Agenda of Development & Environment Committee

Minutes of the Development & Environment Committee

Meeting Date: Tuesday, 1 September 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 – (remotely)

Clr Annette Alldrick – (remotely)

Clr John Levett – (remotely)

Clr Andrew Guile – (remotely) – left at 6.12pm

Clr Mitchell Pakes

Clr Greg Watson

Clr Mark Kitchener

Clr Bob Proudfoot

Mr Stephen Dunshea - Chief Executive Officer

Apologies / Leave of Absence

A leave of absence from Clr Gartner.

Confirmation of the Minutes

RESOLVED (Clr Wells / Clr White) MIN20.601

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

CARRIED

Declarations of Interest

Nil

Call Over of the Business Paper

RESOLVED (Clr Proudfoot / Clr Pakes) MIN20.602

That all items in the business paper be considered in the order they appear in the agenda.

CARRIED

Mayoral Minutes

Nil

Deputations and Presentations

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

DE20.90 - DA19/1857 - 52 Parker Cr, Berry - Lot 710 DP 1247531

Foundation Law Group, representing the Applicant

Paul Christie, representing Huntingdale residents

DE20.93 - Planning Proposal (PP029) and Draft Development Control Plan - Hitchcocks Lane, Berry - Next Steps

Stephen Richardson, Cowman Stoddart, representing Peter & Pamela Brice

DE20.94 - Preliminary Consultation Outcomes - Berry Heritage Investigations

Jennifer Clapham, Berry and District Historical Society

Notices of Motion / Questions on Notice

DE20.86 Notice of Motion - Call In DA20/1743 and DA20/1621

HPERM Ref: D20/380851

Recommendation (Item to be determined under delegated authority)

That Council call in for determination the following Development Applications due to public interest and concern:

1. DA20/1743 - 25 Lake Conjola Entrance Rd Yatte Yattah - Lot 84 DP 817514; and

2. DA20/1621 - 260 Mount Hay Rd Broughton Vale - Lot 2 DP 4498.

RESOLVED (Clr White / Clr Proudfoot) MIN20.603

That Council call in for determination the following Development Application due to public interest and concern:

1. DA20/1621 - 260 Mount Hay Rd Broughton Vale - Lot 2 DP 4498.

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

DE20.87 DA19/2032 – 61 Summercloud Crescent, Vincentia – Lot 1125 DP 1210394

HPERM Ref: D20/100727

Recommendation (Item to be determined under delegated authority)

That the proposed development be approved by Council subject to the conditions specified in the draft development consent.

RESOLVED (Clr Levett / Clr Proudfoot) MIN20.604

That Council receive the advice of Council staff that those residents objecting were not given sufficient notice that the item would be on this agenda, and that this item be deferred to the 6 October 2020 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

DE20.88 s4.55 (2) Modification – 11 Tallimba Road Bangalee - Lot 115 DP 1205688

HPERM Ref: D20/343657

Recommendation (Item to be determined under delegated authority)

That the application, DS19/1421 – 11 Tallimba Rd Bangalee (Lot 115 DP 1205688) be refused.

The reasons for refusal are as follows:

1. The proposed development does not meet the “substantially the same development” test pursuant to clause 4.55(2) of the Environmental Planning and Assessment Act 1979.

2. The proposed development does not comply with the subdivision consent (SF9821) as the proposed vegetation clearing is outside that which is permissible as per the approved Environmental Management Plan under this consent.

3. The proposed development does not comply with concurrence issued by the Office of Environment and Heritage who have already issued a formal warning to Council for non-compliance with this concurrence.

4. The proposed development is contrary to previous approvals granted on the subject site which specifically require the vegetation the subject of this proposal to be retained.

5. Council may be challenged on the validity of the determination if an approval were to be issued.

RESOLVED (Clr Findley / Clr Proudfoot) MIN20.605

That the application, DS19/1421 – 11 Tallimba Rd Bangalee (Lot 115 DP 1205688) be refused.

The reasons for refusal are as follows:

1. The proposed development does not meet the “substantially the same development” test pursuant to clause 4.55(2) of the Environmental Planning and Assessment Act 1979.

4. The proposed development is contrary to previous approvals granted on the subject site which specifically require the vegetation the subject of this proposal to be retained.

5. Council may be challenged on the validity of the determination if an approval were to be issued.

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

Against: Clr Watson

CARRIED

DE20.89 Clause 4.6 Variation Request - DA20/1031 - 5 The Concourse, Cambewarra Village

HPERM Ref: D20/351020

Recommendation (Item to be determined under delegated authority)

That Council

1. Support the variation of the height limit from 5.0 metres to 7.71 metres pursuant to clause 4.6 (Exceptions to development standards) of SLEP 2014; and

2. Refer the development application (DA20/1031) back to staff for determination.

RESOLVED (Clr Pakes / Clr Watson) MIN20.606

That Council resolve not to support the requested variation to the maximum height of buildings requirement.

For: Clr Findley, Clr White, Clr Digiglio, Clr Alldrick, Clr Levett, Clr Guile, Clr Pakes and Clr Watson

Against: Clr Gash, Clr Wells, Clr Kitchener, Clr Proudfoot and Stephen Dunshea

CARRIED

DE20.90 DA19/1857 – 52 Parker Crescent, Berry – Lot 710 DP 1247531

HPERM Ref: D20/257461

Recommendation (Item to be determined under delegated authority)

That Development Application DA19/1857 to construct multi dwelling housing (five (5) detached dwellings) and strata title subdivision at Lot 710 DP 1247531, 52 Parker Crescent, Berry be refused subject to the reasons contained in Attachment 3 of this report.

RESOLVED (Clr Wells / Clr Pakes) MIN20.607

That:

1. Development Application DA19/1857 to construct multi dwelling housing (five (5) detached dwellings) and strata title subdivision at Lot 710 DP 1247531, 52 Parker Crescent, Berry be refused subject to the reasons contained in Attachment 3 of this report.

2. Attachment 3 of this report be amended by including, as a reason for refusal, the application being invalid as it contravenes Clause 4.1f of the SLEP 2014, and that Council’s application of this clause is not sufficiently clear for Council to approve the Development Application.

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

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

CARRIED

DE20.91 Development Application – 37 Bawley Point Road Bawley Point - Lot 270 DP 1001660

HPERM Ref: D20/373066

Recommendation

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

1. The Subject site including the proposed building and APZ is determined to be within the NSW TSC Act listed EEC River Flat Eucalypt Forest on Coastal Floodplains (RFEF). This is contrary to the findings of the Travers Bushfire and Ecology (TBE) report.

2. The environmental referral advice concludes the proposal will have a significant impact on River Flat Eucalypt Forest and therefore a Species Impact Statement is required subject to the assessment requirements of the OEH Director General.

3. As no SIS has been prepared, Council is unable to progress the application any further.

RESOLVED (Clr White / Clr Proudfoot) MIN20.608

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

3. As no SIS has been prepared, Council is unable to progress the application any further.

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

Against: Clr Watson and Clr Kitchener

CARRIED

DE20.92 Exhibition Outcomes and Proposed Finalisation - Planning Proposal (PP047) - Princes Highway, Meroo Meadow

HPERM Ref: D20/249003

Recommendation (Item to be determined under delegated authority)

That Council:

1. Adopt Planning Proposal (PP047) as exhibited, and using Council’s delegation, proceed to finalisation by forwarding the Planning Proposal to the NSW Parliamentary Counsel’s Office with the instruction to draft the required amendment to Shoalhaven LEP 2014.

2. Advise the proponent and surrounding landowners of the resolution and notification of the LEP Amendment.

RESOLVED (Clr White / Clr Proudfoot) MIN20.609

That Council:

2. Advise the proponent and surrounding landowners of the resolution and notification of the LEP Amendment.

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

DE20.93 Planning Proposal (PP029) and Draft Development Control Plan - Hitchcocks Lane, Berry - Next Steps

HPERM Ref: D20/337810

Recommendation (Item to be determined under delegated authority)

That Council:

1. Publicly exhibit the updated Planning Proposal (PP029), to rezone land south of Hitchcocks Lane Berry (Part Lots 762 and 763 DP 1224932); and the supporting draft Shoalhaven Development Control Plan (DCP) Chapter N3 Berry Residential Subdivision, to facilitate subdivision and housing development on the land.

2. Seek a minor amendment to the Gateway determination for PP029 to revise the subject land boundary and PP maps to include the adjacent Hitchcocks Lane Road Reserve (UPN 96829) to improve LEP mapping consistency.

3. Allow for minor changes to the PP029 and draft DCP Chapter prior to exhibition to update graphics and provisions in consultation (if required) with the proponent and the NSW Department of Planning, Industry & Environment.

4. Exhibit PP029 and the draft DCP Chapter N3 Berry Residential Subdivision for public comment for 60 days in accordance with the requirements of the Gateway Determination issued by the NSW Department of Planning, Industry and Environment (DPIE).

5. Continue to progress:

a. A Voluntary Planning Agreement (VPA) to provide landscaping screening along the southern boundary of the subject land to mitigate visual impacts of future development, and

b. A review of the Shoalhaven Contributions Plan (CP) 2019 Project 01OREC0009 (Land acquisition for passive open space - Princes Highway, Berry) to recognise the demand the additional housing lots will place on the passive open space network in the area.

6. Commit to not finalising PP029 until a VPA is secured for landscape screening along the southern boundary of the land and amendments to the CP Project 01OREC0009 to provide adequate open space are made.

RESOLVED (Clr Wells / Clr White) MIN20.610

That Council:

5. Continue to progress:

a. A Voluntary Planning Agreement (VPA) to provide landscaping screening along the southern boundary of the subject land to mitigate visual impacts of future development, and

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

DE20.94 Preliminary Consultation Outcomes - Berry Heritage Investigations

HPERM Ref: D20/346787

Recommendation (Item to be determined under delegated authority)

That Council:

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

a. Twelve (12) 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.

RESOLVED (Clr Findley / Clr Digiglio) MIN20.611

That Council:

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

a. Twelve (12) 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.

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.

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

DE20.95 Ground Penetrating Radar (GPR) Survey Extent - Planning Proposal - 22 Currambene Street and 17 Hawke Street, Huskisson

HPERM Ref: D20/360814

Recommendation (Item to be determined under delegated authority)

That Council:

1. Note the letter received from the Jerrinja Local Aboriginal Land Council, dated 7 August 2020, supporting the recommendation to fund the Ground Penetrating Radar (GPR) Survey on Lot 9 Section C DP 758530 (26 Currambene Street) Huskisson.

2. Allocate $11,000 to enable the Ground Penetrating Radar (GPR) Survey that will be undertaken for Huskisson Church Planning Proposal (Lots 7 and 8) to also include the adjoining Lot 9, which is owned by the Jerrinja Local Aboriginal Land Council, noting that the inclusion of Lot 9 in the GPR survey will enable a more wholistic assessment of this aspect.

3. As part of the next quarterly budget review, determine and confirm where the $11,000 will be allocated from.

RESOLVED (Clr Findley / Clr Proudfoot) MIN20.612

That Council:

3. As part of the next quarterly budget review, determine and confirm where the $11,000 will be allocated from.

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 Guile left the meeting at 6.12pm.

DE20.96 Draft COVID-19 Contributions Discount Subsidy Policy - Post Exhibition Consideration and Finalisation

HPERM Ref: D20/361163

Recommendation (Item to be determined under delegated authority)

That Council:

1. Adopt the draft COVID-19 Contributions Discount Subsidy Policy as exhibited, with the changes shown in Attachment 2 to the report.

2. Advise those who made a submission and the Development Industry Representatives of this resolution.

Motion (Clr Watson / Clr Wells)

That:

1. Council adopt the draft COVID-19 Contributions Discount Subsidy Policy as exhibited, with the changes shown in Attachment 2 to the report with the exception of the following part (a) and (b):

a. Any development proposal which has achieved an operational consent (an operation consent also means the approval of an individual stage where a development is staged) within the development incentive period, as determined by Council from time to time, has 2 years to reach compliance with the policy (25% completion) to qualify for the reimbursement of a percentage of eligible paid contributions.

b. In respect of developments approved prior to April 2020 where contributions have not been paid as at 7 April 2020, they must achieve compliance with the policy by April 2022 to qualify for a refund. The capacity to claim a refund in respect of these applications applies to applications determined before the commencement date of this policy where contributions have not been paid at the commencement date.

2. The CEO be authorised to make interpretive adjustments to this policy.

3. Council advise those who made a submission and the Development Industry Representatives of this resolution.

AMENDMENT (Clr Findley / Clr Digiglio)

That Council defer the decision on this matter until the September Ordinary meeting, and some commentary be provided to Councillors in the intervening period to understand the impact.

The AMENDMENT became the MOTION and was PUT.

motion (RESOLVEd) (Clr Findley / Clr Digiglio) MIN20.613

That Council defer the decision on this matter until the September Ordinary meeting, and some commentary be provided to Councillors in the intervening period to understand the impact.

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

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

CARRIED on the CASTING VOTE of the Chair.

DE20.97 Shoalhaven Animal Shelter Annual Report

HPERM Ref: D20/259277

Recommendation (Item to be determined under delegated authority)

That the Shoalhaven Animal Shelter Annual Report be received for information.

RESOLVED (Clr Findley / Clr Wells) MIN20.614

That the Shoalhaven Animal Shelter Annual Report be received for information.

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

AGAINST: Nil

CARRIED

DE20.98 Review of the Narrawallee and Upper Kangaroo Valley Bushcare Group Action Plans

HPERM Ref: D20/363087

Recommendation (Item to be determined under delegated authority)

That Council adopt the:

1. Narrawallee Bushcare Group Action Plan presented as Attachment 1; and

2. Upper Kangaroo Valley Bushcare Group Action Plan presented as Attachment 2.

RESOLVED (Clr White / Clr Proudfoot) MIN20.615

That Council adopt the:

1. Narrawallee Bushcare Group Action Plan presented as Attachment 1; and

2. Upper Kangaroo Valley Bushcare Group Action Plan presented as Attachment 2.

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

AGAINST: Nil

CARRIED

There being no further business, the meeting concluded, the time being 6.36pm.

Clr Gash

CHAIRPERSON

Development & Environment Committee – Tuesday 06 October 2020

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DE20.100 Proposed Policy - Solar Roof Panels - Efficiency

HPERM Ref: D20/19802

Section: Strategic Planning

Approver: Robert Domm, Director - City Futures

Reason for Report

Within the last 12 months there have been two (2) Notices of Motion relating to the efficiency of solar panels and impacts of overshadowing. Both resulted in resolutions that a draft policy be prepared relating to the performance/efficiency of solar panels.

Preliminary investigations have identified a number of limitations on the development of the requested policies which are discussed in this report.

Recommendation (Item to be determined under delegated authority)

That Council:

1. Strengthen the following existing Council policies and plans to encourage individual renewable investment and protect solar roof panels on both private and public land:

a. Shoalhaven Development Control Plan 2014.

b. POL15/28 - Renewable Energy Installations on Council Assets.

c. POL18/44 - Sustainable Energy Policy.

d. POL16/10 - Tree Management Policy – Public Land.

2. Receive a further report/s in a timely fashion to address the detail of the proposed amendments to the policies and plans identified at Part 1 and to progress this matter as efficiently as possible.

Options

1. As recommended.

Implications: This is the preferred option as it will allow additional provisions to be drafted in a timely fashion, as part of ongoing amendments to Shoalhaven Development Control Plan 2014 (DCP) and a number of existing Council policies. Such an amendment could assist in ensuring that where development consent is required, greater consideration is given to the protection of solar roof panels so they are able to perform at their optimum level of efficiency, whilst also avoiding policy duplication or conflict with over-arching state legislation. The changes to existing Council policies would strengthen consideration and direction regarding renewable investment and protect solar roof panels.

2. Draft a new stand-alone policy as per Council resolution MIN19.874 and MIN20.350.

Implications: This option is not favoured as the intent of Council’s resolutions could be more effectively and efficiently achieved by amending the DCP and a number of existing Council policies. Despite this, a standalone policy could be prepared, however there would likely be duplication between the new Policy and Council’s existing policies, and the conflict with the overarching state legislation would remain.

3. Adopt an alternative recommendation.

Implications: This will depend on the nature of the recommendation; however, impacts will need to be investigated to ensure that there are no additional policy implications – i.e. conflict with NSW Government planning instruments.

Background

Council resolved on 26 November 2019 (MIN19.874) that:

Council staff prepare a draft policy aimed at ensuring that solar roof panels (both public and private) perform at their optimum level of efficiency. Particular emphasis in preparation of the policy would need to include innovative ways of dealing with overshadowing, especially in the foreseeable future.

Additionally, it was also resolved on 26 May 2020 (MIN20.350) that:

Council staff prepare a draft policy, which ensures that any negative impact of overshadowing, cast from trees onto solar panels located on the rooves of private residences, is as far as possible, eliminated. This policy would need to address the ongoing maintenance of trees on both public lands and private lands alike and would maximise the likelihood that individual renewable investments are both encouraged and protected.

This report provides a follow up report regarding these two related resolutions.

Review Process

Following the resolutions, a number of existing policies and documents relating to solar efficiency were reviewed, including the following:

· Existing Council policies relating to solar roof panels.

· Relevant chapters of Shoalhaven DCP2014.

· Other NSW Council policies and DCPs.

· State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

· State Environmental Planning Policy (Infrastructure) 2007 (ISEPP).

These are discussed in further detail below.

Existing Shoalhaven Council policies relating to solar roof panels

Council currently has three existing policies that are relevant to solar and the protection of solar roof panels. These policies are briefly summarised in Table 1 as well as examples of how the policies could be strengthened in line with Council’s resolution.

Table 1: Overview of existing policies and opportunities

Policy	Summary of Policy	Opportunities to Strengthen
POL15/28 - Renewable Energy Installations on Council Assets	Outlines criteria relating to solar suitability and is utilised when considering the installation of solar roof panels on Council assets. One of the main criteria considered when selecting suitable assets for rooftop or ground-mounted solar systems is minimal shading of the panels.	POL15/28 could be strengthened to further protect solar access by including criteria to identify/manage the future risk of overshadowing when investigating the installation of renewable energy solutions on Council assets and establishing considerations to mitigate this risk. The amendment could also emphasise the requirement to preserve solar access rights across Shoalhaven,
POL18/44 - Sustainable Energy Policy	Outlines Council’s efforts to increase the uptake of renewable energy solutions in relation to both Council operations and more broadly within Shoalhaven. The policy relates to the Council’s vision to operate its energy consuming assets and fleet transport in a sustainable manner with minimal effect on the natural environment.	An amendment to POL18/44 could emphasise the requirement to preserve solar access rights across Shoalhaven, however the scope is limited based on the nature of the Policy.
POL16/10 - Tree Management Policy – Public Land	Identifies the impact of overshadowing from trees on solar panels and identifies a criterion when tree removal is considered appropriate on public land. This includes the 45-degree rule. These current provisions provide a criterion which permit the removal of trees to protect pre-existing solar panels.	Table 1 of the policy could be amended to include consideration for pruning trees on Council owned or managed land, where trees are existing prior to the installation of solar panels on privately owned land. This amendment would need to consider a new assessment criterion, as well as budget implications and staff resourcing associated with additional tree pruning applications.

Other council DCPs and relevant chapters of Shoalhaven Development Control Plan 2014

The following Shoalhaven DCP2014 chapters currently contain provisions relating to solar access and amenity, and impacts on solar collectors:

· G1: Site Analysis, Site Design and Building Materials.

· G4: Tree and Vegetation Management.

· G11: Subdivision of Land.

· G12: Dwelling Houses and Other Low-Density Residential Development.

· G13: Medium Density and Other Residential Development

Where development consent is required, Council’s existing DCP controls help to ensure that consideration is given to private open space, living areas, overshadowing, solar amenity, and the impact on solar collectors.

Striking a balance in relation to an appropriate level of controls is important, as introducing additional and more stringent provisions designed to protect solar systems from adverse overshadowing has the potential to impact on the design and form of future development.

Whilst the existing Shoalhaven development controls regarding solar access for low density residential development (including 5 star solar design for residential subdivisions) is considered appropriate, there may be scope to include additional provisions within a future amendment to the DCP, with particular emphasis on medium density and commercial and industrial premises.

As part of these investigations, staff also reviewed DCPs across NSW and found that a number of councils have DCP provisions in place to protect and minimise the impacts associated with the installation of solar roof panels on residential and commercial buildings. The following additional provisions could be adapted to further support existing Shoalhaven DCP provisions:

· Implementation of additional controls relating to the number of hours of direct sunlight received on 21 June (winter solstice) for a range of development types.

· Outline Council’s expectations for shadow diagrams so that owners provide good quality solar diagrams but avoid providing unnecessary detail. This will also assist in managing applicant costs in this regard.

· Implementation of solar related controls relating to industrial and commercial development.

The following changes to Shoalhaven DCP 2014 would be beneficial:

· G11: Subdivision of Land:

- Detail regulations for solar cell opportunities.

- Specify design requirements for battle-axe lots to ensure suitable separation between dwellings.

· G13: Medium Density and Other Residential Development - Currently, there are no shadow diagram requirements within this Chapter. Given medium density development could have significant impacts on the residential setting, a possible future amendment could include requirements for shadow diagrams with the lodgement of certain development applications. Content of this nature has not previously been included as medium density development has historically be located in higher density areas where there is a level of expectation that solar access will be impacted more so than in a low density residential area. However, as infill medium density development continues to increase in low density residential areas (e.g. dual occupancies), greater consideration of solar preservation resulting from medium density development is required.

· G17: Business, Commercial and Retail Activities - Protection of solar panels on adjoining/adjacent development and number of hours of direct sunlight received by solar panels on 21 June (winter solstice).

· G20: Industrial Development - Protection of solar panels on adjoining/adjacent development and number of hours of direct sunlight received by solar panels on 21 June (winter solstice).

In relation to trees and overshadowing on private land, DCP Chapter G4: Tree and Vegetation Management, in accordance with Part 3 of the Vegetation SEPP, provides a number of exemptions which enable some trees to be removed without a permit. Where development approval is required for tree removal, Council staff make an assessment based on the assessment criteria for tree removal and pruning outlined within the DCP, as well as the relevant provisions set out within the Vegetation SEPP and NSW Biodiversity Conservations Act 2016. These provisions are considered sufficient to assist in resolving issues with solar panels. It is noted that there may be instances of tree disputes (e.g. neighbour refuses to remove a tree that may be shadowing an adjoining property/solar collector) and the Chapter should acknowledge that there is generally nothing that Council can do in this regard.

Other NSW council policies

Based on research undertaken, no councils in NSW currently appear to have a dedicated policy similar to those proposed in MIN19.874 and MIN20.350.

Overarching legislation

Table 2 outlines the overarching state legislation that requires consideration in relation to solar panels and trees:

Table 2: Overview of relevant state legislation

Legislation/ matter

Overview

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP)

It is noted that ‘complying’ development is not required to consider impacts on solar collectors. This means that where a dwelling can be approved as ‘complying’ development, it does not need to consider the impacts on the solar collectors of an adjoining dwelling or other development.

As such, a dedicated Council policy would not help to overcome the issues associated with or created by ‘complying’ development. Council may wish to raise the inequity between ‘complying development’ and the development application pathways in this regard as part of a future submission to the NSW Government.

State Environmental Planning Policy (Infrastructure) 2007 (ISEPP)

Division 4 of this SEPP outlines the assessment pathways for the installation of solar energy facilities, this includes both ‘exempt’ and ‘complying’ development, as well as development requiring consent.

The development standards within this SEPP enable a significant number of solar collectors to be installed on both residential and commercial developments under the ‘exempt’ or ‘complying’ development approval pathway.

As the installation of solar systems generally does not require development consent, the ability to achieve the intended outcome of Council’s resolutions is compromised.

Disputes between neighbours resulting from trees overshadowing solar panels

Currently there is no legislation within NSW to support Council when dealing with disputes between neighbours that arise as a result of solar panels being overshadowed by trees from an adjoining property.

Whereas the Dividing Fences Act 1991 provides a mechanism for Councils to deal with neighbour disputes, the Trees (Disputes Between Neighbours) Act 2006 dictates that councils do not have the authority to resolve disputes over trees. The Trees (Disputes Between Neighbours) Act 2006 pertains solely to trees at risk of causing damage or obstructing views and sunlight to windows as opposed to impacts on solar panels.

Conclusion

Council’s current policies do not address the impact of overshadowing of solar panels on privately owned land, whether residential or non-residential in nature. However, there are a number of existing provisions within relevant chapters of Shoalhaven’s DCP which address solar panels and overshadowing. There is merit in supplementing/strengthening a number of Council’s existing policies and the DCP to meet the intent of the Council resolutions.

Introducing a dedicated policy designed to protect solar systems from adverse overshadowing may be problematic as it would be severely limited by both the Infrastructure SEPP and Codes SEPP. Not only do these two SEPPs prevent the proposed policy intent from being fully and consistently achieved, but any policy creation in this regard is likely to conflict with existing over-arching NSW legislation. Further, there would be duplication between the proposed new policy and existing policies of Council.

In relation to Council resolution MIN20.350 regarding overshadowing from trees, provisions within Shoalhaven DCP2014 Chapter G4: Tree and Vegetation Management, are generally considered sufficient to protect solar panels on both public and private land (with a minor supplement); however, potential amendments to POL16/10 - Tree Management Policy – Public Land, will assist in ensuring solar panels are protected into the future.

Community Engagement

No community engagement has been undertaken to date. Any future amendment to the DCP would be publicly exhibited for a period of at least 28 days in accordance with legislative requirements. Depending on the nature of the changes to existing Council policies, exhibition may also be required in this regard.

Policy Implications

The establishment of additional policy regarding solar roof panels has the potential to impose onerous restrictions on the design and form of future development. Additionally, given the extent of provisions within the ISEPP, introducing an additional policy increases the chance of conflict with NSW Government legislation.

Financial Implications

Any potential policy development or future amendments to the DCP will be resourced from the existing Strategic Planning budget. A funding source for the existing Council policies will be identified in future reports.

The proposed amendments to POL16/10 Tree Management Policy may result in financial implications associated with budget and resourcing.

Development & Environment Committee – Tuesday 06 October 2020

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DE20.101 Moss Vale Road North Urban Release Area - Progressing Planning for Release

HPERM Ref: D20/386419

Section: Strategic Planning

Approver: Robert Domm, Director - City Futures

Attachments: 1. Comparison of current and Owners Group's proposed zones ⇩

2. Adjusted Development Outcome ⇩

3. Comparison of Owner Group Proposal and Adjusted Development Outcome ⇩

4. Alternative Centre Location ⇩

Reason for Report

1. Provide an update on the planning of the Moss Vale Road North Urban Release (URA) Area, including:

· testing and refining of the Moss Vale North Owners Group’s 2019 proposal,

· collaboration activity between Council officers, the Owners Group, and other significant landowners, and

· ability to pursue Biodiversity Certification for the release area.

2. Obtain Council’s endorsement to prepare a Planning Proposal (PP), recommending adjusting changes to the planning controls, to progress the release area and submit it for initial Gateway determination. This will also enable work to continue on the required Development Control Plan (DCP), development contributions framework and other related matters to advance with some certainty.

Recommendation (Item to be determined under delegated authority)

That Council:

1. Endorse the preparation of a Planning Proposal to amend the provisions and mapping in Shoalhaven Local Environmental Plan 2014 relating to the Moss Vale Road North Urban Release Area as outlined in Table 2 of this report.

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

3. Adopt the proposed Indicative Layout Plan provided as Figure 1 as the basis for developing detailed Development Control Plan Chapter and a development contributions framework for the release area.

4. Not proceed with an application for strategic Biodiversity Certification of the release area and continue to consider opportunities for managed biodiversity outcomes.

5. Receive a further report on the outcomes of the Gateway determination, draft Development Control Plan Chapters, development contribution framework, and various other planning matters relating to the delivery of the Moss Vale Road North Urban Release Area.

Options

1. Support the recommendation.

Implications: This is the preferred option and will enable the submission of a PP to adjust and update the planning controls for the URA to the NSW Department of Planning, Industry & Environment (DPIE) for Gateway determination. It also allows work to continue on preparing the detailed DCP and development contributions framework that will guide the future delivery of the URA and its required infrastructure. Completing the release of this area is a high priority project, confirmed by Council’s earlier decisions and in the adopted Strategic Works Program. It will facilitate subdivision activity and the release of residential lots, helping to meet identified housing demand.

Investigations into the viability of a strategic Biodiversity Certification application for the URA indicate a significant chance of net financial loss for Council. As a result it is not recommended that this application proceed. Alternative options for funding the restoration of biodiversity resources within the release area will continue to be investigated.

2. An alternative resolution.

Implications: The implications will be subject to the nature and content of the alternative resolution, but any decision requiring further analysis, studies, or an alternative outcome for the URA, will add time (and delay) to the work delivering the URA. The current timeframe for submitting a PP for a Gateway determination before the end of 2020 would likely not be met.

3. Not support a recommendation.

Implications: This would effectively cease the project and the planning controls currently applying to the URA would be maintained, including the requirement to a DCP and make suitable provision for infrastructure before the area can be developed, meaning no subdivision development applications could be determined.

Background

The 266-hectare URA was identified as a ‘New Living Area’ in the Nowra-Bomaderry Structure Plan (2006) with the identified potential at that point to provide about 1,300 dwellings. The URA was confirmed with land use zones, an enlarged footprint providing for additional lots/dwellings and other related provisions guiding its release in Shoalhaven Local Environmental Plan 2014. Council considered the timing for the delivery of the URA in March and August 2017, resolving to accelerate its delivery.

In 2019, the Moss Vale North Owners Group, comprising several major landowners within the URA, submitted an alternative outcome for the area for Council’s consideration. This sought to deliver about 2,500 dwellings (an increase on the outcomes facilitated by the current planning controls), adjusted the size and function of the retail centre, refine the E2 Environmental Conservation zones applied to the riparian corridors and adjust other components of the URA. Attachment 1 provides a comparison of the current LEP zones, being a mix of residential, public recreation, business and environmental and those proposed under the Owners Group’s proposal.

The Owners Group supported its proposal with an indicative layout plan, draft development controls and a range of technical studies relating to bushfire, infrastructure (including transport), scenic values, contamination and biodiversity. The Owners Groups’ package of information can be viewed online at:

https://www.shoalhaven.nsw.gov.au/Council/Access-to-Information/Planning-Proposals-Pre-gateway

In August 2019, Council considered the alternative outcome and supporting information and resolved to work collaboratively with the Owners Group, giving ‘in principle’ support to the package being used as the basis for the documents guiding the delivery of the URA (LEP amendment, new DCP chapter, and a development contributions framework). Given the Owners Group subsequent split into two major groups representing 47% and 34% respectively of development land in the release area, Council officers have been engaging collaboratively but separately with both. This is discussed in more detail later in the report.

Council also resolved to investigate the possible biodiversity certification of the URA, development of an affordable housing development contributions scheme and suburb naming options.

Preparation of Planning Documents

The selection of planning controls (for inclusion in a PP), detailed development controls (to make up the DCP Chapter) and identification of development contributions framework rely on an evidence base of technical documents. Some of these documents were provided by the Owners Group and others have been directly commissioned by Council. The review of the Owners Group’s information identified some information gaps and the need for additional studies to ensure that a robust, achievable and defendable PP could be submitted for Gateway determination.

The following studies have now been completed:

1. Retail analysis – to inform the amount and type of retail floorspace needed by the future community. This analysis is required to justify proposed changes to the size, type, and location of commercial zones. Note: analysis not included in the Owners Group’s information.

2. Urban design guidance – to assist with the consideration or an optimal location and orientation of the proposed retail centre.

3. Gas pipeline safety management study – to confirm the type and scale of development possible adjacent to the Eastern Gas Pipeline located that runs through the URA. This study is required to comply with the NSW Government’s Planning Circular on controlling development near pipelines. Note: study not included in the Owners Group’s information.

4. Visual Analysis – a peer review of the visual analysis provided by the Owners Group, with a focus on the scenic/visual corridor along Moss Vale Road. This review is required to confirm the appropriate corridor and justify proposed changes to the size of related land use zones.

5. Community infrastructure needs analysis – to identify the community infrastructure required by the future population. This analysis is required to inform the amount and location of open space to be included on the indicative layout plan and in the development contributions framework. Note: analysis not included in the Owners Group’s information.

6. Traffic study – to add value to the information provided by the Owners Group and confirm the type and location of roads and connections to the existing network, informing an indicative layout plan and the development contributions framework.

7. Integrated water management study – to identify options, including land requirements and infrastructure, to sustainably manage stormwater run-off (quantity and quality). This study was directly commissioned by Council for efficiency as the consultants had just completed a similar study for the Moss Vale Road South URA.

These studies can be viewed online at:

https://www.shoalhaven.nsw.gov.au/Council/Access-to-Information/Planning-Proposals-Pre-gateway

The consideration of these studies suggests some adjustment of the Owners Group’s proposal to ensure the delivery of a responsible and sustainable development outcome that meets the needs of the future community. Other adjustments are required to improve the commercial viability of the development outcome, helping secure its timely delivery by industry. The proposed refinements are summarised and explained later in this report.

Other technical studies may still be required as related detailed work progresses, such as the design and costing of identified infrastructure for development contributions, or to inform consultation with Government Agencies as the PP progresses through the Gateway process. Potential examples include an additional bushfire assessment to address recently published guidelines, and a riparian lands study to justify proposed changes to existing watercourses.

Collaboration with Landowners

The ownership of the URA is currently split amongst 17 owners, each with a varying share of the 165.5 hectares currently zoned for development (with a residential or business zone). The Owners Group has 4 members who own 79.4 hectares or about 47% of the area currently zoned for development. The majority of the URA is split amongst the other 13 owners, including one significant land holding of 55.4 hectares (or about 34% of the area currently zoned for development). Engagement with the owner of the significant 34% land holding has included written updates, the sharing of completed studies and several digital meetings. This owner has expressed verbal support for the continued planning and the adjusted development outcome identified for the URA.

A professional working relationship has been established with the remainder of the original Owners Group and its project team (including planning and technical consultants). This has been used to inform the preparation and refinement of technical studies, consideration of related findings, and adjustment of development outcomes. Collaboration activities have included regular dialogue with a single owner representative and a planning consultant but also other members of the Owners Group. Activities include:

· Monthly written progress updates on the preparation of planning documents, findings of technical studies, and refinements to potential development outcomes.

· Monthly meetings (in person or online) with the Owners Group to discuss progress and matters arising.

· A workshop and exchange of information to refine the development control chapter.

· Representatives of the Owners Group attended the workshop informing the Gas Pipeline Safety Management Study.

· Provision of copies of the completed studies, an opportunity to provide feedback on findings, and the consideration of any feedback.

· Two technical workshops to discuss the integrated water management study.

· Confirmation of a shared intent to investigate options to contribute to the supply of affordable housing in Shoalhaven.

Finally, a workshop to discuss an adjusted development outcome responding to the findings of the technical studies was held with the remaining members of the Owners Group on 31 July 2020. This examined key changes to the development outcome, including, the location of the proposed retail centre, areas of medium density development, open space provision, and water management infrastructure. The Owners Group was invited to respond to the alternative outcome and provide feedback on the studies about traffic, visual analysis, and community infrastructure.

Documentation from the workshop was also contemporaneously provided to significant landowners no longer part of the Owners Group.

On 10 September 2020, the Owners Group responded to the workshop, providing a response on several matters, including the proposed integrated water management solution, location of the retail centre, and the findings of the traffic study. It also provided a revised Indicative Layout Plan (amending the 2019 proposal). This information has received further consideration in the development of the adjusted development outcome which is outlined and discussed below.

Adjusted Development Outcome

Wherever possible, the Owners Group’s proposed outcomes have been maintained, for example, the extent of the proposed environmental zone applied to riparian corridors in the original 2019 submission or the greater range of uses sought for the local retail centre in the September 2020 update. This includes the Owners Group’s desired dwelling yield outcome – about 2,500 dwellings.

The adjusted development outcome maximises dwelling yield in a considered and responsible way to make efficient use of already zoned land (in the URA), removing pressure for development in more sensitive locations elsewhere. It also maximises the use of existing infrastructure and planned infrastructure investment. Adopting comparable development assumptions to those being delivered in the Moss Vale Road South URA, a rate of dwellings per hectare has been identified for the various residential areas. High and low scenarios have been used to identify an indicative number of new homes. These scenarios or the range in the potential dwelling yield accounts for:

· variation and flexibility in the subdivision design required in response to physical constraints, such as topography and retained vegetation,

· the land required for easements, services, and infrastructure, such as electricity substations, drainage, and open space, and

· the residential densities and products, including dual occupancies and secondary dwellings, the market might demand, or industry chooses to deliver.

Application of the high and low scenarios to the adjusted development outcome indicates the potential for between 2,380 and 3,360 new dwellings. The ultimate number of new dwellings depends on the final lot layout given the above variables, which will only be determined when a developer commences detailed subdivision planning. Further opportunities to increase the potential dwelling yield are provided by the retail centre, where the planning controls allow 1-2 storeys of units above ground floor commercial premises. This would also increase the diversity of new homes within the release area.

The Owners Group’s proposal has been adjusted in response to the findings of the technical studies and subsequent planning considerations. Adjustments include:

1. The design of the water management infrastructure (type and location of devices) to ensure an easy and cost-effective maintenance regime and avoid similar issues and costs experienced, for example, with the drainage infrastructure at the Bayswood Estate, Vincentia.

2. The location of the retail centre to help ensure it is commercially viable (to construct and operate) and secure its early delivery for the future community, avoiding delays such as those observed at Worrigee (approximately 30 years between initial subdivision and centre construction).

3. Securing the land for increased infrastructure requirements to service the future community, such as open space and wider roads to manage traffic, car parking, pedestrian, and cyclists.

Other significant factors considered and addressed in the adjusted development outcome are commercial viability and opportunities to accelerate subdivision activity. The adjusted outcome optimises these by taking advantage of and building on the planned roundabout on Moss Vale Road to service both northern and southern release areas. NSW Government funding has been secured for the design and construction of this roundabout, with completion expected in the second half of 2021. The roundabout provides a logical starting point for initial subdivision activity while the associated North-South road into the release area will provide early access to the retail centre and other residential zoned land, including an 18-hectare site owned by an experienced development company.

Figure 1 (and Attachment 2) identify the adjusted development outcome (including the indicative roundabout location) and the following table (Table 1) provides more detailed rationale for the key changes. Attachment 3 provides a comparison of the Owners Group’s proposal and the adjusted outcome.

There are two key components of the adjusted development outcome that the remaining members of the original Owner’s Group have issues with. These are the:

· Design of the integrated water management solution, with the Owners Group identifying concerns with water quality outcomes, efficient management of flows, and potential loss of developable area/dwelling yield due to the size of the infrastructure.

· Location of the retail centre, with the Owners Group identifying its preferred location to increase exposure to passing traffic and concerns with perceived loss of links with open space and landscape features (a farm dam and a stand of mature trees).

The Owners Group also has issues with some of the findings of the traffic study, relating to the recommended road types and cross sections, and potential impacts on developable area/dwelling yield. However, it must be noted that the PP will not confirm any outcomes for road types and cross sections and these matters can continue to be discussed and settled during the preparation of the more detailed development controls.

Figure 1 – Adjusted Development Outcome

Table 1: Discussion of adjusted layout

Component	Discussion
Water management Infrastructure	The Owners Group proposed solution focusses on managing flows with treatment provided by a complex system of many devices dispersed throughout the release area with the majority located within identified riparian corridors. The ability of the proposed system to maintain or improve water quality needs to be tested. This solution has several potential implications, including high construction and Council maintenance costs (for lots of devices), and the effectiveness of the devices in areas at risk from flooding. Thorough consideration of these implications is required to avoid similar and potentially larger, issues and rectification works such as experienced with the Bayswood Estate, Vincentia. The integrated water management study identified an alternative, outcome with a smaller number of larger devices, including basins and wetlands, to manage flows and improve water quality. Other potential benefits include: · Lower construction cost as there are less devices, · Easier and cost-effective maintenance (for Council), · Greater function as infrastructure is above the area at risk from flooding, · Increased amenity through integration of drainage with landscaping and open space, · Consistency with development controls and standards, including systems delivered in other release areas, and · Reducing the cost of subdivision activity by removing the need for temporary drainage solutions. A greater area of land proposed to be zoned for residential purposes is required for this outcome – 35,000m². To address the Owners Group’s position, Council staff have incorporated two design changes to better align the Owner’s Group proposal and the recommendation of the study. These include the use of an existing dam, subject to suitability testing, and replacing 2 large wetlands with 4-6 smaller devices. An indicative location for the proposed drainage infrastructure is provided in Figure 1 – the blue stars and blue shaded area (to east/left of Bells Lane). The adjusted development outcome will provide an environmentally responsible and attractive scheme compliant with Council’s adopted controls and standards. It also ensures a cost-effective and financially sustainable management regime, avoiding significant burden on Council or the future community. Importantly, the adjusted outcome requires a smaller amount of land, requiring about 25,000m^2,with possible further reductions to be gained through the integration of basins within public open space.
Retail Centre	The retail analysis recommends a neighbourhood-scale centre in a central location to service the future community. It confirms 1,000-2,000m² of retail floorspace on about 1-1.5 hectares of land would be commercially viable and would adequately meet identified need. It also predicts a larger centre would be unfeasible, leading to no/late delivery or later failure, due to the size of the future population and established and the new or planned retail centres (the nearby Woolworths and Aldi supermarkets). The urban design advice also recommended an optimal location. The Owners Group’s proposed B2 Local Centre zone is considered the most appropriate zone for the Centre. It will provide a range of business and retail uses greater than normally found in a neighbourhood centre, helping to encourage early delivery, improve feasibility, and provide flexibility to respond to changing retail practices. However, interim residential uses of retail premises are not recommended due to the complexity of controls required to manage this outcome, difficulties in reversing the temporary use, length of tenancies, the quality of temporary dwellings, land use conflict, and loss of amenity during transition from residential to retail. The adjusted outcome will potentially provide a more commercially achievable and superior outcome to the Owners Group’s proposal as it provides a centre size, location and zone that delivers: · Optimal exposure and ease of access at the intersection of two main roads, elements critical to the feasibility of the centre, · Early delivery, as the adjacent main road will be delivered during the earliest subdivision stages, · A walkable catchment (400m walking distance) to service the future community containing about 40 hectares of residential zoned land, · Equitable and early access for the future community of Moss Vale Road South URA (950 households) from the roundabout and associated road, helping to support the early delivery and feasibility of the centre, and · Links to public open space and other community uses. The Owners Group’s preferred location has less benefits. It is on the intersection of two roads – Bells Lane and Abernethys Lane – and has links to open space containing an existing dam and stand of vegetation. However, the roads (existing) are due to be upgraded during later stages of the subdivision, potentially delaying the delivery of the centre or complicating its operation. It is also likely the existing landscape features will change or could be lost through subdivision activity and associated earthworks as experienced with the Taylors Lane redesign in the southern release area. The existing farm dam is also likely to go through significant upgrades as it is made suitable for integration into the drainage system. The proposed location does not provide the same level of access to the immediate community or surrounding suburbs as the recommended centre location, containing 33 hectares of residential land in its walkable catchment and being further away from the southern release area (a 2km drive along Moss Vale Road and Bells Lane – about the same distance to the current Woolworths supermarket). These factors may decrease its long-term viability. The Owners Group rely on the future delivery of the Far North Collector Road facilitating increased traffic flows past the centre. An interim intersection of this new road with Moss Vale Road, but not servicing the release areas, is planned for delivery by June 2022 (up to 12-months after the Moss Vale Road/Release Area roundabout). No timeframe has been set for the upgrade of Bells Lane and an improved intersection to service the release area. In addition, the potential support for the centre from the delivery of this road is uncertain, as it will improve access and shorten journey times from the release area to higher-order retail centres (the established Woolworths supermarket), i.e. retail expenditure could be lost from the release area. Attachment 4 provides an indicative layout plan with the Owners Group’s proposed centre location and corresponding adjustments to areas of small lots and medium density residential areas. The detailed design of the centre will be considered during the continued preparation of the DCP chapter.
Dwelling Diversity	Dwelling diversity is achieved throughout the URA with: · 5.9 hectares of R2 Low Density Residential zoned land at 10-14 dwellings per hectare provides between 60 and 80 dwellings (rounded). · 1.8 hectares of R3 Medium Density Residential at 21-35 dwellings per hectare provides between 40 and 60 dwellings (rounded). · 147 hectares of R1 General Residential at 15-20 dwellings per hectare provides between 2,200 and 2,940 dwellings (rounded). · The proposed small lot controls provide opportunities for an extra 80 to 280 dwellings. The adjusted development outcome has the potential for upwards of 2,380 new dwellings (with a potential upper limit of 3,360 dwellings). This is considered to deliver a measured and responsible increase in dwelling yield while providing the land required for necessary drainage infrastructure, open space, and increased bushfire asset protection zones.
Open Space	The community infrastructure needs analysis identified the need for 12 hectares of open space to service the future community, with two thirds as formal parks and sports fields and the remaining third as natural areas (extent and location to be determined on biodiversity values and ability to support recreation). For the passive space, two large parks are zoned for public recreation – one near the village centre and one adjacent to the riparian corridor in the north of the release area. Four smaller parks (0.5 hectares) are proposed within the residential areas (no open space zoning required), consolidating the pocket parks proposed by the Owners Group and returning them to the development area. For the active space, a 3-4-hectare sportsground is required. This can be provided on-site in the central open space providing a hub of missed-use open space (active and passive) or provided off-site (through development contributions) to provide equity of access to surrounding communities. The level of embellishment and funding mechanisms will be addressed in the proposed development contributions framework.
Scenic corridor	The peer review of the visual analysis found the proposed buffer and bund to provide a suitable scenic corridor. It also provided several other recommendations to be considered during the preparation of DCP controls (subject of a future report). The peer review did highlight the need for greater asset protection zones for adjacent homes. The provision of suitable asset protection zones is being examined in an additional bushfire assessment (an assessment also required to consider updated NSW RFS guidance). In the interim, the adjusted development outcome increases the width of the E3 Environmental Management zoned land along Moss Vale Road (from 32m to 45m) to provide the required asset protection zone. This can be reviewed upon receipt of the additional bushfire assessment. The peer review also recommended improvements to the road layout and landscaping. These will be considered during the preparation of development controls.
Gas Pipeline	The gas pipeline safety management study confirmed the pipeline is constructed to a standard suitable for the proposed development (non-rupture). To ensure the ongoing integrity of the pipeline, the study identifies the need for development controls: · for road and utility crossings, · referring subdivision and development applications within the identified measurement length (identified as ML on the adjusted development outcome) to the pipeline operator, and · requiring more detailed safety management studies for construction activity adjacent to the pipeline. The pipeline is proposed to be zoned RU1 Primary Production, consistent with the zoning of other regionally significant infrastructure, such as the Nowra-Bomaderry Bypass, allowing dedication to be addressed at a future time.
Traffic	The traffic study confirmed the existing, external road network will only need minor upgrades to continue to operate efficiently when the release area is delivered. The study also recommends an internal road network, road typologies or cross sections, potential public transport routes, and a shared user pathway network. It has been used to inform the adjusted development outcome, but the details of the road and pathway infrastructure will be settled during the preparation of development controls.

Proposed next steps

To ensure the timely advancement of the planning framework for the release area, a PP needs to be prepared and submitted for a Gateway determination. Table 2 lists the amendments required to the current LEP planning controls to deliver the adjusted development outcome identified in Figure 1 – the basis of the recommended PP.

Table 2: Proposed content of the PP

Component of Shoalhaven LEP 2014	Proposed Amendment
Land Zoning Map	Adjustment to land use zones to match Figure 1.
Height of Building Map	· Apply an 8.5m height to land zoned R2 Low Density Residential. · No mapped height for other zones – defaulting to 11m.
Minimum Lot Size Map Clause 4.1H Exceptions to minimum subdivision lot sizes for dual occupancies and dwelling houses (Enabling clause for small lots)	Apply the following lot sizes to corresponding zones: · R1 General Residential: 500m² · R2 Low Density Residential: 1,000m² · E2 Environmental Conservation: 40 hectares · E3 Environmental Management: 40 hectares · E4 Environment Living: 2 hectares · RU1 Primary Production: 40 hectares (No minimum lot size is set for land zoned R3 Medium Density Residential, B2 Local Centre, or RE1 Public Open Space) Apply Clause 4.1H in identified locations close to the retail centre, open space, and main roads to permit subdivision into 300-499m² lots.
Scenic Protection Area Map	Remove the application of this map from land zoned B7 Business Park.
Urban Release Area Map	Amend the current map to apply to all residential and business zoned land in the adjusted development outcome.
Clauses Map	Amend the current map to apply to all residential and business zoned land in the adjusted development outcome.
Riparian Lands and Watercourses Map	Amend the current map to apply to the watercourses proposed to be zoned E2 Environmental Conservation.

As the PP progresses through the Gateway process, work will continue on the remaining planning documents – the DCP Chapter and development contributions framework. The endorsement at this point of the adjusted development outcome will allow finalisation of draft:

· development controls to guide future subdivision and development activity (including village centre controls, road typologies, and development staging plans).

· development contributions to fund and deliver the infrastructure and facilities to support the future community.

Council staff will also continue to progress investigations into biodiversity planning outcomes, affordable housing opportunities and suburb name/boundary. It is intended that a further report will be provided to Council in early 2021 to:

· Provide the results and a summary of the PP Gateway determination.

· Seek endorsement of a draft DCP chapter and development contribution framework for public exhibition.

· Provide an update on various other matters relating to the delivery of the release area (e.g. affordable housing, and suburb naming).

· Seek endorsement to publicly exhibit the planning package (PP, DCP chapter and development contributions framework).

Biodiversity Certification

When considering the Owners Group’s 2019 submission, Council resolved to investigate the strategic biodiversity certification of the release area to help fast-track future subdivision applications. The technical study provided by the Owners Group’s consultant, JB Enviro, stated Biodiversity Stewardship may not be practical given the cost of the required assessment, application fee, the few credits generated, and management costs.

Council staff engaged JB Enviro consultants to undertake some further work to estimate the credit potential of the biodiversity resource in the release area and the size of the fund deposit required to manage the resulting stewardship site. This work found the limited size and quality of the biodiversity resource would not generate sufficient credits. The current market value of the 108 credits does not cover the costs to properly rehabilitate the area through a Vegetation Management Plan (VMP), with a potential shortfall of between $57,000 (under the moderate VMP scenario) and $687,000 (under the intensive VMP scenario – most likely).

The timeframes observed for biodiversity certification investigations for similar release areas in Wollongong indicate 5-6 years or longer to implement. There are no other current examples under the current process on which to provide an improved estimate of the time required to settle biodiversity certification for the release area.

Biodiversity Certification is fully supported because of its strategic conservation outcomes and quicker development approvals. However, as it is financially unviable for Council, the absence of funding sources, as well as uncertain and significant timeframes, it is recommended to not proceed with current investigations and instead examine other options for funding restoration of the biodiversity resources within the release area.

Community Engagement

Subject to the Gateway determination, the PP will be publicly exhibited for at least 28 days. The draft development controls, and contributions framework would be exhibited at the same time to present a comprehensive array of documents for community and stakeholder feedback. The proposed exhibition process will be outlined in the next Council report. As outlined in this report, Council staff have worked collaboratively with all major landowners to progress the planning of the release area.

Policy Implications

The adjusted development outcome outlined in this report builds on the original Owner Group’s proposal to deliver a high quality and much needed new living area in the Nowra-Bomaderry Area. The finalisation of the planning documents to guide the delivery of the release area is a high priority project, confirmed by Council’s earlier decisions and the adopted Strategic Works Program. The documents, when finalised, will facilitate subdivision activity and the release of lots, helping to meet identified housing demand.

Financial Implications

In response to the high priority placed on the project, a dedicated project team has been created within the Strategic Planning Team. Significant funds have also been spent on necessary technical studies to ensure the investigation and preparation of a well-founded and responsible development outcome. There is likely to be a range of longer-term financial and resourcing considerations for Council associated with the delivery of the release area which will be addressed in future reports.

Delay to the delivery of the planning documents also has implications for the current landowners who continue to pay “holding costs” and other associated ownership costs.

Risk Implications

This report and the work leading to it ensures a Planning Proposal recommending contemporary planning controls for the release area can be submitted for a Gateway determination in October 2020. Delays to the project ultimately delay the delivery of new homes in the Nowra-Bomaderry URAs. They could also delay start of other strategic planning projects whilst further work is undertaken for the release area. Other risks include the emergence of higher priority projects and the subsequent allocation of resources away from the release area.

Development & Environment Committee – Tuesday 06 October 2020

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DE20.107 Initial Consideration - Planning Proposal (Rezoning) Application - 49 Queen Street & 20 Edward Street, Berry

HPERM Ref: D20/335525

Section: Strategic Planning

Approver: Robert Domm, Director - City Futures

Reason for Report

Present a proponent-initiated Planning Proposal (PP) which seeks to rezone Lot C DP 379984 (49 Queen Street) and Lot 19 DP 803611 (20 Edward Street), Berry for consideration and direction.

Landowner: Dunfrood Pty Ltd

Proponent: Martin Morris and Jones P/L (MMJ Wollongong).

Recommendation (Item to be determined under delegated authority)

That Council not proceed with a Planning Proposal to rezone Lot C DP 379984 (49 Queen Street) and Lot 19 DP 803611 (20 Edward Street), Berry from R2 – Low Density Residential to R3 – Medium Density Residential, and inform the proponent, submitters and The Berry Forum of this decision.

Options

1. Support the PP application and progress a PP to rezone the site from R2 – Low Density Residential to R3 – Medium Density Residential.

Implications: Whilst not recommended, this would enable more intensive forms of residential development than currently permitted. It is understood that the proponent is seeking to allow more intensive development, i.e. multi-dwelling housing, to improve the feasibility/profitability of redeveloping the site. However, the potential impacts on local amenity and character are significant given the prominent location (main street of Berry), proximity to adjoining residential properties, and the form and density of the development in the vicinity (predominantly single storey detached dwellings). Supporting the proposal could also set a precedent, noting that a broader review of infill development controls for the older part of Berry has not been undertaken at this stage.

If Council supports the application, the PP will be prepared and submitted to the NSW Department of Planning, Industry and Environment (DPIE) for Gateway determination. Subject to a favourable determination, any required studies will be completed, and the PP will then be publicly exhibited. The outcomes of the exhibition will be reported to Council and if the PP is finalised and the site is rezoned, the existing commercial development will potentially be replaced by a multi-dwelling development (subject to development approval).

2. Not support the PP application to rezone the site to R3 and retain as R2.

Implications: The proponent could seek a ‘pre-gateway’ review. If successful, the PP would be progressed in accordance with the outcome of the review.

3. Support an alternative or modified proposal.

Implications: The current R2 zoning allows lower density forms of residential development, including dwelling houses and dual occupancies.

The Alternative options that exist include:

· Rezoning the subject land to R1 – General Residential and retaining the 500 m² min lot size, as applies to the land to the west. Multi dwelling housing is permitted in the R1 zone but the extent to which the site could be developed would be less than compared to R3. For example, the allowable floor space ratio (FSR) under DCP Chapter G13 would be 0.5:1 compared to 0.7:1 for R3. Under the Low Rise Housing Diversity Code, the allowable Gross Floor Area (GFA) is 60% of the site for R1 compared to 80% of the site for R3. This option would still potentially enable development that is out of character and impacts on local amenity.

· Rezoning the site to a business zone that allows both residential and commercial uses (e.g. B4 mixed Use). This would be consistent with the ‘ground rules’ established for the preparation of the Shoalhaven LEP2014 in relation to ‘existing use’ locations. This saw a range of known ‘existing use’ sites zoned to reflect their use through the new LEP.

No clear alternative options have been identified that would increase the allowable density without impacting on local amenity and character.

Background

Council is in receipt of a Planning Proposal (rezoning) application from MMJ Wollongong seeking to rezone Lot C DP 379984 (49 Queen Street) and Lot 19 DP 803611 (20 Edward Street) Berry (the subject land), from R2 - Low Density Residential to R3 - Medium Density Residential and to remove the minimum lot size layer (currently mapped as 500m²) under Shoalhaven LEP2014.

The proponent’s documentation can be viewed at Council’s ‘pre-gateway’ Planning Proposal webpage: https://doc.shoalhaven.nsw.gov.au/DisplayDoc.aspx?record=D20/272867

Subject land

The subject land is shown in Figures 1 and 2 below (blue outline), comprises 20 Edward Street - area of 1,009m²; and 49 Queen Street - of 607m². Total area approximately 1,616m².

Figure 1 – Current zoning of subject land (blue outline) and surrounds

Shoalhaven Local Environmental Plan 2014 (LEP)

The subject land is currently zoned R2 – Low Density Residential and the minimum lot size is mapped as 500 m².

The R2 zone permits dwelling houses, semi-detached dwellings and dual occupancies, but prohibits multi dwelling housing and was ‘like for like’ transfer from the previous Residential 2(a1) zoning under Shoalhaven LEP1985.

Other relevant existing LEP provisions include:

· Height of buildings = 8.5 m

· Heritage – No. 50 Queen Street (opposite the subject land) is listed under Schedule 5 as a Heritage Item and therefore LEP Clause 5.10 applies. Note: Council has also resolved to support an LEP amendment to list a number of other properties in Berry as heritage items, including 51, 53 and 54 Queen Street, directly to the east of the subject land, and 54 Queen Street to south-east.

Land to the north, east and south is also zoned R2 – Low Density Residential. Land to the west is zoned R1 – General Residential. Lot 10 DP 771829 (24 Albert Street) to the north east, is zoned SP2 – Educational Establishment (and is used as a childcare centre). Except for 24 Albert Street (zoned SP2), the 500 m² lot size also applies to the surrounding land.

Current uses

Although the site is currently zoned R2, it has historically been used for light manufacturing, retail and office premises, and most likely has ‘existing use’ rights as a result. The commercial buildings on the site currently include a wool store, and antique/furniture store and office premises. Refer to Figures 2 to 5 below.

Figure 2 – Aerial photograph showing subject land (blue outline) and immediate surrounds

Figure 3 – Looking NW toward the subject land from the southern side of Queen Street

Figure 4 – Looking SE toward the subject land from Edward Street

Figure 5 – Looking at NE at the subject land from the corner of Queen Street and Edward Street

Most of the existing surrounding buildings are single storey dwellings, apart from a two storey dwelling at 26 Albert Street (to the north), a single storey pre-school at 24 Albert Street (to the north east) and a small single storey structure at the rear of 7 Edward Street (to the west) which is owned by Telstra.

Local character

The subject land is located within the older historic part of Berry, which is characterised by predominantly single storey, heritage style buildings such as Federation-style cottages with moderate setbacks; well established trees and gardens (RobertsDay 2020).

The properties in the vicinity of the subject land are predominantly detached dwellings, or converted residences, with space between the buildings. Recent improvements and additions include detached dual occupancies and a secondary dwelling. Several existing street trees contribute to the immediate streetscape. There are several medium density / town house developments within the R1 zoned area further to the west, the nearest of which is at 45 Queen Street and 18 Albert Street.

The existing commercial buildings on the subject land consist of an industrial-style metal clad shed, apart from the southern facade (facing Queen Street) which is partially brick and has a rustic retail appearance. The northern third (approx.) of the subject land has an informal car park and two small sheds (and currently a shipping container) on the northern side (see Figures 3 and 4). The appearance of the existing structures is softened by the adjacent street trees, particularly along Queen Street (refer to Figure 3).

Berry housing market

Housing demand in Berry reflects its lifestyle attractions, accessibility, and strong desirability from buyers from Sydney. House sale and rental prices remain relatively high (with a median house price above $1 million and a median rental of $580 per week^{^[1]}), down from the peak in 2018 but remaining strong even with the initial economic impacts of the Covid-19 pandemic.

The longer-term impacts of the pandemic on the local housing market are currently emerging and dependent on wider economic conditions and policies. Recent research indicates regional housing markets have been more resilient than city markets during the pandemic, due to a variety of factors, including liveability, relative affordability, rise in remote work and international migration having less influence over house prices compared to city markets^{^[2]}. Areas such as Berry which are accessible to key job markets (Wollongong, Nowra, Sydney) will remain particularly desirable.

Proponent’s intended outcome

The proponent’s PP includes conceptual architectural schematics showing an 8 x 3 bedroom, terrace-style, multi dwelling housing development. The schematics shown in the proponent’s PP report are copied below.

The Planning Proposal (PP) / Gateway Process

Changes to local environmental plans (LEPs) are typically made via the ‘planning proposal’ and/or ‘gateway’ process. The first step in the process is to prepare a PP that explains the intended effect and justification for the proposed changes to the LEP.

The purpose of this report is to determine whether Council will support the application that has been received, initiate the formal PP process and submit a PP to DPIE for initial Gateway determination. The purpose of the Gateway determination, as stated in DPIE’s ‘A guide to preparing planning proposals’, is to:

“… ensure there is sufficient justification early in the process to proceed with a planning proposal. It enables planning proposals that lack strategic planning merit to be stopped early in the process before time and resources are committed.”

Assessment Criteria

Council’s adopted Planning Proposal (Rezoning) Guidelines set out the following criteria for when PP will be supported:

1. The proposal has strategic merit, i.e. it is consistent with, or give effect to an adopted/endorsed Council or State Government strategy or plan such as the Illawarra-Shoalhaven Regional Plan, or the Shoalhaven Growth Management Strategy (GMS).

Note: DPIE’s PP guidelines also state that a proposal may be considered to have strategic merit if it is responding to a change in circumstances (such as provision of new infrastructure or changing demographics)

2. The proposal will resolve a clear anomaly in the LEP mapping.

3. The proposal is minor and has sound justification.

The PP application is now discussed below in relation to these criteria, with Council staff comment where relevant.

1. Consistency with adopted/endorsed strategy

Illawarra Shoalhaven Regional Plan (ISRP) 2036

Was released by the NSW Government in 2015 to provide “a vision and direction for strategic and land use planning for future needs for housing, jobs, infrastructure, a healthy environment and connected communities”.

The relevant directions in the Plan are summarised below:

Direction 2.1 - “Provide sufficient housing supply to suit the changing demands of the region”.

Comment: This is a broad direction to ensure there is an adequate supply and diversity of housing across the region. Direction 2.2 is more specific and relevant to this proposal (see below).

Direction 2.2 - “support housing opportunities close to existing services, jobs and infrastructure in the region’s centres”. This Direction encourages the provision of more housing in existing urban areas, and specifically identifies Berry (and Huskisson) as having potential for provision of dual occupancies.

Comment: The current R2 zoning permits dual occupancy development and the proponent’s PP report states that the subject land can support 4 or 5 dual occupancies.

The Regional Plan does not specifically suggest or encourage additional medium density infill residential development in Berry. It does identify the opportunity for infill residential development in Berry in the form of dual occupancies. Commentary on housing demand in Berry is provided later in the report.

Direction 3.3 - “build socially inclusive, safe and healthy communities”, including through Neighbourhood Planning Principles (NPP). Relevant NPPs include:

· Provide a wide range of housing for different needs and different incomes, including traditional houses on individual blocks and smaller, lower-maintenance homes, units and terraces for older people and young singles or couples.

· Facilitate housing diversity by providing a range of purpose designed smaller lots and dwellings.

· Ensure new housing developments provide a proportion of adaptable housing to further increase housing choice across the region to cater for the ever-changing needs of residents.

Comment: The above housing objectives can be delivered through a range of housing types across the region. As noted, the Plan specifically identifies Berry as an opportunity for provision of dual occupancy infill development. While there are some areas zoned and developed for medium density development in Berry, the current Plan does not specifically identify the need for additional medium density development in Berry. As already noted, the current R2 zoning already allows a range of detached and semi-detached housing types.

Shoalhaven Growth Management Strategy (GMS) Version 1

This strategic land-use planning document was prepared by Council and endorsed by the State Government in 2014. The GMS provides strategic level guidance on the future growth of Shoalhaven. The GMS is currently being reviewed.

The current adopted/endorsed version of GMS includes the following guidance that is relevant to this proposal in Berry.

Berry is characterised by predominately low density residential development. There are also a number of retirement / villages on the southern edge of the town. The town has a unique character and contains a number of heritage buildings (both commercial and residential).

Identifies Berry as one of six settlements with some growth potential, stating that there are existing opportunities for increasing densities within the existing urban framework acknowledging flooding constraints, without undermining landscape, rural and heritage values.

· Development to focus and strengthen commercial centres

· Public domain improvements to clearly identify commercial centres

· Increased housing choice through diverse housing styles to reduce impact of aging population structure

· Tourist development potential exists in settlements through higher densities

· Outward expansion to recognise sensitivity of environment and hazard issues

Council is currently progressing two existing PP’s that will facilitate addition outward expansion consistent with the GMS.

Comment: While the existing commercial uses of the site contribute to the overall economic activity in Berry, the site could potentially be redeveloped for housing under the current R2 zoning, albeit in a less dense way than if it is rezoned to R3. Although the subject land is currently used for commercial purposes, it is separated from the commercial centre by residential development.

In terms of providing housing choice and diversity for an ageing population, the subject land is well located, being less than 500 m from the Berry commercial centre, approx. 300 m from the Gerringong-Nowra bus service (Queen Street stop) and 1.2 km from Berry Railway Station.

The number of bedrooms and the dwelling floor space is an important factor in providing housing diversity. The proposed development concept in the application is a two-storey, terrace style multi-dwelling development consisting of 8 x 3 bedroom units. Some single storey dwellings with 1-2 bedrooms would be more suited to the older demographic and would be more consistent with Council’s adopted Shoalhaven Affordable Housing Strategy.

Shoalhaven 2040 – Our Strategic Land-use Planning Statement (LSPS)

The draft Shoalhaven 2040 – Our Strategic Land-use Planning Statement (Shoalhaven 2040) was publicly exhibited in July 2020 and was reported to Council’s Ordinary meeting in September 2020 for finalisation. The LSPS will set out broad planning priorities, strategic directions and actions, to guide decisions on land use and achieve the community's broader goals over the next 20-years.

Proposed LSPS Planning Priority 3 Protecting and enhancing neighbourhoods addresses the protection or improvement of local or neighbourhood character, including how change and development can be managed to ensure it respects and contributes to character. It sets out future work to identify planning and development controls to influence the quality and design of development in existing neighbourhoods and manage the introduction of the NSW Government’s Low Rise Housing Diversity Code.

The draft LSPS recognises the importance of neighbourhood character and sets actions to update development controls with built-form statements for many of Shoalhaven’s settlements, including its coastal and historic villages. New development proposals, even those proposed as complying development, will then need to consider and address these statements – a process to help ensure development contributes rather than detracts from a neighbourhood.

The draft LSPS also sets our intended work with the NSW Government to identify opportunities for the possible use of ‘special character planning controls’ to further guide in-fill development in Berry, Kangaroo Valley and Milton.

Berry Community Strategic Plan

This Plan was originally prepared by The Berry Forum during 2016 and recognised by Council resolution (among others) in 2017.

The Plan covers 7 themes. Themes 4 (town planning) and 7 (business and employment) are relevant to this application and the relevant focus areas are provided below:

· Strategic focus 4.1

Preserve the town's heritage character and “village feel” (very high priority).

· Strategic focus 4.3

Improve housing affordability (medium priority). Description: Examine options for promoting improved housing affordability within the town whilst retaining key attributes of the town in terms of heritage retention.

· Strategic focus 4.4

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

· Strategic focus 7.1

Provide for more employment opportunities (medium priority).

· Strategic focus 7.4

Encouraging a more diverse retail offering (medium priority).

Comment:

As discussed above, the draft LSPS includes an action to prepare planning controls to guide infill development in Berry (as well as Kangaroo Valley and Milton) which is particularly relevant to 4.1 and 4.3 above.

In relation to 7.1 and 7.4, it is understood that the proponent intends to redevelop the site in its entirety and replace the existing commercial buildings with multi-dwelling housing. As such any existing retail or employment uses would be lost. The site could potentially be redeveloped for lower density residential housing under the current R2 zoning, or possibly a mixed development using the R2 zoning and any ‘existing use’ rights.

Proponent’s comments - consistency with strategy

The proponent’s PP report suggests that the proposal is consistent with strategy. The following is a summary of their position in this regard along with Council staff comment:

· Regional Plan Direction 2.1 – this broad direction seeks to ensure there is adequate housing supply and choice across the region.

Comments: The concept proposal that is shown in the application is a multi-dwelling development consists of 8 x 3 bedroom, terrace-style units. The subject land could potentially be redeveloped under the current R2 Low Density Residential zone. Rezoning the subject land to R3 – Medium Density Residential would make a negligible contribution to housing supply, the benefit of which are potentially not fully justified given the potential impacts on local amenity and character should the concept proposal be pursued.

· The draft Shoalhaven Character Assessment Report that was prepared by RobertsDay identified the lack of housing choice and diversity in Shoalhaven.

Comments: The Shoalhaven Character Assessment Report was finalised in February 2020. It was commissioned by the then NSW Department of Planning and Environment to help inform the review of Shoalhaven Growth Management Strategy (GMS), future amendments to the Shoalhaven Development Control Plan (DCP) 2014 and preparation of the Local Strategic Planning Strategy (LSPS).

In relation to Berry, the Report notes that the town is characterised by one storey, heritage style buildings such as Federation-style cottages, and concludes that new development should be sympathetic to heritage, rural and fine-grain character, ensuring cohesiveness to the heritage core’s-built form attributes.

· The Shoalhaven Growth Management Strategy (GMS) identifies growth considerations for several rural towns and villages, including Berry as:

§ Development to focus and strengthen commercial centres

§ Increasing housing choice through diverse housing styles to reduce impact of the ageing population.

Comments: The number of bedrooms and the floor space of a dwelling is an important factor in housing diversity. The proposed development is a two-storey, terrace style multi-dwelling development consisting of 8 x 3 bedroom units. Single storey dwellings with 1-2 bedrooms would potentially be more suited to the older demographic and would be more consistent with Council’s adopted Shoalhaven Affordable Housing Strategy.

2. Will the PP resolve an anomaly?

There is no justifiable anomaly in the LEP or its mapping in regard to the subject land.

3. Is it a minor matter that can be justified?

Potential issues that need to be considered in respect of this criteria include:

· Heritage: As noted, the subject land is not a heritage item in the Shoalhaven LEP 2014. However, a property on the southern side of Queen Street (50 Queen Street) is heritage listed in the LEP (Schedule 5).

Council resolved on 1 September 2020 to proceed with a PP to list other properties in Berry as LEP heritage items, including three properties directly to the east and south-east of the subject land. As such this highlights the locality’s general heritage values, and as a result the appropriateness of allowing medium density development on the subject land ahead of completing a review of the controls for infill development in Berry needs to be considered.

· Local character: The bulk and scale of the potentially resulting development is not in keeping with the character of the neighbourhood or Berry. Several submissions have raised concerns about impacts on local character, as discussed later in this report.

· Amenity issues: The proposed development could potentially result in localised loss of privacy, overshadowing, light and noise impacts, appearance, and traffic/car parking issues. Submissions have been received from several adjoining property owners raising concerns about amenity impacts. These are summarised later in this report.

· Existing / approved uses, and likely future uses of the subject land/surrounds: The subject land could potentially be redeveloped to the extent allowable under the current R2 Low Density Residential zoning and/or any ‘exiting use’ rights that exist. The surrounding properties have detached dwellings

· Capacity of existing services and infrastructure to accommodate the proposed development: development of the sale envisaged under the application could have servicing/infrastructure issues that will need to be investigated.

The requested rezoning cannot be considered to be ‘minor’ in terms of the area within which it sits and the potential resulting outcome.

Proponent’s justification

The proponent’s PP report argues that the proposal is consistent with strategy based on:

· Direction 2.1 of the Illawarra Shoalhaven Regional Plan (ISRP), which as noted above is a broad direction to ensure there is adequate housing supply and choice across the region.

· The draft Shoalhaven Character Assessment Report that was prepared by RobertsDay identified the lack of housing choice and diversity in Shoalhaven.

· The Shoalhaven Growth Management Strategy (GMS) identifies growth considerations for several rural towns and villages, including Berry as:

o Development to focus and strengthen commercial centres

o Increasing housing choice through diverse housing styles to reduce impact of the ageing population.

Conclusion

The PP application has been reviewed against relevant guidance. There appears to be limited strategic justification to the support a rezoning of the subject land to R3 and there is the potential for resulting development to have a negative impact on character and amenity. As such it is recommended that the application as submitted not be supported. There are also limited rezoning alternatives that could be consider that will not have similar impacts. In this regard it is noted that the subject land could be redeveloped for alternate uses now based on the current R2 zoning (and associated 8.5 metre building height) and/or the ‘existing use’ rights that may exist. The impact in this regard would need to be considered and assessed through the development application process.

Community Engagement

The adjoining property owners and the Berry Forum were notified upon receipt of the PP application (consistent with Council’s Planning Proposal Guidelines). Five (5) written submissions were received from properties in the vicinity of the subject land, expressing a range of concerns including loss of privacy and impacts on local amenity, traffic/car parking, and incompatibility of the proposed development with the character of Berry. A summary of the submissions is provided below.

Name & Doc ref.

Property Address

Summary of issues raised

D20/310352

Property in

Edward Street

· Object to the proposal due to impacts on neighbours.

· Traffic and car parking concerns. Suggests there will be insufficient off-street parking.

· Concern about impact on property values.

· Suggests R3 zoning is incompatible with current character.

· Proposed development has insufficient space for privacy and landscaping, and it would be overdevelopment of the site.

· Redevelopment would be viable under the current R2 zoning.

D20/310352

Property in

Queen Street

· Rezoning from R2 to R3 will have a serious impact on our standard of living.

· Loss of privacy / overlooking, overshadowing, traffic and parking/access.

· R3 zone would be incompatible with the area.

· Existing R2 zoning allows sufficient redevelopment opportunities and housing types.

D20/345206

Property in

Queen Street

· Do not oppose the application but question if the dwellings will be in keeping with the appearance and character of Berry.

· No. 51 will possibly be heritage listed.

· Concerned that upstairs windows and balconies will overlook backyard, loungeroom and kitchen windows.

D20/350709

Property in

Edward Street

· Values the jobs created by the existing development, and its uniqueness and contribution to tourism.

· Adamantly oppose the proposed 8x3 bedroom dwellings.

· Traffic/parking safety concerns for elderly and children using community preschool; vehicles using Edward Street to bypass the town centre; exhaust pollution.

· Noise pollution concerns.

D20/335503

Property in

Albert Street

· Proposed development is out of character and at odds with Berry’s small-town charm. Rezoning to R3 would damage the rustic charm of our rural town.

· Loss of on-street parking on Edward Street, which is often used by visitors, childcare customers, and tourists.

· Loss of privacy - proposed plans would look into two of my bedrooms. The plan incorrectly labels one of our bedrooms as a ‘garage’.

· Loss of amenity to my property and neighbouring properties.

· Precedent concerns.

Note: Copies of the actual submissions received can be made available to Councillors if needed on request.

Policy Implications

Council’s decision on this PP application could potentially have significant policy implications for future infill development within the historic part of the Berry township. Supporting it may indicate a general willingness to consider other PP’s for medium density development.

Financial Implications

If Council resolves to support the PP application, the proponent will be required to pay the applicable fees, which are based on cost recovery.

Development & Environment Committee – Tuesday 06 October 2020

Page 0

DE20.87 Development Application - DA19/2032 - 61 Summercloud Cr Vincentia - Lot 1125 DP 1210394

DA. No: DA19/2032/4

HPERM Ref: D20/100727

Section: Building & Compliance Services

Approver: Phil Costello, Director - City Development

Attachments: 1. Draft - 4.15 Report - 61 Summercloud Cr, Vincentia - Lot 1125 DP 1210394 (under separate cover) ⇨

2. Assessment of Submissions - 61 Summercloud Cr, Vincentia - Lot 1125 DP 1210394 (councillors information folder)

3. Draft Development Consent - 61 Summercloud Cr, VINCENTIA - Lot 1125 DP 1210394 (under separate cover) ⇨

This item was deferred from the Development and Environment Committee 1 September 2020.

Description of Development: Dual Occupancy and Strata Subdivision

Owner: Ibrohim Makhmudov

Applicant: Hotondo Homes South Coast Pty Ltd

Notification Dates: 24 October 2019 – 8 November 2019

No. of Submissions: 10 Submissions received

Reason for consideration by Council:

At the Development & Environment Committee meeting held on 4 February 2020, Council resolved to call in the development application for a dual occupancy at 61 Summercloud Crescent, Vincentia. This application was called in due to community concern.

This report recommends the application is approved subject to conditions.

Recommendation (Item to be determined under delegated authority)

That the proposed development be approved by Council subject to the conditions specified in the draft development consent.

Options

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

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

2. Refuse the Development Application.

Implications: The application would not proceed. A Notice of Determination for Refusal will need to be prepared with reasons for refusal stated. The applicant can apply for a section 8.2 review of Council’s decision and/or could lodge an appeal with the NSW Land and Environment Court against Council’s decision.

3. Alternative recommendation.

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

Location Map

Figure 1: Aerial Map of the subject site in the broader context of the Bayswood Estate Subdivision (SF9786)

Background

At its Development & Environment Committee meeting held on 4 February 2020, Council resolved to call in the development application for a dual occupancy and strata subdivision at 61 Summercloud Crescent, Vincentia. The application was called in due to community concern citing the proposed subdivision of the dual occupancy is not compatible with the amenity of the existing low-density environment where there are only single dwellings on each lot.

Proposed Development

The application is for a dual occupancy and strata subdivision on the land identified as No.61, Lot 1125 DP1210394, Summercloud Crescent, Vincentia. The land is zoned R2 – Low Density Residential and it has an area of 614.3 m². Both dual occupancy and strata subdivision are permissible on this land with consent.

The development consists of two attached 3-bedroom dwellings. The proposed development complies with requirements of Shoalhaven DCP 2014 (SDCP-2014) and a detailed assessment of the application is contained in attachment 1.

The site plan, floor plans and elevations illustrate the proposed development (Refer Figures 2, 3, and 45).

Figure 2: Site Plan

Figure 3: North east and south East elevations

Figure 4: South West and North West elevations

The development is a single storey dual occupancy. The building has a mixture of brick veneer walls and selected horizontal wall cladding. The roof is metal on a timber frame. The building is located centrally on the site with 1.01m and 1.02m to the east and west boundaries, respectively. The front building line is 6.0m to the outer edge of the entrance porch.

Subject site, surrounds and context

The subdivision is located in an area characterised by residential dwellings and associated infrastructure. The subdivision adjoins dry sclerophyll forest.

The subject site is identified as bush fire prone land and there is a drainage easement at the rear of the allotment. There are no other significant encumbrances on the site.

The site falls from the south-east (rear) to the north (front). The fall across the land is approximately 1.0m.

Existing development of a similar nature in the immediate surrounds

The subject site is zoned R2 – Low Density Residential and there are currently eight (8) approved secondary dwellings and nine (9) approved dual occupancies in the near vicinity of this site.

(a) Secondary dwellings (8 approvals): Two of these secondary dwellings were approved via development applications and the other six (6) were approved via Complying Development Certificates.

(b) Dual occupancies (9 approvals): All nine dual occupancies were approved under development applications. Seven (7) of the applications also have strata title subdivision approval and the other two (2) have Torrens title subdivision approval.

The location of these developments in the broader context of the Bayswood Estate Subdivision (SF9786) is shown in Figure 6 below.

Figure 6: Nearmaps Aerial Image indicating the location of similar development types within the overall subdivision.

Planning Assessment

In deciding whether to grant approval to the proposed development, Council must consider the relevant matters contained in clause 4.15 of the Environmental Planning and Assessment Act 1979. A detailed assessment is contained at attachment 1.

The following matters are relevant to this discussion:

Environmental Planning Instruments

The proposed development complies with the relevant environmental planning instruments being:

(a) The Shoalhaven Local Environmental Plan 2014

(b) State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

Development Control Plans

The proposed development meets the objectives and provisions of the following relevant chapters of the Shoalhaven Development Control Plan 2014:

(a) G1: Site Analysis, Site Design and Building Materials

(b) G2: Sustainable Stormwater Management and Erosion/Sediment Control

(d) G7: Waste Minimisation and Management Controls

(e) G11: Subdivision of Land

(f) G13: Medium Density and Other Residential Development

(g) G21: Car Parking and Traffic

(h) N15: Vincentia Coastal Village and District Centre

The likely impacts of that development, including impacts on the natural and built environments, and social and economic impacts on the locality

(a) The land is bush fire prone and this is the only significant environmental encumbrance.

The Rural Fire Service (RFS) have issued a Bush Fire Safety Authority and have provided conditions of development addressing the likely impacts. The building is required to comply with the requirements of BAL-19.

(b) The proposed development is considered to have a minimal impact on the built environment. The building is located amongst similar single storey brick veneer dwellings.

The suitability of the site for the development

(a) The proposed development is permissible within the R2 – Low Density Residential Zoning.

(b) The design, bulk and scale of the proposed development is consistent with that of the existing and desired future streetscape. The building is single storey and does not overpower the streetscape.

(c) The architectural plans of the proposed development have been endorsed by the developer as per the terms of restriction on the use of the land numbered 7 in the S88B Instrument.

(d) Construction is considered to be site responsive.

Any submissions made

Council has received 10 submissions and this includes a petition signed by 62 people objecting to the proposal (See Attachment 2). The details of the petition are contained in “B Information Pertaining to the Petition” in Attachment 2.

These objections have been fully considered in regard to this application and each of the major issues are summarised and discussed in the table below.

Issue	Comment
(a) Development is not compatible with the objectives of the R2 zoning	Dual occupancies are ‘permitted with consent’ in the R2 – Low Density Residential Zone. The proposed development is considered to be consistent with the objectives of the R2 zone, as it provides for the housing needs of the community in the context of a growing population and the primary development type of single dwellings within the surrounding area will be retained.
(b) Strata subdivision is below the minimum lot size of 500m2.	Clause 4.1 (Minimum subdivision lot size) of the Shoalhaven Local Environmental Plan 2014 does not apply to the subdivision of any land by the registration of a strata plan of subdivision under the Strata Schemes Development Act 2015. There is no minimum lot size for the strata subdivision as proposed and the development complies.
(c) Dual occupancy will impact on the existing road system and utilities	The proposed development is not considered to unreasonably impact upon the existing road system. The proposed development achieves compliance with the relevant planning controls. Council’s Development Engineer has reviewed the proposed development and has raised no objections to the proposal.
(d) The development does not comply with the design essentials for Bayswood	The design, bulk and scale of the proposed development is considered compatible with the surrounding area. Compliance has been achieved with DCP Chapter N15 which is the prevailing site-specific chapter and details the design essentials for Bayswood Estate. The architectural plans have been endorsed by the developer as required by the restrictions as to user on the S88B Instrument.
(e) On-site carparking	Provisions for car parking, site access and traffic safety have been assessed against the performance criteria of DCP Chapter G21: Car Parking and Traffic. The development complies.
(f) Impact on bush fire emergency response	The subject site is identified as bush fire prone land. As the application comprises a subdivision, the proposed development required authorisation under Section 100B of the Rural Fires Act 1997 in respect of bush fire safety. The NSW Rural Fire Service have issued a Bush Fire Safety Authority and General Terms of Approval. The RFS conditions address the likely impacts of bush fire and these will be included in the development consent. The development will satisfy the bush fire requirements.
(g) Bulk and scale	The proposed development is fully compliant with the setback requirements contained in SDCP Chapter N15. The building is entirely within the building envelope described in SDCP Chapter G12 and the maximum permissible building height pursuant to clause 4.3 of SLEP. The floor space ratio of the building will not exceed 0.5:1 as required by SDCP Chapter G12. Impacts upon overshadowing, privacy and views are not considered to be severe or devastating when assessed against the relevant NSWLEC Planning Principles. It is therefore reasonable to conclude that the bulk and scale of the development is appropriate for the site.

This assessment has also considered case law similarities and this is illustrated in Ougra & Ors v The Hills Shire Council [2012] NSWLEC 1178. In this case, The Hills Shire Council refused a dual occupancy application on land at 26 Moseley Street, Carlingford (Lot 29 DP 251044) with contentions of “whether the proposed dual occupancy would complement and/or integrate with the existing and future low density character of the area”. This is essentially the main thrust of the submissions made against DA19/2032.

In comparing the 2 sites, both have a common zoning of R2 – Low Density Residential. The objectives of the zones across both local government areas are similar and dual occupancy is permissible in each instance.

Summarily, most of the issues were resolved by way of Section 34AA conference. This meant that largely, “the only contention for determination by the Court concerns the public interest considerations arising from the [community] objections”. Similarities arise here between this case and the present application before Council as both developments complied with planning controls except for the “public interest” considerations.

The appeal was upheld and the application was approved.

In his closing remarks, Commissioner Hussey assents that

“… it is obvious from the evidence that this form of development is envisaged by the current controls. There are no restrictions that only allow single detached dwellings”.

The same is true of the current application. If the application is refused and a comparison is drawn between both cases, it is likely that the Court would rule in the same way.

Financial Implications:

If the application is appealed, it will result in costs to Council in defending the appeal. This is not a matter Council should consider in determining a development application. Accordingly, it should not be given any weight in Council’s decision.

Legal Implications

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

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

Summary and Conclusion

Whilst the public interest was a major consideration for this application, the concerns raised are not justified in this instance.

It is recommended Council grant consent to the proposed development being a dual occupancy and strata subdivision on the land at 61 Summercloud Crescent, Vincentia – Lot 1125 DP 1210394 subject to the draft conditions of consent (Refer Attachment 3).

Development & Environment Committee – Tuesday 06 October 2020

Page 0

DE20.108 Development Application - DA18/2094 - 2819A Moss Vale Rd Barrengarry - Lot 2 DP 732659

DA. No: DA18/2094/4

HPERM Ref: D20/240931

Section: Development Services

Approver: Phil Costello, Director - City Development

Attachments: 1. Draft - Determination - Refusal - 2819A Moss Vale Rd Barrengarry - Lot 2 DP 732659 ⇩

2. Planning Report – S4.15 Assessment 2819A Moss Vale Rd, Barrengarry - Lot 2 DP 732659 (under separate cover) ⇨

3. Report - Amended Operational Plan - 2819A Moss Vale Road Barrengarry - Lot 2 DP732659 ⇩

4. Plans - Amended Site Plan - 2819A Moss Vale Rd Barrengarry - Lot 2 DP 732659 ⇩

Description of Development: Temporary Use of land as a function centre pursuant to clause 2.8 of the Shoalhaven Local Environmental Plan (SLEP) 2014

Owner: Blue Sox Investments Pty Ltd

Applicant: SET Consultants Pty Ltd

Notification Dates: 5-20 October 2018

No. of Submissions: 24 in objection

Purpose / Reason for consideration by Council

On 30 April 2019, it was resolved by Council that Development Application DA18/2094 be called in to Council for determination due to the significant public interest (MIN19.244).

Recommendation (Item to be determined under delegated authority)

That Development Application DA18/2094 for the temporary use of land as a function centre pursuant to Clause 2.8 of Shoalhaven Local Environmental Plan (SLEP) 2014 at Lot 2 DP 732659, 2819A Moss Vale Rd, Barrengarry be determined by way of refusal for the reasons contained in Attachment 1 of this report.

Options

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

Implications: The development is unable to proceed as applied for. The applicant can, however, apply for a S8.2A review of Council’s decision and/or could lodge an appeal with the NSW Land and Environment Court (LEC) against Council’s decision.

2. Approve the application.

Implications: Council would have to provide the grounds to support the proposal, that is, provide reasons to support the development, having regard to section 4.15 considerations. Should Council resolve to approve the DA a suite of conditions would be required to be drafted for reconsideration by the Development & Environment Committee. 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.

Figure 1 – Location Map

Background

Proposed Development

The proposal includes:

· Temporary use of land under clause 2.8 of the SLEP 2014 for use of the site as a ‘Function Centre’.

o Functions would cater for up to 150 people.

o Maximum of 52 functions per calendar year.

o Functions including weddings, receptions, conferences, meetings, and other private events.

o Operation in accordance with the Operational Management Plan (Attachment 3).

· Installation of Temporary Marquees

o Larger functions such as wedding receptions would require the installation of a temporary marquee (for functions of up to 150 people).

o The location of the temporary marquee is depicted on the Site Plan prepared by SET Consultants (Attachment 4).

o Whilst the size of the marquee would differ for each event, the applicant advises the maximum sized marquee would be approximately 300m² (20m long x 15m wide).

· Use of existing buildings including Studio Building and Small Farm Shed

o Small scale events including weddings, meetings, etc would be held within the existing studio building.

o Events held within the studio building would contribute to the 52 events per calendar year.

o The small farm shed would be utilised by catering staff for storage and preparation of food for service.

· Use of Existing Dwelling

o The existing primary dwelling would not be utilised for functions.

o The dwelling would be used by a bride and groom only (on their wedding night) as short-term rental accommodation (STRA).

o Use of the dwelling as STRA would be subject to compliance with Clause 7.13 of the SLEP 2014 and Draft SEPP (Short-Term Rental Accommodation).

· Site Amenities and Transport

o Installation of port-a-loos at designated locations as marked on the Site Plan.

o Transport of all larger function guests via mini-buses from their place of residence and/or hotel/motel accommodation.

o Parking for the smaller functions/conferences for up to 25 vehicles is to be provided on-site.

o Separate vehicle parking for contractors (e.g. caterers)

Subject Land

The development site comprises Lot 2 DP 732659 (2819A Moss Vale Road, Barrengarry). Refer to Figure 1.

Site & Context

The development site:

· Has a number of existing buildings within the central northern part which is inclusive of a primary dwelling with an ancillary and detached studio and two (2) detached farm buildings.

· Has a land area of 39.42 ha.

· Is accessed via a primary frontage to Moss Vale Road to the north of the site. Moss Vale Road within the vicinity of the site is winding with the driveway entrance being located on a tight bend.

· Is predominantly zoned RU2 Rural Landscape and partially zoned E2 Environmental Conservation.

· Is identified as being wholly bush fire prone land.

· Contains a mapped ‘Category 2’ watercourse traversing from east to west across the northern part of the site.

The surrounding area is rural in character and is characterised by single dwellings on large blocks of land. Steep slopes and high levels of vegetation cover are evident across the immediate surrounding locality.

Figure 2 – Zoning Extract

History

The following provides context regarding the information requested by Council and that provided by the applicant following lodgement of the Development Application with Council on 26 September 2018 (Note: request for information is ‘RFI’):

· 1^st RFI Request sent to the applicant on 5 October 2018 requesting:

o Confirmation the existing structures are approved and lawfully constructed.

o Floor Plans for the studio building and small farm shed.

· 2^nd RFI Request sent to the applicant on 18 December 2018 requesting:

o Confirmation regarding the maximum size marquee required for functions.

o Traffic Impact Assessment (TIA).

o An amended Site Plan depicting: Turning paths for mini-buses and car parking according to Chapter G21 of the SDCP 2014.

o Amended Operational Plan advising: pick up/drop off location for mini-buses and how onsite manager would prevent people from driving their own vehicle.

· Response provided to the 1^st and 2^nd RFI Requests in separate submissions on 28 March 2019, 24 May 2019, and 27 June 2019.

· 3^rd RFI Request sent to the applicant on 5 June 2019 requesting:

o Amended Operational Plan advising pick up/drop off location for mini-buses.

· Response provided to the 3^rd RFI Letter on 18 June 2019.

· 4^th RFI Request sent to the applicant on 25 June 2019 requesting:

o Commentary addressing how the proposal complies with Clause 2.8(3) of the SLEP 2014 with revised information demonstrating that the proposed temporary use will have no adverse impact on any adjoining land or the amenity of the neighbourhood including. (This issue arose during the assessment of the application as Council became aware of recent litigation concerning the use of clause 2.8.

o Amended Environmental Noise Impact Assessment; and

o Amended Traffic Impact Assessment addressing Transport for New South Wales (TfNSW) comments.

Note: the issue of adverse impacts arose during assessment as staff became aware of relatively recent litigation around the use of clause 2.8.

· Partial response to 4^th RFI Letter on 29 October 2019 providing the Amended Environmental Noise Impact Assessment.

· 5^th RFI Request sent to applicant on 5 March 2020 requesting:

o Bushfire Emergency Management & Evacuation Plan requested by RFS.

o Reaffirm request for amended Traffic Impact Assessment requested by TfNSW.

· Response to 5^th RFI Request provided in separate submissions on 26 June and 1 July 2020 providing a Bushfire Emergency Management and Evacuation Plan for review by RFS and a further traffic submission for review by TfNSW.

· Upon review of the further traffic submission, TfNSW advised in their response dated 15 July 2020 that the submitted documentation does not provide enough information to assess the development. Council’s Traffic Unit concurred with this advice by recommending refusal in their response dated 24 July 2020.

· As the requirements in relation to traffic were not able to be adequately addressed and having regard for the comments made in the ‘Issues’ section of this Report below, a recommendation for refusal is provided.

· The applicant was advised in verbal discussion and via email correspondence on 17^th September 2020 that the application would be determined based upon the information submitted to date.

Issues

Clause 101(2)(b) – Development with Frontage to Classified Roads of State Environmental Planning Policy (Infrastructure) 2007

The subject site has frontage to Moss Vale Road, being a classified regional road. Accordingly, clause 101 of ISEPP applies and reads as follows:

101 Development with frontage to classified road

(1) The objectives of this clause are—

(a) to ensure that new development does not compromise the effective and ongoing operation and function of classified roads, and

(b) to prevent or reduce the potential impact of traffic noise and vehicle emission on development adjacent to classified roads.

(2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that—

(a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of—

(i) the design of the vehicular access to the land, or

(ii) the emission of smoke or dust from the development, or

(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

Under subclause 101(2) the consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that the subsequent considerations have been met by the proposal.

This clause applies as the site has direct frontage to a classified road (being Moss Vale Rd to the north of the site). Moss Vale Road forms the site’s only legal road access and would be utilised as part of the proposed temporary use by vehicles including mini-buses ferrying people to and from the functions prior to and following the completion of the events. The access would also be utilised by people associated with providing the marquees to the site, caterers, and security during setup, operation and pull down of each event.

Applicant’s Submission

“Another concern raised in the community submissions was the increase in vehicle traffic accessing the site. The site is accessed from Moss Vale Road via an access driveway that provides access to all proposed events areas throughout the site. The access to the site off Moss Vale Road is of particular concern due to the bend of the road in the location of access. A Traffic Impact Assessment prepared by ASON Group has being prepared and concludes that the site is acceptable for the proposed use”.

Discussion

The Development Application was externally referred to Transport for New South Wales (TfNSW) for concurrence due to the site’s frontage to a classified road (Moss Vale Rd) and for review of the submitted Traffic Impact Assessment (TIA) prepared by Ason Group.

TfNSW advised in their referral response on 4 July 2019 that the development would generate additional traffic which needs to be considered and adequately mitigated. TfNSW advised the submitted TIA does not provide enough information to assess the development – noting the following non-compliances with AUSTROADS Guidelines and Australian Standards:

· Evidence of design according to Figure A10 AUSTROADS Guide to Road Design – Part 4: Intersections and Crossings.

· Evidence that sight distance complies with Austroads Guide to Road Design Part 4A or Australian Standard AS2890.1:2004.

· Evidence that the gradeline for the access road complies with F2.3 of Austroads Guide to Road Design Part 4A.

Council subsequently requested an amended Traffic Impact Assessment (TIA) requiring that the above matters be addressed. An amended traffic submission prepared by Ason Group was received on 1 July 2020 which sought to address the above requirements (the submission was provided following advice from the applicant that Ason Group had been working extensively with TfNSW to ensure the relevant requirements are addressed).

The amended traffic submission was reviewed by TfNSW and a referral response was received on 15 July 2020. TfNSW advised that the submission still does not provide enough information to assess the development and advised of a number of matters which are still outstanding which are listed as follows:

1. The proposed BAR design does not provide all dimensions. A fully dimensioned BAR design is required according to Austroads Guide to Road Design Part 4, Fig. A28.

a) The edge line for the BAR design must remain along the edge of the travel lane (refer Fig. A28).

2. The proposed BAL treatment provided does not appear to be drawn correctly. A BAL design is required according to Austroads Guide to Road Design Part 4A, Fig. 8.2.

3. A longitudinal section for the access has not been provided but the report provided dated 30/06/2020 states Fig. 2.3 Austroads Guide to Road Design Part 4A can be achieved. The crossfall/superelevation of Moss Vale Rd must be adopted as the grade line at least beyond the edge of the widened shoulder for the BAL treatment. The existing driveway slopes down from Moss Vale Rd so it is not possible to make an assessment without the grade line. This needs to be addressed.

4. The sight distance required for the access should be based on a design speed of 70kph (10kph above the posted speed). The sight distance diagram provided does not appear to be drawn correctly and does not show the vertical plane. Sight lines should be taken from points shown in Fig. 3.2 & 3.3 of Austroads Guide to Road Design Part 4A. A correction for grade must be applied based on Table 3.4 of Austroads Guide to Road Design Part 4A. The report states some vegetation needs to be removed to obtain the sight distance however desktop views of the site indicate a batter may also need to be cut back.

The TfNSW response was further corroborated by Council’s Traffic and Transport Unit who advised as follows in their referral response dated 24 July 2020:

1. Adequate dimensions not provided in the submitted concept plan.

2. Vertical geometry is not adequately considered. Moss Vale Rd has significant geometrical constraints and further assessment such as provision of long sections or vertical geometry will alleviate concerns raised by TfNSW.

3. Based on the concept provided, significant tree clearing would be required to achieve the minimum compliant sight distance.

4. Based on site usage, it is anticipated that there will be no direct increase in public transport utilisation, however increased heavy vehicle use is anticipated.

5. It is noted in the TIA that the majority of guests will arrive by minibus, how is this managed? No details provided regarding operation of the minibus and therefore its use to minimise traffic impacts on Moss Vale Rd is not accepted.

For the following reasons, the TfNSW referral response is taken to be a recommendation for refusal and Council finds that the applicant has not satisfactorily demonstrated compliance with Clause 101(2)(b) of SEPP (Infrastructure) 2007.

· Council’s Traffic Unit’s referral response corroborating with TfNSW and further advising that they do not support the proposal.

· The protracted nature of the assessment already and the likelihood that a further protracted period of time would be required to address the further requirements listed by TfNSW.

· The likelihood that clearing and earthworks within the TfNSW road reserve would be required to achieve compliant sightlines and specifically:

- TfNSW consent for such works has not been provided to date.

- A Fauna and Flora Assessment addressing the Biodiversity Conservation Act 2016 would be required as a result. Any threatened species studies required to be undertaken would likely further protract the assessment process.

· The applicant was advised that the amended traffic submission was not accepted by TfNSW or Council’s Traffic and Transport Unit and that the application would be sent to the Development & Environment Committee based upon the information submitted to date. This was confirmed via written correspondence sent to the applicant on 17 September 2020 that the application would be sent to the October Development & Environment Committee for determination based upon the information submitted to date.

TfNSW and Council’s Traffic and Transport Unit have considered all the applicant’s detailed traffic reports and are not satisfied that the access onto Moss Vale Road demonstrates compliance with subclause 101(2)(b) of the Infrastructure SEPP. It follows that Council does not have the ability under the ISEPP to approve the development application in its current form.

Clause 2.8 – Temporary Use of Land of the Shoalhaven Local Environmental Plan (SLEP) 2014

Clause 2.8(3) of the Shoalhaven Local Environmental Plan (SLEP) 2014 provides development consent must not be granted to a proposal unless the consent authority is satisfied that:

(a) the temporary use will not prejudice the subsequent carrying out of development on the land in accordance with this Plan and any other applicable environmental planning instrument.

(b) the temporary use will not adversely impact on any adjoining land or the amenity of the neighbourhood.

(c) the temporary use and location of any structures related to the use will not adversely impact on environmental attributes or features of the land, or increase the risk of natural hazards that may affect the land.

(d) at the end of the temporary use period the land will, as far as is practicable, be restored to the condition in which it was before the commencement of the use.

This clause applies as the applicant is seeking consent for a temporary use of the land for the purpose of a Function Centre for up to 52 events per calendar year. Functions are proposed to be held for weddings, receptions, conferences, meetings, and other private functions for up to 150 people at any given event.

Clause 2.8(3)(a) – the temporary use will not prejudice the subsequent carrying out of development on the land in accordance with this Plan and any other applicable environmental planning instrument.

Applicant’s Submission

“The use of the site for events and functions up to 52 times a year will not preclude the land for being continual used for rural purposes and will not impact on the environmental zoned portions of land”.

Discussion

The proposal is temporary in nature and all additional structures are temporary and capable of being removed following the completion of each function. Temporary facilities including the marquee and portable toilets would be removed by contractors and solid waste produced during the event including by caterers and function guests would be transported off site following the events. The proposed temporary use of the land will not result in significant unacceptably irreversible changes to the continued use of the site.

Considering the above, the site is capable of being restored to its prior condition following completion of each event, which would not prejudice the future and ongoing use of the land for rural and primary production purposes in accordance with Clause 2.8(3)(a).

Clause 2.8(3)(b) – the temporary use will not adversely impact on any adjoining land or the amenity of the neighbourhood.

Applicant’s Submission

“The application is accompanied by an acoustic report prepared by Harwood Acoustics which demonstrates that the use of the land for functions will not adversely impact on the amenity of the adjoining property or the neighbourhood. An extract from the report’s recommendations can be seen below, and concludes the following:

“Recommended Noise Controls

· Amplified music should not exceed an energy-average sound pressure level (Leq, 15 minute) of 85 dBA when measured over a 15 minute period at 3 metres from the speakers within the marquee. This level equates to a sound power level of 103 dBA which is based on, for example, a medium sized band, duo or medium level of pre-recorded amplified music (iPod, DJ, etc).

· Speakers should be orientated toward the south west or west.

· The predicted noise levels and noise control recommendations in this assessment are based 150 guests with amplified music in an open-air marquee and this represents an acoustically worst-case scenario.

· Other possible scenarios such as the use of building structures and stage area for seminars or training sessions will produce lower levels of noise emission and be well within the acceptable noise limits at all receptor locations. This is providing the maximum allowable amplified music levels do not exceed those outlined in s7.1

· All amplified music should be controlled through an in-house sound system with levels pre-set to ensure compliance with the relevant criterion where practicable.

· All amplified music played exclusively through an amplifier owned and operated by the owners of the property. The amplifier can be calibrated and a maximum volume level pre-set so that the maximum allowable sound pressure levels are not exceeded.

· The amplifier must be contained in a locked cabinet so that it is not accessible to function guests or entertainers. Any portable media devices may be plugged externally into the amplifier via a lead outside the lockable cabinet.

· The calibration of the amplifier will allow for the fact that portable media devices have their own volume controls.

· A sound level meter may be purchased from an electronics store so that the owner or property manager may ‘spot check’ for noise compliance during or prior to functions. Whilst the sound level meter will not be a Class 1 or Type 2 instrument, the meter can be calibrated by a suitably qualified acoustic consultant to determine the level the meter displays that is equivalent to levels recommended in s7.1 at 3m from speakers.

· In the event that any complaints are received a noise compliance assessment of noise levels should be undertaken by a suitably qualified acoustical consultant to ensure the recommended noise level is not exceeded.

· There should be no function activity at the site after midnight on any day.

· The level of noise emission from any mechanical plant servicing the development should not exceed an ‘A’ frequency weighted, energy average, sound pressure level (Leq) of 25 dBA, when measured over 15 minutes at the closest receptor. This is to ensure the overall level of noise emission from the Site does not exceed the acceptable noise limit of 35 dBA.

· To achieve this, the total sound power level (Lw) of any mechanical plant combined should not exceed 83 dBA. This assumes direct line of sight and no additional attenuation from building structures, shielding, etc. Depending on the location of mechanical plant the allowable sound power level may be higher in practice.

· In any event compliance with the noise goals for mechanical plant noise should be easily achievable and a final assessment may be required prior to installation.”

Discussion

In order to properly consider this matter, case law has been referred to.

The operation of clause 2.8 as it relates to Standard Instrument Local Environmental Plan (of which the SLEP 2014 is a Standard Instrument LEP) has been considered by the Land and Environment Court of NSW in the leading judgement of: Marshall Rural Pty Limited v Hawkesbury City Council and Ors [2015] NSWLEC 197.

Marshall Rural Pty Limited v Hawkesbury City Council [2015] NSWLEC 197

The Marshall case involved a challenge by a neighbour to a development consent for the temporary use of barn buildings as a function centre issued by Hawkesbury City Council on a rural holding which was otherwise used for the holding of polo tournaments.

The development consent authorised the function centre use for up to 28 days in any 12 months period and the consent was granted for a period of 2 years.

Acting Justice Moore (Moore AJ) described the nature of the test for development applications made pursuant to clause 2.8 at [113] – [116] as follows:

113 The nature of the activities that are capable of being permitted by an application invoking cl 2.8 are, I remind myself, activities that are otherwise prohibited in a zone.

114 That any application that is sought to be approved for such a prohibited use seeks a significant indulgence for such a substantial departure from the planning controls applicable to a zone is reflected in two aspects of the clause.

115 The first arises with respect to the temporal limitation mandated by the clause if such an otherwise prohibited use is to be permitted. This aspect of the clause was the subject of Marshall Rural’s first complaint, a complaint dealt with and dismissed in my rejection of Ground 1.

116 The second element engaged by these proceedings is the requirement that the proposal will “not adversely impact” in the fashion specified in cl 2.8(3)(b). This test, cast in absolute terms reflecting the seriousness with which an application of this nature is required to be assessed, puts a very high hurdle in the path of any such application. The placing of such a hurdle requires that the Council must approach the consideration and determination of any such application with a marked degree of precision and caution.

A matter for Council to consider carefully is what Moore AJ describes at [116] as a “very high hurdle” in the path of any application for approval under clause 2.8. That is, the requirement in clause 2.8(3)(b) that the temporary use of land “will not adversely impact on any adjoining land or the amenity of the neighbourhood”. As his Honour pointed out in Marshall Rural this provision is cast in absolute terms: any adverse impact is sufficient to require the refusal of such an application.

Moore AJ stipulated that the clause 2.8 test is “absolute” and that the temporary use must have not have an adverse impact on any adjoining land or the amenity of the neighbourhood. This case strongly demonstrates that when a use is prohibited in the zone, but the LEP provides for temporary use of the land in a manner that is otherwise prohibited, that use is still fundamentally prohibited in nature within that zone.

As the current application has been made pursuant to clause 2.8, Council must be satisfied that the proposed development “will not adversely impact on any adjoining land or the amenity of the neighbourhood”.

Potential adverse impacts upon the adjoining land or the amenity of the neighbourhood include the following:

Noise:

In response to Marshall Rural Pty Limited v Hawkesbury City Council [2015] NSWLEC 197, Council requested as further information that the Environmental Noise Impact Assessment (ENIA) be revised to address the ‘adverse impact’ of the proposal rather than the ‘acceptable impact’ which had been addressed in the initial submission. A revised ENIA was submitted by Hardwood Acoustics addressing Clause 2.8(3)(b) ‘Adverse Impact’ which concluded that:

“This could therefore be described as not having an adverse impact acoustically on any adjoining land and certainly not on the amenity of the neighbourhood. In my opinion, this particular site provides for significant separation between the noise sources and receptors and is located on a busy sub arterial road. With respect acoustics, the potential impacts here are negligible if the site is managed in accordance with the recommendations made and the noise impacts could not reasonably be considered adverse”.

The revised ENIA was reviewed by Council’s Environmental Health Officer who agreed with the recommendations and provided recommended conditions which are summarised as follows:

· Compliance with the recommendations of the revised ENIA.

· Onsite manager for monitoring of noise level.

· Contact name and number for onsite manager to be made available to neighbouring properties.

· Log book and complaints register: kept by the onsite property manager detailing the date and time of all functions, number of patrons attending, responsible staff member, and any noted amenity issues for each event. The log book and complaints register is to be available to council staff to review on request.

· Curfew regarding noise emissions.

· Noise limit for mechanical and plant equipment of 83dBA.

In consideration of the above comments, it is assessed that the proposal would not have an ‘adverse impact upon the amenity of the neighbourhood’ in relation to noise, subject to implementation of the recommended conditions of consent.

Traffic:

In response to Marshall Rural Pty Limited v Hawkesbury City Council [2015] NSWLEC 197, Council requested that the Traffic Impact Assessment (TIA) be revised to address comments provided by TfNSW, in particular non-compliances with AUSTROADS and Australian Standards for intersections/crossings, sight distances, and gradelines.

An amended traffic submission was received which sought to address the above non-compliances. However as part of their review of the amended submission, TfNSW found that several matters had still not been satisfactorily addressed and remain outstanding (these matters are listed in the Report above).

Comments received from neighbouring and surrounding residents during the notification process reflected TfNSW’ comments. Concerns raised related to additional traffic entering and exiting the site (including large vehicles such as mini-buses and trades vehicles) being likely to cause traffic accidents noting that Moss Vale Rd within the vicinity of the site is already very dangerous given the winding nature of the road and tight bends with several accidents being cited.

In consideration of comments received from TfNSW, Council’s Traffic Unit, and neighbouring and surrounding residents during the notification process, Council cannot be satisfied that the proposal would not have an ‘adverse impact upon the adjoining land’ – particularly as it relates to local residents travelling to and from their properties.

Clause 2.8(3)(c) – the temporary use and location of any structures related to the use will not adversely impact on environmental attributes or features of the land, or increase the risk of natural hazards that may affect the land.

Applicant’s Submission

“Whilst the proposed use will take advantage of existing shed structures and open spaces for the events, the functions will also require the installation of a temporary marquees for the guests and the location of portable bathroom facilities. Depending on the size of the function, the size of marquee vary however the number of guests will not exceed 150. These temporary installations will not increase the risk of natural hazards. The temporary structures are located in areas close to existing buildings, and are not likely to cause any visual impacts to surrounding residents. This reduces the potential visual impact on the surrounding areas.

The access to the site is restricted in that guests can only attend via mini bus therefore reducing and limiting conflicts with vehicle traffic and noise.

In regard to the existing onsite effluent system, guests will not have access to the dwelling and will not overload the system. Portable bathroom facilities are provided on site and removed following the completion of the function. The catering company is not undertaking cooking of the food on site nor will the cleaning of the dishes occur on-site and as such the onsite effluent system will not be affected.”

Discussion

The site is entirely mapped as being bushfire prone (Vegetation Category 1) according to Council’s bushfire prone land mapping. As depicted in Figure 1 (above), the site and surrounding locality has a high level of vegetation cover and is located adjacent to a National Park.

An initial referral was made to the Rural Fire Service (RFS) for assessment of the Development Application in accordance with Section 4.14 of the Environmental Planning and Assessment (EP&A) Act 1979, the purpose for the referral being for consideration of the submitted Bushfire Assessment Report and the recommendations for bushfire mitigation.

In their response, RFS requested a Bushfire Emergency Management and Evacuation Plan be provided, specifying how function attendees would be evacuated from the site in the event of a bushfire. The requested Plan was submitted by the applicant and subsequently re-referred to the RFS seeking comments and/or conditions.

In their re-referral response dated 14 August 2020, RFS advised that the Plan would enable safe and efficient evacuation from the site, subject to conditions of consent such as the requirement for a refuge building and/or an open air assembly area.

On the basis of information submitted by the applicant in support of the proposal and the subsequent review by RFS, it is found that the proposal would be unlikely to adversely impact on environmental attributes or features of the land, or increase the risk of natural hazards that may affect the land.

Clause 2.8(3)(d) – at the end of the temporary use period the land will, as far as is practicable, be restored to the condition in which it was before the commencement of the use.

Applicant’s Submission

“At the end of each temporary use function the land will be restored to the condition it was in prior to the commencement of each function”.

Discussion

As per the submitted SEE, the applicant advises that all temporary structures would be removed in the day/s following the event and be returned to its natural state.

Section 4.15(1)(b) of the Environmental Planning and Assessment (EP&A) Act 1979 provides the following:

(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

The southern, central, and western parts of the site are covered with native vegetation which are mapped as being areas of terrestrial biodiversity in accordance with the SLEP 2014. This vegetation is also depicted on the NSW Department of Environment, Energy and Science’ BOSET Mapping Tool as containing vegetation of high biodiversity value.

There is further vegetation located along the northern frontage to Moss Vale Rd. The vegetation is located within the road reserve and lines both the northern and southern sides of the road within the vicinity of the site.

Applicant’s Submission

“The proposed temporary use will not result in the loss of any critical habitat, or significant impacts on any Endangered or threatened flora or fauna.”

Discussion

The applicant’s above response has not considered the vegetation which would likely be required to be removed within the Moss Vale Rd road reserve to facilitate sufficient sight lines to be provided according to the requirements set by Transport for New South Wales (TfNSW) in their referral response.

This vegetation removal would require the lodgement of a Fauna and Flora Assessment to clarify whether or not the proposal would trigger entry into the Biodiversity Offsets Scheme (BOS) in accordance with the provisions of the Biodiversity Conservation Act 2016. Given no such Report has been provided, Council cannot quantify the extent of the impact upon vegetation in this location or the applicability of the BOS. Council therefore cannot be satisfied that the development would not have an adverse impact upon the natural environment.

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 200m buffer of the site, during the period 5 to 20 October 2018.

24 submissions objecting to the proposal were received in relation to Council’s notification of the development.

Key issues raised as a result of the notification process are summarised in the following Table (Council’s response to the objections raised is provided in the Planning Report at Attachment 2).

Clause 2.8 of SLEP 2014

Application of clause 2.8 of the SLEP 2014. Specifically, that the proposal would result in an adverse impact to adjoining properties and the wider area.

Road Safety

Comments that Moss Vale Rd within the vicinity of the site is dangerous due to the driveway location on a tight bend and being a single lane road with no designated turning bays. Also concerns regarding vehicles entering/exiting the site given the extra volume of traffic, which may present a hazard – in particular, minibuses and trades vehicles.

Bushfire Risk

Concern regarding how 150 people would be evacuated in the event of a bushfire and potential habitat destruction from a spread of fire caused by the proposal.

Fauna / Flora Habitat

Potential to interfere with the habitat and amenity of fauna and risk of snake bites to function attendees.

Noise

Noise disturbance from 52 events per year and associated construction works.

Time of Disruption

Disruption time when taking into account set up and dismantling of marquees and other temporary structures.

Inadequate Parking

Requesting a guarantee that minibuses would be used and not personal vehicles.

Waste Management

Concerns that the Waste Management Plan is inadequate.

Business Saturation

Identification of a number of similar businesses in the locality and potential to dilute revenue.

Responsible Service of Alcohol

Concerns that RSA would be inadequate given alcohol would be ‘BYO’.

Facilities

Representations that studio building may be used for accommodation despite applicant advice that no guests staying at the site.

Water Quality

Site’s location within the Sydney Drinking Water Catchment and potential waterway contamination.

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

Alternatively, an applicant may also appeal to the Court against the determination pursuant to section 8.7 of the EP&A Act.

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.	The development application has not satisfactorily demonstrated compliance with Clause 2.8(3)(b) of the Shoalhaven Local Environmental 2014. (Section 4.15(1)(a)(i) of Environmental Planning and Assessment Act, 1979)
2.	The development application has not satisfactorily demonstrated compliance with Clause 101(2)(b) of the State Environmental Planning Policy (Infrastructure) 2007. (Section 4.15(1)(a)(i) of Environmental Planning and Assessment Act, 1979)
3.	The likely impacts of the development, including environmental impacts upon the natural environment, has not been satisfactorily addressed. (Section 4.15(1)(b) of Environmental Planning and Assessment Act, 1979)
4.	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)
5.	Having regard to the above matters to address the relevant provisions of Environmental Planning and Assessment Act, 1979, the granting of development consent is not considered to be in the public interest. (Section 4.15(1)(e) of Environmental Planning and Assessment Act, 1979)

Development & Environment Committee – Tuesday 06 October 2020

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DE20.109 Development Application - DA18/2276 - 179 Cedar Springs Rd Kangaroo Valley - Lot 1 DP 791256

DA. No: DA18/2276/4

HPERM Ref: D20/240982

Section: Development Services

Approver: Phil Costello, Director - City Development

Attachments: 1. Determination - 179 Cedar Springs Rd, Kangaroo Valley - Lot 1 DP 791256 (under separate cover) ⇨

2. Planning Report - 179 Cedar Springs Rd Kangaroo Valley - Lot 1 DP 791256 (under separate cover) ⇨

3. Amended Operational Management Plan - 179 Cedar Springs Rd Kangaroo Valley - Lot 1 DP 791256 ⇩

4. Site Plan - 179 Cedar Springs Rd Kangaroo Valley - Lot 1 DP 791256 ⇩

5. Site Plan - Inset - 179 Cedar Springs Rd Kangaroo Valley - Lot 1 DP 791256 ⇩

6. Amended Environmental Noise Impact Assessment - 179 Cedar Springs Rd Kangaroo Valley - Lot 1 DP 791256 (under separate cover) ⇨

Description of Development: Temporary Use of Land as a Function Centre

Owner: Addison Puch Properties Pty Ltd

Applicant: SET Consultants Pty Ltd

Notification Dates: 25 February 2019 to 12 March 2019

No. of Submissions: 21 in objection

Purpose / Reason for consideration by Council

On 30 April 2019, Council resolved that Development Application DA18/2094 be called in to Council for determination due to the significant public interest (MIN19.244).

Recommendation (Item to be determined under delegated authority)

That Development Application DA18/2276 for ‘Temporary Use of Land as a Function Centre at Lot 1 DP 791256, 179 Cedar Springs Rd, Kangaroo Valley be approved subject to the recommended conditions of consent contained in Attachment 1 of this report.

Options

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

Implications: This would allow the development to proceed. A suite of conditions has been prepared by staff and can be found at Attachment 1 to this Report. Under some circumstances, third parties (i.e. objectors) could seek a judicial review of Council’s decision in the NSW Land and Environment Court.

2. Refuse the application.

3. Alternative recommendation.

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

Figure 1 – Location Map

Background

Proposed Development

The proposal includes:

· Temporary use of land under Clause 2.8 of the SLEP 2014 for use of the site as a ‘Function Centre’.

o Functions for up to 150 people for weddings, receptions, conferences, meetings, and other private events.

o A maximum of 52 functions per calendar year.

o A maximum of 22 of the 52 functions being weddings held on a weekend with an absolute finishing time of 12am.

o The remaining 30 of the permitted 52 functions being small midweek team building / corporate conferences.

o Functions to be held within one of the three (3) existing farm buildings located on the site.

o Transport to and from the site via mini-buses – which would pick up and drop off attendees to and from their accommodation to prevent the need for individuals to drive to the site.

o No temporary camping is proposed.

o Operations to accord with the Operational Management Plan (Attachment 3).

· Reconstruction and extension of farm building/s and upgrades to all buildings to be used for functions to achieve the recommendations of the Environmental Noise Impact Assessment (ENIA) (Attachment 6).

o Proposed works to complete the reconstruction of the ‘Grain Shed’.

o Alterations and additions to all buildings to be used for functions to achieve the recommendations of the ENIA.

· Proposed site amenities as depicted on the Site Plan (Attachments 4 and 5):

o Construction of car and mini-bus parking area adjacent to the entrance and internal driveway consisting of:

§ Twenty-four (24) standard parking spaces – the purpose of which is to provide space for parking by staff members including caterers, waiters, bartender/s trained in RSA (to manage alcohol brought to the site), security guard/s, hair and makeup staff, deliveries, and limited spaces to cater for unexpected late arrivals.

§ Two (2) dedicated mini-bus parking spaces.

o Construction of a shed adjacent to the entrance and internal driveway to be used as a bushfire refuge. The shed would:

§ Have a total area of 252m² (21m long x 12m wide).

§ Have a height of 2.94m to the eaves and 6.21m to the apex.

§ Be an ‘American Barn’ style shed consisting of a total of three bays.

o Installation of a temporary marquee for use as a ‘Food Preparation Tent’ by caterers during preparation of food to be served during functions.

o Installation of portable toilets for use by function guests.

Subject Land

The development site comprises Lot 1 DP 791256 (179 Cedar Springs Road, Kangaroo Valley). Refer to Figure 1.

Site & Context

The development site:

· Has a number of existing buildings within the south-eastern front corner of the site which includes an existing homestead and detached habitable rooms, rural worker’s dwelling, and three (3) existing farm buildings.

· Has a land area of 58.07ha.

· Is accessed via a private internal access road to Cedar Springs Road to the south of the site.

· Is partially zoned RU1 Primary Production (the part the subject of the temporary use proposal) and partially zoned E2 Environmental Conservation.

· Is identified as being partially bush fire prone land.

Figure 2 – Zoning Extract

History

The following provides context regarding the information requested by Council and that provided by the applicant following lodgement of the Development Application with Council on 20 November 2018 (note: request for information is ‘RFI’):

· 1^st RFI Request sent to the applicant on 26 November 2018 requesting:

o An amended Site Plan:

§ Addressing Schedule 1 of the Environmental Planning and Assessment (EP&A) Act 1979; and

§ Depicting car and mini-bus parking according to Chapter G21 – Car Parking and Traffic of the Shoalhaven Development Control Plan 2014 (SDCP).

o Plans for those buildings forming part of the application.

o Verification of cost of works.

· Applicant response to the 1^st RFI Request on 30 January 2019 providing a response to the requested information.

· 2^nd RFI Request sent to the applicant on 26 June 2019 following a response to all internal / external referrals and the notification process requesting:

o Commentary addressing how the proposal complies with clause 2.8(3) of the SLEP 2014 with revised information demonstrating that the proposed temporary use will have no adverse impact on any adjoining land or the amenity of the neighbourhood including: (This issue arose during the assessment of the application as Council became aware of recent litigation concerning the use of clause 2.8).

o An amended Environmental Noise Impact Assessment.

o A Traffic Management Plan and plans showing manoeuvring paths for vehicles attending the site.

o Architectural plans for each of the structures and identifying the existing v proposed components.

o Updated Structural Engineering Report.

o Further information clarifying how power and water would be supplied to the food preparation tent.

· Response to 2^nd RFI Request provided in separate submissions on 26 June 2020 and 6 July 2020 providing the requested information.

· The submitted documentation was referred for review by internal and external referral agencies with responses providing comments/conditions.

Issues

Clause 2.8 – Temporary Use of Land of the Shoalhaven Local Environmental Plan (SLEP) 2014

Clause 2.8(3) of the Shoalhaven Local Environmental Plan (SLEP) 2014 provides development consent must not be granted to a proposal unless the consent authority is satisfied that:

(a) the temporary use will not prejudice the subsequent carrying out of development on the land in accordance with this Plan and any other applicable environmental planning instrument.

(b) the temporary use will not adversely impact on any adjoining land or the amenity of the neighbourhood.

(d) at the end of the temporary use period the land will, as far as is practicable, be restored to the condition in which it was before the commencement of the use.

Clause 2.8 applies as the applicant is seeking consent for a temporary use of the land for the purpose of a Function Centre for up to 52 events per calendar year. Functions are proposed to be held for weddings, receptions, conferences, meetings, and other private functions for up to 150 people at any given event. Compliance with Clause 2.8 would be required as a condition of any consent.

A discussion is provided below regarding how the proposal achieves compliance with the provisions of Clause 2.8(3).

Applicant’s Submission

“The use of the site for functions up to 52 times a year will not preclude the land for being continual used for rural purposes and will not impact on the environmental zoned portions of land”.

Discussion

The proposal is temporary in nature and the farm buildings are capable of being reverted back to their original intended use following the completion of the functions. Temporary facilities including the food preparation tent and portable toilets would be removed by contractors immediately following the functions with solid waste transported off site.

Whilst the temporary use would require the construction of permanent facilities including a car park and refuge building, it would not prejudice the subsequent carrying out of development as they would be located immediately adjacent to the internal driveway whereby minimising fragmentation to available farm land.

Considering the above, the temporary use would not prejudice the future and ongoing use of the land for rural and primary production purposes in accordance with Clause 2.8(3)(a).

Clause 2.8(3)(b) – the temporary use will not adversely impact on any adjoining land or the amenity of the neighbourhood

Applicant’s Submission

“The rural nature of the property, existing setbacks, frequency of use, topography and vegetation both onsite and in the surrounding area all contribute to the proposal being achievable to temporarily use the site without having an adverse impact on the amenity of the area, or attributes of the site.

The two areas of particular importance being traffic and acoustic impacts. An Environmental Noise Impact Assessment RFI Response prepared by Harwood Acoustics has been submitted to Council. This report outlined how the temporary use development can operate to achieve the ‘no adverse impact’ requirement to satisfy Clause 2.8(3) of the SLEP 2014. It is anticipated that a consent be conditioned to require compliance with the Environmental Noise Impact Assessment. This will ensure that the temporary use development will have no adverse impacts on the amenity of the surrounding area”.

Discussion

In order to properly consider this matter, case law has been referred to.

Marshall Rural Pty Limited v Hawkesbury City Council [2015] NSWLEC 197

The development consent authorised the function centre use for up to 28 days in any 12 months period and the consent was granted for a period of 2 years.

Acting Justice Moore (Moore AJ) described the nature of the test for development applications made pursuant to clause 2.8 at [113] – [116] as follows:

113 The nature of the activities that are capable of being permitted by an application invoking cl 2.8 are, I remind myself, activities that are otherwise prohibited in a zone.

Potential adverse impacts upon the adjoining land or the amenity of the neighbourhood include the following:

Noise:

The revised ENIA was reviewed by Council’s Environmental Health Officer who agreed with the recommendations and advised that these must be implemented as conditions of consent. Further recommended conditions of consent are also recommended and are summarised as follows:

· Compliance with the recommendations of the revised ENIA.

· Onsite manager for monitoring of noise level.

· Contact name and number for onsite manager to be made available to neighbouring properties.

Traffic:

In response to Marshall Rural Pty Limited v Hawkesbury City Council [2015] NSWLEC 197 and in response to requests from the NSW Police and Council’s Development Engineer, further information was requested from the applicant in the form of a Traffic Management Plan. Details that were requested to be addressed as part of the response included matters such as:

· How traffic including buses, late arrivals, and equipment providers (e.g. food preparation tent, temporary WCs, caterers) would be managed during the setup, operational phase, and pack up stages of each proposed event.

· Demonstrating the location of turning bays for buses and trucks accessing the site and that such movements are able to take place on the parts of the site constructed with a surface of an all-weather nature.

· Indicating designated times for bus movements to and from the site.

The following Table demonstrates the typical traffic movements associated with an event involving the maximum permitted function attendance of 150 guests (the below numbers may change depending upon the number of guests attending). The Table is based upon information provided within a Traffic Management Plan submitted by the applicant in response to Council’s above request:

	Estimated No.	Est. Capacity per Trip	Trips
Late arrivals	20 people	4 per car	5 incoming 5 outgoing
Guests arriving by bus	130 people	25 – per bus 2 buses to be used	6 incoming 6 outgoing
Catering/staff	6 vehicles	-	6 incoming 6 outgoing
Total 34

The following measures were provided within the Traffic Management Plan and / or Environmental Noise Impact Assessment and would assist in ensuring that the above traffic movements do not result in any ‘adverse’ impacts as it relates to traffic:

· The site manager will ensure all departures conclude before midnight.

· The events manager will ensure the vehicles exiting are staggered between 10pm and midnight to comply with the acoustic requirements.

· Minibuses must drop off guests at the reception centre and not in the car parking area.

· Guest vehicle parking must be restricted to the northern most end of the car park area as far from noise receptor R2 as is reasonably practicable,

· After 10pm, guests must be driven to the car park from the reception building using a courtesy vehicle or minibus.

· A site manager or onsite staff member must be present in the car park after 10pm to ensure guests access their vehicles in a timely manner and exit the property quietly.

· No gathering permitted in the car park.

In consideration of the above comments, it is assessed that the proposal would not have an ‘adverse impact upon the amenity of the neighbourhood’ in relation to traffic, subject to implementation of the recommended conditions of consent.

Clause 2.8(3)(c) – the temporary use and location of any structures related to the use will not adversely impact on environmental attributes or features of the land, or increase the risk of natural hazards that may affect the land.

Applicant’s Submission

“Whilst the proposed use will take great advantage of the two impressive barn/stable structures, the functions will also require the installation of a temporary tent for the food preparation area and the location of mobile bathroom facilities. These temporary installations will not increase the risk of natural hazards. The installations are screened by the existing structures and cannot be seen external to the site due to the isolated location.

The access to the site is restricted in that guests can only attend via mini bus therefore reducing and limiting conflicts with vehicle traffic and noise.

In regard to the existing onsite effluent system, guest will not have access to the dwelling and will not overload the system. Portable bathroom facilities are provided on site and removed following the completion of the function. The catering company is not undertaking cooking of the food on site so the cleaning of the dishes and such the onsite effluent system will not be affected.

Discussion

Neither the reconstruction of the proposed farm sheds nor the construction of the refuge building would impact upon any environmental attributes or increase the risk of natural hazards occurring on the site.

In particular, the structures are within existing cleared parts of the site and away from the parts mapped as a ‘biodiversity habitat corridor’.

Clause 2.8(3)(d) – at the end of the temporary use period the land will, as far as is practicable, be restored to the condition in which it was before the commencement of the use.

Applicant’s Submission

“At the end of each temporary use function the land will be restored to the condition it was in prior to the commencement t of each function”.

Discussion

The use of the structures would be required to be reverted back to farm buildings following the completion of the functions.

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 200m buffer of the site, during the period 25 February 2019 to 12 March 2019.

Twenty-one (21) public objections were received in relation to Council’s notification of the development.

Key issues and an assessment of Council’s response to each issue raised during the notification process are summarised in the following Table (a detailed response from Council to the objections raised is provided in the Planning Report at Attachment 2).

Clause 2.8 of SLEP 2014

· Application of clause 2.8(3)(b) of the Shoalhaven Local Environmental Plan (SLEP) 2014 and the potential for the proposal to have an ‘adverse impact’ on the wider locality.

· Concerns regarding the lack of an end date for the temporary use proposal.

· Concerns that the set-up and pack-up prior to and after events have not been considered in the temporary use period.

Clause 2.8 of SLEP 2014

· An assessment against Clause 2.8(3)(b) of the SLEP 2014 found the proposal to comply with Clause 2.8 with any associated impacts unlikely to be adverse given:

o Recommendations of Environmental Noise Impact Assessment (ENIA) would be implemented in full.

o NSW Police conditions would manage behaviour on the site.

o Traffic would be minimised through the use of mini-buses with only separate contractors to use private vehicles.

o Rural Fire Service were satisfied with procedures for evacuation.

· Compliance with Clause 2.8 of the SLEP 2014 would also be required as a condition of consent (see Condition 4 of Attachment 1).

· Marshall Rural Pty Ltd v Hawkesbury City Council and Ors [2015] NSWLEC 197 found that consent for a temporary use is not required to be subject to an end date. Notwithstanding, Council proposes a condition limiting any consent to one (1) year only in the first instance.

· EMRR Pty Ltd v Murray Shire Council [2016] NSWLEC 144 found that the 52 days per year permitted for a temporary use is not required to consider the set-up and pack-up prior to and following each event.

Bushfire Risk

· Concerns regarding the bushfire risk given the slope and vegetative cover of the site and locality.

· Concerns regarding the proposed refuge building and regarding the lack of a secondary access road off the site.

· Concerns regarding evacuation and access by emergency services given the winding nature of the road.

· Concerns regarding the evacuation timeframe given the guests to staff ratio.

· The danger of spread of fire resulting from the temporary use.

Bushfire Risk

· The Rural Fire Service found the proposal to be acceptable subject to conditions of consent including:

o Emergency Evacuation Plan prior to any functions being held.

o Maintenance of asset protection zones

o Static supply of water for firefighting.

o The refuge building to have a bushfire attack level of BAL29.

o Upgrade of the access road to meet the Planning for Bushfire Protection 2006.

Traffic Management / Road Maintenance

· Concerns regarding where people would park to be collected by the mini-bus and the resultant potential for private vehicle parking on Bendeela Rd.

· The purported limits on vehicular movements after 6pm may not be achievable.

· Concerns that trucks and buses or cars may not be able to pass one another on the private access road.

· Concerns that the condition of the private access road may deteriorate due to over use by heavy vehicles including trucks and buses given it is a shared road providing a ROW to several other properties.

· The restriction requiring majority agreement of all benefitting lots prior to any maintenance or upgrade works taking place.

Traffic Management / Road Maintenance

· No vehicular parking on Bendeela Rd is proposed or is permitted.

· Council’s Development Engineer found the proposal to be suitable, subject to conditions of consent.

· Traffic movements to and from the site during night time hours are further clarified in the Traffic Management Plan.

· The amended Operational Management clarifies that guests will be picked up from their accommodation and will therefore not need to park their cars at any separate location.

Noise

· Impacts upon amenity due to increased noise resulting from music played at functions.

· Likelihood for sleep disturbance due to excessive noise.

· Potential noise emission during the set up and pack up phases such as increased traffic noise.

· The formulaic guidelines applied within the Environmental Noise Impact Assessment may not account for the geographic location of the site within a natural amphitheatre.

· The recommendations of the Environmental Noise Impact Assessment may be unrealistic for live music being played at a function centre.

· The increased noise may increase the burden on emergency services.

Noise

· An amended ENIA was submitted which addresses whether the proposal would have an ‘adverse impact’ as opposed to an ‘acceptable impact’.

· The amended ENIA concluded there would be no ‘adverse impact’ subject to strict conditions of consent.

· Recommendations of the ENIA include an electronic noise limiting device which would enable realistic measuring of noise emissions.

· The concurrence of the NSW Police Force has been obtained.

Unauthorised Structures

· Concerns that the structural certification provided by Westlake Punnett may be outdated and further unauthorised works may have taken place since this date.

· Concerns were raised that, given the structures are presently unauthorised, they may be deficient.

· Concerns that the structures may not meet fire safety standards.

· Concerns that architectural plans for the proposed structures have not been provided.

Unauthorised Structures

· Updated structural certification provided by Westlake Punnett covers all unauthorised works to date.

· A condition regarding structural adequacy would also be placed within any consent.

Responsible Service of Alcohol (RSA)

· Concerns that, given alcohol would be BYO, the RSA would be inadequate.

· The resultant potential for anti-social behaviour.

· Trespass & security concerns for neighbours due to intoxicated function attendees.

Responsible Service of Alcohol

· A referral response from the NSW Police concurred with the proposed arrangements subject to conditions including:

o Licencing Officer at South Coast PD to be informed of any events with a notice of at least 28 days.

o Alcohol brought to the site is to be kept under the control of and served only be persons within RSA authorisation.

Business Saturation

· The large number of existing businesses within the locality which provide a similar service.

Business Saturation

· Concerns regarding business saturation are acknowledged – however the applicant is permitted to apply for the proposed development.

Potential Impacts to Natural Environment

· Potential impacts associated with the development upon the natural environment given its location within the vicinity of a National Park.

· Potential adverse impacts to various local species of fauna and flora which inhabit the site and immediate surrounding locality.

Potential Impacts to Natural Environment

· Concerns are acknowledged, however given no vegetation removal is proposed there would be no adverse impact to threatened species of fauna and flora.

Future Development Plans

· Concerns regarding future development plans which may be undertaken on the property.

Comments regarding Future Development Plans

· Comments regarding future development plans which do not form part of the present application cannot be taken into consideration.

Water Quality

· The site’s location within the Sydney Drinking Water Catchment was noted.

· The potential for impacts upon Tanners Creek and Target Creek.

Water Quality

· A response received from WaterNSW found the proposal to be acceptable with regard to impacts upon the Sydney Drinking Water Catchment, subject to conditions of consent.

Inadequate Onsite Sewage Management System (OSSM)

· Concerns raised that the present OSSM may be insufficient to cater for function attendees in addition to the existing number of people it is designed to service.

· Concerns that a very big new system may be required which may not be suitable.

Inadequate Onsite Sewage Management System (OSSM)

· Use of the existing OSSM is not proposed. The applicant has proposed that portable toilets will be brought onto the site for each event.

· A condition would be included requiring the provision of portable toilets.

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

Alternatively, an applicant may also appeal to the Court against the determination pursuant to section 8.7 of the EP&A Act.

Summary and Conclusion

The proposed development was subjected to a detailed assessment as required under section 4.15 – Evaluation of the Environmental Planning and Assessment (EP&A) Act 1979. Following the detailed assessment and analysis of the main issues identified in this report, the application is considered to be capable of support as there are no substantive planning reasons to warrant refusal.

· Subject to conditions of consent. the development has satisfactorily addressed the requirements for temporary use proposals under clause 2.8(3) of the SLEP 2014.

· The application has satisfactorily addressed the objectives for Zone RU1 – Primary Production and other relevant clauses of the SLEP.

· Compliance with the acceptable solutions of relevant chapters of SDCP has been demonstrated.

· The proposal was found not to have an adverse impact upon either the natural or the built environments.

· The proposal was found not to have an adverse social or economic impact upon the surrounding locality.

Accordingly, it is recommended for approval subject to the conditions of consent as per Attachment 1 and that the approval be limited to an initial period of 1 year.

Development & Environment Committee – Tuesday 06 October 2020

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DE20.110 Development Application - DA20/1349 - 4 Sand Drift Way Vincentia - Lot 1432 & DP 1231370

DA. No: DA20/1349/4

HPERM Ref: D20/309409

Section: Development Services

Approver: Phil Costello, Director - City Development

Attachments: 1. Planning Report - 4 Sand Drift Way Vincentia - Lot 1432 DP 1231370 (under separate cover) ⇨

2. Draft Determination - Approval - 4 Sand Drift Way Vincentia - Lot 1432 DP 1231370 ⇩

3. Management Plan - Lot 1432 DP 1231370 - 4 Sand Drift Way Vincentia (under separate cover) ⇨

Description of Development: Change of Use from Dwelling to Boarding House

Owner: New Living Shoalhaven Pty Ltd

Applicant: PDC Planners

Notification Dates: 04 May 2020 to 19 May 2020

No. of Submissions: 156 (154 objecting, 2 supporting)

Purpose / Reason for consideration by Council

On 23 June 2020, the Development & Environment Committee resolved that DA20/11349 be ‘called in’ to Council for determination due to the significant public interest (MIN20.422).

Recommendation (Item to be determined under delegated authority)

That Development Application DA20/1349 be determined by way of approval subject to the imposition of conditions of consent as contained in Attachment 2.

Options

1. Approve the Development Application (DA) in accordance with the recommendation.

Implications: Approving the DA will enable the provision of affordable housing in an appropriate location. There are third party appeal rights through the NSW Land and Environment Court (L&EC) in particular circumstances.

2. Refuse the Development Application (DA)

Implications: Council would have to provide reasons for refusal to form part of the determination. The applicant would have the ability to request a review of any refusal by Council and / or pursue an appeal through the NSW Land and Environment Court (L&EC).

3. Alternative recommendation.

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

Location Map

Figure 1 – Location Map with Aerial Overlay

Background

Proposed Development

The conversion of an existing dwelling and secondary dwelling to a boarding house.

The existing dwelling will comprise of four (4) boarding rooms, one accessible; communal living area with kitchenette and laundry facilities; outdoor alfresco area with private open space; and double garage.

The existing secondary dwelling will comprise of Two (2) boarding rooms; outdoor private open space; and communal entry.

All boarding rooms will comprise separate bathroom facilities and kitchenettes. Each boarding room has been designed for single occupation with a total maximum of six (6) occupants at any one time.

Primary dwelling

· Communal area = 24.45m²

· Room 1 (accessible) = 21.05m²

· Room 2 = 20.9m²

· Room 3 = 19.26m²

· Room 4 = 17.81m²

Secondary dwelling

· Room 1 = 23.03m²

· Room 2 = 19.02m²

Services provided to the site include two (2) enclosed parking spaces; one (1) accessible open space; waste management/bin storage; letterbox facilities; two (2) motorcycle spaces; and two (2) bicycle racks.

The proposed boarding house is intended to provide accommodation for individuals who are on low incomes. The boarding house complies with development standards set by State Environmental Planning Policy (Affordable Rental Housing) 2009 and provides all occupants an appropriate standard of internal and external facilities.

The boarding house will provide a social benefit as it will provide an affordable, high quality housing option for those who may otherwise be unable to afford to rent a dwelling or unit in the private market.

The boarding house is to be run by New Living Shoalhaven Pty Ltd and will be aimed at low income workers, students and aged pensioners. The Plan of Management submitted with the application (Attachment 3) identifies that an off-site manager will be appointed to the boarding house and will undertake regular monitoring of the premises. The Plan of Management also addresses house rules which will be displayed at the entrance of the premises, in every private room and in outdoor communal areas. A zero tolerance policy for alcohol and drugs will be implemented along with no parties, no live music and outdoor communal area use restricted to between the times of 8am and 10pm seven (7) days a week and no visitors will be permitted past 10pm. Any lodger or visitor failing to observe the rules will be dealt with in accordance with the Plan of Management. Any serious offences and anti-social behaviour are reportable to the police as is the case regardless of location.

Figure 2 – Site Plan

Figure 3 – Perspectives

Subject Land

The subject site is situated at 4 Sand Drift Way, Vincentia legally described as Lot 1432 DP 1231370.

The site has an 18.84m frontage to Sand Drift Way with a total site area of 600.0m².

The site currently contains an attached Dwelling and Secondary Dwelling approved under Complying Development Certificate No. 19/1116 and modified by 19/1350.

The existing dwelling and secondary dwelling are currently leased out as two (2) individual dwellings under normal tenancy conditions.

Site & Context

The site is located within the Bayswood Estate.

The surrounding character is comprised of existing residential development. The site is approximately 250m from the Vincentia Marketplace which includes supermarkets, specialty stores, dental centre, and medical services.

The site is within close proximity of existing public transport which services the wider region and links to train services at Bomaderry.

History of Current Application

20 April 2020 - The application lodged with Council.

21 April 2020 - Additional information was requested from the applicant at vetting stage.

04 May 2020 - Additional information received, and vetting completed.

04 May – 19 May 2020 – official notification period of 2 weeks.

23 June 2020 - Notice of Motion put forward that DA20/1349 be called in for determination by Council because of public interest.

01 July 2020 - Request for information sent to applicant.

03 July 2020 - Site Inspection undertaken.

13 July 2020 - Additional information received from applicant.

Issues

Shoalhaven Affordable Housing Strategy

The Shoalhaven Affordable Housing Strategy (the Strategy) was adopted by Council on 11 December 2017. The Strategy “provides a range of effective policy solutions to facilitate additional affordable housing across the Shoalhaven local government area”. The Strategy outlines the issues of affordability in the Shoalhaven and the associated risks:

“Increasing pressure from the Sydney housing market is having a significant impact on local people, who are forced to compete in an increasingly competitive local housing market. In particular, local rents are increasing compared with local incomes in real terms, and the relative scarcity of rental accommodation at the more affordable end of the market means that real estate agents can be increasingly selective about who is housed. This is also contributing to homelessness and increasing the risk of homelessness among groups who would once have been in more secure accommodation.

Importantly, housing for purchase and rental that is affordable to very low and low-income households is generally not being created through the market. Again, this is due to the increasing cost of housing and the income required to rent or purchase affordably.” (pg.5)

The Strategy contains ‘Locational Criteria for Affordable Housing’ which preferences affordable housing within well-located areas that are close to transport and services. Ideally, housing that meets the needs of very low, low and moderate-income households should be located close to larger service centres. This has been defined by the Strategy as precincts within 400-600m of the urban areas of Nowra-Bomaderry, Vincentia and Milton-Ulladulla. In this instance the boarding house is located in Bayswood/Vincentia 0.5km from the Vincentia Market Place and 2.8km from the commercial core of Vincentia.

Public transport services are provided by Nowra Coaches, departing from the Vincentia Market Place at 9:35am, 11:05am, 1:24pm, 2:24pm, 3:51pm and 6:20pm to Nowra and Bomaderry Railway Station from Monday to Friday; there are buses returning to Vincentia departing from Stewart Place in Nowra at 7:51am, 9:21am, 10:43am, 12:56pm, 2:54pm, 3:42pm and 5:22pm. On Saturday and Sunday this is limited to a service at 9:56am and 2:00pm and returning at 8:26am and 12:56pm.

The proposed development is considered to be essentially consistent with the Strategy in the provision of high quality ‘new generation’ boarding houses that have been designed to satisfy the requirements of the State Environmental Planning Policy (Affordable Rental Housing) 2009. Whilst not being within a ‘well-located’ area as defined under the Strategy the site is located close to Vincentia Marketplace and there are sufficient public transport links to the larger commercial areas, along with the day to day services provided within Vincentia, that will provide for the needs of future residents.

Social Impacts

Submissions have been received prior to, during, and after the notification period that have raised concerns with the impacts on the existing residential area that may result from the proposed boarding houses.

On the issue of concerns or fears raised by the community when considering a development application, in New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154, his Honour Lloyd J stated:

“That the subjective fears and concerns must have a rational basis and be amenable to objective assessment in order for any significant weight to be attached to them.”

In this instance the concerns raised in the public submissions regarding the potential impact of the future residents on the existing residential community are not able to be verified by way of ‘objective assessment’.

A Boarding House Management Plan and Boarding House Rules have been submitted with the application which outline the process for applying for accommodation and the management arrangement. This includes a dispute resolution mechanism should there be issues with or between tenants of the premises.

Council is satisfied that the proposed development will not result in significant adverse social impacts through the provision of alternative housing in Vincentia. Conditions of consent that address the appropriate management of the boarding house in accordance with the submitted documentation, are considered to be sufficient to mitigate potential impacts.

Planning Assessment

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

Policy Implications

There are no Policy implications as a result of the development as proposed.

Consultation and Community Engagement

One hundred and fifty-six (156) public submissions were received in relation to Council’s notification of the development. 154 were objections to the development from 102 households. Two (2) were in support of the development.

The notification was made in accordance with Council’s Community Consultation Policy with letters being sent within a 60m buffer of the site. Community Consultation Groups were also notified of the proposed development. The notification was for a standard two (2) week period.

One hundred and sixteen (116) submissions were received during the formal notification period, 28 submissions were received prior to formal notification taking place, and another 12 received after the formal notification period closed.

The initial notification period was delayed due to additional information being required from the applicant prior to notification.

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

Issue: Lack of community consultation

Submissions raised the following concerns:

· Reclassification of the purpose-built dwelling, it was specifically designed as a boarding house.

· No notification at construction stage.

· Prevent this misuse/abuse of its recent Affordable Housing Policy.

Comment

The proposed development was notified in accordance with Shoalhaven City Council Community Consultation Policy for Development Applications (Including Subdivision) and the Formulation of Development Guidelines and Policies (POL 16/230).

The application was notified for 2 weeks between Monday 04 May 2020 till close of business Tuesday 19 May 2020. All documents (except floor plans) are publicly available on the DA tracking website.

Developers are not required to engage with neighbours or the community when preparing a development application.

The original application was approved under a Complying Development Certificate (CDC) in accordance with the provisions of the NSW State government State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP). The controls in the Codes SEPP have been developed to provide building envelopes that take into account amenity and privacy.

CDCs do not require neighbour notification as is the case with many forms of Local Development.

Issue: Illegal development

Submissions raised the following concerns:

· Reclassification of the purpose-built dwelling, it was designed as a boarding house.

· Not constructed in accordance with the ‘Bayswood Design Essentials’.

· prevent this misuse/abuse of its recent Affordable Housing Policy.

Comment

The application before Council is for a Change of Use, from a dwelling to a Boarding House. The proposed use is permissible within the Zone.

The existing structure was approved as a Dwelling and attached Secondary Dwelling (Granny Flat) via a Complying Development Certificate (CDC). The two-step approach to the development, undertaken by the developer, is a legitimate pathway within the NSW Planning System. The existing structure is a permissible use within the Zone.

The issues raised by way of the proposed development not complying with the Masterplan of the Estate are based on marketing strategies and promotional material, not land use planning legislation. The proposed development is permissible within the Zone and is compliant with all relevant legislation.

The original Complying Development adhered to the requirements within the 88b instrument, Restrictions as to User which state that:

Issue: Inappropriate Development within the zone

Submissions raised the following concerns:

· Boarding houses in residential areas are inappropriate

· Bayswood is a place for growing families and elderly residents

Comment

The Proposed Development Is Located Within the R2 – Low Density Residential Zone. A boarding house is permissible within the Zone with consent. An extract from the Shoalhaven Local Environmental Plan 2014 is below:

Permitted with consent

Bed and breakfast accommodation; Boarding houses; Boat launching ramps; Boat sheds; Building identification signs; Business identification signs; Centre-based child care facilities; Community facilities; Dual occupancies; Dwelling houses; Environmental protection works; Exhibition homes; Flood mitigation works; Group homes; Health consulting rooms; Home-based child care; Home businesses; Home industries; Jetties; Neighbourhood shops; Oyster aquaculture; Places of public worship; Pond-based aquaculture; Recreation areas; Respite day care centres; Roads; Semi-detached dwellings; Sewerage systems; Tank-based aquaculture; Water supply systems

The objectives of the R2 zone are:

1. To provide for the housing needs of the community within a low-density residential environment.

2. To enable other land uses that provide facilities or services to meet the day to day needs of residents.

3. To provide an environment primarily for detached housing and to ensure that other development is compatible with that environment.

1. The low-density residential zone is characterised by predominantly single storey residential development. The existing area has a variety of residential accommodation types already approved including dwelling houses, secondary dwellings, and attached dual occupancies. The proposed development presents as a dwelling to the street and provides diverse housing stock within the community.

2. Other land uses permitted within the zone to support the needs of residents include medical centres, neighbourhood shops, places of worship – churches, and childcare facilities to name a few. The subject site is less than 200m from the adjoining B2 – Local Centre which provides a range of retail, business, entertainment and community uses.

Boarding house developments provide medium to long-term rental housing for a diverse group of people within the community including but not limited to low-income/young professional, divorcees, retired people, contract workers, students, and others looking to live within a community.

Issue: Parking and traffic safety

Submissions raised the following concerns:

· Sand Drift Way is a narrow street and does not facilitate large vehicle movements

· Limited on-site parking. Six rooms/people and only parking for three vehicles

· Car parking is already an issue within the Estate

· Design Essentials for Bayswood Estate state that parking is to be in a garage or behind a fence.

· Do not want people parking on pathways/sidewalk

· Visitor parking provisions

· Safety of pedestrians

Comment

Under the State Environmental Planning Policy (Affordable Rental Housing) 2009, the proposed development triggers the need for 0.5 parking spaces per room. A total of six (6) rooms requires three (3) spaces. The proposed development provides two (2) internal parking spaces with an additional external accessible space located in the front setback. Accordingly, Council cannot refuse consent to the boarding houses based on the provision of car parking alone.

Section I.VI of the Management Plan outlines the requirements for parking as follows:

· Off street parking is provided for the use of residents.

· Cars, bicycles and motorcycles are to be parked in the allocated areas.

· No car or motorcycle is to remain in a parking space, without being moved, for a period of longer than 72 hours.

· Repairs to motor vehicles are not to be carried out on site.

The additional accessible parking space within the front setback is to be screened from public view through the use of landscaping and is to be maintained in perpetuity.

The provision for Bayswood Estate within the Bayswood Design Essentials, that states that parking is to be in a garage or behind a fence, is not something that can be legally regulated and has no legal basis. This requirement is not being complied with by existing residents who use driveways to park their vehicles.

Visitor parking can be accommodated onsite or on the road verge, similar to other properties within the estate. There is no requirement for visitor parking to be provided either within the ARH SEPP or Chapter G21 – Car Parking and Traffic, of the Shoalhaven Development Control Plan 2014.

The driveway is existing and was approved under s138 of the Roads Act 1993 and access and manoeuvrability into and within the site is in accordance with Chapter G21 of the Shoalhaven DCP 2014. The road infrastructure has been designed to comply with the Austroads road design requirements.

Issue: Operations of boarding house and safety

Submissions raised the following concerns:

· No on-site manager to supervise

· Too many people residing in the residence

· Negative effect on children and the elderly who will be ‘too frightened to step outside their houses’

· Increased crime in the area and anti-social problems – abuse, vehicle accidents, ‘questionable’ comings and goings, theft, break-ins and vandalism

Comment

Clause 30(1e) of the State Environmental Planning Policy (Affordable Rental Housing) 2009 states that an on-site manager is only required if the boarding house has the capacity to accommodate 20 or more lodgers. The proposed boarding house has the capacity to accommodate 6 lodgers and does not trigger the requirement for on-site management.

The Boarding Houses Act 2012 introduced regulations and protections for residents of boarding houses. The Act states that an Occupancy Agreement is required to be produced in accordance with Schedule 1 of the Act and provided to all tenants.

A Management Plan has been provided which outlines the ongoing management of the proposed boarding house as follows:

· The premises are to operate as a registrable boarding house for the purposes of the NSW Boarding Houses Act 2012 and the operation of the boarding house is to be in compliance with the Act.

· The capacity of each boarding room shall not exceed 1 resident.

· Any person who is to occupy a room in the boarding house is to sign an Occupancy Agreement.

· Prior to entering into an Occupancy Agreement, prospective residents are to be advised that they may potentially be evicted if they breach the resident obligations.

· Alcohol is not permitted to be consumed in the indoor or outdoor communal areas.

· Examples of serious misconduct include but are not limited to drug or alcohol abuse, sexual, racial or religious harassment, theft, or violence. Lodgers are instructed to call the police if the lodger is performing illegal acts on the property.

· Any lodgers inviting visitors to the premises must accept full responsibility for them and their behaviour. In the event of any serious misconduct by the visitor of a lodger, the lodger may also be asked to vacate the premises and be asked to pay for damages, where required.

· No pets are allowed within the boarding house accommodation at ANY time.

· Security cameras are permitted to be installed in the common areas.

· A Complaint Monitoring System will be established, and all complaints will be recorded and acted upon in a timely manner.

The Management Plan has been written in accordance with the requirements set out in Schedule 1 of the Act.

The Local Government (General) Regulation 2005 sets standards for places of shared accommodation, and this includes all boarding houses. Schedule 2 Standards enforceable by orders, Part 1 Standards for places of shared accommodation

General boarding houses are subject to an initial inspection by the local council, and separately are subject to the local council’s ongoing monitoring of development controls and fire and building safety regulations under the Environmental Planning and Assessment Act 1979 and the Local Government Act 1993.

Issue: Affordability

Submissions raised the concern that the proposed development was too expensive to be classed as ‘Affordable Housing’

Comment

It is proposed to rent the rooms out at around $225-250 per week. This includes the room, basic furniture and utilities. Current rents within the Shoalhaven area for a studio apartment or 1-bedroom unit range from $210 upwards with an average cost of $250/week (NSW Department of Communities and Justice, March Quarter 2020 Rent Tables). These prices do not include furniture or utilities.

The difference between boarding houses and standard residential tenancies which makes boarding houses more affordable is outlined below:

Boarding house	Residential tenancy	Difference
0-2 weeks bond	4-6 weeks bond	Lower initial outlay
Furnished	Usually not furnished	No outlay for furniture
Utilities provided in lease agreement	Utilities the responsibility of tenant	Fixed costs allow for budgeting
Flexibility of tenure	Fixed/minimum term tenure	Suitable for contract workers and others requiring flexibility in accommodation

Issue: Sourcing of tenants

Submissions raised the following concerns:

· ‘Marketing for tenants through social media, local hospitals, police stations and any suitable reference for key workers.’

· Clients who are low-socioeconomic, parolees/offenders, people with mental illness, drug addicts

Comment

Under the Anti-discrimination Act 1977 and the Boarding Houses Act 2012, it is unlawful for providers of services and accommodation to discriminate against people. Discrimination against people due to age, race, disability, gender, gender-identity, sexual orientation, marital status or carer’s responsibilities, or discrimination against a person because they are related to, or associate with, a person with these characteristics, is unlawful under the Acts.

Issue: Lack of local infrastructure and support

Submissions raised the concerns of limited public transport, limited medical facilities, no Government services within the vicinity.

Comment

The State Environmental Planning Policy (Affordable Rental Housing) 2009 has no provisions for boarding houses to be located nearby public transport, Government facilities or other services. The ARH SEPP clause 27(3) has provisions for boarding houses within regional areas whereby they need to be located within 400m proximity to a B2 – Local Centre Zone.

The proposed boarding house will be located less than 300m from the B2 – Local Centre Zone and Vincentia Marketplace. Vincentia marketplace includes Woolworths, Aldi, Vincentia Bay Medical Centre, Vincentia Dental Care, Choice Pharmacy, Australia Post, Westpac, Anytime Fitness, Caltex Petrol, and a variety of specialty stores and food outlets. The boarding house will also be in close proximity to Vincentia High School, Vincentia Public School, Vincentia Medical Centre, Bay and Basin Leisure Centre, Vincentia Shopping Village, a variety of Churches, HMAS Creswell Royal Australian Navy base, and HMAS Albatross Royal Australian Navy base.

Access to public transport is available to the site with a bus stop located Vincentia Marketplace which services the local area to Basin View, Sanctuary point, Hyams Beach, Huskisson, Nowra and connects to the train line at Bomaderry.

Issue: Noise

Submissions raised concerns relating to noisy behaviour by residents.

Comment

The property is to be managed by way of a Management Plan. The Management Plan outlines the house rules which place restrictions on noise as follows:

· Live music will not be permissible on the premises at ANY time.

· No amplified music is permitted at ANY time within the outdoor communal areas. Recorded and/or amplified music is permissible indoors during daylight hours between 8:00am and 10:00pm, seven days a week.

· No Parties are permitted on the premises.

· All visitors of residents are to leave the premises by 10pm nightly.

· The use of the outdoor communal areas shall be restricted to between the hours of 8:00am and 10.00pm every day.

The premises are to be used in the same fashion as surrounding residential premises, however with a higher level of restrictions, particularly around the matter of noise producing activities.

Noise control is enforced under the Protection of the Environment Operations Act 1997 (POEO Act) and the Protection of the Environment Operations (Noise Control) Regulation 2008 (Noise Control Regulation). Section 6 of the POEO Act makes Council the regulatory authority for noise control within the LGA. The noise restrictions outlined within the Management Plan are consistent with the POEO Act, and Noise Control Regulation.

Issue: House and land prices

Submissions raised concerns with the proposed development devaluing of existing properties within the Estate.

Comment

House and land prices do not form part of the development assessment process and are not a mechanism for assessment consideration under the Environmental Planning and Assessment Act 1979. This position is consistent with the Land and Environment Court’s long taken stance that land values are not a relevant planning consideration (Alphatex Australia v The Hills Shire Council (No 2) [2009] NSWLEC 1126). In this matter, at paragraph 105 the (then) Senior Commissioner Moore stated:

“…I pay no regard to the fears about loss of property values as, consistent with the position long taken in the Court, this is not a relevant planning consideration.”

Issue: Currently occupied and multiple bins at the location

Submissions raised the following concerns:

· People are currently living on the premises

· There are two (2) sets of bins at the location

Comment

The existing approval is for a four (4) bedroom dwelling and two (2) bedroom secondary dwelling. The issue of the structure already being used has been reviewed by Council’s Compliance Team, who found that the existing premises was currently being rented as two (2) separate dwellings in accordance with the current approved use.

‘Yellow’ and ‘red’ bins have been provided to each separate occupancy in accordance with Council’s Waste Minimisation and Management Guidelines, whereby all dwellings are to be provided with suitable waste services.

Financial Implications

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

Legal Implications

Pursuant to section 8.2 of the EP&A Act, a decision of the Council may be subject of a review by the applicant in the event of an approval or refusal. In the event that such a review is ultimately pursued (if the recommendation is not adopted) the matter would be put to Council for consideration.

Alternatively, an applicant may also appeal to the Court against the determination pursuant to section 8.7 of the EP&A Act.

Summary and Conclusion

• The development is permitted within the zone and is consistent with the objectives of the zone.

• The development will result in alternative accommodation in a suitable location.

• The development will not result in significant social impacts subject to appropriate management and therefore the imposition of appropriate conditions of consent.

• The development is compliant, with no significant reason or issue being identified warranting a negative recommendation.

Having regard to the above, it is recommended that Development Application No. DA20/1349 be approved subject to appropriate conditions of consent. (Attachment 2.)

Development & Environment Committee – Tuesday 06 October 2020

Page 0

DE20.111 Development Application - DA19/2192 - Bryces Rd Far Meadow - Lot 25A DP 5996 & Lot 1 DP 1237878

DA. No: DA19/2192/4

HPERM Ref: D20/327520

Section: Development Services

Approver: Phil Costello, Director - City Development

Attachments: 1. Draft Determination - Bryces Rd Far Meadow - Lot 25A DP 5996 & Lot 1 DP 1237878 (under separate cover) ⇨

2. Planning Report - Bryces Rd FAR MEADOW - Lot 25A DP 5996 & Lot 1 DP 1237878 (under separate cover) ⇨

3. Site Plan - Bryces Rd Far Meadow - Lot 25A DP 5996 & Lot 1 DP 1237878 ⇩

4. Site Plan - Right of Way - Bryces Rd Far Meadow - Lot 25A DP 5996 & Lot 1 DP 1237878 ⇩

5. Concept Floor Plan - Bryces Rd Far Meadow - Lot 25A DP 5996 & Lot 1 DP 1237878 ⇩

Description of Development: In Principle Dwelling Envelope

Owner: Shoalhaven City Council (Lot 25A) & M J Boyde & J A Lawson (Lot 1)

Applicant: Shoalhaven City Council – Property Unit

Notification Dates: 9-30 January 2020

No. of Submissions: Three (3)

Purpose / Reason for consideration by Council

Section 3.3.2 of Council Policy No. POL16/235 – Dealing with Development Applications Lodged by Council Staff or Councillors applies. As detailed above, the owner is Shoalhaven City Council and is being assessed by same. To ensure the process is transparent, the matter is being put to Council’s Development & Environment Committee for consideration.

Recommendation (Item to be determined under delegated authority)

That Development Application DA19/2192 for ‘In Principle Dwelling Envelope’ at Lot 25A DP 5996 and Lot 1 DP 1237878, Bryces Rd, Far Meadow be approved subject to the recommended conditions of consent contained in Attachment 1 of this report.

Options

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

Implications: This would allow the development to proceed.

2. Refuse the application.

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

3. Alternative recommendation.

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

Figure 1 – Location Map

Background

Proposed Development

The proposal is an application for the nomination of a building envelope which involves:

· Establishment of a building envelope on Lot 25A DP 5996 at Bryces Rd Far Meadow (which forms the ‘development site’) as depicted in Attachment 3. The building envelope would have a total area of 252.5m².

o The envelope would have maximum dimensions of 21.75m long x 14.4m wide.

o The envelope would be located a distance of 10.0m from the south-eastern rear corner of the development site and directly adjoins the southern side boundary.

o A Concept Floor Plan (Attachment 5) proves that the building envelope would be of a sufficient size and dimensions to support the construction of an adequately sized dwelling whilst also achieving compliance with applicable provisions of the Shoalhaven Development Control Plan (SDCP) 2014.

· Establishment of an effluent disposal area on Lot 25A DP 5996 at Bryces Rd Far Meadow (which forms the ‘development site’) as depicted in Attachment 3.

o The effluent disposal area would be located in the south-eastern rear corner of the development site and directly adjacent to the building envelope.

o An Onsite Wastewater Assessment prepared by Harris Environmental Consulting, dated 5 March 2019 proves that the following system is capable of being installed within the dimensions of the effluent disposal area as part of a future development:

§ Aerated Wastewater Treatment System (AWTS) with a 13.8m² raised soil absorption bed as one 6m long x 2.3m wide bed.

§ Reservation of 13.8m² reserve for a raised soil absorption bed.

§ 700mm masonry retaining wall OR 1:3 grassed slope batter around the sides and upslope diversion bank.

· The establishment of a right of way access easement over Lot 1 DP 1237878 at No. 47 Bryces Rd Far Meadow to permit access to Bryces Road as Lot 25A DP 5996 does not have direct frontage to Bryces Road.

Subject Land - Background

The development site comprises Lot 25A DP 5996 and Lot 1 DP 1237878 (Bryces Road, Far Meadow). Refer to Figure 1.

The lot was originally created in DP 5996 dated 5 September 1910. The lot was created without road access (notation on the DP detailed further below) so that it would have to be consolidated with adjoining land if sold. Subsequent to this, DP 234234 was registered on 8 September 1965. This did not impact on Lot 25A. This later DP created a ‘road’.

Lot 25A was transferred to Council for ‘reservoir purposes’ in 1920. The land was never used for the intended purpose and is no longer required resulting in it being surplus to Council’s operational requirements. The land also has an easement for a water pipeline. The historic dealing A665982 references lot 25A for “reservoir purposes”.

The note (numbered ‘1’) on the DP that applies to Lot 25A, is as follows:

(1) An easement is retained by the vendors over the land 2 feet in width on each side of lines referred to as Water Easement on plan.

Blocks N^os 25A, 26A, 44B, 51A (?) to which no road of access has been left will only be sold to owners of adjoining land.

Lot 25A is identified in Council’s records as a ‘dam’. It is not being used for this purpose and is subject to a Category 3 water course as detailed further below. As mentioned, the dam never eventuated. The land is separated from Bryces Rd by a thin strip forming part of Lot 1.

The land has an ‘entitlement’ to a dwelling (certificate dated 22 October 2015). This DA will confirm or otherwise, depending on the final decision, that the site has capacity to ‘fit’ a modern dwelling having regard to site characteristics and constrains and resolve access issues.

Application Context

Having regard to the above, whilst there is a legal entitlement, the land was not created for rural or rural residential purposes. This application therefore ‘teases’ out site suitability and capacity for a dwelling in a rural context.

It is also noted that Council considered a confidential report concerning this land in 2017. In summary, the intention being to investigate ‘options’ to ensure any sale was based on an appropriate market value. The confidentiality was on the basis that there could be certain commercial advantages to certain parties.

This current development application is described in the amended Statement of Environmental Effects prepared by Locale, dated December 2019, in the “Executive Summary” as a:

“…development application to ensure that a rural dwelling can be constructed on the site, prior to lodging a separate boundary adjustment application. This will enable Council to create a more useable parcel of land that can be disposed of by Council. The land disposal process will be consistent with Council’s Development and / or Disposal of Council Lands Policy (POL16/256).”

The same report comments that there are no significant environmental constraints to the proposal. This may be correct in terms of flora and fauna and other impacts; however, there are physical attributes to the land that make the design and siting of a dwelling house particularly challenging. The report goes on to conclude that there is a “small” building footprint on the land. This footprint relies on the acceptance or otherwise of allowing performance-based solutions to a side set back as discussed later in this report.

The issue of boundary setbacks was specifically mentioned as something for exploration in the pre-lodgement meeting held on 28 March 2018.

This application also follows an exercise to investigate a boundary adjustment however the boundary adjustment as put at the time, posed a number of issues. It was considered that a boundary adjustment could theoretically be undertaken; however, upon obtaining legal advice the extent of the adjustment that was being considered at the time was deemed to be more that a minor change amongst other things.

Site & Context

The development site (Lot 25A DP 5996):

· Has a total area of 5,969m² and is presently vacant.

· Has a large proportion, being the northern, central, and western parts, being made up of an existing Category 3 water course and surrounding riparian areas.

· Is also vegetated across the south-western front corner nearest to Bryces Road.

· Has a small area of cleared land external to the water course and vegetated areas where the building envelope is proposed.

· Does not have direct road frontage to Bryces Road (see figure 3) and a driveway and right of way access over the neighbouring property (Lot 1 DP 1237878) is required for legal and practical access.

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

The driveway / right of way access easement site (Lot 1 DP 1237878):

· Has a total area of 46.13 hectares.

· Is a large rural property predominantly occupied for primary production purposes including grazing.

· Contains an existing dwelling in the eastern rear part at a distance of 800m from the ‘development site’ and location of the proposed driveway and right of way easement.

· Has direct road frontage to Bryces Rd in the western part.

· Is zoned RU1 Primary Production under the SLEP 2014.

Figure 2 – Zoning Extract

Figure 3 – Location of Boundaries

History of the Development Application

The following provides a history of correspondence with the applicant and further information requested in relation to the Development Application following its lodgement on 3 December 2019 (note: request for information is ‘RFI’):

· 1^st RFI Request sent to the applicant on 11 December 2019 requesting:

o A revised application form to include Lot 1 DP 1237878 (known as 47 Bryces Road) as part of this application due to the proposed works affecting this land.

o Addendum to the Statement of Environmental Effects (SoEE) Report to demonstrate that any future development can comply with Chapter G12 of the SDCP 2014, particularly considering boundary setbacks.

o Provision of a Waste Management Plan.

· Applicant response to the 1^st RFI Request on 19 December 2019 providing a response to the requested information.

· 2^nd RFI Request sent to the applicant on 24 April 2020 following a response to all internal / external referrals and the notification process requesting that matters raised by the Development Engineer and Environmental Assessment Officer be addressed, including:

o Right of Way (ROW) Plan - Plan depicting the full length of the ROW access & connection to Bryces Road, sight distances, vegetation to be removed, and method for runoff disposal.

o Longitudinal Section Plan – Longitudinal sections of the driveway.

o Amended Fauna and Flora Assessment providing –

§ A full Fauna and Flora Assessment with all sections provided.

§ Map with vegetation communities overlain with the future development footprint (inclusive of the entire length of the right of way access).

· Applicant response to the 2^nd RFI Request in separate submissions on 4 and 18 June 2020, providing the requested documentation.

· Response provided to all internal referrals by 21 August 2020 recommending approval subject to conditions of consent.

Issues

Figure 3 – Building Envelope Plan

Performance–Based Solution to Side Setback for a future Dwelling

The ‘Concept Floor Plan’ at Attachment 5 demonstrates a suitably sized modest dwelling is capable of being constructed within the building envelope. However, a suitably sized dwelling such as that demonstrated is likely to lead to a future departure to the side setback requirement for a dwelling (under A18.1 of Chapter G12 – Dwelling Houses and Other Low Density Residential Development of the SDCP 2014).

Details regarding the future departure to Acceptable Solution A18.1 are provided below:

Acceptable Solution A18.1 states the following:

“Setbacks comply with Table 1, where the site is located in the following zones:

· RU1 Primary Production (between 4,000m² and 10,000m²).

- Front Setback – 20m;

- Side Setback – 7.5m; and

- Rear Setback – 7.5m”.

The concept floor plan shows that the following setbacks are capable of being achieved for a future dwelling such as that demonstrated:

· Front Setback (western towards Bryces Rd) – 60.0m approx. (complies);

· Side Setback (northern) – 112.0m approx. (complies);

· Side Setback (southern) – 4.2m setback provided (40% future departure likely); and

· Rear Setback (eastern) – 10.0m (complies).

In summary, there is an alternatively solution proposed for the side setback.

Applicant’s Submission

“A variation is sought as justified below:

· The proposed side and rear setbacks do not create overshadowing, privacy, amenity, loss of views, infrastructure or safety impacts as the nearest dwelling is some 150m away.

· The proposed building footprint responds to the site constraints in relation to flora & fauna, flooding and effluent disposal and in doing so reduces the environmental impact of the proposed dwelling.

· The location of a central watercourse and the shape and size of the allotment (relatively small in relation to other surrounding rural holdings and other RU1 zoned land) limit the opportunities to meet the setbacks in Table 2, whilst still responding to the environmental attributes of the site.

· The proposed setbacks ensure the building footprint is sympathetic to the physical constraints of the site and encourage an ecologically sustainable outcome, on a site with an existing dwelling entitlement”.

Discussion

Clause 11 – Variations (that is, acceptable solutions) to provisions in the SDCP 2014 allows flexibility in the application of such development controls to promote innovation and design excellence.

Council may consider alternative solutions to the requirements of the Development Control Plan in certain circumstances where flexibility can produce improved and innovative solutions for particular sites, taking into account the fact that there can be unique site attributes and design outcomes required to achieve development.

The acceptable solutions are provided as examples of what is considered acceptable for the respective performance criteria and objectives. Council can consider alternative solutions in certain circumstances provided the objectives and performance criteria are met.

Performance Criteria P18.1 – P18.6 which apply in this instance, state the following:

“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”.

Council concurs with the variation statement provided by the applicant and agrees that the concept floor plan for a future dwelling would be capable of providing a justifiable performance-based solution for the following reasons:

· Given the rural location of the development site, the nearest dwelling is located approximately 150m away. On this basis, a minor encroachment to the side setback requirement would not be likely to lead to a visible impact in relation to privacy, solar access or loss of views.

· Adequate levels of light and ventilation to nearby buildings, landscaping, services and infrastructure are likely to be maintained.

· The proposed dwelling is a concept layout only and does not represent the final design. The floor plan is indicative only to show that a suitably sized dwelling can be accommodated within the building envelope. An alternative design may be provided at dwelling construction stage which may provide a different layout which reduces the extent of the departure.

· The site is significantly constrained due to various matters including water courses and adjacent riparian areas traversing across the northern, western, and central parts of the site, flood prone land unavailable for construction, and vegetation cover. These matters combined are likely to prevent a dwelling from being constructed in a different location.

· Compliance is capable of being achieved with all other setbacks on the site.

· Adequate space would be available within the building envelope and driveway for the onsite parking requirement of two spaces to be achieved.

Another consideration is if this design solution (building envelope) having regard to the agricultural use of the adjoining land would pose an issue. Lot 25A is located adjacent to lot 1 in DP 1237878 – which is 46.13ha in area. The current use is described as grazing. However, there are approvals in place for tourist and visitor accommodation – that is, tourist cabins. The cabins and a significant dwelling have been constructed on the land with the Occupation Certificate issued in 2010.

Having regard to the use of the land, location of the cabins, existing (rural residential) development, the location of Lot 25A (see Figures 1 and 2), site characteristics, and proposed driveway arrangement, it appears unlikely that a significant land use conflict would result. In this regard the side setback is considered reasonable in this situation. Achieving the acceptable solution, i.e. 7.5m as opposed to the 4.2 as put forward in this proposal, is unlikely to achieve an improved or visibly better outcome or improved amenity.

With regard to any precedent, it is important to note that each application must be considered on merit with regard to the circumstances, unique attributes of the site and development at hand. Consequently, it is not considered that this proposal will result in an undesirable precedent.

In the event that this application is approved, a further development application will be required for a dwelling. However, this current application would have resolved the key issue of site suitability and capacity to ensure that a dwelling, albeit modest one, can be reasonable placed on the site which is clearly constrained.

Planning Assessment

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

Policy Implications

Assessment of Council’s Own Development Applications – POL16/226

Council’s Policy No. POL16/226 – ‘Assessment of Council’s Own Development Applications’ applies given the Development Application was lodged by Council’s Property Section.

The purpose of POL16/226 is:

“To ensure that where a Development Application (DA) is lodged and Council is both the applicant and landowner, the assessment, the consideration of submissions and the recommendations put forward for Council’s consideration of that DA,

· are free from any conflicts of interest, and

· are undertaken independently and in an unbiased manner.

· are in line with the Independent Commission Against Corruption (ICAC)’s Position Paper on “Corruption Risks in NSW Development Approval Processes” dated September 2007”.

This policy is formulated following Council’s consideration of the ICAC Position Paper recommending: “That individual local councils take steps to manage their conflicting roles in

matters where they are the regulator of land and have a financial interest in the outcome of the matter.”

The Table to ‘Part 3 – Provisions’ of Policy No. 16/226 below provides a summary of which applications may be determined under Delegated Authority, which applications may be determined as part of a Report to Council, and which applications require determination by an external independent town planning consultant:

Category of DA where Council is both Applicant and Landowner, or where Council has an interest on the land

Provision

Minor DA

· Assessment by Council staff not involved in the application.

· Determination under delegated authority.

Routine larger subdivision DA (not minor) or other form of DA that takes place within Council’s industrial estates or on Council reserves and complies with zoning, land use provisions and Council policies.

· Assessment by Council staff not involved in the application and peer reviewed by senior member of staff.

· Determination under delegated authority by senior member of staff.

· Report to council would be an option if substantial submissions received.

Major DA

· Engage external independent town planning consultant (in accordance with Council’s Purchasing Policy), to:

o assess DA in accordance with requirements of section 79C (now s4.15) of the Environmental Planning & Assessment Act 1979;

o consider any submissions received following DA notification in accordance with Council’s Community Consultation Policy for Development Applications (Including Subdivisions) and the Formulation of Development Guidelines and Policies; which may include addressing a resident briefing meeting; and

o prepare and submit to Council a report on the section 79C (now s4.15) assessment and consideration of submissions, including recommendations for the consideration of full Council.

The Development Application is considered to fall under category 2 which requires assessment by Council staff not involved in the application and peer reviewed by a senior member of staff. The assessment was carried out by a member of Council’s City Development staff not involved in the application and was reviewed by senior members of staff.

However, since three (3) submissions were received objecting to the proposal it was decided that the application should be reported to Council for determination which will ensure that the process is completely transparent.

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 9 January 2020 to 30 January 2020.

Three (3) public objections were received in relation to Council’s notification of the development.

Key issues raised as a result of the notification process and Council’s response to each issue raised are summarised in the following Table:

Potential for effluent flow into the water course

· There is a direct water course linking this property with several other properties, and concerns were raised that wastewater runoff has the potential to flow onto other properties and into their dams.

· The septic system must be placed far away from the water course and the gully which feeds into several properties.

Potential effluent flow into the water course

· A recommendation of the ‘Soil and Site Assessment for Onsite Wastewater Disposal’ requires that an upslope diversion bank be installed to prevent effluent flow to the water course.

· Council’s Environmental Health Officer reviewed the Report and supported the proposal on the proviso that the recommendations be implemented.

· A section 88B restriction would be included within any consent requiring that the recommendations of the Report be implemented as part of any future dwelling construction.

Flooding

· A natural water course has created a huge gully over the entire development site.

· Comments were made that the development site floods substantially from surrounding mountains which then passes through several properties.

Flooding

· The natural water course, whilst encompassing the majority of the development site, does not traverse the part of the development site where the building envelope is located and is completely fenced off from the area which would become the future development site.

· The site and proposal was reviewed in detail by Council’s Floodplain Engineer and it was found that the south-eastern rear corner of the site where the building envelope is proposed is located outside of the 1% AEP flood level extent.

Survey Details are Incorrect

· A comment was made that the survey details supplied with the application may be incorrect.

· A comment was made that it may not mention all the easements as per the Certificate of Title for the land, with easements missing being appurtenant to Lot 25A DP5996.

Survey details are incorrect

· The survey being referred to is a Plan which is provided within the ‘Site Assessment for Onsite Wastewater Disposal’ Report.

· It has been prepared for the purpose of documenting the location of the creek and the associated flood risks.

· The plan is not designed to be a new survey of the land nor is it designed to be lodged with Land Registry Services.

· The plan referred to in no way impacts upon easements burdening the land or those which burden neighbouring properties.

Financial Implications:

There are potential cost implications for Council in the event of a refusal of the application.

Legal Implications

Summary and Conclusion

This application has been assessed having regard for section 4.15 (Matters for consideration) of the Environmental Planning and Assessment Act 1979. The assessment revealed that the proposed development is compliant with the provisions of the SLEP 2014 and is broadly consistent with the acceptable solutions and/or performance criteria of the SDCP 2014.

The application has been subjected to a detailed analysis of the main issues identified in this report, being the performance-based solution to the side setback which would likely be required for any future dwelling. It is noted that the application is for a building envelope and right of way and not for a dwelling which would be the subject of a future application.

The application is considered capable of support as there are no substantive planning reasons to warrant refusal. Accordingly, it is recommended it is approved subject to the recommended conditions of consent as per Attachment 1.

Development & Environment Committee – Tuesday 06 October 2020

Page 0

DE20.112 Development Application - SF10754 - Albatross Rd West Nowra - Lot 353 DP 755952

DA. No: SF10754/4

HPERM Ref: D20/327601

Section: Development Services

Approver: Phil Costello, Director - City Development

Attachments: 1. Draft Determination - Refusal - Albatross Rd West Nowra - Lot 353 DP 755952 ⇩

2. Planning Report - Albatross Rd West Nowra - Lot 353 DP 755952 (under separate cover) ⇨

3. Subdivision Plan - Albatross Rd West Nowra - Lot 353 DP 755952 ⇩

4. Road & Stormwater Drainage Layout Plan - Albatross Rd West Nowra - Lot 353 DP 755952 ⇩

5. Sewer & Water Layout Plan - Albatross Rd West Nowra - Lot 353 DP 755952 ⇩

Description of Development: Five (5) Lot Torrens Title Subdivision and Site Works

Owner: J J & S G Reminis

Applicant: PDC Planners

Notification Dates: 9 October to 8 November 2019

No. of Submissions: One (1) in objection

Purpose / Reason for consideration by Council

Council Resolved on 7 April 2020 (MIN20.240) with respect to COVID- 19 Response, that:

“The delegation to the CEO be rescinded to determine a development application by refusal until the end of COVID 19 crisis.

The refusal of a development application must only be by Council/Committee resolution.”

This Report recommends refusal of the above Development Application and is therefore prepared for consideration by the Development & Environment Committee in accordance with the 7 April 2020 Resolution of Council.

Recommendation (Item to be determined under delegated authority)

That Development Application SF10754 for a five (5) lot Torrens Title subdivision and site works at Lot 353 DP 755952, Albatross Rd West Nowra be determined by way of refusal for the reasons set out in the Notice of Determination Attachment 1 of this report.

Options

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

Implications: The development is unable to proceed as applied for. The applicant can however apply for a section 8.2 review of Council’s decision and/or lodge an appeal with the NSW Land and Environment Court against Council’s decision

2. Approve the application.

Implications: Council would have to provide 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. This would require a further report to Council attaching a suite of conditions. 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.

Figure 1 – Location Map

Background

Proposed Development

In accordance with plans submitted by the applicant (refer to Attachments 3, 4, and 5), the proposal involves the creation of five (5) allotments, the construction of a new public road to provide a connection between two existing streets (i.e. Lightwood Drive and Coral Sea Drive), and the construction of infrastructure to service the proposed lots.

The following provides a description of the lots proposed to be created:

· Proposed Lot 1 – Area of 2,391.9m². Split parcel with one portion located in the southern part of the property (including the building envelope) and the other portion located in the northern part (opposite side of the unformed road reserve and including the riparian vegetation to the water course).

· Proposed Lot 2 – Area of 1,304.7m². Vacant parcel in the northern part of the property.

· Proposed Lot 3 – Area of 1,314.7m². Vacant parcel in the central part of the property.

· Proposed Lot 4 – Area of 1,738.2m². Vacant parcel in the central part of the property.

· Proposed Lot 5 – Area of 1,684.8m². Vacant parcel in the southern part of the property.

The following provides a description of the infrastructure proposed for construction:

· Proposed public road – To provide a through connection between Lightwood Drive (which terminates at the site’s northern border) and Coral Sea Drive (which terminates immediately to the south-east of the site.

· Stormwater infrastructure – A series of surface inlet pits constructed within the subdivision layout to direct runoff from lots along the proposed road, and to the proposed detention basin (maximum capacity of 30.1m³) in the north–western corner of the site.

· Sewer and water infrastructure – Extensions to the existing sewer and water mains to enable the proposed lots to be suitably serviced.

The following provides a description of the site works proposed to be undertaken:

· Vegetation Clearing – A total of nine (9) trees are proposed to be removed (seven (7) of which are located within the unformed road reserve and two (2) are located within the site). Their removal would not trigger entry into the Biodiversity Offsets Scheme (BOS) in accordance with the Biodiversity Conservation Act 2016 for the following reasons:

o Vegetation proposed for removal is not mapped on the Biodiversity Values Map and Threshold Tool.

o The area of vegetation proposed to be removed does not trigger the area threshold (being 0.25 hectares).

o Given their isolated nature and separation from other vegetation forming a continuous biodiversity habitat corridor, a section 7.3 Test of Significance is not considered to be necessary in this instance.

· Earthworks – Cut and fill is proposed within the unformed road reserve and within the building envelope for Proposed Lot 1. As per the submitted Cross Sections, the cut and fill earthworks would have the following extent:

o Extent of cut proposed – 130mm.

o Extent of fill proposed – 620mm.

Subject Land

The site comprises Lot 353 DP 7565952 (Albatross Road, West Nowra). Refer to Figure 1.

Site & Context

The development site:

· Is vacant of development apart from a small farm shelter located in the central part.

· Contains some vegetation, including an area of riparian vegetation adjoining the existing Category 2 water course in the north-western corner. The remainder is scattered with individual isolated trees which do not form part of a continuous biodiversity corridor.

· Has an area of 1.09 ha.

· Is zoned R1 General Residential.

· Is identified as being bush fire and flood prone land.

· Is mostly flat with a minor slope downwards from a high point of 34m AHD in the south-eastern corner towards a low point of 31m in the northern part.

· Is burdened by transmission lines which traverse from the northern border through to the south-western corner.

The surrounding locality is a developing area consisting of established urban residential estates, predominantly being single dwellings and dual occupancies.

Figure 2 – Zoning Extract

History

The following timeline of events has taken place following the lodgement of the Development Application with Council on 22 July 2019 (note: RFI means Request for Further Information):

· 1^st RFI Request sent to the applicant on 31 July 2019 requesting information including payment of the nominated integrated development fees, owner’s consent, and a detailed cost estimate.

· Response to the 1^st RFI Request provided in separate submissions on 20 August and 30 September 2019. It is noted that the provision of the requested cost of works estimate was not received and remains outstanding.

· Referral to internal and external agencies for comments/conditions on 2 October 2019 with a response to all referrals being received by 3 June 2020. Further information was requested by the Natural Resources/Floodplain Unit, Subdivision Engineer, and Environmental Assessment Officer.

· The application was advertised in accordance with the Community Consultation Policy to surrounding property owners and also advertised within the local newspaper for a period of one (1) month between 9 October 2019 and 8 November 2019 (given it is nominated integrated development). One (1) submission was received during this period (assessment of the issues raised is provided in the Report below).

· 2^nd RFI Request sent to the applicant on 9 January 2020 relating to items requested as part on the referral process (a request for a progress update on the status of the response was sent to the applicant on 19 February 2020).

· Response to the 2^nd RFI Request provided by the applicant in their submission on 25 March 2020. The response was partial and did not incorporate the redesign of the subdivision and road layout at Item 1 requested by the Subdivision Engineer in their referral response. In this regard, the applicant made representations that the requested change would lead to a poor design outcome.

· Correspondence was sent to the applicant on 14 May 2020 reaffirming the requirement for Item 1 of the 2^nd RFI Request to be addressed. This was made following further clarification with Council’s Development Engineering Coordinator.

· Correspondence was sent to the applicant on 22 June 2020 following up on the progress of the response to Item 1 of the Request. The applicant was also advised of Council’s resolution regarding Development Applications which have been under assessment for more than 90 days. Specifically the following comments were made: “please confirm your intentions within seven (7) days by emailing council@shoalhaven.nsw.gov.au. Should a response not be received, it is likely the DA will be reported to the Development and Environment Committee based upon information already submitted.”

· A response was not received in the period of time following Council’s correspondence and the present time advising of any status update or whether they plan to address Council’s request. Accordingly, Council has provided a recommendation based upon the information already submitted being a recommendation for refusal.

The DA is now recommended for refusal for the reasons listed in the report.

Issues

Electricity Infrastructure

Endeavour Energy (EE) provided a referral response to Council on 23 October 2019. Their concurrence was required given the site is burdened by an easement benefitting EE for 132,000 volt / 132 kilovolt (kV) high voltage overhead power lines and overhead earth cables, which traverses from the northern part to the south–western part of the site. The location of the infrastructure is depicted in the below image:

Figure 3 – Overhead Power Lines and Easement

EE advised in their referral response to Council of the minimum easement requirements for a termination pole/structure or an aerial/ground stay according to the ‘Mains Design Instruction MDI 0044 – Easements and Property Tenure Rights Section 5.3.2 Minimum easement required for network assets’. The requirement is for the easement for such infrastructure to extend at least half the easement width beyond the last network pole or stay.

In accordance with the subdivision layout shown in Attachment 3, the ground stays are presently mapped outside the easement and the proposed layout does not presently account for the abovementioned requirement for it ‘to extend at least half the easement width beyond the last network pole or stay’.

The easement width would need to extend a distance of approximately 20m further to the east of its current location. EE made representations that this would likely have a substantial impact upon the subdivision layout and associated building envelopes.

A request was made as part of Council’s correspondence on 14 May 2020 that the applicant provide a redesign of the subdivision to properly consider the easement required as it relates to the existing infrastructure, however a response to this request was not received.

Applicant’s Submission

“The road alignment generally follows the alignment of the electricity easement. Lots 1-4 will be affected only in a minor fashion by the easement, as shown on the submitted concept subdivision plan”.

Discussion

Given the subdivision layout has not been altered to consider the easements required for the ground stays, the following concerns are noted:

Clause 45: Determination of Development Applications – Other Development of the State Environmental Planning Policy (Infrastructure) 2007

Clause 45 of the policy applies to development that is:

(i) within or immediately adjacent to an easement for electricity purposes (whether or not the electricity infrastructure exists), or

(ii) immediately adjacent to an electricity substation, or

(iii) within 5m of an exposed overhead electricity power line

Council notes that the site and location of the proposed development is within and immediately adjacent to an easement for electricity purposes and is also within 5m of an exposed overhead electricity power line. Before determining an application to which this clause applies, the consent authority must—

(a) give written notice to the electricity supply authority for the area in which the development is to be carried out, inviting comments about potential safety risks, and

(b) take into consideration any response to the notice that is received within 21 days after the notice is given.

In accordance with clause 45, written notice was given to the electricity supply authority for the area (being EE) and notice was provided within the prescribed period of 21 days.

EE advised in their referral response that there are two (2) attachment points for ground stays that are located outside the easement. While this infrastructure is located outside of the easement the Electricity Supply Act 1995 identifies them as protected assets and as such the owner or occupier of the land cannot take any action to relocate or remove the infrastructure. EE have advised that the retention of suitable access to the stays and poles is critical and they “would insist on the creation of an easement for the stays” .This would result in an extension of approximately 20m to the east to accommodate the anchor lines and stays which EE advises would substantially impact the proposed subdivision and building envelopes.

EE also raised concern over the layout of the subdivision which would result in the electricity easement being located over a number of individual privately owned lots which is problematic for EE and the landowners.

Dissecting the easement along its route results in restriction of access (e.g. every lot being potentially fenced) and multiple gates would be required to ensure contiguous ready access for EE. This is particularly important where there are poles or structures and changes in direction to a line route. In the event of fallen conductors or faults, access to the poles is essential for restoring electricity supply.

Due to the above issues EE objects to the development application due to the significant impact on the easement/electricity infrastructure on the site and these matters need to be resolved prior to the current proposal being approved.

Council has considered the response from EE and agrees that as the matters raised have not been resolved the application should not be approved.

Clause 7.11: Essential Services of the Shoalhaven Local Environmental Plan (SLEP) 2014

Clause 7.11 of the SLEP 2014 states the following:

(1) Development consent must not be granted for development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required—

(a) the supply of water,

(b) the supply of electricity,

(c) the disposal and management of sewage.

EE advised that although the existing distribution substations may have some spare capacity, as the site currently has no existing low voltage electricity infrastructure an extension of the existing network would be required to supply the proposed development. The extent of works required cannot be determined until a detailed assessment is undertaken.

Given the comments made by EE, Council is unable to confirm that a suitable supply of electricity to the development would be available.

Subdivision Layout / Road Design

Council advised the applicant that the construction of a link between Lightwood Drive and Coral Sea Drive is not supported given it has the potential to create a shortcut or ‘rat run’ between the two major collector roads of Yalwal Road and Albatross Road. The location of these collector roads in relation to the site is depicted in Figure 1.

The following comments were made to the applicant as part of correspondence on 14 May 2020 which clarified and reaffirmed Council’s position that a link and through connection between these two roads is not considered to be appropriate:

“Agreed it is not ideal to terminate such a length of road with a cul-de-sac, but it is a much more preferred outcome than connecting the two major collector roads (Yalwal Road and Albatross Road). Council’s strategic traffic modelling indicates a huge increase in traffic due to future residential development which would occur in the Mundamia and Nowra Hill areas and the likely future upgrades which would be required to be undertaken to Yalwal Road and the intersection of Yalwal / Albatross Roads. Once traffic increase occurs on Yalwal Road, motorists would likely look for faster route options to avoid the intersection. Council must be mindful of this future implication with any applications being assessed and cannot support the application in its current form.

Lightwood Drive and Coral Sea Drive are an acceptable width to be used as a local street but will not support a higher classification road. There are other options available to the developer to pursue in this regard.

Rannoch Drive could be connected to Lightwood Drive to provide a secondary access for the development and this should be utilised if there are difficulties in addressing provisions under the Planning for Bushfire Protection 2006.” (see Figure 4)

Figure 4 – Potential Road Access Arrangement

Applicant’s Submission

“Creating a cul-de-sac as suggested would result in a poor urban design outcome. Short cul-de-sacs are acceptable in some instances, however, cul-de-sacs longer than 200m should be avoided. Creating a cul-de-sac as suggested by Council would in this instance be approximately 430m in length which is unacceptable.

Planning for bushfire protection indicates that for new subdivisions, all roads should be through roads, and cul-de-sacs over 200m in length should be avoided.

The NSW Government Architect has released draft urban design guidelines for regional NSW. It states that streets should be designed in a way that will improve connectivity and legibility – aim to connect through to other places rather than terminate as a cul-de-sac.

The subject land are (sic) zoned R1 and the lots proposed are large enough to accommodate multi-dwelling housing developments. Terminating the road in the manner suggested would create significant issues with the likely end use of the lots in terms of traffic generation, bin collection and on street parking within a cul-de-sac head.”

Discussion

Given the subdivision layout has not been altered to remove the road link / through connection between Lightwood Drive and Coral Sea Drive, the following issues are highlighted:

Section 4.15(1)(b): Matters for Consideration of the Environmental Planning and Assessment (EP&A) Act 1979

Section 4.15(1)(b) of the EP&A Act 1979 states the following:

(1) Matters for Consideration – General: In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality.

A large increase in traffic volume utilising a shortcut along Lightwood Drive between the two major collector roads would be likely to have an adverse social impact in the locality. Specifically, the following adverse social impacts are considered likely:

· An increase in traffic noise being experienced by residents of Lightwood Drive and Coral Sea Drive.

· Potential issues relating to traffic and pedestrian safety given the road is neither wide enough nor designed for use as a higher order road.

· General loss of amenity as a result of the above issues.

Given the above matters which have the potential to impact upon the surrounding locality, Council cannot be satisfied that the proposal would not have an adverse social impact.

Flooding

The site is not mapped within the Shoalhaven Development Control Plan (SDCP) 2014 as being subject to the 1% AEP flood level as it was not encaptured within the scope of the previous flood study covering West Nowra. However, a Flood Report prepared by Reinco Consulting and submitted as part of the application demonstrated that the site, in particular the western and northern parts including the location of the proposed road, is subject to the 1% AEP flood level.

The submitted Flood Report was reviewed by Council’s Floodplain Engineer who requested an amended Flood Report and modelling, noting the following concerns:

· Post-development modelling identifies the subdivision and access road will increase flood levels with an afflux of 200mm for the 1% AEP event. The increased 1% AEP flood level will reduce the freeboard to dwellings at 84, 86, 88 Rannoch Drive and 4 Rouken Glen Drive.

· Section 3.6 of the Report identifies the access road may be inundated by 100mm in a 1% AEP event, with localised depths up to 300mm.

· The Report identifies the pre and post-development hazard category is low. The 1% AEP event velocity appears to be above 2m/s which is a high hazard and could result in a velocity-depth product greater than 0.3m²/s.

A response was provided by Reinco Consulting dated 17 February 2020, which Council’s Floodplain Engineer found to address the requirements including that there would be no afflux to adjoining properties. However, a review of the modelling provided found that it was based upon the initial subdivision layout showing a through connection between Lightwood Drive and Coral Sea Drive and did not have regard for the amendments to the design requested by Council’s Development Engineering Coordinator.

Given the amended subdivision layout was not provided and an amended Flood Report and modelling for the amended scenario was not provided, Council’s Floodplain Engineer advised they could not quantify the impacts associated with such a development.

Discussion

Given no Flood Report or modelling has been received which quantifies flooding impacts for the amended subdivision layout requested by Council, the following is noted:

Clause 7.3: Flood Planning of the Shoalhaven Local Environmental Plan (SLEP) 2014

Clause 7.3 of the SLEP 2014 states that consent is not permitted to be granted unless the consent authority is satisfied that the proposal:

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

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

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

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

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

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

Given the amended design has not been received, Council is unable to quantify whether the following would be able to be achieved:

· That the proposed access road and/or building envelopes would be compatible with the flood hazard of the land as the location has not been finalised.

· Given the location of access routes from each property has not been finalised, safe occupation or evacuation from the lots is unable to be confirmed.

· Zero afflux for neighbouring properties for an amended layout is unable to be confirmed.

Section 5.3 – Subdivision in the Floodplain of Chapter G9 – Development on Flood Prone Land of the Shoalhaven Development Control Plan (SDCP) 2014

Acceptable Solutions A3.1 and A3.2 of Chapter G9 – Development on Flood Prone Land of the SDCP 2014 states the following:

“A3.1 The development (subdivision and future use) satisfies the requirements as shown in the planning matrix at Schedule 2.

A3.2 Flood conditions for year 2100, which includes sea level rise projection, are used.”

Given Council is not satisfied that the proposed access road and/or building envelopes would be compatible with the flood hazard of the land (as the subdivision layout was not been finalised), Council cannot confirm that the development satisfies the requirements shown in the planning matrix at Schedule 2.

Performance Criteria P3.1 to P3.3 state the following:

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

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

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

Council provides the following assessment against the performance criteria, which demonstrates that a performance–based solution is not capable of being achieved in this instance:

· A response to Council’s request for a redesign of the subdivision layout considering Council’s comments regarding road design and the vicinity to the transmission lines was not received (as discussed above). As such Council cannot determine the relevant hydraulic category for the resultant lots, location of future dwellings, or access roads.

· Given the hydraulic category for an amended subdivision layout cannot be determined, Council cannot be satisfied that the proposal is adequately designed for the relevant hydraulic category.

· Given the amended location for lots has not be clarified through an amended subdivision design, Council cannot satisfactorily determine that such lots would not have a hazard category of ‘high hazard floodway’ assigned.

· Given the location for vehicle entry and exit to the proposed lots has not been clarified through an amended subdivision design, Council cannot satisfactorily determine that the access and appropriate evacuation would be available during a 1% AEP flood event.

Section 4.15(1)(b): Matters for Consideration of the Environmental Planning and Assessment (EP&A) Act 1979

Section 4.15(1)(b) of the EP&A Act 1979 states the following:

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality.

Taking into consideration the Floodplain Engineer’s advice as described in the report above, without a Flood Report and modelling of an amended subdivision layout, Council cannot quantify that the following built environments impacts would not occur:

· Inundation of dwellings on proposed lots in a 1% AEP flood event.

· Flood free vehicular access along a proposed road.

· Afflux to adjoining properties.

In consideration of the above matters relating to the proposal, Council cannot be satisfied that the proposal would not have an adverse impact upon the built environment.

Planning Assessment

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

Consultation and Community Engagement:

Advertisement and notification were undertaken in accordance with Council’s Community Consultation Policy for a period of period of one month between 9 October to 8 November 2019, as follows:

· letters being sent to all landholders within a 60m buffer of the site;

· letters to local community consultation bodies; and

· advertisement within the South Coast Register newspaper on 9 October 2019.

One (1) public objection was received in relation to Council’s advertisement / notification of the development.

Key issues raised as a result of the consultation and community engagement process and Council’s response to the key issues raised are summarised in the following Table:

Flooding

· Concerns raised that inadequate pipes and upstream subdivisions may lead to increased flooding within the allotment.

· Particular concern raised regarding the potential for afflux to neighbouring properties within Lightwood Dr.

Flooding

· A Flood Report was submitted by the applicant which considers the impacts associated with flooding from upstream developments.

· Information provided by the applicant in relation to flooding demonstrates that there would be no afflux to neighbouring properties.

· The Flood Report and flood modelling was, however, prepared having regard to the present subdivision layout which is not supported by Council.

· Given the Flood Report and associated modelling does not address the amended layout required, Council cannot quantify the extent of flooding impacts for the amended layout.

· Accordingly Council finds that the issue of flooding has not been satisfactorily addressed.

A road connection could lead to a ‘rat run’ out of the estate

· Lightwood Dr could become a ‘rat run’ given there is presently only one road in and one road out.

· The road design may bring an increased traffic volume through Lightwood Dr which may impact upon residents.

A road connection could lead to a ‘rat run’ out of the estate

· Council agrees with the submitter’s representation that the development has the potential to become a ‘rat run’ (i.e. shortcut between the two major collector roads being Yalwal Rd and Albatross Rd).

· Extensive future residential developments within Mundamia and Nowra Hill are likely to result in an increase in vehicular traffic at the intersection of these two collector roads, which presents a risk that the proposed layout could result in a ‘rat run’ as motorists look for a quicker route.

· Neither Lightwood Dr nor Coral Sea Dr were designed to hold a greater level of traffic and were designed to hold local traffic only.

· Council finds that the design has not satisfactorily addressed the traffic impacts associated with the development.

Financial Implications:

Legal Implications

Pursuant to section 8.2 of the EP&A Act, a decision of the Council may be subject of a review by the applicant in the event of an approval 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

1.	The development application has not satisfactorily demonstrated compliance with Clause 7.3 and 7.11 of the Shoalhaven Local Environmental Plan 2014. (Section 4.15(1)(a)(i) of Environmental Planning and Assessment Act, 1979).
2.	The development application has not satisfactorily demonstrated compliance with Section 5.3 of Chapter G9 – Development on Flood Prone Land of the Shoalhaven Development Control Plan 2014. (Section 4.15(1)(a)(iii) of Environmental Planning and Assessment Act, 1979).
3.	The applicant has not satisfactorily demonstrated that the proposal would not have an adverse impact upon the built environment or that the proposal would not have an adverse social impact upon the surrounding locality. (Section 4.15(1)(b) of Environmental Planning and Assessment Act, 1979)
4.	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)
5.	Having regard to the inconsistency with the abovementioned legislation, the granting of development consent is not considered to be in the public interest. (Section 4.15(1)(e) of Environmental Planning and Assessment Act, 1979).

Development & Environment Committee – Tuesday 06 October 2020

Page 0

DE20.113 Development Application - DA16/1465 - 173 Kinghorne St and 2 & 4 Albatross Rd Nowra - Lot 1, 29 and 30 DP 25114

DA. No: DA16/1465/4

HPERM Ref: D20/348899

Section: Development Services

Approver: Phil Costello, Director - City Development

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

2. Notice of Determination (Refusal) ⇩

Description of Development: Demolition of existing structures and construction of a mixed use development consisting of 55 apartments including 16 x 3 bedroom, 31 x 2 bedroom and 8 x 1 bedroom apartments, a basement car parking area and 3 commercial tenancies at ground floor with frontage to both Kinghorne St and Albatross Road

Owner: Bill Zervos and Jasmine Anne Simpson & John Irwin Gould

Applicant: Lee Carmichael Town Planning NTA PDC Planners

Notification Dates: 14 June – 14 July 2017

No. of Submissions: Six (6) submissions in objection and Nil (0) in support.

Purpose / Reason for consideration by Council

On 1 October 2019, it was resolved by the Development and Environment Committee that Development Application (DA) ‘DA16/1465 – Residential Units and Commercial Space – 173 Kinghorne Street, Nowra be called in to Council for determination due to significant public interest.’ (DE19.107)

The DA is reported to the Development and Environment Committee for determination.

Recommendation (Item to be determined under delegated authority)

That Development Application DA16/1465 – Mixed Use development consisting of 55 residential units and commercial space on the land known as 173 Kinghorne Street and 2 & 4 Albatross Road, Nowra (Lot 1, 29 and 30 DP 25114) be determined by way of refusal for the reasons set out in the section 4.15 Assessment Report (Attachment 1) and in the Notice of Determination (Attachment 2) to this report.

Options

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

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

2. Approve the DA.

3. Alternative recommendation.

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

Location Map

Figure 1 - Extract of the subject site in the local context.

Figure 2 - Extract of the Shoalhaven Local Environmental Plan 2014 Land Use Zoning Map with the subject site with a yellow border

Background

Post-Lodgement

Key dates are as follows:

· 8 April 2016, the DA was lodged with Council.

· 9 August 2016, Council requested additional information from the applicant in relation to the design and access arrangements from Albatross Road.

· 16 December 2016, revised plans and additional information was submitted by the applicant in response to Council’s letter dated 9 August 2016. The amended plans included modifications to the southern portions of each wing of the building and deletion of two apartments (reducing the unit yield from 57 to 55 apartments). The reduction in units on the southern portion of the development was proposed to achieve a more appropriate transition to the adjoining low-density development.

· 27 February 2017, Council requested additional information from the applicant, with continued concerns raised in relation to design elements and major concerns raised in relation to the proposed access/egress onto Albatross Road.

· 7 March 2017, Council met with the applicant to discuss the Planning Proposal over the site (described below) and continued concerns with the design and location of access/egress onto Albatross Road.

· 22 March 2017, a further additional information letter was sent to the applicant to detail the outcomes of the 7 March 2017 meeting and to express continued concerns regarding the proposed access/egress onto Albatross Road.

· 10 July 2018, Council met again with the applicant to discuss design and traffic issues.

· 12 September 2018, the applicant lodged concept plans for access/egress to the development from Kinghorne Street for Council’s consideration (refer to Figure 15).

· 12 October 2018, Council provided feedback to the applicant on the concept plan, noting that the concept plan addressed the main concern that had been raised by Council being the relocation of the access from Albatross Road to Kinghorne Street frontage.

· 18 April 2019, the applicant confirmed that they would not be pursuing any change to the design of the development which would relocate the access from Albatross Road to Kinghorne Street frontage.

· 12 August 2019, the applicant submitted a further amended Traffic Report prepared by Jones Nicholson (D19/280251) to justify the retention of access on the Albatross Road frontage and to address concerns raised in relation to the designs apparent inconsistency with State Environmental Planning Policy (Infrastructure) 2007.

· 1 October 2019, the Development and Environment Committee that Development Application (DA) ‘DA16/1465 – Residential Units and Commercial Space – 173 Kinghorne Street, Nowra be called in to Council for determination due to significant public interest.’ (DE19.107).

· 26 November 2019, the applicant submitted amended plans, acoustic report, and clause 4.6 variation statement.

Site History and Previous Approvals

In April 2016, a Planning Proposal (PP) was lodged concurrently with this DA to rezone the subject site to enable development of the land as currently proposed.

The previous land zoning (B5 Business Development) only permitted residential development for the purpose of ‘shop top housing’ which would require the entire ground floor to be developed for commercial use.

The PP sought to amend the following Land Zoning and Height of Buildings maps in Shoalhaven Local Environmental Plan 2014 (SLEP 2014):

· Land Zoning – Sheet LZN_013E - amend zoning of subject land from B5 Business Development to B4 Mixed Use.

· Height of Buildings – Sheet HOB_013E - amend maximum height of building from 11m default height (no mapped) maximum building height as per clause 4.3(2A) of Shoalhaven Local Environmental Plan (LEP) 2014, to a height determined by the outcome of the character assessment (maximum of 15m).

On 12 September 2017, the Development Committee resolved (MIN 17.776) to adopt the PP as exhibited with the following addition: “to avoid uncertainty, the width of the part of the site with an 8.5m maximum building height is 9m, as measured from the southern boundaries of Lot 1 and Lot 30 DP 25114, and south-eastern and south-western boundaries of Lot 29 DP 25114.”

Under Council’s delegation, the PP was forwarded to NSW Parliamentary Counsel to draft the amendment to SLEP 2014 under Section 59(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act).

On 6 October 2017, Amendment No. 16 to SLEP 2014 was published on the NSW Legislation website and commenced, bring into effect the zoning and building height changes outlined above.

The following is a list of relevant approvals for the subject site:

· BA73/1794: Showroom additions

· BA74/0275: Storage Shed

· BA76/0601: Car yard additions

· DA01/2756: Car service centre – alterations and additions – approved – 9 October 2001

· DA02/2244: Commercial Workshop/Shed – approved – 30 August 2002

The subject site has operated in the capacity of vehicle servicing, repairs, and sales for a significant period of time.

Proposed Development

The Development Application (DA) is seeking development consent for the demolition of existing structures and construction of a mixed-use development consisting of 55 apartments, including:

· 8 x 1-bedroom apartments

· 31 x 2 bedroom

· 16 x 3 bedroom

· 3 commercial tenancies (total commercial floor area 259m² (267m² including bathroom i.e. GFA) at ground floor with frontage to both Kinghorne Street and Albatross Road.

· A basement car parking area accessed via Albatross Road with 93 car parking spaces.

· Construction of a left turn slip lane (removal of on-street parking) for access into the basement car park off Albatross Road.

· Construction of a central median and signage on Albatross Road to control the movement of traffic in and out of the proposed development (left in and left out movements only).

A site plan, ground floor, elevations, landscape plan and photomontages are provided in Figures 3 – 14.

Figure 3 - Site Plan of the proposed development.

Figure 4 - Basement floor plan of the proposed development.

Figure 5 – Elevation of the proposed development (western elevation – Albatross Road)

Figure 6 - Elevations of the proposed development (eastern elevation – Kinghorne Street).

Figure 7 - Elevation of the proposed development (southern elevation).

Figure 8 - Section plans of the proposed development.

Figure 9 - Section plans of the proposed development.

Figure 10 - Landscape plans of the proposed development.

Figure 11 - Photomontage view from the south-eastern (Kinghorne Street).

Figure 12 - Photomontage view from the north-eastern corner of Kinghorne and Kalandar Street.

Figure 13 -Photomontage of the south-western elevation of the development as viewed from Albatross Road.

Figure 14 - Extract of engineering design plan indicating the slip-lane and entry design to the development. The design includes a central median on Albatross road to limit vehicle movements to a left in and left out movement.

Subject Land

The subject site comprises 3 lots (subject site) located on the south-western corner of the intersection of Kinghorne Street, Albatross Road and Kalandar Street. The subject site is described and legally identified as follows:

· Lot 29 DP 25114 – 4 Albatross Road, Nowra

· Lot 30 DP 25114 – 2 Albatross Road, Nowra

· Lot 1 DP 25114 – 173 Kinghorne Street, Nowra

The site is an irregular shaped lot with a frontage of 74m to Albatross Road and 60m to Kinghorne Street with a 9.5m corner splay. The site falls gradually to the south-western corner of the site at Albatross Road.

The combined land area of the lots is approximately 3,497m².

Site & Context

An electrical wholesale supply business (L&H Electrical) occupies the site. The site had previously operated as a car servicing workshop that serviced and repaired motor vehicles. The site adjoins established residential uses to the south and west, a tyre service and residential uses to the north and public open space to the east.

The surrounding development can be broadly characterised as low-density residential consisting of single and two storey dwelling houses. Development immediately to the south consists of free-standing single storey dwellings and associated outbuildings.

Beyond these dwellings and on land bound by Albatross Road, Kinghorne Street and Albert Street is low density residential development – mainly of single storey construction and typically older housing stock.

To the west on the opposite side of Albatross Road is a continuation of predominately freestanding low-density dwellings with some multi dwelling housing developments.

To the east on the opposite side of Kinghorne Street, is a Council park and cemetery.

On the northern side of the intersection of Albatross Road and Kinghorne Street is an existing tyre shop. On the eastern side of Kinghorne Street at the intersection with Kalandar Street Council has recently approved 2 x 4 storey residential flat buildings, consisting of 91 apartments and basement car park (DA19/1846).

As mentioned earlier, the land was the subject of a planning proposal to zoning of subject land from B5 Business Development to B4 Mixed Use and amend maximum height of building to part 14m and 8.5m (transition to low density development to the south. The Planning Proposal was supported by a Character Assessment prepared by Urbanac dated May 2017 (D17/257485) which informed the building heights for the site.

The character assessment discussed the significance of providing transition in development scale and that a suitable building height will “ensure a smooth transition between new development and existing housing stock and maintain good amenity for the dwellings immediately adjoining the site.” (P10, of the Character Assessment by Urbanac.)

Issues

Traffic, Vehicular access and impacts on the local road network

The following roads are proximate to the subject site and will be impacted by the proposed development:

· Princes Highway – State highway.

· Albatross Road/Kalandar Street – Regional classified road

· Kinghorne Street – local road

· Berry Street – local road

The applicant proposes the following access and upgrades along the Albatross Road frontage:

· Construct an 8.15m entry/exit driveway which can accommodate the manoeuvring of a medium rigid vehicle (MRV) in and out of the proposed development.

· Construct a basement car parking area accessed via Albatross Road with 93 car parking spaces. Thirteen stacked car parking spaces have been provided in the basement car park area. The stacked parking spaces will be allocated to the 3-bedroom apartments, whereby the management of the car spaces is managed by the apartment residents themselves.

· Access to the basement car park is to be managed via security pass and intercom arrangement.

· Construction of a left turn slip lane for access into the basement car park off Albatross Road and removal of the existing car parking on Albatross Road adjacent to the north western boundary.

· The construction of a central median and signage be constructed along Albatross Road to control the movement of traffic in and out of the proposed development. the central median will force vehicles exiting from the proposed development into a left turn only movement. Similarly, the construction of a central median will force vehicles wishing to enter the proposed development into a left turn in movement only. Vehicles travelling east along Albatross Road will need to utilise the Kinghorne Street/Albatross Road roundabout to make a U-turn.

The site is capable of being serviced by an MRV. Swept path plans that have been provided to demonstrate the ability of a garbage truck to manoeuvre in the basement car park area for garbage collection.

With regard to the servicing of the commercial units, the applicant proposes to utilise the existing on-street parking on the eastern and western sides of Kinghorne Street. A loading zone can be provided on the western side of Kinghorne Street to provide direct servicing access to the commercial units. This would require the approval of the local traffic committee.

State Environmental Planning Policy (Infrastructure) 2007 (ISEPP)

The subject site has frontage to Albatross Road (MR92), being a classified regional road. Accordingly, clause 101 of ISEPP applies and reads as follows:

101 Development with frontage to classified road

(1) The objectives of this clause are—

(a) to ensure that new development does not compromise the effective and ongoing operation and function of classified roads, and

(b) to prevent or reduce the potential impact of traffic noise and vehicle emission on development adjacent to classified roads.

(2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that—

(a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of—

(i) the design of the vehicular access to the land, or

(ii) the emission of smoke or dust from the development, or

(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

The 3 preconditions in subclause 101(2) are collective. Therefore, any one of the pre-conditions in subclause 101(2) about which Council is not satisfied prevents the issue of consent:

· Subclause 101(2)(a) (‘where practicable and safe, vehicular access to the land is provided by a road other than the classified road’), is relevant because the site has frontage to Kinghorne Street (unclassified at this location) and Albatross Road (regional classified road at this location).

The applicant has submitted concept plans (D18/355817) (refer to Figure 15) to demonstrate that practicable and safe, vehicular access to the land can be provided by a road (Kinghorne Street) other than the classified road.

In order to determine whether the access to the development is “practicable”, the Court has established the test in the case of Modern Motels Pty Ltd v Fairfield City Council [2013] NSWLEC 138, Preston CJ at paragraph [42]:

The phrase “where practicable” regulates the desired outcome (“vehicular access to the land is provided by a road other than a classified road”). The consent authority is precluded from granting consent to a development on land that has frontage to a classified road unless it is satisfied that the desired outcome will be achieved, where that desired outcome is practicable. That is to say, the practicability is as to the outcome of providing vehicular access to the land by a road other than the classified road. [emphasis added]

The desired outcome is for access to the land to be via the unclassified local road – Kinghorne Street, which will ensure that the development does not compromise the effective and ongoing operation and function of the classified road (Albatross Road).

Figure 15 - applicant's submitted concept plan, demonstrating that access via Kinghorne Street is capable of being achieved.

· Subclause 101(2)(b) (“to prevent or reduce the potential impact of traffic noise and vehicle emission on development adjacent to classified roads”) is relevant in that the applicant’s submitted traffic reports do not (in the view of Council’s Traffic and Transport Unit) establish that the safety, efficiency and ongoing operation of the classified road would not be adversely affected by the development as a result of the design of the vehicular access to the land, and the nature, volume or frequency of vehicles using the classified road to gain access to the land.

It is noted that on Page 15 of the Traffic Management Report prepared by Jones Nicholson, dated 27 February 2018 (D18/89444) concerning the Albatross Road access:

“The proposed Albatross Road access is considered satisfactory in that it will not impact upon the safety, efficiency and ongoing operation of Albatross Road. Furthermore, practicable access for all traffic movements is not achievable from Kinghorne Street to the proposed development. Therefore, the proposed access from Albatross Road can be approved in meeting the requirements of SEPP Infrastructure clause 101.”

Council’s Traffic and Transport Unit has considered all the applicant’s detailed traffic reports and is not satisfied that the access onto Albatross Road demonstrates compliance with subclauses 101(2)(b)(i) and (iii) of the Infrastructure SEPP. It follows therefore that the development has not been able to meet preconditions 101(2)(a) and (b) and that Council therefore does not have the ability under the ISEPP to approve the development application in its current form.

· Subclause 101(2)(c) (“the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road”) is relevant, the noise criteria have been addressed in the submitted Acoustic Report prepared by KA Acoustics dated 6 November 2019 (D19/423688).

The recommendations of the report will ensure internal noise levels comply with those specified in Subclause 101(2)(c) are capable of being addressed by appropriate development consent conditions, if approved.

Car Parking

Car parking for the development is required to be provided in accordance with the car parking schedule in Chapter G21: Car Parking and Traffic in SDCP 2014

Parking rate (Residential):

· 1 space per small dwelling (under 55m²)

· 1.5 spaces per medium dwelling (56-85m²)

· 2 spaces per dwelling of 86m² or greater

Residential parking rate according to unit mix (55 units)

· 8 apartments <55m2 / 1 space per dwelling = 8 spaces required

· 31 apartments 55-85m2 / 1.5 space per dwelling = 46.5 spaces required

· 16 apartments >85m2 / 2 spaces per dwelling = 32 spaces required

Total number of car parking spaces required for residential units = 86.5 spaces required

Parking Rate (Commercial):

Commercial premises (including offices) within land zoned B3 Commercial Core at ground level or where access to the development is from ground level above an underground level of car parking is 1 space per 24m² gross floor area.

The commercial floor of 267m² is located at ground level with frontage to both Kinghorne Street and Albatross Road and is located above an underground level of car parking. Therefore, 267m² divided by 24m² = 11.13 spaces.

Total of Car Spaces Required: 86.5 (residential) + 11.13 (commercial) = 97.63 spaces or 98 spaces

Total of Car Spaces Proposed: 93 spaces

The development is deficient five (5) spaces or 5.1%.

The numerical deficiency in car parking is not supported by a request to vary the required car parking required to service the development.

Furthermore, the proposed slip lane to provide left turn access to the development from Albatross Road will result in the removal of all on-street car parking spaces along the development frontage to facilitate access. This will result in the removal of approximately six (6) on-street car parking spaces on Albatross Road.

Note: In accordance with section 5.14 Loss of On-Street Car Parking – Major Developments/ Redevelopments of Chapter G21 of SDCP2014, it is noted that, where

“major development/ redevelopment is proposed that has frontage to two or more streets, Council will take into account the loss of on-street car parking spaces arising from the construction of access, bus embayments and car parking restrictions, where these are directly related to the development proposal and will require these to be replaced on site.”

The development makes no provisions for the replacement of these car parking spaces on-site. Taking this into consideration the development is arguably deficient eleven (11) spaces.

The deficiency in car parking is not supported for the following reasons:

· The performance solution to Chapter G21: Car Parking and Traffic is not supported by a formal request to ‘vary’ the development control, i.e. acceptable solution, prepared in accordance with Chapter 1 of SDCP 2014;

· There are no valid reasons for reducing the number of the car parking spaces required to service the development.

· The proposal to provide access to the basement car park via an intercom to provide security to the basement car park area is unlikely to provide suitable public access to car parking for those members of the public wishing to visit the commercial uses and therefore there is likely to be a reliance on on-street car parking either to the south of the site or along Kinghorne Street. Furthermore, the location of the security gates and intercom to provide access to the basement car park is likely to result in unsafe manoeuvring of vehicles should they fail to gain access to the car park or result in queuing on Albatross Road should there be technical issues with the security gate (refer to Figure 16)

· The subject site is located 950m from the Nowra CBD and there is a likelihood that any customers visiting the site will drive to visit any of the proposed commercial tenancies or visit a resident of the building. The likely reliance on vehicles to access the development mean that providing sufficient car parking is a critical element of the development.

· There are no public parking facilities in the vicinity of the proposed development that may reduce the need for sufficient car parking to be provided in accordance with the car parking schedule.

· The availability of kerb-side parking opportunities in the vicinity of the proposed development will be reduced as a result of the proposed access arrangements on Albatross Road that will remove approximately six (6) on street car parking spaces.

· The existing and likely future traffic volumes on the surrounding road network, traffic circulation and safety are not likely to be improved through a reduction in on-site car parking.

· The anticipated impacts of not providing for adequate on-site car parking are likely to be significant and will impact on the broader locality.

· Strict compliance with the numerical standard is considered appropriate in the circumstances where the design and density of the development should respond to the constraints of the site. The car parking supply proposed to service the site points to an overdevelopment of the site, potentially an issue with density of apartments and commercial floor area that is not consistent with the characteristics of the site.

· The proposal is likely to set an undesirable precedent granted the nature of the variation.

· The site is outside of the contribution area for parking and therefore developer contributions cannot be levied for the shortfall in on-site spaces.

Figure 16 – Extract of the proposed basement plan indicating the location security door and intercom to gain access to the basement car park.

Variation to Clause 4.3 Height of Buildings

Development consent may, subject to clause 4.6, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument.

Figure 17 – Height controls applying to the site under the Shoalhaven Local Environmental Plan 2014

The application seeks a variation to Clause 4.3 in accordance with Clause 4.6 of SLEP 2014.

Clause 4.3 of SLEP 2014 stipulates the objective and development standard for the height of buildings in Shoalhaven. Relevantly Clause 4.3(2) & (2A) state as follows:

(2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.

The SLEP 2014, through Clause 4.3 sets an 8.5m (I2) height limit for part of the site and a 14m (N2) height limit for rest of the site.

The 8.5m height limit applies to a 9m portion of the south eastern portion of the site extending across all lots subject of the development application where the lot adjoins the lower density R1 General Residential land to the south.

Parts of the proposed building exceed the 8.5m (I2) and 14m (N2) height are limited to a portion of the development.

The development proposed exceeds the maximum building height as follows:

· 14m height limit by 480mm or 3.4%;

· 8.5m height limit 1.465m or 17.2%; and

· The percentage exceedance of the maximum building height ranges from 1.4% to 17.2% with the average height limit exceedance being 4.83%.

The submitted height plane diagrams prepared by Kannfinch Architects illustrate that the height limit breach and indicate the percentage breach at each point (Refer to Figure 18 and 19).

Figure 18 - Height plane instructions relating to the 14.0m (N2) maximum building height - south-eastern view from Kinghorne Street.

Figure 19 - Height Plane instructions relating to the 14.0m (N2) and 8.5m (I2) maximum building height - southwestern view from Albatross Street.

For the reasons detailed in the attached s4.15 Assessment Report (Attachment 1), it is not considered that the clause 4.6 variation request has satisfied:

1. That compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)); and

2. That there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)). The written request needs to demonstrate both matters.

In conclusion it is considered that the applicant’s request to vary the development standard as it relates to the maximum building height should not be supported for the following reasons:

· The variation request does not demonstrate that compliance with the development standard would be unreasonable and unnecessary in the circumstances of this development;

· The variation request does not demonstrate there are sufficient environmental planning grounds to justify the contravention, which results in a better planning outcome than a strictly compliant development in the circumstances of this particular case;

· Does not demonstrate the development meets the objectives of the development standard;

· The proposed development is for the preceding reasons, not considered to be in the public interest; and

· The applicant has failed to demonstrate that there will be better planning outcomes achieved through variation to the height standard as it relates to the 8.5m height of building standard associated with a 9m setback to the southern boundary, as opposed to strict compliance with the development standard or amending the application to reduce the extent of the variation.

It is noted that the principal reason for not supporting the variation request relates to the exceedance of the height plane for the portion of the building fronting Albatross Road.

The exceedance of the maximum building height as it relates to the 8.5m maximum building height is likely to result in a loss of privacy and has been demonstrated to result in a loss of solar access to the existing development (refer to the shadow diagrams prepared by Kannfinch Architects). The overshadowing of the adjoining residences (No. 6 Albatross Road and No. 175 Kinghorne Street) is exacerbated by the adoption of a 6m setback (opposed to the required 9m setback) for the portion of the building along the Albatross road frontage.

The adjoining lots can only be developed as single dwellings or dual occupancies under the existing R2 Low Density Residential zoning. The exceedance of the 8.5m maximum building height along the Albatross Road frontage will exacerbate the blank wall along the southern elevation and does not serve to create an appropriate transition as anticipated in the PP associated with the site.

The PP and review of planning controls were undertaken resulting in a specific conclusion i.e. height. The DA and design submitted concurrently to the process has however not been adjusted to achieve the height control. This is of concern as the change to the zone and strategic context has only been relatively recently ‘made’ and it is already being varied.

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

State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the proposed development which consists of a new building, of at least 3 storeys and containing at least 4 or more dwellings.

Council does not have a Design Review Panel constituted by the Minister of Planning.

In accordance with Clause 28(2) of the SEPP 65, In determining a development application for consent to carry out development to which this Policy applies, a consent authority is to take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration):

(a) the advice (if any) obtained from the design review panel, and

(b) the design quality of the development when evaluated in accordance with the design quality principles, and

(c) the Apartment Design Guide.

A SEPP 65 Design Statement has been prepared by a Registered Architect (D20/6044) addressing the requirements of SEPP 65 and was submitted with the application accordance with Clauses 50(1A) & 50(1AB) of the EP&A Regulation. The SEPP 65 Design Statement has address Schedule 1 of SEPP 65.

It is considered that the design quality of the development, when evaluated against the nine design quality principles does not satisfactorily exhibit exceptional design excellence when assessed against the following principles:

· Principle 2: Built form and scale

· Principle 3: Density

· Principle 4: Sustainability

· Principle 5: Landscape

· Principle 6: Amenity

Schedule 1 Design quality principles

Design quality principle

Comment

Principle 1: Context and neighbourhood character

Good design responds and contributes to its context. Context is the key natural and built features of an area, their relationship and the character they create when combined. It also includes social, economic, health and environmental conditions.

Responding to context involves identifying the desirable elements of an area’s existing or future character. Well designed buildings respond to and enhance the qualities and identity of the area including the adjacent sites, streetscape and neighbourhood.

Consideration of local context is important for all sites, including sites in established areas, those undergoing change or identified for change.

The surrounding development may be broadly characterised as low-density residential housing, consisting of single and two-storey dwelling houses. The development immediately to the south on Albatross Road and Kinghorne Street consists of free-standing single storey dwellings and associated outbuildings.

Beyond these dwellings and on land bound by Albatross Road, Kinghorne Street and Albert Street is low-density residential development – mainly of single-storey construction.

To the west and on the opposite side of Albatross Road is a continuation of predominately freestanding low-density dwellings with examples of established multi-dwelling housing developments.

To the east, on the opposite side of Kinghorne Street, is a Council park and cemetery.

On the northern side of the intersection of Albatross Road and Kinghorne Street on the western side of Kinghorne Street is an existing tyre shop. On the eastern side of Kinghorne Street at the intersection with Kalandar Street, Council has recently approved two - four storey residential flat buildings, consisting of 91 apartments and basement car park (DA19/1846).

It is noted that the subject site was the subject of a planning proposal to zoning of subject land from B5 Business Development to B4 Mixed Use and amend maximum height of building to part 14m and 8.5m (transition to low density development to the south. The Planning Proposal was supported by a Character Assessment prepared by Urbanac Dated May 2017 (D17/257485) which informed the building heights for the site.

While it is acknowledged that the desired future character of the locality will include higher density residential development over a small foot print commercial space at ground floor it is not considered that the current design which includes an exceedance into the 8.5m maximum building height provides an appropriate representation of that future character along the southern elevation of the Albatross Road frontage.

Despite Council’s concerns with the transition of the development to the low scale development to the south, the development is considered to satisfy this design principle.

Principle 2: Built form and scale

Good design achieves a scale, bulk and height appropriate to the existing or desired future character of the street and surrounding buildings.

Good design also achieves an appropriate built form for a site and the building’s purpose in terms of building alignments, proportions, building type, articulation and the manipulation of building elements.

Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook.

The scale and bulk of the building is generally appropriate for the locality when considering the development in the strategic context of the site and the desire for a higher density of development to occur from the site.

However, the proposed setback of the building to the adjoining lower density R2 Low Density Residential zone does not provide an appropriate transition in built form or resolve the associated amenity impacts that are associated with the reduced setback.

The southern portion of the building does not provide an appropriate transition to the low-density development to the south. While the applicant has made an attempt to reduce the bulk and scale of the development through the removal of two (2) apartments on the southern elevation, this has not overcome the need for a more suitable transition to the adjoining low density environment.

The aesthetics of the building are acceptable with appropriate colours and finishes.

The development is not considered to satisfy this design principle.

Principle 3: Density

Good design achieves a high level of amenity for residents and each apartment, resulting in a density appropriate to the site and its context.

Appropriate densities are consistent with the area’s existing or projected population. Appropriate densities can be sustained by existing or proposed infrastructure, public transport, access to jobs, community facilities and the environment.

55 units on a site area of 3,509m², has a dwelling density of approximately 1 dwelling per 64m².

SLEP 2014 does not provide a floor space ratio under Clause 4.4 of the plan.

While the density of development is consistent with that previously approved by Council in relation to the site on the north-eastern corner of Kinghorne and Kalandar Street (DA19/1846), it is not considered that the development achieves a high level of amenity for residents and each apartment. The lack of solar access and ventilation to the single bedroom apartments is of concern and is will result in reduced amenity for occupants of these units which is not consistent with this principle.

Furthermore, the design of the development does not demonstrate comprehensive compliance with the ADG as it relates to standards for:

· Solar access - 13 of 55 apartments (24%) of apartments receive no sunlight between 9am and 3pm in mid-winter),

· Apartment size and layout – the single bedroom apartment does not comply with the minimum widths (3.5m provided and 3.6m required)

· Private open space – Several ground floor units do not provide at least 15sqm (G.04, G.08 and G.09) while other apartments do not provide a minimum depth of 3m (G0.2, G.03,G.04, G.08, G.10).

· Landscaped deep soil zone for larger blocks - The total area of deep soil landscaping is 461m² (13% of the site area). The ADG recommends 15% deep soil zone for sites exceeding 1,500m².

· Setbacks to the adjoining low density development – the setback of the Albatross portion of the development adjoining the south western boundary does not appear to comply with the required 9m setback. 6m is proposed to the 3rd level, however as this is measured to a balcony it is considered that the setback must be a minimum of 9m.

· Common circulation and spaces – the maximum number of apartments off a circulation core on a single level is eight. Lobby B services 11 apartments on levels 01, 02, and 10 apartments on Level 03. It is noted that the ADG accepts that where this design criteria cannot be achieved the total units accessed off a circulation core must not exceed 12.

· Apartment mix - The mix of one-bedroom units is not considered to provide an appropriate distribution to suitable locations within the building, with all single bedroom units provided within the compromised southern side of the V-shaped design – limiting solar access, ventilation and unit design.

· Car parking - Total of car spaces required: 97.63 spaces or 98 spaces. Total of car spaces proposed: 93 spaces

These non-compliances imply an overdevelopment of the site.

It is likely however that the proposed density can be sustained having regard to existing or proposed infrastructure, public transport, access to jobs, community facilities and the environment.

The development is not considered to satisfy this design principle

Principle 4: Sustainability

Good design combines positive environmental, social and economic outcomes.

Good sustainable design includes use of natural cross ventilation and sunlight for the amenity and liveability of residents and passive thermal design for ventilation, heating and cooling reducing reliance on technology and operation costs. Other elements include recycling and reuse of materials and waste, use of sustainable materials and deep soil zones for groundwater recharge and vegetation.

37 of 55 apartments (67%) receive at least 3 hours direct sunlight between 9.00am and 3.00pm in mid-winter

13 of 55 apartments (24%) of apartments receive no sunlight between 9am and 3pm in mid-winter. The ADG design criteria specified that a maximum of 15% of apartments in a building receive no direct sunlight between 9 am and 3 pm at mid-winter. The development does not comply with the maximum number of units receiving no solar access.

The majority of the proposed apartments have been designed to achieve satisfactory natural cross ventilation. for the amenity and liveability of residents and passive thermal design for ventilation, heating and cooling reducing reliance on technology and operation costs. However, the design of the single bedroom apartments results in poor solar access and natural ventilation. There is likely to be a reliance on mechanical heating and cooling for these apartments.

The central courtyard and the principal area of communal open space will not receive adequate solar access during winter. Due to the design of the development and location of the communal open space areas on the southern side of the building, the communal open space areas will have compromised sunlight access and this does not appear to be capable of resolution without a significant redesign of the buildings and location of communal open space.

The proposed development is supported by a BASIX Certificate as required under the EP&A Regulation, however this is not reflective of current layout.

Stormwater is proposed to be reused for gardens in the communal area.

The development is not considered to satisfy this design principle as it relates to the design of single bedroom units.

The development is not considered to satisfy this design principle

Principle 5: Landscape

Good design recognises that together landscape and buildings operate as an integrated and sustainable system, resulting in attractive developments with good amenity. A positive image and contextual fit of well-designed developments is achieved by contributing to the landscape character of the streetscape and neighbourhood.

Good landscape design enhances the development’s environmental performance by retaining positive natural features which contribute to the local context, co-ordinating water and soil management, solar access, micro-climate, tree canopy, habitat values and preserving green networks.

Good landscape design optimises useability, privacy and opportunities for social interaction, equitable access, respect for neighbours’ amenity and provides for practical establishment and long term management.

The proposed landscaping meets the minimum deep soil requirements under the ADG. The total area of deep soil area is 461m² (13% of the site area). 328m² (9% of the site area) has a minimum dimension of 6m or larger. These areas have been designed to accommodate larger trees.

The site exceeds 1500m² and as such it is appropriate to require 15% of the site as deep soil landscaped area. Additional deep soil planting could be provided through the reduction of units / building footprint and providing landscaping along the Kinghorne and Albatross Road frontages.

Landscape plans have been reviewed by Council’s landscape architect and are generally satisfactory when considering the plantings and maintenance arrangements (subject to recommended conditions if approved).

There are no existing landscape features of note that would warrant retention

The development is not considered to satisfy this design principle.

Principle 6: Amenity

Good design positively influences internal and external amenity for residents and neighbours. Achieving good amenity contributes to positive living environments and resident wellbeing.

Good amenity combines appropriate room dimensions and shapes, access to sunlight, natural ventilation, outlook, visual and acoustic privacy, storage, indoor and outdoor space, efficient layouts and service areas and ease of access for all age groups and degrees of mobility.

The proposed development does not achieve compliance with the ADG as it relates to the minimum standard for solar access, apartment size and layout, deep soil landscaping for larger sites, private open space, common circulation and spaces, apartment mix, car parking as detailed in the ADG compliance table in the s4.15 Assessment Report – Appendix 1.

The development is not considered to satisfy this design principle

Principle 7: Safety

Good design optimises safety and security within the development and the public domain. It provides for quality public and private spaces that are clearly defined and fit for the intended purpose. Opportunities to maximise passive surveillance of public and communal areas promote safety.

A positive relationship between public and private spaces is achieved through clearly defined secure access points and well lit and visible areas that are easily maintained and appropriate to the location and purpose.

The design is considered to appropriately address Crime Prevention through Environmental Design (CPTED) matters and reduces areas of potential concealment/entrapment. Passive surveillance opportunities are available in the development.

There are defined secure access points and well-lit and visible areas that are easily maintained and appropriate to the location and purpose. Entry points are located adjacent to the activated retail zone and designed to minimise opportunity for loitering.

The residential lobbies and car park are proposed to operate on secured access. The car park access doors will operate individually via remote control (or similar) for residents and retail tenants, with an intercom system for visitors.

The development is considered to satisfy this design principle.

Principle 8: Housing diversity and social interaction

Good design achieves a mix of apartment sizes, providing housing choice for different demographics, living needs and household budgets.

Well designed apartment developments respond to social context by providing housing and facilities to suit the existing and future social mix.

Good design involves practical and flexible features, including different types of communal spaces for a broad range of people and providing opportunities for social interaction among residents.

The proposed development provides additional dwellings, with a range of sizes, in an area where additional housing is needed and is near a variety of services.

The development provides both communal open space and a communal room. It is noted that the resident’s room located on the south-west wing of the development has a compromised and diminutive floor area (20m²) that is not likely to be used by a broad range of people and is unlikely to provide opportunities for social interaction among residents.

The development is considered to satisfy this design principle.

Principle 9: Aesthetics

Good design achieves a built form that has good proportions and a balanced composition of elements, reflecting the internal layout and structure. Good design uses a variety of materials, colours and textures.

The visual appearance of a well-designed apartment development responds to the existing or future local context, particularly desirable elements and repetitions of the streetscape

The architectural treatment is satisfactory.

The development is considered to satisfy this design principle.

The development is considered to satisfactorily address the remaining design quality principles.

Clause 30(2) of SEPP 65 requires residential apartment development to be designed in accordance with the ADG.

The development has been assessed against the ADG and a full assessment is provided within the s.4.15 Assessment Report (Appendix 1 of this Report).

Parts 3 and 4 of the ADG provide objectives, design criteria and design guidance for the siting, design and amenity of apartment developments. In accordance with ADGs, development needs to demonstrate how it meets the objective and design criteria. The design criteria set a clear measurable benchmark for how the objective can be practically achieved. If it is not possible to satisfy the design criteria, applications must demonstrate what other design responses are used to achieve the objective and the design guidance can be used to assist in this.

The development is non-complaint with the following Objectives and Design Criteria in Part 3 and 4 of the ADG, as outlined in the table below. Appendix A to the Section 4.15 Assessment Report (Attachment 1) provides a full assessment of the proposed development against each of the objectives of the ADG.

Objective

Assessment

3E-1 Deep Soil Zones

Deep soil zones provide areas on the site that allow for and support healthy plant and tree growth. They improve residential amenity and promote management of water and air quality.

On some sites it may be possible to provide larger deep soil zones, depending on the site area and context:

• 10% of the site as deep soil on sites with an area of 650m2 - 1,500m²

• 15% of the site as deep soil on sites greater than 1,500m²

The total area of deep soil landscaping is 461m² (13% of the site area). 328m² (9% of the site area) has a minimum dimension of 6m or larger. These areas have been designed to accommodate larger trees.

The site exceeds 1500m² and therefore it is appropriate to require 15% of the site as deep soil landscaped area. Landscape plans have been reviewed by Council’s landscape architect and are satisfactory, subject to consideration of the requested changes.

3F-1 Visual Privacy

Adequate building separation distances are shared equitably between neighbouring sites, to achieve reasonable levels of external and internal visual privacy.

The adjacent sites to the south of the development site are zoned R2 Low Density Residential and currently contain single dwelling houses per lot.

The setback of the Kinghorne portion of the development to the adjoining southern property boundary requires a minimum setback of 9m. The setback of this portion of the building varies for the ground and first floor of between 8m and 9m to windows and balconies and therefore does not strictly comply with the required 9m setback.

The setback of the Albatross portion of the development adjoining the south western boundary does not appear to comply with this requirement. 6m is proposed to the 3rd level, however as this is measured to a balcony it is considered that the setback must be a minimum of 9m.

Separation between windows and balconies is provided to ensure visual privacy is achieved. Minimum required separation distances from buildings to the side and rear boundaries are as follows (for building heights up to 12m):

Habitable rooms and balconies: 6m

Non-habitable rooms: 3m

Note: Apartment buildings should have an increased separation distance of 3m (in addition to the requirements set out in design criteria 1) when adjacent to a different zone that permits lower density residential development to provide for a transition in scale and increased landscaping (figure 3F.5)

3H-1 Vehicle Access

Vehicle access points are designed and located to achieve safety, minimise conflicts between pedestrians and vehicles and create high quality streetscapes.

Vehicle access is provided at the southern end of the development along Albatross Road. The vehicular access is generally incorporated into the building’s façade. Security gates have been setback from the frontage. While Council does not raise any concern with the design or integration of the access into the building from a strictly aesthetic stand point it is noted that the car park entry and access should be located on secondary streets or lanes where available.

The basement car park and manoeuvring are to be designed to comply with the Australian Standards and Chapter G21: Car Parking and Traffic.

The proposal to access the development from the Regionally Classified Road (Albatross Road) is not supported and the applicant has been encouraged to provide access via the unclassified local road (Kinghorne Street).

Under the ISEPP, a consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that, among other things, ‘where practicable, vehicular access to the land is provided by a road other than the classified road’.

It is considered that consent must not be granted for access off Albatross Road if practicable vehicular access is available to the site from a road other than the Albatross Road (that being Kinghorne Street). The applicant has submitted concept plans (D18/355817) indicating that there was practicable vehicular access from Kinghorne Street. This approach is reflected in the Land and Environment Court judgements.

3J-1 Bicycle and Car Parking

Car parking is provided based on proximity to public transport in metropolitan Sydney and centres in regional areas.

Given the location of the development, it does not qualify for the car parking calculation listed within the ‘Guide to Traffic Generating Developments’. Accordingly, car parking is to be provided in accordance with Council’s requirements. Chapter G21 of the SDCP 2014 sets the numerical parking requirements for various developments and is calculated as follows:

· 1 space per small dwelling (under 55m²);

· 1.5 spaces per medium dwelling (56 – 85m²)

· 2 spaces per dwelling of 86m² or greater

· Commercial premises (including offices) Within land zoned B3 Commercial Core at ground level or where access to the development is from ground level above an underground level of car parking 1 space per 24m² gross floor area.

Parking Rate (Residential) According to Unit Mix (55 Units)

8 apartments <55m² / 1 space per dwelling = 8 spaces required

31 apartments 55-85m² / 1.5 space per dwelling = 46.5 spaces required

16 apartments >85m² / 2 spaces per dwelling = 32 spaces required

Total residential car parking required = 86.5 spaces required

Parking Rate (Commercial)

Commercial floor area 267m² provided at ground level above an underground level of car parking of car parking/24m²

Total commercial car parking required = 11.13 spaces required

Note: Car parking calculated as per car parking schedule under Section 5.1 of Chapter G21 - Within land zoned B3 Commercial Core at ground level or where access to the development is from ground level above an underground level of car parking 1 space per 24m²gross floor area. At 1st floor and above 1 space per 40m²gross floor area.

Total of Car Spaces Required: 97.63 spaces or 98 spaces

Total of Car Spaces Proposed: 93 spaces

Excavation of the site has been minimised in the placement of the car park access at the lowest point in the site.

The car parking area has been designed to suit the site which is triangular. However, a logical layout is generally achieved.

The car park protrudes above ground level greater than 1m however this is solely along the Albatross Road frontage and extends for less than 50% of the frontage. To minimise the visual impact appropriate colours are to be utilised and varied materials for balustrades located above the car parking area.

Mixture of natural ventilation and a mechanical exhaust are to be utilised.

3J-2 Bicycle and Car Parking

Parking and facilities are provided for other modes of transport.

Each resident has access to a secure storage cage which is large enough to accommodate a bicycle. Residential visitor and customer bicycle spaces are proposed in the form of post mounted bike rails within the road reserve, should Council require them.

4A-1 Solar and Daylight Access

To optimise the number of apartments receiving sunlight to habitable rooms, primary windows and private open space.

37 of 55 apartments (67%) receive at least 3 hours direct sunlight between 9.00am and 3.00pm in mid-winter

13 of 55 apartments (24%) of apartments receive no sunlight between 9am and 3pm in mid-winter.

While the applicant has argued that the non-compliance with the Design Criteria is “due to limitations imposed by the site configuration, southern slope and orientation” it is noted that there are limited site constraints and there is opportunity to reduce the number of internal facing apartments and the design of dual aspect apartments overlooking the internal communal open space area and either Albatross or Kinghorne Street.

Of concern is that there are only two single bedroom apartments located on the third level that achieve the minimum daylight access with no lower level single bedroom apartments receiving any solar access.

The minor non-compliance with the requirement that no less than 70% of apartments in a building receive a minimum of 3 hours direct sunlight could be readily accepted were the design to exceed the 15% of apartments in a building receiving no direct sunlight between 9 am and 3 pm at mid-winter.

The substantial non-compliance with the maximum number of apartments receiving no direct sunlight between 9 am and 3 pm at mid-winter is a significant concern and will significantly increase the reliance on artificial lighting and heating, reduce energy efficiency and residential amenity.

The design attempts to maximise the number of north facing apartments and limit the number of single aspects south facing apartments, however, it is noted that the internal facing single aspect apartments provided limited or no solar access. It is considered further consideration of the design to further limit single aspect southerly facing apartments would provide increased solar access and amenity to future residents.

It is noted that, where possible, the building design maximises the number of living areas with a northerly aspect ensuring a high level of amenity is achieved. Services areas are generally provided to the rear or in central locations minimising their impact on the most desirable areas of the apartments.

1. Living rooms and private open spaces of at least 70% of apartments in a building receive a minimum of 2 hours direct sunlight between 9 am and 3 pm at mid-winter in the Sydney Metropolitan Area and in the Newcastle and Wollongong local government areas.

2. In all other areas, living rooms and private open spaces of at least 70% of apartments in a building receive a minimum of 3 hours direct sunlight

3. between 9 am and 3 pm at mid-winter. A maximum of 15% of apartments in a building receive no direct sunlight between 9 am and 3 pm at mid-winter.

No.

4D-3 Apartment Size and Layout

Apartment layouts are designed to accommodate a variety of household activities and needs.

The open plan designs allow for a range of activities to happen in the kitchen and living spaces.

1-bedroom apartment widths are 3.5m - this is marginally under 3.6m. The non-compliance is marginal and does not impede the usable area of the living rooms and would not likely have a significant detrimental impact on the amenity of the dwelling or resident use of the units impacted. However, it is noted that the design of the single bedroom units is once again impacted by the proposed design.

1. Master bedrooms have a minimum area of 10m2 and other bedrooms 9m (excluding wardrobe space)

1. Bedrooms have a minimum dimension of 3m (excluding wardrobe space)/.

2. Living rooms or combined living/dining rooms have a minimum width of:

• 3.6m for studio and 1-bedroom apartments

• 4m for 2- and 3-bedroom apartments

3. The width of cross-over or cross-through apartments are at least 4m internally to avoid deep narrow apartment layouts

4E-1 Private Open Space and Balconies

Apartments provide appropriately sized private open space and balconies to enhance residential amenity.

1. All apartments are required to have primary balconies as follows:

Studio: 4m²

1 Bedroom: 8m², 2m minimum depth

2 Bedroom: 10m², 2m minimum depth

3 Bedroom: 12m², 2.4m minimum depth

The minimum balcony depth to be counted as contributing to the balcony area is 1m

2. For apartments at ground level or on a podium or similar structure, a private open space is provided instead of a balcony. It must have a minimum area

of 15m² and a minimum depth of 3m.

All balconies exceed the minimum area for the respective unit types. All balconies have a minimum depth of 2m.

A number of the ground floor units do not provide at least 15sqm (G.04, G.08 and G.09) while other apartments do not provide a minimum depth of 3m (G0.2, G.03,G.04, G.08, G.10).

4F-1 Common Circulation and Spaces

Common circulation spaces achieve good amenity and properly service the number of apartments.

1. The maximum number of apartments off a circulation core on a single level is eight

Common spaces are provided with solar access, natural ventilation and allow for universal access.

Lobby B services 11 apartments on levels 01, 02, and 10 apartments on Level 03. The corridors have been designed with light slots to capture natural light and ventilation to maintain amenity.

* Note: Where design criteria 1 is not achieved, no more than 12 apartments should be provided off a circulation core on a single level

2. For buildings of 10 storeys and over, the maximum number of apartments sharing a single lift is 40

4K-2 Apartment Mix

The apartment mix is distributed to suitable locations within the building.

The mix of one-bedroom units is not considered to provide an appropriate distribution to suitable locations within the building.

The single bedroom units are limited to the southern elevation of the V-shaped building design which has resulted in units with severely compromised solar access, ventilation and private open space that will likely result in units with diminished amenity. The irregular floor plans will also result in odd-shaped rooms and the potential loss of the use of usable space within these units.

It is considered that the single bedroom units should be spread more evenly throughout the development to enable these units a greater likelihood for increased amenity

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP (BASIX))

The provisions of SEPP (BASIX) apply to the site. In accordance with the requirements of SEPP BASIX, Certification for each dwelling has been submitted with the development application.

Clause 55A of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation) allows for a development application to be amended provided a new BASIX certificate is submitted to account for those amendments. An amended BASIX Certificate, to reflect amended plans was not submitted with the amended application.

Council cannot issue development consent without the provision of a new BASIX Certificate that reflects the amended application i.e. 55 residential units.

Planning Assessment

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

Policy Implications

A key policy consideration is height.

Currently, there is an 8.5m and 14m height limit which applies to the site under SLEP 2014.

The development proposed exceeds the maximum building height as follows:

· 14m height limit by 480mm or 3.4%;

· 8.5m height limit 1.465m or 17.2%; and

· The percentage exceedance of the maximum building height ranges from 1.4% to 17.2% with the average height limit exceedance being 4.83%.

The variation has been addressed by the applicant via a formal clause 4.6 variation statement. The matter is discussed in the attached section 4.15 report in further detail (Attachment 1) and has been considered previously in this Report.

Consultation and Community Engagement:

Six (6) public submissions were received in relation to Council’s notification of the development. Six (6) were objections to the development. Nil (0) were in support of the development. The notification was made in accordance with Council’s Community Consultation Policy with letters being sent within a m buffer of the site. The application was notified for a period of 30 days and advertised in the local papers in accordance with Council’s Community Consultation Policy

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

· Traffic impacts on local road network

· Impact of additional cars parking on the on-street car parking

· Amenity impacts associated with overlooking and overshadowing

· Insufficient justification and planning purpose to support the PP.

· The bulk and scale of the development is not consistent with the low scale development to the south of the site and the site would be better developed for multi-dwelling housing.

· The proposed setbacks of the development to the southern boundary are not appropriate

· The pedestrian access point to the development on the Kinghorne Street frontage will result in safety and security issues

The planning concerns raised by the submitters are addressed in the attached section 4.15 report in further detail (Attachment 1).

Financial Implications:

Legal Implications

Pursuant to section 8.2 of the EP&A Act, a decision of the Council may be subject of a review by the applicant in the event of approval or refusal. If such a review is ultimately pursued (if the recommendation is not adopted), the matter would be put to Council for consideration.

Alternatively, an applicant may also appeal to the Court against the determination pursuant to section 8.7 of the EP&A Act.

Summary and Conclusion

This application has been assessed having regard for section 4.15 (Evaluation) under the EP&A Act. Based upon the s4.15 Assessment Report (Attachment 1) it is recommended that Development Application No. DA16/1465 be refused for the following reasons.

1. Non-compliance with SEPP 65 in relation to the Apartment Design Guide (s4.15(1)(a)(i) of the EPA Act);

The development fails to satisfy clause 30(2)(a) and (b) of SEPP 65, in that the development does not demonstrate that adequate regard has been given to:

(a) the design quality principles (Principle 2: Built form and scale; Principle 3: Density; Principle 4: Sustainability; Principle 5: Landscape; Principle 6: Amenity), and

(b) the objectives specified in the Apartment Design Guide for the relevant design criteria (3E-1 Deep Soil Zones, 3F-1 Visual Privacy, 3H-1 Vehicle Access, 3J-1 Bicycle and Car Parking, 3J-2 Bicycle and Car Parking, 4A-1 Solar and Daylight Access, 4D-3 Apartment Size and Layout, 4E-1 Private Open Space and Balconies, 4F-1 Common Circulation and Spaces, 4K-2 Apartment Mix).

2. The proposal exceeds the maximum building height development standard under clause 4.3 of SLEP 2014. The applicant’s written request to vary the maximum building height development standard has not adequately addressed matters required to be demonstrated by clause 4.6(3)(a) and (b) of SLEP 2014. The clause 4.6 Variation Request does not provide sufficient environmental planning grounds to support the variation, nor that compliance is unnecessary or unreasonable. (s4.15(1)(a)(i) of the EPA Act).

3. The development has failed to satisfy Council of preconditions clause 101(2)(a) and (b) of the ISEPP (s4.15(1)(a)(i) of the EPA Act).

In accordance with clause 101(2)(a) and (b) of the ISEPP, Council must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that:

(a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of:

(i) the design of the vehicular access to the land, or

(ii) the emission of smoke or dust from the development, or

(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land

4. Clause 55A of the Environmental Planning and Assessment Regulation 2000 allows for a development application to be amended provided a new BASIX certificate is submitted to account for those amendments. An amended BASIX Certificate, to reflect amended plans was not submitted with the amended application.

5. The proposed development is inconsistent with the Objectives, Performance Criteria and Acceptable Solutions as they relate to the following provisions of Chapter G21: Car Parking and Traffic Shoalhaven Development Control Plan 2014 (SDCP 2014) (s4.15(1)(a)(iii) of the EPA Act):

(a) 5.1 Car Parking Schedule.

(b) 5.2 Traffic.

(d) 5.14 Loss of On-Street Car Parking – Major Developments/ Redevelopments.

6. The development is likely to have adverse impacts on the built environment (s4.15(1)(b) of the EPA Act).

7. The site is not suitable for the development as proposed (s4.15(1)(c) of the EPA Act).

8. The development is not in the public interest (s4.15(1)(e) of the EPA Act).

Development & Environment Committee – Tuesday 06 October 2020

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DE20.114 Development Application - DA20/1379 - 18 Jellicoe St South Nowra - Lot 1 & DP 1198637

DA. No: DA20/1379/4

HPERM Ref: D20/365510

Section: Development Services

Approver: Phil Costello, Director - City Development

Description of Development: Modification to existing approved crushing and screening operations associated with existing approved bulk materials storage depot and construction of an industrial shed.

Owner: J A Norman & M Norman

Applicant: Cowman Stoddart Pty Ltd

Notification Dates: 3 June 2020 to 3 July 2020

No. of Submissions: Nil

Purpose / Reason for consideration by Council

Council is in receipt of an application to construct a new industrial building which exceeds the 11 metre height limit set by clause 4.3 of Shoalhaven Local Environmental Plan 2014 (SLEP-2014). The single storey structure has a maximum height of 14.5 metres (31.8%).

Where a variation to the development standard is greater than 10%, the variation must be determined by the elected Council.

Council is able to assume the concurrence of the Secretary of the Department of Planning and Environment for clause 4.6 to vary a development standard.

Recommendation (Item to be determined under delegated authority)

That the Council:

1. Confirm that it supports, pursuant to clause 4.6 (exceptions to development standards) of the SLEP 2014, the request to vary clause 4.3 building height limit of 11m to a maximum of 14.5m.

2. Refer the application DA20/1379 back to staff for determination.

Options

1. Resolve to support the requested building height variation.

Implications: The development can proceed as proposed, subject to meeting other considerations under section 4.15 of the Environmental Planning and Assessment Act 1979 and subject to such conditions as may be imposed arising from those considerations.

2. Resolve not to support the building height variation.

Implications: This would result in the applicant needing to reconsider the design of the proposal. Should the applicant not reconsider the design to demonstrate compliance with clause 4.3, the application would likely be determined by way of refusal. The applicant would be entitled to appeal against Council’s refusal in the 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

Figure 2: Zoning map

Background

Proposed Development

The proposal is for alterations and additions to the existing crushing and screening operations. These operations were approved under DA08/1538 on 16 June 2008 and are associated with existing approved bulk materials storage depot approved under DA01/1548 on 6 June 2001.

The development consent DA01/1548 enabled the stockpiling of a maximum of 30,000m³ of materials on site per annum.

The proposal involves the following:

· Increasing the amount of material that can be crushed and screened at the site from the present 10,000 tonnes to a maximum of 30,000 tonnes.

· To remove the need for crushing operations to be limited to 4 campaigns per year, to enable crushing / screening operations to occur throughout the year.

· Construction of an industrial shed at the rear (southern) boundary of the site, within which crushing operations will take place, and where processed and unprocessed materials will be stockpiled. The shed will be used to store plant, equipment and machinery associated with the crushing and screening operations. The industrial shed will have a maximum height of 14.5m.

The proposal does not seek to increase the overall amount of material that can be transported to or stockpiled on the site per annum; nor do they seek to modify the type of material that is able to be processed by the crushing and screening operations. A maximum of 30,000m³ of material will be stockpiled on the site per annum. Crushing and screening operations are limited to concrete and brick demolition materials. The development application also does not seek to increase or change the number of vehicles travelling to the site to deliver or received material to and from the site and no changes to the type of plant and equipment used on the site.

As mentioned above, the proposed industrial shed will have a maximum height of 14.5m which exceeds the 11m height limit set by clause 4.3 of SLEP 2014. A clause 4.6 variation statement has been submitted with the application (D20/151372).

Figure 3: Site plan showing the existing industrial buildings on site that are proposed to be retained, processing area and the proposed shed

Figure 4: Floor plan of the proposed industrial shed

Figure 5: Elevations and section of the proposed shed which exceeds 11m height limit

Subject Land

The site:

· Is zoned IN1 – General Industrial under the SLEP 2014 and has an area of 2.46ha.

· Is located within an established industrial area in South Nowra.

· Is accessed from Jellicoe Street which connects to Bellevue Street, Flinders Street and Princes Highway.

· Adjoins an unformed portion of Jellicoe Street to the north, undeveloped land to the north and a mix of developed and undeveloped industrial lands to the east, west and south.

· Contains existing industrial buildings, office, weighbridge, and existing undertaking (bulk materials storage depot) approved under DA01/1548. The site is currently surfaced with an all-weather aggregate material. Land to the west, at No. 14 Jellicoe Street which is part of the subject site (under the same ownership) was approved for a landscape material supplies business under DA18/2329.

· Is identified as containing class 5 acid sulfate soils.

· Is identified as partially bushfire prone land by mapping prepared by Shoalhaven Council and endorsed by the NSW Rural Fire Service and is also flood prone land.

· Is not as Potentially Contaminated Land (PCL).

Figure 6: Expanded aerial view of the subject site and surrounding developments

Site & Context

The site is situated within an industrial zoned area, with industrial developments located within the immediate vicinity of the site. A drainage canal and industrial development are located to the east. Undeveloped industrial zoned lands are located to the south. An approved Landscape Supplies Yard is located on the adjoining property to the west (No. 14 Jellicoe St) which is part of the subject site (under the same ownership).

The subject site has been used as a bulk material storage yard since 2001. The site is devoid of native vegetation and contains an office, weighbridge, and water quality pond. The site is covered with road base and contains stockpiles of various grades of rock aggregate and similar types of materials consistent with the approvals issued in 2001 and 2008

History

The lot was created by subdivision in 1941. The land was further subdivided by a subdivision application SF8792 approved on 8 March 2000 and further amendment was approved and registered with the NSW Land Registry Services in 2014. There are no restrictions or easements relating to the subject lot which would preclude the proposed development.

As mentioned previously:

· On 6 June 2001, Council granted Development Consent No. DA01/1548 for the establishment of bulk materials depot on site. This consent enabled the stockpiling of bulk materials. In accordance with condition No. 2, a maximum of 30,000m³ of material is permitted to be stockpiled on the site per annum.

· On 2 May 2007, Council granted development consent No. DA07/1053 for the installation of a weighbridge and an office on site associated with the existing bulk material depot.

· On 16 June 2008, Council granted development consent No. DA08/1538 for the operation of crushing and screening plant up to 4 times per year for a maximum duration of 5 days each time, with a maximum of 10,000 tonnes of material to be crushed / screened in any one year.

Issues

Variation to the maximum building height development standard under clause 4.3 of SLEP 214 in accordance with clause 4.6 of SLEP 2014.

Development Standard to be Varied

Clause 4.3 stipulates the objective and development standard for the height of buildings. Clause 4.3(2) & (2A) state as follows:

(2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.

(2A) If the Height of Buildings Map does not show a maximum height for any land, the height of a building on the land is not to exceed 11 metres.

The Height of Building Map does not show a maximum height for the land and therefore the maximum building height defaults to 11 metres in accordance with subclause (2A) of the SLEP 2014.

Extent of the Variation

The maximum height of the industrial shed is 14.5m, which is a variation of 3.5m or 31.8% from the 11m height limit. The building is approximately 99.7m long x 60m wide. Refer to Figures 4 & 5.

The applicant has submitted a variation report to justify the contravention of the development standard pursuant to the requirements of clause 4.6 of SLEP 2014.

Discussion

Council is required to consider subclauses (3), (4) and (5) of clause 4.6.

Clauses 4.6(3) - (5) are reproduced below:

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

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

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

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

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

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

(b) the concurrence of the Secretary has been obtained.

(5) In deciding whether to grant concurrence, the Secretary must consider:

(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b) the public benefit of maintaining the development standard, and

(c) any other matters required to be taken into consideration by the Secretary before granting concurrence.

Council must be satisfied that clause 4.6(4)(a)(i) and (ii) have been satisfied prior to the grant of development consent.

The first step in satisfying clause 4.6(4)(a)(i) is to consider whether the applicant’s written request seeking to justify the contravention of the development standard has adequately addressed the matters required to be demonstrated by clause 4.6(3). Subclause (3) requires the following two matters to be addressed:

1. That compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (clause 4.6(3)(a)); and

2. That there are sufficient environmental planning grounds to justify contravening the development standard (clause 4.6(3)(b)). The written request needs to demonstrate both matters.

Clause 4.6(3)(a) – Compliance with the Development Standard is Unreasonable or Unnecessary in the Circumstances of the Case

To assess whether compliance with a development standard is unreasonable or unnecessary the Courts have provided guidance in the required assessment, with particular reference to the accepted "5-Part Test" for the assessment established by the NSW Land and Environment Court (NSWLEC) in Wehbe V Pittwater Council (2007) NSWLEC 827. The “5-Part Test” is outlined as follows:

1. The objectives of the development standard are achieved notwithstanding noncompliance with the standard.

2. The underlying objective or purpose of the standard is not relevant to the development and therefore compliance is unnecessary.

3. The underlying objective or purpose would be defeated or thwarted if compliance was required and therefore compliance is unreasonable.

4. The development standard has been virtually abandoned or destroyed by the Council’s own actions in granting development consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable.

5. The zoning of the particular land is unreasonable or inappropriate so that a development standard appropriate for that zoning is also unreasonable and unnecessary as it applied to the land and compliance with the standard would be unreasonable or unnecessary.

The 5-part test above has been considered by the applicant and is considered satisfied by Council staff. Further discussion is below.

Consideration of the written request relating to Clause 4.6(3)(a)

Council must form the positive opinion of satisfaction that the applicant’s written request has adequately addressed those matters required to be demonstrated by clause 4.6(3)(a).

The applicant has provided an assessment of the proposed development and has relied upon test 1 of the “5-part test”, principally, that the development standard is unreasonable or unnecessary in the circumstances of the case.

The justification that the application meets the objectives of the development standard has been provided on pages 21 and 22 of the variation statement (D20/151372) and includes the following justifications:

· “The proposed works will not be dissimilar to existing and approved structures within the surrounding industrial area. The building forms, heights, shapes and characteristics are also similar to those that presently exist or that are approved in the locality, and will conform to the visual character of the site, ie. it is industrial development within an industrial setting. In this regard the recently approved Bunnings Warehouse redevelopment (DA18/1598) will comprise a height above ground level of 13.889m, and will have a footprint substantially larger than the proposed shed structure. The design is also a less invasive response to the sloping topography of the site, avoiding the need for excessive cut and fill. The restriction in earthworks result in a well-defined gully and doesn’t diminish the overall landscape character, noting the cut would be used to form road grades and level car parking areas on site.

· The subject site is zoned IN1 General Industrial and the proposed development meets the current and desired future character of the locality in which it is sited.

· The proposed development will have a limited visual impact. The bulk and scale of the structure associated with this application will not be dissimilar to that of other industrial type development within the broader locality. The works will be sited in the midst of other factory developments and will be set back 86.5 metres from the Jellicoe Street road frontage, behind existing structures and buildings. As such the proposed building will not be visually prominent within the broader landscape will not diminish the views of existing development.

· Given the siting of the proposed shed to the rear of the site, the proposed building will also not disrupt views from within the locality.

· The development will not lead to excessive overshadowing or loss of privacy to existing development. The site is situated within the middle of an existing industrial area and no residential properties are located on adjoining sites.

· The proposed development site is not subject to a heritage listing under the provisions of SLEP 2014 nor is it sited within the in the vicinity of a heritage item or within a heritage conservation area.

It is our view that the proposed building associated with this proposal will not be inconsistent with the prevailing character of this locality; or the envisaged character of the area given the planning provisions applying to the land.

Importantly the height of the proposed shed will enable plant, equipment and machinery associated with the crushing and screening operations to be housed and operated from within the shed. This will ensure that the environmental impacts associated with the crushing and screening impacts on the surrounding locality in terms of air quality and noise are minimised.”

The proposed shed will enable plant, equipment and machinery associated with the crushing and screening operations to be housed and operated from within the shed. The industrial shed is considered compatible with the bulk and scale of the character of the locality and has an acceptable visual impact having regard to the location and surrounding industrial area and character of locality, therefore satisfying the relevant aims of the clause in the context of the site location.

The height exceedance creates no impacts on any buildings on surrounding properties such as view loss, considering its setting in an industrial context. The building will not be prominent from any other external location impacting on significant views or landscapes. The shed will be setback 86.5m from the Jellicoe St frontage, located behind existing structures and buildings on site. The height exceedance has no impact on solar access to existing development or raises any amenity concerns.

Through the flexibility afforded by clause 4.6 of SLEP 2014, compliance with the 11 metre height limit is unnecessary given the proposed use of the structure, location, suitable design approach, and that it will also minimise environmental impacts associated with the crushing and screening operations in terms of air quality and noise within the industrial setting.

The objectives of Clause 4.3 – Height of Buildings of the SLEP 2014 are:

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

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

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

It is considered that the applicant has satisfactorily demonstrated that compliance with clause 4.3 is unreasonable or unnecessary in the circumstances of the case for the following reasons:

The objectives of clause 4.3 are achieved notwithstanding non-compliance with the standard as follows:

· The proposal is considered compatible with the surrounding development and desired future character of a locality. The proposed development is of an overall height, scale, bulk, design and external appearance that is in keeping with the existing development on the site, as well as nearby industrial land uses in the same industrial estate. The proposal will encourage additional employment opportunities, facilitates the continued utilisation of industrial land for industrial purposes and has the potential to provide for an industrial activity that does not significantly conflict with the operation of existing or proposed development.

· The additional height above the 11m maximum building height will not result in unreasonable overshadowing, overlooking or amenity impacts in excess of that pre-existing at the site. The proposed shed will enable plant, equipment and machinery associated with the crushing and screening operations to be housed and operated from within the shed. This will have a twofold benefit of reducing noise and dust emissions from the crushing operation by virtue of the operation being located within the shed.

· The subject site is no listed as a heritage item, nor is it located within the close vicinity of a heritage item or within a heritage conservation area.

Clause 4.6(3)(b) – Are there Sufficient Environmental Planning Grounds to Justify Contravening the Development Standard?

Council must form the positive opinion that the applicant’s written request has adequately addressed those matters required to be demonstrated by Clause 4.6(3)(b).

The environmental planning grounds relied on in the written request under Clause 4.6 must be “sufficient” (Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118. In the judgment, Preston CJ outlined the two methods for demonstrating that a Clause 4.6 is “sufficient” as follows:

First, the environmental planning grounds advanced in the written request must be sufficient “to justify contravening the development standard”. The focus of cl 4.6(3)(b) is on the aspect or element of the development that contravenes the development standard, not on the development as a whole, and why that contravention is justified on environmental planning grounds. The environmental planning grounds advanced in the written request must justify the contravention of the development standard, not simply promote the benefits of carrying out the development as a whole. Second, the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard so as to enable the consent authority to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31].

The applicant has provided an additional statement in the variation report to justify that there are sufficient environmental planning grounds to justify contravening the development standard.

Section 1.3 of the EP&A Act contains the following objects relevant to the aspect of the proposed development that contravenes clause 4.6:

“(c) to promote the orderly and economic use and development of land,

(e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats,

(f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage),

(g) to promote good design and amenity of the built environment,”

The aspect of the development that contravenes clause 4.6 of SLEP 2014 relates to height (clause 4.3 in SLEP 2014 sets an 11m maximum height). In this case the contravention is acceptable because:

· No issues of loss of amenity, views, solar access, or adverse impact on heritage significance in the locality have been raised in assessment.

· The proposed height of the proposed building will enable plant and equipment associated with the existing approved crushing and screening operations to be located within the building. The proposed shed will be constructed of masonry walls and a corrugated sheet steel roof with the northern façade open. Therefore, air quality and noise impacts on the surrounding locality will be minimised.

· Strict compliance with the 11m height requirement is not expected to result in a satisfactory or improved design outcome for the intended use of the building.

· The proposal is consistent with the existing development on site.

There are sufficient environmental planning grounds to justify contravening the development standard because:

· The application has demonstrated that the proposal and the height contravention remain consistent with the objectives (where relevant) of the subject IN1 zone, specifically the height contravention does not create conflict between land uses within this zone and land uses within adjoining zones, despite the numerical non-compliance.

· The proposed height contravention does not compromise the local land use planning framework that applies to the site.

· The height contravention does not result in any unreasonable visual impacts, in the industrial setting.

· The height contravention does not result in any unreasonable overshadowing impacts, largely due to its context in the industrial setting.

· The height contravention assists with achieving an appropriately functional building for the intended use. Critically, the proposed height of the proposed shed will enable plant, equipment and machinery associated with the crushing and screening operations to be housed and operated from within the shed. The proposed development will allow greater operational flexibility because some activities can be transferred indoors thus be protected from inclement weather.

Consideration of the written request relating to Clause 4.6(3)(b)

The applicant’s written request adequately addresses those matters required to be demonstrated by clause 4.6(3)(b). The applicant’s written request demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard for the following reasons:

Council can be satisfied that the written request has adequately addressed those matters required to be demonstrated by clause 4.6(3)(b). The requirement to demonstrate that there are sufficient environmental planning grounds to justify contravention has been met.

Clause 4.6(4)(a)(ii) – Will the Proposed Development be in the Public Interest Because it is Consistent with the Objectives of the Particular Standard and Objectives for Development within the Zone in Which the Development is Proposed to be Carried Out?

Clause 4.6(4)(a)(ii) states that development consent must not be granted for development that contravenes a development standard unless the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

Pursuant to the provisions of the SLEP 2014, the land where the industrial shed is located is IN1 zoned land. The objectives of this zone are as follows:

• To provide a wide range of industrial and warehouse land uses.

• To encourage employment opportunities.

• To minimise any adverse effect of industry on other land uses.

• To support and protect industrial land for industrial uses.

• To allow a diversity of activities that do not significantly conflict with the operation of existing or proposed development.

• To enable other land uses that provide facilities or services to meet the day to day needs of workers in the area.

The proposed shed / development will not result in an inconsistency with the zone objectives.

Consideration of the written request relating to clause 4.6(4)(a)

The applicant’s written submission is supported for the following reasons:

· Is consistent with the objectives of the development standard and the objectives of the zone.

· Provides for a wide range of industrial land uses and encourage employment opportunities.

· Provides opportunities for the use of the building for other uses in the future should the current use no longer continue at the site.

· Not unreasonable considering the industrial context and setting, and respectful positioning of the building in the context of the existing built.

Clause 4.6 (4)(b) – Concurrence of the Secretary has been obtained

Council may assume concurrence in this instance.

Clause 4.6(5)(a) – Would Non-Compliance Raise any Matter of Significance for State or Regional Planning?

The non-compliance with the maximum building height development standard will not raise any matter of significance for State or regional environmental planning.

Clause 4.6(5)(b) – Is There a Public Benefit of Maintaining the Planning Control Standard?

In the judgement of Ex Gratia P/L v Dungog Council [2015] (NSWLEC 148), Commissioner Brown of the NSW LEC outlined that the question that needs to be answered in relation to the application of Clause 4.6(5)(b) is “whether the public advantages of the proposed development outweigh the public disadvantages of the proposed development”.

The applicant has demonstrated that a better planning outcome and public advantage will be achieved through the variation to the height standard as opposed to strict compliance. The proposed works will not be dissimilar to existing structures within the surrounding industrial area. The building forms, heights, shapes and characteristics are also similar to those that presently occur in the locality and will conform to the visual character of the site. Importantly, the building has been designed to enable plant and equipment associated with the crushing and screening operations to be located within the building. This will assist in minimising air quality and noise impacts on the surrounding locality associated with the proposal.

Clause 4.6(5)(c) – Are there any other matters required to be taken into consideration by the Secretary before granting concurrence?

There no other matters required to be taken into consideration by the Secretary before granting concurrence.

Planning Assessment

The DA will be finalised / assessed having regard to s4.15 of the Environmental Planning and Assessment Act 1979 also having regard to the Council’s decision concerning the height issue.

Policy Implications

There are no specific policy implications that arise from this matter. Each variation to the SLEP is considered on merit having regard to the particular request, proposal and circumstances of the case.

Consultation and Community Engagement:

The notification was made in accordance with Council’s Community Consultation Policy. The notification was for a four-week period.

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 any appeal in the NSW Land and Environment Court, should the applicant utilise appeal rights afforded under the EP&A Act.

Legal Implications

If the requested variation is not supported and the application subsequently assessed and refused, or if the applicant is dissatisfied with Council’s determination, the applicant has the right of a review and / or appeal to the Land and Environment Court.

Summary and Conclusion

The applicant’s submission has provided sufficient justification to demonstrate that due to specific circumstances of the case, the 11m height limit is unreasonable, there are sufficient environmental planning grounds to justify contravention of the height requirement and that the proposal is in the public interest and should be supported.

For the reasons outlined in this report it is recommended that the Council support the proposed variation to clause 4.3 Building Height Development of SLEP 2014 in accordance with clause 4.6 of SLEP 2014.

Development & Environment Committee – Tuesday 06 October 2020

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DE20.115 Development Application - DA19/2165 - 15 Vallon Rd Woollamia - Lot 3 DP 832984

DA. No: DA19/2165/4

HPERM Ref: D20/373483

Section: Development Services

Approver: Phil Costello, Director - City Development

Attachments: 1. Determination - Approval - 15 Vallon Rd Woollamia - Lot 3 DP 832984 - Parish Currambene - New Commercial - Construction of 6 "Glamping" Tents (under separate cover) ⇨

2. Planning Report - 15 Vallon Rd Woollamia - Lot 3 DP 832984 (under separate cover) ⇨

Description of Development: Construction of six (6) primitive camping sites “glamping” and associated site amenities buildings, car parking and landscaping

Owner: 15 Vallon Road Wollamia Pty Ltd

Applicant: I Architecture

Notification Dates: On 24 January 2020, the application was notified in accordance with the Council’s Community Consultation Policy.

No. of Submissions: Six (6) submissions objecting to the application. A total of four (4) submissions were received following notification. An additional two (2) submissions were received prior to finalisation of the assessment.

Purpose / Reason for consideration by Council

On 11 August 2020, the Strategy & Assets Committee resolved in relation to Item No. SA20.136 “[t]hat the following Development Applications be called in for determination by Council on the basis of public interest:

1. DA19/2165 - 15 Vallon Road Woollamia - Lot 3 DP 832984

(MIN20.548)

This Report is prepared in response to the above resolution.

Recommendation (Item to be determined under delegated authority)

That Development Application DA19/2165 for the construction of six (6) primitive camping sites "glamping" and associated site amenities buildings, car parking and landscaping at 15 Vallon Road, Woollamia - Lot 3 DP 832984 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 act upon the Development Consent (Attachment 2) and commence works on the subject site.

2. Refuse the application.

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

3. Alternative recommendation.

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

Location Map

Figure 1 – Aerial image of the subject site in the local context.

Figure 2 - aerial image detailing part of the site subject of the application and adjoining residences.

Background

Proposed Development

Construction of six (6) primitive camping sites “glamping” and associated site amenities buildings, car parking and landscaping.

Figure 3- Extract of the proposed site plan.

Figure 4 - Extract of part site plan showing the location of the proposed primitive camping development.

Subject Land

The site is located on the northern side of Vallon Road, 130m east of the intersection with Jervis Bay Road in the predominately rural/residential area of Woollamia. The land is known as 15 Vallon Road, Woollamia and is legally identified as Lot 3 DP 832984. The site is a regular shaped allotment of approximately 7.3ha in area (560m long by approximately 130m wide).

The site has been partially cleared with scattered vegetation to the Vallon Road frontage and existing native vegetation to the rear of the property. The site is mapped as containing biodiversity – habitat corridor under the provisions of Shoalhaven Local Environmental Plan 2014. Several unnamed drainage depressions traverse the site which eventually drains into Currambene Creek further to the north.

The site is mapped with bushfire prone land and within a flood planning area subject to flooding.

Site & Context

The land surrounding the site is primarily characterised by small rural use lots (land zoned RU2 – Rural Landscape) with R5 Large Lot Residential zoned land to the rear of the site. The surrounding land is used primarily for residential purposes with limited use for hobby farming and low intensity and scale agriculture.

The site has been developed for residential purposes, with a single storey brick and tile roof dwelling being centrally located on the site. Works have been completed within the existing dwelling house without prior planning approval. The works are associated with the fit-out and use of the dwelling for additional bedrooms. These works are the subject of a building information certificate (BC19/1091). The building certificate remains undetermined at the time of the preparation of this Report.

History

The site has historically been used for rural/residential land use since the approval of a rural dwelling at the site on 30 April 1986 (DA86/1705). Council has subsequently approved a number of applications for dwelling additions and modifications to this dwelling as follows:

· DA01/2803 – Dwelling Extensions Patio – approved 4 January 2002

· DA01/3145 – Detached garage and awning to dwelling – approved 21 September 2001

· DA01/2803 – Dwelling Extensions Patio – approved 16 August 2001

On 10 June 2016, Development Application No. DA16/1702 was lodged with Council for the temporary use of the land as a wedding reception venue. The application was lodged in accordance with Clause 2.8 Temporary Use of Land of SLEP 2014.

During the assessment, concerns were raised by Council in relation to the Jervis Bay Road/Vallon Road intersection and the impacts of the development on the operation, safety, and efficiency of the intersection. Other issues were also raised (bushfire, flooding, environmental impact on nearby watercourses and SEPP 14 wetlands, etc). On 5 September 2016, the application was withdrawn on the recommendation of Council.

On 1 October 2019, Complying Development Certificate (CDC) 18.447/01 (Council’s reference CD19/1474) was issued by a private certifier for building works described on the Certificate as a “Cabana” (BBQ area and deck)”. This structure is now proposed to be used on the site to provide primitive camping ground amenities (i.e. toilets, showers, hand basins, storage, BBQ area, etc).

On 21 November 2019, the applicant lodged Modification Application (DS19/1494) and a Building Information Certificate (BIC) application (BC19/1091) in relation to internal building works (including plumbing and drainage) completed on the dwelling house. The works included the conversion of a living area to a bedroom and part change of use of the garage for an ensuite.

The modification was subsequently withdrawn at the request of Council and the building information certificate remains at the time of preparing this report, undetermined. The BIC is not contingent upon the determination of the current application which does not seek the use of the alterations to the dwelling.

The unauthorised works are a separate matter to this application. In this regard, there are separate provisions in the Environmental Planning and Assessment Act 1979 to deal with unlawful works.

Issues

The proposed development has been called up for determination based upon “public interest” grounds. It is considered that submissions explored later in this Report provide an assessment of the key issues raised during the community consultation process.

Planning Assessment

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

The land is zoned RU2 Rural Landscape under the Shoalhaven Local Environmental Plan 2014 (SLEP 2014).

The proposal is best characterised as a camping ground under the SLEP 2014. The proposal is permitted within the zone with the consent of Council and is not inconsistent with the objectives of the RU2 Rural Landscape zone which include in simple terms, the encouragement of sustainable primary production, retention of the rural landscape character and allowing a range of compatible land uses.

The proposed development is consistent with the relevant clauses of SLEP 2014 as it relates to the development and the site.

An assessment of the development against the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 (Caravan and Camping Grounds Reg) is provided in Attachment 1 which demonstrates that the development meets the relevant provisions of the Regulation.

The development has been assessed and deemed compliant with the following relevant environmental planning instruments:

· State Environmental Planning Policy (Infrastructure) 2007;

· State Environmental Planning Policy No 44 - Koala Habitat Protection; and

· State Environmental Planning Policy No 55 - Remediation of Land

The application has been assessed and is compliant with the following relevant chapters of Shoalhaven Development Control Plan 2014 (SDCP 2014):

· G1: Site Analysis, Sustainable Design and Building Materials in Rural and Coastal Areas;

· G2: Sustainable Stormwater Management and Erosion/Sediment Control;

· G7: Waste Minimisation and Management Controls;

· G8: Onsite Sewage Management;

· G9: Development on Flood Prone Land; and

· G21: Car Parking and Traffic

The proposed development is considered to increase the demand for community facilities in accordance with the Shoalhaven Contributions Plan 2019 (the Plan). The development is most appropriately characterised as a Caravan Park/Tourist Accommodation development for the purpose of calculating contributions under the Plan.

The Shoalhaven Contribution Plan 2019 specifies that contributions are calculated at a rate of 0.4ET per campsite. A total of six (6) campsites are proposed (2.4ET – Estimate Total: $6,564.68)

The development, based on the information provided, is not expected to have any significant adverse impact on the environment, the amenity of the locality or public health/safety.

Policy Implications

There are no policy implications as a result of the development as proposed.

Consultation and Community Engagement:

Six (6) public submissions were received from three (3) separate submitters in relation to Council’s notification of the development. Six (6) were objections to the development. Nil (0) were in support of the development. The notification was made in accordance with Council’s Community Consultation Policy with letters being sent within a 200m buffer of the site. The notification was for 2 weeks.

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

· Flooding

· Effluent disposal

· Bushfire Impacts

· Traffic impacts

· Noise Impacts

· Management of the camping operations

· Amenity impacts – noise, traffic movements and anti-social behaviour

· Unregulated and illegal use of the site for functions and weddings

· The site is not suitable for the development

Comment

Flooding Impacts on the Proposed Use

Concerns have been raised that the flood affectation and location of the development relative to the mapped flood hazard render the development incompatible and unsuitable for the site. Furthermore, concerns were raised in relation to the accuracy and soundness of the assessment of flood impact.

Part of the property is categorised as high hazard floodway. Part of the property is categorised as low hazard floodway and part of the property is flood-free. Whilst the proposed development is not compatible within the flood-affected parts of the land, the proposed development is compatible within the flood-free portion of the land.

The application is supported by a Flood Impact Assessment prepared by Allen Price and Scarratts Pty Ltd dated September 2019 (D19/419351). The Flood Impact Assessment has been reviewed and is found satisfactory by Council’s Flood Engineers. It is noted that the proposed development is on a flood-free portion of the site; however, access to the site is restricted in an event of a flood.

A flood evacuation plan will be required to be prepared and lodged with Council before the commencement of the use in accordance with the Flood Impact Assessment.

An alternate access road/access to and from the site was not deemed to be necessary or appropriate. Furthermore, such an access road would require legal access to be created over an adjoining lot, which does not form part of the application and no owners consent has been provided.

Despite the application being lodged on land impacted by flooding, it is considered that the location of the development on a flood-free portion of the site and implementation of a flood evacuation plan to be implemented by the site manager (24 hours) in the event of a flood enable the potential impacts of flooding on the site to be effectively managed.

Effluent disposal

Concerns have been raised with the proposed method, location (relative to boundaries and watercourses) and suitability of wastewater disposal for the development.

The application is supported by a Soil and Site Assessment for Onsite Wastewater Disposal (Wastewater Report) prepared by Harris Environmental Consulting dated 10 October 2019 (D19/419360). The Wastewater Report recommends the use of a domestic Aerated Wastewater Treatment System to treat wastewater and 2 x 20 x 1.8m wide soil absorption beds in the location identified on the supporting site plan. A reserve area equal to 100% of the primary wastewater disposal load is required and has been designated as land to be set aside for future effluent disposal onsite.

Council’s Environmental Health Officers have considered the Wastewater Report and deem that the report has satisfactorily addressed the requirements under Chapter G8 Onsite Sewage Management of SDCP 2014, taking into consideration the specifics of the site and the method of disposal proposed.

Bushfire Impacts

Concerns have been raised in relation to the accuracy and adequacy of the submitted bushfire assessment for the proposed development and the ability of the site to be evacuated in the event of a bushfire.

The site is identified as being bushfire prone land. The site contains Category 1 vegetation and land identified as “Vegetation Buffer”.

Under the Rural Fires Act 1997, section 100B, a Bush Fire Safety Authority from the NSW RFS is required for a special fire protection purpose (SFPP) development. The proposed camping ground is a form of SFPP under the Rural Fires Act 1997. As such, an Integrated Development approval is required under Section 4.46 of the EP&A Act.

The application is supported by Bushfire Assessment Report prepared by Bushfire Building Solutions dated 15 July 2020 (Reference BAR 10115/18) (D20/329893). The Bushfire Assessment Report makes recommendations for:

· The establishment of asset protection zones to be maintained for a distance of 67m to the north and east, and 36m to the south and west.

· The Camp Kitchen must comply with construction requirements of AS3959-2009 BAL 12.5 and Section 7.5 of Planning for Bushfire Protection 2019.

· Provision of 20,000-litre static water supply.

· A Bushfire Emergency Management and Evacuation Plan be prepared in accordance with the NSW Rural Fire Service document ‘A guide to developing a Bushfire Emergency Management and Evacuation Plan’.

The application was referred to the NSW RFS in accordance with section 4.46 of the EP&A Act.

On 19 August 2020, the NSW RFS issued their General Terms of Approval to the application (D20/374608).

Noise Impacts

Concerns have been raised that the development will result in adverse impacts associated with noise production.

The application is supported by a Noise Impact Assessment prepared by Harwood Acoustic dated 25 October 2019 Reference: 1905014E-R1 (D19/419340). The Noise Impact Assessment has considered the potential noise impacts associated with voice noise, motor vehicle and mechanical plant. The Noise Impact Assessment has been considered by the Council’s Environmental Assessment Officer to be suitable and conditions are recommended to ensure there will be no loud amplified music played at the campsites.

The location of the camping grounds relative to adjoining premises varies from160m to 360m (Refer to Figure 5 below). While it is anticipated that there may be an impact on residents at No. 9 Vallon Road associated with vehicle movements and additional traffic noise. This has been considered to be within acceptable levels and is unlikely to result in disturbance. The other adjoining properties are unlikely to be significantly impacted and this is confirmed by the Noise Impact Assessment.

Figure 5 - Aerial image of the subject site in the local context with the relative distance of the dwelling from the approximate location of the camping area.

Appropriate conditions are recommended to ensure no adverse impact associated with noise will occur and patron behaviours are proposed to be managed by a site manager to be on-site 24 hours a day during the use of the camping ground.

Traffic Impacts

The submissions have raised concerns with the potential traffic impacts associated with the use and safety of the Vallon Road and Jervis Bay Road intersection despite the reduction in the speed limit to 90kph.

The application is supported by a Traffic Impact Statement prepared by Allen Price and Scarratts Pty Ltd (N27544-SK01) Revision P1 (D19/419337) and additional Sight Distances Layout Plan prepared by Allen Price and Scarratts and supporting email (D20/316164).

SDCP 2014 does not provide estimated daily movement rates for camping grounds, however, the RMS Guide to Traffic Generating Developments provides traffic generation averages for motels (most appropriate comparative use) as:

· Evening peak hour vehicle trips = 0.4 per unit total for 6 camp sites = 2.4 vph

· Daily vehicle trips = 3 per unit; total for 6 camp sites = 18 vpd

The anticipated traffic movements are considered to be satisfactory and will not result in an unreasonable impact on either Vallon Road or Jervis Bay Road.

The operation of the intersection of Vallon and Jervis Bay Road has been considered for efficiency and safe intersection sight distance (SISD). Waiting times to turn right onto Jervis Bay Road is unlikely to exceed 1 minute and a SISD is achieved for the right turn in and right turn out at the intersection of Vallon Road/Jervis Bay Road.

Council’s Traffic Engineers have reviewed the submitted information and deem that the traffic impacts are satisfactory and no additional upgrade works are required at the Vallon Road and Jervis Bay Road intersection.

Figure 6- Sight Distances Layout Plan prepared by Allen Price and Scarratts

Management of the camping operations

Concerns have been raised in relation to the management procedures proposed, being untruthful, incorrect, and questionable in their likely ability to be implemented and tents removed within 24 hours of their use.

The application is supported by a Site Management Plan prepared by Allen Price and Scarratts Pty Ltd dated 20 April 2020 (D20/153150), which outlines that an operations manager will be onsite at all times and will be accommodated in the existing dwelling for 24-hour operation, with no camping in the absence of management. The applicant proposes the following specific management arrangements:

· Camper registration and maintenance of camper and vehicle details and numbers.

· Complaints register to be available for Council inspection on request. Any complaint will be recorded in the onsite complaints register and followed up and investigated by the onsite manager/landowners. These complaints will be kept on the register for a minimum period of two years.

· Dismantling of tents within 24 hours of use in accordance with the Caravan and Camping Grounds Reg.

· Limiting the use of the camping ground to a total of 12 persons.

· Maintenance of bushfire requirements i.e. vegetation management and static water supply.

· Implementation of the Flood Emergency Management Plan in the event of a flood.

· Limitation of the use of the existing dwelling for use of the manager.

· Noise and camper behaviour.

· Waste management

· Security. Guests will be required on arrival to register their details with the onsite manager and no additional visitors will be permitted to camp on the site. No vehicles in addition to the guest registered vehicles will be permitted on the site except for any service vehicles that have been authorised by the landowners / onsite manager.

It is considered that Council has an opportunity through this application to place stringent operational management controls on the site to limit the use of the site as described in the application and as proposed to be managed in the Site Management Plan. Council cannot allow the prior use of the site to foreshadow the proposed and future use of the site for permissible use.

With appropriately rigorous and overarching conditions of consent as outlined in the draft determination (refer to Attachment 2), it is considered that the management and operation of the site can be effectively achieved.

Unregulated and illegal use of the site for functions and weddings

It is noted that submissions have raised doubts about the statements relating to the use of the existing dwelling and potential use of the site for functions and weddings.

One submitter has identified booking websites for the site indicate that the manager's cottage is currently being promoted for exclusive use by guests (10 persons in 4 bedrooms) and that the managers are not residing at No. 9 Vallon Road as suggested in the applicant’s submission.

The applicant has identified that the existing dwelling is currently advertised for short term accommodation and has been a consistent use over many years and that the short term use of the existing dwelling is consistent with current local and state planning legislation that does not require prior approval for the use of an approved dwelling for short term accommodation to paying guests

The applicant has also indicated in their letter in response to the submitted objections dated April 2020 (D20/153143), that:

“[T]here has been extensive stays by guests at the existing dwelling, there has been only one major unauthorized event with large numbers staying and a noise nuisance caused to neighbours. This exposed the then inadequate means of managing the property, which has since been recognized and has been dealt with. The new measures now in place by the owners have provided a far better system of management which limits numbers and the type of activities that can occur on-site.”

Council records indicate that there have been two (2) substantiated complaints concerning the use of the site, which related to camping on the site. These complaints have been investigated by Council’s Compliance officers and where required appropriate regulatory action has been taken. There have been no substantiated complaints received and investigated by Council relating to the use of the site for functions or weddings.

It is important to note that the application currently under assessment does not propose to use the site for functions or weddings (as previously proposed by the withdrawn Development Application DA16/1702 for the temporary use of the land as a function centre). The application only relates to the camping ground with the use of the existing dwelling proposed to be used as a manager’s residence.

Council can only consider the application as put to it. It cannot take any allegations of what may happen or has happened into account in the prescribed planning assessment (specified in section 4.15 of the EPA Act 1979). As mentioned previously there are separate provisiosn available to deal with unauthorised works (and also activities) should such a circumstance eventuate.

With appropriate conditions which limit the use of the site as proposed and the operation and use of the site per the Site Management Plan and the recommended condition of development contained in the draft determination (Refer to Attachment 2), it is considered that the use can be effectively managed.

The site is not suitable for the development

Concerns have been raised that the site is inappropriate as a proposed glamping site. The lack of onsite and full-time management compounds the risks for those who stay and is problematic for the neighbours.

The site has several constraints that limit the scale and use of the site, they include bushfire, flooding, wastewater management, mapped watercourses and threatened species/terrestrial biodiversity, access, and the local road network capacity.

The applicant has provided a considered application that does not propose the maximum density of potential camping sites capable under the Local Government Regulation 2005, which stipulates that the site could notionally achieve 2 camping sites for each hectare of the camping ground i.e. 14 primitive camping sites based upon the site having an area of just over 7 hectares. The application for a total of six (6) sites reflects the limitations of the site.

The camping sites are located following consideration of the site constraints and detailed reports have been prepared to support the application which has been reviewed by Council, the NSW RFS and Endeavour Energy to be satisfactory, subject to recommended conditions.

The site is considered to be suitable for the proposed development subject to the recommended conditions contained in the draft determination contained in Attachment 2.

Financial Implications:

Legal Implications

According to section 8.2 of the EP&A Act, a decision of the Council may be subject of a review by the applicant in the event of approval or refusal. If such a review is ultimately pursued (if the recommendation is not adopted), the matter would be put to Council for consideration.

Alternatively, an applicant may also appeal to the Court against the determination according to section 8.7 of the EP&A Act.

Summary and Conclusion

· The development is permitted within the zone and is consistent with the objectives of the zone.

· The development will provide an additional form of tourist and visitor accommodation in an accessible location, close to local service centres of Huskisson and Vincentia, and near to local scenic attractions within the Jervis Bay area.

· The development is generally compliant with the relevant provisions of SDCP 2014.

· The development provides sufficient car parking on the site through the provision of ten (10) car parking spaces.

· The site is to be managed by an on-site and on-call manager who will be available to administer the operation of the primitive camping ground.

· The proposed development is unlikely to result in unreasonable amenity impacts on the adjoining residents with conditions recommended to ensure no adverse noise impacts. Furthermore, the limitation of the primitive camping ground to twelve (12) campers across all six (6) sites is unlikely to result in amenity impacts on adjoining rural/residential land-uses.

· The NSW Rural Fire Service has issued their General Terms of Approval to the application and suitable conditions are recommended to ensure construction standards for buildings, installation of fire refuge and implementation of a bushfire management plan in the event of bushfires.

· Traffic movements to and from the site are acceptable and will not necessitate any upgrade works to the Vallon Road and Jervis Bay Road intersection.

· The site is suitable for the proposed development taking into account the existing and future development in the locality which is likely to continue to be used for rural/residential land uses.

· The assessment of the public interest has considered the competing and conflicting public interests associated. Ultimately the development is unlikely to represent the interests of all sectors of the public who have an interest in the development, however, the recommendation to support approval of the development application is considered to beon balance in the broader public interest.

· Having regard to the above, conditional approval is recommended as attached to this report.

Development & Environment Committee – Tuesday 06 October 2020

Page 0

DE20.116 Development Application - DA20/1676 - 23 Coorong Rd North Nowra - Lot 2 DP 1056165

DA. No: DA20/1676/4

HPERM Ref: D20/398450

Section: Development Services

Approver: Phil Costello, Director - City Development

Attachments: 1. DRAFT - Determination - Refusal - DA20/1676 - 23 Coorong Rd North Nowra - Lot 2 DP 1056165 ⇩

2. Planning Report - 23 Coorong Rd North Nowra - Lot 2 DP 1056165 (under separate cover) ⇨

Description of Development: Construction of an access driveway for maintenance purposes and associated earthworks, vegetation removal and drainage works.

Owner: A & S Sturt

Applicant: Adam Sturt C/O SET Consultants

Notification Dates: 29 July 2020 – 26 August 2020

No. of Submissions: 5 in objection

Purpose / Reason for consideration by Council

Council resolved on 7 April 2020 (MIN20.240), with respect to COVID-19 Response, that:

“The delegation to the CEO be rescinded to determine a development application by refusal until the end of COVID-19 crisis

The refusal of a development application must only be by Council/Committee resolution.”

Recommendation (Item to be determined under delegated authority)

That Development Application DA20/1676 for the construction of an access driveway for maintenance purposes and associated earthworks, vegetation removal and drainage works at Lot 2 DP 1056165, 23 Coorong Road, North Nowra 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 can 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

Proposed Development

The proposal includes:

· Construction of an access driveway for maintenance purposes

o Associated earthworks

o Associated drainage works

o Associated vegetation removal

o Temporary access over Council reserve at bottom of cliff escarpment to bring machinery and materials required for construction to the site. Construction materials and machinery will be barged up the Shoalhaven River.

Note (see Figure 3) That the road terminates at the property boundary and there is a small reserve between the site and the Shoalhaven River.

Figure 2 – Site Plan

Figure 3 – Works Impact Plan

Figure 4 – Typical Elevation Details

Figure 5 – Driveway Long Section Plan

Subject Land

The development site comprises Lot 2 DP 1056165 (23 Coorong Road, North Nowra). Refer to Figure 1.

Site & Context

The development site:

· Is accessed from the southern side of Coorong Road.

· Adjoins the Shoalhaven River and includes a large cliff escarpment at the rear of the site.

· Forms part of the unique river landscape along the Shoalhaven River.

· Is mostly zoned E3 Environmental Management, with a small portion zoned RU2 Rural Landscape under the Shoalhaven Local Environmental Plan 2014 (SLEP 2014) and has a land area of 2.62ha.

· Contains an existing dwelling and associated structures.

· Includes some cleared areas nearby the existing dwelling and also has areas of dense bushland vegetation on the southern and eastern parts of the site. The cliff escarpment area is heavily vegetated.

· Is mapped as bush fire prone land.

· Is partially mapped as flood prone land.

· Is mapped as a ‘coastal use area’ and ‘coastal environment area’ under State Environmental Planning Policy (Coastal Management) 2018.

· Is partially mapped as containing land in the vicinity of the Western Bypass Corridor under clause 7.21 of SLEP 2014

The surrounding area is rural in character and the site is adjoined by rural residential and other bushland areas. The site adjoins the Shoalhaven River to the south and it is noted that there is a small Council reserve separating the subject property from the mapped Shoalhaven River watercourse.

Figure 6 – Zoning Extract

History

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

· A previous application (DA19/1079) for a similar access track to be constructed to permit access to the lower portion of the property for maintenance of the land and also public foreshore reserve was determined by way of refusal on 3 September 2019. The application was refused primarily due to concerns about the adverse impacts on the environment from the construction of the track and there being no agreement with Council to undertake foreshore maintenance.

· The current application was lodged on 7 July 2020.

· As a result of detailed assessment of the application, additional information was requested from the applicant on two (2) occasions – 15 July 2020 and 23 July 2020. Additional concerns relating to the development based on referral comments were communicated to the Applicant on 10 August 2020.

· The Applicant was advised on 23 July 2020, based on a preliminary assessment of the proposed development, that the purpose and need (i.e. planning purpose) for the access driveway is unconvincing and that the proposed development may not be suitable or an appropriate development for the locality considering environmental qualities and topography of the site. Furthermore, the Applicant was advised on 28 August 2020 that based on a detailed assessment of the proposed development, it is considered that the proposed access driveway would have a significant adverse impact on the unique riparian and escarpment environment and negatively impact on the river landscape, and that if the application is to be pursued, it will proceed with a report to Council at the next Development and Environment Committee meeting.

· To date, there has been no response to the additional information requests.

Issues

State Environmental Planning Policy (Coastal Management) 2018

The subject land is mapped as “coastal environment area” and “coastal use area” under State Environmental Planning Policy (Coastal Management) 2018.

SEPP (Coastal Management) 2018 specifies that development consent must not be granted for development within the “coastal environment area” or “coastal use area” unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on the matters set out in clause 13 (for “coastal environment area”) and clause 14 (for “coastal use area”) and is satisfied that the development has been designed to avoid or minimise or will be managed to mitigate adverse impacts. Consideration of clause 13 and 14 are discussed below.

Applicant’s Submission

“The proposed access track will have minimal adverse impacts on the existing foreshore area. This is due to the driveways design and location. The methods of construction and proposed sediment and erosion controls proposed also minimise the impact on the adjacent foreshore to the south.

The areas of impact and clearing of native vegetation will be offset through the planting and rehabilitation plan of the area surrounding the driveway and foreshore area. This will have a positive impact on the foreshore area, with the ongoing maintenance capability provided by the driveway. The Ecological & Riparian Issues & Assessment Report prepared by Gunninah outlines the potential impacts of the development on the natural environmental and Biodiversity present on the site. In summary, the report provided the following conclusion and recommendations:

‘On the basis that the works are undertaken in a manner which avoids or minimises sediment discharge and erosion, the proposed access road on the subject land in North Nowra will impose only limited impacts on the natural environment in general – given the small footprint of the proposal and the limited removal of vegetation necessary (because of the escarpment).

In particular, it is not “likely” that a “significant effect” would be imposed upon any threatened biota listed in the BCon Act as a consequence of the proposal (as detailed in Chapter 8.4 and Attachment G).

Similar considerations apply to threatened and/or migratory biota listed in the EPBC Act - it is not “likely” that a “significant impact” would be imposed on any relevant MNES pursuant to that Act.

A number of recommendations are provided for the proposal.

· Precise details of the road alignment are to be reviewed on site by the engineers and a Project Ecologist – in order to minimise the extent of disturbance and the number of trees to be removed; and to identify particular engineering or design solutions to retain trees and vegetation wherever possible.

· An arborist will be required to identify specific tree protection measures for trees along or near to the alignment of the road.

· A detailed Vegetation Management Plan (VMP) is to be prepared on receipt of development consent and prior to the issue of a Construction Certificate – to detail the rehabilitation and replanting regime for the areas to be disturbed.’

The proposed access track has been designed to provide safe access to the southern portion of the site. The southern portion of the site is currently difficult to access due to the rocky escarpment in this area of the site. This will make it easier for the area to be maintained and rehabilitated. The proposed access track will not impact on the existing waterway and has been provided with the necessary stormwater and erosion controls to prevent potential issues.

The use of concrete footings and headstocks have reduced the area of impact particularly along the escarpment. The proposed access track has considered the surrounding context and site constraints to provide suitable access to this portion of the site. The track will not have any impact on other existing accesses to the foreshore, river or public reserve adjacent to the southern boundary. There is no proposed development in this application with the potential to overshadow, funnel wind, or restrict existing views of the surrounding properties and public spaces of the foreshore.

The visual amenity and existing scenic qualities of the site will not be significantly impacted by the proposed access track. The current view of the site from the south is of the existing vegetation with the site sloping up towards dwelling. The existing structures onsite are not visible from the Shoalhaven River. The proposed access track requires the removal of selected native vegetation. The access track will retain a vegetated buffer between driveway and the Shoalhaven River which with the exception of the area of the turning head, will be approximately 20m wide effectively screening it from view. The proposed earthworks and tree removal will have no significant visual impacts on the surrounding foreshore. A Vegetation Management Plan will be prepared prior to the Construction Certificate stage and will propose the replanting of the foreshore which will further improve the visual and scenic qualities of the site.

Figure 7 shows the approximate location of the subject property and lateral position of the turning head as viewed from the river. As can be observed from the density of the existing vegetation, which is to be retained, the access will be largely screened from view.

Figure 7: Foreshore view showing property and proposed access location
[extracted from Applicant’s Statement of Environmental Effects]

It is noted that adjoining properties to the east and west, as well as others along the river contain similar access driveways to what is proposed in this application, including thinning of vegetation and management of the southern portion of the site. The proposed access track will allow maintenance of the southern portion of the development site, which will provide a significant improvement to the health of the environmental on site. Figures 8 and 9 show the existing use and current development of adjoining properties adjacent to the foreshore.

Figure 8: Foreshore view of the property immediately east of subject site
[extracted from Applicant’s Statement of Environmental Effects]

Figure 9 shows an image of the site in regards to the wider context along the foreshore. The image has been taken from the Shoalhaven River, facing north-west towards the site.

Figure 9: Site Context foreshore view
[extracted from Applicant’s Statement of Environmental Effects]

It is considered that the proposed access driveway has been designed and positioned to minimise the potential impacts of the surrounding coastal environment, and that the development will assist in the ongoing maintenance and protection.”

Discussion

Clause 13 Development on land within the coastal environment area

Development consent must not be granted to development on land that is within the coastal environment area unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on the following:

Matter for Consideration

Assessment Staff Comment

the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment

The application has not adequately addressed the impacts of the development on the natural environment. The construction of the driveway access is likely to have an adverse impact on the environmental values of the site.

The purported use of the access driveway for maintenance purposes is queried. It was noted during the site inspection that the area at the bottom of the cliff escarpment was generally in good ‘health’. Because of existing vegetation and the limited presence of weeds or exotic plant species at the bottom of the cliff escarpment, it is considered that any weed removal or foreshore management should be carried out by hand, the use of heavy machinery would not be appropriate and would have a negative impact on the natural environment.

Council is of the view that the proposed development is likely to have an adverse impact in relation to the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment.

coastal environmental values and natural coastal processes,

The application has not adequately addressed the impacts of the development on coastal environmental values and natural coastal processes.

As observed during the site inspection, vegetation above the cliff line is predominately mature spotted gums above the cliff and vegetation below the cliff line represents a unique ecotone caused by the shade of the cliff and enclosed tree canopy and waterfalls/seepage coming down the escarpment keeping the area moist. This type of environment is unique and characteristic of this area of the Shoalhaven River.

The proposed access driveway is likely to be visible from the Shoalhaven River and negatively impact on the environmental and scenic values of this unique environment.

It is also noted that the Shoalhaven River is prone to flooding and during the site inspection it was observed that large amounts of silt were deposited on the lower areas of the area at the bottom of the cliff.

The application has not adequately addressed flooding impacts of the development on natural river processes.

Council is of the view that the proposed development is likely to have an adverse impact on coastal environmental values and natural coastal processes.

the water quality of the marine estate (within the meaning of the Marine Estate Management Act 2014), in particular, the cumulative impacts of the proposed development on any of the sensitive coastal lakes identified in Schedule 1,

It is not considered that the proposed development would have a significant impact on the water quality of a marine estate.

marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms,

The application has not adequately addressed the impacts of the development on native vegetation and fauna and their habitats.

The purported use of the access driveway for maintenance purposes is not substantiated, as it was observed during the site inspection that the vegetation at the bottom of the cliff escarpment was in good health and did not require extensive weed clearing or maintenance. The environmental benefits of providing access for heavy machinery do not outweigh the likely environmental impacts of the development.

Because of the unique cliff environment and existing vegetation, weed removal and foreshore maintenance would more appropriately be carried out by hand, the necessity of larger machinery for maintenance purposes would be infrequent (if any) and could more appropriately be achieve through accessing the bottom of the cliff via barge.

It is considered that the proposed development would have an adverse impact on native vegetation and fauna and any environmental benefits of providing access to the bottom of the cliff for maintenance purposes would not outweigh the likely environmental impact of the development.

existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

The proposal will not restrict public access to and along the foreshore.

Aboriginal cultural heritage, practices and places,

The application was referred to Nowra Local Aboriginal Land Council (LALC). Some correspondence was received from Nowra LALC (see D20/354286), but no specific comments or response was raised from Nowra LALC within 28 days of notice being sent to the LALC.

Attachment 3 in the submitted Statement of Environmental Effects (SEE) provides an Aboriginal Heritage Information Management System (AHIMS) which has not identified any recorded aboriginal sites or declared aboriginal places within a 200m radius of the development site.

the use of the surf zone.

The proposal will not compromise the use of the surf zone.

The application has not demonstrated and Council is not satisfied that the proposal has been designed to avoid or minimise or will be managed to mitigate adverse impacts on the matters for consideration set out in clause 13 of SEPP (Coastal Management) 2018, in particular the developments impact on ecological, environmental and natural coastal processes.

14 Development on land within the coastal use area

Development consent must not be granted to development on land that is within the coastal use area unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on the following:

Matter for Consideration	Assessment Staff Comment
existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,	The proposal will not restrict public access.
overshadowing, wind funnelling and the loss of views from public places to foreshores,	The subject site forms part of the cliff escarpment that runs along the northern side of Shoalhaven River. The upper parts of the proposed access driveway are likely to be visible from the Shoalhaven River and would detrimentally impact on the scenic qualities of the river and riparian environment.
the visual amenity and scenic qualities of the coast, including coastal headlands,	The upper parts of the proposed access driveway are likely to be visible from the Shoalhaven River and would detrimentally impact on the visual amenity and scenic qualities of the river and riparian environment.
Aboriginal cultural heritage, practices and places,	The application was referred to Nowra Local Aboriginal Land Council (LALC). Some correspondence was received from Nowra LALC (see D20/354286), but no specific comments or response was raised from Nowra LALC within 28 days of notice being sent to the LALC. Attachment 3 in the submitted Statement of Environmental Effects (SEE) provides an Aboriginal Heritage Information Management System (AHIMS) which has not identified any recorded aboriginal sites or declared aboriginal places within a 200m radius of the development site.
cultural and built environment heritage, and	The proposal is considered appropriate with regard to cultural and built environmental heritage.

The application has not demonstrated and Council is not satisfied that the proposal has been designed to avoid or minimise or will be managed to mitigate adverse impacts on the matters for consideration set out in clause 14 of SEPP (Coastal Management) 2018, in particular the developments impact on views and scenic qualities.

Clause 2.3 - Zoning objectives and land use table – Shoalhaven Local Environmental Plan 2014

The land is mostly zoned E3 Environmental Management, with a small portion zoned RU2 Rural Landscape under the SLEP 2014. The proposed access driveway is wholly located on the E3 zoned land.

The objectives of the E3 Environmental Management zone are:

· To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.

· To provide for a limited range of development that does not have an adverse effect on those values.

· To protect the natural and cultural features of the landscape, including coastal and foreshore areas, that contribute to scenic value and visual amenity.

· To maintain the stability of coastal land forms and protect the water quality and ecological values of estuaries and coastal streams.

The proposal is best characterised as driveway access ancillary to the residential use of the land. The proposal is permitted within the zone with the consent of Council.

Applicant’s Submission

“The proposal for the construction of an access driveway over the existing driveway, and extending into the southern portion of the site would be considered a driveway or private access road. The road is also considered ancillary to the existing dwelling onsite and as such is a permitted land use on the subject site under both the E3 and RU2 zones.

The proposed development satisfies the objectives of the zones by providing access to the southern portion of the site to allow for vegetation rehabilitation and management. The proposed access driveway is considered compatible within the surrounding landscape, and has been designed to minimise the visual and environmental impact of the development. The proposed construction methodology, use of the bridge and footings, and sediment and erosion controls ensures the existing natural and cultural features of the site, including the foreshore area will be retained and protected.”

Discussion

Zone objectives

E3 Zone Objective	Assessment Staff Comment
To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.	The application has not adequately addressed the development’s impact on the environmental, ecological, or aesthetic values of the site. The use of the access driveway for “vegetation rehabilitation and management” purposes is questionable. The proposed development would have an adverse impact on the environmental and ecological values of the site and would detrimentally impact on the scenic and aesthetic qualities of the river environment. It is considered that the proposed development is inconsistent with this zone objective.
To provide for a limited range of development that does not have an adverse effect on those values.	The application has not adequately addressed the likely impacts of the development. The proposed development would have an adverse impact on the natural environment and would detrimentally impact on the scenic and aesthetic qualities of the site and river environment. It is considered that the proposed development is inconsistent with this zone objective.
To protect the natural and cultural features of the landscape, including coastal and foreshore areas, that contribute to scenic value and visual amenity.	Upper parts of the proposed access driveway would likely be visible from the Shoalhaven River and the development would compromise the unique natural river environment. It is considered that the proposed development is inconsistent with this zone objective in that it does not protect the natural features of the landscape that contribute to scenic values and visual amenity.
To maintain the stability of coastal land forms and protect the water quality and ecological values of estuaries and coastal streams.	The application has not adequately addressed the likely environmental and ecological impacts of the development. The proposed development may have a negative impact on the unique riparian environment and the environmental values of the site. It is considered that the proposed development is inconsistent with this zone objective.

The development application has not satisfactorily demonstrated compliance with the objectives of the E3 – Environmental Management zone in accordance with clause 2.3 of Shoalhaven LEP 2014.

Clause 7.2 - Earthworks – Shoalhaven Local Environmental Plan 2014

Clause 7.2 of Shoalhaven LEP 2014 requires development consent for earthworks and requires the consent authority to consider the following matters before granting consent for earthworks (or for development involving ancillary earthworks):

a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development,

b) the effect of the development on the likely future use or redevelopment of the land,

c) the quality of the fill or the soil to be excavated, or both,

d) the effect of the development on the existing and likely amenity of adjoining properties,

e) the source of any fill material and the destination of any excavated material,

f) the likelihood of disturbing relics,

g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,

h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

Applicant’s Submission

“The site slopes to the rear of the lot with a rocky escarpment currently limiting access to the foreshore area. There is no formal stormwater drainage for this part of site, with overland runoff currently discharging overland to the south. The proposed access driveway will be cut into the ground level sloping towards the escarpment. This connects to a section of bridges, headstocks and footings which will be positioned adjacent to the escarpment. The bridges are to be located atop of concrete pillars. The driveway returns to natural ground level towards the end of the driveway. The material excavated will be rock and will be reused onsite as fill, to assist in stabilising the proposed driveway.

The construction of the access driveway includes stormwater, erosion and sediment controls to manage the overland stormwater runoff. The set of Civil Plans prepared by SET Consultants Pty Ltd outlines the proposed drainage and erosion infrastructure to ensure overland stormwater runoff can continue safely.

The proposed earthworks are highly unlikely to expose to increase the potential for harmful materials to enter the receiving waterways to the south of site. Appropriate sediment and erosion controls will be implemented during the construction of the track.”

Discussion

The application proposes some associated earthworks to construct the access driveway, notably the upper area of the driveway will be cut into the cliff escarpment up to a maximum depth of 3.8m. This is substantial work.

Figure 90: Driveway Section Plan showing extent of cutting at top of cliff escarpment.

The middle area of the driveway will be constructed on pylons that will be cemented on footings that will be laid on top of existing rocks and boulders.

The lower area of the driveway will level out and there may be some associated earthworks to create a level driveway area.

The proposed cutting and other earthworks are located in close proximity to the Shoalhaven River and within a unique riparian river environment which is characteristic of this part of the Shoalhaven River. It is considered that the proposed development and associated earthworks would have adverse impacts on the environmental values of the site and compromise the integrity of the cliff escarpment and the natural and scenic qualities of the river waterway.

The proposed development is considered unsuitable with regard to the considerations of clause 7.2 of Shoalhaven LEP 2014.

Clause 7.3 – Flood planning – Shoalhaven Local Environmental Plan 2014

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

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

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

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

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

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

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

Applicant’s Submission

“The proposed access driveway is considered compatible within the flood effected area. The track will not significantly affect the behaviour of flood waters as fill material to be placed is below the approximated 1% Annual Exceedance Probability (AEP) Flood level with less than 1m depth. This meets the requirements of Acceptable Solution A2.2 for fill and Excavation under Section 5.2 of SCC DCP 2014 Chapter G9 – Development on Flood Prone Land.

The proposed access track will not introduce any potential impacts on the existing development on site or in the surrounding area due to the limited footprint in relation to the floodplain and significant distance from any other foreshore development. The proposed access driveway will be concrete sealed protecting against flood impacts with batters stabilised by rockwork and/or revegetation. Appropriate measures are proposed to avoid erosion and siltation, with the foreshore environment to be rehabilitated as part of the completion of works.”

Discussion

The proposed development comes under Development Type ‘E’ (Earthworks) in Chapter G9 of the Shoalhaven DCP 2014 and the subject land at the bottom of the escarpment is identified as high hazard floodway. As per Chapter G9 of the Shoalhaven DCP 2014 Development Type ‘E’ is unsuitable within the high hazard floodway. The application has not been supported by a merit-based flood compliance report demonstrating that the proposed development is suitable in the location with regard to the flood hazard.

The application has been reviewed by Council’s Natural Resource & Floodplain Section who are not satisfied that the development is compatible with the flood hazard of the land and that the development would not significantly adversely affect flood behaviour. Further, staff are not satisfied that the development would not significantly affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of riverbanks or the watercourse.

The proposed development does not comply with the requirements of Chapter G9 of Shoalhaven DCP 2014 and is considered unsuitable with regard to the considerations of clause 7.3 of Shoalhaven LEP 2014.

Clause 7.6 – Riparian land and watercourses – Shoalhaven Local Environmental Plan 2014

The proposed access driveway is located within 50m of the bank of a “Watercourse Category 1” (Shoalhaven River).

Clause 7.6 of Shoalhaven LEP 2014 specifies that before determining a development application, the consent authority must consider -

a) whether or not the development is likely to have any adverse impact on the following—

i) the water quality and flows within the watercourse,

ii) aquatic and riparian species, habitats and ecosystems of the watercourse,

iii) the stability of the bed and banks of the watercourse,

iv) the free passage of fish and other aquatic organisms within or along the watercourse,

v) any future rehabilitation of the watercourse and its riparian areas, and

b) whether or not the development is likely to increase water extraction from the watercourse, and

c) any appropriate measures proposed to avoid, minimise, or mitigate the impacts of the development.

Applicant’s Submission

“The proposed driveway access will not have a significant impact on the Shoalhaven River. The development is located to take advantage of the existing cleared areas to reduce the required vegetation removal. Sediment and erosion controls, and the use of the cut material (rock) will be used to stabilise the areas surrounding the driveway. The Vegetation Management Plan will also assist in stabilising the area through the planting and rehabilitation of the surrounding area.”

Discussion

The application has not adequately addressed the likely impacts of the development on the natural environment and environmental values of the river environment.

The proposed development and associated earthworks and vegetation clearing would have an adverse impact on riparian species and their habitats and the river ecosystem. The purported use of the access driveway for maintenance purposes is questioned, and it is considered that any weed management or foreshore maintenance activities of the land at the bottom of the cliff escarpment should be more appropriately be carried out by hand. The use of heavy machinery within this sensitive river environment would have a significant adverse impact on the riparian environment and river ecosystem.

Council is not satisfied that the development is designed, sited and will be managed to avoid any significant adverse environmental impact and is therefore inappropriate for its purported purpose and is inappropriate given the areas sensitive and unique environment and the residential use of the property.

The proposed development is considered unsuitable with regard to the considerations of clause 7.6 of Shoalhaven LEP 2014.

Clause 7.7 – Landslide risk and other land degradation – Shoalhaven Local Environmental Plan 2014

The access driveway is proposed to be cut into the upper part and then descends alongside the cliff escarpment. It is noted that the access driveway is to be cut into the upper part of the cliff escarpment and will pass underneath and with close proximity to a number of cliff overhangs.

Figure 11: Photo of cliff face/escarpment. Proposed driveway will hug cliff face.

Figure 102: Photo of cliff overhangs. Proposed driveway will be located underneath some cliff overhangs.

Figure 113: Photo of cliff overhangs. Proposed driveway will be located underneath some cliff overhangs.

Clause 7.6 of Shoalhaven LEP 2014 specifies that before determining a development application, the consent authority must consider any potential adverse impact either from, or as a result of, the development in relation to -

a) the geotechnical stability of the site, and

b) the probability of increased erosion or other land degradation processes.

Applicant’s Submission

Nil.

Discussion

Concern is raised with regard to the geotechnical stability and overall safety of the development with regard to land degradation and landslide risk.

The proposed cutting and earthworks associated with driveway construction may result in increased erosion and increased degradation of the upper parts of the cliff escarpment.

Staff are not satisfied that the development is designed, sited and will be managed to avoid any significant adverse environmental impact and is therefore inappropriate for its purported purpose and is inappropriate given the areas sensitive and unique environment and the residential use of the property.

The proposed development is considered unsuitable with regard to the considerations of clause 7.7 of Shoalhaven LEP 2014.

Clause 7.8 - Scenic protection – Shoalhaven Local Environmental Plan 2014

The site of the proposed access driveway is mapped as “scenic protection” on the Scenic Protection Area Map in Shoalhaven LEP 2014.

Clause 7.8 of Shoalhaven LEP 2014 specifies that in deciding whether to grant development consent, the consent authority must -

a) consider the visual impact of the development when viewed from a public place and be satisfied that the development will involve the taking of measures that will minimise any detrimental visual impact, and

b) consider the number, type and location of existing trees and shrubs that are to be retained and the extent of landscaping to be carried out on the site, and

c) consider the siting of the proposed buildings.

Applicant’s Submission

“Section 4.2.2 of this Statement of Environmental Effects addresses the Coastal Management SEPP. The SEPP similarly to Clause 7.8 of the SLEP 2014 considered the visual impact of a development on existing amenity of the area. Section 4.2.2 of this report provides a detailed analysis of how the development will not have a significant impact on the existing scenic qualities of the foreshore area.

The visual amenity and existing scenic qualities of the site will not be significantly impacted by the proposed access driveway. The current view of the site from the south is of the existing vegetation with the site sloping up towards dwelling. The existing structures onsite are not visible from the Shoalhaven River. The proposed access track requires the removal of selected native vegetation. The access track will retain a vegetated buffer between driveway and the Shoalhaven River which with the exception of the area of the turning head, will be approximately 20m wide effectively screening it from view. The proposed earthworks and tree removal will have no significant visual impacts on the surrounding foreshore. A Vegetation Management Plan will be prepared prior to the Construction Certificate stage and will propose the replanting of the foreshore which will further improve the visual and scenic qualities of the site.”

Discussion

The upper area of the proposed access driveway will be cut into the upper part of the cliff escarpment and would likely be visible from the Shoalhaven River. The area is a unique natural riparian environment and is characteristic of this part of Shoalhaven River.

It is considered that the proposed development will have an adverse impact on the aesthetic values of the site and the scenic qualities of the river. The proposal would have a detrimental visual impact on the area and detract from the unique river landscape. Earthworks and vegetation clearing associated with the proposed access driveway will further exacerbate adverse visual impact and detract from the scenic qualities of the landscape.

The location and siting of the proposed access driveway is inappropriate.

The proposed development is considered unsuitable with regard to the considerations of clause 7.8 of Shoalhaven LEP 2014.

Shoalhaven Development Control Plan (DCP) 2014

The development application has not satisfactorily demonstrated compliance with the relevant provisions of Chapters G1 (Site Analysis, Site Design and Building Materials), G5 (Biodiversity Impact Assessment), and G9 (Development on Flood Prone Lane) of Shoalhaven Development Control Plan (DCP) 2014.

Site analysis controls - Chapter G1 (Acceptable Solution A1.3 and Performance Criteria P1.1, P1.2 and P1.3)

Acceptable solution A1.3 specifies that:

A1.3

The proposed site layout responds to and implements the findings of the site analysis plan prepared in accordance with A1.1 and A1.2

Performance Criteria P1.1, P1.2 and P1.3 require that:

P1.1

The characteristics of the site and its surrounds have been adequately considered through preparation of a thorough site analysis plan.

P1.2

The site analysis informs the site design and layout.

P1.3

The site layout integrates with the surrounding environment through:

· Adequate pedestrian, cycle and vehicle links to street and open space networks

· Buildings that face and address streets and the public domain

· Buildings, streetscape and landscape design that relates to the site topography and to the surrounding neighbourhood character

Applicant’s Submission

“The purpose of this Chapter is to outline controls for the management of the natural and built environment. This SoEE contains a site analysis (section 2) and images that show the extent of vegetation, location of existing development on and surrounding the site. The site analysis and other supporting documents were undertaken to identify the site constraints and inform the best location for the proposed development.

A set of Site Plans, and Civil Plans prepared by SET Consultants Pty Ltd has been submitted with this development application. The proposal is consistent with the acceptable solutions of this chapter.”

Discussion

The proposed access driveway does not appropriately respond to site constraints as required by P1.1, P1.2 and P1.3, in particular, topography of the site and land degradation risks, ecological and environmental qualities of the site, terrestrial biodiversity and riparian land considerations, scenic and aesthetic qualities of the river environment, and also the flood hazard of the land. It is considered that the proposed development is not suitable for the site given the constraints.

Site analysis, building materials and site design controls - Chapter G1 (Acceptable Solution A1.3 & A2.1 and Performance Criteria P1.1, P1.2, P1.3 & P2)

Acceptable solution A1.3 and 2.1 specify that:

A1.3

The proposed site layout responds to and implements the findings of the site analysis plan prepared in accordance with A1.1 and A1.2

A2.1

The building design satisfies the following to ensure the development does not detract from the scenic-value of the landscape:

· Siting – buildings shall be suitably sited (i.e. below ridgelines and/or knolls) in a location which does not unreasonably impact on the outlook of any other dwelling or a vista from a public road, public place or place frequented by the public.

· Screening – existing trees and vegetation shall be utilised to provide a backdrop and/or for screening of buildings. Additional landscaping may also be used to implement screening.

· Design – roof pitch and orientation shall be designed to minimise or mitigate glare.

· Access roads and services shall be designed and located to minimise soil and tree/vegetation disturbance and visual impact.

· Materials and colours shall be appropriate to the local landscape and or background to ensure that the building does not significantly detract from the scenic value of that landscape. Structures should not strongly contrast with the background whether by location, colour or choice of materials.

Performance Criteria P1.1, P1.2, P1.3 and P2 require that:

P1.1	The characteristics of the site and its surrounds have been adequately considered through preparation of a thorough site analysis plan.
P1.2	The site analysis informs the site design and layout.
P1.3	The site layout integrates with the surrounding environment through: · Adequate pedestrian, cycle and vehicle links to street and open space networks · Buildings that face and address streets and the public domain · Buildings, streetscape and landscape design that relates to the site topography and to the surrounding neighbourhood character
P2	Buildings are designed, constructed and sited to compliment the landscape and minimise impacts on visual amenity when viewed from public places and private property.

Applicant’s Submission

Discussion

The proposed access driveway does not appropriately respond to site constraints, in particular, the proposal does not suitably respond to the topography of the site and land degradation risks, ecological and environmental qualities of the site, terrestrial biodiversity and riparian land considerations, scenic and aesthetic values of the Shoalhaven River, and also the flood hazard of the land.

Additionally, the location of the proposed access driveway is within the mapped ‘scenic protection’ area (clause 7.8 of Shoalhaven LEP 2014). It is likely that upper parts of the proposed access driveway will be visible from Shoalhaven River and the proposed development and associated earthworks and vegetation removal will detract from the scenic value of the unique river landscape.

It is considered that the proposed development does not comply with the acceptable solutions in Chapter G1 and does not comply with Performance Criteria P1.1, P1.2, P1.3 and P2.

Biodiversity Controls - Chapter G5 (Acceptable Solution A1.1 & A2.1 and Performance Criteria P1 & P2)

Acceptable solution A1.1 and A2.1 specify that:

A1.1

Native vegetation and threatened species habitats are retained in perpetuity on sites identified with high ecological value.

A2.1

Where possible avoid either directly or indirectly impacting threatened species, populations and threatened ecological communities (TECs).

Performance Criteria P1 and P2 require that:

Developments are responsive to the principles of ecologically sustainable development in relation to native vegetation and threatened species habitats.

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

Applicant’s Submission

“The purpose of this Chapter is to provide information on threatened species and their habitats to ensure the protection of these species are managed when assessing new developments.

This development application requires the removal of existing native vegetation for the construction of the access driveway. The Ecological & Riparian Issues & Assessment Report prepared by Gunninah outlines potential impacts of the required clearing on the existing flora and fauna onsite.

The Ecological & Riparian Issues & Assessment Report prepared by Gunninah concludes that if the appropriate measures are taken during the construction of the access track, there will be minimal impact on the flora and fauna onsite.

The removal of the selected native vegetation will have no significant impacts on the biodiversity present onsite, and surrounding the site.”

Discussion

Council’s Environmental Assessment Officer has noted that the submitted Ecological & Riparian Issues & Assessment Report is lacking detail. As per referral comments from Council’s Environment Assessment Officer (below) further information would be required to adequately assess the proposed development’s impact on biodiversity:

Further information is required in order for this proposal to be adequately assessed.

The Gunninah (2020) report does not adequately quantify the impact of the proposal in order for this to be assessed.

The upper portion of the proposed driveway is lined on either side with trees classified as Spotted Gum/Grey Gum Woodland. Gunninah (2020) states there will be no vegetation removal for this upper portion of the proposal however there is significant excavation including cut of up to 3.8 metres requiring retaining either side of the proposed accessway adjacent to these trees. Further assessment is required by a qualified arborist in order to assess whether excavation for the upper portion of the driveway or drilling for piers through mid-section will impact adjacent trees and if so recommend measures to minimise impact to these or state whether impacted trees will require removal.

A plan showing trees required to be removed must be included within the assessment. Any trees potentially impacted should be included within the area clearing calculations. Allocasuarina littoralis within the study area must be shown mapped as Glossy Black Cockatoo feed trees and retained and protected wherever possible.

The area of clearing is not clearly defined. The area of clearing should include all the area where the footprint of the proposed driveway intersects with mapped native vegetation as well as a suitable buffer. Any potential impacts such as root disturbance by excavation and disturbance required for site access and shading of vegetation below the suspended sections of driveway must be included. The Ecological & Riparian Issues & Assessment Report by Gunninah (2020) suggest that areas with a clear or rock understorey are not native vegetation and therefore should not be included within area of vegetation removal is incorrect and is not accepted. The Biodiversity Offset Scheme Entry Tool User Guide provides guidance on assessing the area of native vegetation clearance. https://www.environment.nsw.gov.au/-/media/OEH/Corporate-Site/Documents/Animals-and-plants/Biodiversity/biodiversity-offset-scheme-entry-threshold-user-guide-170503.pdf

The Lesryk (2017) report shows 2 hollow bearing trees within the proposed driveway footprint. If hollow bearing trees will be either be removed or impacted by the proposal further survey is required to assess whether these hollows are occupied, and the Tests of Significance need to consider this impact of habitat loss for threatened fauna species.

Tests of Significance must be conducted according to the Threatened Species Test of Significance Guidelines. https://www.environment.nsw.gov.au/-/media/OEH/Corporate-Site/Documents/Animals-and-plants/Threatened-species/threatened-species-test-significance-guidelines-170634.pdf. The Tests of Significance must be based on accurately quantified impacts such as area, or number of hollow bearing, or other trees impacted and refer to specific threatened species. All threatened species potentially impacted by the proposal must be considered.

The EP&A Act, the BC Act and Council’s LEP require proposals to avoid and minimise significant impacts wherever possible. The cliff and associated overhangs and caves as well as the mesic vegetation community and habitat provided below as well as the Shoalhaven River foreshore are particularly sensitive environments. The proposed driveway down this steep slope and cliff will have a significant impact on these features. The reasoning given for this proposal, providing access for maintenance, is dubious. Further reasoning is required to justify the proposal and how this aims to avoid and minimise impacts.

A site inspection was carried out by assessment staff and Council’s Environmental Assessment Officer on 13/8/2020 and the following observations were made with regard to biodiversity and the ecological and environmental qualities of the site:

Site observations from Assessing Officer

· The area is heavily vegetated and has natural and environmental values.

· It is likely that upper parts of the driveway will be visible from the Shoalhaven River.

· The proposed driveway will involve substantial works including approximately 2m of cut at the top of the cliff.

· The cliff face is steep and is an interesting geological landform.

· There are large rocks and boulders in the location of the proposed driveway.

· Parts of the proposed driveway will be located below cliff overhangs.

· There are a number of streams and waterfalls running down the cliff face.

· Evidence of native fauna (e.g. scat, hollows, hollow bearing trees) was observed on site and in the location of the proposed driveway.

· The bottom part of the cliff appeared to be in a healthy state and largely devoid of weeds and other exotic and intrusive plant species.

· It was observed that due to topography at the bottom of the site as well as existing vegetation, maintenance of the land would best be achieved by hand. Large machinery would not be necessary.

· The area at the bottom of the cliff to the west of the subject site has been under scrubbed which has compromised the natural habitat of that site. Under scrubbing or disruption of the land at the bottom of the cliff on the subject property through use of machinery for “maintenance purposes” (e.g. lawn mower, earth moving machinery) would have a negative environmental impact. Any maintenance of the land (e.g. weed removal) should be carried out by hand to preserve the environmental values of the site.

· It was observed that recent floodwaters had deposited large amounts of sediment and mud on the lower part of the land at the bottom of the cliff. The river alignment may also have been modified during the floods.

Site observations from Council’s Environmental Assessment Officer

· Mature spotted Gums with hollows grow above the cliff. Vegetation below the cliff line represents a unique ecotone caused by the shade of the cliff and enclosed tree canopy and waterfalls/ seepage coming down the escarpment keeping the area moist. This is characterised by a mature fig tree, tall canopy of emergent Eucalypts, a subcanopy of Coachwood and understorey of ferns and mesic (rainforest type) understorey. Native orchids (Dendrobium speciosum) grow below the cliff top. Overhangs and caves provide fauna habitat for a range of species likely to include cave roosting microbats.

· While the majority of large very mature Eucalypts and will be avoided, the construction of the raised driveway would require the removal of mature coachwood trees, one mature Syzygium paniculatum (threatened species) and rainforest type understorey species.

· The vegetation within the subject lot is in good condition with no weed maintenance required. The crown land along the river foreshore had woody weeds including wild tobacco. Removal with hand tools would be the appropriate method for weed control and would be easily achievable given the minimal extent of the weeds present. Heavy machinery should not be used in this sensitive area.

· The landowner was very interested in ‘restoring’ the riverbank with rock armouring to overcome the erosion of the bank reported to be up to 2m per year, with significant erosion in the recent flood waters. During the inspection the landowner offered more than once to pay for this himself. While there appears no good reason for this proposed driveway access to the foreshore, re stabilising the bank to create a useable area along the foreshore may be the motivation for the proposal.

· The landowner pointed out rock armouring put in place upstream in front of the adjacent property in recent years. This may be the cause of increased recession of the riverbank downstream in front of the subject property.

Additional information was requested on 15/7/2020 and 23/7/2020 requesting further information on vegetation clearing and a revised biodiversity assessment and responding to the issues raised in Council’s Environmental Assessment Officer’s referral comments. Additional information has not been received.

Based on Council’s assessment of the proposed development and likely environmental impacts, it is considered that the proposed development will have a significant adverse impact on biodiversity and environmental values of the site and river area.

It is considered that the proposed development does not comply with the acceptable solutions in Chapter G5 and does not comply with Performance Criteria P1 and P2.

Flood planning controls - Chapter G9 (Acceptable Solution A1.1, A1.2, A1.3, A1.6 & A1.8 and Performance Criteria P1)

Acceptable solution A1.1, A1.2, A1.3, A1.6 and A1.8 specify that:

A1.1	The development satisfies the requirements as shown in the planning matrix at Schedule 2 including climate change considerations.
A1.2	Buildings and structures are constructed in accordance with the flood proofing guidelines (see Supporting Document 1: Chapter G9 – Guidelines for Development on Flood Prone Land).
A1.3	Buildings and structures are constructed in accordance with the Building Code of Australia – Construction of Buildings in Flood Hazard Areas – Standard 2012. The controls in this Chapter are to be used in instances where this Chapter specifies more stringent controls; and Buildings and structures are designed to withstand the forces of flood waters in accordance with best practice engineering standards.
A1.6	Building foundations are designed by a suitably qualified geotechnical engineer to be suitable for grounds with potentially reduced bearing capacity under flooding conditions
A1.8	A report demonstrating that all performance criteria have been met is supplied with the development application.

Performance Criteria P1 requires that:

Development or work on flood prone land will meet the following:

· The development will not increase the risk to life or safety of persons during a flood event on the development site and adjoining land.

· The development or work will not unduly restrict the flow behaviour of floodwaters.

· The development or work will not unduly increase the level or flow of floodwaters or stormwater runoff on land in the vicinity.

· The development or work will not exacerbate the adverse consequences of floodwaters flowing on the land with regard to erosion, siltation and destruction of vegetation.

· The structural characteristics of any building or work that are the subject of the application are capable of withstanding flooding in accordance with the requirements of the Council.

· The development will not become unsafe during floods or result in moving debris that potentially threatens the safety of people or the integrity of structures.

· Potential damage due to inundation of proposed buildings and structures is minimised.

· The development will not obstruct escape routes for both people and stock in the event of a flood.

· The development will not unduly increase dependency on emergency services.

· Interaction of flooding from all possible sources has been taken into account in assessing the proposed development against risks to life and property resulting from any adverse hydraulic impacts.

· The development will not adversely affect the integrity of floodplains and floodways, including riparian vegetation, fluvial geomorphologic environmental processes and water quality.

Applicant’s Submission

“There is a section of the proposed access track that is estimated to be below the 1% AEP Flood Level as shown on the Maintenance Track Layout Plan prepared by SET Consultants Pty Ltd.

The proposed access driveway is considered compatible within the flood hazard area as less than 50m3 of fill will be placed below the approximated 1% Annual Exceedance Probability (AEP) Flood level with less than 1m depth. This meets the requirements of Acceptable Solution A2.2 for fill and Excavation under Section 5.2 of SCC DCP 2014 Chapter G9 – Development on Flood Prone Land. The track will not significantly affect the behaviour of flood waters, and will not introduce any potential impacts on the existing development on site and in the surrounding area. The proposed access track will be concrete sealed. Appropriate measures are proposed to avoid erosion and siltation, with the foreshore environment to be rehabilitated as part of the completion of works.”

Discussion

The proposed development comes under Development Type ‘E’ (Earthworks) in Chapter G9 of the Shoalhaven DCP 2014 and the subject land is identified as high hazard floodway. The application has been reviewed by Councils Natural Resource & Floodplain Section who have noted that as per Chapter G9 of the Shoalhaven DCP 2014 Development Type ‘E’ is unsuitable within the high hazard floodway. The application has not been supported by a merit-based flood compliance report demonstrating that the proposed development is suitable in the location with regard to the flood hazard.

Council is not satisfied that the development is compatible with the flood hazard of the land and that the development would not significantly adversely affect flood behaviour.

The proposed development does not comply with the applicable acceptable solutions in Chapter G9 and does not comply with Performance Criteria P1.

Likely impacts of development - Section 4.15(1)(b) of the Environmental Planning and Assessment Act 1979

Section 4.15(1)(b) of the Environmental Planning and Assessment Act 1979 requires that the consent authority must give consideration to the likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality.

Applicant’s Submission

“5.1 Context and Setting

The surrounding land primarily consist of rural dwellings, ancillary structures and native vegetation. The subject site is surrounded by development of a similar size and scale. Vegetation that surround the site screen surrounding properties, and reduce the visibility of the existing developments from the Shoalhaven River to the south. The proposal for an access driveway to be extended to provide access to the southern portion of the site is considered consistent with the surrounding area.

The proposed access driveway will provide access to the southern portion of site, and will allow for this area to be revegetated and rehabilitate. This will be beneficial to the surrounding area as the foreshore are is currently unmanaged and contains noxious weeds.

A Vegetation Management Plan will be submitted at Construction Certificate Stage which will

outline the proposed vegetation rehabilitation of the foreshore area. The proposal is not likely to have a negative impact on native vegetation, amenity, privacy and solar access on surrounding properties.

5.2 Public Domain

The proposed access driveway to the southern portion of the subject site will not reduce the public recreational opportunities in the locality. The proposal is consistent with the existing rural environment surrounding the site and has no impact on public recreational spaces. As the access driveway will provide access to the southern portion of the site allowing vegetation management, the view from the Shoalhaven River will be enhanced. Nothing in this proposal could be interpreted as being contrary to the public interest.

5.3 Access and Traffic

Construction equipment require to access the lower and mid areas of the construction site will be transported to site via a barge on the Shoalhaven River. It is proposed that equipment required to be floated into the lower portion of the site could be loaded at the Fairway Drive boat ramp following obtaining the necessary statutory approvals and the barge travel up the Shoalhaven River with equipment unloaded at site.

The proposed access driveway will be sealed and graded appropriately to ensure safe and effective access is achieved.

5.5 Natural Hazards

5.5.2 Flooding

The subject site is identified as being flood prone land, with part of the proposed driveway being below the 1% AEP Flood Level, as shown on the Maintenance Track Layout Plan prepared by SET Consultants Pty Ltd.

The proposed access driveway is considered compatible within the flood hazard area as less than 50m3 of fill will be placed below the approximated 1% Annual Exceedance Probability (AEP) Flood level with less than 1m depth. The track will not significantly affect the behaviour of flood waters, and will not introduce any potential impacts on the existing development on site and in the surrounding area. Appropriate measures are proposed to avoid erosion and siltation, with the foreshore environment to be rehabilitated as part of the completion of works.

5.7 Flora and Fauna

The proposed access track requires the removal of native vegetation for its construction. The level of clearing required does not trigger the BOSET threshold for native vegetation clearing, and does not require further biodiversity assessment.

The proposed access driveway will not result in the loss of any critical habitat, or significant impact on any endangered or threatened flora or fauna. An Ecological & Riparian Issues & Assessment Report prepared by Gunninah has been submitted with this application. This report outlines the potential impacts on the flora and fauna, and includes recommendations to ensure that the potential impacts are minimised, and that the ongoing vegetation management of the site is achieved.

Further assessment against the provisions of the Biodiversity Conservation Act 2016 is not required in this case.

5.13 Cumulative Impacts

Cumulative impacts of this proposal are expected to be negligible, as the project has been designed to account for the natural constraints of the site. The vegetation removal, cut and fill has been reduced as much as possible due to the proposed location, use of concrete footing and pillars and construction methodology. The cleared vegetation and cut material will be reused on site.

A positive impact the access driveway will have is that the current unmanaged area will become accessible and be able to be managed and benefit from being re-vegetated. The revegetation and rehabilitation of the southern portion of the site will be managed as per the recommendations outlined in the Vegetation Management Plan to be submitted at Construction Certificate Stage. Appropriate stormwater, sediment and erosion design has also been incorporated into the design of the access driveway to ensure the proposal will not cause any adverse impacts”

Discussion

It is considered that the proposed development would have a significant adverse impact on the natural and built environment. In particular:

Impact on natural environment – Biodiversity

The proposed development and associated earthworks and vegetation removal will have an adverse impact on the sensitive riparian environment.

The purported use of the access driveway for maintenance purposes is dubious and it is noted that existing vegetation at the bottom of the cliff escarpment is in good health and largely devoid of weeds and invasive plant species. Due to the sensitive riparian environment and existing vegetation, weed removal and foreshore management should be undertaken by hand, regular use of heavy machinery in the area would be inappropriate and would result in further environmental impacts.

Furthermore, the construction of the access driveway along the cliff face may disturb native fauna (bats, birds and other small animals) that utilise the cliff and surrounding hollow-bearing trees as habitat.

Impact on natural environment - Scenic qualities and river landscape

The area of the Shoalhaven River in which the subject site is located is unique and characterised by scenic cliff escarpments along the river. The proposed access driveway and associated earthworks and vegetation removal will likely be visible from the Shoalhaven River and will detract from the aesthetic values and scenic qualities of the river.

Impact on natural environment - Construction impacts

As noted in the submitted SEE, to enable the construction of the middle and lower areas of the access driveway, machinery and materials will be required to be barged up the Shoalhaven River to access the area at the bottom of the escarpment. This will involve access and transporting machinery and materials over the Council reserve area between the Shoalhaven River and the subject property. The construction of the access driveway may also have significant impacts on the sensitive riparian ecosystem and native flora and fauna by generating construction noise and vibration, erosion and sedimentation impacts and although through disturbance to the surrounding environment in the process of transporting materials and machinery and other construction processes.

It is considered that the development may have a significant adverse impact on the natural environment and should not be supported.

Impact on built environment – Western Bypass Corridor

Part of the access driveway is proposed to be constructed on land mapped as in the vicinity of the Western Bypass Corridor (clause 7.21). Although the proposal is not necessarily unsuitable with the clause 7.21 considerations, it is noted that the location of the proposed access driveway may be in conflict with any future road alignment constructed within the Western Bypass Corridor.

The proposed development may compromise future road alignment and the future use of the land mapped as in the vicinity of the Western Bypass Corridor.

It is considered that the development may have a negative impact on the built environment and future land uses and should not be supported.

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 and the development application being publicly advertised in local press, during the period of 29 July 2020 – 26 August 2020.

5 public objections were received in relation to Council’s notification of the development.

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

· Vegetation removal and ecological, environmental and biodiversity impacts of development, including impact on rocky outcrops

· Loss of amenity, aesthetic impacts and detrimental impact on scenic qualities of escarpment and river landscape

· Concerns relating to intended use of access driveway

· Inappropriate maintenance of foreshore reserve

· Site suitability

· Flooding impacts

· Aboriginal heritage

· Compliance with objectives of E3 – Environmental Management zone

· Compliance with requirements of Shoalhaven DCP 2014

· Geotechnical stability and safety of proposed development

· Impacts from construction works

· Impact on Western Bypass Corridor

· Development Application should have been rejected as “it is for integrated development and all property had not given consent to lodge the application”

· Inaccurate estimated value of works for proposed development

The assessment of the application considered the matters raised in the submissions and concluded that the application should be determined by way of refusal.

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

Financial Implications:

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

Legal Implications

Pursuant to section 8.2 of the EP&A Act, a decision of the Council may be subject of a review by the applicant in the event of an approval or refusal. If such a review is ultimately pursued 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

1.	The proposal is inconsistent with the objectives and requirements of State Environmental Planning Policy (Coastal Management) 2018, in that the proposal is considered to be unsuitable having regard to the considerations for development within the “coastal environment area” and “coastal use area” (section 4.15(1)(a)(i) of Environmental Planning and Assessment Act, 1979).
2.	The development application has not satisfactorily demonstrated compliance with the objectives of the E3 – Environmental Management zone in accordance with clause 2.3, Shoalhaven Local Environmental Plan 2014. (Section 4.15(1)(a)(i) of Environmental Planning and Assessment Act, 1979)
3.	The proposal is considered unsuitable with regard to the considerations of clause 7.2, and 7.8 Shoalhaven Local Environmental Plan 2014. (Section 4.15(1)(a)(i) of the Environmental Planning and Assessment Act, 1979)
4.	The development application has not satisfactorily demonstrated compliance with the relevant provisions of clause 7.3, 7.6 and 7.7 Shoalhaven Local Environmental Plan 2014. (Section 4.15(1)(a)(i) of the Environmental Planning and Assessment Act, 1979)
5.	The development application has not satisfactorily demonstrated compliance with the relevant provisions of Chapters G1, G5, and G9 Shoalhaven Development Control Plan 2014. (Section 4.15(1)(a)(iii) of Environmental Planning and Assessment Act, 1979)
6.	The development application has not adequately demonstrated that the proposal will not have adverse amenity impacts on the natural and built environment in the locality. (Section 4.15(1)(b) of Environmental Planning and Assessment Act, 1979)
7.	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)
8.	Having regard to the above matters to address the relevant provisions of Environmental Planning and Assessment Act, 1979, the granting of development consent is not considered to be in the public interest. (Section 4.15(1)(e) of Environmental Planning and Assessment Act, 1979)

Development & Environment Committee – Tuesday 06 October 2020

Page 0

DE20.121 Committee Member Recommendations for the Coastal and Floodplain Risk Management Committees

HPERM Ref: D20/413790

Section: Environmental Services

Approver: Phil Costello, Director - City Development

Reason for Report

To report on nominations received for the Coastal Management Advisory Committees and the Floodplain Risk Management Committees in the North, Central, and Southern areas of Shoalhaven, and to present the recommended committee members for adoption.

Recommendation (Item to be determined under delegated authority)

That Council:

1. Adopt the recommended committee members presented for the Coastal Management Advisory Committees in the Northern, Central and Southern areas of Shoalhaven;

2. Adopt the recommended committee members presented for the Floodplain Risk Management Committees in the Northern, Central and Southern areas of Shoalhaven;

3. Write to the successful applicants notifying them of their selection; and

4. Write to the unsuccessful applicants thanking them for their interest and encouraging them to get involved in future community engagement initiatives for both programs.

Options

1. As recommended

Implications: Allow Council to proceed with the establishment of the Committees.

2. Council could choose to not accept the recommendation

Implications: This is not recommended as it will delay Council finalising the committees and risk not meeting deadlines under the Coastal Management Program and Floodplain Management Program.

Background

The purpose of this report is to seek adoption of the recommended committee members for both the Coastal Management Advisory Committees and Floodplain Risk Management Committees, for which applications closed on 2 September 2020.

The following background is provided to assist the Council as follows:

Floodplain Risk Management Committee:

Council resolved as follows, on 30 April 2019 (MIN19.254), following a report from the Shoalhaven Coast Estuary & Floodplain Management Liaison Group on 27 March 2019.

“That Council

1. Note the following recommendations for information.

a. Note that the Floodplain Development Manual requires a committee; however, the Coastal Management Act does not require a formal committee that requires community engagement for the development of coastal management programs.

b. Adopt an alternative model for floodplain risk management, comprising three (3) Advisory Committees – North, Central and South – that would report to Council.

c. Establish an interim Shoalhaven Coast and Estuary Committee initially comprising Councillors, staff, and government agency representatives until the Coastal Management scoping study is completed.

d. Conduct focus group workshops to obtain community input during the preparation of the citywide Coastal Management Plan Scoping Study and review the model for the group after the CMP Scoping Study is complete.

e. Ensure the Shoalhaven Heads Estuary Taskforce will continue independently on the same basis as at present and be encouraged to participate in delivery of the new model.

f. Initiate a strong communication program to explain how Council is now working in accordance with the Floodplain Development Manual and the new Coastal Management Act.

2. Staff provide a report to the Ordinary Meeting outlining the legislative requirements and the reasons for a proposed alternative model for coastal and estuary issues.

3. Invite OEH and other relevant government agencies to a Councillor Briefing to explain the planning processes for flood risk management and the Coastal Management Framework.”

Part 1b. of the above is addressed in this report and an advisory committee is proposed as per the above resolution. Under the Floodplain Development Manual (2005), Council is required to establish a management committee that acts as both a focus and forum for discussion on technical, social, economic, environmental and cultural issues for floodplain risk management.

Coastal Management Committee:

On 9 June 2020 the Strategy and Assets Committee adopted the Final Shoalhaven Coastal Management Program Scoping Study (referred as The Scoping Study), with amendments following public exhibition taking into considerations community submissions, as detailed in the report and proceed with the following:

1. Formation of the proposed North, Central, and Southern Coast and Estuary Management Committees and coastal management program working groups; and

2. Seek additional grant funding where required to undertake assessments as detailed in the Scoping Study to inform the Shoalhaven Coastline/Jervis Bay, Lake Conjola, and the St Georges Basin/Sussex Inlet as priority 1 for the Shoalhaven Coastal Management Program; and

3. Council consider allocating the additional $397,500 matching funds over 2 years, $238,750 in 2020/21 and $158,750 in 2021/22 budgets, to provide 50% contribution to the above grants; and

4. Commence preparation of Tender documentation for the preparation of the Shoalhaven Coastline and Jervis Bay, Lake Conjola, and St Georges Basin/Sussex Inlet Coastal Management Programs.

Part 1 of the above is addressed in this report and an advisory committee is proposed as per the above resolution.

Terms of Reference for Coastal and Floodplain Risk Management Committee:

The existing Terms of Reference for both the Coast and Floodplain Committees were adopted on 20 July 2020 (MIN20.479).

Reference is made to a Council Report in this business paper recommending amendments to the existing Terms of Reference, where representation for Youth and the Aboriginal Community are included.

Committee Submissions Received:

In September 2019, the Floodplain Risk Management Committee opened nominations as an outcome of resolution from the 30 April 2019 (MIN19.254). Eleven (11) applications were received.

Due to the insufficient number of applications and lack of representation across the City, the Floodplain Risk Management Committee was not formed at that time. Council took the opportunity to update and align the Flood Committee Expressions of Interest (EOI) with the Coastal Committee EOI following Councillor feedback.

In July 2020, both Coastal and Flood Committees opened nominations as an outcome of the 9 June 2020 Strategy and Assets Committee adopting the Final Shoalhaven Coastal Management Program Scoping Study (referred as The Scoping Study), with amendments, and the adoption of the Terms of References on 20 July 2020 (MIN20.479).

Nominations from the community were invited from 23 July 2020 to 21 August 2020. Due to an insufficient number of nominations received to form the committees, an extension was granted until 2 September 2020.

Seventy (70) nominations in total were submitted by close of business on 2 September.

At the open of nominations in July, all previous applicants for the Floodplain Risk Management Committee from 2019 were advised they did not have to reapply. Two (2) applicants chose to re-apply, eight (8) confirmed interest in still being considered for their position, and one (1) applicant declined their continued interest as a nominee.

Councillor workshop

A workshop was held on 14 September with the Environmental Services team and Committee Chairs - Councillor White, Councillor Wells and Councillor Proudfoot to review nominations. In this workshop, the amendments to the Terms of Reference were agreed upon, as well as the preferred committee members.

Therefore, the tables below include the agreed-upon short-list of community representatives, plus an additional community Aboriginal and Youth representatives. It was agreed that 28 years old could be classified as Youth. Noting that representatives from Local Aboriginal Land Councils will also be invited to each meeting along with government agencies.

Table 1 – Proposed Coast Advisory Committees:

COASTAL

NORTH -

CENTRAL

SOUTH

Aboriginal Rep

Plaxy Rowe

(Nowra)

Graham John Connolly

(Nowra)

Adam Crossley

(Bomaderry)

Youth Rep

Samuel Dunnett (27)

(Berrara)

Jackson Green (24)

(Narrawallee)

Community Rep

Leonie Sinclair

(Culburra Beach)

Evan Christen

(Huskisson)

Monica Mudge

(Mollymook)

Community Rep

John Gould

(Cambewarra)

Christopher Grounds

(Erowal Bay)

Michael Brungs

(Lake Conjola)

Community Rep

Claude Domio

(Shoalhaven Heads)

Bob Pullinger

(Collingwood Beach/Vincentia)

Dirk Treloar

(Lake Conjola)

Community Rep

Denise Belling

(Shoalhaven Heads)

Julie Court

(Sussex Inlet/Berrara)

Allan Carle

(Lake Conjola)

Table 2 – Proposed Floodplain Advisory Committees:

FLOOD	NORTH	CENTRAL	SOUTH
Aboriginal Rep	Plaxy Rowe (Nowra)	Ronald Carberry (Orient Pt)	Adam Crossley (Bomaderry)
Youth Rep	Leonard White (North Nowra)	Zachariah Cleary (24) (Berrara)	Holly Gunton (28) (Mollymook)
Community Rep	John Gould (Cambewarra)	Richard Carpenter (Sussex Inlet)	Michael Brungs (Lake Conjola)
Community Rep	David Brawn (Berry)	David Tarbert (Cudmirrah)	Paul Mitchell (Narrawallee)
Community Rep	Mark Kielly (Nowra/Worrigee)	Peter Foggitt (Sanctuary Point)	VACANT
Community Rep	Phil Guy (Shoalhaven Heads)	Janis Natt (Sussex Inlet)	VACANT

This report has been prepared for Council to summarise submission received to join the Coastal Management Advisory Committees and the Floodplain Risk Management Committee.

The adoption of the Coastal Committee Advisory Committee will enable the Council to move forward with Stage 2 and Stage 3 of implementing a Coastal Management Plan.

Community Engagement

Advertising for the Coastal Management and Floodplain Risk Management Advisory Committees was coordinated through:

· Council’s Community Engagement platform, Get Involved Shoalhaven Coastal Management Program - https://getinvolved.shoalhaven.nsw.gov.au/CMP . Coastal Management Committees website page total visits: 442.

· Council’s Community Engagement platform, Get Involved Shoalhaven Floodplain Risk Management

https://getinvolved.shoalhaven.nsw.gov.au/floodplain-risk-management-committees . Floodplain Risk Management Committees website page total visits: 132

· Council’s website - https://www.shoalhaven.nsw.gov.au/Projects-Engagement/Major-Projects-Works/Coastal-Management-Programs

· Council Media release.

· Emails sent out to all CCBs.

· Email notifications to Bushcare network.

· Emails were sent to eight (8) Secondary schools in Shoalhaven.

· Emails sent through Council’s Community Development team to Youth and Aboriginal networks (Local Aboriginal Land Councils, Individual Aboriginal workers, 6 Aboriginal community organisations, Shoalhaven Aboriginal Interagency network, SCC Aboriginal Advisory Committee and Youth Interagency Network list (consisting of 412 contacts)

· Emails sent to previous CMP Scoping Study workshop attendees 150 recipients

· Emails sent through Council’s Frontline & Gumboots mailing lists (Frontline – 142 recipients, Gumboots 106 recipients)

· Paid and non-paid advertising through the Council’s social media channels

(1) First post 7/8/20: 6,624 people reached, non-paid

(2) Second Post 14/08/20: 5800 people reached, non-paid

(3) Third post 27/08/20: Paid advertising & 21,187 people reached

Policy Implications

The proposed North, Central, and Southern Coast and Estuary Management Committees and coastal management program working groups are an integral part to transition from its current Coastal Zone Management Plan (CZMP) and Estuary Management Plans to the development, adoption and certification of CMPs under the NSW Coastal Management Act and Manual.

The NSW Floodplain Development Manual 2005 (NSW FDM) also outlines that a floodplain risk management committee does not have formally delegated powers, rather it acts as an advisory committee only. The principal objective of the committees is to assist Council in the development and implementation of flood risk management plans for areas under their jurisdiction, as outlined by the NSW FDM.

Financial Implications

From 2021 onwards, adopted, and certified CMPs with identified management actions will be required to gain access to state and federal government funds for coastal management works. These actions will also need to be tied into Council’s Integrated Planning and Reporting (IP&R) framework, with reporting and auditing of CMP actions.

Risk Implications

Community consultation and collaboration is a key requirement for the development of Coastal Management Plans (CMP) and Floodplain Risk Management Studies and Plan. CMPs must meet the minimum standards of the Coastal Manual to gain certification by the NSW Government.

[1] Realestate.com.au, Median property prices, Berry, as at 20 August 2020