Agenda of Development & Environment Committee

Minutes of the Development & Environment Committee

Meeting Date: Monday, 20 July 2020

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

Time: 5.00pm

The following members were present:

Clr Joanna Gash - Chairperson

Clr Amanda Findley

Clr John Wells

Clr Patricia White

Clr Nina Digiglio

Clr Annette Alldrick

Clr John Levett

Clr Andrew Guile – (Remotely)

Clr Mitchell Pakes

Clr Greg Watson – (Remotely)

Clr Mark Kitchener

Clr Bob Proudfoot

Mr Stephen Dunshea - Chief Executive Officer

Apologies / Leave of Absence

Nil

Confirmation of the Minutes

RESOLVED (Clr Pakes / Clr Digiglio) MIN20.460

That the Minutes of the Development & Environment Committee held on Tuesday 02 June 2020 be confirmed.

CARRIED

Declarations of Interest

Nil

Call Over of the Business Paper

The following items were called up for debate:

DR20.59, DE20.60, DE20.61, DE20.62, DE20.63, DE20.64, DE20.65, DE20.66, DE20.67, DE20.68, DE20.72, DE20.73, DE20.74, DE20.75, DE20.78

The remaining items were resolved en bloc (Clr Wells / Clr White) at this time. They are marked with an asterisk(*) in these Minutes.

Mayoral Minutes

Nil

Deputations and Presentations

The following Deputations were made available on Council’s Website:

DE20.62 Preliminary Consultation Outcomes - Berry Heritage Investigations

Tegan and Luke Elliot – Against the Recommendation

DE20.66 Post Exhibition Consideration/Finalisation - Draft Chapter G21 Car Parking and Traffic - Shoalhaven DCP 2014 Amendment (DCP2014.41)

Lee Carmichael – PDC Lawyers and Town Planners – Against the Recommendation

Notices of Motion / Questions on Notice

DE20.59 Notice of Motion - Call in DA20/1358 - Wilfords Lane MILTON - Lot 1 DP 1082590

HPERM Ref: D20/215191

Recommendation (Item to be determined under delegated authority)

That Council call in for determination Development Application DA20/1358 - Wilfords Lane Milton - Lot 1 DP 1082590 due to community concern.

Note: This item was withdrawn.

Procedural Motion - Bring Item Forward

RESOLVED (Clr Proudfoot / Clr Levett) MIN20.461

That the matter of item DE20.78 Notice of Motion - Call in DA20/1453 - 3 Moona Street, Huskisson - Lot 104 DP 755928 be brought forward for consideration.

CARRIED

Procedural Motion - Introduction of Items as Matters of Urgency

MOTION (Clr Proudfoot / Clr Levett)

That the following addendum report be introduced as a matter of urgency:

1. DE20.78 Notice of Motion - Call in DA20/1453 - 3 Moona Street, Huskisson - Lot 104 DP 755928

The Matter was submitted with sufficient notice to be considered at this meeting, but was not included in the initial business paper which had been published earlier.

CARRIED

DE20.78 Notice of Motion - Call in DA20/1453 - 3 Moona Street, Huskisson - Lot 104 DP 755928

HPERM Ref: D20/316064

Recommendation (Item to be determined under delegated authority)

That Council call in the Development Application DA20/1453 - 3 Moona Street, Huskisson (Lot 104 DP 755928) due to public interest.

RESOLVED (Clr Levett / Clr Proudfoot) MIN20.462

That Council call in the Development Application DA20/1453 - 3 Moona Street, Huskisson (Lot 104 DP 755928) due to public interest.

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

Against: Nil

CARRIED

Reports

DE20.60 Tomra Recycling Centre - Greenwell Point

HPERM Ref: D20/222076

Recommendation (Item to be determined under delegated authority)

Council note that in relation to the decision by TOMRA Group to remove the Reverse Vending Machine (RVM) at Greenwell Point:

1. Council staff have been advised by the TOMRA Group that the Greenwell Point Bowling Club have now embraced the opportunity to continue as an over the counter collection point and have been operating as such since 8 June 2020.

2. The ability for Greenwell Point residents to embrace recycling has therefore been maintained.

RESOLVED (Clr Pakes / Clr Findley) MIN20.463

Council note that in relation to the decision by TOMRA Group to remove the Reverse Vending Machine (RVM) at Greenwell Point:

2. The ability for Greenwell Point residents to embrace recycling has therefore been maintained.

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

Against: Nil

CARRIED

DE20.61 Road Closure - Unformed Road UPN102284 Separating Lot 28 & 14 DP 755927 - Conjola

HPERM Ref: D20/48445

Recommendation

That Council

1. Rescind MIN17.241 given the advice from the NSW Land Registry Services.

2. Require John McCloghry to create a private Right of Access over Lot 28 DP 755927, shown as blue hatching on Attachment “1” Plan No (D19/441014) Draft Plan No U16850 in favour of Lot 14 DP 755927 for continued legal access.

3. After the Right of Way is created, close the unformed road UPN102284, known as Wollybutt Road, which separates Lots 14 & 28 DP 755927, Conjola, shown in yellow shading on Attachment “1” (D19/441014) Draft Plan No U16850 and sell to the owner of the surrounding properties, John McCloghry for $7,000 plus GST.

4. Give authority to the Chief Executive Officer to affix the Common Seal of the Council of the City of Shoalhaven to any documents required to be sealed and that the Chief Executive Officer be authorised to sign any documents necessary to give effect to the resolution.

5. Note all costs associated with this matter are to be met by John McCloghry.

6. Request National Parks & Wildlife Service to reserve for nil consideration the unformed road UPN115721, that continues through Conjola National Park, shown in red, on Attachment “2”, (D20/192150) for addition to Conjola National Park pursuant to S30C(a) of the National Parks and Wildlife Act 1974.

RECOMMENDATION (Clr White / Clr Findley)

That Council

1. Rescind MIN17.241 given the advice from the NSW Land Registry Services.

5. Note all costs associated with this matter are to be met by John McCloghry.

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

Against: Nil

carried

DE20.62 Preliminary Consultation Outcomes - Berry Heritage Investigations

HPERM Ref: D20/2615

Recommendation (Item to be determined under delegated authority)

That Council:

1. Support an amendment to Schedule 5 of Shoalhaven Local Environmental Plan (LEP) 2014 to list the:

a. Sixteen (16) dwellings identified in Figure 2 in the report as heritage items in Part 1 of the LEP.

b. Queen Street and Showground areas (as shown in Figure 2 in the report) as Heritage Conservation Areas in Part 2 of the LEP.

2. Prepare and submit a Planning Proposal to the NSW Department of Planning, Industry and Environment for Gateway determination and if favourable, proceed to formal public consultation in accordance with the terms of the determination.

3. Advise affected landowners and relevant community groups of this resolution, noting the opportunity for formal consultation on the resulting Planning Proposal later in the process.

MOTION (RESOLVED) (Clr Findley / Clr Digiglio) MIN20.464

That Council defer this item to a Councillor Briefing before the next Development & Environment Committee meeting.

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

Against: Nil

CARRIED

DE20.63 Question on Notice - Lake Conjola - Council Position and Grant Funding Eligibility

HPERM Ref: D20/74986

Recommendation (Item to be determined under delegated authority)

That the report regarding the Question on Notice – Lake Conjola – Council Position and Grant Funding Eligibility be received for information.

MOTION (Clr Findley / Clr Digiglio)

That:

1. The report regarding the Question on Notice – Lake Conjola – Council Position and Grant Funding Eligibility be received for information.

2. It be noted that the Mayor does not have executive powers to open the lake or other ICOLLs.

Clr Pakes raised a Point of Order against Clr Findley with reference to comments appearing on Facebook. The Chairperson ruled that Facebook content is not the basis for a Point of Order.

Clr Watson raised a Point of Order against Clr Findley, asking her to apologise for her comments made about Councillors which brought Councillors into disrepute. The Chairperson did not rule as a Point of Order.

Clr Guile moved dissent against the Chairperson’s ruling.

MOTION OF DISSENT (Clr Guile / Clr Pakes)

On the ruling of the Chairperson with respect the Point of Order against Clr Findley on the basis that it is the wrong ruling and will not receive the support of Council.

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

Against: Clr Gash, Clr Findley, Clr Digiglio, Clr Alldrick, Clr Levett and Stephen Dunshea

CARRIED

The ruling of the Chairperson on the Point of Order was overturned.

MOTION (Clr Findley / Clr Digiglio)

That:

1. The report regarding the Question on Notice – Lake Conjola – Council Position and Grant Funding Eligibility be received for information.

2. It be noted that the Mayor does not have executive powers to open the lake or other ICOLLs.

For: Clr Gash, Clr Findley, Clr Digiglio, Clr Alldrick, Clr Levett and Stephen Dunshea

Against: Clr Wells, Clr White, Clr Guile, Clr Pakes, Clr Watson, Clr Kitchener and Clr Proudfoot

LOST

FORESHADOWED MOTION (RESOLVED) (Clr Guile / Clr Pakes) MIN20.465

That the report regarding the Question on Notice – Lake Conjola – Council Position and Grant Funding Eligibility be received for information.

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

Against: Clr Alldrick

CARRIED

DE20.64 Council Accelerated Assessment Program

HPERM Ref: D20/303149

Recommendation (Item to be determined under delegated authority)

That Council receive this report for information and note that Shoalhaven City Council is one of the councils which has already agreed to participate in the Planning System Accelerated Assessment Program (PSAP).

RESOLVED (Clr Proudfoot / Clr Wells) MIN20.466

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

Against: Nil

CARRIED

DE20.65 Proposed Exhibition Package - Draft Voluntary Planning Agreement Policy and Draft Works in Kind Agreement Policy

HPERM Ref: D20/206383

Recommendation (Item to be determined under delegated authority)

That Council:

1. Endorse the public exhibition of the draft Voluntary Planning Agreement (VPA) and Works in Kind Agreement (WIKA) Policy Package at Attachment 1.

2. Endorse the review of the existing fee structure relating to VPAs and WIKAs and prepare a new fee structure as required.

3. Receive a further report regarding the outcomes of the public exhibition, proposed delegation arrangements for certain VPAs/WIKAs, proposed fee structure and proposed finalisation of the draft Policy Package.

4. Advise relevant stakeholders, including CCBs and industry representatives of this resolution and exhibition arrangements.

RESOLVED (Clr Proudfoot / Clr White) MIN20.467

That Council:

1. Endorse the public exhibition of the draft Voluntary Planning Agreement (VPA) and Works in Kind Agreement (WIKA) Policy Package at Attachment 1.

2. Endorse the review of the existing fee structure relating to VPAs and WIKAs and prepare a new fee structure as required.

4. Advise relevant stakeholders, including CCBs and industry representatives of this resolution and exhibition arrangements.

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

Against: Nil

CARRIED

DE20.66 Post Exhibition Consideration/Finalisation - Draft Chapter G21 Car Parking and Traffic - Shoalhaven DCP 2014 Amendment (DCP2014.41)

HPERM Ref: D20/119929

Recommendation (Item to be determined under delegated authority)

That Council:

1. Adopt the Housekeeping Amendment (DCP2014.41) of Shoalhaven Development Control Plan 2014: Chapter G21: Car Parking and Traffic and the associated Dictionary housekeeping as exhibited, with the changes discussed in Attachment 1 and shown in Attachment 2 to the report.

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

3. Rescind the Council Policy: ‘Car Parking Waiver – Change of Use Development in Traditional Retail Centres’ on the date the DCP Amendment is made effective, as the content will be included in the new Chapter G21.

4. Consider opportunities to further refine relevant duplicated standards in Chapter G21 as part of a future amendment.

5. Advise key stakeholders of this decision and when the Amendment will be made effective, including relevant industry representatives and those who made a submission.

RESOLVED (Clr Pakes / Clr Wells) MIN20.468

That this item be deferred pending a further Councillor Briefing.

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

Against: Nil

CARRIED

DE20.67 Boarding House Amendment (CP2019.5) - Shoalhaven Contributions Plan 2019 - Post Exhibition Consideration and Proposed Finalisation

HPERM Ref: D20/248265

Recommendation (Item to be determined under delegated authority)

That Council:

1. Adopt the Boarding House Amendment (CP2019.5) to Shoalhaven Contributions Plan 2019 as exhibited and proceed to finalisation.

2. Advise those who made a submission and relevant industry representatives of this decision and when the amendment to Shoalhaven Contributions Plan 2019 will be made effective.

RESOLVED (Clr Proudfoot / Clr Pakes) MIN20.469

That Council:

1. Adopt the Boarding House Amendment (CP2019.5) to Shoalhaven Contributions Plan 2019 as exhibited and proceed to finalisation.

2. Advise those who made a submission and relevant industry representatives of this decision and when the amendment to Shoalhaven Contributions Plan 2019 will be made effective.

3. Require a review of the Amendment at 12 months.

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

Against: Nil

CARRIED

Note: Clr Digiglio left the meeting at 6.45pm

DE20.68 Tomerong Quarry and Rehabilitation Plan Update - Lot 4 DP 775296 - 146 Parnell Road Tomerong

HPERM Ref: D20/177995

Recommendation (Item to be determined under delegated authority)

That Council receive this compliance update report on Tomerong Quarry for information, with a further report to be provided to Council following the expiry of the development consent on 6 November 2020.

RESOLVED (Clr Gash / Clr White) MIN20.470

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

Against: Nil

CARRIED

The following items marked with an * were resolved ‘en bloc’.

DE20.69 SF10649 – 196 Braidwood Road, Nowra Hill – Lot 1 DP 1143632

HPERM Ref: D20/219665

RESOLVED* (Clr Wells / Clr White) MIN20.471

That Development Application SF10649 subdivision of existing 3 lots to create 2 Torrens Title lots at Lot 1 DP 1143632, and 145 & 146 DP 755952, 196 Braidwood Road, Nowra Hill be determined by way of refusal for the reasons set out in the Notice of Determination (Attachment 1) to this report.

CARRIED

DE20.70 RD20/1001 – Westbrook Road, Nowra – Lot 340 DP 755952

HPERM Ref: D20/233591

RESOLVED* (Clr Wells / Clr White) MIN20.472

That Council endorse the determination by approval and associated conditions, in regard to DA18/2387 for the construction of a shed for use as a depot at Lot 340 DP 755952, Westbrook Road, Nowra, as contained in attachment 3 to this report.

CARRIED

DE20.71 Proposed Planning Proposal - Clause 4.1H Amendment - Shoalhaven Local Environmental Plan 2014

HPERM Ref: D20/234480

RESOLVED* (Clr Wells / Clr White) MIN20.473

That Council:

1. Endorse the preparation of a draft Planning Proposal to amend Clause 4.1H of Shoalhaven LEP 2014 as detailed in this report.

2. Forward the Planning Proposal to the NSW Department of Planning, Industry and Environment for an initial Gateway determination.

3. Subject to a favourable Gateway determination, proceed to publicly exhibit the Planning Proposal for community comment in accordance with the determination.

4. Receive a subsequent report on the outcome of the public exhibition and to enable the Planning Proposal to be finalised.

5. Prepare a draft amendment to Shoalhaven DCP 2014 Chapter NB3: Moss Vale Road South URA to update the relevant sections in accordance with the amended Clause 4.1H provisions and exhibit the draft amendment with the Planning Proposal.

6. Advise all affected and adjoining landowners, the Cambewarra Residents and Ratepayers Association and development industry representatives of this resolution.

CARRIED

Note: Clr Digiglio returned to the meeting at 6.47pm

DE20.72 Development Application No. SF10744 – 271 Lemon Tree Creek Rd Termeil – Lot 22 DP 1238872

HPERM Ref: D20/248847

Recommendation (Item to be determined under delegated authority)

That Development Application No. SF10744 for a Two (2) Lot Subdivision over Lot 22 DP 1238872, 271 Lemon Tree Creek Rd Termeil, be determined by way of refusal for the reasons set out in the Notice of Determination (Attachment 1) to this report.

RESOLVED (Clr Proudfoot / Clr White) MIN20.474

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

Against: Nil

CARRIED

DE20.73 Development Application – 300 Kings Point Drive Ulladulla – Lot 18 DP 805460

HPERM Ref: D20/269747

Recommendation (Item to be determined under delegated authority)

That Council determine Development Application by way of refusal for the following reasons:

1. The proposed development is on a classified road and the TfNSW (Transport for NSW) (former Roads & Maritime Services - RMS) has objected to the proposal due to non-compliance with the Transport Corridor Outdoor Advertising and Safety Guidelines 2017 and concerns in regard to the reduction of safety for motorists using both the Princes Highway and Kings Point Drive.

2. Council cannot be satisfied that the proposed signage facing the highway will not pose an unacceptable risk to the safety of motorists using the Princes Highway and Kings Point Drive.

3. The signs are not in the public interest.

RESOLVED (Clr Findley / Clr Wells) MIN20.475

That Council determine Development Application by way of refusal for the following reasons:

2. Council cannot be satisfied that the proposed signage facing the highway will not pose an unacceptable risk to the safety of motorists using the Princes Highway and Kings Point Drive.

3. The signs are not in the public interest.

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

Against: Nil

CARRIED

DE20.74 Development Application – 127 Princes Hwy Ulladulla - Lot 6 DP 535004

HPERM Ref: D20/270030

Recommendation (Item to be determined under delegated authority)

That Council determine Development Application by way of refusal for an incomplete application as the applicant failed to provide additional information requested in accordance with Clause 54(6) of EPA Regulations 2000.

RESOLVED (Clr Findley / Clr Digiglio) MIN20.476

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

Against: Nil

CARRIED

DE20.75 Zero Litter to Ocean - Policy Paper

HPERM Ref: D20/205890

Recommendation (Item to be determined under delegated authority)

That Council provide “in principle” support to the Zero Litter to Ocean (ZL2O) target and the proposed funding request to Federal and State governments.

RESOLVED (Clr Findley / Clr Wells) MIN20.477

That Council provide “in principle” support to the Zero Litter to Ocean (ZL2O) target and the proposed funding request to Federal and State governments.

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

Against: Nil

CARRIED

DE20.76 Nowra Veteran Golfers Bushcare Group Action Plan

HPERM Ref: D20/169201

RESOLVED* (Clr Wells / Clr White) MIN20.478

That Council adopt the Nowra Veteran Golfers Bushcare Group Action Plan.

CARRIED

DE20.77 Adoption of Terms of Reference for Coast and Estuary Committee (North / Central / Southern) and Floodplain Risk Management Committee (North / Central / Southern)

HPERM Ref: D20/257494

RESOLVED* (Clr Wells / Clr White) MIN20.479

That Council adopt:

1. Terms of Reference for the North / Central / Southern Coastal Management Advisory Committees (Attachment 1); and

2. Terms of Reference for the North / Central / Southern Floodplain Risk Management Committees (attached).

CARRIED

Addendum Reports

DE20.78 Notice of Motion - Call In DA20/1453 - 3 Moona Street, Huskisson - Lot 104 DP 755928

HPERM Ref: D20/316064

Item dealt with earlier in the meeting see MIN20.462

There being no further business, the meeting concluded, the time being 6.59pm.

Clr Gash

CHAIRPERSON

Development & Environment Committee – Tuesday 04 August 2020

Page 0

DE20.80 Shoalhaven District Memorial Hospital - Continued Medical Precinct Development - Support Confirmation

HPERM Ref: D20/322037

Section: Strategic Planning

Approver: Phil Costello, Director Planning Environment & Development Group

Attachments: 1. Letter - NSW Health Infrastructure - Shoalhaven Hospital Redevelopment ⇩

Reason for Report

Detail a request (Attachment 1) for support received from NSW Health Infrastructure regarding the ongoing development of a medical precinct on the current Shoalhaven District Memorial Hospital site and adjacent lands (Nowra Park).

Recommendation (Item to be determined under delegated authority)

That Council reaffirm its previous in-principle support for the establishment and staged development of a master planned medical precinct centred on the current Shoalhaven District Memorial Hospital site and adjacent land, including, where required, the further acquisition and development of Nowra Park.

Options

1. Support the request

Implications: This would be consistent with previous Council decisions in this regard. It would maintain Council’s support for the ongoing future development of a medical precinct on the current hospital site and adjacent land (Nowra Park)

2. Defer a decision to enable community comment to be sought

Implications: This would delay a decision, but would enable community (adjoining residents etc.) feedback to be sought on the request before it is considered by Council.

3. Not support the request

Implications: This could take a number of forms, including requesting the NSW Government to formally consider a greenfield location for a new hospital. It is however noted that Council support is not necessarily required, but would be preferred by NSW Health Infrastructure before they move forward.

Background

The following information provides background and commentary regarding the request (Attachment 1) that has been received from NSW Health Infrastructure.

NSW Government Planning

Council is not responsible for health planning - but assists and collaborates with the NSW Government (the responsible level of government) as required in this regard.

The following NSW Government plans/decisions are relevant to this matter:

Illawarra-Shoalhaven Local Health District’s Health Care Services Plan 2012-2022 – sets out how local health care (medical) services will be delivered in the region. The plan outlines a ‘hub and spoke’ service delivery model that will be delivered based around main population centres, including Nowra. It is noted that the Shoalhaven District Memorial Hospital will continue its role as the acute hub in Shoalhaven.

It is understood that the Illawarra-Shoalhaven Local Health District (LHD) is currently developing a new Health Care Services Plan, which will maintain this strategic direction for the role of the current hospital, and further describe its planned redevelopment. The existing Health Care Services Plan is available on the internet at the following link:

http://www.islhd.health.nsw.gov.au/Plans/ISLHDHCSPFinalVersionOctober2012.pdf

Illawarra-Shoalhaven Regional Plan (2015) - identifies the ‘Nowra Centre’ as a ‘major regional centre’. The Plan acknowledges that Nowra is the business, retail and services hub of the Shoalhaven. Action 1.3.1 in the Plan is as follows:

Renew and revitalise Nowra Centre by coordinating State agency input into precinct planning and reviewing capacity for expanded health related uses.

The Plan also notes that the NSW Government will: Identify Shoalhaven District Memorial Hospital’s capacity for growth and consider opportunities to accommodate future expansion.

The following is an extract from the Regional Plan mapping related to the ‘Nowra Centre’.

Regional Plan Extract – Figure 7: Nowra Centre (2015)

The current Illawarra-Shoalhaven Regional Plan is available on the internet at:

https://www.planning.nsw.gov.au/Plans-for-your-area/Regional-Plans/Illawarra-Shoalhaven

The Regional Plan is currently under review and it is understood that the new draft plan will be released for comment in late 2020/early 2021.

Hospital Masterplan and Budget Commitments

During 2018 the NSW Government released an initial masterplan for the hospital and in November 2018 made a commitment of $434 million to the redevelopment of the hospital. Funding was also announced on the 2018-19 budget to commence the more detailed planning for several health projects including Shoalhaven hospital.

The masterplan drawing that was released during 2018 is provided below:

Shoalhaven District Memorial Hospital – Long Term Zonal Masterplan (2018)

The released masterplan for the hospital builds on the significant investment made to date in health infrastructure on the current site and its surrounds, including the Shoalhaven Cancer Centre, the GP Super Clinic and the multi-deck car park.

It is understood that NSW Health are now advancing the planning for the staged development of a medical precinct centred on the current hospital and involving adjacent land. As such they have written to Council (Attachment 1) specifically seeking early ‘in-principle’ support for the acquisition and development of Nowra Park where required for future healthcare facilities.

Nowra Park

The area that is under consideration as part of this request is Lot 104 DP1165533, which is the residue of Nowra Park. Lot 104 is shown on the following aerial photograph:

Lot 104 DP 1165533 – Nowra Park

Areas of the original Nowra Park were previously acquired/transferred in 2002, 2003 and also 2012 and are now occupied by the hospital car park, pre-school, cancer centre and GP superclinic.

The creation of the cancer centre/GP super clinic in 2012 involved an internal NSW Government acquisition transaction. The lot was also rezoned in 2011 by the NSW Government to Special Uses 5(a)(Health Services Facility) under the previous Shoalhaven LEP1985 (now SP2 Infrastructure – Health Services Facility under Shoalhaven LEP2014).

The remaining Lot 104 has an area of 2.6 hectares and is a Crown ‘public recreation’ reserve (Nowra Park) for which Council is the trustee. The lot is currently zoned RE1 Public Recreation under Shoalhaven LEP2014.

It is envisaged that NSW Health Infrastructure will follow a similar process in regard to the transfer and rezoning of Lot 104.

Previous Council Resolutions

The Council has previously passed resolutions regarding the hospital, its expansion and the possible establishment of a medical precinct in the location of the current hospital and the adjacent Nowra Park.

These previous relevant resolutions include:

July 2012 Resolution:

Council supports in principle its proposal to develop an at grade car park of up to 100 spaces for an interim period on portion of the Nowra Park, as a low-impact solution to the current and forecast increase in short-term car parking demand in the Hospital precinct.

Note: this followed a letter from the LHD dated 20 June 2010 regarding a possible ‘at grade’ car park for 100 car spaces on the adjoining land. The letter mentioned that the LHD Board had agreed to support the establishment of a Shoalhaven Health Precinct on land surrounding the hospital and that negotiations to acquire the land for the future use were continuing.

November 2011 Resolution:

a) Council reaffirms its support for the establishment and staged development of a master planned medical precinct centred on the current Shoalhaven hospital site and adjacent lands,

b) Council supports the Illawarra Shoalhaven Area Health Board, Illawarra Shoalhaven Medicare Local, University of Wollongong and local Members of Parliament in the announcement of a master plan approach and vision and appropriate community engagement steps,

c) Council takes a participative role in the further definition and staged implementation of a master plan to create a “Centre of Health Delivery and Education Excellence” for the Shoalhaven,

d) Parts a), b) and c) remain confidential in accordance with Section 10(A)(2)(d)(i) of the Local Government Act 1993, until the public announcement of the siting of a proposed Super Clinic in Nowra by State Government representatives.

December 2010 Resolution:

a) Council take all steps necessary to pursue the Nowra Park (Hospital site) location as the preferred option for the co-location of any super clinic and associated health facilities and negotiate with the NSW Government Land and Property Management Authority accordingly;

b) Council treat other sites as secondary for the purpose of further reporting;

c) General Manager report on the establishment of a medical precinct centred on the current hospital site and adjacent lands and other opportunities for co-location of services that would enhance the economic development of the Shoalhaven.

These resolutions all effectively indicated a level of support from the Council for the retention and expansion of the hospital/medical uses on the current site and also in the longer term a future possible utilisation of the adjacent Nowra Park or at least parts of it.

Community Suggestions – New Green Field Hospital

Recent community representations have suggested that a new green field location is required for the hospital to enable it to better serve the City as a whole into the future, considering growth and other factors (travel times etc). It has been suggested that a green field location in the centre of the City would be more appropriate.

Nowra-Bomaderry is recognised as the City’s major urban centre; as such higher-level services will continue to be focussed there, including health services. Council will continue to assist the NSW Government deliver relevant outcomes in the Regional Plan. It is also acknowledged that given the level of investment that currently exists on site at the current hospital it is unlikely that a new greenfield hospital campus would be developed.

As highlighted above, existing NSW Health and regional planning is committed to the continued development of the hospital at its current site in Nowra. This is recognised and it is envisaged that Council will assist the NSW Government as required in this regard.

The hospital redevelopment is in the early stages of planning and it is also understood that a business case will examine in detail the options for the proposed redevelopment as part of this early planning.

Through continued dialogue with the NSW Government on the project, Council can help ensure that community impacts are recognised, considered and accommodated.

Conclusion

This report provides an opportunity for the Council to confirm (or otherwise) its support for the ongoing future development of a medical precinct on the current hospital site and adjacent land (Nowra Park).

Community Engagement

No community engagement has been undertaken in regard to this report. One of the options available to Council, prior to deciding in this regard, is to seek initial community feedback.

There will also be a significant community consultation and engagement process throughout the planning of the hospital redevelopment. This will be undertaken by the NSW Government.

Policy Implications

Relevant policy implications are discussed within the body of the report.

Financial Implications

No current financial implications for Council. However, these could emerge as this matter progresses and if needed these can be separately reported to Council.

Development & Environment Committee – Tuesday 04 August 2020

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DE20.81 Response to Question on Notice - DA20/1453, Proposed Mixed Use Development at 3 Moona St (Lot 104, DP 755928), Huskisson

HPERM Ref: D20/330978

Section: Development Services

Approver: Phil Costello, Director Planning Environment & Development Group

Reason for Report

This report is in response to Questions on Notice in the Ordinary Meeting Business Paper dated 28 July 2020.

Recommendation (Item to be determined under delegated authority)

That the Response to Question on Notice - DA20/1453, Proposed Mixed Use Development at 3 Moona St (Lot 104, DP 755928), Huskisson report be received for information.

Options

1. Receive the report for information.

Implications: Nil.

2. Adopt an alternative recommendation.

Implications: This will depend on the recommendation.

Background

Council is in receipt of a development application, lodged on 14 May 2020, for a mixed-use development at 3 Moona St, Huskisson.

· The applicant for the development is PDC Planners.

· The owner is Kingfisher Projects Pty Ltd.

· The assessment of the application is incomplete.

The Proposal

The proposal, as it currently stands, is for a 40-room motel, food and drink premises, commercial space (day spa), Guest gym, pool and apartment building containing 39 residential units. The motel consists of 34 standard rooms and 6 suites; two of the standard rooms will be accessible. The proposal includes on-site parking and the construction of an access within the Moona Street road reserve with some parking also in the road reserve.

Council has written to the applicant requesting additional information. A formal response is yet to be submitted.

Figure 1 – Location

Community Engagement

The proposal has been uploaded onto Council’s tracking website for public viewing and was formally notified between 3 June 2020 and 3 July 2020. Numerous submissions have been made and continue to be submitted. Council will continue to accept submissions whilst the application is under assessment.

The application has been referred to a number of technical officers within Council and externally to:

· Department of Primary Industries – Jervis Bay Marine Park

· Department of Planning, Industry and Environment – Crown Lands

· NSW Rural Fire Service

· Water NSW

· Office of Environment & Heritage (now Energy, Environment and Science)

· Jerrinja Local Aboriginal Land Council

Response to Questions on Notice

Question 1

Among the documents on DA tracking is a report by QPC & C Quantity Surveyors giving costings on the building of the complex proposed for the site. These figures are complicated but appear to take the proposed development very close to the threshold of State Significant Development. Does Council accept these figures on face value or are they peer reviewed…. and what is the consequence if costs blow out and take the project over the threshold?

Response

The Department’s Circular PS13-002 explains that clause 246B of the Environmental Planning and Assessment Regulation 2000 sets out how DA fees are calculated. The consent authority must determine the fee having regard to the genuine estimate of the cost provided by the applicant on the DA form.

· It is recommended that for development up to $100,000 the cost is estimated by the applicant or a suitable qualified person with an explanation of the methodology.

· For development between $100,000 and $3 million, a suitable qualified person should prepare the cost estimate with an explanation of the methodology.

· For development more than $3 million a detailed cost report prepared by a registered quantity surveyor verifying the cost of the development should be submitted.

Having regard to the PS Circular document referred to above, the consent authority must accept the estimate of the cost submitted unless it is satisfied that the estimate is not genuine or accurate. It is an offence if a person makes any statement that is false or misleading.

If the threshold is reached to trigger the development being classified as regional development, it is notified and assessed by Council. The Regional Planning Panel determines these applications. Regional development is defined in Schedule 7 of the State Environmental Planning Policy (SEPP) (State and Regional Development) 2011 and includes development with a capital investment value (CIV) over $30 million.

Capital investment value of a development or project includes all costs necessary to establish and operate the project, including the design and construction of buildings, structures, associated infrastructure and fixed or mobile plant and equipment, other than the following costs—

(a) amounts payable, or the cost of land dedicated or any other benefit provided, under a condition imposed under Division 7.1 or 7.2 of the Act or a planning agreement under that Division,

(b) costs relating to any part of the development or project that is the subject of a separate development consent or project approval,

(c) land costs (including any costs of marketing and selling land),

(d) GST (within the meaning of A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth).

It is noted that the cost of the development has been estimated to be $32,038,629 however the GST is $2,912,603 which is subtracted from the overall cost figure noting the definition (See (d) above).

Note: the fee for a DA is calculated differently to the CIV value of a DA.

The QS report advises that in accordance with clause 255 of the Environmental Planning and Assessment Regulation 2000 the development cost includes goods and service tax, builders margin and all associated preliminaries and labour but excludes any project contingency. (4.1 of the report).

255 How is a fee based on estimated cost determined?(cf clause 102 of EP&A Regulation 1994)

(1) In determining the fee for development involving the erection of a building, the consent authority must make its determination by reference to a genuine estimate of—

(a) the costs associated with the construction of the building, and

(b) the costs associated with the preparation of the building for the purpose for which it is to be used (such as the costs of installing plant, fittings, fixtures and equipment).

(1A) In determining the fee for development involving the carrying out of a work, the consent authority must make its determination by reference to a genuine estimate of the construction costs of the work.

(1B) In determining the fee for development involving the demolition of a building or work, the consent authority must make its determination by reference to a genuine estimate of the costs of demolition.

(2) The estimate must, unless the consent authority is satisfied that the estimated cost indicated in the development application is neither genuine nor accurate, be the estimate so indicated.

In accordance with clause 25J of the Environmental Planning and Assessment Regulation 2000 https://www.legislation.nsw.gov.au/#/view/regulation/2000/557/part4/div1b/sec25j, the proposed cost of carrying out the development is to be determined by addition up all the costs and expenses that have been or are to be included by the applicant tin carrying out the development. (This clause of the Regulation relates to the imposition of consent conditions for fixed development consent levies.)

Figure 2 – Extract from Applicant’s Report, Page 3 under 4.2

QPC&C Quantity Surveyors and Project Managers https://www.capital-qpc.com.au/ prepared a Registered Quantity Surveyors Cost Report. Given their accreditation, Council accepts their estimate which is based on the plans submitted with the application.

In the event that the development is assessed and ultimately approved (if favourably assessed) and if the value post approval or during construction is found to exceed the estimate, there is no recourse. This would not render an approval invalid. An approval can only be rendered invalid by the Land and Environment Court.

Question 2

Is a development elevated to State Significance if the site is in an environmentally sensitive location and who makes that decision? The letter from DPI Fisheries in the submissions says that; “the DA, including the Statement of Environmental Effects and various associated reports, fails to note that the site is within 100 metres of Jervis Bay Marine Park, a “nearby sensitive environment” and that stormwater from the site flows into an area of the Marine Park that is zoned “habitat protection”.

Response

The proposal does not meet the criteria for State significant based on the information currently provided.

The State Environmental Planning Policy (State and Regional Development) 2011 (SEPP) defines environmental sensitive area of State significant as:

Environmentally sensitive area of State significance means—

(a) coastal waters of the State, or

(b) land identified as “coastal wetlands” or “littoral rainforest” on the Coastal Wetlands and Littoral Rainforests Area Map (within the meaning of State Environmental Planning Policy (Coastal Management) 2018), or

(c) land reserved as an aquatic reserve under the Fisheries Management Act 1994 or as a marine park under the Marine Parks Act 1997, or

(d) a declared Ramsar wetland within the meaning of the Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth, or

(e) a declared World Heritage property within the meaning of the Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth, or

(f) land identified in an environmental planning instrument as being of high Aboriginal cultural significance or high biodiversity significance, or

(g) land reserved as a state conservation area under the National Parks and Wildlife Act 1974, or

(h) land, places, buildings or structures listed on the State Heritage Register under the Heritage Act 1977, or

(i) land reserved or dedicated under the Crown Land Management Act 2016 for the preservation of flora, fauna, geological formations or for other environmental protection purposes, or

(j) land identified as being critical habitat under the Threatened Species Conservation Act 1995 or Part 7A of the Fisheries Management Act 1994.

If a development is listed in schedule 1 of the SEPP (this schedule lists the types of development) which can also be in ‘environmentally sensitive areas’, a development may be potentially classed as State significance.

Development for tourism related purposes but not including any commercial premises, residential accommodation and services apartments whether separate of ancillary with a capital investment value of more than $100 million or $10 million in an environmentally sensitive area of State significance or a sensitive coastal location would potentially be State development. Having regard to the list above, the site does not fall within the criteria.

The decision or assessment path is usually determined prior to lodging an application having regard to the type of development, information available and planning framework. Sometimes this is done in consultation with the consent authority, given that various specialist reports can be required etc. Having regard to the above criteria the proposal currently fits within local integrated development category. It is possible however that an assessment of a development can identify issues which may trigger an additional assessment or alternative assessment path.

The Minister can also declare a development to be State significant. However, the Minister must seek advice from the Independent Planning Commission.

From the Department’s website:

Under the Environmental Planning & Assessment Act 1979, development can become State significant development (SSD) in two ways.

First, a State Environmental Planning Policy may declare any development, or class or description of development, to be SSD.

Most State significant development is identified in the State & Regional Development SEPP, and includes:

· development from certain industries (mines, factories, power stations, schools, hospitals), generally due their size, economic value or potential impacts; and

· development on sites with strategic planning significance (Barangaroo, Darling Harbour, Sydney Opera House, Sydney Olympic Park).

Other SEPPs (such as the Three Ports SEPP) also identify SSD.

Second, the Minister for Planning may declare specified development on specified land to be SSD by order published in the Government Gazette. However, prior to making such an order the Minister must first obtain advice from the Independent Planning Commission about the State or regional planning significance of the development and make this advice publicly available.

There is a policy and guideline for making these Ministerial orders.

Source:

https://www.planningportal.nsw.gov.au/major-projects/assessment/state-significant-development/ssd-projects

https://www.planningportal.nsw.gov.au/major-projects/assessment/state-significant-development

Question 3

Fisheries have indicated thirteen conditions of development to protect the Marine Park. Who will monitor compliance with these conditions and will the cost of doing so be carried by the Shoalhaven ratepayers?

Response

During construction, concerns are appropriately directed to the Principal Certifier (PC) in the first instance.

The Council has a Compliance Team which is charged with the responsibility of investigating alleged non-compliance with consent conditions, amongst a range of other matters. If any alleged non-compliance occurs, investigation would be carried out by the appropriate regulatory authority, which may be Council or a State agency depending on the legislation involved.

Question 4

In recent years, the volume of sand in Moona Moona Creek, downstream of the road and footbridge, has increased significantly and reduced the connectivity between the Creek and Jervis Bay. Will Council in its assessment of the DA be considering the impact of this change in hydrology on potential flood levels at the site and the manner in which the developer proposes to manage water quality and prevent polluted stormwater discharging into a system that no longer flushes as it used to?

Response

Council will assess the environmental impacts of the development having regard to a range of issues. The basic criteria is that post development conditions do not increase impact over pre development conditions.

Question 5

One submission questioned the proponents plan to manage the acid sulphate soils on the site which require “very high level” and “complex” treatment. Can the effectiveness of the plan be assessed when the construction methodology of the building is yet unknown?

Response

Clause 7.1(3) of the Shoalhaven Local Environmental Plan 2014 (SLEP 2014) requires that an acid sulphate soils management plan be prepared for the proposed works in accordance with the Acid Sulphate Soils Manual.

The submitted ASS Report (D20/15273) would appear to satisfy this subclause. However, Water NSW will be considering the dewatering component of the development. Council’s Environment Team will also review the report to ensure its adequacy.

Question 6

If a particular number of unique public objections are received against a development will its assessment be taken out of the hands of Council to a higher authority such as the Independent Planning Commission?

Response

No. It is not uncommon for development applications to attract significant public interest.

The Independent Planning Commission (IPC) is the consent authority for State significant developments (SSD), where there are particular circumstances, such as the number of objections, a reportable political donation disclosure and/or the Council has made an objection to the SSD application and not rescinded the objection following exhibition.

This development is not SSD.

https://www.ipcn.nsw.gov.au/about-us

Question 7

Are bonds required from developers as surety against failure to comply with consent conditions and lastly, is the CEO aware of any reportable political donations by parties associated with this development?

Response

Bonds or financial securities are not sought for potential non-compliances. In principle, the only circumstance in which a Council may impose a bond are those identified s4.17(6) of the Environmental Planning and Assessment Act 1979 (EPA Act 1979).

Conditions and other arrangements concerning security

A development consent may be granted subject to a condition, or a consent authority may enter into an agreement with an applicant, that the applicant must provide security for the payment of the cost of any one or more of the following—

(a) making good any damage caused to any property of the consent authority (or any property of the Planning Ministerial Corporation) as a consequence of the doing of anything to which the consent relates,

(b) completing any public work (such as road work, kerbing and guttering, footway construction, stormwater drainage and environmental controls) required in connection with the consent,

(c) remedying any defects in any such public work that arise within 6 months after the work is completed,

(d) in relation to coastal protection works (within the meaning of the Coastal Management Act 2016), either or both of the following—

(i) the maintenance of the works,

(ii) the restoration of a beach, or land adjacent to the beach, if any increased erosion of the beach or adjacent land is caused by the presence of the works.

Where there are potential breaches, there are separate provisions in the EPA Act 1979 and other legislation (eg the Protection of the Environment and Operations Act 1979) to deal with such circumstances. These could include fines or legal proceedings.

With regard to any reportable donations, there have been no declarations. The Development Application form, section 18 requires a declaration to be made. The applicants and owners have advised there have been no donations or gifts. The DA form is viewable online.

The NSW Political Donations register is here: https://www.elections.nsw.gov.au/Funding-and-disclosure/Disclosures/View-disclosures .

Development & Environment Committee – Tuesday 04 August 2020

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DE20.82 Development Application No. SF10686 – Red Gum Dr Ulladulla – Lot 600 DP 1249606 & Lot 2 DP 1076005

DA. No: SF10686/4

HPERM Ref: D20/248826

Section: Development Services

Approver: Phil Costello, Director Planning Environment & Development Group

Attachments: 1. Determination - Refusal - Red Gum Dr Ulladulla - Lot 600 DP 1249606 and Lot 2 DP 1076005 ⇩

2. Planning Report – S4.15 Assessment Red Gum Dr, ULLADULLA - Lot 500 DP 1235307 (under separate cover) ⇨

3. Plan - Amended Plan of Subdivision - Red Gum Drive Ulladulla - Lot 500 DP 1235307 ⇩

Description of Development: Eight (8) Lot Residential Subdivision, Public Reserve and Vegetation Clearing

Owner: Hazcorp Pty Ltd

Applicant: Rygate & West Ulladulla

Notification Dates: 27 November 2018 to 12 December 2018

No. of Submissions: Nil

Purpose / Reason for consideration by Council

Council resolved (7 April 2020) that staff are not to refuse applications, instead the refusal of a development application must only be by Council / Committee resolution (MIN20.240).

The Development Application (SF10686) is recommended for refusal.

Recommendation (Item to be determined under delegated authority)

That Development Application No. SF10686 for an Eight (8) Lot Residential Subdivision plus Public Reserve and Vegetation Clearing over Lot 600 DP 1249606 & Lot 2 DP 1076005, Red Gum Dr Ulladulla, be determined by way of refusal for the reasons set out in the Notice of Determination (Attachment 1) to this report.

Options

1. Refuse the development application (DA) in accordance with the recommendation.

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

2. Approve the application.

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

3. Alternative recommendation.

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

Location Map

Figure 1 – Location Map

Background

Subdivision of Lot 600 DP 1249606

The subdivision plan prepared by Rygate and West dated 15 November 2018 (Attachment 3) proposes to subdivide Lot 600 DP 1249606 into the following lots as part of Stage 10G of the residential subdivision:

· Proposed Lot 901 – Total area of 1,742m² (building envelope marked in south-eastern front corner and 20m asset protection zone to bushfire prone vegetation).

· Proposed Lot 902 – Total area of 809m².

· Proposed Lot 903 – Total area of 809m².

· Proposed Lot 904 – Total area of 809m².

· Proposed Lot 905 – Total area of 809m².

· Proposed Lot 906 – Total area of 809m².

· Proposed Lot 907 – Total area of 809m².

· Proposed Lot 908 – Total area of 1,005m².

· Proposed Public Reserve – Located immediately north of Proposed Lot 901 and adjacent to an existing public reserve created as part of Stage 10C. The Reserve would incorporate the existing Category 2 water course and adjacent riparian vegetation.

Vegetation Clearing on Lot 600 DP 1249606

The following vegetation would be removed from Lot 600 DP 1249606 to facilitate the proposed subdivision:

· Removal of vegetation totalling 255m² within Proposed Lot 901 to facilitate an asset protection zone.

· Removal of regrowth vegetation totalling 1445m² within Proposed Lots 907 and 908.

Maintenance of Asset Protection Zone on Lot 2 DP 1076005

The Bushfire Hazard Assessment prepared by Bushfire Building Solutions (Ref. BAR 10050/18 dated 29 May 2019) in support of the application provides the following recommendations regarding the maintenance of asset protection zones for the development:

1. Each property shall be maintained in perpetuity as an inner protection area in accordance with the requirements detailed in Section 3.3.

2. No habitable building over Lot 901 shall be erected within 25 metres of the northern boundary.

3. APZ over adjacent land will be the responsibility of Hazcorp as the licence holder of the land until such time that the NSW Department of Roads and Maritime Services commences construction of the Milton-Ulladulla bypass.

The owner (Hazcorp Pty Ltd) presently has a licence with Transport for NSW (TfNSW) permitting maintenance of a strip of existing cleared land on the Bypass Corridor land (Lot 2 DP 1076005) prior to the formal construction of the Bypass.

Reconstruction of Catch/Swale Drain on Lot 2 DP 1076005

An existing catch/swale drain, presently in a state of disrepair, is partially located on the subdivision lot and partially on the bypass corridor land.

To facilitate the diversion of upstream runoff away from the proposed lots, it is required to be reconstructed as part of the proposed works with Council’s Subdivision Engineer clarifying:

“The catch drain is currently in the wrong location and is in a state of disrepair with scouring and erosion having occurred, and therefore will require reconstruction within the subject lots as part of this application.

Prior to the approval of the application it is suggested that a revised subdivision plan is submitted showing the easement for drainage, or an alternative treatment suggested by the applicant.”

The applicant subsequently advised that the drain would be reconstructed entirely within the bypass corridor land, and such works would form part of the proposal. TfNSW has agreed to the works on its land on the basis modified plans depicting the reconstructed swale drain and drainage calculations were provided to Council. Further discussion on this matter is provided within the Report below.

Subject Land

The development site comprises Lot 600 DP 1249606 (proposed subdivision site) & Lot 2 DP 1076005 (TfNSW Bypass corridor site) at Red Gum Dr Ulladulla. Refer to Figure 1.

Site & Context

The development site:

· Partly includes land upon which the subdivision is proposed (Lot 600) and partially includes the neighbouring bypass corridor (Lot 2).

· The subdivision site has an area of 9,497m² and is presently vacant of development.

· Is residue land following the registration of Stage 10E of the residential subdivision estate.

· Is accessed by a legal road frontage to Brushbox Drive to the east of the property.

· Is zoned R1 General Residential in accordance with the Shoalhaven Local Environmental Plan 2014 (refer zoning extract at Figure 2).

· Is mapped as being bush fire prone land (Vegetation Category 2)

· Contains a mapped Category 2 water course which traverses from east to west across the northern part of the site.

· Is vegetated in the northern part (riparian vegetation surrounding water course) and in the southern part (regrowth vegetation).

The surrounding area is an emerging residential estate characterised by low density development such as single dwelling houses on urban sized blocks of land.

Figure 2 – Zoning Extract

History

The following timeline of events has taken place following the lodgement of the Development Application with Council on 29 June 2018:

· 1^st request for information (RFI) was sent to applicant on 6 July 2018 relating to several matters including amended Statement of Environmental Effects plans, and documents.

· A response to 1^st RFI was provided by applicant in separate submissions on 5 August, 22 August, 25 September, and 15 November 2018.

· The DA was notified according to Community Consultation Policy for two (2) weeks between 27 November and 12 December 2018. No submissions were received.

· Internal/external referrals were made on 27 November 2018.

· 2^nd RFI Request sent to applicant on 19 March 2019 following response to internal/external referrals. Information requested included:

o Vegetation & Habitat Assessment addressing the Biodiversity Act 2016 (requested by Council’s Environmental Assessment Officer); and

o Amended Bushfire Hazard Assessment addressing the Planning for Bushfire Protection 2006 (requested by the Rural Fire Service being Integrated Development).

· A response to the 2^nd RFI Request on 11 September 2019 providing the requested documentation.

· Re-referral to Environmental Assessment Officer and Rural Fire Service for consideration of submitted documents on 25 September 2019.

· Re-referral response by Environmental Assessment Officer on 21 October 2019 requesting an amended Vegetation & Habitat Assessment given the submitted Report did not comply with the Biodiversity Conservation Act 2016.

· 3^rd RFI Request sent to applicant on 2 December 2019 requesting the amended Assessment.

· A response was received from TfNSW on 2 February 2020 advising the reconstruction of the swale drain within the bypass corridor is acceptable provided amended plans and drainage calculations are provided, depicting the reconstruction.

· The re-referral response provided by Rural Fire Service on 28 February 2020 requested a further amended Bushfire Hazard Assessment given the submitted Report still did not comply with the Planning for Bushfire Protection 2006.

· 4^th RFI Request sent to the applicant on 18 March 2020 requesting the amended Assessment required by the Rural Fire Service and the plans/drainage calculations required by TfNSW.

· Follow up correspondence sent to applicant seeking updates regarding the progress of the response to the 3^rd and 4^th RFI Requests on 18 March, 11 May, 14 May, and 3 June 2020 advising that the response is required within a reasonable timeframe or the DA would be reported with a recommendation of refusal.

· No response to the RFI Requests were received from the applicant by the nominated date of 17 June 2020.

Issues

Bushfire Protection

In accordance with Figure 3 below, the site is mapped as being bushfire prone (containing Vegetation Category 2).

Figure 3 – Bushfire Prone Land

As the proposal is for subdivision of bushfire prone land, the development is Integrated Development under s4.46 of the Environmental Planning and Assessment (EP&A) Act 1979 and triggers referral to the Rural Fire Service (RFS).

Accordingly, the application was referred to the RFS where a review of the submitted Bushfire Hazard Assessment (prepared by Bushfire Building Solutions, dated 29 May 2019) was undertaken.

The RFS advised that the following amendments to the Bushfire Hazard Assessment are required to permit compliance with the Planning for Bushfire Protection 2006:

· Amended Subdivision Plan providing a 35m Asset Protection Zone to the bushfire prone vegetation within the adjoining public reserve; and

· Amended Bushfire Hazard Assessment further considering the bushfire prone vegetation with Proposed Lots 906-909 given they do not meet the criteria for ‘low hazard vegetation’ recommended in the previously submitted Report.

A Further Information Request was sent to the applicant on 18 March 2020 requesting the above matters be addressed. Despite repeated follow ups, the requested amended documents were not provided by the applicant.

Discussion

An amended Bushfire Hazard Assessment was not received. As such, the proposal is found to be non-compliant with the following items of legislation:

· Section 4.47(2) of the Environmental Planning and Assessment (EP&A) Act 1979 states the following:

“Before granting development consent to an application for consent to carry out the development, the consent authority must, in accordance with the regulations, obtain from each relevant approval body the general terms of any approval proposed to be granted by the approval body in relation to the development. Nothing in this section requires the consent authority to obtain the general terms of any such approval if the consent authority determines to refuse to grant development consent.”

Subdivision of bush fire prone land is integrated development under s100B of the Rural Fires Act 1997 and under Section 4.47(2) of the EP&A Act 1979, general terms of approval and a Bush Fire Safety Authority (BFSA) are required prior to determination of the development.

· A79.1/P80 of Chapter G11 – Subdivision of Land

Acceptable Solution A79.1 of Chapter G11 – Subdivision of Land of the SDCP 2014 states the following:

“A development application is supported by an appropriate level of analysis consistent with Council and other legislative requirements.

The subdivision lot design positively responds to:

· Slope and desirability of minimising earthworks/retaining walls associated with dwelling construction.

· natural or cultural features;

· soil erosion and bushfire risk;

· Special features such as trees and views, including identification of mature stands of trees retained & supplementary planting.”

Given the requirements of Planning for Bushfire Protection 2006 have not been achieved, in particular requirements for a suitable asset protection zone (Proposed Lot 901) and for a suitable assessment of bushfire prone vegetation, the subdivision lot design does not positively respond to bush fire risk.

Performance Criteria P80 states the following:

“Lot areas and dimensions take into account the site natural opportunities and constraints.”

The proposal is non-compliant with Performance Criteria P80 of Chapter G11 of the SDCP 2014 for the following reasons:

· The lot area and dimensions for Proposed Lot 901 do not adequately account for the required asset protection zone (APZ) of 35m. Only a 20m APZ is depicted on the subdivision plans.

· Given the width of Proposed Lot 901 is only 35m, the required 35m APZ would provide no space for a building envelope.

· A redesign would be required to enable Proposed Lot 901 to be able to be utilised for residential purposes – taking into account the site opportunities and constraints

· Vegetation mapped within proximity to Proposed Lots 906 to 908 has not been suitably considered in the applicant’s bush fire assessment.

Impacts upon Threatened Species

As part of the DA, the applicant proposes the removal of the following stands of vegetation from the site (totalling 1700m²):

· Removal of vegetation totalling 255m² within Proposed Lot 901 to facilitate an asset protection zone; and

· Removal of regrowth vegetation totalling 1445m² within Proposed Lots 907 and 908.

The DA was referred to Council’s Environmental Assessment Officer who requested additional information be provided to determine whether it would trigger entry into the Biodiversity Offsets Scheme under the Biodiversity Conservation (BC) Act 2016.

Under the BC Act 2016, entry into the Biodiversity Offsets Scheme is triggered by any of the following methods:

· Clearing above the threshold listed at Clause 7.2 of the BC Regulation 2000;

· Clearing of native vegetation mapped on the Biodiversity Values Map; and

· Section 7.3 Test of Significance identifying a potential adverse impact upon threatened species known to occur within the locality.

A Vegetation & Habitat Assessment was submitted by the applicant which stated that the proposal would not trigger entry into the Biodiversity Offsets Scheme given:

· The total amount of clearing, being 1700m², does not exceed the threshold listed at Clause 7.2 of the BC Regulation 2000 – being 2500m²;

· Vegetation on the site is not mapped on the Biodiversity Values Map; and

· A Section 7.3 Test of Significance was undertaken which found no significant impacts.

The Vegetation & Habitat Assessment was reviewed by Council’s Environmental Assessment Officer who found that the S7.3 Test of Significance at Section 8 of the Report does not refer to any locally occurring threatened species and instead refers to species not known to occur in the locality. Specifically, the referral advice states:

“S6.1.1 of the Test of Significance report identifies a number of threatened species previously detected within 1.5km of the subject site. The section 7.3 BC Act Test of Significance provided in Section 8 of the report however does not refer to these species, or any locally occurring threatened ecological communities.

Those species and ecological communities that have been assessed, being Pine Donkey Orchid Diuris tricolor and plant community types (PCT 45, 76, 80 and 267) are not known to occur within the locality.”

Based upon the above, and to further clarify whether the development would trigger entry into the Biodiversity Offsets Scheme, a revised Vegetation and Habitat Assessment and S7.3 Test of Significance was requested with the following being required:

· Revised Test of Significance referencing species likely to occur in locality

· Provide a table of likely species with reference to supporting literature.

· Further inspection of site given Council’s inspection revealed evidence of glider activity.

· Provision of a list of recommendations of how to mitigate residual impacts upon biodiversity.

A Further Information Request was sent to the applicant on 2 December 2019 requesting the additional information be provided to determine whether the proposal would trigger entry into the Biodiversity Offsets Scheme. Separate correspondence was sent to the applicant requesting a status update regarding the progress of the revised documentation on 18 March, 11 May, 14 May, and 3 June 2020. Given no response to the status update requests on these dates was provided, Council provided the applicant with a nominated date of 17 June 2020 upon which the application would be determined based upon the information submitted to date. The requested information was not received by the nominated date and thus has not satisfied the requirements of the Biodiversity Offsets Scheme.

Discussion

Given the amended Vegetation & Habitat Assessment and S7.3 Test of Significance was not received, the proposal is found to be non-compliant with the following items of legislation:

· Acceptable Solution A1.1 of Chapter G5 – Threatened Species Impact Assessment of the SDCP 2014 states the following:

“A development application is supported by an appropriate level of analysis consistent with Council and other legislative requirements.”

As per Council’s Environmental Assessment Officer referral comments several amendments to the Vegetation & Habitat Assessment and S7.3 Test of Significance are required to determine whether entry into the Biodiversity Offsets Scheme would be triggered.

Given the requested information was not received, Council cannot be satisfied that the proposal provides an appropriate level of analysis consistent with Council and other legislative requirements.

Performance Criteria P1 states the following:

“To ensure that threatened species, populations and EECs are protected from the impacts generated by development.”

Given that a s7.3 Test of Significance against threatened species likely to occur within the locality has not been received, Council cannot be satisfied that the proposal and the related vegetation clearing would not have an adverse impact upon threatened species, populations and EECs within the area. The proposal is therefore non-compliant with Performance Criteria P1 of Chapter G5 of the SDCP 2014.

· Section 4.15(1)(b) of the EP&A Act 1979 – Likely impacts of that development, including environmental impacts upon the natural environment

Given a S7.3 Test of Significance has not been provided against threatened species likely to occur within the locality, Council cannot be satisfied that the proposed vegetation clearing would not have an adverse impact upon the natural environment specifically relating to habitat and population numbers of such species.

Proposed Works within the Princes Highway Ulladulla Bypass Corridor

There is an existing swale drain located partially on Lot 600 (subject subdivision site) and partially on Lot 2 (Bypass Corridor). Its purpose is to collect runoff generated upstream to avoid the potential for overland flow across the subdivision site.

Council’s Subdivision Engineer recommended that stormwater issues be resolved prior to the issue of any consent:

“The catch drain is currently in the wrong location and is in a state of disrepair (see D19/82250) with scouring and erosion having occurred, and therefore will require reconstruction within the subject lots as part of this application.

In correspondence with TfNSW, the applicant advised of their intention to reconstruct the swale drain entirely within the Bypass Corridor with the point of discharge being the existing water course. TfNSW agreed to give owner’s consent to these works provided the following is provided for their review prior to any determination:

“The plans provided for the proposed drainage works on TfNSW land (Plans with Ref: U12020_10G_DA, Sheet 1 and 2, Issue: E, dated 2.12.2019) will need to be updated, inclusive of the calculations, so the proposed swale can achieve containment in a 1:100 weather event when the swale has long grass.”

A Further Information Request was sent to the applicant on 18 March 2020 requesting the amended plan and drainage calculations be provided. Separate correspondence was sent to the applicant requesting a status update regarding the progress of the revised documentation on 11 May, 14 May, and 3 June 2020. Given no response to the status update requests on these dates was provided, Council provided the applicant with a nominated date of 17 June 2020 upon which the application would be determined based upon the information submitted to date. The requested information was not received by the nominated date and therefore was not able to be referred to TfNSW for their review.

Discussion

Given the amended plan/s and associated drainage calculations depicting the location and proposed discharge point of the reconstructed swale drain were not provided as requested, the proposal is found to be non-compliant with the following items of legislation:

· Clause 100 – Development on proposed classified road of the State Environmental Planning Policy (Infrastructure) 2007.

Clause 100 of the State Environmental Planning Policy (Infrastructure) 2007 applies as the site is located immediately adjacent to and involves work within land reserved for the construction of a future classified road. The future classified road which applies in this instance is the Princes Highway Bypass Corridor.

Development consent is not permitted to be granted to development being a subdivision creating lots with dwelling entitlements, until the concurrence of the chief executive officer of TfNSW (formerly RMS) has been received.

TfNSW advised that their consent to these works is subject to the provision of an amended plan depicting the reconstructed swale drain and associated drainage calculations. Whilst this detail was requested as part of an RFI request (as detailed in the Report above), the information was not provided by the applicant.

In light of the above comments, Council cannot be satisfied that the development has been provided with the necessary concurrence of TfNSW. It is considered that the development has not satisfied the requirements of Clause 100 of SEPP (Infrastructure) 2007.

Planning Assessment

The DA has been assessed under s4.15(1) of the Environmental Planning and Assessment Act 1979. Please refer to Attachment 2.

Consultation and Community Engagement:

Notification was undertaken in accordance with Council’s Community Consultation Policy with letters being sent within a 100m buffer of the site, during the period 27 November 2018 to 12 December 2018. No submissions were received in relation to Council’s notification of the development.

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

Pursuant to section 8.2 of the Environmental Planning and Assessment Act 1979 (EP&A Act), a decision of the Council may be subject of a review by the applicant in the event of an approval or refusal. If such a review is ultimately pursued (if the recommendation is adopted) the matter would be put to Council for consideration. Alternatively, an applicant who is dissatisfied with the determination of the application by the Council may also appeal to the Court against the determination pursuant to section 8.7 of the EP&A Act. Applicants can choose to do both, setting aside the Appeal pending resolution of the review, noting there are time limitations with respect to lodging applications for review and appeal.

Summary and Conclusion

This application has been assessed having regard for section 4.15 (Matters for consideration) under the EP&A Act. Having regard to the assessment, the proposal is not considered capable of support. Reasons for refusal are provided below and can also be found at Attachment 1 to this report:

1.	Given a response to the further information request by the Rural Fire Service issued under Clause 67 of the Environmental Planning and Assessment (EP&A) Regulation 2000 was not received, general terms of approval under Section 4.47(2) of the EP&A Act 1979 were unable to be provided. (Section 4.47(2) of the Environmental Planning and Assessment Act, 1979)
2.	Having regard to the works within the proposed classified road, the application has not satisfactorily demonstrated that the concurrence of the chief executive officer of RMS has been provided in accordance with Clause 100 of the State Environmental Planning Policy (Infrastructure) 2007. (Section 4.15(1)(a)(i) of Environmental Planning and Assessment Act, 1979)
3.	The application has not satisfactorily demonstrated compliance with the Acceptable Solutions and/or Performance Criteria of the Shoalhaven Development Control Plan 2014 – particularly as it relates to A1.1/P1 of Chapter G5 – Threatened Species Impact Assessment and A79.1/P80 of Chapter G11 – Subdivision of Land. (Section 4.15(1)(a)(iii) of Environmental Planning and Assessment Act, 1979)
4.	Having regard to the likely impacts of the development, the applicant has not satisfactorily demonstrated that the proposal would not have an adverse impact upon the natural environment. (Section 4.15(1)(b) of Environmental Planning and Assessment Act, 1979)
5.	The information submitted with the development application does not satisfactorily demonstrate that the site is suitable for the proposed use. (Section 4.15(1)(c) of Environmental Planning and Assessment Act, 1979)
6.	Having regard to the above matters the granting of development consent is not in the public interest. (Section 4.15(1)(e) of Environmental Planning and Assessment Act, 1979).

Development & Environment Committee – Tuesday 04 August 2020

Page 0

DE20.83 Report - DA20/1203 - 151 Wattamolla Road, Woodhill - Lot 1 DP 740771

DA. No: DA20/1203/4

HPERM Ref: D20/309870

Section: Development Services

Approver: Phil Costello, Director Planning Environment & Development Group

Attachments: 1. Planning Report - 151 Wattamolla Rd WOODHILL - Lot 1 DP 740771 (under separate cover) ⇨

2. DRAFT - Determination - 151 Wattamolla Road WOODHILL - Lot 1 DP 740771 (under separate cover) ⇨

Description of Development: Construction of a dwelling house and pool, conversion of existing dwelling to tourist cabin and alterations and additions to existing garage and conversion to tourist cabin

Owner: G & J O’Brien

Applicant: G O’Brien C/O SET Consultants Pty Ltd

Notification Dates: 12 March 2020 – 27 March 2020

No. of Submissions: 35 in objection
13 in support

Purpose / Reason for consideration by Council

Councillors called in DA20/1203 due to the significant public interest on 23 June 2020 (MIN20.423).

Recommendation (Item to be determined under delegated authority)

That Development Application DA20/1203 construction of a dwelling house and pool, conversion of existing dwelling to tourist cabin and alterations and additions to existing garage and conversion to tourist cabin at Lot 1 DP 740771, 151 Wattamolla Road, Woodhill 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.

Location Map

Figure 1 – Location Map

Background

Proposed Development

The proposal includes:

· Construction of new dwelling house:

o 2 storey (second storey is attic/store space).

o 2 x bedrooms.

o Other living and habitable areas.

o Attached garage.

o Attached plunge pool.

o Installation of underground water tank.

· Conversion of existing 3 x bedroom dwelling to tourist accommodation consisting of:

o 3 x bedrooms.

o Other living and habitable areas.

o Loft/storage area.

· Conversion of existing garage to tourist cabin consisting of:

o 2 x bedrooms.

o Other living and habitable areas.

· Construction of parking and vehicle manoeuvring area.

· Installation of new effluent management system to service new dwelling and tourist. accommodation (garage conversion). The existing dwelling (proposed tourist accommodation) will be serviced by the existing effluent management system.

· Installation of underground water tank to service new dwelling.

Figure 2 – Site Plan

Figure 3 – North and West Elevations of Proposed New Dwelling

Figure 4 – South and East Elevations of Proposed New Dwelling

Figure 5 – Elevation Plans of Existing Dwelling to be Converted to Tourist Accommodation

Figure 6 – Elevation Plans Showing Proposed Alterations and Additions to Existing Garage to be Converted to Tourist Accommodation

Subject Land

The development site comprises Lot 1 DP 740771 (151 Wattamolla Road, Woodhill) Refer to Figure 1.

Site & Context

The development site:

· Is zoned RU1 Primary Production under the Shoalhaven Local Environmental Plan 2014 (SLEP 2014).

· Is accessed from Wattamolla Road.

· Contains an existing dwelling house, detached garage, and other detached ancillary structures.

· Is mapped as bush fire prone land.

· Contains mapped category 2 watercourses

· Contains areas mapped as “biodiversity - significant habitat” under SLEP 2014.

The surrounding area is rural-residential in character and the site is adjoined by rural-residential development to the north and west, and bushland areas to the south and east. The land backs onto the escarpment.

Figure 7 – 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 9 March 2020.

· As a result of detailed assessment of the application, additional information was requested from the applicant on two (2) occasions – 12 March 2020 and 11 June 2020.

· On 27 May 2020 and 18 June 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 application proposes some performance-based solutions with regard to the Shoalhaven Development Control Plan 2014 (SDCP 2014).

The application proposes performance-based solutions in place of the following acceptable solutions set out in Chapter G12 (A18.1) and Chapter G15 (A1.1, A1.2, A2.1, A12.1, A24.1 & A25.1). The performance-based solutions are discussed below.

Performance Based Solution to Setback Distances for Dwellings Located in the RU1 Zone – Chapter G12 (Acceptable Solution A18.1)

Acceptable solution A18.1 specifies that dwellings are to have a front setback of 30m to the primary road frontage.

The proposal includes the construction of a dwelling house 22.99m from the Wattamolla Road frontage (primary road frontage). This represents a 7.01m (23.4%) departure to the setback distances set by A18.1

Applicant’s Submission

The applicant provided the following justification for the proposed performance-based solution:

The DCP variation that this application seeks is to Acceptable Solutions A18.1 of the Shoalhaven Development Control Plan 2014 – Chapter G12 Dwelling Houses and Other Low-Density Residential Development. This acceptable solution requires dwellings be setback from the front boundary by 30m. The proposed dwelling is setback by 22.99m from the front boundary. The existing garage to be converted to a tourist cabin is currently setback 26.971m from the front boundary. The front boundary is to the west of the proposed dwelling and is adjacent to Wattamolla Road.

The Acceptable Solution seeking the variation is as follows, with an extract of Table 1 provided:

A18.1 Setbacks shall comply with the provisions in Table 1, where the site is located in the following zones:

· RU1 Primary Production.

· RU2 Rural Landscape.

· RU4 Primary Production Small Lots.

· E2 Environmental Conservation.

· E3 Environmental Management.

· E4 Environmental Living.

· R2 Low Density Residential, where the site area is equal to or greater than 2000m2.

· R5 Large Lot Residential.

The proposed dwelling requires a 7.01m variation to the 30m setback requirement. This equates to a 23.4% variation to the Acceptable Solution. There is no proposed change to the existing setback of the garage. The tourist cabin will retain its 26.971m setback to the front boundary. Similarly, the existing rural properties in the surrounding area that also front Wattamolla Road have lesser setbacks to their associated front boundaries. Figure 15 below shows an annotated image of some of the nearby properties with setbacks lesser than 30m. These two examples are within 300m of the subject site and are only two examples of many occurrences of lesser front setbacks being provide to Wattamolla Road.

Annotated Image showing existing properties along Wattamolla Road (SixMaps).

The DCP is structured so that the Acceptable Solution listed in the DCP is a manner in which the associated Performance Criteria can be achieved. It should be noted that the proposal is consistent with the Performance Criteria that the Acceptable Solution relating to Front Setbacks is under. The Performance Criteria associated with this variation is as follows, with comment being provided to justifying how the proposed dwelling is consistent with the criteria.

P18.1 The front setback is generally consistent with adjoining development and does not undermine the integrity of the prevailing building lines.

P18.2 The location and siting of the building complements the existing setbacks in proximity to the site, foreshore (if applicable) and the streetscape.

P18.3 The proposed development is setback and of a scale that is relative to the street reserve width, in such a way to ensure pedestrians do not feel buildings are overbearing.

As shown in Figure 15 above, the lesser setback is a frequent occurrence along Wattamolla Road.

The provided setback of 22.99m is greater than the setbacks of many existing properties in the surrounding area. The setback provided is therefore generally consistent with the established setbacks in the area.

The trees along the front boundary on both the subject site and within the road reserve are to be retained, and as a result not significantly change the streetscape.

P18.4 Setbacks avoid loss of view, undue overshadowing and provide/maintain privacy (visual and acoustic), traffic safety and maintain adequate daylight and sunlight access.

P18.5 Adequate levels of light and ventilation to adjoining buildings, landscaping, services and infrastructure are protected.

The positioning of the new dwelling will not impact on the views experienced by the surrounding properties. The dwelling will also not introduce any issues with overshadowing or privacy. The nearest existing neighbouring property is located approximately 225m north-north-east of the new dwellings position.

The existing driveway will be retained and continue to provide access to the site. The lesser setback will have no foreseeable impact on traffic safety onsite, or on Wattamolla Road.

The dwelling has been designed and orientated to have its living areas located on the northern side of the building which will provide solar access. The dwelling has access to essential services, with water and effluent disposal to be managed onsite. The proposed development will not adversely impact on the services and infrastructure located around the site. The dwelling will also not overshadow the surrounding properties.

P18.6 The proposal maintains adequate provision for on-site car parking.

There are two car parking spaces provided within the attached garage. The cabins also have sufficient space for vehicles to park onsite. The proposed setback does not adversely impact the carparking of vehicle movement on and near the site.

Similarly, to the Performance Criteria, the Objectives of Section 6.1.2 of this DCP chapter are also achieved by the proposed development. The objective are listed below, with comment provided with how the objectives are achieved.

i) Minimise the visual impacts of elements of the development that exaggerate the built form and impacts negatively on desired future streetscapes.

The proposed dwelling does not provide an excessive built form, and is generally consistent in size to other dwellings throughout the surrounding area. The dwelling has been designed to have its main living rooms furthest from the front setback, with the garage and main entry to the dwelling facing towards the street.

ii) Encourage design that creates desirable living conditions and ensures that the amenity of surrounding properties is properly considered and not adversely impacted.

The dwelling has been designed to provide the owner with a desirable and useable space within the rural landscape. The dwelling will not have a foreseeable impact on the amenity of the area due to the separation distance between the dwellings location and the existing properties. The existing vegetation to be retained provides a level of screening of the development site from the road, and neighbouring properties.

iii) Allow adequate separation between buildings to promote natural light, solar access, ventilation, landscaping and privacy.

The dwelling is provided with large separation distances to ensure the development receives adequate solar access, ventilation and privacy. The development will have no foreseeable impact on neighbouring properties in terms of solar access, ventilation, landscaping and privacy.

iv) Retain the amenity of the public domain.

The amenity of the public domain will also not be significantly impacted. The development is considered compatible and comparable to the established rural properties throughout the surrounding area. The dwelling will have no foreseeable significant adverse impacts on the public domain.

It is anticipated that the proposed front setback variation is considered and supported by Council. Support should be given due to the existing precedent set in the surrounding area, and that the setback provided will not have a significant environmental impact as demonstrated in this Variation Statement.

Discussion

The proposed development will result in a 7.01m (23.4%) departure from the acceptable solution setback distances set by A18.1.

The relevant performance criteria are:

P18.1 – The front setback is generally consistent with adjoining development and does not undermine the integrity of the prevailing building lines.

P18.2 – The location and siting of the building complements the existing setbacks in proximity to the site, foreshore (if applicable) and the streetscape.

P18.3 - The proposed development is setback and of a scale that is relative to the street reserve width, in such a way to ensure pedestrians do not feel buildings are overbearing.

P18.4 - Setbacks avoid loss of view, undue overshadowing and provide/maintain privacy (visual and acoustic), traffic safety and maintain adequate daylight and sunlight access.

P18.5 - Adequate levels of light and ventilation to adjoining buildings, landscaping, services and infrastructure are protected.

P18.6 - The proposal maintains adequate provision for on-site car parking.

The proposal includes the construction of a new dwelling house. As noted in the applicant’s justification for the performance-based solution, the proposed location of this building is not inconsistent with the character of the area.

The subject land is not mapped as “scenic protection” on the Scenic Protection Area Map in the Shoalhaven LEP 2014. The proposed dwelling will not be visible from residences on adjoining properties and will largely be screened from view from Wattamolla Road by existing vegetation. It is considered that the location of the proposed dwelling will not have a significant or detrimental visual impact and the siting of the proposed buildings is appropriate.

Figure 8 - View of proposed development site when viewed from access driveway
near residence to the north-east of subject site^{^[1]}.

Figure 9 - Photo of dwelling site and existing vegetation when viewed
from Wattamolla Road.

It is recommended that the performance-based solution relating to setback distances for dwellings in the RU1 zone be supported for the following reasons:

· The proposed development will not have a significant impact on the environmental attributes or scenic qualities area.

· The proposed dwelling is located >200m from the adjoining residences and it is not anticipated that the construction of the proposed dwelling house would result in a significant or adverse impact on local amenity.

· The proposal is consistent with Performance Criteria P18.1 – P18.6 Chapter G12 Shoalhaven DCP 2014.

Performance Based Solution to Floor Area for Tourist Cabins - Chapter G15 (Acceptable Solution A1.1)

Acceptable solution A1.1 specifies the floor area of a single tourist cabin does not exceed 120m².

The proposal includes the conversion and use of an existing dwelling and detached garage to create 2 tourist cabins. The proposed tourist cabin (existing garage conversion) has a floor area including verandahs of 86m² and therefore complies with this requirement. The proposed tourist cabin (existing dwelling conversion) comprises of an internal ground floor of 79.8m², internal elevated loft area of 51m² and external verandah area of 50m² (total floor area = 180.8m²).

As noted in the Dictionary section of Shoalhaven DCP 2014:

Floor area of a guestroom or tourist cabin when used in reference to Chapter G15: Tourist and Visitor Accommodation means the area of a guestroom or tourist cabin, measured within the finished surfaces of the walls, and includes the area occupied by any cupboard or other built-in furniture, fixture or fitting and all decks and verandahs.

As such, the proposed tourist cabin (existing dwelling conversion) exceeds the floor area requirements set by A1.1 by 60.8m² (50.6%).

Applicant’s Submission

The applicant provided the following justification for the proposed performance-based solution:

The DCP Acceptable Solutions A1.1 and A1.2 of the Shoalhaven Development Control Plan 2014 – Chapter G15: Tourist and Visitor Accommodation states:

A1.1 The floor area of a single tourist cabin does not exceed 120m².

A1.2 The building does not exceed one storey in height.

The proposed cabin (existing dwelling) has a ground floor component of 79.8m², the loft has an area of 51m², and the total verandah area equates to 50m². The total combined area would therefore equate to 180.8m². The cabin is provided with a loft storage area which is considered an additional storey to the cabin.

The DCP definition is defined as follows:

Floor area of a guestroom or tourist cabin when used in reference to Chapter G15: Tourist and Visitor Accommodation means the area of a guestroom or tourist cabin, measured within the finished surfaces of the walls, and includes the area occupied by any cupboard or other built-in furniture, fixture or fitting and all decks and verandahs.

The proposed cabin under this definition exceeds the floor area by 60m2. However, it is noted that the loft and verandahs equate to over 100m2 of the total floor area, and provided dimensions restricting their use as a habitable room, and do not significantly increase the scale of the cabin. The verandahs are variable in width, with the east and west elevations having widths of 1.785m, and 2m to the verandah to the north.

Where strict numerical compliance with the Acceptable Solutions cannot be demonstrated, the associated Performance Criteria must be achieved. The proposal is consistent with the Performance Criteria that the Acceptable Solutions requesting the variation is under. The associated Performance Criteria are as follows:

P1.1 Visual impact on scenic, natural landscape and adjoining properties is minimised.

P1.2 Visual impact is not excessively impacted by the scale or built form of the development.

P1.3 Materials and built form are sympathetic to the character of the area.

The proposed change of use of the existing dwelling to a cabin will have no significant visual impact on scenic, natural landscape and adjoining properties. The cabin, although exceeding the numerical floor area control and single storey requirement is an appropriate size and scale, not dissimilar to existing developments throughout Woodhill. The floor area, scale and bulk of the cabin is unchanged as a result of this application. The additional dormer window originally proposed to the loft area has been removed from this application. This further ensures that the visual impact of the cabin does not change, and reduces the two storey appearance of the cabin.

The existing trees, vegetation, topography, and separation distances to the surrounding properties assist in retaining the amenity and rural character of the area.

Similarly to the Performance Criteria, the Objectives of the DCP chapter are achieved by the proposed development. The objectives are listed below, with comment provided with how each Objective is achieved:

i) Provide development guidelines for bed and breakfast accommodation and tourist development in rural areas.

ii) Conserve the rural character and environmental quality of the local area enjoyed by residents of, and visitors to Shoalhaven.

iii) Address issues of cumulative impact and ecologically sustainable development.

iv) Encourage innovative, well-designed, quality development which will support and enhance tourism.

v) Encourage sustainable design and eco-tourism.

vi) Encourage tourist facilities with a range of support infrastructure.

vii) Protect the amenity and privacy of adjoining residents.

viii) Provide opportunities for a range of tourist accommodation in rural areas.

ix) Ensure that the density of development in a particular locality is appropriate to the constraints of the land and is sustainable in the long term.

x) Discourage permanent occupation of development approved for tourism purposes.

xi) Provide management guidelines for tourist accommodation.

xii) Provide guidelines for community title subdivision.

xiii) Maintain the agricultural potential and prevent fragmentation of rural land.

xiv) Recognise the risk of natural hazard in some areas and ensure that development is designed and located to minimise this risk.

xv) Ensure vehicular access is safe and adequate for the scale of the proposed development.

xvi) Conserve and complement any natural or heritage characteristics of buildings and places.

The proposed development has demonstrated compliance with the relevant DCP Controls, and where strict compliance with the Acceptable Solutions is not achieved, the development has demonstrated that the associated Performance Criteria and Objectives have been met.

The proposed development will retain the rural character of the area, and has been designed to accommodate the environmental constraints of the site. The proposed variation to DCP Chapter G15 will not significantly impact on the existing properties throughout Shoalhaven and will provide additional tourist capacity to the South Coast.

The cumulative impacts and ecological sustainability of the development is considered positive within the surrounding context. This application seeks to retain the existing structures onsite as tourist cabins, to provide the client with the opportunity to operate a small-scale tourist accommodation. This is not dissimilar to other tourist accommodations located in the surrounding area.

The development provides tourist accommodation within the existing rural landscape, while not significantly impacting of the existing amenity of the area. The existing access to the site will be retained to access both the dwelling and proposed tourist cabins. The proposed dwelling will ensure the tourist cabins will be managed appropriately by the owners.

It is considered unreasonable to require the cabin to reduce its floor area to comply with the DCP Acceptable Solution when the proposed development is able to satisfy both the Performance Criteria and the Objectives of the Tourist and Visitor Chapter.

Discussion

The proposed tourist cabin (existing dwelling conversion) proposes a performance based solution with the development and exceeds the floor area requirements set by A1.1 by 60.8m² (50.6%).

The relevant performance criteria are:

P1.1 – Visual impact on scenic, natural landscape and adjoining properties is minimised.

P1.2 – Visual impact is not excessively impacted by the scale or built form of the development.

P1.3 - Materials and built form are sympathetic to the character of the area.

The applicant’s justification for the performance-based solution is largely agreed with.

It is also noted that the proposed tourist cabin would almost comply with the DCP tourist cabin floor area controls if it were not for the internal raised loft area. The internal raised loft area although useable would not be considered a habitable space because of the reduced ceiling height.

Figure 10 – Photo of loft/storage space in existing dwelling

Figure 10 - Section through loft/storage area in proposed tourist cabin
(existing dwelling conversion).

Part 3.8.2 – Room Heights of Volume 2 of the NCC 2019 Building Code of Australia specifies that in order to be considered a habitable room, an attic must have a ceiling height not less than 2.2m for at least two-thirds of the floor area of the room or space. It is noted, in calculating floor area for the purposes of Part 3.2.2 of the NCC 2019 BCA, any part of the ceiling less than 1.5m is not included.

The above section is largely representative of the full length of the upper loft storage area. In order to be considered a “habitable room” the width of the loft area with a ceiling height >2.2m must be more than a 2.3m (two-thirds) of the floor area width of the loft area (loft floor area excludes any floor area with a ceiling height <1.5m).

As shown in Figure 11 only 2.08m width of the loft floor area has a ceiling height >2.2m and therefore the loft area cannot be considered a habitable room under NCC 2019 Building Code of Australia.

As noted in the applicant’s justification for the performance-based solution the raised loft area will be used for storage. Recommended conditions of consent will require that the loft area be used only for storage purposes and must not be used as a habitable space.

The existing dwelling has a building footprint of approximately 130.8m² which is not inconsistent with other tourist cabins and the bulk and scale of the building is compatible with the rural character of the area.

The applicant’s justification for the performance-based solution also notes that A1.2 specifies that tourist cabins must not exceed 1 storey in height. Despite having a raised loft area, it is considered that the building still predominantly presents as a single storey building.

Figure 11

Photo of existing dwelling (proposed tourist accommodation) viewed from south-west.

Figure 12 - Photo of existing dwelling (proposed tourist accommodation)
viewed from north-east.

It is recommended that the performance-based solution be supported for the following reasons:

· The existing dwelling has a building footprint of 130.8m², 51m² of which is open verandah area. The internal raised loft area adds to the floor area; however, this loft area should not be considered as habitable space and recommended conditions of consent will require it to be used for storage purposes only.

· The proposed tourist cabin (existing dwelling conversion) presents as a single storey building (the loft is contained within the roof space).

· The proposed tourist cabin (existing dwelling conversion) is located >150m away from the residences on adjoining properties and is largely screened from view.

· The proposal does not increase the floor area or building footprint of the existing dwelling.

· The design and proposed building materials for the buildings is appropriate and sympathetic to the rural character of the area.

· Modifying the development that is by way of example, removing verandahs and roof space to achieve numeric compliance would not result in any substantial improved environmental planning outcomes or a better development.

· The proposal is consistent with Performance Criteria P1.1, P1.2 & P1.3 of Chapter G15 Shoalhaven DCP 2014.

Performance Based Solution to Setback Distances for Tourist Cabins - Chapter G15 (Acceptable Solution A2.1 and A12.1)

Acceptable solutions A2.1 and A12.1 specify that tourist cabins are to be setback 30m from adjoining property boundaries.

The proposal includes the conversion and use of an existing dwelling and detached garage to tourist accommodation. The proposed tourist cabin (existing garage conversion) is setback 26.971m from the Wattamolla Road frontage and >30m from all other property boundaries. The proposed tourist cabin (existing garage conversion) represents a 3.029m (10%) departure to the 30m setback distance set by A2.1 and A12.1.

Applicant’s Submission

The applicant provided the following justification for the proposed performance-based solution:

Discussion

The proposed development will result in a 3.029m (10%) departure to the setback distances set by A2.1 and A12.1

The relevant performance criteria are:

P2 – Areas with identified environmental attributes and/or scenic protection are conserved and protected.

P12 – To conserve the rural character of a locality and the amenity enjoyed by local residents and neighbouring properties is preserved.

The location of this building is not inconsistent with the character of the area and is an already approved residence.

The proposed tourist cabin (existing garage conversion) is not visible from any adjoining residences and is largely screened from view from Wattamolla Road by existing vegetation. It is considered that the proposed conversion of the existing dwelling and existing detached garage will not have a significant or detrimental visual impact and the siting of the proposed buildings is appropriate.

It is recommended that the performance-based solution be supported for the following reasons:

· The building exists, and thus the physical impacts of the development are known.

· The proposed development will not have a significant impact on the environmental attributes or scenic qualities area.

· It is considered that acoustic and visual privacy between adjoining residences would be maintained.

· The proposed tourist cabins (existing dwelling and garage conversions) are located >150m to residences on adjoining properties and are screened from view.

· It is not anticipated that the conversion of the building to tourist and visitor accommodation would result in a significant or adverse impact on local amenity.

· The proposal is consistent with Performance Criteria P2 and P12 of Chapter G15 Shoalhaven DCP 2014.

Performance Based Solution to Minimum Land Area Required for Tourist Cabins - Chapter G15 (Acceptable Solution A24.1 and A25.1)

Acceptable solutions A24.1 and A25.1 specify that a land area of 2ha is recommended for the construction of 1-2 tourist cabins.

The proposal includes the conversion and use of an existing dwelling and detached garage to create 2 tourist cabins. The subject site has a land area of 1.95ha which represents a shortfall of 0.05ha (2.5%) to the land area specified A24.1 and A25.1.

Applicant’s Submission

The applicant provided the following justification for the proposed performance-based solution:

The subject site is approximately 1.95ha in area. This equates to a 2.5% variation to the DCP controls, which is considered to be a minor variation. The Acceptable Solutions seeking the variation is as follows:

A24.1 A minimum area of two (2) hectares is required for all forms of tourist development in rural areas;

A25.1 The number of cabins permitted is outlined in the table below:

The proposal is for two cabins to be used as short-term holiday accommodation. As identified in this Statement of Environmental Effects, there are similar sized tourist development in the surrounding area. Of particular note, the tourist development located to the north-north-east of the site is approximately 1.35ha in area, which is also below the 2ha control.

There would be no foreseeable benefit in having an additional 0.05ha to the site. There is sufficient area for the site to support the two cabins, with the proposed use not likely to significantly impact on the surrounding properties and amenity of the area.

The proposed development is deemed to satisfy the Performance Criteria that the Acceptable Solutions requesting the variation are under. The Performance Criteria associated with this variation is as follows, with comment being provided to justifying how the proposed dwelling is consistent with the performance-based criteria.

P24 Sufficient area is available for the development so as to not impact on surrounding land use or amenity of the locality.

P25 Density of tourist cabins and guesthouses should be of a rural nature and be consistent with the surrounding areas.

As demonstrated throughout the Statement of Environmental Effects and DCP Compliance Table, the proposed development is considered capable of supporting the two tourist cabins and new dwelling. There is sufficient area for the cabins in their current positions to retain the privacy and not significantly impact on residence in the surrounding area.

The density and scale of the tourist cabins is considered small, and fitting to the size of the site. The two tourist structures and new dwelling are in keeping with the existing developments throughout the surrounding area.

The use of the existing structures, and changing their use to tourist cabins is advantageous. This reduces the potential impacts of the development, by retaining the structures in their existing positions. The cabins are clustered together, with the proposed dwelling located to the south.

The dwelling will provide surveillance opportunities of the cabins for management purposes. Similarly to the Performance Criteria, the Objectives of Section 5.3 of this DCP chapter are also considered to be achieved by the proposed development. The objectives are listed below, again with comment provided with how the objectives are achieved.

i) Ensure the density of development is sustainable and has minimal impact on the environment.

ii) Provide tourist development forms that is compatible the rural character of the area.

iii) Ensure the impact of development on the amenity of rural areas is maintained and the impact on neighbouring areas is minimised.

iv) Ensure that native vegetation and water quality is protected.

v) Ensure that multiple forms of tourist development on one property are consistent with the acceptable density standards.

The development consists of two tourist cabins which is deemed suitable to the subject site. The development will have minimal impact on the surrounding properties. Changing the use of the existing structures for use as tourist cabins benefits the environment and existing character. The structures are comparable to similar structures within the rural setting. There is only one proposed type of tourist accommodation on the site. The scale of the tourist accommodation is considered low, with minimal impact on the site and surrounding areas during operation.

The proposed tourist cabins and dwelling will have no significant impact on the existing vegetation and watercourses onsite and in the surrounding area. The existing trees onsite will be retained. The existing trees and vegetation currently provide screening of structures. The proposal is considered to achieve both the relevant Performance Criteria and Objectives outlined above. It is anticipated that this variation provided be considered and supported by Council.

Discussion

The proposed development would result in a shortfall of 0.05ha (2.5%) to the land area specified by A24.1 and A25.1.

The relevant performance criteria are:

P24 – Sufficient area is available for the development so as to not impact on surrounding land use or amenity of the locality.

P25 – Density of tourist cabins and guesthouses should be of a rural nature and be consistent with the surrounding areas.

The proposed shortfall in the recommended land area for 1-2 tourist cabins is minor and would be imperceptible.

The proposed tourist cabins are located >150m away from any adjoining residence and are screened from view. It is considered that the proposed development and minor shortfall to land area requirements would not have significant or adverse impact on local amenity.

The surrounding area is characterised by smaller rural-residential lots and it is considered that the building design and tourist cabin density is not inconsistent with the rural character of the area.

It is recommended that the performance-based solution be supported for the following reasons:

· It is considered that acoustic and visual privacy between adjoining residences would be maintained.

· The proposed tourist cabins (existing dwelling and garage conversions) are located >150m to residences on adjoining properties and are screened from view.

· It is not anticipated that the conversion of the building to tourist and visitor accommodation would result in a significant or adverse impact on local amenity.

· The proposed building design and tourist cabin density is not inconsistent with the rural character of the area.

· The proposal is consistent with Performance Criteria P24 and P25 of Chapter G15 Shoalhaven DCP 2014.

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 200m buffer of the site, during the period 12 to 27 March 2020.

37 objections and 13 submissions of support were received in relation to the development.

Key issues raised in objections are as follows and are discussed below.

Objection Raised

Assessing Officer Comments

Concerns with effluent management and water quality

The application has been supported by an effluent management report which demonstrates that there is adequate area on site to adequately manage increased load from the proposed new dwelling house and proposed tourist cabin (garage conversion).

The proposed tourist cabin (existing dwelling conversion) will be managed via the existing on-site effluent management system. As per comments from Water NSW it is considered that effluent from the tourist accommodation can be suitably managed on site either via the existing septic system or proposed new aerated wastewater treatment system.

The application and effluent management report have been reviewed by Council’s Environmental Health department and also Water NSW with no objection being raised. Concurrence has been granted by Water NSW under clause 11 of SEPP (Sydney Drinking Water Catchment) 2011.

It is considered that the proposed development will not have a significant or adverse impact on water quality.

Privacy to adjoining residences

The proposed new dwelling house is located >200m from residences on adjoining land and is largely screened from view from adjoining properties and also from Wattamolla Road by existing vegetation.

The proposed tourist cabins (existing dwelling and garage conversion) are located >150m from residences on adjoining land and are largely screened from view from adjoining properties and also from Wattamolla Road by existing vegetation.

It is considered that the proposed development will not have a significant adverse impact on the amenity of adjoining properties.

Impact of tourist cabins on local amenity (noise, anti-social behaviour etc.)

Proposed tourist cabins are located >150m from residences on adjoining land.

As per the submitted Statement of Environmental Effects, tourist cabins will be operated and managed by the residents living in the proposed new dwelling house.

It is not considered that the proposed tourist cabins can be appropriately managed and would have a significant adverse impact on the amenity of adjoining properties.

Visual impact

The proposed development is largely screened from view from residences on adjoining properties and also from Wattamolla Road by existing vegetation.

The proposed buildings are appropriately designed and located and compatible with the rural character of the area.

“Variations” to DCP acceptable solutions (floor area for tourist cabins, single storey development, setback distances, minimum site area for tourist cabins etc.)

The application proposes some performance-based solutions with regard to Chapter G12 and G15 of the Shoalhaven DCP 2014 which have been assessed in light of performance criteria and chapter objectives. The performance solutions have been considered in this Development & Environment Committee Report and in the 4.15 assessment report and are appropriate. Council assessment staff are satisfied that the proposed development is consistent with the applicable objectives and performance criteria set out in the Shoalhaven DCP 2014.

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

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 and / 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 it is considered that the proposed performance-based solutions to SDCP 2014 are supportable and that the proposed development is consistent with the performance criteria specified in SDCP 2014.

This application has been assessed having regard for section 4.15 (Matters for consideration) under the EP&A Act and has been subjected to detailed analysis of the main issues identified in this report, being departures from SDCP 2014 acceptable solutions. These issues have also been investigated and addressed by the applicant.

Having regard to the assessment, the proposal 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 04 August 2020

Page 0

DE20.84 Report - Quarterly Review for Compliance Matters

HPERM Ref: D20/309001

Section: Building & Compliance Services

Approver: Phil Costello, Director Planning Environment & Development Group

Attachments: 1. List of penalties issued from 1 April 2020 to 30 June 2020 via offence Code ⇩

Reason for Report

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

This report provides information on the period from 1 April 2020 to 30 June 2020 (final quarter 2019/2020).

Recommendation (Item to be determined under delegated authority)

That the quarterly review for compliance matters report be received for information.

Options

1. Council receive the report for information.

Implications: Nil

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

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

Report

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

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

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

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

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

This report relates to compliance actions from 1 April 2020 to 30 June 2020 (final quarter).

Penalties issued during the period

A combined total of 1,041 penalty notices were issued by the Teams during the period. These penalties have a face value of $307,151. Historically Council stands to receive approximately 70% of this ticketed figure.

A total of 212 cautions were also issued during the period.

Attachment 1 to this report provides a breakdown of the penalties and cautions issued during the period. The following is a summary of the penalties issued for each team:

April – June 2020	Number Issued	Total Amount	% of total amount	Cautions issued
Compliance	7	$11,600	3.78%	26
Compliance - Fire Safety	1	$200	0.06%	0
Compliance – Pools	3	$1,650	0.53%	0
Environmental Health	2	$9,000	2.93%	0
Rangers – Animal issues	513	$171,640	55.88%	73
Rangers – Environmental issues	147	$46,744	15.22%	11
Parking	368	$66,317	21.60%	102
Sewer Management Facility	0	0	0	0
Total	1,041	$307,151	100%	212

Penalties related to Compliance issues

The following details are provided in relation to the 7 compliance penalty notices issued in this quarter:

(a) Tomerong ($1,500): One penalty notice was issued to the owner for development without development consent (Individual - $1,500). The owner rebuilt a shade structure that had previously been demolished through Council’s order process. The owner was aware that both development consent and construction certificate were needed for this work.

(b) Bomaderry ($1,500): One penalty notice was issued to the builder for development without consent. Approval was required for the demolition and reconstruction of a timber framed awning and decking on the bush fire prone allotment. The development was being constructed in BAL-Flame Zone.

Council demonstrated leniency in this matter by issuing 2 warning notices and the value of these would have resulted in a further financial penalty of $3000.

(c) Bomaderry ($1,500): One penalty notice was issued to the owner for development without development consent relating to the construction of a swimming pool.

The matter came to Council’s attention following receipt of an application for a Compliance Certificate for the swimming pool. During the desktop assessment, the Officer confirmed no approval had been sought or granted for this development.

The Compliance Officer worked with the owner for many months assisting them through the Building Information Certificate (BIC) process as well as bringing the swimming pool barrier into compliance.

(d) Culburra Beach ($1,100): Two penalty notices were issued for breaches against the Plumbing and Drainage Act. The plumber failed to seek approval for plumbing and drainage work in accordance with Section 68 of the Local Government Act 1993.

Five breaches were identified. Two penalty notices (2 x $550) and 3 warning notices were issued. The plumber failed to provide notice of work to the plumbing regulator and failed to provide a certificate of compliance within required timeframe.

The value of the warning notices if issued as Penalty Notices, would have incurred a financial penalty of $2,750.

(e) Sussex Inlet ($3,000): One penalty notice issued for failure to comply with the terms of a development control order. In this case the penalty notice was issued to an individual.

Council’s Compliance Officer issued a Stop Use Order and a Demolish Works Order which related to an unauthorised shed located at the premises.

The allotment has a dwelling entitlement, however a dwelling has not yet been constructed. The shed can only exist as ancillary to an existing dwelling.

The owner is a repeat offender who has a considerable prior history of non-compliance.

(f) Sanctuary Point ($3,200): Two penalty notices were issued to the owner of the premises (a corporation). The penalty notices relate to development without development consent (Class 1a or 10 building - $3000) and for not ensuring there are smoke alarms installed (Compliance - Fire Safety - $200). A further three (3) warning notices were issued.

The matter came to Council’s attention following a call from the tenant stating the garage had been converted into two flats. Compliance Officers inspected the garage and confirmed a dual occupancy had been constructed without consent in addition to other unauthorised internal works within the main dwelling.

The value of the warning notices if issued as penalty notices, would have been $9,000.

Warnings related to Compliance issues

A total of 26 warning notices were issued for compliance related matters in the period. These warnings equate to $31,196 in penalty notice face value. The caution rate for Compliance actions in this period is 72.9%.

Penalty infringement panel reviews

During the period, the review panel met only once on 4June 2020. A total of two (2) penalty infringement appeals were considered at this meeting.

(a) Fail to comply with terms of development control order - Corporation – (1 x $6000): The penalty notice subject to this review related to the failure to comply with the terms of a development control order (Corporation).

The initial investigation centred around the use of the property located in Woollamia for short-term tourist and visitor accommodation. This included habitable use of the garage and use of the property for primitive camping without consent. Council had previously issued a formal caution for the same offence in November 2019.

The property was again identified as being used for primitive camping despite the issue of an emergency stop use order. Concern for onsite effluent disposal was a key issue in the original complaint to Council.

Whilst the property owners have lodged a Development Application for future use of the property for glamping, Council needed to send a clear message that this application must be determined favourably prior to the proposed use commencing.

The panel decided the penalty should stand.

(b) Fail to comply with terms of development control order – Individual - (1 x $3000): The penalty notice subject to review related to the failure to comply with terms of development control order (individual).

A property was identified as one of a number of properties in the Jerberra Estate where unauthorised structures had been erected. Council wrote to the owners back in December 2017 to ascertain what their intentions were to address the unauthorised structures located on the property. No response was received.

A demolition order was issued directing the owner to remove the steel-clad shed. No response or representations had been received from the owner concerning either the notice or the order.

During this time the property was sold to the current owner. The orders automatically transfer to successors of title in accordance with Schedule 5, Part 11 Clause 26 of the Environmental Planning and Assessment Act .

The current owner was made aware of Council’s actions in this matter in March 2019 and were afforded ample time to comply. An inspection in late November 2019 revealed the shed had not been removed.

The panel decided the penalty should stand.

Land and Environment Court matters

(a) Tomerong – The property is located within the Jerberra Estate and was identified in Council audits as being land upon which unauthorised dwellings had been constructed and permanently occupied. On 27 September 2012 Orders were made in the Land and Environment Court (L&EC) regarding the property. Amongst other things, the order contained the following terms:

1. The respondents, their servants and agents, be restrained from using, or permitting to be used, the Land or any buildings or structures on the Land that were erected without obtaining development consent under Part 4 of the Act.

2. Order that the respondents, their servants and agents, take all reasonable steps to prevent the use by any person of Land or any buildings or structures on the Land (including notifying any successors in title) until the respondents, or their successors in title, obtain development consent for the use of the Land in accordance with the Act.

Despite being aware of the Court Orders, the respondents did not comply with the terms of the orders as the premises continued to be occupied to the present day.

A conciliation conference was conducted on 4 May 2020. This resulted in the Land and Environment Court determining dates for all the works to be completed. This matter is now required to be finalised by 15 July 2021.

Compliance Merits received this quarter

Previous quarterly reports have not indicated the number or type of complaints received by the Compliance Team received through Council’s customer request management system (Merit). It is considered important to view these statistics and they will be included in this and all subsequent quarterly reports.

During the period the Compliance Team received a total of 191 Merits and these are detailed in the following table.

Type of Merits Received	Number Received	Percentage of total
Asbestos issues	2	1.05%
Building Works - Not in Accordance Consent	49	25.7%
Building Works - Without Consent	94	49.2%
Defective Building Works	2	1.05%
Earthworks - Without Consent	7	3.7%
Erosion Control - Building Sites	2	1.05%
Erosion Control - Subdivision sites	1	0.5%
Land Use - Without Consent	17	8.9%
Sewerage Management Facility	1	0.5%
Stormwater Runoff - Building Site	10	5.2%
Swimming Pool Fencing Inspection	2	1.05%
Vegetation Clearing - Without Consent	4	2.1%
TOTALS	191	100%

Of these Merits, building works without consent make up 49.2% of all complaints registered in the period. This is a clear indication that development without consent is still high in the Shoalhaven.

Other notable statistics are development not in accordance with consent (25.7%) and land use without consent (8.9%).

Activities by Ranger Services

(a) Zero Tolerance – Dog Attacks – Unregistered Dogs: On 21 April 2020, Council adopted a zero tolerance for all detected unregistered dogs and substantiated dog attacks. This resolution was to apply to all incidents with penalties to be imposed. The Ranger Services Unit have amended their procedures to reflect this position.

Since this resolution and up to 30 June 2020, a total of 76 penalty notices have been issued for unregistered dogs identified in the City (i.e. 76 X $330 = $25,080). A search of the New South Wales Companion Animals Register (CAR) has been conducted with a further 256 penalty notices issued to pet owners for failing to lifetime register their animals (i.e. 256 x $305 = $78,080).

(b) Beach Patrols: Rangers have completed 1,222 beach patrols during this quarter. A total of 212 dog owners have been spoken to with 295 dogs sighted. A total of 98 penalty notices have been issued with 12 official warnings and 25 verbal cautions given.

(c) COVID-19: Rangers have continued to assist with the COVID-19 pandemic by patrolling and monitoring all Council closed assets and public spaces in order to maintained barriers, closed signage and tape.

Education is provided to the Community on social distancing and public order requirements while conducting CBD parking and beach patrols.

The Ranger Services Unit assisted with the redeployment of 4 staff members from Council’s Leisure Centre and Library areas. These Staff members assisted Rangers in their daily duties ensuring COVID-19 controls were maintained across the City.

(d) Illegal Dumping: Rangers have documented 235 new illegal dumping incidents within the Shoalhaven. Each incident has been investigated with a total of 54 tonne of illegal waste recorded. Of this waste, 40% has been identified as household waste with 26 matters remaining under investigation.

One penalty notice for $4,000 was issued for the offence of “Transport excess waste to unlawful facility – class 1 officer – individual” under the Protection of the Environment Operations Act 1997. The offender was also issued with a cost compliance notice of $915 for the associated clean-up costs.

(e) Community Response: Ranger Services Unit has responded to 1367 complaints in order to meet the needs of the Community. Of those complaints 761 related to alleged breaches of animal management. Other concerns raised by the Community related to illegal camping, parking obstructions, pollution incidents, signs and reserve issues.

(f) Animal Shelter: The Animal Shelter has changed their procedures to meet with the COVID-19 pandemic. These changes now see customers required to book an appointment with the Shelter in order to reclaim or adopt an animal. Potential adoptees are provided information on the animal at time of the “meet and greet” including the animal’s needs and requirements to promote responsible pet ownership.

[1] Note – proposed dwelling site is not visible and is screened from view.