Agenda of Ordinary Meeting

BYRON SHIRE COUNCIL

Notices of Motion 9.2

Notice of Motion No. 9.2 Opposition to Base Station Microwave Transceivers

File No: I2015/190

I move that Council shall henceforth decline to support any new application or proposal for radiofrequency and/or microwave base station transceivers to be sited within 500 metres of any school, preschool or occupied domestic premises within the jurisdiction of the Byron Shire Council due to repeated and ongoing community concerns regarding the possibility of adverse biological effects such as documented by peer-reviewed science, visual amenity, loss of property value and environmental damage.

In doing so we rely upon our duty of care, accredited scientific publications, and advisories in print from ARPANSA, the ACMA, and the Communications Alliance to apply a precautionary principle in addition to regulated safety standards.

Councillor’s Background Notes:

All over the world there has been an unprecedented explosion in the availability and use of non-ionizing electromagnetic fields for electrical and wireless communications technologies (mobile and cordless phones, WiFi and WIMAX networks, RFID, etc,)

There is a body of evidence now that indicates exposure to electromagnetic fields interferes with basic human biology and may increase the risk of cancer and other chronic diseases. The exposure levels at which these effects have been observed are many times lower than the standards promulgated by the International Commission for Non-Ionizing radiation Protection (ICNIRP) [4] and the IEEE's International Committee on Electromagnetic Safety (ICES) [5]. These standards are obsolete and were derived from biological effects of short-term high intensity exposures that cause health effects by temperature elevation and nerve excitation discovered decades ago.

Recent research indicates that electromagnetic fields could cause detrimental health effects even at very low levels of exposure. The ICNIRP and IEEE/ICES standards are being supported and promoted by interested parties to avoid precautionary technical planning, precautionary laws, and precautionary advice to the public. Over 42% of the World’s populations have exposure guidelines substantially more vigorous than those provided by ICNIRP. See the figure below noting standards adopted by other countries.

http://www.eesc.europa.eu/resources/docs/emf_report_-provided-by-dr-jamieson.pdf

Given that:

1. The World Health Organization classified radiofrequency radiation as a class 2B, possible human carcinogen in May 2009 following an expert panel review of the medical evidence. This classification applies to all sources of radiofrequency radiation, including cell phones, cell antennas and WiFi routers.

2. That for more than 10 years, Switzerland has been operating with an EMR standard that is 1 per cent of the current Australian Radiation Protection and Nuclear Safety Agency standard (proving this to be both technically and economically viable)

3. The “inability” of the Australian Telecommunication industry to obtain public liability insurance for potential health effects of electromagnetic radiation (EMR)

4. School districts in the UK, school boards and school medical health officers have been notified that Lloyd’s of London has now excluded any liability coverage for injuries, “directly or indirectly arising out of, resulting from or contributed to by electromagnetic fields, electromagnetic radiation, electromagnetism, radio waves or noise.” This would include the microwave radiation emitting from the commercial wi-fi transmitters and wireless devices in our schools.

http://thebridgenewsservice.com/2015/02/26/school-boards-left-on-the-hook-for-wi-fi-injuries/

http://www.citizensforsafetechnology.org/Lloyds-of-London-excludes-coverage-for-RFEMR-claims,2,4168

It is imperative that we develop policies that reconcile public health concerns with further development of wireless communications technology

Notwithstanding the points above, ARPANSA have noted warnings regarding risk and recommendations to limit exposure on their website. (ARPANSA) Is the Australian Radiation Protection and Nuclear Safety Agency which is a Federal Government agency charged with responsibility for protecting people and the environment from the harmful effects of radiation.

(a) Extracts from ARPANSA’S Fact Sheet 14 - “However, the technology is new and it is impossible to be completely sure there isn’t some risk.”
“Due to lack of evidence on mobile and cordless phone use by children, ARPANSA recommends that parents encourage their children to limit their exposure.”

(b) “Some research has indicated that non-thermal effects from low-level EMR exposure may also occur. However, the existence of these effects and their implications has not been sufficiently established to allow for them in the standard.” (Deleted from current version)

(c) Remaking the Human Exposure Standard & Electromagnetic Radiation Labelling Notice (ACMA publication). Statement is attributed to ARPANSA. "The health implications of biological effects below limits specified in the RF Standard are not known"

(d) Communication Alliance. Section 10.3.2: "The Carrier must not assert anything to the effect that the absence of scientific proof means that there is no possibility of risk arising from the operation of Mobile Phone Radio communications Infrastructure."

By supporting this Notice of Motion the Byron Shire Council would not only be leading the way for other Local Councils to follow suit but would also be drawing nationwide attention to the growing body of science that show children’s brains and bodies are more susceptible to the onset of neurological diseases and cancerous tumour formation than the general population.

Below are studies and references supporting the minimisation of public radiofrequency field exposure.

In many studies an increased risk of developing leukaemia has been found; in children near transmitter antennas for Radio and Television in Hawaii (3);

(3) MASKARINEC, G., COOPER, J. & L. SWYGERT (1994): Investigation of increased incidence in childhood leukaemia near radio towers in Hawaii:

Increased cancer cases and general mortality in the area of Radio and Television transmitter antennas in Australia (4);

(4) HOCKING, B., GORDON, IR., GRAIN HL. et al. (1996): Cancer Incidence and Mortality and Proximity to TV-Towers. Med. J. Australia 165, 11-12: 601-605

And in England, 9 times more leukaemia cases were diagnosed in people who live in a nearby area to the Sutton Coldfield transmitter antennas

(5) (5) DOLK, H., SHADDICK, G.,WALLS, P., GRUNDY, C., THAKRAR, B., KLEINSCHMIDT, I. & P. ELLIOT (1997a):Cancer Incidence Near Radio and Television Transmitters in Great Britain, Part 1. Sutton Coldfield Transmitter, Am. J.Epidemiol. 145: 1-9.

In a second study, concentrating on 20 transmitter antennas in England, a significant increased leukaemia risk was found

(6) DOLK, H., ELLIOT, G., SHADDICK, G., WALLS, P. & B. THAKRAR (1997b): Cancer Incidence Near Radio and Television Transmitters in Great Britain, Part 2. All High Tower Transmitters, Am. J. Epidemiol. 145: 10-17

The Cherry study (7) indicates an association between an increase in cancer and living in proximity to a transmitter station.

(7) CHERRY, N. (1999): Critism of the proposal to adopt the ICNIRP guidelines for cellsites in New Zealand, ICNIRP Guideline Critique, Lincoln University, Environmental Management and Design Division, Canterbury, NZ.

According to a study of the transmitter station of Radio Vatican, there were 2.2 times more leukaemia cases in children within a radius of 6 km, and adult mortality from leukaemia also increased (8).

(8) MICHELOZZI, P., CAPON, A., KIRCHMAYER, U., FORASTIERE, F., BIGGERI, A., BARCA, A. & C.A.PERUCCI (2001):Department of Epidemiology.Local Health Authority RME Rom, Italy

The three studies of symptoms indicated a significant correlation between illness and physical proximity to radio transmission masts. A study by Santini et al. in France resulted in an association between irritability, depression, dizziness (within 100m) and tiredness within 300m of a cell phone transmitter station (10)

(10) SANTINI, R., SANTINI, P., DANZE, J. M., LE RUZ, P. & SEIGNE,M. (2002): Symptoms experienced by people living in vicinity of cell phone base stations: I. Incidences of distance and sex, Pathol. Biol. 50: 369-373

In Austria there was an association between field strength and cardiovascular symptoms (11) .

(11) KUNDI, M. (2002): Erste Ergebnisse der Studie über Auswirkungen von Mobilfunk-Basisstationen auf Gesundheit und Wohlbefinden. Bericht des Instituts für Umwelthygiene der Universität Wien.

And in Spain a study indicates an association between radiation, headache, nausea, loss of appetite, unwellness, sleep disturbance, depression, lack of concentration and dizziness (12).

(12) NAVARRO EA., SEGURA J., PORTOLES M., GOMEZPERRETTA de MATEO C. (2003): Das Mikrowellensyndrom: Eine vorläufige Studie in Spanien. Electromagnetic Biology an Medicine (früher: Electro- and Magnetobiology) 22(2): 161169,www.grn.es/electropolucio/TheMicrowaveSyndrome.doc

Accredited Organisations That Have Issued

Bans or Warnings on Wireless Technologies

Parliamentary Assembly of the Council of Europe

US Teachers Federation

European Economic and Social Committee

BC Teachers Federation

Ontario Catholic Teachers Association

Parliament of HESSE (Germany)

USA Progressive Librarians Guild

Ontario Teachers Union

International Committee for Electromagnetic Safety

National Teachers Union (US)

State of the Research on Electromagnetic Fields

Bavarian Parliament

German Teachers Union

Paris City Council

Elementary Teachers Federation of Ontario

US Fish and Wildlife Service

National Institute for Occupational Safety and Health

UK Teachers Union

Australian Communications Authority (2000 Report)

City of Frankfurt Germany

Israeli Ministry of Education

Gibb's Report (Australia)

Interdisciplinary Society for Environmental Medicine

American Academy of Environmental Medicine

Health Canada

Austrian Medical Association United Teachers Union (US)

University of Pittsburgh Cancer Institute

Irish Doctors Environmental Association

Supreme Court of India

National Education Association (US)

Israeli Ministry of Health

Porto Alegre Resolution (100 Scientists)

Russian National Committee on Non-ionizing Radiation

European Environmental Agency

Vienna Medical Association

Freiberger Appeal (6,000 Doctors)

International Society for Environmental medicine

US Food and Drug Administration

American Bird Conservatory

US Environmental Protection Agency

German Federal Government

UK Department of Education

Venice Italy Resolution (57 Scientists)

Physicians for the Environment (Switzerland)

EU Parliament

International Association of Firefighters

Salzburg Public Health Department

National Library of France

Progressive Librarians Guild

National Education Association (US)

Finnish Health Authority

Recommended priority relative to other Delivery Plan tasks:

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Definition of the project/task:

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Source of Funds (if applicable):

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Signed: Cr Rose Wanchap

Management Comments by Phil Holloway Director Infrastructure Services and Shannon Burt Director Sustainable Environment and Economy:

(Management Comments must not include formatted recommendations – resolution 11-979)

Clarification of project/task:

That Council not provide land owners consent for any development application over Council owned and/or managed lands for any proposal for a radiofrequency and/or microwave base station transceivers which are proposed to be sited within 500 metres of any school, preschool or occupied domestic premises within the jurisdiction of the Byron Shire Council.

Director responsible for task implementation:

Director Sustainable Environment and Economy and Director Infrastructure Services

Council Policy No. 11/001 –“Telecommunication Facilities on Council Owned Land” (MD1078390) currently establishes a set of parameters for Council to consider prior to issuing owners consent for a development application and also requires that Owners Consent only be granted by way of resolution of Council.

This Policy could be reviewed to provide the additional information and parameters that Council would consider before providing land owners consent for any development application to include a blanket ban on any proposal for radiofrequency and/or microwave base station transceivers which are proposed to be sited within 500 metres of any school, preschool or occupied domestic premises within the jurisdiction of the Byron Shire Council. This would only apply to Council controlled lands and could limit Council’s opportunities to consider alternative sites that may be more appropriate than private land holdings.

Any proposed telecommunications facilities on private lands could still be constructed under State Environmental Planning Policy (Infrastructure) 2007, SEPP(Infrastructure) including both exempt and complying development in relation to telecommunications facilities as listed under Schedule 3A of the SEPP(Infrastructure). Where a Development Application is lodged for a telecommunications facility on private land, this would continue to subject to a merit assessment under the Environmental Planning and Assessment Act 1979.

Relationship to, priority of, and impact on other projects/tasks:

There is currently no proposal to review Council Policy No. 11/001 –“Telecommunication Facilities on Council Owned Land” which would require both staff resources and community consultation. As Owners Consent can only be granted by way of resolution of Council, the elected Council could continue to use its discretion for each individually proposed development on Council land to determine the appropriateness of the proposal.

Financial and Resource Implications:

There is limited financial and resource implications other than the potential loss of an additional rental income source where telecommunications facilities could have been appropriately installed on Council lands. A review Council Policy No. 11/001 –“Telecommunication Facilities on Council Owned Land” would require both staff resources and community consultation resources should this be proposed to occur.

Legal and Policy Implications:

The Commonwealth Telecommunications Act 1997 applies to holders of a “carrier licence” which are granted by the Australian Communications and Media Authority (ACMA) under provisions of the Act.

The Act authorises the installation of ‘low impact“ facilities. The Telecommunications Low –impact Facilities Determination 1997 defines what is meant by a “low-impact” facility. A low-impact facility includes a single extension of up to 5m to a tower in a rural or industrial zone, but not to such an extension in a residential or a commercial zone. A low impact facility also includes an antenna up to 2.8m with a mounting arm up to 3m in any zone. A low impact facility is not subject to state planning laws and as such are normally considered as “Exempt Development”.

The Act has generated the Telecommunications Code of Practice 1997 (The Code). Clause

4.13(2) of the Code applies to low-impact facilities as follows: “The carrier must take all reasonable steps to use existing facilities for the activity”. New telecommunications towers would generally be considered a high impact facility and subject to state planning laws. As mentioned previously these include State Environmental Planning Policy (Infrastructure) 2007 and the Environmental Planning and Assessment Act 1979.

Where development consent is refused or not obtained within 6 months, the carrier may apply for a Facility Installation Permit issued by the ACMA when it can be demonstrated that “the carrier” has made reasonable efforts to negotiate in good faith with the relevant proprietors and administrative authorities;”

The ACMA must not issue a facility installation permit unless it has held a public inquiry in relation to the permit. The Act also establishes the relevant environmental and other issues to be considered by the ACMA in determining such an application.

Applications may be made to the Administrative Appeals Tribunal to review a decision of the ACMA.

Legal Services comments on the expanded context of the NoM.

Legal services notes that the law relating to telecommunications tower development approval and construction is complex. It involves consideration of Federal and State legislation, as well as local by-laws.

Council is not the sole consent authority for the installation of telecommunications towers in the Byron Shire.

Even if the NoM is adopted, the Telecommunications Act 1997 (Cth) allows for the installation of ‘low impact’ towers without Council approval.

In this context, the NoM raises the following two issues:

1. The impact it would have on Council-owned land.

2. The impact it would have on the exercise of Council’s discretion to approve development under the Environmental Planning and Assessment Act 1979 (EP&A Act).

Regarding the first issue the NoM has the effect of substantially changing Policy 11/001 – Telecommunications Facilities on Council Owned Land.

The Policy provides for information that must be provided by an applicant wishing to install a tower on Council-owned land. However, the Policy currently places no restriction on the location of towers.

The NoM proposes a restriction on tower locations. As a result, this change would need to be reflected in the Policy.

Because of effect of the NoM on the Policy, the community should be consulted on any proposed policy change prior to its adoption. The NoM currently makes no provision for community consultation.

Regarding the second issue the NoM’s current wording is likely ultra vires. This is because it does not confine its scope to towers on Council-owned land. Rather, it applies to all land within Byron Shire.

If adopted, the effect would be to prevent Council from considering the matters it must consider under section 79C of the EP&A Act as part of using its discretion to assess a development application for a tower on private land.

Generally speaking, a Council policy cannot confine a statutory discretion to the point of preventing a decision-maker from making a decision in favour of a person when such a decision would be authorised by the discretion in the absence of the policy or direction.

This principle was summed up in Perder Investments Pty Ltd v Elmer (1991) 23 ALD 545 at 549:

‘Where Parliament says that in certain circumstances there is a discretion to grant permission, then no official may replace that law by one to the opposite effect – for example, by a [rule] requiring that in no circumstances shall permission be granted’.

Section 79C of the EP&A Act is one such instance where Parliament provides Council with a discretion to grant permission.

Previous consideration by the courts regarding telecommunications tower approvals shows the variety of relevant matters which must be considered before a lawful decision can be made: see, e.g., Telstra Corporation v Pine Rivers Shire Council and Ors [2001] QPELR 350.

The NoM as currently worded overrides Council’s discretion in relation to these matters.

It risks unlawfully fettering Council’s obligation to consider development applications on their merits.

A relevant NoM on the topic should:

1. Account for the existing Policy and the need for Council to consult the Byron Shire community regarding changes to the Policy.

2. Only apply to applications for telecommunications towers on Council-owned land.

Action ID	Name	Description	2013-17 Delivery Plan Linkage
56	Community Engagement Climate change and Peak oil Planning	Biodiversity & Sustainability committee to workshop with staff potential methods of reducing greenhouse gas emissions and improving peak oil preparedness under the current planning system and proposed planning reforms and identify opportunities to participate	14, 17, 45, 46, 47, 53
60	Byron Shire Renewable Energy	Support renewable energy projects throughout Byron Shire where possible	17, 25, 45, 46, 47
62	Carbon Farming	Promote carbon farming initiatives including soil health, revegetation, bio char and farm forestry	14, 42, 43, 46
63	Low Carbon Transport	Encourage and promote low carbon transport options to the community	22, 45, 46
64	Climate Change Mitigation and Peak oil Planning	Incorporate climate change mitigation and peak oil preparedness into local planning strategies	18, 45, 46, 53
77.	Cross departmental Collaboration	Work across Council to support implementation of Low Carbon Strategy	5, 17, 45
80.	Sustainability education	Deliver community sustainability education initiatives to reduce community environmental impact.	14, 16, 17, 46, 47

BYRON SHIRE COUNCIL

Staff Reports - Corporate and Community Services 13.1

Staff Reports - Corporate and Community Services

Report No. 13.1 Licence - Shara Community Gardens

Directorate: Corporate and Community Services

Report Author: Claire Campbell, Leasing/Licensing Officer

Kim Mallee, Sustainability Officer

File No: I2015/12

Theme: Ecology

Land and Natural Environment

Summary:

Council has received a request from Mullumbimby Sustainability Education & Enterprise Development Inc (Mullum SEED), on behalf of the Shara Gardens Committee, for further tenure of the land located at Lot 2005 DP808461 known as ‘Shara Community Gardens’, Shara Boulevarde, Ocean Shores NSW. The current licence agreement between Council and Mullum SEED for this site expires on 3 April 2015.

RECOMMENDATION:

1. That notice of Council’s intention to grant licences over Community Land being Lot 2005 DP808461 known as ‘Shara Community Gardens’, Shara Boulevarde, Ocean Shores NSW be notified and exhibited in accordance with Section 47 of the Local Government Act.

2. That subject to no submissions being received during the exhibition period, Council grant a licence to Mullumbimby Centre for Sustainable Living and Environmental Education Inc over Community Land being Lot 2005 DP808461, for the purpose of a community garden on the following terms:

a) Commencement date 4 April 2015;

b) Licence term of 6 months;

c) Rental equivalent to Crown minimum rent, currently $461.00 per annum ex GST.

3. That subject to the Licensee providing the required structural certifications and housing for their building materials; and no submissions being received during the exhibition period, Council grant a further licence to Mullumbimby Centre for Sustainable Living and Environmental Education Inc over Lot 2005 DP808461, for the purpose of a community garden on the following terms:

a) Commencement date 4 October 2015;

b) Licence term of 4 years and 6 months;

c) Rental equivalent to Crown minimum rent, currently $461.00 per annum ex GST;

6. That if submissions are received on the proposed licenses, a further report be provided to Council for consideration.

Attachments:

1 Report Shara Community Gardens - supporting information - Licence renewal request, E2015/12380 , page 36

Report

Land

Lot 2005 DP 808461 (Shara Boulevarde, Ocean Shores)

Owner – Byron Shire Council – Community Land

Category - Park

Use – passive recreation activities as described in Generic Plan of Management for Community Land Categorised as a Park #590121 adopted 24/02/05.

History

In February 2011 Council called for Expressions of Interest for the licence of Council owned land known as ‘Shara Boulevarde (Lot 2005 DP 808461)’ for the purposes of establishing a community garden.

Following this process a temporary ‘trial’ licence was entered into with Mullumbimby Community Gardens Inc. to establish a community garden known as ‘Shara Community Gardens’ in accordance with Byron Shire Community Gardens Policy.

This initial ‘trial’ licence agreement expired on 3 April 2012.

Subsequent to this and in accordance with both the Council’s Community Gardens Policy of the time, as well as the original Call for Expressions of Interest document, upon expiry of the temporary ‘trial’ licence, Mullumbimby Community Garden Inc. applied for a further term. At its Ordinary Meeting of 25 October 2012 Council considered report “12.11 Community Garden Ocean Shores - Licence Agreement” and resolved to grant a licence agreement for a period of 3 years [12-838] (http://www.byron.nsw.gov.au/meetings/historical-meetings/2012).

The term of this licence commenced on 4 April 2012, and will terminate on 3 April 2015.

The licensee Mullumbimby Community Garden Inc is now known as Mullumbimby Sustainability Education & Enterprise Development Inc (Mullum SEED). This name change has been previously notified to Council and supporting documents have been provided to Council, confirming this change of name.

Current

On the 27 January 2015 Mullum SEED wrote to Council and formally requested a renewal of the licence for a further term for the land located at Lot 2005 DP808461 known as ‘Shara Community Gardens’, Shara Boulevarde, Ocean Shores NSW.

On the 27 January 2015 Mullum SEED also provided Council with a written report outlining how they have satisfied the conditions and maintenance requirements during the current licence period, refer Attachment 1.

Provision of this written report satisfies the reporting requirement under Section 7 of council’s current policy governing the application of licensing renewal provisions - Policy No. 14/008 Byron Shire Community Gardens (http://www.byron.nsw.gov.au/policies).

Following the provision of this report, a Council compliance staff visited the site and conducted an inspection. Compliance staff advised that Mullum SEED have not yet provided Structural Engineering Certificates for three of the structures on site, and that they are required to move and enclose of some materials currently stored on site.

This report supports the continued tenure of the site by Mullum SEED for the purpose of a community garden, and recommends an initial 6 month licence term to provide sufficient time for Mullum SEED to obtain the necessary structural certifications, and to relocate and house the materials identified. Once this has been completed to the satisfaction of the General Manager, the recommendation is to provide further licence agreement for 4 years and 6 months.

Supporting comments from the Sustainability Officer are below:

Shara Community gardens have created a vibrant and sustainable social asset for the community of Ocean Shores. Over the past 3 years changes to the steering committee and membership renewal have seen a blossoming of activity at the gardens. The original swales have been re landscaped into abundant private and shared allotments with both vegetables, flowers and fruit trees throughout. Wooden sleeper raised vegetable beds have been installed in collaboration with the local primary school and neighbouring preschool to be utilised as a learning space and classes are conducted on the site regularly under the supervision of the school teachers.

Through fundraising, sponsorship and grants the steering committee in 2014 organised (with permission from Council) the construction of a new pergola for under cover seating, sand pit and beautiful locally made wooden picnic table. Additionally by working with Council’s parks and gardens team the committee was able to resolve a safety issue of people driving through the gardens from Clifford Street to Shara Boulevard by installing a new concrete footpath and lockable bollard. The bollard is removable for mulch deliveries and flood access and the path significantly improved the pedestrian connectivity of the area allowing for easy access of prams, scooters and bikes.

Shara Community gardens is a great example of how a volunteer organisation with small but meaningful support from Council can take ownership of vacant land and create a vibrant meeting place for sustainable learning and food production.

Financial Implications

A one-off $400 document preparation fee is payable by Mullum-SEED in accordance with the adopted fees and charges.

As an assessed Category 1 License arrangement, the annual rent for the licences would be charged at the equivalent of Crown minimum rent, currently $461.00 ex GST per annum, and increased in line with the Consumer Price Index (all groups) for Australia.

Statutory and Policy Compliance Implications

1. Policy No. 14/008 Byron Shire Community Gardens (http://www.byron.nsw.gov.au/policies).

2. Local Government Act 1993 No 30

47 Leases, licences and other estates in respect of community land—terms greater than 5 years

(1) If a council proposes to grant a lease, licence or other estate in respect of community land for a period (including any period for which the lease, licence or other estate could be renewed by the exercise of an option) exceeding 5 years, it must:

(a) give public notice of the proposal, and

(b) exhibit notice of the proposal on the land to which the proposal relates, and

(c) give notice of the proposal to such persons as appear to it to own or occupy the land adjoining the community land, and

(d) give notice of the proposal to any other person, appearing to the council to be the owner or occupier of land in the vicinity of the community land, if in the opinion of the council the land the subject of the proposal is likely to form the primary focus of the person’s enjoyment of community land.

(2) A notice of the proposal must include:

• information sufficient to identify the community land concerned

• the purpose for which the land will be used under the proposed lease, licence or other estate

• the term of the proposed lease, licence or other estate (including particulars of any options for renewal)

• the name of the person to whom it is proposed to grant the lease, licence or other estate (if known)

• a statement that submissions in writing may be made to the council concerning the proposal within a period, not less than 28 days, specified in the notice.

(3) Any person may make a submission in writing to the council during the period specified for the purpose in the notice.

(4) Before granting the lease, licence or other estate, the council must consider all submissions duly made to it.

(5) The council must not grant the lease, licence or other estate except with the Minister’s consent, if:

(a) a person makes a submission by way of objection to the proposal, or

(b) in the case of a lease or licence, the period (including any period for which the lease or licence could be renewed by the exercise of an option) of the lease or licence exceeds 21 years.

(6) If the council applies for the Minister’s consent, it must forward with its application:

• a copy of the plan of management for the land

• details of all objections received and a statement setting out, for each objection, the council’s decision and the reasons for its decision

• a statement setting out all the facts concerning the proposal to grant the lease, licence or other estate

• a copy of the newspaper notice of the proposal

• a statement setting out the terms, conditions, restrictions and covenants proposed to be included in the lease, licence or other estate

• if the application relates to a lease or licence for a period (including any period for which the lease or licence could be renewed by the exercise of an option) exceeding 21 years, a statement outlining the special circumstances that justify the period of the lease or licence exceeding 21 years

• a statement setting out the manner in which and the extent to which the public interest would, in the council’s opinion, be affected by the granting of the proposed lease, licence or other estate, including the manner in which and the extent to which the needs of the area with respect to community land would, in the council’s opinion, be adversely affected by the granting of the proposed lease, licence or other estate.

(7) On receipt of the application, the Minister must request the Director of Planning to furnish a report concerning the application within such period as the Minister specifies.

(8) After considering the application and any report of the Director of Planning, the Minister, if satisfied that:

(a) subsections (1), (2) and (6) have been complied with, and

(b) such consent would not contravene section 46, and

may consent to the granting of a lease, licence or other estate in respect of the whole or part of the land to which the application relates, subject to such terms and conditions as the Minister specifies.

(8AA) The Minister may consent to a lease or licence referred to in subsection (5) (b) only if the Minister is satisfied that there are special circumstances that justify the period of the lease or licence exceeding 21 years.

(8A) On request by any person, the Minister must provide that person, within 14 days of that request, with a written statement of reasons for consenting to, or refusing to consent to, the granting of a lease, licence or other estate in accordance with subsection (8).

(9) The Minister’s consent is conclusive evidence that the council has complied with subsections (1), (2) and (6).

(10) For the purposes of this section, any provision made by a lease or licence, or by an instrument granting any other estate, in respect of community land, according to which the council:

(a) would suffer a disadvantage or penalty if the same or a similar lease, licence or estate were not to be granted, for a further term, after the expiry of the current lease, licence or other estate, or

(b) would enjoy an advantage or benefit if the same or a similar lease, licence or estate were to be so granted, is taken to confer an option for renewal for a term equal to the further term.

BYRON SHIRE COUNCIL

Staff Reports - Corporate and Community Services 13.1 - Attachment 1

2. A brief report/document (1-2 pages) showing how you have met the licence conditions to date. In particular this should include:

QUESTION 2A .

How you have met the objectives of Annexure 2 of the attached policy (page 16)

ANNEXURE 2 GUIDELINES FOR COMMUNITY GARDEN OPERATIONS:

The responsibilities of community garden committees are outlined as follows:

SOCIAL

Value socio-cultural differences and encourage public access and visitation,

See attachment at bottom of page.

Maintain decision-making and conflict resolution processes that are equitable, inclusive and transparent,

General meetings are held once per month.

Shara Community Garden utilizes the Conflict resolution policy as per the Mullum SEED policy and procedures manual.

Form partnerships with existing community groups e.g. education providers, garden clubs, care facilities and other community garden groups,

Shara Community Gardens has formed a strong partnership with the Preschool next door and the Ocean Shores Primary school.

We also run a Work for the Dole program in partnership with Tursa.

Promote opportunities for learning through public art and interpretive signage,

We have interpretive signs for various plants and run regular workshops. We have had a number of local artists working in the garden doing murals etc. The structures ie, Rotunda, Pergola and Sand Pit have all been designed and built by local artistic builders to enhance the beauty of the space.

Communicate with Byron Shire Council in a transparent, regular and reciprocal manner concerning matters relating to the operation of community gardens,

We have regular meetings and email exchange with Kim Mallee to update council and discuss possible plans. We have submitted proposed plans to Leslie Beardmore for approval and discussed many aspects of these plans with Andy Erskin prior to submission.

Cultivate positive and respectful relationships within the immediate neighbourhood.

All of the immediate neighbors to the garden are very supportive of the garden and in fact all of them are involved in some way. The preschool is very appreciative of our work and has contributed in various ways over the years.

Recently we had a celebration which attracted a large number of local people. The Preschool kids had been working on a performance for the day for months beforehand and much fun was had by all.

MAINTENANCE AND ENVIRONMENTAL CONSIDERSATIONS

Communal gardens and allotments are to be kept neat and maintain a minimum standard of aesthetics, including the mowing of grassed areas,

The grounds are always maintained to a high standard. This is achieved through the work for the dole program and volunteer labor.

Actively control noxious and environmental weeds and pests. This must be undertaken in accordance with management guidelines,

We are constantly working on this and generally have next to no weed issues.

Utilise sustainable practices, such as recycling, water efficient gardening and organic gardening methods,

We employ organic methods and are working towards a sustainable water plan.

Ensure any odours produced by manures, composting and fertilizers are controlled,

Yes

Maintain composting and worm farm systems so as not to harbour vermin,

Yes

Ensure all water used on site is sourced from either designated water connections, licensed bore supply or harvested from rainwater tanks,

Yes

Ensure that any runoff from the garden is not contaminated by fertilizer, sediment, manure or excessive organic matter,

Yes

Identify and implement any opportunities for environmental restoration on the site.

We are working on this.

DEVELOPMENT OF INFRASTRUCTURE

Gardeners must ensure all structures erected on the site are of a removable nature and located completely within the boundaries of the site. Removable nature would ensure relocation can be practically achieved in 12 hours by the use of not more than one 4WD vehicle for the entire relocation procedure and include the removal of all imported elements, including retaining walls, foundations and supports,

All structures on site are of a removal nature and have been approved by Byron Shire council as per Question 2B.

MANAGEMENT AND NEIGHBOURHOOD RELATIONS

Develop a site specific community garden management plan that details the gardens’ aims and procedures for routine operation, such as the allocation of allotments,

Yes

Maximise opportunities for economic self-sufficiency. Any funding from Council will only be temporary in nature through grants and sponsorship opportunities,

Yes

Develop operational health and safety, access and behavioral policies for the garden. These may emulate policies developed by other community gardens,

We have health and safety policies.

Ensure adequate community consultation is undertaken to gauge neighbourhood interest regarding proposals for new community gardens,

We regularly engage the local community to discuss plans.

Ensure noise levels are kept to a standard which does not disturb neighbours,

Yes

Prohibit the lighting of any open fires on the land, excluding the operation of a combustion stove, cob earth oven or gas BBQ,

Yes

No livestock are to be kept on the site, with the exception of poultry (excluding roosters) and bees. Any animals kept on the site will be enclosed and kept away from residential boundaries and be subject to a pre-established management process,

Yes. We have no livestock.

Ensure any dogs are controlled on leashes at all times while in the boundaries of the garden,

Yes

Maintain general operating hours to within daylight hours.

Open 24hrs.

ACTIVITIES AND EVENTS

Ensure that all events and activities convened at the site are held in a safe and inclusive manner with the focus being around sustainability, education, community or site development,

Yes

Limit music to acoustic and non-amplified at all times,

Yes

Ensure that the site remains a drug and alcohol-free zone,

Shara Gardens is a drug and alcohol free site as per our Membership guidelines.

Ensure no event will proceed beyond 6.00pm without prior written consent from Byron Shire Council,

All events on site are finished by 6pm.

Ensure that neighbouring properties bordering the site are given adequate written notice, being a minimum of two (2) weeks prior to any event being held,

Neighbours are given 2 weeks notice before all events on site.

Ensure that any notification of an event entails, a description of the planned event, the estimated duration of the event and contact details of a relevant person overseeing the event,

Yes

Ensure consistency with Council’s Events Policy.

Yes

INSURANCE AND INCORPORATION

To ensure a duty of care is held for all members, Council requires that all community garden groups maintain a minimum $10,000,000 public liability insurance at all times,

An affiliated community organisation may auspice a community garden group and permit the community garden to be covered under their insurance,

Community garden groups may unite to purchase insurance collectively,

Yes, co-insured with Mullumbimby Community Gardens.

2 approved
Rotunda

Shed

Pergola

Garden beds

Sandpit

Path and Bollard

2c. How you have met special conditions to your site such as the acid sulphate soil management and buffers to sewer mains on the lower boundary

We have been careful not to disturb any of the acid sulphate soil found in some parts of the property.

We have maintained good clearance of all structures from the sewer mains on the lower boundary.

2d. Successes and the positive achievements you have created at the site

- Shara Community Gardens is a major public through fare and meeting place. One of the strongest guiding principles in the management of the Gardens is to enhance these and develop these qualities.

-We have, since the construction of our garden shed and the purchase of our mower and whipersniper maintained the garden at a high level keeping the lawns well maintained and the walkways clear at all times. We have worked with council (Andy Erskine from Parks and Gardens) to install a pathway/bikeway with a bollard to stop cars driving through the gardens. This has made what was an eroded often boggy path a joy to use for the community. Where mothers used to get bogged with there prams and people would fall off their bikes they now glide through with ease.

Since the gardens were developed there has been much more respect for the space in general. No longer do we find people driving through the park and doing donuts in their cars chewing up the grass and making the path all but unusable.

-Shara Community Gardens has become a natural meeting place for people of all different ages and back grounds. Every day there are people moving through the gardens, enjoying the many different plantings and lay out.

-We have both private garden plots (which are reserved for members who pay a small yearly fee) and community plots which are maintained by volunteers and can be harvested by anyone who visits the garden. There are signs to inform people what many of the rare plants are and we regularly have small workshops on various subjects.

-Historically the area was neglected with the grass often growing up to a meter high before the council would send in a big tractor with a slasher to knock it down. Being right next to the kindergarden this then posed concerns around snakes etc.

-Shara Community Gardens has formed a strong partnership with the preschool next door and we are in constant communication about how we can improve things.

We maintain a strong connection with both the Ocean Shores Primary school and the Preschool with students from the Primary School coming to gardens every week during the school term for classes in the gardens. This has given the children a great chance to lean more about organic gardening and sustainability in general and has also created a connection for these children and their parents to the space, which has in tern meant that they visit regularly and encourage their friends respect the space.

-With council approval, we have built a pergola and sand pit and hope to extend this to include a basic playground for young children. A weekly playgroup has started.

-Our aim is to develop the garden to serve the local community whilst promoting local food growing and sustainability in as many ways as possible. In the time that we have been working in and developing the garden we have found that it has become a major public meeting point. Especially for families, mums and dads walking with the kids and grandparents with grand children. More and more we are seeing people meeting in the gardens for a picnic or just a chat. Strolling through the private and community beds looking and learning.

BYRON SHIRE COUNCIL

Staff Reports - Corporate and Community Services 13.2

Report No. 13.2 Investments - February 2015

Directorate: Corporate and Community Services

Report Author: James Brickley, Manager Finance

File No: I2015/188

Theme: Corporate Management

Financial Services

Summary:

This report includes a list of investments and identifies Council’s overall cash position as at 28 February 2015 for Council’s information.

This report is prepared to comply with Regulation 212 of the Local Government (General) Regulation 2005.

RECOMMENDATION:

That the report listing Council’s investments and overall cash position as at 28 February 2015 be noted.

Report

In relation to the investment portfolio for February 2015, Council has continued to maintain a diversified portfolio of investments The average 90 day bank bill rate (BBSW) for the month of February was 2.37%. Council’s performance for the month of February is a weighted average of 3.26%. This performance is again higher than the assumed benchmark. This is largely due to the active ongoing management of the investment portfolio, maximising investment returns through secure term deposits. Council’s investment portfolio should continue to out-perform the benchmark as the capital protected investment earning 0% interest nears maturity.

There is now only one capital protected investment held by Council which is fully allocated to an underlying zero coupon bond. This investment is the Emu Note which will mature in October 2015.

The table below identifies the investments held by Council as at 28 February 2015:

Schedule of Investments held as at 28 February 2015

Purch Date	Principal ($)	Description	CP*	Rating	Maturity Date	Type	Interest Rate Per Annum	Current Value
26/09/05	1,500,000	EMU NOTES	CP	AAA-	25/10/15	MFD	0.00%*	1,461,150.00
20/06/12	500,000	HERITAGE BANK LTD BONDS	N	BBB+	20/06/17	B	7.25%	530,000.00
12/01/15	1,000,000	MACQUARIE BANK	P	A	13/04/15	TD	3.35%	1,000,000.00
08/12/14	2,000,000	NEWCASTLE PERMANENT	N	NR	09/03/15	TD	3.35%	2,000,000.00
23/02/15	2,000,000	ING BANK (AUSTRALIA)	N	A1	24/08/15	TD	3.11%	2,000,000.00
09/12/14	2,200,000	POLICE CREDIT UNION	P	NR	08/04/15	TD	3.43%	2,200,000.00
13/01/15	2,000,000	ME BANK	N	BBB	13/04/15	TD	3.35%	2,000,000.00
11/02/15	2,000,000	BANK OF QUEENSLAND	N	A2	12/05/15	TD	3.15%	2,000,000.00
09/12/14	1,000,000	ING BANK (AUSTRALIA)	N	A1	09/06/15	TD	3.55%	1,000,000.00
05/01/15	1,000,000	WIDE BAY AUSTRALIA LTD	N	NR	07/04/15	TD	3.40%	1,000,000.00
08/12/14	1,000,000	WIDE BAY AUSTRALIA LTD	N	NR	09/03/15	TD	3.45%	1,000,000.00
10/12/14	2,000,000	NAB	N	AA-	10/03/15	TD	3.40%	2,000,000.00
10/11/14	2,000,000	COMMINVEST	N	AA-	10/05/15	TD	3.40%	2,000,000.00
08/12/14	2,000,000	NAB	N	AA-	09/03/15	TD	3.40%	2,000,000.00
01/12/14	2,000,000	NAB	N	AA-	03/03/15	TD	3.40%	2,000,000.00
02/09/14	2,000,000	NAB	N	AA-	02/03/15	TD	3.55%	2,000,000.00
15/12/14	2,000,000	ME BANK	N	BBB	15/03/15	TD	3.35%	2,000,000.00
09/12/14	2,000,000	BANKWEST	N	A1+	09/03/15	TD	3.45%	2,000,000.00
08/01/15	1,000,000	BANKWEST	N	A1+	08/04/15	TD	3.50%	1,000,000.00
14/11/14	1,000,000	ING BANK (AUSTRALIA)	N	A2	14/11/14	TD	3.52%	1,000,000.00
12/02/15	1,000,000	NEWCASTLE PERMANENT	N	NR	13/05/15	TD	3.21%	1,000,000.00
12/02/15	2,000,000	NAB	N	AA-	13/05/15	TD	3.21%	2,000,000.00
23/02/15	2,000,000	NAB	N	AA-	25/05/15	TD	3.13%	2,000,000.00
01/12/14	2,000,000	PEOPLES CHOICE CREDIT UNION	N	BBB+	03/03/15	TD	3.40%	2,000,000.00
01/12/14	2,000,000	ING BANK (AUSTRALIA)	N	A2	03/06/15	TD	3.56%	2,000,000.00
02/12/14	2,000,000	CREDIT UNION AUSTRALIA	N	BBB+	31/08/15	TD	3.55%	2,000,000.00
06/02/15	2,000,000	BANKWEST	N	A1+	10/04/15	TD	3.10%	2,000,000.00
09/12/14	2,000,000	SUNCORP	P	A+	08/04/15	TD	3.45%	2,000,000.00
05/01/15	2,000,000	BANKWEST	N	A1+	06/03/15	TD	3.40%	2,000,000.00
08/01/15	2,000,000	WIDE BAY AUSTRALIA LTD	BBB	NR	08/04/15	TD	3.40%	2,000,000.00
28/01/15	2,000,000	ME BANK	N	BBB	28/04/15	TD	3.35%	2,000,000.00
30/01/15	2,000,000	BANK OF QUEENSLAND	N	A2	29/05/15	TD	3.35%	2,000,000.00
03/02/15	1,000,000	MACQUARIE BANK	P	A1	04/05/15	TD	3.30%	1,000,000.00
05/02/15	2,000,000	SUNCORP	N	A1	06/05/15	TD	3.15%	2,000,000.00
11/02/15	2,000,000	AMP BANK	N	A	12/08/15	TD	3.30%	2,000,000.00
13/02/15	2,000,000	RABOBANK	N	A1+	14/05/15	TD	3.10%	2,000,000.00
12/02/15	1,000,000	RABOBANK	N	A1+	13/06/15	TD	3.10%	1,000,000.00
N/A	2,001,566	CBA BUSINESS ONLINE SAVER	N	A	N/A	CALL	2.25%	2,001,566.46
Total	65,201,566					AVG	3.26%	65,192,716.46

It should be noted that at the time of writing this report, Council had not received a valuation for the EMU Note for February 2015. This investment is highlighted in bold in the table above with the valuation reflective from 31 December 2014, this being the most recent current valuation received by Council.

Note 1.	CP = Capital protection on maturity
	N = No Capital Protection
	Y = Fully covered by Government Guarantee
	P = Partial Government Guarantee of $250,000 (Financial Claims Scheme)

Note 2.	Type	Description

	MFD	Managed Fund	Principal varies based on fund unit. Price valuation, interest payable varies depending upon fund performance.
	TD	Term Deposit	Principal does not vary during investment term. Interest payable is fixed at the rate invested for the investment term.
	CALL	Call Account	Principal varies due to cash flow demands from deposits/withdrawals, interest is payable on the daily balance at the cash rate +0.50%

Note 3. Floating rate notes and Term Deposits can be traded on a day-to-day basis, and therefore Council is not obliged to hold the investments to the maturity dates. Managed funds operate in a similar manner to a normal bank account with amounts deposited or withdrawn on a daily basis. There is no maturity date for this type of investment.

*Note 4. The coupon on these investments is zero due to the Capital Protection mechanism working. This occurs when the investment falls below a certain level. This coupon may be paid again in the future as the market recovers.

For the month of February 2015, as indicated in the table below, there is a dissection of the investment portfolio by investment type. It illustrates the current value of investments remains the same as January, demonstrating a cumulative unrealised loss of $8,850.00.

Dissection of Council Investment Portfolio as at 28 February 2015

Principal Value ($)	Investment Linked to:-	Current Market Value ($)	Cumulative Unrealised Gain/(Loss) ($)
61,200,000.00	Term Deposits	61,200,000.00	0.00
2,001,566.46	Business On-Line Saver (At Call)	2,001,566.46	0.00
1,500,000.00	Managed Funds	1,461,150.00	(38,850.00)
500,000.00	Bonds	530,000.00	30,000.00
65,201,566.46		65,192,716.46	(8,850.00)

The current value of an investment compared to the principal value (face value or original purchase price) provides an indication of the performance of the investment without reference to the coupon (interest) rate. The current value represents the value received if an investment was sold or traded in the current market, in addition to the interest received.

The table below provides a reconciliation of investment purchases and maturities for the period 31 January 2015 to 28 February 2015 on a current market value basis.

Movement in Investment Portfolio – 31 January 2015 to 28 February 2015

Item	Current Market Value (at end of month)
Opening Balance at 31 January 2015	65,189,207.54
Add: New Investments Purchased	21,000,000.00
Add: Call Account Additions	0.00
Add: Interest from Call Account	3,508.92
Less: Investments Matured	21,000,000.00
Less: Call Account Redemption	0.00
Add: Fair Value Movement for period	0.00
Closing Balance at 28 February 2015	65,192,716.46

Investments Maturities and Returns – 31 January 2015 to 28 February 2015

2,000,000.00	Suncorp	TD	02/02/2015	91	3.40%	16,953.42
1,000,000.00	AMP Bank	TD	03/02/2015	90	3.25%	8,013.70
2,000,000.00	Bank of Queensland	TD	05/02/2015	120	3.40%	22,027.40
2,000,000.00	Bankwest	TD	06/02/2015	60	3.40%	11,178.08
2,000,000.00	National Australia Bank	TD	09/02/2015	91	3.40%	16,953.42
2,000,000.00	Bank of Queensland	TD	11/02/2015	127	3.35%	23,312.33
1,000,000.00	National Australia Bank	TD	12/02/2015	92	3.40%	8,569.86
2,000,000.00	National Australia Bank	TD	12/02/2015	90	3.42%	16,865.76
1,000,000.00	Peoples Choice Credit Union	TD	12/02/2015	90	3.43%	8,457.53
1,000,000.00	Newcastle Permanent	TD	12/02/2015	90	3.35%	8,260.27
1,000,000.00	National Australia Bank	TD	12/02/2015	90	3.40%	8,383.57
2,000,000.00	National Australia Bank	TD	23/02/2015	90	3.42%	16,865.75
2,000,000.00	ING Bank (Australia)	TD	23/02/2015	181	3.56%	35,307.40
21,000,000.00						201,148.49

The overall ‘cash position’ of Council is not only measured by what funds Council has invested but also by what funds Council has retained in its consolidated fund or bank account as well for operational purposes. In this regard, for the month of February 2015 the table below identifies the overall cash position of Council as follows:

Dissection of Council Cash Position as at 28 February 2015

Item	Principal Value ($)	Current Market Value ($)	Cumulative Unrealised Gain/(Loss) ($)
Investments Portfolio
Term Deposits	61,200,000.00	61,200,000.00	0.00
Business On-Line Saver (At Call)	2,001,566.46	2,001,566.46	0.00
Managed Funds	1,500,000.00	1,461,150.00	(38,850.00)
Bonds	500,000.00	530,000.00	30,000.00
Total Investment Portfolio	65,201,566.46	65,192,716.46	(8,850.00)

Cash at Bank
Consolidated Fund	2,105,243.67	2,105,243.67	0.00
Total Cash at Bank	2,105,243.67	2,105,243.67	0.00

Total Cash Position	67,306,810.13	67,297,960.13	(8,850.00)

Financial Implications

Council uses a diversified mix of investments to achieve short, medium and long-term results. Council’s historical strategy is to use credit/equity markets for exposure to long term growth. It should be noted that Council’s exposure to credit/equity products is capital protected when held to maturity, which ensures no matter what the market value of the product is at maturity, Council is insured against any capital loss. The investment strategy associated with long term growth is now prohibited under the current Ministerial Investment Order utilising credit/equity markets to seek investment products. However, the ‘grandfathering’ provisions of the Ministerial Investment Order provides Council can retain investments now prohibited until they mature. It should be noted that Council currently holds only one of these investments, the EMU notes. This investment will trend towards it’s full principal value as it approaches maturity.

Council’s investment strategy is currently to invest for the short term (generally 90 days on new investments) to take advantage of investment opportunities often offered in the market over and above the 90day bank bill rate whilst ensuring sufficient liquidity to meet cash flow requirements. This provides the ability to take advantage of interest rate movements in the market as short term rates are currently not dissimilar to longer term rates (2 to 5 years).

Statutory and Policy Compliance Implications

In accordance with Regulation 212 of the Local Government (General) Regulation 2005, the Responsible Accounting Officer of Council must provide Council with a monthly report detailing all monies Council has invested under section 625 of the Local Government Act 1993.

The Report must be presented at the next Ordinary Meeting of Council after the end of the month being reported. In this regard, the current Council Meeting cycle does not always allow this to occur, especially when investment valuations required for the preparation of the report, are often received after the deadline for the submission of reports for the meeting. Endeavours will be made to ensure the required report will be provided to Council and this will for some months require reporting for one or more months.

Council’s investments are carried out in accordance with section 625(2) of the Local Government Act 1993 and Council’s Investment Policy. The Local Government Act 1993 allows Council to invest money as per the Ministers Order – Forms of Investment, last published in the Government Gazette on 11 February 2011.

Council’s Investment Policy includes the objective of maximising earnings from authorised investments and ensuring the security of Council Funds.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.3 - Attachment 1

DEVELOPMENT APPLICATION EVALUATION REPORT

Doc No. #A2014/19344

DA No:	10.2014.417.1
Proposal:	Demolition of existing residential flat building & construction of a new residential flat building and associated works
Property description:	LOT: 0 SP: 16094 43 Lawson Street BYRON BAY
Parcel No/s:	41930
Applicant:	D P Roberts Planning Solutions
Owner:	The Owners of Strata Plan 16094
Zoning:	7(f2) Urban Coastal Land Zone
Date received:	18 July 2014
Integrated Development:	No
Public notification or exhibition:	- Level 2 advertising under DCP 2010 Chapter 17 – Public Notification and Exhibition of Development Applications - Exhibition period: 29/7/14 to 11/8/14 - Submissions: For 0 Against 2
Other approvals (S68/138):	Not applicable
Planning Review Committee:	N/A
Delegation to determination:	Council
Recommendation:	It is recommended that pursuant to Section 80 of the Environmental Planning & Assessment Act 1979, Development Application No. 10.2012.474.1 for demolition of existing residential flat building and construction of new residential flat building and associated works, be refused for the following reasons: 1. Pursuant to Section 79C(1)(a)(i) of the Environmental Planning & Assessment Act 1979, the proposal fails to meet the development standard for maximum height of buildings as set out within Clause 40 of Byron Local Environmental Plan 1988. An objection under State Environmental Planning Policy No. 1 to vary this development standard is not supported. 2. Pursuant to Section 79C(1)(a)(iii) of the Environmental Planning & Assessment Act 1979, the proposal breaches a number of requirements within Development Control Plan 2010 including the maximum building height plane, maximum density provisions, minimum landscaping requirements, provision of clothes drying areas, maximum cut and fill and maximum fence heights. 3. Pursuant to Section 79C(1)(b) of the Environmental Planning & Assessment Act 1979, the proposal is likely to have a significant impact on the surrounding built environment and the occupants of that environment. 4. Pursuant to Section 79C(1)(a)(i) of the Environmental Planning & Assessment Act 1979, the proposal fails to demonstrate that the development has sufficient design quality having regards to the principles and code requirements of State Environmental Planning Policy No. 65 – Design Quality of Residential Flat Development. 5. Pursuant to Section 79C(1)(a)(ii) of the Environmental Planning & Assessment Act 1979, the proposal is inconsistent with the future planning direction for the site as set out within Clauses 4.1E, 4.3 and 4.4 Byron Local Environmental Plan 2014, which is an instrument that has been the subject of public consultation under the Environmental Planning and Assessment Act 1979. 6. Pursuant to Section 79C(1)(e) of the Environmental Planning & Assessment Act 1979, the it is not in the public interest to support the proposal as it breaches a number of development control requirements and has an adverse impact on the surrounding built environment. 7. Pursuant to Section 79C(1)(c) of the Environmental Planning & Assessment Act 1979, the site is assessed as being unsuitable for the development proposed. 8. Pursuant to Section 79C(1)(d) of the Environmental Planning & Assessment Act 1979, consideration of public submissions received with respect of the proposal raise valid planning reasons to refuse the Development Application. 9. Pursuant to Section 79C(1)(a)(i) of the Environmental Planning & Assessment Act 1979, the proposal fails to demonstrate that the site is suitable for use having regards to the assessment requirements of State Environmental Planning Policy No. 55 – Remediation of Land.

1. INTRODUCTION

1.1 History/Background

The subject allotment contains a three storey building that contains 6 x 2 bedroom units that were approved under Building Application No. 1980/10. The existing building is somewhat unique in the locality, constructed of face brick walls, aluminium framed windows and concrete tile roofing. The building includes an attached single storey garage fronting Lawson Street with provision for 6 vehicles.

The Development Application was lodged with Council on 18 July 2014 which was three days before the commencement of Byron Local Environmental Plan 2014. Accordingly, the proposal is required to be assessed in consideration of Byron Local Environmental Plan 1988 and Byron Development Control Plan 2010. It is noted that the Environmental Planning and Assessment Act 1979 requires Council to consider Byron Local Environmental Plan 2014 as a draft instrument only.

1.2 Description of the site

The site of the proposed development is described as Lots 1-6 in Strata Plan 16094 and is located at No. 43 Lawson Street, Byron Bay. The allotment is located on the northern side of Lawson Street and takes access from this through road.

The allotment has a rectangular configuration with a street frontage and rear boundary dimensions of 21.3 metres, and side boundary dimensions of 33.38 metres, providing an area of 711 square metres. The site is generally level throughout but falls very slightly from the centre of the allotment to the north, south and west. Large residential allotments adjoin to the east and west, with an apartment building occupying the adjacent lot to the west. An apartment building occupying the allotment to the east was recently demolished to make way for a new development. A public reserve adjoins the site to the north which extends into the Byron Bay foreshore.

Vegetation on the site is limited to grasses and isolated landscaping trees and palms.

1.3 Description of the proposed development

Development consent is sought to demolish the existing development on the site and construct a new residential flat building made up of a basement level and three levels above ground.

The design includes three separate units on both the ground level and first level, and a single unit on the second level. Terrace and balcony areas are proposed on the northern side of the building providing solar access for each individual unit. Four swimming pools are proposed at ground level and a lap pool and spa are proposed on the second floor.

The proposed building includes a mix of materials and incorporates balcony areas on the northern and southern elevations. The majority of bedrooms within the development are located along the eastern and western elevations with screened windows facing neighbouring properties. A total of 16 car parking spaces are proposed within the basement car park. Internal staircases and a lift provide access to each floor within the development.

An indicative landscaping plan has been submitted to support the development. The configuration of the proposed units are described below:

Unit	Bedrooms	Parking	Gross Floor Area	Private open space provision
1	2	2 spaces	94.0m²	22.6m² courtyard with plunge pool
2	1	2 spaces	54.9m²	25.6m² courtyard with plunge pool
3	3	2 spaces	95.3m²	22.6m² courtyard with plunge pool
4	3	2 spaces	121.0m²	13.6m² balcony
5	1	2 spaces	54.9m²	17.1m² balcony
6	3	2 spaces	141.4m²	13.6m² balcony
7	4	2 spaces	214.5m²	166.8m² balcony with lap pool & spa

2. SUMMARY OF REFERRALS

	Issue
Development Engineer	Access, parking, stormwater disposal, coastal erosion and contributions.
Water & Waste Services	Water supply and Sewer connection Clause 45 of Byron LEP 1988 Developer contributions
Environmental Officer	SEPP 55, Noise, Land use conflicts, acid sulfate soils
NSW Office of Water	Dewatering licence

2.1 Comments from NSW Office of Water

The proposal includes over 3 metres of excavation to create a basement car parking area. Such would likely require a dewatering licence. Correspondence from NSW Office of Water advised as follows:

2.2 Consultation with Applicant

An initial assessment of the proposal identified a number of non-compliances with Council’s development control requirements. These include breaches of the maximum height requirements of Byron Local Environmental Plan 1988 and multiple breaches of Development Control Plan 2010 relating to building setbacks, building height plane, overshadowing, privacy, lack of landscaping, bulk and scale.

Clause 40 of Byron Local Environmental Plan 1988 prescribes maximum height requirements for the subject site. A maximum overall height of 9.0 metres and a maximum uppermost floor level of 4.5 metres apply in this case. The proposal breaches both of these requirements. An objection under State Environmental Planning Policy No. 1 was submitted with the Development Application requesting a variation to the requirements of Clause 40, arguing that compliance with the height controls is unreasonable and unnecessary in the circumstances of the case.

In August 2014, the Applicant was formally requested to provide an amended proposal that addressed the non-compliances raised in the initial assessment. A meeting was held with the Applicant to discuss options to achieve greater compliance with Council’s development controls. These included reducing the height of the proposal, increasing the boundary setbacks and reducing the number of proposed dwelling units. In addition, issues raised within public submissions that were received during the public exhibition of the development application were discussed. These included privacy, density and overshadowing concerns.

The original proposal that was submitted to Council in July 2014 sought approval for 9 dwelling units. Amended plans were submitted by the Applicant in late August 2014 showed a reduction in the number of proposed dwelling units to 7. In addition, the amended plans showed some additional deep soils landscape planting areas. However, the amended proposal made no improvement to the design of the development having regards to height, building setbacks, building height plane, overshadowing, privacy, bulk and scale.

Documentation accompanying the amended plans submitted by the Applicant argued that an existing approval on the adjoining property to the east (45-47 Lawson Street) provides a level of justification for the variations proposed within the amended design. A review of the development approval history of this adjoining site confirms that the approved design relates back to a Development Application for a motel that was granted consent in April 2001, a time when the maximum height controls in Byron Shire were very different to the current controls. Further, the most recently approved plans for this neighbouring property provide a greater level of compliance with building setback and building height plane controls than the proposal for 43 Lawson Street.

The subject site is surrounded by a mixture of development forms and densities. The proposal seeks to create a similar form of development to that approved on the adjoining site to the east, however the subject site is significantly smaller that the neighbouring property with less area available to accommodate a development of its proposed height and density. The small site area (711 square metres) creates a situation where non-compliances with development controls cumulate to a point where the design is not able to be supported on planning grounds.

Further conversations were entered into with the Applicant in November/December 2014 seeking to have outstanding planning issues resolved. However, the Applicant indicated at that time that the final proposal had been submitted to Council for assessment. Accordingly, a draft assessment report for the proposal was completed in February 2014 with a recommendation for refusal. A copy of this draft assessment report was forwarded to the Applicant with an invitation to provide an amended proposal which addressed the issues raised within the report. No response was received from the Applicant.

3. SECTION 79C – MATTERS FOR CONSIDERATION – DISCUSSION OF ISSUES

Having regard for the matters for consideration detailed in Section 79C(1) of the Environmental Planning & Assessment Act 1979, the following is a summary of the evaluation of the issues.

3.1. STATE/REGIONAL PLANNING POLICIES AND INSTRUMENTS

Requirement	Requirement	Proposed	Complies
State Environmental Planning Policy No. 1 – Development Standards	Refer to issues section below.	Refer to issues section below.	Refer to issues section below.
State Environmental Planning Policy No. 71 - Coastal Protection	Matters for consideration for development within the coastal zone: - retention of existing public access to the coastal foreshore - impact of effluent disposal on water quality - development must not discharge untreated stormwater into a coastal water body	- No public access to the coastal foreshore will be impeded or diminished as part of the proposal - No effluent is proposed to be disposed other than to Council’s sewerage system. - Stormwater is to be discharged to the street.	Yes Yes Yes
State Environmental Planning Policy No. 55 – Remediation of Land	Council must: (a) considered whether the land is contaminated, and (b) if the land is contaminated, if the land is suitable in its contaminated state or after remediation, and a) be satisfied the land will be remediated before the land is used.	As the proposal is likely to significantly remove most of the surface soil layer over the property, the risk from past land use contamination may have been considered to be low. Concerns might be raised in relation to potential hazards from radioactive sands. Councils’ mapping does not have any information to indicate the hazard rating for this land. SEPP 55 should have been addressed by the applicant. Insufficient information provided to make a determination.	No
NSW Coastal Policy 1997	Development within the Coastal Zone must be consistent with the Aims, Objectives and Strategic Actions of the Coastal Policy.	The proposal does not compromise the provisions of the Coastal Policy.	Yes
Building Code of Australia	The proposal must be capable of compliance with the structural and safety requirements of the Building Code of Australia.	A condition can be included if consent is granted to ensure the BCA requirements are met.	Yes
Demolition	Demolition is to be carried out in accordance with the requirements of Workcover and AS2601 – Demolition of Structures.	A condition can be included if consent is granted to ensure the Workcover and AS2601 requirements are met.	Yes
Disability Access (DDA)	Access for persons with disabilities and integration into surrounding streetscapes without creating barriers. (Council Res.10-1118)	Although DDA requirements are not triggered for the proposed residential flat building, the design includes a lift to provide access from the basement to each level of the development.	N/A

* Issues discussed below

State/Regional Planning Policies and instruments - Issues

State Environmental Policy No. 1 – Development Standards

The proposed development includes the demolition of an existing three storey building and replacement with a new building with a basement car parking area and three levels above ground. The new building exceeds the two prescriptive requirements of Clause 40 of Byron Local Environmental Plan 1988:

b) the uppermost floor level of the proposed building is 5.8 metres above the existing ground level. This is 1.3 metres over the maximum 4.5 metre requirement of Clause 40.

c) the overall height of the proposed building is 10.2 metres above ground level at the highest point of the building. This is 1.2 metres over the maximum 9.0 metre requirement of Clause 40.

The Applicant has submitted an objection under State Environmental Planning Policy No. 1 arguing that compliance with the requirements of Clause 40 is unreasonable and unnecessary in the circumstances of the case. Comments in relation to this objection are provided under the relevant assessment headings below.

· Is compliance with the standard consistent with the aims of SEPP 1 and does compliance with the standard hinder the objects of the EP&A Act 1979 under Section 5(a)(i) and 5(a)(ii).

These objects of the Act are to encourage:

(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment,

(ii) the promotion and co-ordination of the orderly and economic use and development of land,

Byron Local Environmental Plan 1988 sets out development standards to co-ordinate the orderly and economic development of land. The fact that the proposal deviates from the requirements of this plan is contrary to this object. Although the aims of SEPP 1 are to provide flexibility in applying development standards, it is not satisfied in this case that the variation proposed is well founded.

· Is compliance with the standard unreasonable or unnecessary in the circumstances of the case and is the development standard unreasonable or unnecessary.

The applicant provides the following comments in this regard:

A review of the approved plans for the existing development on the site shows that the building to be demolished has a height of 8.8 metres which is consistent with the 9.0 metre maximum. As stated, this building is to be demolished and a completely new building erected in its place. With a vacant site to work from, it is not possible to form an argument that it is unreasonable and unnecessary to design a building that meets the overall 9.0 metre height requirement. This aspect of the SEPP No. 1 Objection is not supported.

Documentation accompanying the amended plans submitted by the Applicant argued that an existing approval on the adjoining property to the east (45-47 Lawson Street) provides a level of justification for the variations proposed within the amended design. Council’s Development Application file for this site shows that in April 2001, consent was granted to Development Application No. 10.2000.460.1 for a new motel development at 45-47 Lawson Street. The approved motel met Council’s height requirements at the time, which prescribed a maximum 7.5 metres when measured from ground level to the top plate of the building. The approved development contained three storeys and an overall height of 10.83m above ground level.

Council’s records indicate that Development Consent No. 10.2000.460.1 was lawfully commenced, but in December 2012 the owners of 45-47 Lawson Street submitted an amended design as part of a new Development Application for the site (Development Application No. 10.2012.407.1). This amended proposal included an objection under State Environmental Planning Policy No. 1 to the overall height of the development, with an overall height of 10.2 metres proposed. This proposal was supported by on the basis that the 2001 approval for Development Application No. 10.2000.460.1 allowed a greater height.

It is agreed that the 4.5 metre uppermost floor level requirement of Clause 40 can be varied using SEPP No. 1 on the basis that Byron Local Environmental Plan 2014 no longer includes an uppermost floor level development standard. It would be unreasonable and unnecessary to enforce this aspect of Clause 40 when the new Local Environmental Plan does not require it.

It is noted that in 2014, Council determined not to support a variation to the maximum 9.0 metre height requirement for a development proposal within Station Street, Bangalow. A subsequent appeal to the NSW Land and Environment Court was successfully defended on this determination.

State Environmental Planning Policy No. 65 – Design Quality of Residential Flat Development

Requirement	Proposed	Complies
(a) an explanation of the design in terms of the design quality principles set out in Part 2 of State Environmental Planning Policy No 65—Design Quality of Residential Flat Development,	Refer to issues section below.	Refer to issues section below.
(b) drawings of the proposed development in the context of surrounding development, including the streetscape,	Drawings were submitted with the Development Application partly showing the streetscape.	Yes
(c) development compliance with building heights, building height planes, setbacks and building envelope controls (if applicable) marked on plans, sections and elevations,	The drawings submitted do not accurately detail the maximum 9.0 metre overall height and maximum 4.5 metre uppermost floor level requirements.	No
(d) drawings of the proposed landscape area, including species selected and materials to be used, presented in the context of the proposed building or buildings, and the surrounding development and its context,	The landscaping plans submitted are indicative only.	No
(e) if the proposed development is within an area in which the built form is changing, statements of the existing and likely future contexts,	Comments have been provided in this regard, particularly addressing the new construction on the adjoining allotment to the east.	Yes
(f) photomontages of the proposed development in the context of surrounding development,	Photomontages were proposed as part of the Development Application.	No
(g) a sample board of the proposed materials and colours of the facade,	Sample board of the proposed materials and colours was not provided with the development application.	No
(h) detailed sections of proposed facades,	Sections were submitted as part of the plan set.	Yes
(i) if appropriate, a model that includes the context.	A model was not warranted in this case.	Yes

Design Quality Principles

In determining a development application for consent to carry out residential flat development, a consent authority is to take into consideration the design quality of the residential flat development when evaluated in accordance with the design quality principle.	Comment
Principle 1: Context Good design responds and contributes to its context. Context can be defined as the key natural and built features of an area. Responding to context involves identifying the desirable elements of a location’s current character or, in the case of precincts undergoing a transition, the desired future character as stated in planning and design policies. New buildings will thereby contribute to the quality and identity of the area.	Although limited details of materials and colours were provided, the proposal appears to use elements similar to those used on the approved development on the adjoining site to the east (which is under construction).
Principle 2: Scale Good design provides an appropriate scale in terms of the bulk and height that suits the scale of the street and the surrounding buildings. Establishing an appropriate scale requires a considered response to the scale of existing development. In precincts undergoing a transition, proposed bulk and height needs to achieve the scale identified for the desired future character of the area.	The proposal exceeds the maximum height requirements of both Byron LEP 1988 and Byron LEP 2014. Further, the proposal exceeds the building height plane requirements of DCP 2010 and DCP 2014. As these document prescribe the desired future character of the area, the bulk and scale of the proposed development is not appropriate.
Principle 3: Built form Good design achieves an appropriate built form for a site and the building’s purpose, in terms of building alignments, proportions, building type 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.	As above.
Principle 4: Density Good design has a density appropriate for a site and its context, in terms of floor space yields (or number of units or residents). Appropriate densities are sustainable and consistent with the existing density in an area or, in precincts undergoing a transition, are consistent with the stated desired future density. Sustainable densities respond to the regional context, availability of infrastructure, public transport, community facilities and environmental quality.	As above.
Principle 5: Resource, energy and water efficiency Good design makes efficient use of natural resources, energy and water throughout its full life cycle, including construction. Sustainability is integral to the design process. Aspects include demolition of existing structures, recycling of materials, selection of appropriate and sustainable materials, adaptability and reuse of buildings, layouts and built form, passive solar design principles, efficient appliances and mechanical services, soil zones for vegetation and reuse of water.	The original Development Application included a BASIX Certificate (for 9 units). An amended Certificate was not submitted for the revised proposal (for 7 units).
Principle 6: Landscape Good design recognises that together landscape and buildings operate as an integrated and sustainable system, resulting in greater aesthetic quality and amenity for both occupants and the adjoining public domain. Landscape design builds on the existing site’s natural and cultural features in responsible and creative ways. It enhances the development’s natural environmental performance by co-ordinating water and soil management, solar access, micro-climate, tree canopy and habitat values. It contributes to the positive image and contextual fit of development through respect for streetscape and neighbourhood character, or desired future character. Landscape design should optimise useability, privacy and social opportunity, equitable access and respect for neighbours’ amenity, and provide for practical establishment and long term management.	The proposal includes an indicative landscaping plan that is well short of Council’s required landscaping for the site.
Principle 7: Amenity Good design provides amenity through the physical, spatial and environmental quality of a development. Optimising amenity requires appropriate room dimensions and shapes, access to sunlight, natural ventilation, visual and acoustic privacy, storage, indoor and outdoor space, efficient layouts and service areas, outlook and ease of access for all age groups and degrees of mobility.	The proposal includes lift access and a variety of unit layouts. Private open space and balcony areas have also been incorporated into the design.
Principle 8: Safety and security Good design optimises safety and security, both internal to the development and for the public domain. This is achieved by maximising overlooking of public and communal spaces while maintaining internal privacy, avoiding dark and non-visible areas, maximising activity on streets, providing clear, safe access points, providing quality public spaces that cater for desired recreational uses, providing lighting appropriate to the location and desired activities, and clear definition between public and private spaces.	The proposal has well defined public and private spaces. The proposed balconies face north over the public reserve.
Principle 9: Social dimensions and housing affordability Good design responds to the social context and needs of the local community in terms of lifestyles, affordability, and access to social facilities. New developments should optimise the provision of housing to suit the social mix and needs in the neighbourhood or, in the case of precincts undergoing transition, provide for the desired future community. New developments should address housing affordability by optimising the provision of economic housing choices and providing a mix of housing types to cater for different budgets and housing needs.	The application states that the proposal increases affordable housing options within Byron Bay. This statement is not supported in the context of this proposal. The development is clearly a high-end residential proposal.
Principle 10: Aesthetics Quality aesthetics require the appropriate composition of building elements, textures, materials and colours and reflect the use, internal design and structure of the development. Aesthetics should respond to the environment and context, particularly to desirable elements of the existing streetscape or, in precincts undergoing transition, contribute to the desired future character of the area.	Although limited details of materials and colours were provided, the proposal appears to use elements similar to those used on the approved development on the adjoining site to the east (which is under construction).

3.2. BYRON LOCAL ENVIRONMENTAL PLAN 1988

Zone: 7(f2) Urban Coastal Land Zone

Definition: Residential Flat Building

LEP Requirement	Summary of Requirement	Proposed	Complies
Clause 9 - Meets objectives of 7(f2) Urban Coastal Land Zone	(a) to identify urban land likely to be influenced by coastal processes, (b) to permit urban development within the zone subject to the council having due consideration to the intensity of that development and the likelihood of such development being adversely affected by, or adversely affecting, coastal processes, (c) to permit urban development within the zone subject to the council having due consideration to: (i) the need to relocate buildings in the long term, (ii) the need for development consent to be limited to a particular period, (iii) the form, bulk, intensity and nature of the development, and (iv) continued safe public access to the site, and (d) to allow detailed provisions to be made, by means of a development control plan, to set aside specific areas within the zone for different land uses and intensities of development.	The subject site has been identified as being influenced by coastal processes as it is located within Coastal Erosion Precinct No. 2. An assessment of the proposal found that the site is over 90 metres from the February 2010 erosion escarpment. The proposal can be supported having regards to the objectives (a) and (b) of the zone subject to conditions that limit the time period of the consent should a large erosion event or a series of events occur in the future. In relation to Objective (c), the proposal does not raise any public access issues, and time periods could be applied to the consent if approved. However, the form, bulk and intensity of the proposed development has been assessed as excessive for the 711 square metre site. The proposal is inconsistent with a number of planning controls and is not supported in its current form.	Yes No
Clause 9 - Permissible use	Residential flat building means a building which contains 3 or more dwellings.	A ‘residential flat building’ is a land use that is permissible with consent within the 7(f2) Zone. The proposal includes 7 dwellings within a 711 square metre allotment. The proposed density is discussed within the section of this report addressing DCP 2010 below.	Yes
Clause 40 - Height of buildings	Overall height of development must not exceed 9.0m above existing ground level and the maximum height of the upper floor must not exceed 4.5m above existing ground level.	Height 10.2 metres Upper Floor Level 5.8 metres	No*
Clause 45 - Provision of Services	Prior adequate arrangements must be made for the provision of services to the allotment.	The allotment has access to Council’s water and sewer services. Stormwater disposal is proposed to existing infrastructure.	Yes
Clause 52 – Tree Preservation	In conjunction with Cluse 2, minimise the removal of vegetation.	The proposal includes the removal of all vegetation from the site to accommodate the proposed development. No issues are raised with the proposed removal as it relates to common landscape species only.	Yes

*Issues discussed below

BYRON LOCAL ENVIRONMENTAL PLAN 1988 - Issues

Clause 40 – Height of Buildings

The proposed residential flat building exceeds the two prescriptive requirements of Clause 40, that is the 4.5 metre upper most floor level and the 9.0 metre overall height requirement. The uppermost floor of the proposed development has a height of 5.8 metres above the existing ground level. The overall height is 10.2 metres above ground level at the highest point of the building.

The Development Application includes an objection under State Environmental Planning Policy No. 1 to the development standards set out within Clause 40. This is discussed under Section 3.1 of this report above.

Draft EPI that is or has been placed on public exhibition and details of which have been notified to the consent authority - Issues

Draft Byron Local Environmental Plan 2012 commenced public exhibition on 24 September 2012 and subsequently became effective on 21 July 2014.

Land use zone (Cl. 2.3) – Byron Local Environmental Plan 2014 lists the subject property within the R3 Medium Density Residential Zone, a zone in which multi dwelling housing and residential flat buildings remain a permissible form of development.

Minimum lot size for residential flat buildings (Cl. 4.1E) – this Clause of Byron Local Environmental Plan 2014 requires a minimum allotment size of 800 square metres for residential flat buildings within the R3 Medium Density Residential Zone. The subject site has an area of only 711 square metres. The proposal is inconsistent with the provisions of Clause 4.1E, but benefits from an existing residential flat building on the property.

Maximum floor space ratio (Cl. 4.4) – the maximum floor space ratio map within Byron Local Environmental Plan 2014 provides a 0.8:1 maximum for the subject site. With a site area of 711 square metres and a gross floor area of 776 square metres, the proposal has a floor space ratio of 1.09:1 (which is 207.2 square metres greater than that permitted under Byron Local Environmental Plan 2014, this is almost equivalent to the total floor area of Proposed Unit 7 as shown in the DCP table below). The proposed floor area is excessive for the site having regards to the 2014 Local Environmental Plan.

Maximum height of buildings (Cl. 4.3) – the maximum height of buildings map within Byron Local Environmental Plan 2014 provides a 9.0 metre limit within the subject site which is consistent with Byron Local Environmental Plan 1988. The applicant seeks to vary this requirement using a SEPP No. 1 objection. As discussed earlier in this report, the objection is not supported. The fact that the 2014 Local Environmental Plan reinforces the 9.0 metre maximum height requirement provides further justification not to support a variation.

3.3 DEVELOPMENT CONTROL PLANS

Development Control Plan 2010

Development Control Requirement					Proposed			Required				Compliance
Site Area (Sec. C3.5 DCP 2010)					710.994 m²			1900m²				No
Frontage (Sec. C3.5 DCP 2010)					21.3 m			20m				Yes
Height (Cl. 40 BLEP 1988)			Overall height		10.2 m			9m				No
Height (Cl. 40 BLEP 1988)			Uppermost floor		5.3 m			4.5m				No
Maximum cut / fill (Sec. C2.7 DCP 2010)					1.4 m fill			1.0 m (max)				No
Maximum cut / fill (Sec. C2.7 DCP 2010)					3.6m cut			1.0 m				No
Gross Floor Area	Unit 1				94.0m²			-				N/A
	Unit 2				54.9m²			-				N/A
	Unit 3				95.3m²			-				N/A
	Unit 4				121.0m²			-				N/A
	Unit 5				54.9m²			-				N/A
	Unit 6				141.4m²			-				N/A
	Unit 7				214.5m²			-				N/A
	Total				776 m²			-				N/A
Density Control (Sec. C7.1 (DCP 2010)
Unit Size	Small (<55m² floor plan area)				2 units			200m² / unit				-
	Medium (55-85m² floor plan area)				0 units			250m² / unit				-
	Large (>85m² floor plan area)				5 units			300m² / unit				-
	Total				7 units on 711m²			Required Site Area: 1900m²				No
Setbacks (Sec. 2.6 DCP 2002 & Sec 2.13 DCP 14)	Front (building)				6.5m			6.5m				Yes
	Front (pool)				1.2m			6.5m				No
	Rear (building)				>5.0m			0.9m				Yes
	Rear (pool)				0.0m			0.0m				Yes
	Side (east)				1.5m			0.9m				Yes
	Side (west)				1.5m			0.9m				Yes
Building Height Plane (Sec. 2.5 DCP 2010)	Front				Above BHP			Below BHP				No*
	Rear				Above BHP			Below BHP				No*
	Side (east)				Above BHP			Below BHP				No*
	Side (west)				Above BHP			Below BHP				No*
On Site Car Parking (Table G2.1 DCP 2010) – Residential Flat Building
Unit Size (One (1) space per unit must be covered)	< 55m²floor area @ 1 / unit				2 spaces			2 spaces				Yes
	55-85m² floor area @ 1.5 / unit				0 spaces			0 spaces				N/A
	> 85m² floor area @ 2 / unit				10 spaces			10 spaces				Yes
	Visitor Parking @ 1 / 4 units				4 spaces			2 spaces				Yes
Common Landscaped Area (Sec. C7.5 DCP 2010)
Treatment	Minimum 75% absorbent finish											No
Unit Size	<55m² floor plan area				2 units				50m²per unit			No
	55-85m² floor plan area				0 units				70m² per unit			N/A
	>85m² floor plan area				5 units				90m² per unit			No
Private Open Space – Courtyards (Sec. C7.2 DCP 2010)
Minimum Area at Natural Ground Level		Unit 1			>30m²					30m²		Yes
		Unit 2			>30m²					30m²		Yes
		Unit 3			>30m²					30m²		Yes
		Unit 4			~					Balcony		See below
		Unit 5			~					Balcony		See below
		Unit 6			~					Balcony		See below
		Unit 7			~					Balcony		See below
Minimum Dimensions		Unit 1			4m x 4m					4m x 4m		Yes
		Unit 2			4m x 4m					4m x 4m		Yes
		Unit 3			4m x 4m					4m x 4m		Yes
		Unit 4			~					~		N/A
		Unit 5			~					~		N/A
		Unit 6			~					~		N/A
		Unit 7			~					~		N/A
Private Open Space – Balconies (Sec. C7.3 DCP 2010)
Private Open Space Balconies				Unit 1						0m²		Yes
				Unit 2						0m²		Yes
				Unit 3						0m²		Yes
				Unit 4		13.6m²				15m²		No
				Unit 5		17.1m²				15m²		Yes
				Unit 6		13.6m²				15m²		No
				Unit 7		166.8m²				15m²		Yes
Sound Proofing (Sec. C7.6 DCP 2010)
Noise Sources Sited Away from Adjoining Properties												Yes
Sound Resisting Division Walls and Floors												Yes
Clothes Drying Facilities – Suitably Screened (Sec. C7.7 DCP 2010)
Rate		7.5m line per dwelling										No
Area		Minimum 6m² (or sufficient area to accommodate)										No
Garbage (Sec. C7.8 DCP 2010)
Bins		Min. 1 x 240L per unit										Yes (basement)
Equity of Access & Mobility (Sec. C7.9 DCP 2010)
1 adaptable dwelling per 10 dwellings in accordance with AS4299												N/A
Continuous Path of Travel in accordance with AS1428.2												N/A
1 parking space in accordance with AS2890 Part 1 per adaptable dwelling												N/A
1 visitor parking space in accordance with AS2890 Part 1 per 100 spaces												N/A
Pipes and Vents (Sec. C7.10 DCP 2010)
Concealed Within Walls												Yes
Access Provided												Yes
TV Antennas (Sec. C7.11 DCP 2010)
Common Antenna or Dish System												N/A
Fence Heights (Sec. C3.6 DCP 2010)
Front Fence							2.6m				1.2m	No
Side Fence (within front building setback line)							2.6m				1.2m	No
Side Fence (behind building setback)							2.1m				1.8m	No
Rear Fence							1.8m				1.8m	Yes

*Non-complying issues discussed below

Development Control Plan 2010 - Issues

Chapter 1 Part C - Residential Development

Part C2.5 - Building Height Plane

The proposed building encroaches on the building height plane on all four property boundaries. The Applicant has sought a variation to the DCP requirement for these encroachments.

Southern and Northern Boundaries

An inspection of the site confirmed that the adjoining land to the south comprises a public road reserve (Lawson Street) and that the land to the north is a public reserve. The image below demonstrates that the building height plane encroachments on these boundaries are minor. The impacts on the adjoining lands to the north and south is likely to be minimal. A variation to the building height plane requirements on these boundaries could be supported if the application is approved.

Figure 1 – Proposed development showing building height plane encroachments on northern and southern boundaries

Eastern and Western Boundaries

The proposed development includes significant breaches on the building height plane on the eastern and western boundaries of the allotment. Figure 1 below shows the extent of the proposed encroachments in red. Figure 2 shows the existing building that is to be demolished, also showing building height plane encroachments.

Figure 2 – Proposed development showing building height plane encroachments one eastern and western boundaries

Figure 3 – Existing development showing building height plane encroachments on eastern and western boundaries

It is clear from the figures above that the proposed development will result in a substantial increase in building height plane encroachments. The proposed building is setback 1.5 metres to both the eastern and western boundaries of the allotment, which is significantly less than the minimum 4.3 metre side boundary setbacks of the existing building. It is noted also that the proposed building extends for over 24 metres along the 33 metre length of the property. The building located on the adjoining allotment to the west has a setback of approximately 3.5 metres from the common boundary to the site. A recent approval for a development on the adjoining allotment to the east allowed a building setback of 1.65 metres.

The objectives of Part C2.5 of DCP 2010 relate to the protection of privacy, solar access and the views of adjacent properties. In the case of the proposed development, additional privacy and overshadowing impacts will arise as a result of the building height plane encroachments. It is noted that the design includes extensive covered deck areas on the uppermost floor with a balustrade height of 1 metre allowing overlooking into the adjoining properties. In particular, the design allows overlooking into the private open space of units on the adjacent property to the west. Further, the proposal will overshadow these private open space areas in morning periods. A public submission was received in relation to the Development Application raising the issues of privacy and overshadowing as reasons for objecting to the proposal.

In correspondence dated 26 August 2014, the applicant was requested to provide an amended building design to reduce the extent of building height plane encroachments and achieve greater compliance with the objectives of the development control. However, the applicant elected not to make any modification to the overall bulk and scale of the development, providing Council with the following response:

A review of the plans that were approved on the adjoining allotment to the east (45 Lawson Street) indicates that a three storey building with a setback of 1.65 metres to the common boundary is to be constructed. It is agreed that this adjoining development will result in overshadowing and privacy impacts on the subject development site. However the development proposed as part of the subject Development Application has slightly smaller setbacks (1.5 metres) to the eastern and western boundaries, with significant overshadowing and privacy impacts likely to occur on the adjacent property to the west.

An assessment of the proposal having regards to the objectives of Part C2.5 of Development Control Plan indicates that the current design cannot be supported.

Parts C7.1, C7.2, C7.3 & C7.5 – Density of Development

In August 2014 the Applicant was requested to provide an amended design that scales back the proposal to align with the existing dwelling density, as well as providing landscaping and open space in accordance with the requirements of the development control plan. The applicant responded by consolidating some of the proposed units, thereby reducing the number of units on site from 9 to 7. The Applicant argued the following (in part):

Whilst it is acknowledged that this application seeks a greater variation then the development approval next door, the end result will be a development which is more affordable and will provide a greater variation of housing supply for the surrounding area. Affordability is an issue that Byron Shire Council has been struggling to deal with for an extended period of time, the only way to address this issue in central Byron is to provide smaller more affordable dwellings.

The comments provided by the applicant above hold no weight in this assessment as in no way can it be argued that the amended proposal to provide seven beach side units near the centre of Byron Bay with gross floor areas (excluding balconies) of between 54.9m² and 214.5m² fall within the ‘affordable housing’ category. This response does not justify the variation proposed to the maximum density on the site. Note that Clause 17 of Byron Local Environmental Plan 1988 requires a minimum 800 square metre site for two dwellings in a dual occupancy arrangement. The proposal comprises seven dwellings on a 711 square metre site. The fact that an existing approval for six units exists is the only valid argument for a variation to density on the property. However, such should be designed with regards to adequate building height plane, setbacks, landscaping and open space provision.

Part C7.7 – Clothes Drying Facilities

No provision of drying areas (noting laundry facilities are provided, and swimming pools) for occupants. This is unsatisfactory for a development of this nature.

Chapter 1 Part G – Vehicle Circulation and Parking

External Access

The existing driveway is to be removed. A new driveway is proposed adjacent to the site’s “eastern” boundary. The proposed arrangements are satisfactory and the consent can be conditioned accordingly if approval is granted.

Safety sight lines are required to be complied with at the at the front property boundary line, in accordance with the current Australian Standards AS 2890. 1 – 2004. Again, the consent can be conditioned accordingly to require this compliance.

Internal Access

There are limited design details of the access ramp/driveway to the basement car park submitted with the DA. It appears that the access can be designed to complying standards. If approval is granted, the consent can be conditioned accordingly to ensure this requirements is met.

Car Parking

The application proposes 16 car spaces, inclusive of 2 visitor car spaces. This appears to be generally derived from Council’s former DCP 2010.

In accordance with Council’s newly adopted DCP 2014, a total of 14 car spaces are required, inclusive of 3 visitor car spaces.

The parking requirements are based on the following rates:

· 1 space per 1 or 2 bedroom unit.

· 2 spaces per 3 or more bedroom unit.

· 1 visitor space per 4 units.

Design plans are the demonstrate compliance with the current Australian Standards AS 2890.1 – 2004, and DCP 2014, in respect to the following items, but not limited to, as follows:

· Vertical and horizontal dimensions/clearances

· Driveway gradients

· Safety sight lines/triangle at the driveway front boundary interface

· One disabled parking bay and vertical clearances required

Traffic/Roadworks

This redevelopment of the site, retaining residential units, should have no measurable effect on the traffic load or level of service on the surrounding road network.

Part N - Stormwater Management

On site detention stormwater management will be required for the new complex. The exposed driveway ramp will require a stormwater management design inclusive of a pump out system for the basement car park. The design is to also be in accordance with DCP 2014.

Part J - Coastal Erosion

The site is within Precinct 2, and the consent can be conditioned accordingly.

Geotechnical Hazards

No apparent geotechnical constraints

Other Matters

The adjacent Apex Park (Public Reserve) must not be used for site access nor storage of materials. The consent can be conditioned accordingly.

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

The subject site and immediate surrounds were inspected multiple times during the assessment of the Development Application. These inspections identified private open space and clothes drying areas on the adjoining property to the west of the site (No. 39-41 Lawson Street). A site assessment found that the proposal will impact adversely on these areas. The proposed building is to be constructed with a maximum height of 10.2 metres and with minimum boundary setbacks of 1.5 metres (excluding window screens which extend further into the side setbacks). An assessment indicates that the proposal will overlook and overshadow the private open space areas within the adjacent property, resulting in adverse impacts on the occupants. Preliminary shadow diagrams were submitted by the Applicant as part of amended proposal, however such did not resolve overshadowing impacts on the adjoining property.

Site Waste Management: If approved, a condition could be imposed requiring a site waste minimisation plan to be submitted. In this regard, the proponent must establish an extracted solid waste management plan which identifies the volumes, classification and ultimate destination of all solid waste materials created by the proposed demolition works, and basement excavation.

Garbage: A condition could also be imposed to ensure that adequate provision is made for containment, storage and management of all waste generated by the development. The proposal indicates a ‘garbage room’ in the basement car park. Adequate “garbage” capacity needs to be provided for the proposed units, as well as a location with sufficient ventilation and capacity to clean-up spilt putrescibles wastes and dirty bins.

Bush Fire: Council’s GIS indicates that the subject site is within a buffer area to bush fire hazards. The Development Application did not include any details to address this constraint. If the application was to be granted consent, further assessment would be required with respect to bushfire protection.

3.5 The suitability of the site for the development

The subject site is an existing urban allotment within the 7(f2) Urban Coastal Land Zone under Byron Local Environmental Plan 1988. It has access to water, sewer, drainage, electricity and communication services. The site is largely clear of vegetation other than common landscape species. The land does not contain steep slopes and is not prone to flooding. Access is available from Lawson Street to the south. The site is within a buffer area to bush fire hazards, but threats could be managed by implementing bush fire protection measures into the development.

The site contains a residential flat building comprising 6 units over three stories, with an attached vehicle garage at ground level. The existing development has generous building setbacks and is satisfactorily accommodated within the site in the context of the historic approval that it was constructed under. However, the proposed development introduces a significant increase in bulk and scale to the site. An assessment has found that the property is of insufficient area to accommodate the development as proposed. The proposal breaches building setback and height controls.

Despite a number of positive attributes, the site is not deemed to be suitable for the development proposed. The development will adversely impact on adjoining properties due to its limited dimensions. The proposed 7 unit residential flat building cannot be accommodated within the site without significant breaches of Council’s development control requirements.

3.6 Submissions made in accordance with this Act or the regulations

Two submissions were received in respect of the proposed development. A summary of the issues raised within the submissions with a comment in relation to each is provided below:

Issue	Comment
Excessive Density	Council’s assessment concludes that the proposed density is excessive for the site.
Excessive height	The proposed objection under SEPP No. 1 to the height of the development is not supported.
Overshadowing on adjoining development	An assessment confirmed that significant adverse impacts are likely to result from the proposed development with respect to overshadowing on adjoining properties. The proposal is not supported on these grounds.
Insufficient setbacks	It is agreed that the proposed 1.5 metre setback for a 3 storey development is insufficient given the overshadowing and loss of privacy impacts that will result.
Insufficient landscape area	The lack of landscaping and deep soil planting areas on the site is a result of the excess bulk and scale of the proposed development. The proposal is not supported on these grounds.
Boundary to boundary basement car park and lack of deep soil planting areas	As above.
Privacy impacts	An assessment of the proposal confirmed that unacceptable privacy impacts will result from the three storey development, particularly on the adjoining allotment to the west. The application is not supported on these grounds.
Number of units exceeds Council’s maximum	The site has been assessed as being of insufficient area to accommodate 7 units. DCP 2010 provides for a maximum of 3 small units on the site based on 1 unit for every 200m² (note that a ‘small’ unit is less than 55m² in area). The site benefits by an existing building containing 6 units. It is reasonable to allow the 6 existing units to be replaced with a new building containing 6 units, subject to bulk and scale provisions being met. This has not occurred in this case and the proposal for 7 new units is not supported.

3.7 Public interest

The proposal does not meet the maximum 9.0 metre height requirement set out within Byron Local Environmental Plan 1988 and a number of Development Control Plan requirements relating to building design. It is not in the public interest to support the development application given its substantial breaches of development control requirements and objections from the public.

4. DEVELOPER CONTRIBUTIONS

4.1 Water & Sewer Levies

Water & Sewer Levies would be applicable if the Development Application was granted consent.

4.2 Section 94 Contributions

Section 94 contributions would be applicable if the Development Application was granted consent.

4. CONCLUSION

Development consent is sought to demolish the existing residential flat development on the site and construct a new residential flat building made up of a basement level (containing 16 car parking spaces) and three levels above ground.

The design includes three separate dwelling units on both the ground level and first level, and a single dwelling unit on the second level. Terrace and balcony areas are proposed on the northern side of the building providing solar access for each individual unit. Four swimming pools are proposed at ground level and a lap pool and spa are proposed on the second floor. Additional balcony areas are also proposed on the second floor facing east and west.

An assessment of the proposal identified a number of non compliances with Council’s development control requirements. These include breaches of the maximum height requirements of Byron Local Environmental Plan and multiple breaches of Development Control Plan 2010. Despite requests by Council, issues relating to building setbacks, building height plane, overshadowing, privacy, lack of landscaping, bulk and scale were unable to be resolved by the applicant during the assessment of the application.

Two public submissions were received with respect to the proposal raising objections to the development. Such were found to have valid planning reasons for their objections. An assessment of the site found that it is not suitable for the bulk and scale of the development proposed. The proposal is likely to result in significant adverse impacts on the built environment (overshadowing and privacy impacts). It is not in the public interest to support the proposal in this context.

Given that over 7 months have passed since the Development Application was first submitted to Council, and the efforts made to resolve planning issues with the Applicant, it is concluded from an assessment of the proposal that consent should be refused in this instance.

5. RECOMMENDATION

It is recommended that pursuant to Section 80 of the Environmental Planning & Assessment Act 1979, Development Application No. 10.2012.474.1 for demolition of existing residential flat building and construction of new residential flat building and associated works, be refused for the following reasons:

1. Pursuant to Section 79C(1)(a)(i) of the Environmental Planning & Assessment Act 1979, the proposal fails to meet the development standard for maximum height of buildings as set out within Clause 40 of Byron Local Environmental Plan 1988. An objection under State Environmental Planning Policy No. 1 to vary this development standard is not supported.

2. Pursuant to Section 79C(1)(a)(iii) of the Environmental Planning & Assessment Act 1979, the proposal breaches a number of requirements within Development Control Plan 2010 including the maximum building height plane, maximum density provisions, minimum landscaping requirements, provision of clothes drying areas, maximum cut and fill and maximum fence heights.

3. Pursuant to Section 79C(1)(b) of the Environmental Planning & Assessment Act 1979, the proposal is likely to have a significant impact on the surrounding built environment and the occupants of that environment.

4. Pursuant to Section 79C(1)(a)(i) of the Environmental Planning & Assessment Act 1979, the proposal fails to demonstrate that the development has sufficient design quality having regards to the principles and code requirements of State Environmental Planning Policy No. 65 – Design Quality of Residential Flat Development.

5. Pursuant to Section 79C(1)(a)(ii) of the Environmental Planning & Assessment Act 1979, the proposal is inconsistent with the future planning direction for the site as set out within Clauses 4.1E, 4.3 and 4.4 Byron Local Environmental Plan 2014, which is an instrument that has been the subject of public consultation under the Environmental Planning and Assessment Act 1979.

6. Pursuant to Section 79C(1)(e) of the Environmental Planning & Assessment Act 1979, the it is not in the public interest to support the proposal as it breaches a number of development control requirements and has an adverse impact on the surrounding built environment.

7. Pursuant to Section 79C(1)(c) of the Environmental Planning & Assessment Act 1979, the site is assessed as being unsuitable for the development proposed.

8. Pursuant to Section 79C(1)(d) of the Environmental Planning & Assessment Act 1979, consideration of public submissions received with respect of the proposal raise valid planning reasons to refuse the Development Application.

9. Pursuant to Section 79C(1)(a)(i) of the Environmental Planning & Assessment Act 1979, the proposal fails to demonstrate that the site is suitable for use having regards to the assessment requirements of State Environmental Planning Policy No. 55 – Remediation of Land.

ITEM	AMOUNT
Traffic Management
Traffic Personnel (JHA & BSC staff) for road closures	$ 1,494.00
Road closure advertisement	$ 73.02
	$ 1,567.02
Waste Management
Summerland Supply of bins and collection	$ 740.00
Production Infrastructure and Personnel
3 tonne Truck Hire	$ 300.00
Security - 2 x pax 12 hours	$ 800.00
Porta-loo Hire -Summerland Environmental	$ 858.00
	$ 1,958.00
North Coast Events Production Supplied:
8 x professional crew for install and de-install
lighting design
infrastructure provision and install
staging equipment
projector hire x 4
sound engineer
PA provision
public liability
AV screens x 4
Silent disco headsets and operation	$ 5,500.00

Staffing costs and supply misc. reimbursements	$ 678.21
Artist Fees and Materials
Inscribe youth arts - Mural	$ 150.00
Mural Artist - Howie Cooke (inc reimbursements)	$ 447.95
Rene Bolton - Chalk drawing initiator (inc reimbursements)	$ 663.18
AV illustration and projection - Kellie O’Dempsey	$ 1,500.00
Creative Cave kids workshops	$ 300.00
Bollywood sisters flash mob	$ 200.00
Cassettes flash mob	$ 200.00
Mick Dick trio dub three piece (inc PA hire)	$ 550.00
Kellieo Collective mural painters	$ 170.00
Materials for Art Installation	$ 200.00
Production Crew - Install / De-install sculpture	$ 700.00
	$ 5,081.13
Marketing
Design - Poster, Eflyer, Social media banners	$ 710.00
Poster Printing	$ 113.64
	$ 823.64
Documentation
Turtle Films Photography and video supply	$ 350.00
TOTAL	$ 16,698.00

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.5

Report No. 13.5 Establishment of the Sustainable Economic Development Management Advisory Committee

Directorate: Sustainable Environment and Economy

Report Author: Joanne McMurtry, Community Policy Officer

File No: I2015/92

Theme: Economy

Economic Development

Summary:

The purpose of this report is to request that Council establish a Sustainable Economic Development Management Advisory Committee (SEDMAC) by using the successful Tourism Advisory Committee model and broadening the scope to that of economic development and management. A draft Terms of Reference for the proposed Committee is attached.

RECOMMENDATION:

That Council:

1. Establish a Sustainable Economic Development Management Advisory Committee and call for nominations for the industry, community and environment members.

2. Adopt the draft Terms of Reference for the Sustainable Economic Development Management Advisory Committee as attached (E2015/11805).

a) the objectives/purpose of the Committee

b) Committee membership, and

c) that meetings be held quarterly or as required.

3. Write to the Bundjalung of Byron Bay Aboriginal Corporation (Arakwal) extending an invitation to provide one representative if desired to the Committee.

4. Nominate two Councillors to the Sustainable Economic Development Management Advisory Committee, being _____________________ and _______________________.

5. Note that the following meeting dates have been tentatively set aside for proposed SEDAC meetings:

· Thursday 2 April

· Thursday 4 June

· Thursday 3 September

· Thursday 5 November

6. Write to the current Tourism Advisory Committee members thanking them for their service to Council and the community and encouraging them to nominate for a position on the new SEDMAC Committee.

Attachments:

1 Draft Terms of Reference - Sustainable Economic Development Advisory Committee , E2015/11805 , page 104

Report

In November 2013, Council broadened its staffing team to include an Economic Development & Tourism Coordinator. With this appointment the scope of work and industry development now being undertaken reflects a more extensive Byron business base and the energy of the team has a sharper focus on employment generation and economic sustainability for the Shire’s towns and villages.

Additionally, during 2014, the Tourism Advisory Committee and Destination Byron board (previously named VIA Byron) were questioning the roles of each group and how best to work together. To this end, this was a discussion topic at the Tourism Advisory Committee meetings of 3 April, 11 June and 15 August and a tourism stakeholder workshop was held on 13 May at the Byron Community Centre.

The relevant resolutions arising from the TAC discussions are 14-218, 14-330 and 14-459 (copied below).

14-218 Resolved (in part):

2. That in relation to the future role and expectations of the Tourism Advisory Committee, Council note:

a) That the Tourism Advisory Committee support a meeting with VIA Byron held to consider the relationship between the two bodies, and

b) That a decision regarding the future role of the Tourism Advisory Committee be deferred until after that meeting.

14-330 Resolved:

1. That staff bring a discussion paper outlining the possible formation of broadening the Tourism Advisory Committee to extend the scope beyond tourism.

2. That Kim Rosen and Cr Simon Richardson provide an update to the next VIA Byron board meeting regarding the discussions at the 11 June meeting.

14-459 Resolved:

1. That Council establish a Sustainable Economic Development Management Advisory Committee, which includes the TAC Terms of Reference and the continued implementation of the Tourism Management Plan and the original intent of the Tourism Advisory Committee to minimise any negative impacts of tourism on the local community whilst simultaneously developing Byron’s tourism industry in a way that strengthens the Byron brand and develops a sustainable visitor economy.

2. That a Terms of Reference be formulated by Council staff, with input from external stakeholders if required to ensure that the Advisory Committee will incorporate community, business and sustainability representation, for consideration by Council.

3. That following the establishment of the SEDMAC, the continuation of the TAC be considered.

The purpose of this report is to provide Council with a draft Terms of Reference for the proposed Sustainable Economic Development Management Advisory Committee (SEDMAC) as attached. Some of the current Tourism Advisory Committee members have had the opportunity to provide feedback on the draft and their input has been incorporated into the draft attached.

Whilst tourism and the visitor economy would still be a major focus for the Economic Development and Tourism Team (ED&T), other industry sectors such as agriculture & food processing, creative industries, education and business services are emerging as opportunities to expand employment generation and galvanise a stronger full time, technically driven and skilled workforce. Additionally the ED&T team are driving town centre revitalisation strategies and infrastructure investment through the Byron Bay Town Centre Masterplan and Vibrant Byron Strategy projects as well as working closely with industry on industrial land identification and advanced communications technology.

A new Economic Development Strategy is currently under development for the Shire and incorporates an extensive consultation phase including a Business Retention Expansion Survey and industry sector consultation. The Strategy framework has garnered support from the Shire’s Chamber’s of Commerce and will be inclusive in its implementation through collaborative and partnered flagship projects.

Understanding the Local Economic Development Function

[An extract from The World Bank]

The purpose of local economic development (LED) is to build up the economic capacity of a local area to improve its economic future and the quality of life for all. It is a process by which public, business and non- governmental sector partners work collectively to create better conditions for economic growth and employment generation.

Local economic development (LED) offers local government, the private and not-for-profit sectors, and local communities the opportunity to work together to improve the local economy. It focuses on enhancing competitiveness, increasing sustainable growth and ensuring that growth is inclusive. LED encompasses a range of disciplines including physical planning, economics and marketing. It also incorporates many local government and private sector functions including environmental planning, business development, infrastructure provision, real estate development and finance.

The practice of local economic development can be undertaken at different geographic scales. A local government pursues LED strategies for the benefit of its jurisdiction, and individual communities and areas within a local government's jurisdiction can also pursue LED strategies to improve their economic competitiveness. Such approaches are most successful if pursued in partnership with local government strategies. LED is thus about communities continually improving their investment climate and business enabling environment to enhance their competitiveness, retain jobs and improve incomes. Local communities respond to their LED needs in many ways, and a variety of approaches can be taken that include:

· Ensuring that the local investment climate is functional for local businesses;

· Supporting small and medium sized enterprises;

· Encouraging the formation of new enterprises;

· Attracting external investment (nationally and internationally);

· Investing in physical (hard) infrastructure;

· Investing in soft infrastructure (educational and workforce development, institutional support systems and regulatory issues);

· Supporting the growth of particular clusters of businesses;

· Targeting particular parts of the city for regeneration or growth (areas based initiatives);

· Supporting informal and newly emerging businesses;

· Targeting certain disadvantaged groups.

Proposed objective and purpose of the Byron Shire Sustainable Economic Development Management Advisory Committee

The objective of the Committee is to work with Council and the Economic Development & Tourism unit of Council to generate and sustain employment and business investment in the Byron Shire that will strengthen the Byron Shire local economy in a sustainable manner.

Actions of the SEDMAC that can assist to achieve this include:

· Seeking out and identifying opportunities to help the Shire achieve its social-economic development goals;

· Providing advice to Byron Shire Council in relation to the sustainable economic development, marketing and management of tourism and other industries, including events and other cultural initiatives,

· Providing a holistic view of industry development and management that represents the interests of both industry and resident communities across the Shire, with regard for the social, environmental and economic benefit of the Byron Shire community;

· Providing assistance with implementation of strategies and actions within the Byron Shire Economic Development Strategy, the Tourism Management Plan, Events Strategy and any other plans relevant to the Economic Development & Tourism unit of Council;

· Acting as a sounding board in response to initiatives of the Economic Development & Tourism team as well as to community members, business groups and associations in the community;

· Providing timely information regarding events and issues of importance occurring in and to the local business community;

· Suggesting and recommending to staff ways the Shire can support, retain and/or attract business investment to the community;

· Fostering links and engagement between Council, industry and community interests, including provision of leadership on partnership initiatives and supporting partnership development;

· Working cooperatively with local, state and regional government departments and agencies, local economic development, tourism and industry and business organisations, environmental stakeholder organisations and the community;

· Identifying and reporting industry trends (including relevant statistics) on competitiveness issues, policy and programs across local, regional, domestic and international platforms; and

· Assisting with the dissemination of information between all stakeholders

The committee will also;

· Provide direction to the various sub-committees established by the SEDAC Committee to work on individual areas;

· Consider and review reports prepared by sub-committees and refer appropriate policy and strategic direction to staff for their appropriate action, including formal submission to Council.

· Report on achievements, via an annual report to Council, stakeholders and the community on the progress of implementation of the relevant plans.

Role of the Tourism Advisory Committee and proposed SEDMAC membership

As discussed at the Tourism Advisory Committee (TAC) meeting on 11 June, the current Tourism Advisory Committee scope has been broadened to that of a Sustainable Economic Development Management Advisory Committee. In fact, the draft Terms of Reference presented to Council is based on the Terms of Reference for the Tourism Advisory Committee.

The Tourism Management Plan would remain a key program of implementation for the committee; however the committee membership has been adapted to include the broader economic sectors of agriculture & food production, creative industries, education and business services and a skill base that reflects an expertise in statistics, research, the environment and workforce development.

The suggested membership of the new SEDMAC committee is as follows:

· Five industry members, each representing key economic driver industries in the Byron Shire economy – tourism, creative industries, agriculture & food production, education and business services.

· Two community members who are not associated with any particular industry and of whom at least one is from a rural area. (In the event of no suitable nominations being received for the member from a rural area, the two community members should be selected from two different geographic areas within the Shire.)

· One member from an environmental organisation or who has significant experience in the delivery of environmentally sustainable projects and/or activities.

· An invitation should be extended to the Bundjalung of Byron Bay Aboriginal Corporation (Arakwal) to provide one representative if desired.

· Two or more Councillors, as determined by Council.

Members represent the sub-sector/ precinct identified, not a particular organisation.

It is recommended Council adopt the draft Terms of Reference attached to this report. Once the new SEDMAC committee is established, the role of the Tourism Advisory Committee as a separate committee becomes obsolete. Therefore, it is recommended that the current Tourism Advisory Committee members be thanked for their service to Council and the community and existing Tourism Advisory Committee members be encouraged to nominate for a position on the new SEDMAC Committee.

Financial Implications

Nil

Statutory and Policy Compliance Implications

Community Strategic Plan 2014 – 2024

Byron Shire Tourism Management Plan

Destination Management Plan for the Byron Shire

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.5 - Attachment 1

Text Box:

BYRON SHIRE COUNCIL

SUSTAINABLE ECONOMIC DEVELOPMENT MANAGEMENT ADVISORY COMMITTEE

TERMS OF REFERENCE

Preamble

The Sustainable Economic Development Management Advisory Committee (SEDMAC) is an advisory Committee of the Council and does not have executive power or authority to implement actions.

The role of the SEDMAC Committee is, independently of management, to report to Council and provide appropriate advice and recommendations on matters relevant to economic development and tourism in the Shire.

Understanding the Local Economic Development Function [An extract from The World Bank]

· Ensuring that the local investment climate is functional for local businesses;

· Supporting small and medium sized enterprises;

· Encouraging the formation of new enterprises;

· Attracting external investment (nationally and internationally);

· Investing in physical (hard) infrastructure;

· Investing in soft infrastructure (educational and workforce development, institutional support systems and regulatory issues);

· Supporting the growth of particular clusters of businesses;

· Targeting particular parts of the city for regeneration or growth (areas based initiatives);

· Supporting informal and newly emerging businesses;

· Targeting certain disadvantaged groups.

Objective and purpose of the Byron Shire Sustainable Economic Development Management Advisory Committee