Agenda of Ordinary Meeting - Tuesday, 12 November 2024

Ordinary Meeting

Meeting Date: Tuesday, 12 November, 2024

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

Time: 5.30pm

Membership (Quorum - 7)

All Councillors

Please note: The proceedings of this meeting (including presentations, deputations and debate) will be webcast, recorded and made available on Council’s website, under the provisions of the Code of Meeting Practice. Your attendance at this meeting is taken as consent to the possibility that your image and/or voice may be recorded and broadcast to the public.

Shoalhaven City Council live streams its Ordinary Council Meetings and Extra Ordinary Meetings. These can be viewed at the following link

https://www.shoalhaven.nsw.gov.au/Council/Meetings/Stream-a-Council-Meeting.

Statement of Ethical Obligations

The Mayor and Councillors are reminded that they remain bound by the Oath/Affirmation of Office made at the start of the council term to undertake their civic duties in the best interests of the people of Shoalhaven City and to faithfully and impartially carry out the functions, powers, authorities and discretions vested in them under the Local Government Act or any other Act, to the best of their skill and judgement.

The Mayor and Councillors are also reminded of the requirement for disclosure of conflicts of interest in relation to items listed for consideration on the Agenda or which are considered at this meeting in accordance with the Code of Conduct and Code of Meeting Practice.

Agenda

1. Acknowledgement of Country

Walawaani (welcome),

Shoalhaven City Council recognises the First Peoples of the Shoalhaven and their ongoing connection to culture and country. We acknowledge Aboriginal people as the Traditional Owners, Custodians and Lore Keepers of the world’s oldest living culture and pay respects to their Elders past, present and emerging.

Walawaani njindiwan (safe journey to you all)

Disclaimer: Shoalhaven City Council acknowledges and understands there are many diverse languages spoken within the Shoalhaven and many different opinions.

2. Moment of Silence and Reflection

3. Australian National Anthem

4. Apologies / Leave of Absence

5. Confirmation of Minutes

· Ordinary Meeting - 28 October 2024

· Extra Ordinary Meeting - 5 November 2024

6. Declaration of Interests

7. Presentation of Petitions

8. Mayoral Minute

9. Deputations and Presentations

10. Notices of Motion / Questions on Notice

Notices of Motion / Questions on Notice

CL24.346..... Notice of Motion - Memorial Seat & Plaque - Angus Craig..... 1

CL24.347..... Notice of Motion - Caring For Indigenous Culture (CAFIC) - Pilot Program............................................................................ 3

CL24.348..... Notice of Motion - Old Nowra Bridge....................................... 6

CL24.349..... Notice of Motion - Roundabout Rescue................................... 7

11. Call Over of the Business Paper

12. A Committee of the Whole (if necessary)

13. Committee Reports

Nil

14. Reports

City Performance

CL24.350..... Submission - Councillor Conduct & Meeting Practices Discussion Paper..................................................................... 8

CL24.351..... Code of Conduct Complaints - Annual Statistics Report - 1 September 2023 to 31 August 2024...................................... 11

City Futures

CL24.352..... Initial Consideration - Proponent Planning Proposal (PP) Application - 17 Prince Alfred Street, Berry........................... 18

City Services

CL24.353..... Proposed Road Closure & Sale - Unnamed Road Reserve Adjoining Lot 106 DP 1048731 Milton................................... 25

CL24.354..... Tenders - East Nowra Sub-Arterial Road (ENSA) - Project Management and Design Services........................................ 30

City Development

CL24.355..... Development Application – 159 Moss Vale Rd KANGAROO VALLEY - Lot 4 DP 11616..................................................... 32

CL24.300..... SF10987 – 33 Forest Rd Kioloa – Lot 5 DP 1280813......... 175

CL24.356..... Development Application – Proposed Resource Recovery Learning Centre at 120 Flatrock Road Mundamia, Lot 1 DP1018193.......................................................................... 188

City Lifestyles

CL24.357..... Community-Led Projects - Update....................................... 192

15. Confidential Reports

Reports

CCL24.31.... Tenders - East Nowra Sub-Arterial Road (ENSA) - Project Management and Design Services

Local Government Act - Section 10A(2)(d)(i) - Commercial information of a confidential nature that would, if disclosed prejudice the commercial position of the person who supplied it.

There is a public interest consideration against disclosure of information as disclosure of the information could reasonably be expected to reveal commercial-in-confidence provisions of a contract, diminish the competitive commercial value of any information to any person and/or prejudice any person’s legitimate business, commercial, professional or financial interests.

Ordinary Meeting – Tuesday 12 November 2024

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CL24.350 Submission - Councillor Conduct & Meeting Practices Discussion Paper

HPERM Ref: D24/401849

Department: Business Assurance & Risk

Approver: Sara McMahon, Business Assurance & Risk Manager

Attachments: 1. Councillor Conduct and Meeting Practices Discussion Paper (under separate cover)

2. DRAFT Submission to Discussion paper (under separate cover)

Purpose:

The Office of Local Government (OLG) has prepared a Discussion Paper to seek the views of the community, key stakeholders and the local government sector about the proposed changes. Submissions close Friday 15 November 2024.

Summary and Key Points for Consideration:

The discussion paper outlines the key focus areas of the review. The OLG are seeking councils input on these matters through the questions raised in the discussion paper and available in the online form.

A draft copy of the submission is attached to this report.

The proposed submission outlines a general consensus with the considerations of the discussion paper with the exception of a proposed ban on Councillor briefing sessions, which is not supported as they are considered to be in the interest of informed and proper decision making.

The submission outlines key comments and observations with respect to the content of the discussion paper for consideration by the Office of Local Government.

Recommendation

That Council endorse the Draft submission provided as Attachment 1 to the report for submission to the Office of Local Government.

Options

1. Council endorses the proposed submission as a Council endorsed submission, with or without amendment made by the elected Council

Implications: Council will provide a submission endorsed by Council prior to the deadline being Friday 15 November 2024.

2. Individual Councillors may provide their own submission, and the submission completed by staff be made noting it is not endorsed by Council.

Implications: Councillors provide their own submission prior to the deadline being Friday 15 November 2024 and Council staff will put in their proposed submission prior to the deadline being Friday 15 November 2024 noting it is not endorsed by Council.

3. That no submission be made by Council.

Implications: The report will be received and noted only.

Background and Supplementary information

On 5 September 2024 during the caretaker period the OLG sent Councils Circular to Councils 24-17 - Councillor conduct and meeting practices – a discussion paper. A copy of this circular this can be found here.

The current Council was not elected until 2 October 2024 with Induction to follow the following week and the first meeting of Council held 14 October 2024 it should be noted that the timing was difficult for all NSW Councils.

When providing feedback, councils are encouraged to keep responses outcomes-focused. There is no need to suggest draft wording or clauses for the legislation and not all questions require an answer to be submitted.

Questions to be addressed in submissions are asked throughout the discussion paper are highlighted in blue boxes.

Councillors were requested to provide commentary on the Discussion paper for inclusion in the attached draft submission, in the absence of comments with respect to the proposal the submission has been drafted by staff in the City Performance Directorate. There remains opportunity for the draft submission to be amended by Council or for Councillors and others to make individual submissions ahead of the closing date.

Internal Consultations

Internal Consultation has occurred within the Governance Team, Business Assurance and Risk broader Team including the Manager and Public Officer with the CEO and Director City Performance noting these are the areas that implement and manage the Code of Conduct and the conduct of Councillors, particularly in relation to meetings of Council and briefings.

Councillors also received this information inviting submissions through their Councillor Newsletter and via the Councillor Portal prior to this meeting. No advice has been received from Councillors in relation to the submission.

External Consultations

The submission will be provided to the Office of Local Government.

Community Consultations

The Community are also able to provide a submission to the Office of Local Government on the matter.

Policy Implications

This model if endorsed would impact Councils Code of Conduct, Procedures for the Administration of the Code of Conduct, the Code of Meeting Practice and Councillor Expenses and Facilities Policy and the Internal Reporting (Public Interest Disclosure) Policy all of which require public exhibition of changes prior to their endorsement.

Financial Implications

The management of complaints received about the conduct of Councillor can be very costly to the Council. As outlined in the Annual Statistics report to Council also included on this meeting Agenda, the costs estimated for these matters in 2023/2024 reporting period was $46,000.

Risk Implications

The risk to Council particularly surrounding the banning of Councillor briefings are highlighted in detail within the proposed submission as attached. The conduct of Councillors and the management of Council meetings and conduct complaints carry a significant reputational risk for individual Councils and the organisation.

Ordinary Meeting – Tuesday 12 November 2024

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CL24.351 Code of Conduct Complaints - Annual Statistics Report - 1 September 2023 to 31 August 2024

HPERM Ref: D24/467123

Department: Business Assurance & Risk

Approver: Robyn Stevens, Chief Executive Officer

Attachments: 1. Code of Conduct - Annual Statistics Report - 1 September 2023 to 31 August 2024. ⇩

Purpose:

This report is being submitted to the Ordinary Meeting in accordance with Clause 11.1 of the Procedures for the Administration of the Code of Conduct which requires that statistics concerning complaints made about Councillors and the CEO be reported to Council within 3 months of the end of September each year.

Summary and Key Points for Consideration:

Statistics of the Code of Conduct complaints received by Council are provided as Attachment 1 to this report.

Code of Conduct complaints are managed in accordance with the Procedures for the Administration of the Code of Conduct.

In summary, nine (9) Code of Conduct complaints about councillors and one (1) about the CEO were received in the reporting period. One (1) matter from the previous reporting period was finalised. There are no matters yet to be finalised at the end of the reporting period. Six (6) complaints were finalised at the outset by alternative means by the CEO or Mayor. Five (5) complaints were referred to Conduct Reviewers. The total costs for dealing with these complaints in this period was $46,109.

Recommendation

That Council receive the statistical report of complaints under the Code of Conduct for the period 1 September 2023 to 31 August 2024 for information.

Options

1. That the report be received for information as recommended

Implications: This would meet the requirements under the Local Government Act and the Procedures. The statistical report will be provided to the Office of Local Government in accordance with requirements.

2. That the report be accepted in accordance with the Code of Conduct Procedures and additional recommendations made.

Implications: Not known – It should be noted that further recommendations would need to be in accordance with the provisions of the Local Government Act and the Procedures for the Administration of Code of Conduct Complaints.

Background and Supplementary information

Statistical reporting requirements with respect to complaints received under the Code of Conduct outlined in The Procedures for the Administration of the Code of Conduct at Part 11.

The provisions provide a requirement for the Complaints Coordinator (Council’s Manager- Business Assurance & Risk) to provide the requisite data (as captured in the table provided as Attachment 1 to this report) to the Council within three (3) months of the end of September each year (Section 11.1) and to provide the report to Council to the Office of Local Government within the same period. (Section 11.2)

Internal Consultations

In accordance with the Code of Conduct and Code of Conduct Procedures, details of Code of Conduct complaints with the exception of statistical information contained in this report, is confidential information.

Where required in the management of individual complaints, internal consultations occur with persons raising or responding to allegations of wrongdoing or in the gathering of information in accordance with the procedures.

External Consultations

Where required, external advice is received from the Office of Local Government or other oversight bodies in complaint handling. In accordance with the procedures, Conduct Reviewers may be appointed to undertake assessment and if required investigation of complaints.

Community Consultations

In accordance with the Code of Conduct and Code of Conduct Procedures, details of Code of Conduct complaints apart from information contained in this report, is confidential information.

No specific community engagement is required other than advising the public of Code of Conduct complaints via this annual reporting requirement of the Code of Conduct Procedures. The Office of Local Government publishes the statistics once collated.

Policy Implications

All Council officials are required to meet their obligations under the Code of Conduct. Where an individual is alleged to have breached the code, the Code of Conduct Procedures need to be followed.

Financial Implications

The costs involved with handling complaints involving Councillors which are not referred to a conduct reviewer are usually estimated at approximately $900 each. That figure can increase if the resolution involves greater complexity or multiple Councillors or if the matter is referred to a Conduct Reviewer or additional legal advice is sought.

The estimated total cost of dealing with the Code of Conduct complaints received in the reporting period, including staff costs and Conduct Reviewer costs paid in the reporting period was $46,109. Of these costs, $37,109 related to the cost of engagement of conduct reviewers.

Risk Implications

When Council Officials do not meet their obligations under the Code of Conduct, legislation or policy may, this result in both personal sanctions against them and cost and risk to the organisation in the management of complaints arising from the conduct.

Failure to addressing conduct complaints about Council Officials can lead to several serious risks:

1. Erosion of Public Trust: When complaints are ignored, it can lead to a loss of trust in the elected officials and the institutions they represent. This can diminish public confidence in the democratic process.

2. Legal and Ethical Violations: Unaddressed complaints can result in legal consequences if the conduct breaches laws or ethical standards. This can lead to investigations, fines, or other legal actions.

3. Reputational Damage: Both the individual representative and the governing body can suffer reputational harm, which can be difficult to repair.

4. Decreased Civic Engagement: If the public perceives that complaints are not taken seriously, it can lead to decreased civic engagement.

5. Internal Conflict: Within the governing body, unresolved complaints can lead to internal conflicts and a toxic work environment, affecting overall productivity and morale.

6. Intimidation and Abuse: Ignoring complaints can embolden further misconduct, including intimidation and abuse, which can create a hostile environment for other representatives and staff.

Ordinary Meeting – Tuesday 12 November 2024

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CL24.352 Initial Consideration - Proponent Planning Proposal (PP) Application - 17 Prince Alfred Street, Berry

HPERM Ref: D24/378218

Department: Strategic Planning

Approver: Coralie McCarthy, Acting Director - City Futures

Attachments: 1. Supplementary Information - LEP Heritage Item 88 - 17 Prince Alfred Street (under separate cover)

2. Minute MIN24.396 Preparation of Berry Heritage PP (under separate cover)

3. Preliminary Assessment, PP Application - 17 Prince Alfred Street, Berry (under separate cover)

Purpose:

A Planning Proposal (PP) is a document (and supporting information) that can be initiated by a Council or a proponent that explains the intended effect and justification of a proposed amendment to a Local Environmental Plan (LEP).

The report seeks direction on a PP application which seeks to alter the Shoalhaven LEP 2014 as summarised in the following table:

Lot Number	Lot SP 93194
Property Address	‘The Berry Inn’, 17 Prince Alfred Street, Berry.
Property Details	The Berry Inn comprises six hotel/motel accommodation units and car parking spaces. The lot has frontage to both Queen Street and Prince Alfred Street, Berry and contains two separate buildings and uses: · Heritage-listed building (former CBC building) at 122 Queen Street; and · The Berry Inn at 17 Prince Alfred Street. Focus of this PP application.
Applicant	Allen Price & Scarratts (APS)
Owner	Cooltown Trading Pty Ltd
Current zoning	Partly zoned E1 Local Centre and partly zoned R2 Low Density Residential under the LEP. See Figure 2 below.
Proposed Amendment	Rezone the R2 zoned portion of the land to E1, meaning the whole site would be zoned E1. Remove the current 500 sq metre mapped minimum lot size to be consistent with the E1 zone (does not prescribe a mapped minimum lot size). This mapping in the LEP relates to what the minimum lot size is for residential development/subdivision and as such covers most residential zones.

Key Consideration Points:

· The proposed rezoning is considered minor, administrative in nature and is supported.

· The proponent’s intended outcomes/justification are as follows:

o Apply consistent zoning and minimum lot size provisions to the existing building and land.

o Avoid a reliance on restrictive, what are known as ‘existing use’ provisions and provide greater flexibility for the established business to respond to changes in the tourism accommodation market.

· When a recently approved subdivision application (DA23/3181) is completed, the current strata plan will be dissolved, and the land will be two Torrens Title lots. The buildings and uses will then be on separately owned freehold lots.

· The existing approved use (The Berry Inn) is potentially prohibited in the R2 zone and incompatible with the objectives of this zone. The correction will ensure the zoning and existing uses are consistent/compatible.

· There are heritage considerations on the site, and it sits within the Queen Street Conservation Area. The PP application does not seek to alter the heritage overlay and the listed heritage features do directly relate to The Berry Inn. Considering this, the report includes a recommendation to also adjust the extent of the heritage item so that it remains over the relevant part of the site and not The Berry Inn building. This may need to be completed via a separate expedited PP if the new plan of subdivision is not registered in time to do this as part of this PP.

Recommendation

That Council

1. Acknowledge that the land on which The Berry Inn is located:

a. is currently part of an overall strata lot that is listed as heritage Item 88 (former CBC building, fence and trees) in Schedule 5 of the Shoalhaven Local Environmental Plan (LEP) 2014 at 122 Queen Street, Berry;

b. will be on a separate title to the former CBC building, fence and trees, when the two-lot Torrens Title subdivision approved on 6 May 2024 (DA23/3181) is registered;

c. does not contain the heritage features referred to in the State Heritage Inventory (Victorian Free Classical Style former CBC Bank including fence and trees) related to Item 88; and

d. is within a Heritage Conservation Area (C6) and adjacent to other heritage items identified in the LEP.

2. As a result, support the Planning Proposal (PP-2024-1869) to rezone the land currently zoned R2 Low Density Residential land at 17 Prince Alfred Street, Berry, to E1 Local Centre, and remove the 500 sq metre mapped minimum lot size that currently applies to the R2 land.

3. Support the removal of the land on which The Berry Inn is located from the mapped extent of heritage Item 88 when the approved Torrens Title subdivision has been completed, noting that LEP clause 5.10 (heritage conservation) still applies, as the site is adjacent to other heritage items and do this either as part of this PP or by seeking support from the NSW Department of Planning, Housing and Infrastructure (DPHI) to use section 3.22 (expedited amendments) of the Environmental Planning and Assessment Act (EP&A Act) to resolve the matter efficiently after the amendment has been completed.

4. Submit the PP to the DPHI for initial Gateway determination.

5. Subject to receiving a favourable Gateway determination, exhibit the PP and should there be no significant feedback, finalise the PP without reporting the matter back to Council.

Options

1. Submit the PP for initial Gateway determination as recommended.

Implications: Progressing the PP will simplify the zoning and associated LEP provisions, better aligning the zoning with the existing approved use/built form and removing any ambiguity created by the current split zoning.

Heritage protection provisions under Clause 5.10 (Heritage conservation) of the LEP will also not be diminished if the land occupied by The Berry Inn is removed from the mapped extent of heritage Item 88 because the land is also in an existing Heritage Conservation Area (HCA) and is near other heritage-listed properties.

2. Not progress the PP.

Implications: Part of the land will remain zoned R2 Low Density Residential, which does not reflect the current ongoing use. If the mapped extent of heritage Item 88 is not adjusted, it will continue to affect separately owned land that does not have the specific heritage features related to the listing. This may ultimately still then need to be considered as part of a future housekeeping PP. Not recommended.

Background and Supplementary information

Subject land

The subject land is part of an existing strata lot (Lot SP 93194) with frontage to Queen Street and Prince Alfred Street, Berry – see Figure 1 below.

Figure 1 – subject land (Lot SP 93194)

A map of a neighborhood

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Figure 2 – current land zoning

The land contains two separate buildings/uses:

· The heritage-listed former Commercial Banking Company (CBC) building at 122 Queen Street, currently occupied by Belle Property; and

· The Berry Inn ‘boutique motel hotel accommodation’ at 17 Prince Alfred Street.

The PP application focuses on 17 Prince Alfred Street (the subject land), where The Berry Inn is located. The northern part of the site (122 Queen Street) containing the heritage-listed former bank building, is essentially not affected by the proposed changes to the LEP.

Separate to the PP the existing strata plan will eventually be dissolved and replaced when a two-lot Torrens Title subdivision is completed. The two existing buildings will then be on separately owned freehold lots.

Site history

The CBC building with attached manager’s residence and stables was used as a bank until 1986. In 1986 the CBC building and residence were converted to a guest house and car parking (DA86/2591). Alterations to the former stables and two-storey building to the rear of the CBC building and change of use to a managers’ residence and staff accommodation was approved in 1989 (DA88/3042). The conversion of part of the managers’ residence to provide four accommodation units was approved in 1996 (DA96/3534). The CBC building was converted to commercial premises in 2012 (DA12/2136). An application to refurbish The Berry Inn and create two additional accommodation units was approved in 2020 (DA19/2104).

A two-lot strata subdivision over two lots was approved in 2015 (SF10446) and an application to dissolve the strata plan and subdivide the land into two Torrens Title lots was approved in May 2024 (DA23/3181).

The Regional Development Application for the adjacent Berry Hotel (RA23/1002) affects multiple lots, including the subject land. The application was refused by the Southern Regional Planning Panel on 27 June 2024, and is now before the NSW Land and Environment Court. Under this application, no works are proposed to the former CBC building or The Berry Inn.

Shoalhaven Local Environmental Plan 2014 (SLEP 2014)

A detailed assessment against the provisions in the LEP is provided in Attachment 1.

Planning Proposal (PP) application

The PP application seeks the Council’s support to rezone the R2 land to E1 so that the whole site is zoned E1 (see Figure 3 below) and remove the 500 sq metre mapped minimum lot size currently applying to the R2-zoned area.

A map of a neighborhood

Description automatically generated with medium confidence

Figure 3 – current (left) and proposed (right) land zoning under the SLEP 2014

The proponent’s PP application describes the following intended outcomes:

a) The PP ensures the ongoing viability of an established business and allows it the flexibility in the future to grow and respond to the changing needs of the tourism accommodation market with a land use zoning commensurate to the existing use, rather than relying on restrictive existing use

b) It will ensure the whole of the existing building on the site within Lot 2 SP 93194, and the future approved lot 2 under DA23/3181, will have a consistent zoning and minimum lot size applying to it, rather than the existing building having a split zoning.

c) It will enable future development on the site as it relates to the existing approved use, to utilise relevant provisions exempt and complying development controls under State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 under which it is currently excluded from being an “existing use”.

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

The reference to exempt and complying provisions in Point (c) above has been clarified with the proponent. In summary:

· Complying development cannot be undertaken on the land because it is part of a listed heritage item.

· Some forms of exempt development such as Temporary event signage, and Entertainment associated with existing premises are however allowable in the E1 zone but not in the R2 zone.

· If the site was not heritage listed, internal alterations and additions could be undertaken (under Part 5A of the Codes SEPP) within the E1 zoned land, but not within the R2 zoned land.

As such, the current E1/R2 split zoning does unduly limit the ability for the Codes SEPP used, but wider use of the Codes SEPP is precluded because the land is an identified heritage item (No.88) in the LEP.

The proponent’s PP does not seek to amend the heritage map overlay in the LEP. However, a development application to create a two-lot Torrens Title subdivision was recently approved and the intended boundary between the two lots would be a logical delineation of heritage Item 88 - as shown and further explained in Attachment 1. When the subdivision is completed and the new lots registered, The Berry Inn will be on a separately owned lot to the former CBC building where the heritage features associated with Item 88 are located.

Any development application over the land would still need to address LEP clause 5.10 (heritage conservation) because the land is within a heritage conservation area and adjacent to other heritage items. As such the change would not diminish heritage considerations under clause 5.10 of the LEP.

The land description in Schedule 5 of the LEP can however only be updated once the new plan of subdivision is registered. This may not be completed before this PP is finalised, thus the details of Item 88 may need to be adjusted in the future through a separate PP. The most timely and efficient way to achieve this would be via an expedited PP under section 3.22 of the Environmental Planning & Assessment Act, if it is agreed it meets the legal criteria for this type of amendment. Alternatively, it could be done as part of a future broader housekeeping PP or via a new proponent-initiated PP. Ideally the subdivision will be registered before this PP is completed.

Preliminary Assessment/Conclusion

A more detailed preliminary assessment of the PP is provided in Attachment 3. In summary, the PP is supported for the following reasons:

· Is broadly consistent with the Illawarra-Shoalhaven Regional Plan and Council’s adopted strategic planning documents, including planning priorities 6 (Strengthening commercial centres) and 7 (Promoting a responsible visitor economy) in Council's Local Strategic Planning Statement (LSPS).

· Is already partly zoned E1, and this zone is more consistent with the existing approved use than the current R2 zone

· Removing the split zoning will make the land’s planning controls consistent and simpler.

· The proposed changes are minor and administrative in nature.

· Although the proponents’ submitted PP does not seek any change to the mapped extent of heritage Item 88 in the LEP, the land on which The Berry Inn is located should also be removed because it will be separately owned and unaffected by the heritage features.

Internal Consultations

Development Services

Comments received from are summarised below:

· Alternative uses can potentially be approved on the R2 land under either Clause 5.3 or Clause 5.10(10) of the LEP

· Rezoning the R2 land to E1 is unlikely to have a significant impact on the planning outcomes for the site. The rezoning is considered to be administrative.

· The heritage features referred to in the State Heritage Inventory for heritage item 88 do not affect the land on which The Berry Inn is located. Do not object to the removal of this land from the mapped extent of Item 88 at the appropriate point, provided the land remains within the Conservation Area in the LEP to assist in retaining the character and appearance of the area.

External Consultations

No external agencies have been consulted at this point due to the administrative nature of the PP. Heritage NSW will however be consulted if the PP proceeds.

Community Consultations

Adjoining landowners and The Berry Forum community consultative body (CCB) were notified of the receipt of the PP application in accordance with the Council’s Guideline for Proponent Initiated Planning Proposals. No submissions were received as a result.

Depending on the nature of any Gateway determination received, the formal public exhibition of the PP will also occur later in the process.

Financial Implications

The applicable PP fees will be applied to cover Council’s costs for progressing the PP, which is categorised as ‘standard’ for this purpose.

Ordinary Meeting – Tuesday 12 November 2024

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CL24.353 Proposed Road Closure & Sale - Unnamed Road Reserve Adjoining Lot 106 DP 1048731 Milton

HPERM Ref: D24/403450

Department: Technical Services

Approver: Carey McIntyre, Director - City Services

Purpose:

The purpose of this report is to seek a resolution of the Council to close a portion of surplus road reserve and sale to the adjoining landowner of Lot 106 DP 1048731, 13C Bishop Drive, Milton.

Summary and Key Points for Consideration:

The subject area of road is Council public road reserve by way of Government Gazette No.35 of 9 February 2024.

Pursuant to section 38A of the Roads Act 1993, Council is able to consider closure of a Council public road (as the roads authority) if that road is; not reasonably required as a road for public use (whether for present or future needs), and; the road is not required to provide continuity for an existing road network, and; if the road provides a means of vehicular access to particular land, another public road provides lawful and reasonably practicable vehicular access to that land.

The road closure is being considered as structures (previously erected) associated with the adjoining private property Lot 106 DP 1048731 encroach onto the public road reserve. The encroaching structures include an in-ground swimming pool, section of garage and decking. To formalise the encroachments, it is proposed to undertake a partial road closure and sell the land comprising the closed road to the adjoining landowner of Lot 106 DP 1048731, 13C Bishop Drive, Milton and consolidation of lots in title.

Council resolution is required for closure of a public road by gazette notice to effect the closure of a road under s38D of the Roads Act 1993 as well as for land sale. This report recommends closure of the identified section of surplus road reserve under the Roads Act 1993.

Recommendation

That Council

1. Approve the road closure under section 38D of the Roads Act 1993 for the surplus road reserve adjoining Lot 106 DP 1048731, 13C Bishop Drive, Milton, being approximately 635m2 in area (subject to final survey) by notice in the Government Gazette.

2. Classifies the closed section of road as operational land subject to public notice of the proposed classification under Section 31 and 34 of the Local Government Act 1993.

3. Authorise the sale of the closed road to the registered proprietor of the adjoining property being Lot 106 DP 1048731 for $12,700 excluding GST (if applicable) including adjustment to the sale price after final survey.

4. Endorse that the costs incurred with the road closure, sale and consolidation of lots comprising legal, conveyancing, valuation and survey expenses will be met by the applicant.

5. Direct the net land sale proceeds to the Property Reserve and be used for the purposes expressed in Section 43 of the Roads Act 1993.

6. Require that the lot to be created with formal road closure be consolidated in title with Lot 106 DP 1048731.

7. Authorise the Common Seal of the Council of the City of Shoalhaven to be affixed to any document required to be sealed and delegate authority to the Chief Executive Officer to sign any documentation necessary to give effect to this resolution.

Options

1. As recommended

Implications: The road closure will formalise existing encroachments within the road reserve thereby reducing the associated risks to Council. Additionally, the sale will generate an income of $12,700 excluding GST (if applicable).

2. Not resolve as recommended

Implications: The encroachments, including an in-ground swimming pool, will remain within the road reserve, exposing Council to ongoing potential liability.

Background and Supplementary information

In 2014, Council received application for a Building Certificate for nursery and residence located on Lot 106 DP 1048731, 13C Bishop Drive, Milton. The application was accompanied by a surveyor’s certificate identifying multiple encroachments onto the road reserve. These encroachments include, but are not limited to, an in-ground swimming pool, section of metal garage and decking as shown in Figure 1 below.

Figure 1: Survey report showing encroachments on road reserve

A diagram of a highway

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As a short-term solution, Council entered into a lease agreement with the owners of Lot 106 DP 1048731. The purpose of this agreement was to facilitate the preferred long term solution being road closure, sale and consolidation of the land.

Recently, the encroaching swimming pool was inspected by Council and deemed to be a significant risk to public safety. As the pool is located on public road reserve it does not fall under the Swimming Pools Act 1992 and accordingly, Council cannot formally direct the owner of the pool to rectify. As the roads authority, the responsibility for any incidents in the pool may be Council’s liability.

The initial road closure proposal encompassed the entire road reserve between Lot 106 DP 1048731 and adjoining Lot 2 DP 709653 shown in Figure 2 below.

Figure 2: Initial area of road reserve proposed for closure

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Internal Consultations

Shoalhaven Water objected to the proposal to close the full section of road reserve shown in Figure 2 due to the presence of critical infrastructure within the eastern portion of the road reserve. The infrastructure requires permanent access for maintenance and repair. Consequently, the area of road reserve to be closed was reduced, ensuring that the critical infrastructure remains within public road reserve for continuous access. Shoalhaven Water has since provided their concurrence to a reduced road closure area and identified in Figure 3 below.

Development Services expressed concern regarding the unauthorised access by residents to the Princes Highway using the subject road reserve as it is not a formally constructed road. The revised road closure area preserves an approximate 10m width road reserve along the western boundary of adjoining private land 13D Bishop Drive, Milton. To address this issue, it was determined that a physical barrier would be installed to prevent unauthorised access to/from the Princes Highway and ensure all vehicular access in the locality is via the Bishop Drive/Princes Highway constructed intersection.

Figure 3: Final road closure proposal

Aerial view of a road intersection

Description automatically generated

External Consultations

Under section 38B of the Roads Act 1993, Council is required to advise notifiable authorities of a road closure proposal.

Endeavour Energy objected to the proposal due to overhead power lines and a power pole located within the road reserve. Endeavour Energy require an easement for overhead power lines 9m wide to be created in the name of Epsilon Distribution Ministerial Holding Corporation. Once the easement is created, Endeavour Energy will remove its objection.

Community Consultations

The proposed road closure was advertised to adjoining owners in accordance with section 38B of the Roads Act 1993.

A submission was received from an adjoining landowner who objected to the original proposal to close the entire road reserve, citing concerns about access to their property. After considering the submission (and the initial concerns of Shoalhaven Water), the area of road to be closed has been reduced and will allow continued access to the subject property without compromising the resolution of the private structure encroachments onto the road reserve. The subject property owner will continue to benefit from vehicular access via Bishop Drive/Combe Drive.

No other submissions were received.

Policy Implications

This proposal is in accordance with Council Policy “Development and/or Disposal of Council Lands” POL22/47.

Financial Implications

A valuation of the proposed was undertaken by Walsh & Monaghan and determined that the amount of compensation payable is $12,700 (excluding GST). The proprietor of Lot 106 DP 1048731 agreed to pay Council the compensation for the partial road closure. The compensation amount may be adjusted in accordance with final survey.

The registered proprietor of Lot 106 DP 1048731 is responsible for all costs associated with the road closure, sale and consolidation. This transaction will occur at zero cost to Council.

Risk Implications

The swimming pool adjacent to Lot 106 DP 1048731 is located on public land, therefore it does not fall under the Swimming Pools Act 1992 and Council cannot formally direct the owner of the pool to repair the barrier. As Council is the roads authority, the responsibility could be taken to rest with Council should there be an incident involving pool users. Closing the identified section of road reserve affected by the encroaching structures will eliminate ongoing risk to Council.

Valuation advice has been received for the recommended sale of land following gazettal of the road closure. Council’s interests have been considered and there is minimal risk associated with the recommended road closure and sale.

Tenderer	Location
Colliers International Engineering & Design (NSW) Pty Ltd	Sydney
Egis Consulting Pty Ltd	Canberra
GHD Pty Ltd	Nowra
Indesco Pty Ltd	Canberra
JJ Ryan Consulting Pty Ltd	Sydney
Maker ENG Pty Ltd	Wollongong
Leckring Pty Ltd T/A MIEngineers	Nowra
MU Group Consulting Pty Ltd	Sydney
Public Works	N/A
SMEC Australia Pty Ltd	Sydney
Stantec Australia Pty Ltd	Nowra

Ordinary Meeting – Tuesday 12 November 2024

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CL24.355 Development Application – 159 Moss Vale Rd KANGAROO VALLEY - Lot 4 DP 11616

DA. No: DA23/1757/4

HPERM Ref: D24/410938

Department: Development Services

Approver: James Ruprai, Director - City Development

Attachments: 1. Planning Report S4.15 Assessment - DA23/1757 - 159 Moss Vale Rd KANGAROO VALLEY - Lot 4 DP 11616 ⇩

2. Notice of Determination - 159 Moss Vale Rd KANGAROO VALLEY - Lot 4 DP 11616 ⇩

Description of Development: Alterations and Additions to existing Pub

Owner: New Friendly Inn Pty Ltd

Applicant: Local Architect South Coast Pty Ltd

Notification Dates: From 01/11/2023 until 16/11/2023.

No. of Submissions: Nil.

Purpose / Reason for consideration by Council

Variation to Clause 4.3 – Building Height of the Shoalhaven Local Environmental Plan (SLEP) 2014. In accordance with Planning System Circular No. PS20–002, the Secretary’s concurrence may not be assumed by a delegate of Council if the development contravenes a numerical standard by greater than 10% (the extent of the variation is 18%)

Recommendation

That Development Application No. DA23/1757 for Alterations and Additions to an existing Pub (Friendly Inn) over Lot 4 DP 11616 at 159 Moss Vale Rd Kangaroo Valley be determined by way of approval subject to the recommended conditions of consent provided at Attachment 1.

Options

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

Implications: This would enable the development to proceed according to the recommended conditions of consent.

2. Refuse the Development Application (DA).

Implications: The development is unable to proceed as applied for. The applicant can, however, apply for a section 8.2A review of Council’s decision and/or could lodge an appeal with the NSW Land and Environment Court (LEC) against Council’s decision.

3. Alternative recommendation.

Implications: Specify an alternative recommendation and advise staff accordingly.

Location Map

Figure 1: Aerial image of subject site.

Figure 2: General location with land use zones.

Background

Subject Land and Site Context

The development site comprises Lot 4 DP 11616, located at 159 Moss vale Road, Kangaroo Valley. The site has an area of 1.444ha and is irregular in shape.

It contains the heritage listed Friendly Inn and ancillary informal carpark and outdoor entertaining area, as well as an area of pasture to the north that fronts the Kangaroo River.

The Friendly Inn Hotel dates back to 1891 and is listed in the State Heritage Inventory as:

Early Federation period hotel designed in the late nineteenth century Victorian idiom. A good example of the work of architect Cyril Blacket. Valuable townscape contribution to the Kangaroo Valley Township Precinct. Local significance (Shoalhaven).

It is located on the northern side of the main street of Kangaroo Valley and is adjoined on the eastern, western, and southern sides by other businesses.

Proposed Development

The proposal includes alterations and additions to the heritage listed Friendly Inn Hotel at Kangaroo Valley.

The alterations and additions include extension of the existing covered dining area, new rear deck and associated roof coverage, new amenities, an upgraded grease arrestor, new servery window and new accessibility ramp access to the existing pub.

The changes are itemised in the applicant’s submitted Statement of Environmental Effects Report as follows:

· Ground floor:

o extension of the existing covered dining area;

o new rear deck and associated roof coverage;

o demolition of existing toilet and construction of new toilets with DDA compliant toilet:

§ four (4) toilets – two (2) female, one (1) unisex and one (1) male;

§ two (2) urinals;

§ two (2) unisex accessible toilets;

o upgraded grease arrestors (from 800L to be upgraded to a minimum of 1500L);

o associated access ramp connecting the car park to the pub.

o New stairs to proposed deck on east side

· First floor

o No change to existing

Clause 4.3 – Building Height of the Shoalhaven Local Environmental Plan (SLEP) 2014

As a principal development standard, 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, which is mapped as being 5.5m in accordance with the Height of Buildings Map.

The proposal includes a roof over the new deck at the rear of the building (north side) at a height of 6.5m above the existing ground level. This is 1.0m above the maximum building height and a departure of 18% from the standard.

Figures 3 and 4 below depict the proposed development and its context with respect to the remainder of the Friendly Inn building.

A drawing of a house

Description automatically generated

Figure 3:North elevation depicting the proposed new barrel-vaulted roof sitting 1m above the 5.5 height limit.

A house with a lawn and a patio

Description automatically generated with medium confidence

Figure 4: Interior and Exterior 3D images.

Where there is a departure to a principal development standard, consent may still be issued for a proposal where a Variation request is submitted and compliance with the requirements under Clause 4.6 of the SLEP 2014 is demonstrated.

In this instance, the applicant chose to utilise the pathway available under Clause 4.6 by proposing a Variation to the principal development standard. A full detailed assessment of the applicant’s Variation request under Clause 4.6 is provided in Council’s Assessment Report found at Attachment 1.

As part of Council’s detailed assessment, it was concluded that compliance with the requirements under Clause 4.6 of the SLEP 2014 had been sufficiently demonstrated.

Planning Assessment

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

Community Consultations

Notification and advertisement was undertaken by Development Services in accordance with the Community Consultation Policy. In this regard, letters were sent out within a 60m buffer of the site, and an advertisement was placed in the South Coast Register.

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

Financial Implications

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

Legal Implications

Pursuant to section 8.2 of the Environmental Planning and Assessment Act 1979 (EP&A Act), a decision of the Council may be subject of a review by the applicant in the event of an approval or refusal. If such a review is ultimately pursued 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 proposed development results in a building height of 6.5m which exceeds the height limit of 5.5m under Clause 4.3 of the Shoalhaven Local Environmental Plan (SLEP) 2014 by a distance of 1.0m or 18%. However, the Friendly Inn stands at an overall height of 11.90m, which was built prior to the current 5.5m height limit. Although the proposed roof addition exceeds the height limit by 1.0m, it is approximately 5.4m lower than the existing building and is subordinate to it.

The proposed roof is at the rear of the existing building which will effectively shield any visual impact from the streetscape. There would be unlikely to be an adverse impact to Kangaroo Valley’s heritage valued streetscape or the amenity of the adjoining properties.

The heritage value of the existing building is retained as the proposed additions do not attempt to reproduce a faux replication of the heritage item. The distinctly different roof form allows immediate visual separation between the heritage and the non-heritage additions thus preserving the integrity of the heritage item.

A flat / skillion roof could possibly sit under the height plane; however, this would essentially pinches or shuts down the view to the north. The increase in height with the Architecturally designed barrel-vaulted roof allows patrons to experience the openness and expanse of the north view. This is available both on the outdoor deck and the indoor dining area, which would not be possible without exceeding the height plane. For this to happen the variation of 1.0m or 18% is required.

The proposed barrel-vaulted roof is a good planning outcome, providing an architectural feature while still preserving the heritage value of the Friendly Inn and Kangaroo Valley’s streetscape and can be supported.

Ordinary Meeting – Tuesday 12 November 2024

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CL24.300 SF10987 – 33 Forest Rd Kioloa – Lot 5 DP 1280813

DA. No: SF10987/4

HPERM Ref: D24/204703

Department: Development Services

Approver: James Ruprai, Director - City Development

Attachments: 1. Planning Report S4.15 Assessment (under separate cover)

2. Draft Determination (under separate cover)

3. Subdivision & Landscape Plans (under separate cover)

Description of Development: Subdivision of land into 20 Torrens title lots

Owner: AJ Taylor, DP Tyrrell, ADY Taylor

Applicant: Tahnee Ironside

Notification Dates: 27/4/2023 to 25/5/2023

No. of Submissions: Eighteen (18)

Purpose / Reason for consideration by Council

The application was considered at the Council Meeting on 28 October (Min23.188) and deferred to enable staff to prepare a Councillor briefing on 31 October 2024 and answer questions.

The briefing introduced a revised subdivision plan and subdivision master plan submitted by the applicant in response to Council concerns identified at the Council Meeting. The revised plans retained the existing stormwater easement benefitting the 4 properties (17 Forest Road), provided a new internal drainage easement, slightly adjusted effluent management fields and boundaries to align with the above easements, reduced the size of the building envelope and adjusted the APZ over proposed lot 17 and consequentially removed the APZ notation over the detention basin lot. These changes have negated the need for a deferred commencement condition. The attached s4.15 assessment report, recommended conditions and subdivision plans have been updated to include the revised plans with the deferred condition now deleted.

Recommendation

That the Development Application SF10987 for a 20 lot Torrens title subdivision at Lot 5 DP 1280813, 33 Forest Rd Kioloa be approved subject to the conditions contained in Attachment 2 of this report.

Options

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

Implications: This would allow the applicant to pursue construction of the developments.

2. Refuse the development application (DA).

Implications: Council would need to determine the grounds on which the application is refused, having regard to sections 4.15 considerations. A refusal enables the applicant to lodge a section 8.2 Review and / or appeal with the Land and Environment Court of NSW (LEC).

3. Alternative recommendation.

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

Location Map

A map of a neighborhood

Description automatically generated Figure 1 – 33 Forest Rd Kioloa

Figure 2 – View of lot looking south

Figure 3 – View of north east corner of lot

Figure 4 – Existing dwelling to be retained

Background

Proposed Development

The proposal includes:

· A one into twenty lot subdivision.

· Lots between 1291m² and 4079.1m².

· Associated civil, stormwater works and internal road infrastructure.

· Proposed subdivision in three stages, see Concept Stage Plan – Figure 6 below.

- Stage 1: Lots 1 to 6 - Land that fronts Forest Rd, therefore avoiding Merry Beach Road realignment.

- Stage 2: Lots 7 to 9 and Lots 18 to 20, including the realignment of Merry Beach Road.

- Stage 3: Lots 10 to 17.

· Variation request to DCP Chapter G8 minimum lot size for subdivision of land in areas that do not have reticulated sewer infrastructure.

· Retention of the existing dwelling and demolition of outbuildings.

· Realignment of Merry Beach Road.

Figure 5 - Proposed Subdivision Plan

A blueprint of a land with a circular structure

Description automatically generated with medium confidence

Figure 6 - Concept Staging Plan

Site & Context

The subject site has a frontage to Forest Rd and Merry Beach Rd Kioloa. The site is 4.333ha and currently contains an old dwelling and some outbuildings.

The surrounding area is residential in character. The site is adjoined by low density residential to the east and west, a larger residential lot and Crown land to the north which is still in its natural state. The lot also adjoins Crown land to the south, beyond which is the Merry Beach Caravan Park. Murramarang National Park is situated about 270m to the west.

The lot has a corner location, and the existing Merry Beach Rd traverses the site is not aligned within the surveyed map casement. The lot slopes from northwest to southeast with a cross fall of about 21m. There is no reticulated water or sewer available to the lot or the Kioloa Village.

The site is approximately 100m from Merry Beach General Store, 4.6km from Bawley Point shopping village and 160m to the north of Merry Beach. The Kioloa area is a popular tourist destination due to its wide selection of beaches, the National Park and Caravan Parks.

History

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

§ Pre lodgement discussions were held prior to lodgement.

§ The application was lodged on 17.4.2023.

§ As a result of detailed assessment of the application and based on concerns regarding the impacts of the proposed onsite wastewater management and biodiversity, additional information was requested from the applicant on 27.4.2023, 19.5.2023, 23.6.2023. A meeting was held between Council Officers and the Applicant’s consultants’ on 7.8.2023 to discuss the issues raised. As a result, revisions to the plans, the onsite wastewater report, biodiversity assessment report, bushfire and civil design were requested. The applicant provided revised plans and documents on 4.12.2023 that included the following revisions:

· A reduction of lots from 22 to 20 and lot boundaries reconfigured.

· Additional trees retained in the revised Biodiversity Development Assessment Report (BDAR).

· Revised civil and stormwater plans.

· Revised bushfire and onsite wastewater report provided.

§ Further information was requested on 14.2.2024 in relation to the Biodiversity Development Assessment Report.

§ An amended BDAR was provided on 18.3.2024, 23.5.2024 and 2.7.2024.

§ Request for further information on 20.6.2024 in relation to APZs, details of detention basin, revised civil plans and drainage easement modification.

§ Revised Civil Plans and Bushfire Assessment provided 22.7.2024.

§ Request for further information on 1.10.2024 relating to amendments to Civil Plans and Bushfire Report.

§ Revised Civil Plans, IWCMS and Bushfire Report Supplementary Letter provided 11.10.2024.

§ Determination deferred at Ordinary council 28.10.2024 to 2^nd council briefing.

§ Revised Subdivision Plan & Subdivision Master Plan submitted 30.10.2024.

§ Council briefing workshop 31.01.2024.

Previous Approvals over the Site

DA number	Description of Proposal	Decision & Date of Decision	Officer Comment
BA76/0367	Dwelling Additions	Approved	N/A
BA80/0981	Dwelling Additions	Approved	N/A
BA80/1033	Dwelling Additions	Approved	N/A
BA83/1546	Fibro Garage	Approved	N/A

Zoning

The site is zoned RU5 Village, with a 500m² minimum lot size, under the Shoalhaven Local Environmental Plan 2014 (SLEP 2014), see Figure 7 & 8. The proposed development is best characterised as subdivision which is permissible with consent. The objectives of the zone are:

· To provide for a range of land uses, services and facilities that are associated with a rural village.

A map of a land with a beach and water

Description automatically generated

Figure 7 – Zoning Map

A map of a land with a yellow square

Description automatically generated

Figure 8 – SLEP 2014 Minimum Lot Size Map

Summary of key concerns raised by submitters through notification

Issue

The lack of Infrastructure, including roads, electricity, sewer and water.

Comment:

The lot is zoned RU5 with a minimum lot size of 500m² on which subdivision and residential development is permitted with consent. The proposal is for 20 lots ranging in size from 1291m² to 4079m² which are at a minimum double the LEP minimum lot size. The larger size is to accommodate onsite wastewater systems. It will be a small increase in the population and traffic in the Kioloa area. The existing infrastructure is considered adequate to support the proposal.

The applicant’s electrical engineer has assessed the power supply which they have deemed to be acceptable for the proposed future residential use. The application was also referred to Endeavour Energy who have advised that a padmount substation is required to service the subdivision. A space for the padmount substation has been provided in the revised plans.

Issue

The state of existing roads.

Comment:

The condition of the existing roads is not a planning consideration for the proposed development. The state of the existing roads is one of maintenance for Council’s capital works program.

Issue

The impact on groundwater quality from the proposed onsite wastewater systems.

Comment:

The applicant has provided an Onsite Wastewater Report prepared by Martens Engineering, who undertook site investigation and effluent modelling to demonstrate that the proposed onsite systems can be accommodated on the individual lots without causing adverse impacts to the surrounding environment including local groundwater, infrastructure and residential land. It has been reviewed by Councils Environmental Health Officer who is satisfied that the report has demonstrated that onsite effluent disposal can be achieved within the proposed lots on the amended lot layout, and the objectives and performance requirements of Shoalhaven Development Control Plan have been met.

Issue

The proposed lot sizes are non-compliant with Council’s DCP.

Comment:

The lot sizes range from 1291m² to 4079m²and comply with the LEP minimum lot size of 500m². However, they do not comply with Acceptable Solution A8.2 of Chapter G8 DCP requirement of 2500m² minimum for subdivision of lots that require onsite wastewater systems. The applicant has requested a variation to Acceptable Solution.

The proposal includes 16 lots that are less than 2500m². The variation in the lot sizes range from 8% to 48%.

The following is a summary of their request:

Applicants Variation Statement

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

On 12 January 2021 Council granted consent to development application No. SF10812 for the subdivision of the adjoining land at 17 Forest Road, Kioloa into four lots, with each of the lots being 1,000m2. The LEP and DCP controls that apply to 17 Forest Road, Kioloa are identical to those applicable to the subject land at 33 Forest Road, Kioloa.

The subject application relies on identical science and effluent management systems as those approved in SF10812. The On-Site Wastewater Management Assessment prepared by Martens and Associates demonstrates how the EMA will treat and dispose of effluent within, therefore wholly contained within each proposed lot. Martens and Associates prepared the documentation and EMA design for both applications.

This variation is being sought to allow for more availability of lots of similar size to existing neighbourhood properties, “Existing homes are generally on blocks between 500-700sqm” (Planning report).

The lots have been subdivided to ensure that there is the capability that dwellings are generally oriented north and south. Compliant setbacks are such that there is privacy for the proposed dwellings and their neighbours. Lots are large enough to accommodate living areas and private open spaces.

The EMA will be contained within the area identified on the plans submitted with application. It is worth noting that the areas are large enough to contain 2 option disposal as described below.

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

Wastewater treatment and dispersal options have been designed using conservative estimates as outlined in the accompanying On-Site Wastewater Management Assessment prepared by Martens and Associates. In summary, wastewater from a future dwelling of 8 persons/dwelling generated at 960 L/dwelling/day will be treated by an accredited (NSW Heath) domestic aerated wastewater treatment system (AWTS). Treated water will then be dispersed on-site by one of 3 options available to the future purchaser, those being via a Wisconsin Mound, absorption trench solution or subsurface drip. A reserve area of 100% will also be allowed for and will be separated from neighbouring properties with appropriate buffer zones.

The future lots are proposed to contain restrictive covenants on title which will restrict the number of bedrooms of dwellings that may be approved. This will ensure that the area designated to the effluent management system is sufficient to properly treat and dispose of effluent. These covenants will only be able to be released, varied, or modified by Council: Part 3.2 of Planning Report prepared by Smith & Tzannes.

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

The applicant has provided an Onsite Wastewater Assessment Report that assesses the suitability of the land and the installation of onsite systems on smaller lots, and the impact on the environment. Each property will require a detailed design at application stage that should be generally consistent with the approved Onsite Wastewater Report. Council is satisfied that the report has demonstrated that onsite effluent disposal can be achieved within the amended lot layout and the objectives and performance requirements of Shoalhaven Development Control Plan have been met.

Conclusion

The proposed development is supported by comprehensive testing and reporting by Martens and Associates which demonstrates that the proposed lots are provided with sufficient area to treat and dispose of effluent. The objectives of Chapter 8 of the DCP are achieved and the proposed development will not have any additional adverse impacts on the environment or neighbouring properties. It is considered that the proposed development will provide high quality land for future housing in the locality, without creating adverse impacts, and avoiding an increase on existing septic pump out service providers.

In these circumstances, variation of the control should be supported by Council.

Comment:

As discussed above, the Onsite Wastewater Report prepared by Martens and Associates has demonstrated that the proposed onsite systems can be accommodated on the individual lots without causing adverse impacts to the surrounding environment including local groundwater, infrastructure and residential land. Therefore, the request to vary the development control of 2500m² lot size is supported.

The proposed lots will be required to have restrictive covenants placed on title worded appropriately to comply with the approved onsite wastewater report, building envelopes, effluent disposal areas and stormwater design. Each property will require a detailed design at application stage that should be generally consistent with the report. This will ensure that any future development of the lot will comply with the relevant objectives and performance criteria of Chapter G8.

Issue

The site is currently a wildlife corridor.

Comment:

The lot is a grassland/pasture lot used for animal grazing in the past. A biodiversity assessment report has been provided that confirms that the vegetation on the lot is not significant, nor does it recommend that a wildlife corridor is required.

Issue

Future tourist uses such as an ‘air bnb’.

Comment:

The application is for subdivision and not for dwelling construction or tourist and visitor accommodation. Air bnbs can be conducted in dwellings without Council consent and are regulated by the Department of Fair Trading.

Issue

Lack of provision of green space.

Comment:

The relatively small size (20 lots) of the subdivision does not require public open space to be provided. The proposed subdivision is within walking distance to Merry Beach and in close proximity to the Murramarang National Park.

Issue

The provision of affordable housing.

Comment:

The proposal is for subdivision of land and not affordable housing. There is no legislative planning requirement for the developer to provide affordable housing.

Issue

Stormwater runoff from future development.

Comment:

It is proposed that stormwater runoff will be captured via onsite detention, utilising rainwater tanks on the lots and a water quality basin downstream. The stormwater will go through a treatment train consisting of rainwater tanks, swales and bioretention basin to manage the stormwater quality. The proposal meets Councils stormwater management DCP requirements. In addition, to further protect water quality a restrictive covenant will be conditioned to ensure that there are no overland surface water drainage connections into the stormwater drainage system servicing the properties.

Issue

The proposal is not consistent with the coastal character of the area

Comment:

The proposed lot sizes are generally larger than surrounding development and will not be inconsistent with the coastal character of the area. The land is a large parcel that is zoned RU5 Village in the current LEP and 2E residential under the previous LEP 1985 with a minimum lot size of 500m². Future development application for residences on the lots will be required to comply with Council’s Development Controls which includes controls pertaining to local character and context.

Issue

Bushfire

Comment:

The application is integrated development with the NSW RFS who have no objections and have issued General Terms of Approval for the development in accordance with Planning for Bushfire Protection 2019.

Applicant’s Response to Submissions

§ The applicant was invited to consider and respond to submissions and provided their response which is summarised below:

Applicant’s Submission

Minimum lot size	Given the DCP minimum lot size requirement is inconsistent and incompatible with the provision of the LEP, the DCP minimum lot size requirement has no effect. Council cannot refuse the DA on the grounds of minimum lot size given the application provides lots well in excess of the LEP requirement. To do so would be a breach of the Act.
Inadequate infrastructure/power/amenities/shops	The DA has been reviewed by Raymond Romanos (Electrical Engineer) who has confirmed that the power infrastructure is sufficient. A plan marked up by Mr Romanos will be submitted to Council through the Planning Portal. The concern regarding insufficient amenities is not reasonable and has no merit.
Inadequate Block Size	The minimum lot size pursuant to the Shoalhaven LEP is 500m2. The proposed lots range from 1,180m2 (lot 5) to 4,370.7m2 (lot 19). The variation to the DCP lot size requirement has been addressed by Dr Daniel Martens in his report submitted with the DA, and the subsequent response to the engineering referral dated 9 June 2023. The science supports the proposed lot sizes and effluent management systems. As does the precedent set by Council in approving our client’s previous DA at 17 Forest Road, for four lots, all 1,000m2 with identical effluent management systems proposed. The proposed lots will be bigger than all lots adjoining the subject site, which are generally 600m2. We are genuinely surprised that the submissions would raise lot size as a concern.
Wildlife corridor	In response to these concerns, we provide the following extracts from the BDAR prepared by South East Environmental submitted with the DA: - Part 1.3: “The disturbance from many years of livestock grazing and grass mowing is apparent throughout the cleared areas where minimal native vegetation occurs, and exotic grasses dominate the vegetation class.” Part 7: “The subject property has a history of disturbance from the use as a livestock grazing property and lifestyle living. The vegetation within the study area is significantly disturbed which is reflected in the Vegetation Integrity Score achieved via the BAM survey data…. Due to the poor condition of the vegetation subject to removal and its position within the landscape, it is highly unlikely that a Serious and Irreversible Impact will occur to either of the Endangered Ecological Communities or the threatened fauna species which may occur onsite… The proposed development of a new subdivision will not significantly impact upon any threatened species, threatened population or threatened ecological community as listed on the schedule of the NSW BC Act. No other potential habitat for any threatened fauna species or populations will be directly affected should the development be approved providing recommendations within this report are adopted.” The concerns raised have been considered and addressed by South East Environmental.
Stormwater drainage/quality of runoff	In response to these concerns, we provide the below extract from the Statement of Environmental Effects prepared by Smith & Tzannes, submitted with the DA: - Part 3.7: “At present, the stormwater catchment associated with the site falls from Forest Road and collects to the south and south-east of the property. Stormwater from future development will be captured for occupant use. Excess and surface runoff will be diverted away from the wastewater treatment area and along a 2m wide easement, as shown on the concept drawing. Disposal will be via existing infrastructure on Merry Beach Road. Refer accompanying Civil Engineer documentation. The proposed stormwater catchment is generally consistent with the existing catchment in that it falls from Forest Road to the rear boundary.” With reference to the plans prepared by MAKER Engineers, all stormwater that is not captured and reused onsite, will be filtered in the proposed bioretention basin before being disposed of. This is a better outcome than that currently in place.
Parking	The proposed large lots will accommodate an overflow of parking for future residents and visitors. This concern is not reasonable and has no merit.
Roads	The addition of 22 lots will not have any discernible impact on the local road network. The quality of the local road network is a matter that the residents should raise with Council.
Bushfire	Given the RFS has issued GTA’s for the proposed development, this concern is addressed.

Planning Assessment

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

Policy Implications

Not applicable

Financial Implications:

Nil, unless the matter is potentially litigated. See below.

Legal Implications

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

Under some circumstances, third parties may have a right to appeal Council’s decision to the LEC.

Summary and Conclusion

The Report and the attached s4.15 Assessment Report (Attachment 1) provides an assessment of the proposal for the subdivision of land into 20 Torrens title lots and associated civil works on the land identified as 33 Forest Rd Kioloa legally described as Lot 5 DP 1280813.

The proposed development has satisfied the provisions of SLEP 2014, and the overall objectives and provisions contained within Shoalhaven Development Control Plan (SDCP) 2014.

The proposal is considered to result in a development, which is suitable in the context of the existing and desired future character of the area.

This application has been subjected to a detailed analysis of the issues raised in the submissions which have been addressed in this report.

The application for subdivision is compliant with the relevant planning instruments and recommended for determination subject to conditions outlined in Attachment 2 - the draft determination.

Ordinary Meeting – Tuesday 12 November 2024

Page 0

CL24.356 Development Application – Proposed Resource Recovery Learning Centre at 120 Flatrock Road Mundamia, Lot 1 DP1018193

DA. No: RA23/1004/4

HPERM Ref: D24/447328

Department: Development Services

Approver: James Ruprai, Director - City Development

Attachments: 1. s4.15 Assessment Report - 120 Flatrock Rd Mundamia (under separate cover)

2. Determination - Approval RA24/1003 120 Flatrock Rd Mundamia (under separate cover)

Description of Development: Waste and Resource Recovery Learning Centre.

Owner: Shoalhaven City Council

Applicant: Shoalhaven City Council c/- Terrior Pty Ltd

Notification Dates: 1st November 2023 to 29th November 2023

No. of Submissions: Nil

Purpose / Reason for consideration by Council

The matter is put to Council in accordance with the protocol developed for these regionally significant applications to afford Council the opportunity to consider the Application and put forward its opinion via formal resolution to the Panel.

Recommendation

That:

1. Council receive and note the assessment report RA23/1004 – 120 Flatrock Rd Mundamia.

2. Council support the approval of RA23/1004.

3. The resolution made by Council be submitted to the Southern Regional Planning Panel prior to their consideration and determination of RA23/1004.

Options

1. Support the consultant’s recommendation to the Southern Regional Planning Panel (SRPP) for approval of the application and advise the SRPP accordingly.

Implications: The recommendation will be provided to the SRPP for their information as part of their consideration of the regional application.

2. Make an alternative resolution and make a separate submission to the SRPP.

Implications: The alternative resolution would be provided to the SRPP for their consideration. The SRPP will be the determining authority for the application.

Location Map

The site of the proposal is Lot 1 DP 1018193, 120 Flatrock Road, Mundamia. The land is within the existing Council West Nowra Waste Facility that is located approximately 3km west of the Nowra town centre. The waste facility exists over several lots and accommodates a range of waste related activities, including landfill and materials recycling. The site of the proposed waste and resource recovery learning centre is in the southwest corner of the subject lot, near the entry to the waste facility off Flatrock Road.

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Figure 1 Location Map

Background

Proposed Development

The proposal is to construct and operate a waste resource learning centre (the learning centre) on land within the Shoalhaven City Council West Nowra Recycling and Waste Depot (the waste facility), and includes:

· Removal of two existing buildings - one of which is shown as a generator

· Removal of five trees and retention of four, one of which is identified as a habitat tree

· Remediation of contaminated land

· Construction of the learning centre.

· Ancillary site works including carrying out of earthworks, construction of car parking, servicing, and landscaping.

The learning centre will comprise three detached single storey buildings (an office and two general purpose buildings) with storage, kitchen, and toilet facilities. The buildings will be set around a deck that will be used as an outdoor learning area. All construction will be on piers and will be above ground level.

The proposal consists of:

· Building A – 360m² with multi-purpose room, kitchen, materials recycling room (accessed through the kitchen) and change room (accessed through the storeroom)

· Building C – 205m² with ‘front of house’, lockers, toilets (male, female and accessible) and cleaner’s storeroom

· Building D – Approximately 120m² identified as office with meeting room and kitchenette

· B & E – suspended decking about the same area as the building area, including outdoor learning space

· 5m high gabion walls around the east and south of the built form.

Car parking (26) and bus parking, a bus drop off, and connecting paths will provide access. A bus turning circle in the vicinity of the buyback area to the north of the site. Cut and fill, and removal of 5 trees, to provide a level area for construction, roadworks and on-site sewage management are proposed. Phytoremediation is indicated (in the landscape plan only) to address soil contamination and it is proposed to capture water and treat any contamination in an expanded basin at the low point of the site (within and ‘exclusion zone’).

The learning centre will accommodate social, recreational, environmental, professional and cultural groups, including school groups (pre-school to senior high school). Council staff will also use the learning centre for training and meetings.

Planning Assessment

As the capital investment value of the development is more than $5 million and Council is the owner of part of the land subject to the application, in accordance with section 3 of Schedule 6 of SEPP (Planning Systems) 2021, the application constitutes a Regional Development Application, and the Southern Regional Planning Panel is the determining authority for the application.

The DA has been (independently) assessed under s4.15 of the Environmental Planning and Assessment Act 1979 by a reputable Planning Consultancy – Louise Menday (see Attachment 1) as a management measure intended to deal with any potential conflicts of interest and to comply with Council’s Conflict of Interests Policy POL22/149.

The assessment conducted has revealed that the application submitted has satisfactorily addressed all the requirements under s4.15 and recommends to the Southern Regional Planning Panel that the Application be determined by means of approval.

The Southern Regional Planning Panel is meeting to determine the Application on 20^th November 2024.

Community Consultations

The application was notified and advertised in accordance with the Environmental Planning and Assessment Regulation 2021 (EP&A Regs) and Council’s Community Consultation Policy for Development Applications from 1st November 2023 to 29th November 2023.

No submissions were received by Council in response to the notification and advertisement of the development application.

Summary and Conclusion

This application has not been satisfactorily assessed having regard to section 4.15 (Evaluation) under the EP&A Act 1979. Based upon the recommendations of the Section 4.15 Assessment Report (Attachment 1), Development Application No. RA23/1004 is recommended to the SRPP for approval, with conditions as outlined in the recommended approval document contained in Attachment 2 to this report.

Ordinary Meeting – Tuesday 12 November 2024

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CL24.357 Community-Led Projects - Update

HPERM Ref: D24/465508

Department: Recreation Projects - Planning & Delivery

Approver: Kevin Norwood, Acting Director - City Lifestyles

Attachments: 1. Draft Guidelines for Community-Led Projects (under separate cover)

2. Key Considerations and Update on Work Completed to Date (under separate cover)

3. Document Hierarchy (under separate cover)

4. Risks (under separate cover)

Purpose:

The purpose of this report is to provide an update on work undertaken to date in relation to preparation of a co-operative community policy and application portal for community groups seeking to undertake work on land owned or managed by Shoalhaven City Council, in accordance with MIN24.516.

Summary and Key Points for Consideration:

At the ordinary council meeting held on 28 October 2024, Council considered a Notice of Motion in relation to community-led projects (ref. MIN24.516).

In advance of this decision, staff had commenced work to update a related document, titled the Community Infrastructure Guidelines (the Guidelines), released in 2017.

Work to review the Guidelines commenced in July 2024, and is substantially progressed.

Consistent with the resolution of the Council, these Guidelines will now be developed to be an adjunct to a Council Policy, working in concert with each other and aimed at providing both guidance and a governance framework for community groups seeking to undertake work on land owned or managed by Shoalhaven City Council.

For clarity, the working title for the revised guidance document will be amended to: ‘Guidelines for Community-Led Projects’.

The prevailing policy will have a working title of ‘Community-Led Projects Policy’.

This report:

· Provides further information about the purpose and scope of the Guidelines, and an update on work undertaken to date in relation to supporting community groups to undertake work on land owned or managed by Council.

· Provides a timeframe for the development of the Community-Led Projects Policy (the Policy).

· Provides a timetable for completion of work related to the Guidelines and the development of a Council policy related to community-led projects, in accordance with MIN24.516.

· Provides an overview of benefits and risks of community led-projects, and Council’s legal obligations, associated with this matter.

Recommendation

That Council:

1. Accept the Community-Led Projects - Update report as an update on the Community-Led Projects Policy.

2. Accept the Community-Led Projects - Update report as an update on the Guidelines for Community-Led Projects, as outlined in the Background chapter and Attachment 1.

3. Note there are great benefits but also risks, and legal obligations, associated with enabling community groups to deliver projects on land owned or managed by Council, with a register of risks and legal obligations outlined in Attachment 2 and Attachment 4.

4. Direct the CEO to provide a future update report for Council’s consideration upon completion of the draft Community-Led Projects Policy and Guidelines for Community-Led Projects.

5. Note staff are currently liaising with over 20 community groups in relation to community-led project initiatives.

Options

1. Adopt the recommendation, as presented.

Implications: Support proactive management and facilitation of community-led project planning and delivery on Council Land, in accordance with relevant legislation and known risks. Ensure consistency in liaising with local community organisations about such projects.

2. Adopt an alternative recommendation, as determined by the Council.

Implications: The Council would need to provide further direction to the CEO, noting this may expose the organisation and/or community to significant risks (as outlined in the Risk Implications chapter of this report and Attachment 4).

Background and Supplementary information

At the Ordinary Council Meeting of 28 October 2024, Council provided direction to the CEO to prepare a policy and portal to support the delivery of community-led projects (ref. MIN24.516).

At that meeting Council resolved:

That Council:

1. Community groups and community organisations, including sporting bodies, be given the full proactive support of Councill staff in order to progress their expressed desires to make major contributions to the physical up-grade of their various precincts.

2. The proactive support of staff be measured in terms of the effectiveness and efficiencies in delivering community projects in a cost effective manner and without unnecessary delay.

3. Community human resources such as tradespeople, project managers and supervisors be given the appropriate status and weight in progressing the desires of local groups and the full commitment of staff to make things happen.

4. Directs the CEO to deliver a progress report within fourteen days on a co-operative community policy and application portal to be readily accessed on-line, so that our wonderful volunteers can get to work.

5. The general acknowledgement from Council is that more often than not, Council’s contribution will be in terms of the provision of materials, with the community providing the expertise and the labour.

This report addresses Recommendation 4 of that Resolution.

Benefits of a Community-Led Project Policy and Guidelines:

Firstly, Community-Led Projects (CLPs), identified by sporting social, educational, demographic, cultural and geographical groups of people within the city, and which are important to them, are able to be considered on a footing that is commensurate with projects identified by Council officers, Councillors and other stakeholders.

Specifically, CLPs can be considered consistently with the enterprise Project Management Office (ePMO), which has recently been created in the Council and which provides oversight and governance for all projects, and which considers the whole-of-life implications of all projects undertaken by the Council. The ePMO provides increased chance of project success and sustainability.

Secondly, CLPs Policy and Guidelines provide for the skills, knowledge, experience, qualifications and resources of members of the community to be brought to bear to provide greater good for the rest of the city.

Thirdly, the financial resources of the Council are able to be augmented by the value capture of volunteerism and local expertise of community participants who may be able to access funding through programs that may not ordinarily be available to the Council.

The sense of ownership and protection that the community feels for the assets and facilities that Council has stewardship of, can be enhanced and shared and the resulting value the community places on these assets can increases.

Communities can also feel empowered and part of a progressing movement towards greater community cohesion and contribution. This can foster greater social cohesion and community spirit.

Finally, through CSPs, collaboration between the Council and community groups can foster trust and a belief that Council can be seen as a problem-solver, as well as retaining the authorities required of it under the prevailing legislation, such as the Local Government Act, 1993 and the Environmental Planning and Assessment Act, 1979.

Risks and Legal Obligations of Community-Led Projects

Generally, due to the high-risk nature of construction activities involved in delivering capital works projects, it is not considered appropriate to adopt a blanket policy position providing endorsement for community groups to undertake works on land owned or managed by Council without appropriate oversight.

It is therefore considered necessary to facilitate receipt of requests for community-led projects through an application process, supported by appropriate staff resourcing and communications materials.

In 2017 Shoalhaven City Council published the Community Infrastructure Guidelines for use by community, recreation, and sporting groups seeking Council assistance with community driven infrastructure projects.

Work to review the Community Infrastructure Guidelines is substantially progressed. The Policy and Guideline documents, together with associated application forms, website and portal, will provide a one-stop reference (source of information) for community groups seeking to undertake work on land owned or managed by Shoalhaven City Council. Further information about the revised Guidelines is provided in Attachment 1.

It is anticipated a report will be provided to Council, including a draft copy of the revised guidelines and associated policy, for Council’s consideration in December 2024.

At present, City Lifestyles staff are liaising with over 20 community groups in relation to community-led projects on Council-owned or managed land. These requests are at varying stages of maturity, ranging from initial requests through to consideration of delivery models. Staff continue to liaise directly with these stakeholders, and will continue to do so as appropriate. This work has informed the preparation of a draft revised guideline document.

If a Policy and associated Guidelines are adopted by Council, adequate resourcing will need to be identified to support receipt, processing, and oversight for community-led projects. These resources do not currently exist and will need to be subject of a review of existing priorities, adopted in the 2024/25 Development Program/Operational Plan (DPOP).

Further information about key considerations in relation to Council support for community-led projects, and an update on work completed to date, is provided in Attachment 2.

Internal Consultations

Internal coordination has been undertaken with the following stakeholders: