BYRON SHIRE COUNCIL

                                                                                                                              13.13 - Attachment 1

 

 

 

 

PLANNING PROPOSAL

 

RECLASSIFICATION OF LAND TO OPERATIONAL – INTERESTS CHANGED

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

THE ‘ROUNDHOUSE SITE’

 

LOT 530 DP 238451 ORANA ROAD, OCEAN SHORES

 

 

 

 

 

Original Version 23 May 2014, Revised Version 22 January 2015

 

 


 

TABLE OF CONTENTS

 

Introduction .............................................................................................................................................. 3

 

Background .............................................................................................................................................. 4

 

Part 1...... Objectives and Intended Outcomes of the Proposed Instrument ........................................... 7

 

Part 2...... Explanation of Provisions to be included in the Proposed Instrument .................................... 7

 

Part 3...... Justification for Objectives, Outcomes and Implementation Process .................................... 8

 

Section A – Need for the Planning Proposal ........................................................................... 8

 

Section B – Relationship to strategic planning framework ..................................................... 8

 

Section C – Environmental, social and economic impact ...................................................... 13

 

Section D – State and Commonwealth interests .................................................................... 13

 

Part 4...... Mapping ................................................................................................................................... 14

 

Part 5...... Community Consultation ......................................................................................................... 14

 

Part 6...... Project Timeline ....................................................................................................................... 14

 

Conclusion ............................................................................................................................................... 16

 

 

 

Attachment A – Photograph of the Site and Approved Plan of Subdivision ........................................... 17

 

Attachment B – Draft LEP 2014 Amendment Map ................................................................................. 18


 

INTRODUCTION

 

This is a Planning Proposal by Byron Shire Council (“Council”) to amend Byron Local Environmental Plan 2014 (“LEP 2014”) by way of a local environmental plan that reclassifies the public land owned by the Council and known as Lot 530 DP 238451 Orana Road, Ocean Shores (the “Land”), which is also known as the former “Roundhouse” site, from “community” to “operational” land under Part 2 of Chapter 6 of the Local Government Act 1993 (“LG Act”) and makes provision to the effect that, on commencement of the plan, the Land, if it is a public reserve, ceases to be a public reserve, and that the Land is by operation of the plan discharged from any trusts and interests except for:

 

(a)        any reservations that except land out of a Crown grant relating to the Land;

(b)        reservations of minerals (within the meaning of the Crown Lands Act 1989);

(c)        Easement for Electricity registered dealing number N765060;

(d)        Easement for Rising Main registered with DP 600678;

(e)        Right of Carriageway registered with DP 1062920; and

(d)        Easement for Services registered dealing number AD798519.

 

The Land was classified as “operational” by Byron Local Environmental Plan 1988 (Amendment No 86) on 22 March 2002.  However, Byron Local Environmental Plan 1988 (Amendment No 86) provided that the Land:

 

(a)     to the extent (if any) that the Land was a public reserve, did not cease to be a public reserve; and

 

(b)     continued to be affected by any trusts, estates, interests, dedications, conditions, restrictions or covenants by which it was affected before its classification, or reclassification, as operational land. 

 

Development consent to subdivide the Land into 11 residential lots was granted on 8 April 2003 and the subdivision is nearing completion. The Land is presently within Zone R2 Low Density Residential under the provisions of Byron Local Environmental Plan 2014 (LEP 2014). Council resolved to sell the lots by way of public auction in order to fund future infrastructure projects in Ocean Shores and other parts of the Byron Local Government Area.

 

A proposed auction of some of the lots was cancelled in March 2014 to investigate certain assertions made just prior to the auction including assertions to the effect that the Land is subject to a trust for a public purpose that was not expunged by the reclassification of the Land pursuant to Byron Local Environmental Plan 1988 (Amendment No. 86) and therefore could not be sold.

 

Whilst the Council does not admit or concede that the Land is subject to a trust for a public purpose it proposes, for abundant caution and to provide certainty, to pass a resolution to reclassify the Land from “operational” to “community” under Part 2 of Chapter 6 of the LG Act so that the Land may then be reclassified by way of a local environmental plan utilising the power in section 30 of the LG Act to make provision in the local environmental plan to the effect that, on commencement of the plan, the Land, if it is a public reserve, ceases to be a public reserve, and that the Land is by operation of the plan discharged from any trusts and interests except for those set out above.

  

The power in section 30 of the LG Act is only available where a local environmental plan reclassifies “community” land as “operational” land. Given that the Land is presently classified as “operational” it is necessary for the Council to give public notice under section 34 of the LG Act of a proposed resolution to reclassify the Land as “community” land and then resolve pursuant to section 33 of the LG Act that the Land be reclassified as “community” land before the instrument intended by this Planning Proposal is then made to reclassify the Land from “community” land to “operational” land.

 

This reclassification to “community” land by resolution and then reclassification back to “operational” land by way of local environmental plan is an administrative step necessitated by the specific wording of section 30 of the LG Act.

The objectives and intended outcome of this Planning Proposal are that the Land is classified by a local environmental plan as “operational” under Part 2 of Chapter 6 of the LG Act and that it is made certain by the provisions incorporated in the local environmental plan pursuant to section 30 of the LG Act that the Land is not a public reserve and is not the subject of any trusts or interests which may prevent the Council from selling the land.

 

This Planning Proposal has been prepared with reference to the provisions of the LG Act, the Environmental Planning and Assessment Act 1979 (“EP&A Act”), and the Department of Planning and Environment’s Guidelines “A guide to preparing planning proposals” and “A guide to preparing local environmental plans”.

 

 

BACKGROUND

 

Byron Shire Council is the owner of the Land which is locally known as the “Roundhouse Site”. The Land was originally part of a dairy farm but from around 1969 was used as a sales office for the Ocean Shores development and accommodated a sixteen sided circular building – the “Roundhouse”. The Land was zoned Special Uses 5(a) – Community Purposes under Byron Local Environmental Plan 1988 (LEP 1988) and on 27 July 1990 the Land and Environment Court ordered Council to compulsorily acquire the Land. The Land was acquired by Council on 26 July 1991. The Roundhouse building was demolished in 1993.

 

The Land was rezoned to Zone No. 2(a) (Residential Zone) by way of LEP 1988 (Amendment No. 46) made on 2 July 1996. The lot was classified operational land – interests not changed by way of LEP 1988 (Amendment No. 86) made on 22 March 2002. The LEP Amendment resulted in the Land being described in Part 2 of Schedule 11 of the LEP. Under subclause 47(3) of the LEP, land described in Part 2 of Schedule 11:

 

(a)     to the extent (if any) that the land is a public reserve, does not cease to be a public reserve, and

(b)     continues to be affected by any trusts, estates, interests, dedications, conditions, restrictions or covenants by which it was affected before its classification, or reclassification, as operational land.

 

Development Application No. 10.2001.627.1 for subdivision to create eleven (11) lots and associated road works was consented to on 8 April 2003. The subdivision works are nearing completion in preparation for the lodgement of the subdivision certificate application, prior to registration of the final plan of subdivision (refer to the recent photograph of the site and the approved plan of subdivision provided in Attachment A to this Planning Proposal). Four of the residential lots were to be auctioned in March 2014, however, Council’s ability to sell the Land was challenged and the auction did not proceed.

 

At its meeting on 10 April 2014 Council resolved:

 

1.      That Council note that this report being a late report will not compromise the community’s knowledge of or ability to participate in the decision-making on this matter because, if it proceeds, there will need to be extensive community consultation and many opportunities to make submissions to Council and at Council meetings.

 

2.      That a planning proposal be prepared and submitted to the NSW Minister for Planning & Infrastructure in accordance with Division 4 of Part 3 of the Environmental Planning and Assessment Act 1979 and Sections 27(1) and 30 of the Local Government Act 1993 for the making of a local environmental plan to classify or reclassify the said land as operational land and to make provision to the effect that, on commencement of the plan, the land, if it is a public reserve, ceases to be a public reserve, and that the land is by operation of the plan discharged from any trusts, estates, interests, dedications, conditions, restrictions and covenants affecting the land or any part of the land, except for:

(i)      any reservations that except land out of a Crown grant relating to the land, and

(ii)     reservations of minerals (within the meaning of the Crown Lands Act 1989).

         …

 

4.      That it be noted that as a result of delay to the Roundhouse project, infrastructure projects, including Ocean Shores infrastructure projects, that were proposed to be funded from the proceeds of sale of the Roundhouse land, will now be delayed, or may not be able to be delivered depending on the outcome of the LEP amendment process.

 

The Land is entirely within Zone R2 Low Density Residential under LEP 2014 – refer to the LEP 2014 Zone map extract below. There is presently no public land identified for reclassification in Schedule 4 of LEP 2014.

 
Subject site

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


LEP 2014 Zone Map extract

 

In order for the classification of the Land to be changed from operational land – interests not changed to operational land – interests changed to achieve the objectives and intended outcomes, the Land would first need to be reclassified to ‘community land’ by way of a Council resolution because the power in section 30 of the LG Act is only available where a local environmental plan reclassifies ‘community land’ as ‘operational land’. As part of this resolution Council would note that the intention is to subsequently reclassify the Land to ‘operational land – interests changed’ by way of the amending local environmental plan that is the subject of this Planning Proposal. The necessary order of procedures to be followed includes:

 

1.      Public notice would need to be given in accordance with section 34 of the Local Government Act 1993 of a proposed resolution to the effect that the Land, which is public land presently classified as ‘operational’ land, is to be reclassified as ‘community’ land pursuant to section 27(2) and section 33 of the Local Government Act 1993. The notice must include the terms of the proposed resolution and a description of the Land and specify a period of not less than 28 days during which submissions may be made to the Council.

 

2.      Council would need to resolve to reclassify the Land as community land immediately prior to the Land subsequently being reclassified as operational land by way of the local environmental plan that is the subject of this Planning Proposal pursuant to section 27(1) of the LG Act so that:

(a)     the local environmental plan may, pursuant to section 30 of the LG Act, make provision to the effect that, on commencement of the plan, the Land, if it is a public reserve, ceases to be a public reserve; and that

(b)     the Land is, by operation of the local environmental plan, discharged from any trusts and interests, except for:

(i)      any reservations that except land out of a Crown grant relating to the L Land;

(ii)     reservations of minerals (within the meaning of the Crown Lands Act 1989);

(iii)     Easement for Electricity registered dealing number N765060;

(iv)    Easement for Rising Main registered with DP 600678;

(v)     Right of Carriageway registered with DP 1062920; and

(vi)   Easement for Services registered dealing number AD798519.

 

Provisions (a) and (b) require the Governor’s approval under section 30 of the Local Government Act 1993. The Governor’s approval is sought by the Department before the Minister makes the  local environmental plan to amend LEP 2014.

 

3.      The Council resolution to reclassify the Land as community land would need to be passed after completion of the community consultation and public hearing in respect of the local environment plan to amend LEP 2014 and before the Minister makes the plan. The Department of Planning & Environment  has advised that the Minister can be asked to publish the local environmental plan to amend LEP 2014 on the NSW Legislation website on a specific date (which becomes the date on which the  local environmental plan commence). The date that local environmental plan to amend LEP 2014 is published on the legislation website should be the day after the Council resolution to reclassify the Land to community land, to minimise the length of time that the Land is classified as community land.

 

A more detailed indicative timeline is provided in Part 6 of this Planning Proposal below.

 

The delegate of the Minister for Planning issued a Gateway Determination in respect of this Planning Proposal on 7 November 2014. The Gateway Determination states that the timeframe for completing the local environmental plan is to be 12 months from the week following the Gateway Determination.

 

This Planning Proposal has been amended to address Conditions 1 and 2 of the Gateway Determination as follows:

 

Condition 1(a).   Prior to commencing public exhibition, Council is to amend the planning proposal by … updating references to the Local Environmental Plan that is being amended noting that the Byron Local Environmental Plan 2014 has been notified; and

 

Response:    The Planning Proposal was originally prepared when Byron LEP 1988 applied to the site and LEP 2014 was a draft environmental planning instrument. Prior to the Gateway Determination, LEP 2014 was gazetted and applies to the entirety of the site. This Planning Proposal has been updated to refer only to LEP 2014 being the subject of the proposed LEP amendments under this Planning Proposal.

 

Condition 1(b)    Prior to commencing public exhibition, Council is to amend the planning proposal by …. amending Part 1 Objectives and Intended Outcomes to ensure the outcome that the planning proposal seeks to achieve can be clearly understood by the general community.

 

Response:    Part 1 of the Planning Proposal below and the introduction and background information above have been amended to make clear to the general community the outcome that the Planning Proposal is seeking to achieve.

 

Condition 2(a).   Prior to finalisation of the LEP, the planning proposal is to be amended to clarify whether any interests applying to the land will be extinguished; and

 

Response:    The Planning Proposal has been amended to clarify that all interests in the Land will be extinguished except for the identified mandatory interests arising from Crown and mineral reservations and the registered easements and rights of way.

 

Condition 2(b).   Prior to finalisation of the LEP, the planning proposal is to be amended … to include required mapping prepared in accordance with the Department's Standard Technical Requirements for LEP Maps.

 

Response:       A draft LEP 2014 Amendment Map, prepared in accordance with the Department’s Standard Technical requirements for LEP Maps dated November 2012, is contained in Attachment B of this Planning Proposal.

 

 

PART 1     OBJECTIVES AND INTENDED OUTCOMES OF THE PROPOSED INSTRUMENT

 

The objectives and intended outcome of this Planning Proposal are that the Land is classified by a local environmental plan as “operational” under Part 2 of Chapter 6 of the LG Act and that it is made certain by the provisions incorporated in the local environmental plan pursuant to section 30 of the LG Act that the Land is not a public reserve and is not the subject of any trusts or interests which may prevent the Council from selling the land (or any part of the Land).

 

If the proposed local environmental plan was made it would amend LEP 2014 and result in the Land being reclassified as “operational” and it would also provide certainty that the Land:

 

(i)      ceases to be a public reserve (if it is a public reserve); and

(ii)      is discharged from all trusts and interests except:

 

(a)        any reservations that except land out of a Crown grant relating to the Land;

(b)        reservations of minerals (within the meaning of the Crown Lands Act 1989);

(c)        Easement for Electricity registered dealing number N765060;

(d)        Easement for Rising Main registered with DP 600678;

(e)        Right of Carriageway registered with DP 1062920; and

(d)        Easement for Services registered dealing number AD798519.

 

 

PART 2     EXPLANATION OF PROVISIONS TO BE INCLUDED IN THE PROPOSED INSTRUMENT

 

If the proposed instrument is made it will amend Part 2 of Schedule 4 of the LEP 2014 to include the following:

 

Part 2 Land classified, or reclassified, as operational land – interests changed

Column 1

Column 2

Column 3

Locality

Description

Any trusts etc not discharged

Ocean Shores

Lot 530 DP 238451, Orana Road

All trusts and interests except for:

 

 (a)  any reservations that except land out of a Crown grant relating to the Land;

(b)   reservations of minerals (within the meaning of the Crown Lands Act 1989);

(c)   Easement for Electricity registered dealing number N765060;

(d)   Easement for Rising Main registered with DP 600678;

(e)   Right of Carriageway registered with DP 1062920; and

(d)   Easement for Services registered dealing number AD798519.

 

PART 3     JUSTIFICATION FOR OBJECTIVES, OUTCOMES AND IMPLEMENTATION PROCESS

 

Section A – Need for the Planning Proposal

 

Q1.   Is the planning proposal a result of any strategic study or report?

 

The Planning Proposal reflects Council’s intention to complete the subdivision and sale of the Land (unencumbered except for the reservations mentioned above) in accordance with the objectives of Zone R2 Low Density Residential, which are:

 

(a)     To provide for the housing needs of the community within a low density residential environment, and

(b)     To enable other land uses that provide facilities or services to meet the day to day needs of residents.

 

The Planning Proposal is a key plank in Council’s Financial Sustainability Project Plan in terms of generating sufficient reserves to fund future infrastructure projects within Ocean Shores and other parts of the Council area.

 

Q2.   Is the planning proposal the best means of achieving the objectives or intended outcomes, or is there a better way?

Amending LEP 2014 in the manner proposed is the best, most efficient and most time effective approach to delivering the objectives and intended outcomes of the Planning Proposal. The Land is already classified as operational, and the proposed procedure would confirm that the Land:

 

(a)     remains classified as operational;

(b)     ceases to be a public reserve to the extent (if any) that it is a public reserve; and

(c)     is discharged from any trusts or interests which may prevent the Council from selling the land (or any part of the Land).

 

Section B – Relationship to strategic planning framework

 

Q3.   Is the planning proposal consistent with the objectives and actions of the applicable regional or sub-regional strategy?

The Planning Proposal is consistent with the objectives and actions of the Far North Coast Regional Strategy relating to this land which is within the Ocean Shores coastal village, because the proposed instrument will:

 

(a)     not change the zoning of the Land;

(b)     result in the classification of the Land reflecting Council’s intention that the Land be developed for residential purposes demonstrated by the R2 Low Density Residential Zone;

(c)     not have a significant effect in terms of environmental, agricultural, farmland, vegetation, habitat, areas of high biodiversity, waterway, wetland or coastline or landscape values (including scenic and cultural landscapes);

(d)     not change the location of planned residential development and facilitate the desired future character of the location;

(e)     not have a significant effect in terms of extractive resources; and

(f)     reflect the objectives of the Zone.

 

Q4.   Is the planning proposal consistent with Council’s local strategy or other local strategic plan?

The Planning Proposal is consistent with the key community outcomes and strategies of Council’s Draft Community Strategic Plan 2022.

 

 

 

Q5.   Is the planning proposal consistent with applicable State Environmental Planning Policies?

The Planning Proposal is consistent with applicable State Environmental Planning Policies (SEPP) which include:

 

SEPP 14 – Coastal Wetlands

The site does not contain nor adjoin any SEPP 14 wetlands.

 

SEPP 19 – Bushland in Urban Areas

The site does not contain nor adjoin, and the Planning Proposal does not propose to disturb, any bushland zoned or reserved for public open space purposes.

 

SEPP 26 – Littoral Rainforest

The site does not contain nor adjoin any SEPP 26 littoral rainforest.

 

SEPP 44 – Koala Habitat Protection

The site does not contain nor adjoin any koala habitat.

 

SEPP 55 – Remediation of Land

The report on the above mentioned Development Application No. 10.2001.627.1 advised in relation to contamination as follows: “A dip site was identified in the estate and as a result Aztec Environmental Consultants were engaged to undertake a comprehensive study of the whole estate. As a result of the previous investigations Council is satisfied that there are no outstanding issues in respect to the State Policy and no further investigation is warranted”.

 

SEPP 71 – Coastal Protection

The Planning Proposal is consistent with the provisions of SEPP 71 in relation to preparing draft LEPs.

 

SEPP (Infrastructure) 2007

The Planning Proposal is not contrary to the provisions of SEPP (Infrastructure) 2007.

 

North Coast Regional Environmental Plan

The Planning Proposal is consistent with the provisions of the North Coast Regional Environmental Plan. In particular, the Planning Proposal assists with achieving the objective to promote the provision of a range of adequate, affordable and suitable housing to meet the needs of the region’s population. The proposal will not have a significant impact in terms of strategic planning or environmental hazard considerations.

 

Q6.   Is the planning proposal consistent with applicable Ministerial Directions (s.117 directions)?

The Planning Proposal is consistent with applicable Ministerial Directions as follows:

 

2.      Environment and Heritage

2.2... Coastal Protection

The Planning Proposal is consistent with the relevant principles outlined in the NSW Coastal Policy.

 

2.3  Heritage Conservation

The site is a local heritage item under LEP 2014. However the Land was reclassified to operational in 2002 and the subdivision of the Land was approved in 2003, well before Council’s Community-Based Heritage Study and LEP 2014 were prepared. Whilst the Study’s heritage statement describes the site as containing the original administration centre and sales office building for the Ocean Shores development, this building was demolished in 1993 and approved subdivision works have since been carried out on the Land. The proposed reclassification of the Land has no implications with respect to the heritage value of the site, because it merely results in the classification of the Land changing to another type of operational land and will not cause or require any further disturbance of any remnant heritage characteristics of the site.

 

3.      Housing, Infrastructure and Urban Development

3.1... Residential Zones

........ The Planning Proposal will facilitate the subdivision of the Land in accordance with the existing and proposed residential zones which apply to the Land.

 

5.      Regional Planning

5.1... Implementation of Regional Strategies

........ The Planning Proposal is consistent with the Far North Coast Regional Strategy’s relevant aims, outcomes and actions.

 

6.      Local Plan Making

6.1... Approval and Referral Requirements

The Planning Proposal outlines relevant community consultation requirements, however it does not introduce any additional concurrence or referral requirements and does not relate to designated development.

 

 

The purpose of NSW Planning & Infrastructure’s Practice Note 09-003 Classification and reclassification of public land through a local environmental plan dated 12 June 2009 is to provide updated guidance on the process to classify or reclassify public land through a local environmental plan. A written statement is to be provided addressing the following:

 

·       The reasons why the draft LEP or planning proposal is being prepared including the planning merits of the proposal, e.g. the findings of a centres’ strategy, council’s intention to dispose of the land, provision of open space in a town centre

 

The Planning Proposal is prepared to facilitate Council’s intention to complete the subdivision and sale of the proposed residential lots in accordance with the zone objectives and the valid development consent. The Planning Proposal is a key plank in Council’s Financial Sustainability Project Plan in terms of generating sufficient reserves to fund future infrastructure projects in Ocean Shores and other parts of the Council area.

 

·       The current and proposed classification of the land

 

The Land is currently ‘operational’ Land classified, or reclassified, under amended section 30 of Local Government Act 1993—interests not changed under Part 2 of Schedule 11 of the LEP. Following the procedure outlined in this Planning Proposal, the Land would ultimately be classified to Operational land—interests changed under Part 2 of Schedule 4 of LEP 2014.

 

·       The reasons for the reclassification including how this relates to council’s strategic framework, council’s proposed future use of the land, proposed zones, site specific requirements, e.g. heritage controls, anticipated physical or operational changes resulting from the reclassification

 

The reclassification facilitates the intended development and sale of the Land for residential purposes in accordance with the development consent that has been granted to subdivide the Land and the work that has been carried out on the site and Council’s long term financial sustainability planning

 

The reclassification accords with the applicable Residential zone that applies.. The reclassification results in no physical change to the site. The reclassification provides certainty in relation to the sale of the separate approved residential lots and will ultimately assist with providing funding for the infrastructure projects.

 

·       Council’s ownership of the land, if this applies

 

The Land is currently in Council’s ownership. Council intends to obtain a subdivision certificate for the approved subdivision of the Land and then register the approved subdivision with NSW Land and Property Information.

 

·       The nature of council’s interest in the land, e.g. council has a 50 year lease over the site

 

Council is the owner of the Land.

 

·       How and when the interest was first acquired, e.g. the land was purchased in 20XX through section 94

 

On 27 July 1990 a declaration was made by the Land and Environment Court in Cochrane v Byron Shire Council (1990) NSWLEC to the effect that the Council was bound to acquire the Land from the then owners. A consequential order was also made in the following terms:

 

“2. I order that the Council of the Shire of Byron shall, after complying without delay with the provisions of the Local Government Act 1919 (as amended) and Ordinances thereunder, thereupon make application to his Excellency, the Governor, pursuant to the Act and those Ordinances for approval to resume the land being Lot 530 DP 238451 comprising certificate of title 11210 folio 241.”

 

At the time the order and declaration were made the Land was zoned 5(a) (Special Uses Zone) under Byron Local Environmental Plan 1988.  The map relating to LEP 1988 identified the Land with the words “5(a) COMM. PURP.”

 

On 12 March 1991, the Council resolved to acquire the Land pursuant to Section 532 of the Local Government Act 1919 and to affix its seal to an application to the Minister for Local Government for approval to cause a Notice of the Resumption to be published in the NSW Gazette.

 

On 3 July 1991, the NSW Governor approved the publication by the Council of a Notice of Resumption of the Land “for the purpose of giving effect to the provisions of Clause 43(3) of the Byron Local Environmental Plan 1988.”

 

On 26 July 1991 the Notice of Resumption of the Land was published in the NSW Government Gazette No. 110 (page 6237) a copy of which is annexed and marked “G”.

 

Proceedings were subsequently commenced in the Land and Environment Court in relation to the amount of compensation payable by the Council to the former owners of the Land.  Judgment in the compensation proceedings was published by the Land and Environment Court on 1 April 1993 (see Cochrane & Ors v The Council of the Shire of Byron No. 30089 of 1992 Justice Bannon).

 

The Council was ordered by the Court in the compensation proceedings to pay each of the three Applicants $330,693.33 (i.e. a total of $992,079.99) for their interests in the Land.

 

·       The reasons council acquired an interest in the land, e.g. for the extension of an existing park; council was given responsibility for the land by a State agency

 

See above.

 

·       Any agreements over the land together with their duration, terms, controls, agreement to dispose of the land, e.g. whether any aspect of the draft LEP or planning proposal formed part of the agreement to dispose of the land and any terms of any such agreement

 

No agreements have presently been entered into by the Council to dispose of the Land. However, the Council has previously resolved to sell the lots resulting from the subdivision of the Land by way of public auction in order to fund future infrastructure projects in Ocean Shores and other parts of the Byron Local Government Area.

 

A proposed auction of some of the lots was cancelled to investigate certain assertions made just prior to the auction, including to the effect that the Land is subject to a trust for a public purpose that was not expunged by the reclassification of the Land pursuant to LEP 1988 (Amendment No. 86) and therefore could not be sold.

 

A report relating to the Land included in the business papers for the Council meeting on 10 April 2014 stated that the Ocean Shores Community Association (OSCA) is arguing that

 

“……the Roundhouse site has not been properly classified as Operational Land, it is affected by a trust and/or that Council has no legal power to sell the land. Council believes that OSCA is wrong and that Council does have the power to sell the land as the land was correctly classified as Operational Land by a valid LEP Amendment”.

 

The proposed instrument and process outlined in this Planning Proposal will provide clarity and certainty that the Land:

 

(a)     is classified as “operational”  in accordance with Part 2 of Chapter 6 of the Local Government Act 1993 (“LG Act”); and

 

(b)     ceases to be a public reserve (if it is a public reserve); and

 

(c)     is discharged from any trusts or interests which may prevent the Council from selling the land (or any part of the Land).

 

·       An indication, as a minimum, of the magnitude of any financial gain or loss from the reclassification and of the type(s) of benefit that could arise e.g. council could indicate the magnitude of value added to the land based on comparable sites such as the land is currently valued at $1500 per square metre, nearby land zoned for business development is valued at between $2000 and $5000 per square metre.

 

The Land is already classified operational, zoned residential, approved for residential subdivision, and the subdivision works are nearing completion. The purpose of the Planning Proposal is to facilitate a process of confirming that the Land is not a public reserve expunging any trusts and interests, affecting the Land or any part of the Land, except those expressly identified, and to allow the sale and development of the approved residential lots in accordance with the zone objectives, the development consent and Council’s resolutions and long term financial planning.

 

·       The asset management objectives being pursued, the manner in which they will be achieved and the type of benefits the council wants, i.e. without necessarily providing details of any possible financial arrangements, how the council may or will benefit financially.

 

It is reported that the sale of the Land is a fundamental component of Council’s Financial Sustainability Project Plan because funds from it are earmarked as being the ‘seed money’ that could be reinvested to increase Council’s infrastructure management capacity.

 

·       Whether there has been an agreement for the sale or lease of the land; the basic details of any such agreement and, if relevant, when council intends to realise its asset, either immediately after rezoning/reclassification or at a later time.

 

There is presently no agreement entered into to sell or lease the Land. However, as stated above the Council has previously resolved to sell the lots resulting from the subdivision of the Land by way of public auction in order to fund future infrastructure projects in Ocean Shores and other parts of the Byron Local Government Area.

 

It is expected that the Council would proceed to sell some or all of the lots resulting from the subdivision of the Land by way of public auction as soon as possible.

 

·       Relevant matters required in plan making under the EP&A Act.

 

This Planning Proposal addresses the relevant matters required in plan making under the EP&A Act.

 

·       A copy of this practice note must be included in the exhibition material to assist the community in identifying information requirements. Council staff may wish to identify the column in Attachment 1 that applies.

 

A copy of the relevant Practice Note will be included, if required at the relevant time, in the public exhibition material.

 

Section C – Environmental, social and economic impact

 

Q7.   Is there any likelihood that critical habitat or threatened species, populations or ecological communities, or their habitats, will be adversely affected as a result of the proposal?

Council’s GIS mapping does not indicate that the Land contains high conservation value vegetation, koala habitat, SEPP 14 wetland, SEPP 26 littoral rainforest or threatened fauna habitat. The Land has been significantly disturbed by past activities associated with dairy farming, sales office and subdivision works. The proposed reclassification is unlikely to have a significant effect on any critical habitat or threatened species, populations or ecological communities, or their habitats.

 

Q8.   Are there any other likely environmental effects as a result of the planning proposal and how are they proposed to be managed?

The Planning Proposal assists with facilitating the sale and subsequent use of the Land for low density residential purposes in accordance with the objectives of the zone.

 

Q9.   Has the planning proposal adequately addressed any social and economic impacts?

The reclassification will contribute towards the provision of additional housing opportunities to meet the needs of the population and is unlikely to have to any adverse social or economic impacts.

 

Section D – State and Commonwealth interests

 

Q10. Is there adequate public infrastructure for the planning proposal?

The servicing of the proposed residential lots would be completed prior to the issue of the subdivision certificate in accordance with the development consent. No further services are required as a result of the proposed reclassification.

 

Q11. What are the views of State and Commonwealth public authorities consulted in accordance with the Gateway determination?

The views of State and Commonwealth public authorities would be considered (where required) after the public exhibition process is completed.

PART 4     MAPPING

 

The Planning Proposal includes the LEP 2014 Zone  map extract to identify the site above. A draft LEP 2014 Amendment Map is contained in Attachment B of this Planning Proposal.

 

 

PART 5     COMMUNITY CONSULTATION

 

Council has not undertaken, and is not required to undertake, any pre-planning proposal consultation. The Gateway Determination specifies, in conjunction with other Department of Planning & Environment documents, that the following community consultation is required to be undertaken on this Planning Proposal:

 

(a)  The exhibition period is to be a minimum of 28 days;

(b)  The relevant material will be made available for public inspection during the exhibition period as specified in NSW Planning & Environment’s A guide to preparing local environmental plans.

 

A public hearing must be arranged in respect of this Planning Proposal in accordance with section 29 of the Local Government Act 1993 because the Planning Proposal relates to the reclassification of community land to operational land. Council will consider any submissions made concerning the proposed local environmental plan and the report of the public hearing into the proposed LEP.

 

 

PART 6     PROJECT TIMELINES

 

An indicative project timeline is provided below, noting that:

 

1.      The timeframes for each stage in the project are approximate only

2.      The stages and timeframes will be carried out concurrently wherever possible;

3.      There may be intervening periods between each stage in the project but these will  be reduced wherever possible; and

4.      Each stage and timeframe relating to the reclassification from ‘operational to community’ component of the project may but does not need to exactly match the timeframe of an adjacent stage of the ‘community to operational’ reclassification component.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

INDICATIVE PROJECT TIMELINE

 

Reclassification Components and Stages

Timeframe

 

 

 

‘Operational to Community’ component stages

‘Community to Operational’ component stages

 

 

 

 

 

 

 

 

Council forwards the Planning Proposal to the Department

 

The Department carries out the Gateway and returns the Planning Proposal with the Gateway determination to Council

(section 56 of EPA)

COMPLETED

 

 

COMPLETED

 

 

 

 

 

Report to Council seeking a resolution to place a public notice of proposed reclassification from operational land to community land.

 

35 days

 

 

 

Preparation for community consultation and public notice processes.

35 days

 

 

 

 

 

Public notice of proposed resolution to reclassify the land as community land (section 34 of LGA). The public notice must include the name by which the land is generally known, and should also include the Lot, DP, street and suburb particulars (section 54A of LGA).

Community consultation (including public exhibition) for Planning Proposal (section 57 of EPA).

Public notice period 28 days minimum

 

Public exhibition 28 days minimum

 

 

 

 

 

 

 

Preparation for and conducting of public hearing (section 29 of LGA), by a person other than a Councillor or employee (section 47G of LGA).

 

 

 

 

 

56 days

 

 

 

 

 

 

 

Preparation of report on public hearing by the person presiding at the public hearing (section 57(7) of EPA). The report is to be made available for inspection no later than 4 days after Council has received the report (section 47G of LGA).

 

 

 

 

 

 

 

Report to Council on outcome of community consultation and public hearing, to recommend any amendments to the Planning Proposal post-exhibition and to seek a resolution to adopt the Planning Proposal, to be forwarded along with relevant supporting information to the Department requesting that the Amending LEP be prepared.

 

 

 

42 days

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Department makes arrangements for Amending LEP to be prepared by PCO.

21 days

 

 

 

 

 

 

 

Approval of the Governor obtained by the Department / PCO (section 30 of LGA), content of Amending LEP finalised by PCO, an opinion issued by PCO that the Amending LEP can be made and Council advised by the Department accordingly.

 

 

 

28 days

 

 

 

 

 

Report to Council seeking a resolution to reclassify the land as community land (section 33 of LGA).

 

 

 

42 days

 

 

 

 

 

 

 

Council advises the Department that Council resolved to reclassify the land as community land.

 

1 day

 

 

 

 

 

 

 

The Amending LEP is published on the legislation website the day after Council resolves to reclassify the land from operational to community land.

 

Note: ‘EPA’ means Environmental Planning and Assessment Act 1979, ‘LGA’ means Local Government Act 1993 and ‘PCO’ means the Office of Parliamentary Counsel.

 

 

CONCLUSION

 

The proposed reclassification of the Land to “operational land – interests changed” is satisfactory having regard to relevant legislative and environmental planning requirements.

 

The Planning Proposal is consistent with the objectives of the applicable Residential zone and the approved development of the Land.

 

The reclassification is intended to provide certainty to the community and Council in the process of subdividing, and selling the Land, and is to assist with providing funding for future infrastructure projects in Ocean Shores and other parts of the Council area.

 

The reclassification reflects the existing and intended future use, and facilitates the proper planning and development, of the Land.


 

ATTACHMENT A – PHOTOGRAPH OF THE SITE AND APPROVED PLAN OF SUBDIVISION

 

(Photograph taken: 28 April 2014)

 

 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


Plan of Subdivision, approved under the consent to DA 10.2001.627.1

 

 

 

 


 

ATTACHMENT B – DRAFT LEP 2014 AMENDMENT MAP