Agenda of Ordinary Meeting - 26 October 2021

Ordinary Meeting – Tuesday 26 October 2021

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CL21.211 Question on Notice - Tomerong Quarry

HPERM Ref: D21/427325

Submitted by: Clr John Levett

Clr Nina Digiglio

Question

Response to Questions on Notice 11 May 2021

The Director – City Services supplied written advice to Councillors Nina Digiglio and John Levett dated 17 June 2021 (the response) in regard to our previous questions on notice submitted on 11^th May 2021 that were deemed to be inadmissible by the CEO under the Code of Meeting Practice.

We have tendered some revised and hopefully acceptable questions based on the response and the DA90/1912 itself.

Question 1:

The response stated “Council has confirmed the development approval DA90/1912 (DS02/1087, DS03/1325 & DS06/1039) “…has not and cannot expire. It continues to exist and is capable of being modified into the future”.

(a) What is the basis of the answer in the response that the approval of DA 90/1912; “has not and cannot expire”, that is, what is the statutory or legal basis of this continuation and is it based on a particular condition or clause in the DA?

(b) Is this continuation or non-expiry standard for DA’s approved by Council or is it peculiar to this DA?

(c) Given that the actual quarrying activities as part of the DA have expired, what specific sections of the DA are not subject to expiry?

(d) Is it the contention of the Council that the DA remains in effect in perpetuity?

(e) Under what circumstances can the DA be revoked or terminated?

(f) If the DA remains in effect in perpetuity, what is the timeframe Council is using to enforce the rehabilitation requirements at the site?

The response advised “As at 10/06/2021 Council officers are still in discussions with In-Ja-Ghoondji Lands Inc regarding an application to modify the consent and a further application is expected.”

Question 2:

(a) Council in April 2018 stated they were undertaking surveys to ascertain the extent and depth of the quarry in relation to the submitted approved plans. Has that survey been completed, and can Council advise Councillors the siting/status of the excavated area against the plans.?

(a) If the quarry is shown to be extensively mined out and hence not “significantly the same” as the approved area under the existing DA will a new application be required to be a full new DA and not a s4.55 modification

The response advises in his response regarding penalties for breaches that “In an email to all Councillors dated 10/10/2017, Council advised that 19 penalty notices to the value of $114,000 were sent to the Quarry Operators on 09/10/2017 (D17/332411). In general terms, the penalties are as follows”:

i. Exceed monthly tonnage (EP&A breach - 6 penalties @ $6K each = $36K)

ii. Import waste (EP&A breach - 4 penalties @ $6K each = $24K)

iii. Early starts (EP&A breach - 1 penalty @ $6K = $6K).

iv. Unlawful transport and deposit of waste (PoEO breach – 4 penalties @ $4K each = $16K)

v. Use place as waste facility (PoEO breach – 4 penalties @ $8K each = $32K)

Question 3:

With specific regards to items ii,iv,and v above in bold, can Council advise:

(a) Did Council ever deposit broken concrete, kerbing etc at Quarry?

(b) Did Council ever deposit material suitable for overburden/rehabilitation at Quarry?

In regard to the issue of material being imported into the quarry as residents have reported numerous times to Council since 2011, the response “The importation, blending and exporting of fly ash (Qenos ash) were the subject of investigation and resulted in the issuing of penalty notices.”

Question 4.

(a) Did Council ever use this particular product or any other “blended” product in their roadworks?

(b) Did Council as part of their Tender process request/invite, condone the use of blended products from Shoalhaven Quarries (Tomerong Quarry) in their roadworks?

In response to who is responsible for rehabilitation the response reported:

a) At this time the In-Ja-Ghoondji will be required to rehabilitate the site. Council has issued orders under the EP&A Act requiring In-Ja-Ghoondji Lands Inc to submit the details. While plans have been submitted, they have not been of a standard Council could accept and In-Ja-Ghoondji Lands Inc are required to prepare and resubmit plans.

b) In the event the In-Ja-Goondji default on the order Council has a number of options available to obtain compliance with the order. These include

i. Class 4 action in the Land and Environment Court seeking a Court order for the works to be completed: or

ii. Enter upon the land, complete the works and seek a Court order for payment.

As at 10/06/2021 Council officers are still in discussions with In-Ja-Ghoondji Lands Inc regarding an application to modify the consent and a further application is expected.

Question 5

How can Council issue orders to prepare a rehabilitation plan whilst in discussions with the landowners to modify the consent and submit a further application… these statements appear to be conflicting; can Council please clarify?

Condition 6 (c) “Overburden to be used to revegetate the quarry walls”

As the DA is acted over the land, the landowner is ultimately responsible for the outcome of the rehabilitation and this overburden set aside for rehabilitation was, by its own admission, sold by the Quarry Operator and advertised on its webpage. Such sale is also evidenced by Google photographs of stockpiles diminishing. Letters from Council advising the operator to desist from selling this material as well as numerous letters of concern from Community groups and residents are on file advising of potential risks to landowners and ratepayers. When asked if Council had consulted with landowner over this the response stated, “The landowners were not included in the discussion for over-burden because this requirement rested with the person in charge of the consent (i.e., the Quarry Operator).”

Question 6.

(a) Can Council please advise what action it took with the Quarry Operator (before the DA was handed back to InjaGhoondji Lands Inc) over this sale and removal, since 2010 or earlier of material set aside as per consent conditions?

(b) Does this removal of overburden have financial implications for the landowner or ratepayers?

Bank Guarantee ( refer to 1^st Page Condition 13)

“to ensure that long- term site rehabilitation is carried out, the applicant shall enter into an irrevocable Bank Guarantee for the amount of $30,000 together with a landscape and rehabilitation completion and maintenance deed of agreement. Such documents shall be completed and submitted with the building application.”

Question 7.

Can Council please confirm the existence and registration of the above-mentioned Irrevocable Bank Guarantee and Deed of Arrangement and that it is held by Council.?

Model Litigant Penalties

The response addressed this issue in various parts as listed.

· Manager- Certification & Compliance and Director – City Development had initial discussions concerning the likelihood of success in the Local Court given that no prior regulatory action or formal warnings had been given to the operators.”

· “Mayor Amanda Findley was briefed, however was not part of any decision-making process.”

· No specific legal advice was obtained. The matter was considered under delegation and was driven by the Manager- Certification & Compliance following discussions with the Director – City Development. Both… have appropriate knowledge, skills and experienced in these matters.

Comment: Community members were told in Council, by a person involved in the investigation, that the maximum amount of penalties incurred were in the vicinity of $2 - $3 Million dollars and were issued under the above model litigant approach at $114,000. Council through the Director – City Development stated that Council must always take this Model Litigant approach.

Question 8

(a) Did Council take into account the existence of the following documents before their investigation concluded that no formal warnings had been issued to the operators of the quarry;

i. Letter from S. McDiarmid advising of legal prosecution for breach of daily haulage

ii. Matrix of complaints to SCC legal dept from S. McDiarmid seeking advice on prosecution

iii. Advice from SCC legal dept stating Matrix is very good and acceptable to institute Court Orders

iv. Letter from S. McDiarmid re illegal dam and potential removal of a state and federal endangered species

v. Court 15 Orders issued for repeatedly breaching daily exportation rates (condition 14 (h)

vi. Court 15 Orders issued for failing to construct new creek crossing despite it being a consent condition for 3 sec 96 modifications effectively giving the quarry a 17 year operational extension.

(b) Does Council consider the issues above formal warnings?

(c) Given the high profile of this issue, why wasn’t the Investigation Report of the Manager- Certification & Compliance brought to a confidential meeting of Councillors with a recommendation for consideration?

(d) Legal advice was recently sought regarding the expiration of the DA. Why was no specific legal advice obtained in regard to the penalties/investigation?

(e) Can Council please confirm that a similar model litigant approach was employed in the Court Action between SCC & SCCCR and that appropriate formal warnings were issued to SCCCR?

Asbestos

The Asbestos buried outside the quarry extraction area is on part of the land leased by Shoalhaven Quarries. A s9.22 report under the EPA Act of 1979 No 203 on the asbestos was presented to Council in which it was reported that the Operations Manager of the parent company of the Quarry operators was responsible for the commercial quantities of asbestos being buried around the adjoining area outside the quarry excavation. Asbestos was found in 5 of the 6 test holes.

The response states: “The asbestos dumping sites were not associated with the quarrying activities and are being dealt with separately with the landowners. Council has issued orders in relation to this issue, and it remains an on-going compliance matter”.

Question 9.

(a) Can Council confirm they investigated the 9.22 report fully and instigated 119J duty to declare information on the alleged offender or company?

Under the Act Council has 18 months to investigate and commence prosecution after a complaint is lodged.

(b) If not, what action did Council take to fully investigate the matter and protect the landowner from possible repatriation costs?

Background History.

DA 90/1912 was approved in 1990 by Shoalhaven City Council, and the “consent or approved use” was for the quarrying and processing of shale as illustrated on the plans submitted with development application number 90/1912, referred to as the submitted plans.

There were nineteen conditions, including sub conditions included in the approval and some are mentioned below as written.

Condition 6. (c) Overburden to be used to revegetate quarry walls;

Condition 6. (d) Revegetation and rehabilitation to keep pace with quarrying operations;

Condition 8. The applicant shall apply to the SPCC for a licence under the SPCC Act, with regard to the Clean Air ACT 1961.

Condition 9. (b) All stockpiled soil and overburden shall be suitably shaped and revegetated;

Condition 9. (c) The crushing plant shall be fitted with a water spray system which shall be activated so as to prevent excessive dust build- up;

Bank Guarantee

Condition 13.

To ensure that the landscaping and initial rehabilitation is both carried out and maintained for at least twelve (12) months following the endorsement date of the consent, and to ensure that long- term site rehabilitation is carried out, the applicant shall enter into an irrevocable Bank Guarantee for the amount of $30,000 together with a landscape and rehabilitation completion and maintenance deed of agreement.

Such documents shall be completed and submitted with the building application.

Parking and Standing Areas

Condition 15

The applicant shall provide an all-weather, dust- free carparking area on the site, capable of accommodating at least ten (10) vehicles.

Such carparking facilities shall be constructed and drained to the satisfaction of the City Engineer.

Condition 16

All machinery standing/parking areas shall be constructed to a all-weather dust-free standard and drained to the satisfaction of the City Engineer.

Advice to Applicants

(b) A building application, which is a requirement under Part X1 of the Local Government Act, 1919 as amended, together with plans and specifications, in accordance with Ordinance 70 must be submitted to and approved by Council prior to works proceeding.

Comments and known facts from above.

1. Council was and is the Consent Authority in charge of enforcing DA90/1912 consent approved use conditions, some as listed above.

2. The DA90/1912 consent did not allow for the importation of any material whatsoever.

3. The DA90/1912 consent did not allow for exportation of material other than the quarried shale.

4. The DA90/1912 consent did not allow for the blending of materials in any form.

5. Previous and current executive staff have rightly stated that the DA is acted over the land, hence the landowner is the major stakeholder in this as it was when Peter Cowman submitted the application on behalf of John M Herbert the owner of the property at the time.

Response

A report will be provided with responses to the questions.

Ordinary Meeting – Tuesday 26 October 2021

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CL21.217 Investment Report - September 2021

HPERM Ref: D21/446363

Department: Finance

Approver: Sara McMahon, Manager - Business Assurance & Risk

Attachments: 1. Investment Report - Shoalhaven City Council - September 2021 (under separate cover) ⇨

Reason for Report

In accordance with Section 625 of the Local Government Act 1993 and Clause 212 of the Local Government (General) Regulation 2021, a written report is provided to Council setting out the details of all money it has invested.

Recommendation

That Council:

1. Receive the Record of Investments for the Period to 30 September 2021 report of the Chief Executive Officer (City Performance) for information.

2. Note that Council’s total Investment Portfolio (excluding the Long-Term Growth Fund) returned 0.90% per annum for the month of September 2021, exceeding the benchmark AusBond Bank Bill Index (0.01% pa) by 89 basis points (0.89%).

3. Note the performance of the Long-Term Growth Fund as presented in the report.

Options

1. The report on the Record of Investments for the period to 30 September 2021 be received for information.

Implications: Nil

2. Further information regarding the Record of Investments for the period to 30 September 2021 be requested.

Implications: Nil

3. The report of the Record of Investments for the period to 30 September 2021 to be received for information, with any changes requested for the Record of Investments to be reflected in the report for the period to 31 October 2021.

Implications: Nil

Background

Please refer to the attached monthly report provided by Council’s Investment Advisor, CPG Research and Advisory Pty Ltd.

All investments are within the current Minister’s Order. Investments are diversified across the eligible fixed interest universe and are well spread across maturities. Available capacity exists in all terms, with medium term particularly relevant to new issues.

Portfolio Return

The Overall portfolio returned a negative -1.13% p.a. for the month of September 2021, entirely due to the negative movement of the growth fund. This will be a typical pattern, where monthly results depend entirely on stock market direction.

The investment returns excluding growth fund were a stable 0.90% p.a., exceeding the benchmark AusBond Bank Bill Index (0.01% p.a.) by +89bp.

Council’s investment in Long-Term Growth Fund returned -19.84% for the month of September 2021, which partially offset previous significant market gains, bringing year to date return to +8.06% (0.76% above the benchmark).

The Australian S&P/ASX200 fell -1.9% over the month, with ongoing lockdowns and falling iron ore prices key drags on performance of the Long-Term Growth Fund. Over the past 12 months, September was the only month to result in a fall in the S&P/ASX 200 Index with the index still closing 30.6% higher than a year prior. Australian economic data released during September confirmed the impact of lockdowns in Greater Sydney and other Australian areas. It is expected for the market to improve, as the lockdown being lifted. A weaker $A in the month also supported absolute and relative performance of the Fund.

The following graph shows the performance of Council’s Investment Portfolio (excluding LTGF) against the benchmark on a rolling twelve (12) month basis. As can be seen, performance has consistently exceeded the benchmark due to the mix of Council’s Investment Portfolio.

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The following graph shows the performance of Council’s Long-Term Growth Fund against the benchmark on a rolling twelve (12) months basis.

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Interest Earned – September 2021

The following table shows the interest earned for the month of September 2021.

Fund	Monthly Budget $	Actual Earned $	Difference $
General	98,436	89,394	(9,042)
Water	64,208	41,666	(22,542)
Sewer	30,519	23,546	(6,973)
Total excluding Long-Term Growth Fund	193,163	154,606	(38,557)
Long-Term Growth Fund	16,986	(375,102)	(392,088)
Total	210,149	(220,496)	(430,645)

The interest earned for the month of September, excluding changes in the fair value of TCorp Long-Term Growth Fund was $154,606 compared to the monthly budget of $193,163.

The fair value of TCorp Long-Term Growth Fund decreased in September by $375,102. It is important to note that it is expected that this value will fluctuate on a monthly basis and the actual return on this fund should be assessed against our budget forecast on an annual basis.

Interest Earned - Year to Date

The following table demonstrates how the actual amount of interest earned year to date has performed against the total budget.

Fund	Original Total Annual Budget $	Actual YTD $	% Achieved
General	1,159,000	257,942	22.26%
Water	756,000	137,111	18.14%
Sewer	359,333	68,313	19.01%
Total excluding Long-Term Growth Fund	2,274,333	463,366	20.4%
Growth fund	200,000	382,800	191.4%
Total	2,474,333	846,166	34.2%

The interest earned to the month of September excluding the change in fair value of TCorp Long-Term Growth Fund was $463,366 which is 20.4% of the current full year budget.

The graphs below illustrate the cumulative interest earned for the year for each fund against budget:

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Cash and Restricted Assets

RECORD OF INVESTMENTS
Cash and Investment Balances
	$	$
	September 2021	August 2021
Cash and Investments Held
Cash at Bank - Transactional Account	5,059,140	9,140,177
Cash on Hand	21,080	22,980
Other Cash and Investments	211,976,843	220,448,916
	217,057,063	229,612,073
Fair Value Adjustment	270,067	319,029
Bank Reconciliation	1,467	608,137
	271,534	927,166
Book Value of Cash and Investments	217,328,597	230,539,239
Less Cash & Investments Held in Relation to Restricted Assets
Employee Leave Entitlements	7,050,000	7,050,000
Land Decontamination	252,196	300,672
Critical Asset Compliance	839,157	881,384
Other Internal Reserves	3,007,150	2,270,848
Section 7.11 Matching Funds	311,169	311,169
Industrial Land Development Reserve	3,828,297	3,902,768
Plant Replacement	1,639,117	1,733,937
S7.11 Recoupment	22,602,739	22,720,951
Commitment To Capital Works	3,438,992	3,436,117
Total Internally Restricted	42,878,817	42,607,846

Loans - General Fund	36,149,697	39,931,078
Self-Insurance Liability	2,880,000	2,880,000
Grant reserve	1,599,038	2,716,424
Section 7.11	16,295,837	15,588,942
Special Rate Variation	3,910,870	3,910,870
Storm Water Levy	1,227,541	1,279,871
Trust - Mayors Relief Fund	161,374	161,374
Trust - General Trust	2,943,743	2,989,743
Waste Disposal	12,181,977	9,581,951
Sewer Fund	28,159,058	27,659,921
Sewer Plant Fund	4,247,063	4,253,708
Section 64 Water	21,989,656	21,825,849
Water Fund	24,579,646	25,612,707
Water Communication Towers	4,127,513	3,568,121
Water Plant Fund	5,432,456	5,466,454
Total Externally Restricted	165,885,466	167,427,013

Total Restricted	208,764,283	210,034,859
Unrestricted Cash Balance - General Fund	8,564,314	20,504,380

Restricted Asset Movements

The table below lists the major movements in Restricted Assets:

Total Cash	-13,210,643	September was not a rate instalment month.
Other Internal Reserves	+736,302	Receipt of insurance claims and receipt for the lease of the communication site at Cambewarra.
Loans - General Fund	-3,781,381	Loan funded projects are underway: Holiday Haven, Moss Vale, SEC Upgrade.
Grant reserve	-1,117,387	Expenditure on grants received for various projects (Currarong Road, Far North Collector Road, Moss Vale Road, etc.).
Section 7.11	+706,894	Receipt of developers’ contributions.
Waste Reserve	+2,600,026	Payments for domestic waste services received and allocated to the reserve.
Sewer Fund	+499,137	Receipt of income for September quarter.
Water Fund	-1,033,062	Expenditure on infrastructure.
Unrestricted cash	-11,940,066	September was not rate instalment month and major capital projects are well underway.

Liquidity Indicators

In accordance with the Liquidity Contingency Plan as endorsed by Council, the following liquidity indicators were included in the September 2021 Monthly Investment Report which will continue to enhance the transparency of Council’s financial reporting.

All liquidity ratios remain above the benchmark and Council remains in a sound financial position.

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The Unrestricted Current Ratio is an indicator used to assess the adequacy of working capital and its ability to satisfy obligations in the short term for the unrestricted activities of Council.

The ratio remains above the benchmark as at the end of September 2021 for all funds.

Unrestricted Current Ratio =

(Current Assets less all external restrictions) / (Current Liabilities less specific purpose liabilities)

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Cash Expense Cover Ratio indicates the number of months a Council can continue paying for its immediate expenses without additional cash inflow.

The ratio remains above the benchmark of 3 months as at the end of September for all funds.

Cash expense cover ratio =

(Cash equivalents, TDs and FRNs x 12) / (Payments from cash flow of operating and financing activities)

Cash Expense Cover Ratio Excluding External Restrictions takes the OLG calculation for the Cash Expense Cover Ratio and removes external restrictions to represent the amount of months Council can continue paying for its immediate expenses without resorting to external restrictions.

The ratio remains above the benchmark of 3 months as at the end of September for all funds.

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Unrestricted Cash is calculated as a total Cash and Investments, less external and Internal restrictions.

The unrestricted cash balance remains above the benchmark as at the end of September 2021 for all funds.

The benchmark is set up at 3% of budgeted cash outflows (excluding investment purchases and expenditures funded by reserves).

Financial Implications

COVID-19 has applied some pressure to Council’s financial position; however, despite this, Council’s financial position is operating in a sound manner based on the current cash position and liquidity ratios. It is also noted that revenue from interest earned forms a vital part of Council’s revenue stream.

Statement by Responsible Accounting Officer

I hereby certify that the investments listed in the attached report have been made in accordance with Section 625 of the Local Government Act 1993, Clause 212 of the Local Government (General) Regulations 2005 and Council’s Investments Policy POL19/72.

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Olena Tulubinska Date: 19 October 2021

Tenderer

Location

Coastwide Civil Pty Ltd

Albion Park

GPM Marine Constructions Pty Ltd

Chatswood

Haines Bros Earthmoving Pty Ltd

Picton

Jirgens Civil Pty Ltd

South Nowra

Pascall Group Pty Ltd

Bomaderry

Tenderer

Location

Australian Bale Press Company Pty Ltd

Tuggerah, NSW

RDT Engineering Pty Ltd

Eight Mile Plains, Queensland

Wastech Engineering Pty Ltd

Hallam, Victoria

Tenderer

Location

TNJ Turf Renos Pty Ltd

Cudmirrah

JS & IS Management Pty Ltd

Kangaroo Valley

B. Buckley & D. Seaton

Lightning Ridge

Paul & Maria Harrod Family Trust

Warilla

Ordinary Meeting – Tuesday 26 October 2021

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CL21.230 DA16/1465 - 173 Kinghorne Street and 2 & 4 Albatross Road, NOWRA - Lot 1, 29 & 30 DP 25114

DA. No: DA16/1465

HPERM Ref: D21/256010

Department: Development Services

Approver: Phil Costello, Director - City Development

Attachments: 1. Section 4.15 Planning Report (under separate cover) ⇨

2. Determination Document - 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 Street and Albatross Road

Owner: Bill Zervos and Jasmine Anne Simpson & John Irwin Gould

Applicant: Lee Carmichael Town Planning (now trading as) 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:

The application has been called in by Council (details are provided below) and has been reported on previous occasions. This is an outstanding application that requires resolution having been with Council for over four (4) years.

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)

On 6 October 2020, the Development & Environment Committee resolved (MIN20.728):

“That consideration of 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 deferred to the January 2021 Development and Environment Committee Meeting to allow Council to undertake further traffic investigations in consultation with the developer.”

On 11 May 2021, it was resolved by the Development and Environment Committee: “That the Item be deferred to the June Development and Environment Committee meeting for further consideration.” (MIN21.256).

On 1 June 2021, it was resolved by the Development and Environment Committee; “That Council receive this report as an update on the progress of the assessment of DA16/1465 and in satisfaction of the 11 May 2021 resolution of the Development & Environment Committee (DE21.50).” (MIN21.357).

Recommendation

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.

Implications: Council would have to provide reasons to support the development, having regard to section 4.15 of the Environmental Planning and Assessment Act 1979 (EP&A Act) 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.

Location Map

Aerial view of a city

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Figure 1 - Extract of the subject site in the local context.

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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 18).

· 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.

· 6 October 2020, the Development & Environment Committee resolved (MIN20.728):

Council has taken the following action in relation to the above matter, following the 6 October 2020 Council resolution:

1. 18 November 2020, relevant Council staff met to discuss critical aspects of the Development Application in particular the Traffic Management Report prepared by Jones Nicholson Consulting Engineers dated 27 February 2021 (Reference: CRPT-16020003.01B). The outcomes of the meeting were provided to the applicant on 26 November 2021 (D20/526133).

2. 21 December 2020, Council provided additional information to the applicant in the form of: Outputs from Council’s traffic modelling and Council’s requirements for a future 4 lane cross section of Albatross Road (D20/563561). Council also offered as part of the forwarding of this additional information the opportunity to meet further to ensure that all matters have been addressed relating to traffic and planning issues.

3. 15 January 2021, Council notified the applicant via email (D21/16222) that the information requested in Council’s 21 December 2020 was required to be submitted to Council in 7 days.

4. 4 February 2021, Council emailed the applicant (D21/43579) offering to meet to discuss the additional information.

5. 10 February 2021, Council notified the applicant via email (D21/52704) that the information requested in Council’s 21 December 2020 was required to be submitted to Council in 7 days as the applicant had not responded to Council in relation to the offer of a meeting and the information had not been submitted.

6. 23 February 2021, the applicant’s traffic consultant (Stephen Falkner) emailed Council, to request the following:

§ traffic data on the existing road network from their records; and

§ projected traffic data for 10-year projections (2031).

7. 12 March 2021, Council emailed the applicant’s traffic consultant (Stephen Falkner) (D21/99332) with the following:

§ Council’s most recent tube traffic count for the area; and

§ projected traffic data for 10-year projections (2031).

8. 24 March 2021, Council emailed the applicant ( D21/117366) to inform them that the application would be required to be reported to Council in the absence of a formal response to Council’s email dated 21 December 2020.

9. 31 March 2021, the applicant was emailed (D21/127622) to inform them that the additional information was required to be submitted to Council within 7 days.

10. 11 May 2021, it was resolved by the Development and Environment Committee: “That the Item be deferred to the June Development and Environment Committee meeting for further consideration.” (MIN21.256).

11. 18 May 2021, the applicant was emailed (D21/203761) to again request the additional information.

12. 27 May 2021, the applicant submitted a revised SIDRA analysis (D21/227623) for the proposed development.

13. 1 June 2021, it was resolved by the Development and Environment Committee; “That Council receives this report as an update on the progress of the assessment of DA16/1465 and in satisfaction of the 11 May 2021 resolution of the Development & Environment Committee (DE21.50).” (MIN21.357).

14. 27 May 2021, the applicant’s revised SIDRA analysis (D21/227623) was referred Council’s Development Engineers and City Services for further consideration.

15. 7 October 2021, Council staff met with the applicant and their consultant to discuss the outstanding access and traffic matters. The applicant outlined the reasoning for the proposed access and traffic assessment associated with the development as follows:

• The applicant claims that their Albatross Road treatment is adaptable for future integration into a growing network over the next 10 years. Their position is formed in the view that the future beyond this time frame is so uncertain that it is not reasonable to limit their proposal (future)

• The Albatross Road access is a compliant treatment whereas the Kinghorne street treatment is not compliant with the relevant Australian Standards. (Access)

• That potential development to the west of their proposal would need to access from Albatross Road (Driveway)

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 the 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 14m).

On 12 September 2017, the Development Committee resolved (MIN17.776) 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.

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 apartments

· 16 x 3 bedroom apartments

· 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.

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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).

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Figure 8 - Section plans of the proposed development.

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Figure 9 - Section plans of the proposed development.

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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 rezone the 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.

Proposed vehicular access and road upgrades under the DA

The proposed development has frontages to both Albatross Road (MR92), which is a classified regional road, and Kinghorne Street, which is a local road. The proposed mixed-use development has its only vehicular access from Albatross Road.

To facilitate this vehicular access, the following access and road upgrades along the Albatross Road frontage are proposed:

· 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. Swept path plans demonstrate the ability of a garbage truck to manoeuvre in the basement car park area for garbage collection.

· 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 (six (6) spaces) 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.

· 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 is to 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.

Throughout the assessment of the DA, access and traffic associated with the proposed access arrangements have been a critical issue. Council staff recently met with the applicant and their consultant to discuss the outstanding access and traffic matters. The following points summarise the applicant’s position in relation to the proposed access and traffic issues:

a) The applicant claims that their Albatross Road treatment is adaptable for future integration into a growing network over the next 10 years. Their position is formed in the view that the future beyond this time frame is so uncertain that it is not reasonable to limit their proposal.

b) The Albatross Road access is a compliant treatment whereas the Kinghorne Street treatment is not compliant with the relevant Australian Standards.

c) That potential development to the west of their proposal would need to access from Albatross Road.

The following addresses each of these issues.

a) Impacts to the road network

As a result of the development’s primary and singular access/egress from/to Albatross Road it is considered by (both) Council’s Development Engineer and City Services Engineers that the following roads proximate to the subject site (refer Figure 15) 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

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Figure 15 – Aerial image of the site indicating the roads in proximity to the site that will be impacted by the proposal

The most recent submitted revised SIDRA analysis (received 27 May 2021) was reviewed by Council’s Development Engineers and City Services who concluded that:

(a) The proposed access on Albatross Road reduces:

- lane capacity (via a reduction in width); and

- Council’s ability to adequately service the surrounding road network.

(b) Given the higher volume of traffic relative to Kinghorne Street, there is likely to be increased conflicts on Albatross Road as a result of the applicant’s current design utilising the Albatross Road access/egress arrangement.

(c) Implementation of a right turn treatment (CHR(s)) into the development on Kinghorne Street is likely to provide an opportunity to resolve the issue of increased conflicts and reduced lane capacity on Albatross Road.

(d) The application of the most current Austroads standards and turning treatments indicates that a compliant right turn treatment (CHR(s)) into the development on Kinghorne Street is achievable and will provide a compliant and suitable treatment for entry to the development from a lower order road (not the regionally classified road – Albatross Road).

(e) The approach sight distances to turning vehicles are significantly improved with the Kinghorne Street option when compared to the Albatross Road option.

(f) Access from Kinghorne Street remains City Services preferred option in terms of current and future efficient and safe operation of Albatross Road and providing a development that is compliant with cl. 101(2)(a) of ISEPP (as assessed further below), which requires vehicular access to be via a local road (Kinghorne Street), being part of the unclassified road network and to which, the site has an extensive street frontage.

Throughout the assessment of the DA, Council staff have consistently advised that development in the West Nowra region provides enough additional volume to warrant the increase of traffic expected on Albatross Road.

This section of road forms an important link to the Princes Highway and Flinders Estate, Albatross Air Base and Aviation Technology Park and on to Canberra, and the Albatross and Kinghorne Intersection is a key intersection in the Local, Regional and State Road network in the Shoalhaven.

b) Access via Albatross Road vs. Kinghorne Street

The applicant has stated that vehicular access to the site via Kinghorne Street is not practical as it is unable to be designed to be technically compliant by 2017 or 2021 standards. However, Council staff have advised the applicant that as per Austroads Guide to Road Design, a channelised right turn treatment into the site on Kinghorne Street would in fact be compliant with both 2017 and 2021 standards. The total length available along the Kinghorne street frontage is approx. 61m, the total length required for a compliant turning treatment (service vehicle) is approximately 52m leaving 9m for driveway and landscaping, confirming compliance with both Councils DCP and Austroads.

Conversely, the applicant’s proposal for left-in left-out access onto Albatross Road is non-compliant with regard to through lane and median width.

To provide a compliant design, the proposal will require a median in Albatross Road to make the left-in and left-out arrangement work. This median width together with the development not being set back from the Albatross Road boundary means all widening will be required to occur from the proposals kerb and gutter and not the centreline of the road. Accordingly, the development as proposed will require substantial resumption of land on the opposite side of Albatross Road. An indicative arrangement has been prepared by Council’s City Services to demonstrate this as shown at Figure 16.

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Figure 16 – Aerial image with overlay showing required works and acquisition that would be required to provide a compliant treatment of Albatross Road associated with access to the site off Albatross Road.

c) Potential development to the west of their proposal

The applicant has raised that, despite any future road upgrades of Albatross Road, sites to the west of their proposal will always require access from Albatross Road (see Figure 17). Accordingly, to deny access to the subject site is illogical as future development will cause impact on the road network.

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Figure 17 – Excerpt Lot Zoning Map Shoalhaven LEP 2014

To this effect, Council’s concerns are not with an additional 10-20 movements of traffic with a potential single residential site which may be developed for any of the permitted uses within the R2 Low Density Residential zone, but with a large development close to a critical intersection with 93 parking spaces and thus significantly higher turning traffic volumes.

It is further noted that the controls of the State Environmental Planning Policy (Infrastructure) 2007 do not relate to sites that have only a single frontage (as outlined below, and the sites to the west do not have a secondary frontage to a lower order local road.

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

(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 all the subsequent considerations have been met by the proposal.

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 could prevent 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).

Following a meeting with the applicant in September 2018, the applicant submitted concept plans (D18/355817) (refer to Figures 18 and 19) to demonstrate that practicable and safe vehicular access to the land can be provided by a road (Kinghorne Street) other than the classified road.

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Figure 18 - Applicant's submitted concept plan, demonstrating that access via Kinghorne Street is capable of being achieved.

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Figure 19 - Applicant's submitted concept plan, demonstrating that access via Kinghorne Street is capable of being achieved.

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).

The applicant has indicated that access via Kinghorne Street is capable of being provided by a road other than a classified road, and in accordance with subclause 101(2)(a) the consent authority must not grant consent to the development as practicable and safe, vehicular access to the land is able to be provided by a road other than the classified road.

Subclause 101(2)(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 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 has questionable 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.

It is considered that:

1. Practicable and safe, vehicular access to the land can be provided by a road (Kinghorne Street) other than the classified road (Albatross Road MR92)

2. The safety, efficiency, and ongoing operation of the classified road (Albatross Road MR92) will be adversely affected by the development as a result of:

(i) the proposed design of the vehicular access to the land, AND

(ii) the nature, volume or frequency of vehicles proposing to use the classified road to gain access to the land.

As such pursuant to the Infrastructure SEPP (2007) the Council is unable to consent to the development.

Car Parking

Residential Parking Rate

In relation to the numerical requirements for car parking for residents and visitors associated with the residential component of the development, this is set by Part 3J (Objective 3J-1) of the Apartment Design Guide. Design Criteria 1 of Objective 3J-1 requires that; the minimum car parking requirement for residents and visitors is set out in the Guide to Traffic Generating Developments, or the car parking requirement prescribed by the relevant council, whichever is less.

With regard to Council’s Development Control Plan (DCP) car parking requirements, it is noted that the subject DA was lodged with Council on 18 April 2016. Version 3 of Chapter G21: Car Parking and Traffic in Shoalhaven DCP 2014 (SDCP 2014) was adopted on 23 June 2015 and commenced on 1 July 2015. In accordance with Section 10 of SDCP 2014 Chapter 1, any application lodged before the commencement of this Plan will be assessed in accordance with any previous development control plan. Version 3 of Chapter G21: Car Parking and Traffic is technically the relevant DCP that applies to the development, being the DCP that applied at the time of lodgement of the development application.

It is noted that Chapter G21: Car Parking and Traffic Version 4, which commenced on 23 October 2020 does not apply to the development application, nor does Version 5 which has been adopted by Council at its meeting on 7 September 2021. It is highlighted however that Version 3 and Version 5 have the same parking requirements.

The tables over page, provide an assessment of the development against the applicable parking controls. The car parking rates under the car parking schedule in Chapter G21 Versions 3, 4 and 5 are all higher than the rate set by the Guide to Traffic Generating Developments, and accordingly the car parking requirements of the Guide to Traffic Generating Developments apply which requires a total of 66.1 residential and visitor car parking spaces.

Commercial Parking Rate

The car parking rate applying to the commercial component of the development is to be calculated according to Chapter G21: Car Parking and Traffic in SDCP 2014. The parking rate for commercial development has not been amended between the abovementioned versions of the DCP.

Commercial development 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 commercial car parking spaces.

Section 5.14 Loss of On-Street Car Parking – Major Developments/ Redevelopments

Section 5.14 of Chapter G21 of SDCP2014 notes 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 embayment’s and car parking restrictions, where these are directly related to the development proposal and will require these to be replaced on site.”

The design of the development including 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 Albatross Road development frontage to facilitate access. This will result in the removal of approximately six (6) on-street car parking spaces, and thus require six (6) car parking spaces to be provided within the development.

Parking assessment

Table 1 provides an assessment of the parking requirements for the development under the relevant planning controls.

The proposal includes 93 car parking spaces which complies with the applicable parking rates which requires a total of 83.23 car parking spaces.

Table 1. Parking Assessment
Guide to Traffic Generating Developments
Type	Volume	Units	Rate	Required spaces
Commercial	267	sqm	1/24sqm	11.13
Residential	8	1 bedroom	0.6	4.80
Residential	31	2 bedroom	0.9	27.90
Residential	16	3 bedroom	1.4	22.40
Visitor	55	Units	1 per 5 units	11.00
On street parking loss	6	spaces	1	6.00
			TOTAL	83.23 spaces
Shoalhaven DCP Chapter G21 Version 3 and newly adopted Version 5
Type	Volume	Units	Rate	Required spaces
Commercial	267	sqm	1/24sqm	11.13
Residential	8	1 bedroom	1	8
Residential	31	2 bedroom	1.5	46.5
Residential	16	3 bedroom	2	32
Visitor	55	Units	No requirement	0
On street parking loss	6	spaces	1	6.00
			TOTAL	103.63 spaces

Shoalhaven DCP Chapter G21 Version 4
Type	Volume	Units	Rate	Required spaces
Commercial	267	sqm	1/24sqm	11.13
Residential	8	1 bedroom	1	8
Residential	31	2 bedroom	1	31
Residential	16	3 bedroom	2	32
Visitor	55	Units	0.5 spaces per unit	27.5
On street parking loss	6	spaces	1	6.00
			TOTAL	115.63 spaces

· Suitability of proposed parking arrangements

The development is required to provide a total of 83.23 car spaces which, with 93 proposed, is compliant with the applicable parking rates. Nonetheless, it is noted that 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 20)

The development is located in a regional area. Visitors to the residential flat building and customers of the commercial component of the development are heavily reliant on private motor vehicles for transport as opposed to good, accessible, and frequent public transport. The proposed design and arrangement of the basement parking is not considered suitable for a development of this scale and will result in unacceptable impacts on Albatross Road.

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Figure 20 – 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.

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Figure 21 – 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 22 and 23).

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Figure 22 - Height plane instructions relating to the 14.0m (N2) maximum building height -
south-eastern view from Kinghorne Street.

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Figure 23 - 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 a 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 acknowledged 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 in 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 footprint 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 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 southwestern 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.

These non-compliances imply an overdevelopment of the site.

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 of direct sunlight between 9am and 3pm 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 the 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, 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 southwestern 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 should 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 set back 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 standpoint it is noted that the car park entry and access should be located on secondary streets.

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’.

3J-1 Bicycle and Car Parking

Car parking is provided based on proximity to public transport in metropolitan Sydney and centres in regional areas.

The total number of car parking spaces required for residential units = 61.1 spaces required per the Guide to Traffic Generating Development.

The car parking rate applying to the commercial component of the development is to be calculated according to Chapter G21: Car Parking and Traffic in SDCP 2014

Total of Car Spaces Required: 66.1 (residential) + 11.13 (commercial) = 77.23

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:

“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 embayment’s and car parking restrictions, where these are directly related to the development proposal and will require these to be replaced on site.”

The design of the development including 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 Albatross Road development frontage to facilitate access. This will result in the removal of approx. six (6) on-street car parking spaces.

Taking into account the on-street car parking loss along the Albatross Road frontage (six (6) on-street spaces) the development is required to provide a further six (6) parking spaces.

Total Car Spaces Required: 83.23 spaces

Total of Car Spaces Proposed: 93 spaces

The development is numerically compliant.

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.

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 that 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 of direct sunlight between 9am and 3pm 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 an 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 of 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. 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 the 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:

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 the Environmental Planning and Assessment Act 1979 (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 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. 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.

2. 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).

3. 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 applicant’s 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).

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) 5.2 Traffic.

(b) 5.4 Access.

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).

Ordinary Meeting – Tuesday 26 October 2021

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DE21.122 Development Application - DA21/1392 – Old Southern Rd South Nowra – Lot 2 DP 1065105 & Lot 28 DP 17310

DA. No: DA21/1392/4

HPERM Ref: D21/383231

Department: Development Services

Approver: Phil Costello, Director - City Development

Attachments: 1. Determination - Refusal ⇩

2. Assessment Report (under separate cover) ⇨

3. Plans - Architectural (under separate cover) ⇨

4. Plans - Landscaping ⇩

This item was deferred from the Development and Environment Committee 5 October 2021 when it was advised by a Councillor that a report from Dr Judith Stubbs was forthcoming in relatin to the development.

Staff have been in contact with the applicant who advised that the report from Dr Stubbs was forthcoming and it was the intention to distribute to Councillors. It was requested this report be forwarded to staff at the same time in order that staff had an opportunity to review.

At the time of preparing this report, no report from Dr Stubbs has been received by Council staff.

Description of Development: Staged Residential Flat Building Development (containing 56 Units, and ancillary communal facilities, internal roads and services)

Owner: Care Living Nowra Pty Ltd

Applicant: PDC Lawyers & Town Planners

Notification Dates: 23 August 2021 to 8 September 2021

No. of Submissions: Nil

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 No. DA21/1392 for a Staged Residential Flat Building Development (containing 56 Units, and ancillary communal facilities, internal roads and services) pursuant to the Shoalhaven Local Environmental Plan 2014 at Lot 2 DP 1065105 & Lot 28 DP 17310, Old Southern Rd South Nowra 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 section 8.2 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 DA, subject to the resolution of any outstanding assessment matters.

Implications: Council would need to resolve any outstanding referral matters and provide the grounds to support the proposal, that is, provide reasons to support the development, having regard to section 4.15 considerations. 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.

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Figure 1 – Location Map

Background

Proposed Development

The application seeks consent for the construction of a staged residential flat building (RFB) development consisting of 56 units across six (6) two-storey buildings, internal roads and parking facilities, communal facilities, and a fire trail in accordance with the architectural and landscape plans provided at Attachments 3 and 4.

The construction of the development is proposed to be staged in the following format:

· Stage 1: Construction of Block A including:

o construction of two buildings consisting of a total of 18 units across two levels (16 two bedroom and 2 one bedroom units);

o internal ingress/egress road to Old Southern Rd;

o gravel fire tail on the northern rear side of the development;

o communal waste enclosure servicing the development;

o communal facilities including the ‘Hub’ (to be temporarily used as a sales office during Stage 1) and village green; and

o associated resident/visitor parking facilities including 21 private parking spaces, 13 visitor spaces, and 5 spaces dedicated to the communal facilities (i.e., Hub).

· Stage 2: Construction of Block B including:

o construction of two buildings consisting of a total of 20 units across two levels (16 two bedroom and 4 one bedroom units);

o use of the Hub temporarily as a sales office until the completion of the Stage 2 construction works.

o construction of associated resident/visitor parking facilities including 17 private parking spaces and 2 visitor spaces.

· Stage 3: Construction of Block C including:

o construction of two buildings consisting of a total of 18 units across two levels (14 two bedroom and 4 one bedroom units); and

o associated resident/visitor parking facilities including 18 private parking spaces and 13 visitor spaces.

The proposed development requires the removal of 1.22ha of vegetation to permit the construction of the proposed works. Vegetation to be removed includes a mix of trees and grassland vegetation which have been identified as falling under plant community types, Plant Type Community (PCT) 1080 – Red Bloodwood / Grey Gum Open Forest and PCT 1326 – Illawarra Lowland Grassy Woodlands. Given the extent of vegetation being removed from the property, the development was required to enter into the Biodiversity Offsets Scheme and was thus accompanied by the lodgement of a Biodiversity Development Assessment Report (BDAR).

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Figure 2 – Site Plan

Figure 3 below shows the development as viewed from the internal driveway looking west. It is noted each block is made up of two buildings, one sited in a north-south orientation and one oriented east-west. The figure below depicts the east-west building for each block on the right of each elevation plan with car park areas in front of Blocks B and C.

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Figure 3 – East Elevation Plan

Subject Land

The development site comprises Lot 2 DP 1065105 & Lot 28 DP 17310 (Old Southern Rd South Nowra). Refer to Figure 1.

Site & Context

The development site:

· Has a total combined area across both lots making up the site of 8.16ha (Lot 2 – 4.17ha and Lot 28 – 3.99ha).

· Has a mixed zoning (refer Figure 4) which includes the following:

o R1 General Residential in the eastern front part of the site adjacent to Old Southern Rd – the vast majority of the proposed development is located within this portion of the site.

o E2 Environmental Conservation in the central part of the site incorporating Browns Creek – the proposed fire trail ancillary to the proposed development is located within this zone.

o B5 Business Development in the western rear part of the site beyond the Browns Creek – no works are proposed within the part of the site zone B5.

· Has approval under SF10679 for a ten (10) lot Torrens title subdivision development including nine (9) residential lots directly front Old Southern Rd, and a residue lot that wraps behind each of these lots and includes the rear of the property, being the location of the subject site. The subdivision of the nine (9) residential lot subdivision is currently under construction. Each of these lots have a rear boundary abutting the development.

· Is presently vacant and consists of a mix of cleared land in the eastern part to support the residential subdivision development, and vegetated land for the remainder of the site consisting of trees and grassland identified as plant community types PCT 1080 – Red Bloodwood / Grey Gum Open Forest and PCT 1326 – Illawarra Lowland Grassy Woodlands.

· Is traversed by Browns Creek which travels from north to south through the central part of the site.

· Is mapped as being partly flood prone land (i.e., subject to the 1% AEP flood level and flood planning level). The part of the site where the residential flat building development is proposed is not within the 1% AEP flood level but partly within the flood planning level.

· Is mapped as being bushfire prone land (Vegetation Category 2 and Buffer Area).

· Is partly mapped as containing ‘Biodiversity – Significant Vegetation’ and ‘Excluded Land’. The location of the proposed works is outside of the mapped areas which are predominantly adjacent to the Browns Creek.

· Is located within a wider emerging South Nowra urban residential area which would consist of the nine Torrens title lots being constructed adjacent to the development site and further detached residential housing located on the opposite side of Old Southern Rd.

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Figure 4 – Zoning Map

History

The following provides a description of correspondence which took place with the applicant prior to and following the lodgement of the Development Application (DA) with Council:

Event / Action Taken

Date

Pre-lodgement Meeting held with the applicant and subsequent notes provided with recommendations regarding alterations to the design to enable the development to achieve compliance with applicable requirements such as the Apartment Design Guide (ADG), which is a requirement of Councils DCP.

07.10.2020

Formal lodgement of Development Application with Shoalhaven City Council and payment of application fees.

21.04.2021

1^st Request for information (RFI) sent to the applicant – with the following matters being requested:

· amended plans addressing the following:

o secured all-weather car parking be provided to permit compliance with the ADG. This also reflects advice provided to the applicant at pre-lodgement stage.

o Secured all-weather bicycle parking be provided to permit compliance with the ADG.

o An improved landscape buffer be provided separating the internal road servicing all residential flat building units from the neighbouring approved nine (9) Torrens title lots.

· Request for the fire trail to be amended to enable it to be wholly located within the R1 zoned section of the site – noting that, given it is ancillary and incidental to the residential flat building development, such a proposal is prohibited within its present location within the E2 zone.

· Request for all communal facilities including the village green to be included as part of Stage 1 of the development.

· Request for review of the approved sewer design to ensure the proposed development is capable of being serviced by this infrastructure.

06.05.2021

Applicant response to 1^st RFI Request provided with the following responses given to Council’s request:

· No amended plans were provided with the following instead being noted:

o No alteration to the design of the parking areas provided.

o Requested bicycle parking spaces provided on amended Landscape Plans.

o Amended Landscape Plans provided.

· No alteration to the location of the fire trail provided. The applicant advised that the fire trail should be a separately defined use – Emergency Management Facility

· Agreement provided that the village green should form part of Stage 1.

· Confirmation provided as part of response that there is sufficient capacity within the sewer design to cater for the proposed development.

07.06.2021

2^nd RFI sent to the applicant following consideration of the response – with the following matters being requested (reiteration of matters raised as part of 1^st Request that were not adequately addressed):

· Request for amended plans addressing the following:

o Reiteration of request for secured all-weather car parking to be provided for the development to permit compliance with the ADG.

o Request for secured all-weather bicycle parking be provided for the development to permit compliance with the ADG, noting that the plans provided did not demonstrate that it would be all-weather.

o Request for an improved landscape buffer and increased width to 1.5m to match that required for medium density developments per Chapter G13 of the Shoalhaven Development Control Plan 2014 (SDCP 2014).

· Advice provided to the applicant that Council finds that the fire trail is effectively part of the Residential Flat Building development given it is ancillary and incidental to the overall development (noting that it would not be required were a development not proposed and that it would be for the sole purpose of the development).

13.07.2021

Applicant response to 2^nd RFI Request reiterating their response provided in the 1^st Request:

· Request for amended plans addressing the following:

o Applicant advice that the Apartment Design Guide should not apply to the development and that they consider that the proposed parking area complies with the Apartment Design Guide, particularly as it relates to 3J-5.

o Advice provide that the bicycle parking is located in an accessible location.

o Applicant reiteration that a 1m vegetation strip separating the internal road from the adjacent residential lots is sufficient

Advice provided by applicant reiterating that the fire trail should be a separately defined use and stating why such a trail should be needed.

23.07.2021

Internal and external referrals requested.

23.08.2021

Completion of notification period.

The application was notified for a period of two weeks in accordance with the Community Consultation Policy. No submissions were received during the notification period. (Note: the adjoining nine (9) residential lots have not been registered yet and are still on Council record as being under the ownership of Care Living Nowra Pty Ltd.)

08.09.2021

Recommendation for refusal provided to the October Development and Environment Committee Meeting.

Issues

Prohibited Use – Residential Flat Buildings within Zone E2 – Environmental Conservation of the Shoalhaven Local Environmental Plan 2014

In accordance with the submitted architectural plans located at Attachment 3 to this Report, the proposed development is primarily contained within the R1 General Residential Zone in accordance with the Shoalhaven Local Environmental Plan (SLEP) 2014, where such a development is permissible with consent – see land use table below:

2 Permitted without consent

Home occupations

3 Permitted with consent

Attached dwellings; Boarding houses; Boat launching ramps; Boat sheds; Building identification signs; Business identification signs; Centre-based child care facilities; Community facilities; Dual occupancies; Dwelling houses; Emergency services facilities; Environmental protection works; Exhibition homes, Exhibition villages; Group homes; Home-based child care; Home businesses; Home industries; Hostels; Jetties; Multi dwelling housing; Neighbourhood shops; Office premises; Oyster aquaculture; Places of public worship; Pond-based aquaculture; Recreation areas; Registered clubs; Residential flat buildings; Respite day care centres; Roads; Semi-detached dwellings; Seniors housing; Sewerage systems; Shop top housing; Tank-based aquaculture; Tourist and visitor accommodation; Veterinary hospitals; Water supply systems

4 Prohibited

Farm stay accommodation; Any other development not specified in item 2 or 3

However, part of the residential flat building development (being the ancillary gravel fire trail – see Figure 2) is located within the adjoining E2 Environmental Conservation Zone pursuant to the SLEP 2014 – where such a development is a prohibited use – see Land Use Table below:

2 Permitted without consent

Nil

3 Permitted with consent

Bed and breakfast accommodation; Boat sheds; Dual occupancies (attached); Dwelling houses; Eco-tourist facilities; Emergency services facilities; Environmental facilities; Environmental protection works; Home businesses; Oyster aquaculture; Recreation areas; Research stations; Roads; Sewerage systems; Water recreation structures; Water supply systems

4 Prohibited

Business premises; Hotel or motel accommodation; Industries; Multi dwelling housing; Pond-based aquaculture; Recreation facilities (major); Residential flat buildings; Restricted premises; Retail premises; Seniors housing; Service stations; Tank-based aquaculture; Warehouse or distribution centres; Any other development not specified in item 2 or 3

As such there is difficulty with the road as it is fundamentally a prohibited use [being intrinsic to the development of a residential flat building(s)] and cannot be approved in its present form.

Council’s position that the fire trail is not a separately defined use but subservient to the overall purpose of a Residential Flat Building development is further clarified in the NSW Land and Environment Court decision Site Plus Pty Limited v Wollongong City Council and anor [2011] NSWLEC 1371, where Brown ASC dismissed an appeal for use of part of a disused quarry for a resource recovery facility. The decision has relevance to the subject application as it required use of a road over adjoining property to which the overall proposed use was prohibited on this particular land:

“26 The question of permissibility arises from the proposed access to Lot 2. The proposal provides for access from Five Islands Road over Lot 41 and 42 to Lot 2. While Lot 2 is not landlocked and has a street frontage to Jarvie Road, access to this street is not proposed. Access over Lot 41 is via an existing right of way, and access over Lot 42 (owned by the council) forms part of the lease of Lot 2 that the applicant proposes to enter into, if approval to the development application is granted.

27 There was agreement that the proposed development is permissible, and that there was also agreement that the proposed development was a prohibited use on Lot 41 and 42 as it was not included in Schedule 2. The only reference in Schedule 2 being to Lot 2.

31 Mr Clay SC, for the second respondent, relies on the decision in Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400, where access was provided to a shopping complex and ancillary facilities on commercially zoned land over land zoned residential. In this case it was held that the access was part of the purpose of a shopping complex, and as such, prohibited in the residential zone.

32 In considering the competing submissions, I agree with the conclusions of Mr Clay. The general approach to characterisation for planning purposes is best set out by Preston CJ in Chamwell, where his Honour includes the relevant cases and relevantly states, at 27 and 28:

27. In planning law, use must be for a purpose: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534-535, and Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 80 LGRA 173 at 188. The purpose is the end to which the land is seen to serve. It describes the character which is imparted to that land at which the use is pursued: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534.

28. In determining whether land is used for a particular purpose, an enquiry into how that purpose can be achieved is necessary: Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493 at 499-500. The use of land involves no more than the 'physical acts by which the land is made to serve some purpose' at 508.

The decision by Brown ASC in Site Plus Pty Limited v Wollongong City Council and anor [2011] NSWLEC 1371 and other cited cases, form the basis for the position that the fire trail is appropriately categorised as part of the overall development for the purpose of an RFB.

Having regard for the above, the proposed use being ‘Residential Flat Building’ is permissible with consent within Zone R1 – General Residential however is prohibited within Zone E2 – Environmental Conservation.

Applicant’s Submission

The applicant has made the following submissions regarding the location of the fire trail within the E2 zoned portion of the land and has advised that it should be considered as a completely separate and independent function to the residential flat building development and should be a separately defined use known as an ‘Emergency Services Facility’. This use is defined by the SLEP 2014 as follows:

“emergency services facility means a building or place (including a helipad) used in connection with the provision of emergency services by an emergency services organisation”.

In particular, the applicant made the following comments:

“The fire trail is proposed as an emergency services facility, which is permissible in the E2 zone. The Rural Fire Service is an emergency service facility.

While it is recognised that the proposed fire trail will service the residential development proposed, it is not accurate to say that it will solely benefit this development. The fire trail will provide maintenance access, as well as firefighting access to the western part of the site to the benefit of all residential development in the area.

The proposed fire trail provides a fuel-reduced area directly adjacent to the building. It serves as part of the firebreak as well as providing a physical platform from which fire suppression and mitigation related activities may be undertaken by firefighting agencies.

The trail also provides vehicular access to the E2 zoned portion of the site that is subject ongoing monitoring and management under the approved vegetation management plan”.

Discussion

The above position is not supported for the following reasons:

· Council’s consideration regarding the characterisation of the fire trail being part of the primary purpose of a residential flat building is based upon an established legal position formed as part of NSW Land and Environment Court decision Site Plus Pty Limited v Wollongong City Council and anor [2011] NSWLEC 1371.

· The fire trail would not be constructed were it not for the residential flat building development being proposed, which demonstrates that it is entirely ‘subordinate’ and ‘reliant’ on the development. In accordance with the SLEP 2014, it is therefore required to be considered as ancillary to the development (residential flat buildings) and therefore cannot be classified as a separate independent and primary land use.

· The fire trail only extends to the boundaries of the development site and thus services no other properties besides the subject site and the residential flat building development. There is no overriding purpose or community benefit for the fire trail other than to service the proposed development on the subject site only.

· Residential flat buildings are prohibited within the E2 Environmental Conservation Zone and therefore the ancillary and incidental fire trail is not permitted to be considered for approval.

· Given the proposal is described as a prohibited use, it also results in non-compliance with the objectives for the Environmental Conservation Zone as follows:

Objective

Comment

To protect, manage and restore areas of high ecological, scientific, cultural, or aesthetic values.

Inconsistent. The construction of a gravel fire trail ancillary to a residential flat building does not assist in the protection, management, and restoration of areas of high ecological, scientific, cultural, or aesthetic values.

To prevent development that could destroy, damage, or otherwise have an adverse effect on those values.

Inconsistent. The construction of a gravel fire trail ancillary to a residential flat building does not assist in the prevention of damage to or destruction to those values.

To protect water quality and the ecological integrity of water supply catchments and other catchments and natural waterways.

Inconsistent. The construction of a gravel fire trail ancillary to a residential flat building does not assist in the conservation or restoration of native vegetation.

To protect the scenic, ecological, educational, and recreational values of wetlands, rainforests, escarpment areas and fauna habitat linkages.

Inconsistent. The construction of a gravel fire trail ancillary to a residential flat building does not assist in the protection of scenic, ecological educational and recreational values of wetlands, rainforests, escarpment areas and fauna habitat linkages.

To conserve and, where appropriate, restore natural vegetation in order to protect the erosion and slippage of steep slopes.

Inconsistent. The construction of a gravel fire trail ancillary to a residential flat building does not assist in the conservation or restoration of native vegetation.

Non-Compliance with Chapter 2 – General Environmental Considerations of the Shoalhaven Development Control Plan 2014 (SDCP 2014)

Council is required to take into consideration the provisions of Chapter 2 General Environmental Considerations of the SDCP 2014, in particular as it relates to ‘Crime Prevention Through Environmental Design’ (CPTED) principles.

CPTED incorporates basic design principles which contribute to the safety and security to users and the community and seek to minimise crime risk. There are four broad principles of CPTED: surveillance, access control, territorial re-enforcement, and space management.

As part of Council’s considerations as to whether the proposed development achieves compliance with the CPTED principles, the development is required to demonstrate compliance with the following objectives:

“i. enhance and improve community safety;

ii. encourage a built environment that encourages a sense of community safety;

iii. address community safety and crime prevention;

iv. minimise crime risk in the City of Shoalhaven; and

v. prevent the opportunity for crime and antisocial behaviour.”

Council’s assessment of the proposal has concluded that the proposal does not adequately demonstrate compliance with the CPTED principles specifically with regard to the proposed at grade carparking areas.

Applicant’s Submission

“The proposed development achieves compliance with the design guidance for objective 3J-5 and it is considered the proposed layout achieves an improved CPTED outcome by avoiding enclosed entrapment spaces (basements) outside of high traffic and CBD areas. Should Council require secured access to the parking areas the design could be amended to include gates across the entry and exit points from Old Southern Road.”

Discussion

The assessment concludes that the proposed development does not satisfy the objectives for CPTED and therefore represents a departure to Chapter 2 of the SDCP 2014 for the following reasons:

· Providing at grade car parking, located at the rear of the nine (9) residential lots facing Old Southern Road, which is accessible for all, provides areas of concealment and provides opportunity for crime and antisocial behaviour, is directly contrary to the objectives for CPTED.

· Alternatively, the provision of secured, all weather car parking (i.e., such as a basement car park, garaging in association with dwellings) would provide for appropriate levels of access control through security access doors / boom gates, individual doors, etc. However, the applicant has not proposed any methods of access control to separate the proposed on-grade parking area from the general public.

· The construction of secured all weather car parking would also afford the opportunity for better passive surveillance of the car parking area through the use of CCTV cameras. Given the wide expanse of on-grade parking proposed, opportunities for CCTV coverage of the entire car parking area are minimal.

· The construction of secured, all weather car parking also affords the opportunity for the level of lighting within the car parking to be managed and also for any light spill to be avoided. The applicant has not submitted a car parking lighting plan which explains how the wide expanse of on-grade parking would be appropriately lighted for security purposes.

· The assessment finds that any extensive on-grade lighting regime could potentially cause considerable amenity impacts due to light spill affecting the neighbouring nine (9) Torrens title lots which are adjacent to the car park and internal driveway areas.

· The assessment finds that there are improved options for space management available. The relocation of on-grade parking to a secured, all weather facility would provide increased opportunity for internal communal recreation facilities – which would result in the improvement in function of the space and increase the opportunities for passive surveillance within the development

Non-Compliance with Acceptable Solution 2.2 and Performance Criteria P2.2 of Chapter G3 – Landscaping Design Guidelines of the Shoalhaven Development Control Plan 2014

The proposed development is required to be assessed against the applicable provisions of Chapter G3: Landscaping Design Guidelines. In general, Chapter G3 requires that any development other than a single dwelling house is required to be accompanied by a Landscape Plan prepared by a qualified designer. Such a Landscaping Plan has been submitted by the applicant (refer Attachment 4 to this Report).

The Landscape Plan is also required to address specific criteria within Chapter G3 which includes Acceptable Solution A2.2 and Performance Criteria P2.1 and P2.2, which states the following:

“The landscape plan must:

· Relate to the site plan for the proposed development.

· Address P2.1 and P2.2.

· Include the landscape plan and planting schedule requirements at Section 6.1 of this Chapter, as appropriate to the scale of the development”.

The submitted landscape plan relates to the site plan associated with the development and has been accompanied by a planting schedule consistent with the requirements. However, Council is required to also assess the landscaping against Performance Criteria P2.1 and P2.2 of the Chapter G3 as follows:

“The landscape plan:

· Is designed to meet user requirements taking into account maintenance, exercise opportunities, shade provision and aesthetic quality.

· Enhances the appearance of the streetscape through the provision of substantial landscaping to the street frontage.

· Integrates the development into the streetscape”.

“The landscape plan:

· Specifies the location and species of trees, shrubs, and ground cover.

· Uses vegetation types and landscaping styles that blend the development in with the streetscape

· Complements the functions of the street and reinforce desired traffic speed and behaviour.

· Is an appropriate scale relative to both the street reserve width and the building bulk.

· Considers personal safety (safety by design) by ensuring good visibility and lighting at dwelling entries, along paths and driveways and avoids shrubby landscaping near thoroughfares.

· Contributes to energy efficiency and amenity by providing substantial shade in summer especially to west facing windows and open car park areas and admitting winter sunlight to outdoor and indoor living areas.

· Improves privacy and minimises overlooking between dwellings.

· Minimises risk of damage to proposed buildings, overhead and underground power lines and other services.

· Minimises the risk of damage due to bushfire if the land is within a bushfire prone area as mapped by Council.

· Retains or plants mature shade trees to assist in reducing the urban heat effect.

· Reduces the removal of native vegetation and dominant locally occurring native trees”.

Assessment has highlighted that the proposed 1m wide landscape strip between the proposed development and the adjoining nine (9) residential lots (excerpt shown at Figure 5) does not comply with the DCP controls.

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Figure 5 – Excerpt of proposed Landscape Plan highlighting proposed 1m strip landscaping

Applicant’s Submission

“We believe the densely vegetated 1m landscape strip provided is acceptable given the low traffic volumes and location of the site.”

Discussion

The development is non-compliant with Performance Criteria P2.1 and P2.2 of Chapter G3 – Landscaping Design Guidelines for the following reasons:

· The proposed landscaping does not minimise overlooking of the proposed building towards neighbouring properties (being the nine approved and under construction Torrens title residential allotments).

· The narrow nature of the landscaping strip, being only a depth of 1m, separating the Torrens title lots from the adjoining internal road and nearby two storey RFBs will provide inadequate screening, noting the Landscape Plan is shown to consist of only hedge species and a single tree per every 20m of road length.

· The landscaping strip separating the adjoining Torrens title lots and internal road is not considered to be of an appropriate scale relative to both the street reserve width and the building bulk. This is given the internal road is likely to service a minimum of 504 vehicle trips per day (based upon a minimum of nine vehicle trips per dwelling as specified by the RMS Guide to Traffic Generating Developments) and the considerable impacts upon amenity that would be created should an insufficient buffer, including landscaping be provided within this location.

Non-Compliance with Acceptable Solution 32.2 and Performance Criteria P32.2 of Chapter G13 – Medium Density and Other Residential Development of the Shoalhaven Development Control Plan 2014

In accordance with Chapter G13 – Medium Density and Other Residential Development of the SDCP 2014, residential flat building developments consisting of up to two storeys such as that proposed on the site, are required to consider the provisions of the Apartment Design Guide (ADG) per Acceptable Solution A32.2 as follows:

“A32.2 Where SEPP 65 does not apply (see clause 4 of SEPP 65), the development must be designed in accordance with the Apartment Design Guide.”

A full assessment of the proposed development against the Apartment Design Guide is contained in the Assessment Report at Attachment 2 to this Report. However, Council notes that non-compliances with three objectives of the Apartment Design Guide which are summarised as follows:

Objective 3C-1 Opportunities for people to be concealed should be minimised.

The provision of on-grade parking (which represents a non-compliance with Objective 3J-5) has resulted in the following issues which represent a concern from a CPTED perspective and could potentially lead to the concealment of people:

· As opposed to basement parking which has more appropriate means of access control such as the use of boom gates and/or fob only access for residents, on grade parking does not have the same opportunity for access control where spaces can be accessed by the general public or anyone walking past.

· Similarly, garages and access thereto are controlled by occupants. Many modern garages have an internal access point. (The design of the development however will influence how a development is characterised (legally defined) and thus assessed.)

· Use of CCTV cameras within a development decreases the opportunity for concealment given the level of surveillance it provides and also acts as a deterrent to criminal behaviour where people may otherwise be looking for opportunities for concealment. Given the wide expanse of on-grade parking proposed, opportunities for CCTV coverage of the entire car parking area are minimal, which therefore creates possibilities for concealment.

· The applicant has not submitted a car parking lighting plan which explains how the wide expanse of on-grade parking would be appropriately lit for security purposes. This lighting has potential amenity impacts for adjoining residences and as such should be assessed prior to determination.

· The distance of the parking spaces to resident front doors exceeds 50m for some dwellings. Given the extent of this separation, opportunities for concealment are created given the lower level of surveillance afforded to residents of their parking spaces.

· The relocation of on-grade parking to a secured, all weather facility would provide increased opportunity for internal communal recreation facilities – which would result in the improvement in function of the space and increase the opportunities for passive surveillance within the development.

Objective 3D-3 Communal open space should be well lit.

A detailed lighting design plan is required to demonstrate compliance with CPTED principles and gauge potential impact on adjoining properties.

In the absence of a plan, Council cannot be satisfied that the communal open space areas, pathways leading from car parks to buildings, and other internal areas would be sufficiently lit.

Given the location of the nine (9) Torrens title lots within close vicinity to facilities such as the internal road, there is also concern that extensive lighting of all on-grade areas of the development would potentially lead to light spill / nuisance for neighbours and thus negative amenity impacts for future residents of those lots.

Objective 3J-5 – On-grade car parking should be avoided.

The applicant has provided wide expanses of on-grade parking in a situation where the provision of such parking is avoidable, representing a non-compliance with Objective 3J-5.

Council made the following requests for the provision of secured, all-weather parking be provided by the applicant:

· Pre-Lodgement Meeting Notes issued to applicant dated 7^th October 2020.

· 1^st RFI sent to applicant on 6^th May 2021.

· 2^nd RFI sent to applicant on 13^th July 2021.

Despite Council’s repeated requests for the provision of a secure, all-weather parking facility, application as lodged provides the same on-grade parking design as was presented at pre-lodgement stage and has not altered the development to permit compliance with the objective.

Council notes that the non-compliance with the objective has resulted in the following issues being present with regard to the design of the development as it relates to the on-grade car parking:

· It results in an impracticable design having regard for the significant length residents are required to walk to get from their designated car space to the front door – with no weather protection. The distance in some instances is greater than 50m. This is of particular concern for elderly residents and young families, particularly in instances of inclement weather.

· Remote car parking, lack of cover i.e., weather protection and associated inconvenience of such an arrangement are not commensurate with modern living expectations and standards in newly designed and modern developments. This goes to providing a reasonable and basic level of amenity for occupants, regardless of socio-economic status. Further, garaging and the like can also provide for storage of household items (assuming appropriate design and dimensions).

· It results in a less attractive design appearance, in that the car parking areas represents one of the most visible design elements of the development as highlighted in Figure 6 below.

· The inclusion of on-grade parking has resulted in the total footprint of the development being expanded, which has resulted in the need for the fire trail to be located within the E2 Environmental Conservation zoned portion where such a development is prohibited.

· The areas presently taken up by on grade parking would be reclaimed for use as part of the development – which would be an improved and more efficient design outcome. Such areas could be utilised for further residential development or the provision of an improved network of recreational and communal areas. This would possibly enhance residential amenity of occupants.

· The design results in concerns from a CPTED perspective, given the lack of access control, the lack of lighting, and the lack of night-time surveillance opportunities.

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Figure 6 – Site Plan highlighting proposed parking areas (See also Attachment 4 (Landscaping) to this report)

Applicant’s Submission

“It should be noted that the proposed development is intended to provide affordable housing to residents of the Shoalhaven. As mentioned in the SoEE the open, at-grade parking spaces are considered appropriate for this style of development for the following reasons:

· It reduces construction costs, allowing for the final product to be delivered as a more affordable housing option;

· Reduces environmental impacts by limiting excavations and minimises maintenance costs; and

· Provides greater opportunity for passive surveillance than basement parking and with appropriate landscaping offers reduced opportunities for concealment thereby resulting in a better outcome with reference to crime prevention through environmental design principles.

· Parking spaces are sealed, line marked and located in areas where passive surveillance is available”.

Discussion

Attachment 4 contains the landscaping plans and site layout (particularly the car parking layout and distribution across the site) in additional detail.

Noting that the proposed development does not achieve compliance with Acceptable Solution A32.2 of Chapter G13 – Medium Density and Other Residential development of the SDCP 2014 and applicable provisions of the ADG, City Development also found that the proposal did not achieve compliance with Performance Criteria P32.2 of Chapter G13, which states the following:

“Development is liveable, protects surrounding amenity and promotes resident amenity”.

The proposed development is found to be non-compliant with the Performance Criteria P32.2 of Chapter G13 for the following reasons:

· The proposed development is not considered to protect surrounding amenity as the buffer between the development and the nine (9) adjacent Torrens title lots is considered to be in adequate for amenity and liveability to be maintained.

· Resident amenity is not promoted by the provision of on-grade parking which has a significant impact upon the amenity of the site and reduces the amount of communal recreation space which would otherwise be available.

· The design creates opportunities for concealment, noting the lack of lighting, access control, and night time surveillance proposed.

· The car parking design reduces amenity for residents, noting that some residents will have a path or travel distance of up to 50m from their designated parking space to their front door. This is considered unacceptable noting that some residents may be elderly, or have young children, and is inappropriate to protect residents in times of inclement weather.

It is further noted that the proposal is not for affordable housing. The EP&A Act defines affordable housing as follows—

“affordable housing means housing for very low-income households, low-income households or moderate-income households, being such households as are prescribed by the regulations or as are provided for in an environmental planning instrument.”

The justification that the proposed parking layout is for the purposes of affordable housing is inaccurate as the proposal has not been lodged utilising the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009, there is no proposal to restrict any portion of the development to be used for the purposes of affordable housing, and it is not proposed to be managed by a registered community housing provider.

Furthermore, there is no mechanism in which Council can require the development to be used for the purposes of affordable housing.

If the development truly is intended for very low-income households, low-income households, or moderate-income households, ‘affordable housing’ should not be a reason for substandard design and poor amenity, but conversely should be an imperative for adhering to CPTED principles, ensure the design creates a safe environment for all, and deters crime.

Noncompliance with the SDCP Performance Criteria and Acceptable Solutions, and the Apartment Design Guide, form reasons for the recommended refusal of the application.

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:

Nil public submissions were received in relation to Council’s notification of the development.

The notification was made for a period of two weeks between 23^rd August 2021 and 8^th September 2021 in accordance with Council’s Community Consultation Policy with letters being sent to surrounding property owners.

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

Summary and Conclusion

The assessment of the application has identified that the proposal is partially prohibited development with regard to the proposed gravel fire trail situated within the E2 Environmental Conservation Zone, and there are several departures to SDCP 2014 and the ADG which result in poor design outcomes, unacceptable residential amenity for future residents and impacts on the amenity of the adjoining residential subdivision.

The applicant has provided a response to the matters outlined which includes a planning basis to each item.

While design changes could be made to resolve the issues, for instance in the form of a basement car park, relocation of the fire trail within the R1 General Residential zoned land, and improved landscaping; the applicant has not shown a willingness to make significant amendments to the design, despite Council staff providing opportunity for this to occur.

As the application as it stands is not currently considered capable of support it is recommended the proposal be refused for the reasons outlined in the attached draft determination notice at Attachment 1.

1.	Barker Reserve – Burrill Lake – Parkcare Action Plan	Burrill Lake	New
2.	Burrill Lake Lions Park – Parkcare Action Plan	Burrill Lake	Updated
3.	Valley Drive Reserve – Conjola Park – Parkcare Action Plan	Conjola Park	New

DA	Lot	DP	Street Name	Suburb	Post Code	Description	Standard Varied	Extent of Variation	Decision	Date
DA20/1413	1	831274	Church St	Ulladulla	2539	Residential Flat Building – 22 units	Height	33%	Approval	3/8/2021
SF10873	5	803450	Yeovil Drive	Bomaderry	2541	Subdivision of existing dual occupancy	Lot size	12.6%	Approval	14/7/2021

Planning for an opening	The lake stabilises at or above 0.8m AHD for a period of three consecutive months
Open lake to sea	10-day-mean¹ water level is reached or exceeded and maintained at or above 0.8m AHD for more than three consecutive months.

Action	Current Draft Entrance Management Plan (EMP)	Licence Application	Licence Granted
Get Ready	0.8m AHD	0.7m AHD	0.7m AHD
Prepare Pilot Channel	0.9m AHD	0.8m AHD	0.8m AHD
Planned Opening	1.0m AHD	0.9m AHD	1.0m AHD

Proposed Trigger in REF		Trigger in Licence
Trigger	Action	Trigger	Action
Where the lake entrance is closed, and water quality degradation becomes apparent	SCC will undertake a risk assessment in accordance with Guidelines for Managing Risks in Recreational Water (NHMRC 2008)	Red alert level¹ as described in Guidelines for Managing Risks in Recreational Water (NHMRC 2008)	Liaison with DPI – Fisheries and Crown Land
Risk assessment results in a red alert¹	SCC will consult with the Department of Primary Industries – NSW Fisheries and Crown Land to deem opening the lake is appropriate. Concurrence from both agencies would be obtained prior to opening.	Red alert level¹ (NHMRC 2008) and concurrence from DPI Fisheries and Crown Lands has been received.	Open lake to sea