by the objector for privacy reasons.

The notification was made in accordance with Council’s Community Consultation Policy with letters being sent to the whole of Burrill Lake and Dolphin Point. The application was notified for a 4-week period to account for the Christmas/New Year’s holidays. The application was also notified via the press for a 4-week period.Key issues raised as a result of the notification in regard to height issues are provided below:

Issue

The proposal is out of character/three storey development is inappropriate/ Sets precedent for similar development

Comment

The proposed building is considered appropriate in its context.

The proposal is located in the an SP3 Tourist zone which essentially forms a tourist zoned triangular precinct bounded by Princess Avenue South and the Princes Highway. A small commercial precinct (B2 Local Centre Zone) is also located in proximity of the site which abuts McDonald Parade and Burrill Lake.

These precincts are situated within an area where there is no maximum building height specified hence the default height under the Shoalhaven LEP2014 is 11 metres.

Given the objectives of the zones it is expected that tourist and commercial development of a similar nature and potentially similar height can be considered under current planning controls. Further these precincts provide appropriate buffers to nearby residential areas.

When assessing a planning application, each is considered on its merits and not on the precedent of previous applications.

The proposal has been designed to be sympathetic to the surrounding area and it is compatible with the desired future character and the objectives of the tourist zone.

Issue

The height is excessive

Comment:

It is considered that this issue has been addressed in the preceding assessment. Regardless the height of the building is generally consistent with the 11m height standard except for the middle section of the roof. The maximum deviation is 1.8m. The height is considered to be consistent with the design objectives and built form outcomes of the SP3 Zone.

Issue

Visual bulk & inappropriate scale & massing

Comment:

The design of the building utilises different materials and textures and includes vertical articulation in the way of balconies and windows to reduce the massing and bulk of the building. The proposed building is articulated and incorporates a variety of building materials and integrates variations to the façade walls to create interest and articulation.

The proposed extent of visibility is an acceptable and anticipated outcome for future built form within the SP3 Zone, with the zoning of the area envisaging that more robust developments will occur.

Having regard to the above it is considered that the massing and bulk of the proposal is considered appropriate.

Issue

Overshadowing of adjoining properties

Comment:

The location of the lot and siting of the proposal to the south-west of the existing residential properties ensures that no impacts from overshadowing will occur to the existing properties located north-east of the site.

Issue

Overlooking of caravan park and residences

Comment:

With regards to overlooking, the closest residential sites are located to the north and the caravan park is located to the east.

The tourist accommodation unit level, the units are designed to prevent direct views to the north. In this regard, a series of articulations and an angled wall provide openings that are directed away from the neighbouring property.

There are potential overlooking opportunities from the roof terrace. Whilst the Medium Density DCP (G13) does not apply to this application, it provides a guideline for distances that are considered acceptable in limiting unreasonable overlooking for developments above 3 storey (12m). Using this policy as a parameter, the proposed roof terrace is located beyond the 12-metre requirement and in conjunction with the proposed vegetation screening will ameliorate any privacy concerns.

There are no direct line of sight issues into habitable room windows or private open space area. It is considered that this degree of separation and the landscaping will limit overlooking to the residential properties to the north-east and the caravan park to the south-east.

Having regard to the above, the proposal will not result in any undue loss of privacy to the immediate surrounds.

Issue

Noise

Comment:

The applicant provided Council with an Acoustic Report (prepared by Hardwood Acoustics Consultants) which recommended implementing a number of measures to prevent unreasonable noise or vibration from impacting nearby residents.

These measures included use of noise limiters, building treatments and operational management measures. Additional conditions of consent to support the acoustic report will also be added to the development consent to minimise any adverse noise impacts.

Financial Implications:

Not applicable

Legal Implications

Not applicable

Summary and Conclusion

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

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

Development & Environment Committee – Tuesday 07 April 2020

Page 1

DE20.27 Landscape Screening and Bushfire Protection Measures - Planning Proposal (PP029) - Hitchcocks Lane, Berry

HPERM Ref: D19/374064

Section: Strategic Planning

Approver: Phil Costello, Director Planning Environment & Development Group

Attachments: 1. Proponents' Concept Masterplan 27/2/20 - Hitchcocks Lane PP029 ⇩

2. Screening Landscape Plan - Hitchcocks Lane PP029 ⇩

Reason for Report

· Provide a general update on the status of this Planning Proposal (PP029); and

· Seek Council’s specific input into one of the key aspects of this PP - proposed vegetation screening along the southern side of the subject land as recommended in the Visual Impact Assessment, incorporating the recommendations of a Bushfire Assessment report.

Recommendation (Item to be determined under delegated authority)

That Council:

1. Note the update on the status of Planning Proposal PP029.

2. Give ‘in principle’ endorsement to locating a proposed landscaped screen adjacent to the southern boundary of the subject land as follows:

a. Minimum 12 m wide landscaped buffer incorporating an 8 m wide planting area and 2 m wide buffer on either side.

b. The landscaped buffer is to be maintained by the landholder in accordance with a positive covenant on the adjoining land.

3. Secure the Proponent’s commitment to implement the above measures via a Voluntary Planning Agreement to be exhibited concurrently with the PP.

4. Prepare a draft amendment to Chapter N3 (Berry Residential Subdivision) of Shoalhaven Development Control Plan (DCP) 2014 to incorporate the above provisions and any other key recommendations of the supporting studies.

5. Commence the preparation of an amendment to Shoalhaven Contributions Plan 2019 project 01OREC0009 (Land acquisition for passive open space - Princes Highway, Berry) to recognise the demand the additional lots will place on the passive open space network in the Huntingdale subdivision area.

6. Prepare a report on the PP package prior to public exhibition, including the updated PP, draft Planning Agreement, and proposed amendments to the CP and DCP.

Options

1. As recommended.

Implications: this is the preferred approach, endorsing the proposed landscaping and bushfire protection measures will enable the concept masterplan and further details of the PP and supporting documents to be prepared/updated and progressed toward public exhibition.

Provision of effective visual screening along the land’s southern side, while at the same time, managing bushfire risk are key outcomes that affect other aspects of the PP (zoning, lot sizes, road layout etc.). The proposed landscaping and bushfire protection measures have been negotiated between Council staff and the proponents and satisfactorily address these issues.

2. Adopt an alternate recommendation.

Implications: will depend on the nature of changes made, but may delay the finalisation of the concept masterplan and overall progression of the PP. Any alternate measures may not satisfactorily address bushfire hazard and visual screening along the southern side of the subject land and may not be agreed to by the proponents.

3. Do not proceed with the recommendation.

Implications: this will delay the finalisation of the concept masterplan and overall progression of the PP. Key visual impacts and bushfire hazards will not be addressed in the PP.

Background

This PP covers the land outlined red in Figure 1 below, being part of Lots 762 and 763 DP 1224932, Hitchcocks Lane, Berry (the subject land).

The subject land is located on the southern edge of the Berry urban area and is adjoined to the southeast by the Princes Highway, to the north by the Huntingdale Park residential estate and to the southwest by rural land.

Figure 1: Subject land

The PP was initiated as the result of a proponent-initiated PP application that was received on 8 September 2017 from Cowman Stoddart Pty Ltd on behalf of the landowners. At the time, both lots were owned by P&P Bice. One of the two lots (Lot 763) was subsequently purchased by 2535 No 2 Pty Ltd.

Council resolved to support the PP at the 14 November 2017 Development Committee meeting as follows:

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

a. A 500 m² minimum lot size; and

b. An 8.5 m maximum height of buildings.

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

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

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

b. Stage 1 preliminary contaminated site assessment

c. Aboriginal cultural heritage assessment

d. Flood risk assessment

e. Traffic study

f. Visual impact assessment

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

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

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

The PP subsequently received a Gateway determination from the then NSW Department of Planning and Environment on 3 April 2018 authorising the PP to proceed, subject to consultation with public authorities, completion of several technical studies and public exhibition.

The PP seeks to rezone the subject land from RU1 Primary Production to R2 Low Density Residential to permit the subdivision of the land for residential development. A condition of the Gateway determination permits the provision of lot sizes down to 350 m2 across up to 25% of the subject land.

This report primarily concerns the key aspect of the Visual Impact Assessment, noting that depending on the outcome of this detailed matter that a further report will be presented to Council prior to public exhibition of the overall PP. A brief update on the other studies associated with the PP is provided later in this report.

1. Visual Impact Assessment & Urban Design Guidelines (VIA/UDG)

Given the importance of this aspect, Council commissioned Peter Andrews and Associates P/L to prepare a Visual Impact Assessment and Urban Design Guidelines (VIA/UDG) for the PP independently of the Proponent, but with funding provided by the proponent consistent with Council’s Planning Proposal Guidelines.

The resulting VIA/UDG report recommends a range of planning and urban design measures to achieve positive visual outcomes on this key edge to the town of Berry and manage the visual impact of the proposed development. The recommended measures cover development density, lot sizes, lot layout, dwelling/lot design and landscaping.

Of these measures, potentially most contentious is a proposed tree and vegetation screen to manage the visual impact of the site as viewed from the Princes Highway when travelling north. The detail of how this is implemented is a key policy issue that requires closer consideration by the Council, and it will inform preparation of the PP maps, particularly the minimum lot size map.

The existing view of the subject land when travelling north along the Princes Highway is shown in Figure 2.

Figure 2: Existing view north toward the subject land from the Princes Highway

(Peter Andrews & Associates, May 2019)

The VIA identifies this view as sensitive due to the outstanding views of the surrounding ridgelines, escarpment, natural areas and cleared rural lands available when travelling north on the Highway towards Berry.

Figure 3 is a photo montage of the proposed development from the same viewpoint based on Council’s generic DCP controls for subdivision.

Figure 3: Indicative photo montage of proposed development without screening from the same viewpoint based on Council’s generic subdivision DCP controls

(Peter Andrews & Associates, May 2019)

The VIA concludes that without appropriate screening, the proposed development would have a moderate impact on these views due to the extent of the proposed development, the abruptness of the change in view and the resulting increased urbanity of the view.

As a result, the VIA recommends that substantial tree planting be undertaken along the southern boundary of the subject land and within the drainage corridor that traverses through the site to screen views of the proposed development from the Princes Highway. The VIA suggests that the tree planting on the southern boundary could be within the subject land or on the adjoining land near the development and should incorporate any acoustic berms (if required) to mitigate highway noise.

Figure 4 is an indicative photo montage of the view of the proposed development with potential tree planting along the southern boundary and the drainage corridor.

Figure 4: Indicative photo montage of proposed development incorporating recommended tree planting along southern boundary and drainage corridor

(Peter Andrews & Associates, May 2019)

The VIA also includes a concept development plan showing how the recommended screening measures could be incorporated into the future subdivision and development of the subject land (Figure 5).

Figure 5: VIA concept development plan (Peter Andrews & Associates, May 2019)

The main vegetation screen shown in Figure 5 is located to the south of the subject land (i.e. within the area that will remain RU1) and also along the drainage corridor that dissects the subject land.

The VIA does not specify a minimum width for the southern boundary tree planting however the indicative width on the concept development plan is 20 m. It should be noted that this plan was prepared to illustrate one possible development scenario incorporating the VIA’s recommendations. It does not necessarily reflect the Proponent’s concept masterplan for the subject land.

The recommended establishment of effective tree and vegetation screening, particularly along the southern and south eastern side of the development and the drainage corridor that dissects the subject land is strongly supported given the highly visible nature of this edge on the entry into Berry. Without an appropriate treatment the development of the subject land could have a negative or less than desirable visual impact on this key entry. Council staff have had detailed discussions and negotiations with the proponents in relation to the position (within or outside of the subject land), width, tenure and ongoing management responsibility of the vegetation screen/s.

Several different options and implementation mechanisms have been considered for establishing effective vegetation screens including the following:

· Positive covenant on the title of future residential lots within the subject land, maintained by each landholder.

· Land dedicated to Council as open space or part of a widened road reserve.

· Easement on adjoining private land maintained by Council.

· Positive covenant on adjoining private land maintained by landholder.

· Landscaping width ranging from 6 m to 20 m wide.

It is considered important that the selected vegetation screening option:

· Is established at subdivision stage i.e. ahead of development. Note: this has been a consistent theme in early planning work done by Council for this future residential area.

· Is sufficiently wide enough and under appropriate tenure to facilitate effective screening of the development from the south, as depicted in the VIA report.

· Addresses the long-term management arrangements for the landscape screen. It should also be cost-neutral to Council over the life of the asset.

· Complies with the requirements of Planning for Bushfire Protection 2019 - the subject land is not currently identified as bushfire prone, but the NSW Rural Fire Service advised in late 2019 that it is likely to identified in the new grassland hazard category when the bushfire prone land mapping is revised. A bushfire assessment was subsequently commissioned by the proponent, to ensure that any proposed vegetation screening and landscaping is consistent with bushfire planning requirements.

In discussions with Council staff, the proponents have agreed on a proposed landscaping treatment for the southern boundary comprising:

· 12 m wide landscaped screen encompassing 8 m of planting and 2 m wide buffers on either side to provide access for maintenance. Council’s landscape architect has advised that this is suitable to achieve the screening effect depicted in the VIA.

· Mix of low, medium and tall plantings to achieve an effective screen. The canopy width of the buffer will be in the order of 12 m.

· Fire resistant species (buffer will adjoin the southern side of the 14 m wide asset protection zone required for the future development).

· Buffer is proposed to be located on the adjoining land and maintained by the landholder (currently the same owners as the subject land) via a positive covenant.

The proponents also propose to establish the plantings on either side of the drainage corridor consistent with another recommendation of the VIA.

The agreed measures are illustrated in Attachments 1 and 2 (Proponent’s concept masterplan and landscaping plan). Detailed considerations that will need to be addressed in the design of the landscaped buffer (fencing, edging, drainage, maintenance regime etc.) will also be included in the draft DCP Chapter for the subject land and are proposed to be secured via a Voluntary Planning Agreement (VPA) to be prepared and exhibited concurrently with the PP, DCP etc.

Council’s endorsement of this approach is now sought so that the PP and supporting draft DCP amendment can be prepared/updated as the size and location of the landscaped screen will affect the layout of the concept masterplan to be exhibited with the PP.

The overall PP package (including proposed DCP and CP amendments) will be reported to Council for review prior to the formal community consultation public exhibition and then again after the public exhibition period.

Council staff and the proponents are having ongoing discussions on the other recommendations of the VIA/UDG and are confident of reaching agreement on a set of preferred development controls to form the basis of a draft DCP chapter for the site. Details of these will be provided in the pre-exhibition Council report.

2. Bushfire Planning Considerations

As noted, the subject land is not currently identified on the bushfire prone land map and the Gateway determination does not require the PP to be referred to the NSW Rural Fire Service (RFS). However, the RFS is currently reviewing and updating bushfire prone land maps across the State. As part of this update, ‘grasslands’ will be added to the map as a new category of bushfire prone land. The new Planning for Bushfire Protection (PFBP) 2019 which recently came into effect includes new requirements for development in areas identified as grasslands.

Shoalhaven’s bushfire prone land map is still being reviewed by the RFS, however, preliminary advice received from the RFS in relation to this PP is that areas of pasture (grassland) on and adjacent to the subject land are likely to be mapped as bushfire prone on the revised map. This will require future development to provide, at a minimum, a perimeter access road along the southern boundary and an appropriate asset protection zone (APZ) for the dwellings fronting this boundary.

The RFS also suggested that the PP should be referred for comment even though there is currently no requirement to do so.

This emerging detail was discussed and agreed to with the proponents. A bushfire assessment was prepared by Bushfire & Evacuation Solutions on behalf of the proponents. The findings and recommendations of which have been incorporated into the design and location of the landscaped buffer and the proponent’s concept master plan for the site. The report considers existing vegetation on adjacent land and the proposed tree planting along the southern boundary. The report confirmed that:

· An APZ of a minimum width of 14 m will be required along the southern perimeter of the site to separate future planned residential buildings from the grassland hazard; and

· A perimeter road will need to be provided along the southern perimeter of the site.

These requirements have been incorporated into the proponent’s concept master plan for the subject land, which includes a perimeter road along the southern boundary between the landscaped buffer and future residential lots. The perimeter road is wide enough to function as the APZ, being a minimum 16 m wide.

3. Update on Other Supporting Studies

The following is a general summary of the supporting studies that have been completed to date to support this PP.

Flooding and Stormwater Management

A Flooding and Stormwater Management Report was prepared for the proponents by Southeast Engineering & Environment. The recommendations are summarised below.

· New stormwater network (minor system) for proposed residential areas (lots and roads) to be designed to cater for a 5 year Average Recurrence Interval (ARI) event with direct discharge to either proposed bioretention or central drainage depression;

· New roads to provide overland flow path towards the central drainage depression for large storm events (major system);

· A new culvert crossing (sized for 100 year ARI) over drainage depression as part of road proposed road network;

· On lot controls to include rainwater tanks for roof water harvesting and reuse in accordance with BASIX + additional Onsite Stormwater Detention (OSD) volume;

· End of line gross pollutant traps to capture gross pollutants and a portion of suspended solids;

· End of line bioretention systems to remove gross pollutants, a portion of suspended solids and some nutrients + provide a portion of OSD function for the development.

· The drainage depression will be modified and landscaped to cater for the 1% AEP (1 in 100 year event) peak flow, and allow for filling to achieve the necessary flood planning levels for the adjacent residential land and road reserves, and to accommodate stormwater infrastructure.

Council Staff Comments: Stormwater management details will be addressed in further detail as part of the subdivision application process in accordance with Chapter G2 of the DCP. Council’s Community and Recreation Services Unit also provided the following advice in relation to the proposed drainage reserve:

Council’s adopted Community Infrastructure Strategic Plan (CISP) specifies that drainage reserves will not be accepted unless it is useable, accessible and a minimum size and width. Acknowledging Council’s existing ownership of a reserve on Parker Crescent (Lot 339 DP 1226462) that would connect with the proposed drainage reserve on the land subject to the PP, and the proposed 350 m² lot size in this location, it is considered appropriate that the drainage reserve is embellished with passive recreation embellishments. These embellishments should include shared paths (min. 2 m), seating, lighting and appropriate landscaping. This level of detail will need to be considered at the Development Application stage.

Preliminary Land Contamination

A Stage 1 - Environmental Site Assessment (Land Contamination) report was prepared for the proponents by ENRS P/L. The report concluded that it is unlikely that the site may pose a significant risk to the environment and to the health of future users of the Site and may be considered suitable for the proposed residential land-use.

Aboriginal Cultural Heritage Assessment

An Aboriginal Cultural Heritage Assessment is currently being finalised for Council by AMBS and is expected to be completed by early June 2020.

Traffic Assessment

A traffic assessment was completed for the proponents by Bitzios Consulting. The overall conclusion was:

The site has been suitably designed to ensure that it can comply with Council's relevant codes and standards under the proposed re-zoning. Furthermore, the impact assessment identified no issues of significance that would preclude its approval.

Council’s Traffic Unit has provided technical on a range of specific technical matters that will be addressed as the subsequent master planning/subdivision design process progresses.

Infrastructure Assessment

An Infrastructure Assessment was prepared for the proponents by Allen Price & Scarretts. The Assessment outlines a range of proposed infrastructure upgrades and extensions to facilitate the proposed development. In summary:

· Water and sewer capacity are not constraints to proceeding.

· Electricity capacity is not a constraint to proceeding.

· The site and its future residential development will create demand for community facilities and public open space and hence this demand needs to be met appropriately and resourcefully.

· Contributions project 010REC0009 (Land acquisition for passive open space - Princes Highway, Berry) should be reviewed

· The Community Infrastructure Strategic Plan indicates that there is an oversupply of open space area in Berry.

Council staff Comments: Council’s Community and Recreation Section have confirmed/advised that the area for project 01OREC0009 in the Shoalhaven Contributions Plan (CP) 2019 should be amended. As a result, this report includes a recommendation to initiate an amendment to the CP in conjunction with this PP.

The Shoalhaven CP 2019 currently includes project 01OREC0009 (Land acquisition for passive open space - Princes Highway, Berry) which provides for the acquisition of land for the purpose of passive open space in the Huntingdale Estate area. The current contribution area for project 01OREC0009 is identified in Figure 6 below.

Figure 6: Contributions Project 01OREC0009 Contribution Area (blue)

Passive Open Space Area – identified in red

The future residential subdivision of the subject land will place additional demand on this infrastructure, and as such, should contribute to the acquisition of the land. It is recommended that project 01OREC0009 be amended to:

· Expand the contribution area to incorporate the subject land.

· Adjust the apportionment to development to reflect the development that has occurred in the contribution area since the project commenced (now known as existing tenements).

· Adjust the contribution rate accordingly.

· Consider the potential embellishment of the passive open space.

· Consider the extent of the passive open space area, taking into consideration recent approvals in the vicinity and the acquisition of several lots by Transport for NSW (TfNSW) as part of the Berry Bypass.

· Consider any other matters that arise during the project review.

Conclusion

This report essentially seeks Council’s endorsement for one of the key decisions associated with this PP – how to deal with its southern edge given its highly visible location on this edge of Berry. Assuming the recommended approach to this is accepted, work will continue to get the PP ready for exhibition.

Further information on the other supporting studies will be provided when the overall PP is reported to Council as required prior to public exhibition.

Community Engagement

Once all the required studies and other conditions of the Gateway determination have been satisfied, a further report on the PP package (including proposed DCP and CP amendments) will be prepared for Council’s endorsement for public exhibition.

Adjoining landholders, development industry representatives and the Berry Forum (CCB) will be notified when the package if publicly exhibited.

Policy Implications

The key policy issues that is dealt with in this report concerns the proposed tree/vegetation screen to mitigate visual impact of the proposed development when travelling north along the Princes Highway toward Berry.

Also, the proponent’s conceptual masterplan proposes a mix of lot sizes ranging from 350 m², 500 m² and 700 m², and a building height limit of 8.5 m, noting that Council has previous resolved to allow a 350 m² minimum lot size on up to 25% of the site. The appropriate zoning of any such land will need to be reviewed and resolved prior to public exhibition as the R2 zone is unlikely to be appropriate.

Financial Implications

There are no financial costs to Council associated with the implementation or maintenance of the proposed landscape buffer treatment. Under the proposed arrangement, the buffer would be implemented via a positive covenant on the land and the landholder would be responsible for ongoing management and maintenance.

Several of the other options would possibly result in a financial cost to Council for ongoing maintenance, for example, if the landscaped buffer was dedicated to Council as public open space. Any alternate option should be cost neutral to Council over the life of the asset. This could be achieved by having the Proponent enter into a Voluntary Planning Agreement to make a monetary contribution for maintenance. All costs associated with preparing a Voluntary Planning Agreement as part of the PP would be borne by the Proponent in accordance with Council’s fees and charges.

Development & Environment Committee – Tuesday 07 April 2020

Page 1

DE20.28 Review - Clause 2.8 Temporary Use of Land, Shoalhaven LEP 2014

HPERM Ref: D20/71160

Section: Strategic Planning

Approver: Phil Costello, Director Planning Environment & Development Group

Reason for Report

· Present the outcomes of the initial community consultation in relation to the Clause 2.8 (Temporary use of land) review.

· Resolve the way forward in this regard and if accepted, obtain endorsement for potential amendments to the Shoalhaven Development Control Plan (DCP) 2014.

Recommendation (Item to be determined under delegated authority)

That Council:

1. Not proceed to amend Clause 2.8 (Temporary use of land) in the Shoalhaven Local Environmental Plan 2014 at this point.

2. Monitor the outcome of both the Destination Sydney Surrounds South work in this regard and the relevant NSW Council Planning Proposals regarding function centres in rural areas and staff report back to Council at the appropriate point regarding opportunities that arise for Shoalhaven.

3. Prepare an amendment to Shoalhaven Development Control Plan 2014 to provide guidance regarding temporary use developments as outlined in this report and receive a further report on the proposed detail of the draft DCP amendment prior to it proceeding to public exhibition.

4. Advise relevant stakeholders of this resolution; including CCBs, Shoalhaven Tourism Advisory Group, the Development/Tourism Industry, those who made a submission/submitted a questionnaire and attendees of the information session.

5. Update the Strategic Planning Works Program to reflect the outcomes of this resolution.

Options

1. As recommended

Implications: This is the preferred option as it responds to the outcomes of the community consultation which largely indicated that ‘no change’ to Clause 2.8 Temporary use of land in Shoalhaven Local Environmental Plan (SLEP) 2014 was favoured at this point.

Further opportunities may arise in relation to function centres in Shoalhaven’s rural/environmental areas from current work being done by Destination Sydney Surrounds South (DSSS) and other NSW councils.

This option also advances an amendment to the DCP to provide better quality and responsive provisions/guidance regarding temporary use applications that is much needed.

2. Adopt an alternative recommendation.

Implications: The implications will depend on the extent of any changes. Depending on its nature, an alternative recommendation could delay any proposed amendments to the DCP.

3. Not adopt the recommendation.

Implications: This option is not preferred as Council will need to continue to assess development applications made under Clause 2.8 on a case-by-case basis without appropriate guidance in the DCP. This will lead to a lack of clarity regarding Council’s standards or expectations for temporary use developments.

Background

Clause 2.8 of Shoalhaven LEP 2014 is an ‘optional’ clause in the NSW Standard Instrument LEP which allows development consent to be granted for any development in any zone for a maximum period of 52 days in any 12 month period, regardless of land use permissibility and any other land use restrictions within the LEP.

The original intent of this clause was to accommodate or provide for ‘one off’ or temporary events, such as a school fete or community event.

The review of Clause 2.8 was originally prompted as a result of community concerns raised in submissions regarding several development applications made under the clause for function centres (e.g. weddings) in rural and environmental zones and the concerns primarily related to the following:

· Inappropriate location,

· Undesirable behaviour,

· Amenity impacts (noise, dust, light spill),

· Flora and fauna impacts,

· Actual “Temporary” nature of the use/development,

· Lack of services, and

· Waste collection.

Following consideration of an initial report, Council resolved on 7 May 2019 (MIN19.285) to:

1. Proceed to review the operation and effect of the current Clause 2.8 (Temporary use of land) in Shoalhaven Local Environmental Plan 2014.

2. Advise relevant stakeholders (all CCBs, Development/Tourism Industry, Shoalhaven Tourism Advisory Group) of this decision and engage them during the Review.

3. Receive a further report outlining the findings of the Review and options to revise the clause as appropriate.

Stakeholder Consultation

To help inform the review, two well attended information sessions were held as follows:

· 11 November 2019 – generally targeted at the Development and Tourism Industry – 118 registered attendees.

· 13 November 2019 - generally targeted at the community – 111 registered attendees.

The purpose of the sessions was to provide both community and industry representatives with a clear and consistent overview of the current issues, concerns etc relating to Clause 2.8 and its use/operation.

A number of Councillors also attended one or both of the information sessions.

The information sessions also included a segment on the separate, but related, Tourist and Visitor Accommodation Planning Review.

Invitations to the information sessions were sent to the Shoalhaven Tourism Advisory Group, Development Industry representatives and Tourism Industry representatives, informing them of the details of the information sessions. An invitation was also sent to all Community Consultative Bodies (CCB’s) with a request that the invitation be circulated to their members.

A questionnaire relating to the Clause 2.8 Temporary Use of Land Review was provided at both sessions seeking targeted feedback. To enable time to fully consider the questionnaire, a period of four weeks after the information sessions to 13 December 2019 was provided for the questionnaire to be returned, or a written submission made.

A ‘Get Involved’ page has been set up for the Review (including the Tourist and Visitor Accommodation Review) and remains in place, which contains:

· Fact sheet.

· Answers to frequently asked questions (these were updated as questions arose).

· Information session presentation; and

· Online questionnaire (has concluded).

Outcomes of Consultation

At the conclusion of the online questionnaire, 161 responses had been received in relation to the Clause 2.8 Temporary Use of Land Review and 5 written submission had also been received. Copies of the questionnaire responses and submissions can be provided to Councillors if needed.

The key themes identified during the consultation are outlined in Table 1 below, as are the percentage of the questionnaire responses/surveys that mentioned the theme. The themes identified in the written submissions are also presented.

Table 1: Key themes identified in questionnaire responses/ surveys

Submission Point		Percentage of questionnaire responses	Number of submissions
LEP Clause and Approval Process
LEP Clause 2.8 should remain unchanged and amendments would likely make the current situation worse		46.6%	1
Approvals under Clause 2.8 are not ‘temporary’, and they undermine the intent of the whole LEP		12.4%	3
Amenity impacts:	Clause 2.8 is resulting in adverse amenity impacts (e.g. noise, traffic)	11.2%	3
	There must be an absence of any adverse amenity impacts	6.8%	1
Maximum number of days should decrease		4.3%	2
More certainty is required for operators/businesses (i.e. regarding approval and number of years they can operate for		3.7%	-
Shoalhaven Development Control Plan 2014
Introduction of suitable controls/guidance in DCP		13%	-
Specific Economic and Environmental Considerations
Wedding/events industry is critical to the tourism industry, economy and jobs		7.5%	1
Need to balance amenity and environmental impacts with economic/tourism pursuits and opportunities		3.7%	2
Operational Issues/ Breaches
Issues relate to unlawful operators, not those with development consent (i.e. unapproved locations)		5.6%	-
Need to better manage breaches of development consent		4.3%	-
Miscellaneous
Council should consider the preparation of a Code of Practice or guidelines with stakeholder representatives from the South Coast Wedding Industry, Chambers of Commerce and events industry		3.7%	-

Key themes throughout the questionnaire responses and submissions related to: Clause 2.8 should not be changed, concern regarding the ‘temporary’ nature of uses and the adverse impacts of the uses.

When specifically asked whether the current wording of Clause 2.8 adequately manages temporary use developments, of the 161 questionnaire responses:

· 70% thought the clause adequately manages temporary use developments.

· 18% thought the clause did not adequately manage temporary use developments.

· 12% thought the clause partially manages temporary use developments adequately.

If a change was to be made to Clause 2.8, the results of the questionnaire indicated the following preferences as most preferred:

· 17.4% - Decrease the 52-day maximum timeframe.

· 6.5% - Introduce new controls within the DCP to manage temporary uses.

Commentary – LEP Provisions

The majority of those who provided feedback indicated that no change should be made to Clause 2.8 at this point in time. This also maintains a pathway for the ‘one off’ and infrequent uses/events that the clause was originally envisaged to facilitate.

The second preference arising from the feedback, although not preferred, would be to retain the existing Clause 2.8 with a decrease in the 52-day maximum timeframe. In this regard it is noted that Shoalhaven’s Clause 2.8 is identical to 61% of other Council LEP’s across NSW. An additional 34% have a variation in the number of days - 30.6% with increased days and 69.4% with decreased days.

Council can if it wishes alter subclause 2 to reduce the number of days permissible within a 12 month period, where justified, however without more detailed analysis (to possibly select an appropriate and soundly based number) this may have unintended adverse impacts on Shoalhaven’s tourism industry where temporary events and related industries are a large contributor.

Destination Sydney Surrounds South (DSSS) are also currently continuing with a review and advocacy in the ‘temporary use’ space, which seeks to provide a clear direction for the development and growth of ‘destination weddings’ and business conferencing in rural locations within their Council areas: Wollongong, Shellharbour, Kiama, Shoalhaven, Wingecarribee and Wollondilly.

This is particularly relevant to Shoalhaven as the majority of development applications being received utilising Clause 2.8 relate to temporary function centres. Whilst the outcomes of the DSSS’s review/advocacy has not yet been made public, it is understood that discussions have commenced regarding a possible new LEP definition for a rural function centre type use which would cater for destination weddings and small scale business conferencing without having to permit the general “function centres” definition in rural and/or environmental zones.

It is also noted that Byron, Clarence Valley, Oberon, Gundagai and Greater Hume Councils are currently in the process of amending their LEP’s to facilitate rural event/function sites on rural land in the same general manner, with the Byron and Clarence Valley PP’s including an additional ‘local clause’ to consider impact and amenity. It would be worth continuing to review the outcome of these PP’s and consider the potential for Shoalhaven to follow a similar approach at the appropriate point when these are settled/known.

Commentary – DCP Provisions

The review has identified the following matters for consideration in relation to temporary uses which would benefit from further explanation, guidance and controls in the DCP:

· Commentary regarding ‘adverse impacts’, as per the Marshall Rural Pty Limited v Hawkesbury City Council case [2015], and what supporting information Council will require to satisfy this test.

· Clarification regarding setting up and tacking down of the temporary uses and associated structures and the relationship to the 52 day limit in LEP Clause 2.8.

· Clarification that temporary uses may be carried out in permanent structures (e.g. farm buildings or sheds).

· Clarification regarding the ongoing approval of temporary uses.

· Possible commentary regarding operational breaches (e.g. failure to comply with conditions of consent).

Other related matters will be considered and included as they arise or are identified during the preparation of the DCP amendment.

Conclusion

Tourism and its associated economic activity are extremely important to the overall Shoalhaven economy. Functions and events industry are an important and growing part of this. Tourism overall in Shoalhaven is experiencing challenging times at present and whilst it is appreciated that that there are ongoing community concerns around the impact of functions/events in rural areas, it is important that at this time Council proceeds carefully with any review so as not to create further consequences, impacts or concerns.

Based on the outcomes of the initial community consultation and the review undertaken to date, it is considered appropriate at this point to:

· Retain the existing LEP Clause 2.8 as is.

· Continue to monitor the outcome of the DSSS review/advocacy and the five identified NSW Council PP’s regarding function centres in rural areas; and advise Council of future opportunities to improve the operation of the Shoalhaven LEP as a result.

· Amend the DCP to provide commentary and controls on the relevant themes identified in this report to provide greater clarity in relation to development applications for temporary use.

Community Engagement

The initial community engagement that was undertaken in late 2019 is detailed in this report.

At the appropriate point, any draft amendments to the LEP and/or DCP will be publicly exhibited in accordance with Council’s Community Participation Plan and legislative requirements.

Community Consultative Bodies (CCB’s), the Shoalhaven Tourism Advisory Group, development Industry and tourism Industry are being kept advised of the progress of this review and will be directly advised of any future public exhibition to ensure that the proposed amendments consider the views of all stakeholders.

Policy Implications

Any policy decision needs to consider the broader community and the impact on the overall City as any changes to the LEP and/or DCP will apply to the entire Shoalhaven.

Financial Implications

Based on the recommended approach, there are no immediate financial implications for Council and the matter is being resourced within the existing Strategic Planning budget.

Risk Implications

There is currently a lack of certainty regarding development applications for temporary uses assessed under Clause 2.8, and whether these will be approved by Council. Providing additional guidance in this regard will provide clarification to applicants and Council staff regarding Clause 2.8 and relevant matters for consideration.

Development & Environment Committee – Tuesday 07 April 2020

Page 1

DE20.29 Review - Tourist & Visitor Accommodation - Planning Provisions

HPERM Ref: D20/20045

Section: Strategic Planning

Approver: Phil Costello, Director Planning Environment & Development Group

Attachments: 1. Key Consultation Themes and Summary - Tourist and Visitor Accommodation Review ⇩

2. Model Clause - Rural and Nature-based Tourist Facilities ⇩

Reason for Report

· Report the outcomes of the initial community consultation in relation to the review of the Tourist and Visitor Accommodation planning provisions.

· If accepted, obtain endorsement to proceed with potential amendments to the Shoalhaven Local Environmental Plan (LEP) 2014 and Shoalhaven Development Control Plan (DCP) 2014.

Recommendation (Item to be determined under delegated authority)

That Council:

1. Provide ‘in principle’ support for a Planning Proposal (PP) to amend the Shoalhaven Local Environmental Plan (LEP) 2014 to introduce a new Part 7 ‘Additional local provisions’ clause based on the model clause ‘Rural and nature-based tourist facilities’ provided at Attachment 2,

2. Receive a further report in due course that considers the implications of any guidance material/revised model clause released by the NSW Department of Planning, Industry and Environment (DPIE) and that presents a PP for consideration to obtain the required resolution to proceed to Gateway, as appropriate.

3. Continue the preparation of a draft amendment to Shoalhaven Development Control Plan 2014 Chapter G15: Tourist and Visitor Accommodation, in accordance with:

a. Council’s previous resolution of 5 March 2019 (MIN19.113), and

b. The further investigation areas outlined in Attachment 1.

4. Receive a further report on the proposed detail of the draft DCP amendment prior to it proceeding to public exhibition.

5. Advise relevant stakeholders of this resolution; including Community Consultative Bodies, the Development/Tourism Industry and those who made a submission/submitted a questionnaire.

6. Update the Strategic Planning Works Program to reflect the outcomes of this resolution.

Options

1. As recommended.

Implications: This is the preferred option as it will enable the LEP and DCP to be amended to provide updated, better quality and responsive provisions relating to tourist and visitor accommodation development in Shoalhaven. This option balances the feedback from the community which broadly seeks to protect the amenity and aesthetics of Shoalhaven’s rural and environmental areas whilst also continuing to encourage tourism opportunities.

The progression of a Planning Proposal (PP) to amend the LEP would not be progressed until such time as the NSW Department of Planning, Industry and Environment’s (DPIE) guidance/model clause relating to ‘tourist and visitor accommodation’ is released. Indications are this could occur shortly.

2. Prepare and progress amendments to the LEP and DCP ahead of the content of DPIE’s guidance material/model clause being known.

Implications: Whilst this option would see the proposed amendment to DCP Chapter G15 progress without delay, this option is not preferred as it would also see an amendment to LEP commence prior to the release of DPIE’s guidance material/model clause. There may be subsequent LEP implications for Shoalhaven resulting from this release which would need to be explored when its detail is known.

3. Adopt an alternative resolution or not proceed with any amendments to the LEP or DCP.

Implications: This will largely depend on the nature of any alternative resolution. Not proceeding with any LEP or DCP amendments would stop the implementation of improved or clarified planning provisions.

4. Defer this matter to enable a Councillor Briefing Workshop to be held.

Implications: This could provide an opportunity for Councillors to provide more detailed input into the review and also further discuss its possible direction given the sensitivity of this issue to the community, tourism industry etc.

Background

Council have received a range of representations from the community regarding the current tourist and visitor accommodation planning controls in both the LEP and DCP. In response, Council resolved on 5 March 2019 (MIN19.113) to:

1. Report the scope and content of a Planning Proposal to amend the relevant provisions of the Shoalhaven Local Environmental Plan (LEP) 2014 related to ‘tourist and visitor accommodation’ back to Council and as part of this carry out initial consultation with relevant stakeholders.

2. Prepare an amendment to Chapter G15: Tourist and Visitor Accommodation of the Shoalhaven Development Control Plan (DCP) 2014 and receive a further report on the proposed amendment prior to it proceeding to public exhibition.

3. Advise relevant stakeholders, including CCBs and the Development/Tourism Industry, of this decision and engage them during the preparation of the Planning Proposal and DCP amendment.

4. Staff, in further reports, consider the submission from the Berry Forum presented in the deputation to this meeting.

5. Convene a Councillor Briefing at an appropriate time.

Initial Stakeholder Consultation

In accordance with Council’s resolution regarding initial consultation, two well attended information sessions were held as follows:

· 11 November 2019 – generally targeted at the Development and Tourism Industry – 118 registered attendees.

· 13 November 2019 - generally targeted at the broader community – 111 registered attendees.

The purpose of the sessions was to provide both community and industry representatives with a clear and consistent overview of the current planning controls relating to tourist and visitor accommodation, as well as highlight some issues identified regarding the operation of some of these existing provisions.

A number of Councillors also attended one or both of the information sessions

The information sessions also included a segment on the separate, but related, LEP Clause 2.8 (temporary use of land) Review.

A questionnaire relating to the Tourist and Visitor Accommodation Review was provided at both sessions seeking targeted feedback. To enable time to fully consider the questionnaire, a period of four weeks after the information sessions to 13 December 2019 was provided for the questionnaire to be returned, or a written submission provided.

A ‘Get Involved’ page was set up for the Review (including the Clause 2.8 Review) and remains in place, which contains:

· Fact sheet.

· Answers to frequently asked questions (these were updated as questions arose).

· Information session presentation; and

· Online questionnaire (has concluded).

Consultation Outcomes

At the close of the online questionnaire, 190 responses had been received in relation to the Tourist and Visitor Accommodation Review. Copies of the questionnaire responses are available to Councillors.

Of the 190 responses, 72% were received from the Berry area and 28% from other areas within Shoalhaven. Whilst the views of the Berry community are important, it is noted that the Berry area forms a relatively small part of the overall Shoalhaven and as such it does not necessarily reflect the views of the broader community. This is important as any changes to the LEP would apply across the Shoalhaven.

Based on the nature of the tourist and visitor accommodation space and the responses to the questionnaire, several common key themes have emerged for consideration in any review, including:

· Theme 1 - Expansion of Part 7: Additional Local Provisions in the LEP to include specific consideration of tourist and visitor accommodation.

· Theme 2 – Expansion/modification or removal of the current ‘tourist and visitor accommodation’ group term in the LEP as it relates to rural and environmental zones.

· Theme 3 - Expansion of the existing LEP Clause 5.4 ‘Controls relating to miscellaneous permissible uses’ to include Tourist cabins and Eco-tourist facilities.

· Theme 4 - Remove Clause 4.2A ‘Subdivision of land’ from the LEP, which applies to the community title subdivision of ‘tourist and visitor accommodation’ in the RU1, RU2 and E3 zones.

· Theme 5 – Relevant controls need to be in LEP not the DCP.

· Theme 6 – Amenity and environmental considerations relating to tourist development.

· Theme 7 - Ensuring adequate infrastructure for tourist development.

· Theme 8 - Consideration and preservation of the character of an area.

· Theme 9 - Tourism and the economy in Shoalhaven generally and secondary income for farming.

· Theme 10 - Introduction of new LEP definitions, e.g. Tourist cabins and Guest houses.

· Theme 11 – Views of the whole City should be considered, not just certain localities or planning areas.

The key themes largely focused on existing and possible LEP and DCP controls, however, there was also concern raised regarding the economic impacts/consequences associated with possible changes to the planning controls related to tourist and visitor accommodation.

More detail on each of the above key themes, including a summary of proposed/possible changes and related Council staff comments is provided in Attachment 1. Also arising from this are a range of recommendations that are discussed below:

Possible Changes to LEP

Based on the consultation outcomes and the review undertaken by Council staff, it is recommended that a new local clause be introduced in Part 7 Additional local provisions of the LEP, based on the NSW Standard LEP Instrument model clause ‘Rural and nature-based tourist facilities’. A copy of this model clause is provided as Attachment 2.

The proposed new local clause would enable the rural and environmental land use tables in the LEP to remain unchanged, which offers continued opportunity/flexibility to consider a range of tourism accommodation uses, but provides an additional layer of consideration (on future developments) that is not currently there in relation to agricultural, scenic and environmental values which is a key theme identified by the broader community.

Further guidance would be required from DPIE regarding additional flexibility to adjust or amend the clause to include local variations, considerations etc. It is also noted that the DPIE Tourist and Visitor Accommodation Review (outlined in detail below) may include a revised or a new model clause relating to tourist and visitor accommodation.

Possible DCP Investigation/Amendment Areas

Council previously resolved to amend Chapter G15: Tourist and Visitor Accommodation of the DCP to include the following:

· Provision of a set of generic objectives and controls that apply to all tourist related development, ensuring that these controls address key issues raised in the relevant court cases (e.g. amenity, access, servicing).

· Expansion of the application of the Chapter to include guidelines for more types of tourist development (e.g. terms defined in LEP and other tourist uses). Provide specific objectives, controls and guidance as relevant.

· Provision of additional definitions and guidance on all known tourist uses such as tourist cabins, glamping, glass tents etc. to assist applicants in characterising their development.

· Inclusion of relevant guidelines for tourist development in urban areas where appropriate.

It is considered appropriate to also consider/investigate the following matters for inclusion in the review of Chapter G15:

· Ongoing representations from the Berry Forum made following the 5 March 2019 Development & Environment Committee meeting.

· Assessment criteria for visual impact; including definitions for ridgeline, knoll and escarpment to assist assessment of visual character and amenity.

· Provisions outlining the definition of ‘short term’ accommodation as it relates to tourist and visitor accommodation.

· Supplementary controls to support inclusion of the ‘Rural and nature-based tourist facilities’ model clause in the LEP (Note: only if the related amendment to the LEP is supported).

· Consideration of provisions for Tourist cabins in relation to size/floor area and number of bedrooms.

· Density standards for Eco-tourist facilities.

· Controls relating to colour and materials.

Berry Forum’s Deputation

Consistent with the Part 4 of the Council resolution of the 5 March 2019, the deputation from the Berry Forum presented at that meeting has been considered. An overview of the Forum’s issues and possible solutions was part of the presentations that was given to the Information Session’s in November 2019.

The themes within the Berry Forum’s deputation align with several of the general consultation feedback themes (either partially or wholly) and this has been specifically noted in Attachment 1.

The main issue/request from the Berry Forum is that the suggested current LEP ‘loophole’ (their term) that is being used to enable any and all types of tourist and visitor accommodation in potentially inappropriate locations be revisited and closed. This essentially relates to the ‘open’ nature of the ‘tourist and visitor accommodation’ land use group term and it being currently permissible in RU1, RU2 and E3 zones. The Berry Forum has requested that the current group term be removed from the list of permissible uses and that the specific uses of ‘farm stay’ and ‘bed and breakfast accommodation’ be added as permissible uses. It has also been suggested that Schedule 1 (additional permitted uses) be used to permit ‘other’ types of appropriate tourist and visitor accommodation in specific areas.

When constructing the land use tables for the RU1, RU2 and E3 zones in the new LEP prior to 2014, the then Council was aware of the ‘open’ nature of the ‘tourist and visitor accommodation’ land use term. This was accepted as one of the focusses of the Council at that time was on a ‘like for like’ transfer from the previous LEP 1985. Under this LEP 1985 a range of tourist accommodation land uses were permissible in the rural and some environmental protection zones, including for example tourist cabins. As such given the role that tourism plays in Shoalhaven, this flexibility was maintained in LEP 2014.

Removing the group term as requested by the Berry Forum would now prohibit, for example, backpackers accommodation, tourist cabins and any other emerging innominate land uses (even if a new use was considered beneficial or appropriate in a location) in the RU1, RU2 and E3 zones. The use of Schedule 1 (additional permitted uses) to circumvent any prohibition in the land use tables may be possible but is not necessarily good planning practice consistent with the intent of the NSW Standard LEP Instrument and as such may not be ultimately accepted by DPIE.

The Berry Forum deputation also raise one suggested change that did not come out as a key theme during the recent consultation, being the inclusion of a new local clause in Part 7 of the LEP which prescribes development standards (density, size/area) relating to Eco-tourist facilities. Numerical standards of this nature are not currently part of the Standard LEP Instrument framework and if required are generally located in a DCP, an approach generally supported by DPIE.

NSW Planning Review

DPIE have commenced a review of tourist and visitor accommodation in relation to the NSW Standard Instrument LEP and are currently in the process of finalising this process. As part of the review, DPIE released an industry stakeholder survey relating to the Standard Instrument LEP tourist and visitor accommodation provisions in late 2018. The survey asked specific questions regarding characterisation of tourist uses, whether a definition of ‘tourist cabins’ would be beneficial, use of model clauses and effectiveness of eco-tourist facility provisions.

It is understood that an outcome of the review is the preparation of a guideline or additional guidance to assist councils in planning for and determining applications for tourist and visitor related land uses and a model clause for tourist and visitor land uses in rural and environmental areas.

At this point in time, the content or implications of the guidance documentation is unknown, including the relationship of the ‘possible’ model clause to the current model clause that is provided as Attachment 2. As such, it would be prudent to wait until the guidance and model clause has been released so it can be considered in the context of Shoalhaven. It is understood that the outcomes of the Review and guidance may be released shortly.

Conclusion

Tourism and its associated economic activity are extremely important to the overall Shoalhaven economy. Tourism is currently experiencing challenging times due to a range of local natural events, global issues etc. Whilst it is appreciated that there are also ongoing community concerns around tourism impacts, it is also important that Council proceeds carefully with this review so as not to create further unintended consequences, impacts or concerns.

Based on the outcomes of the community consultation and the review work undertaken to date, it is considered appropriate to:

· Amend the LEP to include a new ‘local clause’ based on the NSW Standard LEP Instrument model clause ‘Rural and nature-based tourist facilities’ (see Attachment 2). However, it is considered premature to progress a PP of this nature until the DPIE review outcomes/guidance material is released in mid-2020.

· Continue with the review of Chapter G15 of DCP, considering the existing and additional themes identified as part of the community consultation outlined in Attachment 1.

Community Engagement

The initial community engagement that was undertaken in late 2019 is detailed in this report.

At the appropriate point, any draft amendments to the LEP and/or DCP will also be publicly exhibited in accordance with Council’s Community Participation Plan and legislative requirements.

Community Consultative Bodies (CCB’s), the Shoalhaven Tourism Advisory Group, Development Industry and Tourism Industry are being kept advised of the progress of this review and will be directly advised of any future public exhibition to ensure that the proposed amendments consider the views of all stakeholders.

Policy Implications

Any policy decision needs to consider the broader community and the impact on the overall City as any changes to the LEP and/or DCP will apply to the entire Shoalhaven.

Financial Implications

Based on the recommended approach, there are no immediate financial implications for Council as this matter is being resourced within the existing Strategic Planning budget.

Risk Implications

It is important that the review considers the needs and submissions of both the community and the tourism industry, which are somewhat divergent. Shoalhaven is the most visited LGA outside of the Sydney and the tourism industry is a significant contributor to the local economy. The needs of both stakeholder groups need to be carefully balanced.

The progression of the LEP and DCP amendment will provide specific direction regarding tourist and visitor accommodation generally as well as innovative, emerging or innominate tourist land uses. This will help reduce the risk of highly subjective development applications that may be incompatible with community expectations and existing development in those locations.

Development & Environment Committee – Tuesday 07 April 2020

Page 1

DE20.30 Planning Proposal (PP035 ) - Lot 3 DP 846470, Jervis Bay Road, Falls Creek - Public Exhibition Detail Confirmation

HPERM Ref: D20/52111

Section: Strategic Planning

Approver: Phil Costello, Director Planning Environment & Development Group

Attachments: 1. Proponent's revised conceptual subdivision plan ⇩

Reason for Report

· Present the findings of the supporting studies which have now been completed in regard to this proponent initiated Planning Proposal (PP); and

· Obtain Council’s direction in relation to the number and size of the proposed lots prior to public exhibition, consistent with the Council resolution of 13 March 2018 (MIN18.162).

Recommendation (Item to be determined under delegated authority)

That Council:

1. Update the Planning Proposal for Lot 3 DP 846470, Jervis Bay Road, Falls Creek (PP035) to reflect the completed studies, and include the following changes prior to public exhibition:

a. Update zoning, minimum lot size, and terrestrial biodiversity maps to reflect the revised development footprint.

b. The intended outcome be revised to allow up to 13 residential lots, no smaller than 4,000 m².

c. Replace the reference to amending Clause 4.2B of the LEP with a statement that the legal mechanism to achieve the intended outcome of the Planning Proposal will be determined in consultation with NSW Parliamentary Counsel.

2. Place the Planning Proposal and the supporting information on public exhibition for a minimum of 28 days.

3. Adopt a policy position that should the Planning Proposal ultimately be finalised on the basis of a minimum lot size of 4,000 m², that town water will not be supplied to the subject land (regardless of whether the land/subdivision complies with Council’s Rural Water Supply Policy).

Options

1. Proceed as recommended to publicly exhibit the PP on the basis of the proponents’ proposed changes to the size and number of lots and also the findings of the various supporting studies. Also replace the reference in the PP to amending Clause 4.2B (subdivision in certain rural and environment protection zoned) of the LEP with a statement that the legal mechanism to achieve the intended outcome of the PP will be determined in consultation with Parliamentary Counsel.

Implications:

This is the preferred approach as the proponent’s proposed subdivision layout has now been revised based on the findings of a range of studies.

One of the key studies is an onsite effluent/wastewater report which assumes that town water will not be available. Advice from Shoalhaven Water, however, is that town water could potentially be supplied, subject to compliance with Council’s Rural Water Supply Policy. Larger onsite effluent management areas would be required if town water is available, in which case, a larger/more conservative minimum lot size should be applied. As a result, this report recommends that if the PP is ultimately finalised on the basis of 13 residential lots and a 4,000 m² lot size, that Council adopt a prudent policy position not to provide town water to the subject land.

The best legal mechanism for achieving the intended outcome of this PP remains to be determined. In this regard, a new local clause is potentially more appropriate than amending the current LEP Clause 4.2B. The primary purpose of the PP is to describe the intended outcome in plain English and legal mechanism for achieving the outcome does not necessarily need to be described in the document.

2. Amend the recommended approach.

Implications:

Would largely depend on the nature of any changes or additions to the recommendation.

3. Not proceed further with the PP

Implications:

This would not be recommended given the level of work that has gone into this PP consistent with a previous resolution of Council.

Background

In March 2018, Council considered an initial report on a proponent-initiated Planning Proposal (PP) application for Lot 3 DP 846470, Jervis Bay Road, Falls Creek.

The PP application was submitted by Cowman Stoddart Pty Ltd (on behalf of the owner T Pasialis) in November 2017 and sought to amend the Shoalhaven Local Environmental Plan (LEP) 2014 to permit a 13-lot community title subdivision comprising 12 residential lots (within a largely cleared area) and a neighbourhood property (bushland which is to be managed for conservation). The proposed residential lots had a minimum area of 5,635 m². The existing minimum lot size under the LEP is part 40 ha and part 2 ha.

Council resolved on 13 March 2019 (MIN18.162) to:

1. Prepare a Planning Proposal to:

a. Permit a community title subdivision of Lot 3 DP 846470 Jervis Bay Road Falls Creek into rural residential lots and a neighbourhood environmental conservation lot; and

b. Rezone the land to part R5 – Large Lot Residential and part E2 - Environmental Conservation.

2. Submit this Planning Proposal to the NSW Department of Planning and Environment for a Gateway determination.

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

a. Flora and fauna assessment

b. Onsite wastewater management plan

c. Water quality and stormwater management

d. Bushfire hazard assessment

e. Traffic study

f. Visual impact assessment

4. Receive a report once all the above studies have been completed to determine the number and size of lots prior to public exhibition of the Planning Proposal.

The resultant PP document (PP035) was prepared and submitted for Gateway determination in July 2018. The then NSW Department of Planning and Environment issued a Gateway determination in September 2018, which included the following conditions:

1. Technical studies on flora and fauna assessment; onsite wastewater management plan; water quality and stormwater management; and bushfire hazard assessment are to be prepared and included in the planning proposal prior to public exhibition.

2. The explanation of the provisions and maps are to be updated, following the completion of the technical studies, into a revised planning proposal prior to public exhibition.

Consistent with Part 4 of the above Council resolution, this report now presents the findings of the required studies and seeks Council’s direction/confirmation in relation to the number and size of the lots so that the PP can be updated and publicly exhibited.

Subject land

The site location and the subject land are shown in Figures 1 and 2 below.

Figure 1 – Site Location

Figure 2 – Subject land overlaid onto aerial photograph

The PP sought to rezone the subject land from part R5 - Large Lot Residential and part RU2 – Rural Landscape to part R5 and part E2 - Environmental Conservation – see Figure 3 below.

Figure 3 – Existing and proposed land use zoning

(Source: PP035, Gateway request version)

Accompanying subdivision application (SF10637) and proposed layout

The proponent’s original PP application included a conceptual subdivision plan dated 6 November 2019, for which a subdivision application was also submitted at the same time (SF10637).

Subdivision Application Notes:

1. Was submitted during the transitional period for the NSW Biodiversity Act, meaning that the biodiversity impacts may be assessed under the previous legislation (i.e. a ‘7-part test’ rather than applying the new Biodiversity Assessment Methodology and biodiversity offsetting scheme).

2. Has been in abeyance as requested by the proponent on 22 December 2017, pending progression of the PP.

The proponent has subsequently submitted two amendments to their proposed subdivision layout in light of studies undertaken as part of the PP process. The proposed subdivision changes are outlined in Table 1 and shown in Figures 4 to 6 below. The latest layout version is also provided in Attachment 1.

Table 1 – Outline of changes to proponent’s proposed subdivision application/layout

Version /date	# proposed lots	Residential lot size range	Comments
Version 1 6/11/2017	12 residential lots, + 1 conservation/ community lot	5,635 m² to 1.541 ha	Proponent’s original proposed subdivision plan. Corresponds to SF10637 which has been held in abeyance since December 2017.
Version 2 23/5/2019	14 residential lots, + 1 conservation/ community lot	4,047 m² to 8,755 m²	Development footprint reduced to avoid Green and Golden Bell Frog habitat. Plan shows indicative effluent management areas (including reserve areas)
Version 3 13/12/2019	13 residential lots + 1 conservation/ community lot	4,048 m² to 8,755 m²	Largely same footprint as Version 2. Layout amended to accommodate recommendations of the Visual Impact Assessment including a slightly wider setback to Jervis Bay Road to enable more effective vegetation screening.

Figure 4 – Proponent’s original proposed subdivision plan dated 6/11/2017 (Version 1) – showing 12 residential lots. Corresponds to SF10637 which is currently held in abeyance.

Figure 5 – Proponent’s proposed subdivision plan dated 23/5/2019 (Version 2) showing 14 residential lots and indicative effluent management areas.

Figure 6 – Proponent’s proposed subdivision plan dated 13/12/2019 (Version 3) – also provided in Attachment 1

Supporting Studies - Summary of Findings

The key findings of the studies that have now been prepared to support this PP are summarised below. Apart from the Visual Impact Assessment, the studies were commissioned and managed by the proponent, consistent with Council’s Planning Proposal Guidelines.

Flora and Fauna Assessment (Eco Logical Australia, August 2019)

· The proposal has been limited to previously cleared areas to retain intact vegetation, riparian areas and threatened species habitats.

· A 7-part test concluded that the proposed development is unlikely to have a significant impact on those assessed threatened species provided the recommended mitigation measures are implemented.

· Referral under the EPBC Act is not required.

· Management Plan should be prepared for the proposed Lot 1 Community Property to guide appropriate management activities and maintain its natural values.

· Green and Golden Bell Frog management measures include frog exclusion fencing, access, enhancement of frog habitat and connectivity to adjoining forest, pre-clearing surveys, hygiene protocols, monitoring and reporting.

The following map (Figure 7) from the Flora and Fauna Assessment report shows the threatened species habitat.

Figure 7 – Threatened species habitat within the proposed development footprint (Source: Ecological Australia 2019)

Bushfire Assessment (Eco Logical Australia, August 2019)

· Access - a perimeter road is proposed around most of the proposed lots, except for the southern edge of the proposed residential subdivision adjacent to Lot 37 DP 755928, where a fire trail is proposed.

· Construction standard - the minimum required bushfire asset protection zones (APZs) to achieve a maximum Bushfire Attack Level (BAL) of BAL-29 range from 24 m to 50 m – see Figure 8 below.

· Water supply - based on the assumption that the subdivision will not be serviced by town water, each lot will require a static water supply of 10,000 L for firefighting purposes.

· Electricity - where practicable, electrical transmission lines within the subdivision should be underground.

Figure 8 – Minimum APZ and Bushfire Attack Level (Source: Ecological Australia 2019)

Onsite Wastewater Management (Cowman Stoddart, November 2017)

· Assumes that town water will not be extended to the subject land and therefore hydraulic loading of 600 L (i.e. 150 L/bedroom/day) has been assumed for the purpose of calculating the minimum required effluent management area.

· Minimum area for onsite wastewater management = 480 m²

· Minimum reserve area = 470 m²

· Gypsum should be applied to the land application area at a rate of 2 kg per 10 m² and should be mixed in with the topsoil.

· Agricultural lime should be incorporated into the land application area at a rate of 2 kg per 10 m².

Supplementary letter - Onsite Wastewater Management (Cowman Stoddart, dated 19 August 2019)

The supplementary letter clarified that the updated subdivision plan shows the minimum Effluent Management Area and reserve area for a future 4-bedroom house for each lot. The minimum required setbacks to property boundaries and intermittent watercourses have been incorporated in the updated subdivision plan.

Staff Comment: although town water is not currently provided to the subject land, the adjoining property to the north is serviced by town water. Advice from Shoalhaven Water is that town water supply may also be made available to the subject land if the development complies with Council’s Rural Water Supply Policy. However, should town water be extended to the subject land, the calculated minimum effluent management areas will be undersized because households with town water use more water (approx. 20%) than those that rely on rainwater tanks. Thus, it is recommended that Council adopt a policy position that if the PP is ultimately finalised on the basis of a minimum lot size of 4,000 m², that town water not be supplied to the subject land (regardless of whether the land/subdivision complies with Council’s Rural Water Supply Policy). Council has adopted a similar prudent approach in relation to Jerberra Estate at Tomerong to minimise risks associated with onsite effluent management.

Stormwater Assessment (SEEC August 2019)

· A loop road would encompass most of the development and would drain via grassed-line swales to a single bioretention basin. Proposed Lots 2, 3 and 4 in the far south of the site would drain offsite with no treatment.

· The large size of each lot (>4,000 m²) means the effective imperviousness area on each is estimated at 5%. The new road would be 30% effective impervious.

· Modelling shows a neutral or beneficial effect (NorBE) can be met.

· The water quality measures (swales and bioretention basin) would be maintained by the body corporate that would enter into a contract with an appropriately qualified contractor. The bioretention basin would have a defined life and would require replacement (or at least re-generation) every 15-20 years or so. Such work would also be the responsibility of the body corporate.

Visual Impact Assessment (Envisage , August 2019)

· Recommended a minimum 15 m setback between Jervis Bay Road and the internal road to enable a more effective landscape screen to be established between Jervis Bay Road and the dwellings and also to increase the setback between the dwellings and associated structures and Jervis Bay Road.

· The subdivision layout should be revised to enable more of the existing trees within the overall development footprint to be retained.

· Reduce the number of lots – set a minimum lot size of 5,000 m² so that the density of dwellings is lower.

Staff Comments: The proponent’s original subdivision plan incorporated a narrower setback between Jervis Bay Road and the internal road. The revised subdivision plan (Figure 6 and Attachment 1) has incorporated a wider setback (approx. 15 m). The lot layout was also revised from ‘version 2’ (Figure 5) reducing the proposed number of lots by one, to enable more of the existing trees to be retained.

The proponents’ revised subdivision plan is now generally consistent with the key findings of the Visual Impact Assessment, except that six (6) of the lots are smaller than 5,000 m². However, importantly, all but one of the lots adjacent to Jervis Bay Road are 5,000 m² or greater. This is considered acceptable provided the other key recommendations outlined above are also implemented.

Intersection (Turning Warrants) Assessment (Allen Price & Scarratts, February 2020)

· Recommends that a CHR(s)/BAL intersection (right turn and left turn treatments) be provided at the intersection with Jervis Bay Road to adequately address the Turning Warrants in accordance with Austroads Guide to Traffic Management (Part 6) 2019.

Community Engagement

Assuming that Council resolves to proceed, community feedback will now be formally sought when the PP is publicly exhibited.

Policy Implications

As outlined above, it is recommended that if the PP is finalised to allow lots down to 4,000 m² in size, that Council adopt a policy position that town water not be supplied to the subject land to prudently ensure there is sufficient land on each lot to manage household wastewater/effluent.

Financial Implications

Work on this PP is being funded by the Proponent in accordance with Council’s Planning Proposal Guidelines and adopted fees/charges.

Conclusion

The range of supporting studies have now been prepared and finalised to inform the detail of this PP and enable it to proceed to public exhibition. As such it is appropriate that following Council’s consideration and confirmation of the detail in this report that it proceed to exhibition, noting that it is via this exhibition/consultation process any further issues can be identified and addressed.