Attachments of Ordinary Meeting

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 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);

(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

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);

(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

28042014

(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

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.13 - Attachment 3

E2015/22102

Attachment 3 – Responses to Issues Raised in Public Submissions

Planning Proposal – Reclassification of Lot 530 DP 238451 Orana Road, Ocean Shores

Submissions were received in relation to the public exhibition for the Planning Proposal, and comments are provided in response to each submission (as applicable), as follows:

1. 6 favourable submissions advising as follows:

The move by Council to end the saga relating to the sale of the "Roundhouse" blocks needs to be recognised and applauded. It is the most sensible thing the Council can do. Ocean Shores residents are utterly sick to death of constant delays and objections relating to this development.

Comment: It is acknowledged that the subdivision and sale of the land is taking many years to come to fruition.

I read today in the letters to Byron Echo under the heading ''Roundhouse Trickery" a letter which continues the preposterous claims that have emanated from one particular group over many years. The survey which the author purports to show that 75% favoured the land remaining in public hands was as she mentions a door knock and as such lacks any scientific validity or rigor. How easy would it be to grab a figure, lets say 75%, and attach that to a view which is strongly held by the people conducting the survey when the data can't be checked and/or scrutinized.

Comment: This report has only considered submissions made during the public exhibition and the public hearing report has considered submissions made to the public hearing.

I could just as legitimately claim that using a small sample I surveyed residents of Ocean Shores {my friends, which I would point out is a slightly larger group than the 8 people who attended the last reported AGM of OSCA [2012 on their website]} and found that 100% do not support the establishment of a white elephant cultural centre come coffee shop, come motel, come art gallery, come drive-in theatre etc etc. and would like Council to sell the said blocks. I would encourage Council to resist the detractors and get on with the job of selling the blocks.

Comment: The community consultation process has demonstrated that there is a broad spectrum of opinions in the community.

I am concerned that press and Council statements consistently use phrases like "the majority of the profit will be spent in the north of the shire" and would question what this means exactly. The north of the shire includes lots of places which are not Ocean Shores and one wonders why "ALL" of the funds can't be used to repair our deplorable roads, provide basic non-existent infrastructure items like footpaths, street lighting and sports fields.

There is a feeling within our community that we are continually being short-changed by Council at the expense of other population centres with more extensive business establishments a point often espoused by the minority group mentioned previously. Indeed the letter to Byron Echo under the heading ''Roundhouse Trickery" states that: "I am appalled at Phil Holloway’s comments (Echo Feb 25) suggesting that when Roundhouse blocks are sold, Waterlily Park, roads, drainage and sportsfields can be funded. Smells like a bribe, looks like a bribe…? Do other townships have to sell assets to receive their road repair, toilet block maintenance, repair to parks? Doesn’t Council fairly allocate rates and expenditure equally Shire-wide?"

Putting aside the fact that the letter selectively quoted Mr Holloway and left out the bit that where he explained that the sale proceeds would make the things mentioned happen more quickly, as opposed to never. It might be advantageous for Council to include in one of its newsletters two simple pie charts showing rate revenue by town/village and rate expenditure for the same places. This simple strategy would demonstrate that expenditure is not biased in any way, wouldn't it?

Comment: Council’s media release dated 18 March 2015 stated that “... the ratepayers of Byron Shire have incurred millions of dollars in costs comprising substantial historic legal costs, purchase, subdivision and holding costs” and that “there is an opportunity to recoup these costs and invest sales revenue into critical infrastructure that the Ocean Shores community has been requesting for years”.

The ongoing battle between Council & certain members of Ocean Shores Community has to end. I am if the opinion that the Anti Roundhouse group does not represent the Ocean Shores Community, indeed and speaking as a former executive member, OSCA has little community support.

Comment: This is not a matter of relevance to the Planning Proposal. Council is considering the issues raised in submissions made by members of the public, irrespective of the name of the submitter.

With regard to the question as how best to spend the proceeds, I wish to make the following comments:

- Ocean Shores & surrounding suburbs have largely been ignored by Council.

- Byron Council has failed to prepare a management plan for Ocean Shores as it has done for other areas in the shire

- Roads & Infrastructure conditions are appalling

- Management Plan must be prepared. This plan should take into account needs of the community. I would suggest a survey be undertaken to assess priority needs.

State of roads, lack of public toilets & lack of water bubblers are a priority. I would also like to see repaint of Handrail of New Brighton bridge & upgrade of Water Lily Park. We have no bicycle paths and only a few proper footpaths. It is hard especially for the older community to walk on footpaths witch have 90% long grass on it.

Other projects include:

- The new sporting fields.

- A family park, BBQ and recreation area similar to the one between the beach and the roadside at Pottsville Beach.

- Revamp the very depressing Water Lilly Park area near the tennis court and the small park area to make it more user and family friendly.

- More footpaths to link the school and shopping centre to residential areas eg., Orana Road should have a footpath which links to Rajah Rd and continues to the shopping centre. Balemo Rd should have a footpath that links it to the existing path on the service road which leads to the Primary School and the Preschool.

The land belongs to the ratepayers of the whole Shire, and money made on its sale should be used for the benefit of the whole Shire.

Comment: Council’s media releases have indicated the projects that sales revenue would be put towards.

I am aware that some residents believe that the Community Centre at Ocean Shores is no longer large enough and adequate to accommodate the growing community and the functions required to be held in the centre. I have noticed there is a block of land for sale immediately next to the existing Community Centre. I am wondering if council should consider purchasing this land to extend and improve the existing Community Centre to benefit the residents of Ocean Shores. The shopping centre car park could be utilised after hours for functions.

Comment: These matters are not of relevance to the Planning Proposal.

2. 155 pro-forma objections providing the following grounds:

This land has historically been intended for community/public use. Keep the Roundhouse for community use.

Comment: It is understood that the land was initially within a 1(a) Non-Urban Zone and later within various Sales Office, Art Gallery and Community Purposes zones. However for almost 19 years the land has been in a Residential Zone. The land has been classified operational land for over 13 years, and part of the outcome of the proposed process is that the land would maintain an “operational land” classification. Further, Council has a development consent in place to subdivide the land into 11 lots and the subdivision works have been carried out. Council intends to sell the approved residential lots and does not propose to keep the land for a community / public use.

The original developers intended the Roundhouse building and land to be used for a cultural centre. Aboriginal artefacts were collected for the start of a cultural display.

Comment: The approved residential subdivision has been carried out in accordance with the Residential zoning of the land. Council rezoned the land to Residential almost 19 years ago indicating that any intention to develop the site as a cultural centre had been superseded by a clear intention to develop the site for residential purposes.

Retain the site in public/community ownership and develop it as a cultural venue, including an art gallery, historical display, coffee shop, theatre and native gardens. Council should not trade community land for repairs to the north of the Shire. Waterlily Park is mentioned in Council notices as receiving repair. Every part of the Shire should receive equal attention and funding for maintenance to roads, parks, amenities and infrastructure as a matter of course. Ocean Shores residents should not be required to forego the last piece of public land in order to have parks maintained. Council has been selling assets to pull it out of deficit. However this iconic piece of land once sold into private ownership is lost forever.

Comment: Since at least 1996 Council has had a clear intention to develop the land for residential purposes, through processes to rezone the land, reclassify the land, issue consent to the subdivide the land, carry out the approved subdivision, sell the approved lots and reclassify the land again principally to discharge any trust for a public purpose. The land has been costly to Council, and the sale of the approved residential lots will allow Council to invest in local public assets.

There is no infrastructure such as retirement village, police station, fire station, service station, high school, library, town hall/centre, hospital, cultural centre or theatre, and this site could provide a space for any one of these basic, essential services.

Comment: Neither the State Government nor Council has identified the land as suitable for any of these purposes. The approved subdivision is in keeping with the density and style of residential cul-de-sac development that characterises this part of Ocean Shores. The land has been deemed suitable for low density residential development in accordance with the zone and the approved subdivision. A more intense use of the land might be expected to have a more significant impact upon the residential amenity of the area than the approved residential subdivision in keeping with the residential context.

The hilltop 360° ocean-to-hinterland view is magnificent and should be enjoyed by all the community.

Comment: Devines Hill Lookout in Ocean Shores is an established lookout which enjoys more expansive views being at an elevation that is approximately three times the height of the subject land, and is appropriately within a Recreation zone reflecting the nature of the appropriate use (compared to the subject land which is zoned Low Density Residential reflecting the appropriate use of the land).

I object to any amendment to the LEP to reclassify the land from “community land” to “operational land” and I object to the removal of any trusts or other interests relating to the land.

Comment: Council is carrying out the process outlined in the Planning Proposal for abundant caution and to provide certainty to remove any impediment to the sale and subsequent development of the approved residential lots.

I object to any subdivision of land or any part of the lot and to the sale of the land or any part of the lot. I request that the land remain as community land in trust for public use.

Comment: A development consent is in place for the subdivision of the land and the subdivision works have been carried out. The subdivision and sale of the approved residential lots reflects the Residential zoning of the land. Council has given a clear indication since rezoning the land from community purposes to residential almost 19 years ago that the land would be used for residential purposes and not for community purposes, a position which has strengthened further through the reclassification to operational land and the issuing of development consent for residential subdivision.

I request a public hearing.

Comment: Council conducted a public hearing in accordance with the requirements of relevant legislation and the Gateway Determination. The public hearing is discussed in the public hearing report and the Council report.

Council has failed to take into account the context surrounding the proposal, i.e. the history which includes the tireless efforts of members of the community over twenty four years to ensure that the land is kept for the purpose for which it was acquired i.e. a community asset to be used in accordance with the provisions of a trust. Pecuniary gain from the sale of public assets is finite and short term. Community assets held in trust are priceless and timeless.

Comment: The context immediately surrounding the land is dominated by existing and approved residential allotments. The approved residential use of the land is appropriately compatible within this context.

13 of the above pro-forma letters provided additional comments as follows:

Council did not honour the Deed of Agreement with the original developer. Council blocked planned amenities and community facilities on this project including the planned Art Gallery for the 4.5 acre community space at the Roundhouse site.

Comment: The planning provisions relating to this site have progressed from the original Deed of Agreement through a series of planning instruments including Interim Development Order No. 1, Byron LEP 1988 and Byron LEP 2014. Since 1996 the land has been zoned Residential under the latter two instruments, and Council seeks to progress the approved residential subdivision development of the land.

Council was ordered by the Court to acquire this land which cost all Byron Shire ratepayers $4 million in court fees and subsequent purchase costs (Simpson Report 1994). Soon after acquisition, Council rezoned the land 'residential' on the 2/7/96, despite a declaration by the Court that "Having compulsorily acquired the land for a public purpose it would be anomalous if a Council then next day, or at any time, change it's mind and resell it in order to make a profit."

Comment: Council carried out a series of processes over a number of years to (i) rezone the land to Residential in 1996, (ii) reclassify the land to operational in 2002 and (iii) obtain development consent for a residential subdivision of the land in 2003. Council determined over the years that the land is better suited to the purpose of a residential subdivision, rather than any other development ranging from an originally intended community purpose through to a medium density development with capacity of around 46-50 units that appears to have been the basis of the valuation supported by the judgment of the Land and Environment Court relating to the compulsory acquisition of the land by Council. In light of the figures mentioned above plus subdivision, holding and maintenance costs, Council is not setting out to make a profit but has continually stated that it is intending to invest into critical infrastructure in Ocean Shores.

Council did not preserve or maintain the Roundhouse building, and made way for their development plans, by demolishing this extraordinary building in 1993. Byron Council has consistently ignored the fact that a community trust was created on this land by the Court.

Comment: The Roundhouse building was demolished in approximately 1993. The Planning Proposal confirms that Council does not admit or concede that the Land is subject to a trust for a public purpose.

Now Council is trying to change the zoning to 'operational' to give title to their Lots for sale.

Comment: No change to the Residential zoning is proposed. The land is currently “operational” land and the procedure outlined in the Planning Proposal is intended, for abundant caution and to provide certainty, to ensure that the land is “operational” land, is not a public reserve and is discharged from any trusts and interests (except for those nominated in the Planning Proposal) which may prevent Council from selling the land (or any part of the land).

Council has many other properties across the Shire being listed for reclassification and sale. Do not waste this opportunity to work with the Ocean Shores community (at no cost to Council) to provide profitable community facilities. Council has not considered the needs of the majority of the community who can benefit from alternative uses of the land, or the needs of successive generations. There are diverse needs and interests in the community affecting all ages.

Comment: Council has been investigating opportunities for a number of its properties as indicated in the resolution of 10 April 2014 and as outlined in the Financial Sustainability Project Plan 2015/16 (FSPP). The Planning Proposal states that it is a key plank in Council’s FSPP in terms of generating sufficient reserves to fund future infrastructure projects. Council has also stated that no viable community development proposal has been put forward for the Roundhouse site that has a source of funding identified.

The need in more local public spaces is evident. Teenagers and primary age kids do not have safe locations they can gather at in a walking or bike riding distance. Having an option of a public space nearby will drive locals out of their houses and will help us create this vital sense of community.

Comment: The land has been zoned residential for over 18 years, not as public space, and Council has subdivided the land in accordance with a development consent that has been in place for approximately 12 years. Council intends to invest into critical infrastructure projects in Ocean Shores including in the existing public space at Water Lily Park.

An urgent environmental issue is that condition of the water in Water Lily Park. This should not be contingent upon sale of community land that is also required.

Comment: The site is not “community” land. The site is “operational” land within a Residential zone.

There is a creative community in Ocean Shores and they haven’t had much space to showcase and this creativity.

Ocean Shores has no central gathering place for the community to come together and carry out the range of activities, such as the Byron Community Centre or the Mullumbimby Neighbourhood and Community Centre. Our community lacks any focal point except for the Shopping Centre which is a commercial centre offering very little in the way of community. The Ocean Shores Community Centre has been built right in the middle of residential properties who are affected by the activities and noise associated with them. Some people must travel to Mullumbimby to access services, which is discriminatory by the limits of public transport and/or the financial resources to travel.

Comment: Council has decided over decades that the subject land is not suitable for community purposes. The residential subdivision of the land reflects the residential zoning of the land. The suitability of public transport and other community facilities is not the subject of this Report, however Council can take on board the concerns raised in this regard.

In 2010, a concept plan was submitted to Council for use of the Roundhouse site for the benefit of the local people. It included space for meetings, paid activities such as classes, an art gallery and holiday units which would have raised income. The design of the building was such that noise would have been at a minimum and neighbouring properties would not have been affected. This plan was rejected by Council with the comment.

Comment: Council has stated that no viable community development proposal has been put forward for the Roundhouse site that has a source of funding identified.

Council’s promise to provide community amenities and use money from the sale of the Roundhouse site for community purposes is met with doubt and scepticism due to the decisions Council has made in the past. Eg. giving Lot 107 to the RTA effectively ensuring there would be no Sportsfields in Ocean Shores that would adequately cater for community needs.

Comment: Council has continuously stated that it is intending to invest in critical infrastructure in Ocean Shores.

Council is not legally entitled to sell the land because the land is classified as “community land” and the land is subject to a trust and other interests.

Comment: Council does not admit or concede that the land is subject to a trust for a public purpose. However Council proposes the process outlined in the Planning Proposal for abundant caution and to provide certainty in relation to the subdivision and sale of the approved residential lots.

Council zoned the Roundhouse site Special Uses 5(a) Community Purposes under the 1988 Byron LEP. The court in effect created a community trust on the land. There was no special condition that the land would be released from its community zoning to be rezoned and sold by the council. The council has not effectively removed the trust nor the community classification since then. Under Amendment 46 of the LEP in 1996 and Amendment 86 in 2002, the community trust remained unchanged and in place. Subclause 47(3) states “the land..continues to be affected by any trusts etc.” as described in Part Schedule 11 of the LEP.

Comment: The land appears to have been the subject to a period of flux under different planning regimes including a Deed of Agreement, Interim Development Order No.1 and Byron LEP 1988 from the late 1960’s until mid 1990’s including zones such as 1(a) Non-Urban, 5(a) Special Uses (Community Buildings) – Sales Office, 5(a) Special Uses (Community Buildings) – Art Gallery and 5(a) Special Uses – Community Purposes. However from July 1996 until the present (close to 19 years) the zoning of the land has been stable, being either 2(a) (Residential Zone) under LEP 1988 or R2 Low Density Residential under LEP 2014. Council’s intended residential development of the land was further established through the reclassification of the land to “operational” land (the land is not classified “community” land and is not within a Community Purposes zone), approval of a development application for the residential subdivision of the land and the carrying out of the approved residential subdivision development. The Planning Proposal is clear in its intention to discharge any trust for a public purpose.

Despite the fact that Council was legally bound to classify the land “community” it dealt with the land as though it was operational e.g. demolishing the Roundhouse building although the building was in excellent condition. (The site is a local heritage item in LEP 2014). The building was demolished in 1995 not 1993 as stated in the Planning Proposal. The demolition of this important building was an immense tragedy to the Ocean Shores community, to the shire and to the region. It was in good condition and could have been used over the past twenty-five years as a public gallery. This is a monumental loss to the people of the shire, especially to local artists and artisans who would have benefitted artistically and financially. It is our belief that the council acted illegally in demolishing this iconic landmark building.

Comment: The land was reclassified to “operational” land via an amendment to LEP 1988 and this classification still applies. The condition of the Roundhouse building at the time of demolition and the year that the building was demolished (which was either 1993 as indicated in the Byron Shire Community Based Heritage Study, 1994 as indicated in the 1995 Council report on the rezoning of the land to 2(a) Residential, or 1995 as indicated in the public submission) are not significantly important considerations. The relevant fact is that the building was demolished, close to 20 years ago. The Roundhouse site is a heritage item of local significance, and the Community Based Heritage Study places an emphasis on the building (noting that it had been demolished by the time of the Study). The demolition resulted in the removal of the building and the site now resembles a normal low density cul-de-sac residential subdivision that is common throughout Ocean Shores. The Planning Proposal does not, and is not required to, challenge the validity of the demolition of the Roundhouse building.

In 2000 Council received legal advice concerning their administrative error i.e. incorrect classifications Council later stated that the 1994 land register was void due to their administrative error. Council then tried to remedy the error by making further errors and failing to remove the trust provisions.

Comment: The Planning Proposal confirms that Council does not admit or concede that the land is subject to a trust for a public purpose. The process outlined in the Planning Proposal is being carried out for abundant caution and to provide certainty in relation to the status of the land with respect to classification, public reserve, and trusts and interests.

In March 2014 Council attempted to auction land on the Roundhouse site. No community input was sought. A few days before the auction COUNCIL received a letter from a solicitor providing notice to cancel the auction. Sufficient evidence was provided by the solicitor to cause Council to comply with the notice. Council sought legal advice and apparently determined that it would be quicker and cheaper to have yet a third attempt to grab the land through reclassification rather than seeking a declaration from the court as to the legal status of the land. Council infers that the delay in sale of the land is the fault of the community rather than the administrative errors of Council.

Comment: The Planning Proposal states that 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. 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, pass a resolution to reclassify the land from “operational” to “community” so that the land may then be reclassified by way of a local environmental plan to make provision in the local environmental plan to the effect that the land, if it is a public reserve, ceases to be a public reserve, is by operation of the plan discharged from any trusts and interests except for those set out above.

Council held a meeting on 10^th April 2014 to discuss its proposal to reclassify the land. This meeting was held behind closed doors. Council resolved, “That Council note that this 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 Council meetings.”

Comment: The Planning Proposal was publicly exhibited. This included letters to adjoining property owners and a number of local organisations, newspaper advertisements and a community information session at both the Ocean Shores Country Club and the Ocean Village Shopping Centre.

Council intends to reclassify the land from operational to community and then back to operational. This is because Council doesn’t know what the classification actually is and is therefore “having a bet” both ways”. Council describes this procedure as “abundant caution to provide certainty”.

Comment: There is no question that the land is classified “operational” land under LEP 1988. The Planning Proposal has been prepared to facilitate Council’s intention to complete the subdivision and sale of the approved residential lots in accordance with the zone objectives and the development consent.

Council suggests that the site will provide affordable housing but the proposed cost is prohibitive for average wage earners and the 11 to 22 extra houses which will cancel out each others’ views, will have no significant impact on housing needs.

Comment: The Planning Proposal states that it 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. However this is no longer a relevant matter for consideration because the North Coast Regional Environmental Plan has been repealed in so far as it relates to Byron Shire as at 20 July 2014.

Although the Roundhouse site is a local heritage item in LEP 2014, Council states this is not significant because the land was classified as “operational in 2002 and a subdivision was approved in 2003 (i.e. before the heritage based study.)

Comment: The Planning Proposal concludes in relation to heritage that 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.

In May 2013, Council wrote, “The general fund has no capacity to borrow, a budget struggling to see a surplus, no allocation of funds to reserve for depreciation and a significant maintenance backlog for key assets”. Council is motivated to sell the land purely to raise money for short term remedies arising from Council’s administrative errors. Examples of overspending e.g. Byron sports facility, is not the responsibility of the community.

Comment: Council has stated that “Subdividing and reinvesting the Roundhouse proceeds back into assets such as roads, drainage and sports fields will help deliver greatly needed infrastructure for the north of Byron Shire” (refer to Council’s media releases dated 4 and 18 February and 18 March, 2015 for more information about the infrastructure investment options identified by Council).

It is a scandal that no effective attempt before now has been made by Council to divest itself of surplus properties, including those listed [in the Council resolution of 10 April 2014]. The resources put into pursuing the Roundhouse subdivision works ($1 million +) would have been better spent. There are other properties that could be sold that do not have long term consistent community opposition to their removal as is the case with the Roundhouse.

Comment: Council has been investigating and working through processes to develop and / or sell a number of Council-owned parcels of land since the above mentioned resolution of 10 April 2014, so as to improve its financial position and allow re-investment in infrastructure. This includes the subject land, the residential subdivision of which is essentially completed, being for residential purposes in accordance with the established residential zoning of the land and development consent.

Council has failed to inform the community of the true facts surrounding the Roundhouse land. Council has failed to consult with the community in this matter although Council exists to serve the best interests of the community at large and to be transparent in its dealings with the community. Council has failed to take into account the context surrounding the proposal, i.e. the history which includes the tireless efforts of members of the community over twenty five years to ensure that the Roundhouse site is kept for the legal purpose for which it was acquired i.e. a community asset to be used in accordance with the provisions of a trust.

Comment: The Planning Proposal has been publicly exhibited in accordance with legislative requirements. Council has gone further and conducted community information sessions at the Ocean Shores Country Club and the Ocean Village Shopping Centre during the period of exhibition. The context surrounding the site is dominated by low density residential land uses, and the approved subdivision is reflective of the cul-de-sac residential subdivisions that are prevalent throughout Ocean Shores. The development of the highly prominent Roundhouse site for the purposes of a community centre, an art gallery, tourist accommodation, other commercial purposes or even a residential development at a density that is higher than a low density residential development as per the approved residential subdivision could have more significant impacts on the amenity of, and be out of character within, the surrounding residential neighbourhood.

Local people who would like to have their say on the Roundhouse matter, do not know how to proceed. The Council’s attempt once again to legitimise the reclassification of the site has not been clearly explained. It is our understanding that the Council has an obligation to explain their complex actions in terms that the community can understand. It is bewildering for most to try to construct a submission with the information provided by the Council.

Comment: The Planning Proposal is required to meet specific legislative requirements, including for example:

(a) stating the objectives or intended outcomes of the proposed instrument;

(b) providing an explanation of the provisions that are to be included in the proposed instrument;

(d) providing a map containing sufficient detail to indicate the substantive effect of the proposed instrument; and

(e) providing details of the community consultation that is to be undertaken before consideration is given to the making of the proposed instrument.

The objectives and intended outcomes of the proposed instrument are clearly explained in Part 1 of the Planning Proposal, part of which includes the following statement:

“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);

(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”.

It is acknowledged that legal notice has to be given in a proscribed format. Most people missed the once off public notices. However, to get an informed response from the community, the Council’s attempts i.e. to so-called reclassify to community and then reclassify again to operational and get the Minister for Planning to approve this as an LEP amendment, is legally complex. How can residents respond by detailed submission to this? The Council has not consulted with the dissenting community, refusing requests to meet.

Comment: Council publicly exhibited the Planning Proposal to the whole community, not just a dissenting part of the community. This included:

(a) public exhibition from 28 January until 4 March 2015;

(b) public notices in the local newspaper on 28 January and 11 and 25 February 2015;

(c) letters (or emails when appropriate) to adjoining property owners and the New Brighton Village Association, North Byron Chamber and Ocean Shores Community Association;

(d) copies of the Planning Proposal and associated documents being placed on public exhibition at the foyer of the Council Administration Building, the Brunswick Heads Library and on Council’s website;

(e) a community information session at the Ocean Shores Country Club on 25 February 2015 and a second community information session at the Ocean Village Shopping Centre on 26 February 2015;

(f) a media release dated 4 February 2015 regarding the public exhibition, and a media release dated 18 February 2015 regarding the community information sessions; and

(g) Council staff being generally available to answer any questions from members of the public, as explained by the above notifications.

Council was also required to conduct a public hearing which occurred on 1 April 2015, allowing members of the public to have their say about the Planning Proposal before an independent consultant. This also included letters / emails to people who made submissions to the public hearing and others who were notified of the public exhibition but did not make a submission, further newspaper advertisements on 10 and 24 March 2015 and a media release on 18 March 2015. The public exhibition and public hearing processes exceeded the minimum legislative requirements reflecting Council’s commitment to ensuring that the Planning Proposal and community consultation processes met relevant standards whilst at the same time informing interested members of the community.

How was this matter allowed to proceed to a Gateway determination. The public was not aware that this was the pathway the Council embarked upon. Community members were not consulted. The Council dealt with this in the closed session of April 2014, and did not give notice that this would be on the agenda as a late item. There was no opportunity for the public to address the council at that meeting. The published outcome of that meeting did not mention Gateway determination. The Council appears to be using secret sessions to legitimise its own commercial interests. On the other hand, the Council has used its power to embark on a path of apparent vilification of the dissenting community, blaming them for stopping Council projects such as road resurfacing.

Comment: Council followed the procedures initiated by the Council resolution of 10 April 2014. Under the Environmental Planning and Assessment Act 1979, the legislated procedure is that the Planning Proposal precedes the Gateway Determination and both are followed by community consultation procedures. Council made it clear in its resolution of 10 April 2014 that there would be extensive community consultation and many opportunities to make submissions to Council and at meetings.

The 10 April 2014 Council resolution was not required to indicate that a Gateway determination would be sought as this is a standard requirement under the Act in relation to reclassifications. The report of that meeting was not a secret report, but did contain a confidential attachment. Council has followed planning processes over a number of years to rezone and reclassify the land, to obtain development consent and carry out subdivision works, and now to further reclassify the land to ensure that the land or any part of it is able to be sold. The Planning Proposal factually explains the background as to why the auction of the approved residential lots did not proceed which resulted in the preparation of the Planning Proposal.

The land is classified as community land; the Council’s retrospective attempts to alter this are not legal. The Council has never before attempted to discuss this matter with community groups, or the public. On February 25^th and 26^th, Council held two “drop in” sessions to answer questions etc on this matter. These were poorly advertised and most locals did not know about them. The information handed out by Council, in our experience, added to the confusion.

Comment: Council was not required to conduct the community information sessions but these were undertaken voluntarily by Council for staff to provide information to and be available to answer questions raised by members of the public. In the event that there was any uncertainty as to what was proposed, members of the public could seek clarification during any of those community sessions or by contacting Council staff at other times.

Community organisations worked for six months in 2010 to provide Council with a community business plan concept for the community use of the Roundhouse land. It was a concept plan and well done within the limits of fundraising. It was stated the plan needed to be reconstructed with professional expertise with funding similar to that provided for the planning of the Ewingsdale Sports complex. The business plan which included the eventual construction of a cultural centre on the site was written following extensive community consultation about the Roundhouse site and what the people wanted for this public land. All the community efforts were rejected by the Council.

There was overwhelming support for the property to remain as community. Only 3% voted against it. A trust was proposed for the management of the site, in accordance with the intention of the L&E court. The trust would raise the capital needed, and it was the intention of the business plan for the project to be self funded.

Comment: Council has stated that “there has been no viable community development proposal put forward that has a source of funding”, that “while public debate regarding the future of this site has continued over 20 years the ratepayers of Byron Shire have incurred millions of dollars in costs comprising substantial historic legal costs, purchase, subdivision and holding costs” and that “Costs will continue to accumulate while this debate and indecision continues”. Council has carried out the approved residential subdivision development of the land, which reflects the residential zoning of the land and not any historical community purposes zoning of the land.

How could Council as the consent authority consent to its own subdivision works on its own property to breach its own DCP’s. Outside the scope perhaps of this submission are the errors the council has made and the leniency it has given to itself during the subdivision works process. Huge amounts of soil and stormwater run off inundated surrounding houses, native trees were illegally cut down, sewer failures were experienced in Narooma Drive and Bulgoon Court, the driveway for Lot 10 on to Orana Road has no line of sight for traffic.

Worst of all was the encroachment on to Orana Road by up to 5m of the front three blocks and the construction of retaining walls on the road reserve. This is on Orana Road perhaps the busiest traffic road in the town, which is in need of widening to two lanes for east bound traffic to turn right to the shopping centre. To do this in the future would require the demolition of the retaining walls and footpaths and kerb and guttering works. OSCA notified council of this when the footings were being formed, but was rejected.

Comment: Concerns regarding the subdivision have been referred to Council’s Development Engineer and relate to the Subdivision Certificate application, not the Planning Proposal. It is sufficient for the purposes of the Planning Proposal that there is a development consent for the subdivision of the land.

As stated in the Planning Proposal (p.4 of 18) the Council zoned the Roundhouse site Special Uses 5(a) Community Purposes under the 1988 Byron LEP. This zoning gave rise to the subsequent purchase of the Roundhouse site by the Council because the owners at that time requested the Council to acquire the land under the provisions of the LEP. The Council refused to acquire but was ordered to do so by the L&E Court in 1990. Council’s conduct cost the Byron Shire ratepayers $2.5 million for legal proceedings and $1.5 million dollars for the subsequent purchase of the site i.e. Council paid $4 million dollars to protect its “Community” zoning of the land.

In 1994 the author of a state government report on the matter was scathing about Council’s conduct in relation to the acquisition of the Roundhouse site. The author wrote, “The community would be justified in being appalled and outraged that those who have claimed to be protecting its interests have incurred such enormous costs. The community has a right to participate in the process of determining the ultimate use of the site.” Soon after acquisition Council re zoned the land “residential” (2/7/96), despite a declaration by the Court that, “Having compulsorily acquired the land for a public purpose it would be anomalous if a Council then next day, or at any time, change its mind and resell it in order to make a profit.”

Comment: The land was zoned 5(a) Special Uses – Community Purposes under LEP 1988 from 1988 until when it was rezoned to the 2(a) Residential Zone in 1996. The land has been within a Residential zone from 1996 onwards. Council has acknowledged that millions of dollars have been incurred comprising substantial historic legal costs, purchase, subdivision and holding costs, that costs will continue to accumulate but that Byron (amongst other Councils) is facing financial sustainability issues and that this is an opportunity to recoup these costs and also to invest sales revenue into critical infrastructure. It has not been presented by Council as an opportunity to make a profit out of the sale of the approved residential lots.

There is nothing in Ocean Shores for seniors and a great need for facilities. Council claims money from land sale would be spent in Ocean Shores. Please clarify what percentage of the sale money would be spent here.

Comment: There are a number of recent Council media releases which discuss where sales revenue is intended to be spent.

Please allow us to retain the Roundhouse site as community land. We don’t want to lose a place of significant value to residents of Ocean Shores, to cover Byron Shire’s shortfall. If this land is reclassified as ‘operational’ it will simply confirm the Council see Ocean Shores as its cash cow and residents robbed of one of our few historical sites.

Comment: The land is actually classified “operational” land. The land is not classified as “community” land, having been reclassified to “operational” more than 13 years ago.

3. 14 non pro-forma objections, note that any additional issues of relevance to the Planning Proposal that are not considered above are considered as follows:

Council should establish a marine biology school with a parks office and basic amenities facility at the Roundhouse site. Parking can be in place on the rearward fall section of land undercover. The size of the building can be the size of the Murwillumbah gallery for example. This site will bring students, scientists and experts to Ocean Shores.

Comment: Council intends to complete the subdivision of the land and sell the approved lots.

This attempt at rezoning is clearly in breach Section 31(3) of the Local Government Act regarding the reclassification of Community Zoned land acquired by Byron Council on the 26th July 1991. Section 31(3)(a) of the LGA Act specifically precludes the reclassification of any land zoned Community prior to acquisition.

Comment: Subsection 31(2) of the Local Government Act explains the circumstances in which a Council may resolve that land is classified as community or operational land (ie. before Council acquires the land or within 3 months after it acquires the land). The period of 3 months in relation to the subject land has expired and Council does not appear to be empowered to resolve to classify the land under that subsection. However Council is not relying on section 31 of the Local Government Act, but is instead relying on other provisions of the Act, to reclassify the land from “operational” land to “community” land and then reclassify the land from “community” land to “operational” land. The provisions of section 31 do not appear to apply to either the proposed resolution or the Planning Proposal.

I specifically draw your attention to a development noted in a previous Local Government Investigation into Byron Shire Council for Lot 1368 DP 576361 for a shopping centre at Ocean Shores. This Report states in part that: “Notwithstanding the above advice from the Department, it is not possible to give a concurrence to a development retrospectively. Consequently the approval given by Council is invalid.” It follows that this proposed development apart from being illegal on Community Zoned land, cannot be rezoned retrospectively. I have requested the Premier and Planning Minister to not allow this rezoning to happen because of these serious in breaches of planning legislation and the LGA Act.

Comment: There is no judgment of the Court invalidating the development consent for the subdivision. The land is not community zoned land. Council is not proposing to rezone the land.

The reclassification of land of the “Roundhouse site” is not in line with Council’s Strategic Objective SC3 Respect and understand wider cultural diversity.

Comment: A 1993 Land and Environment Court judgment (Cochrane and others v Byron Shire Council (1993), Bannon J) noted in relation to the issue of retention of the Roundhouse building that whilst the Roundhouse building was a prominent local landmark, its principal use was for office space commencing as a sales office and that the building was in need of substantial repairs and was not of a high standard of construction. The Roundhouse building was subsequently demolished. The land has since been subdivided for residential purposes in accordance with the residential zoning and development consent applying to the land, and Council is intending to complete the subdivision and sell the residential lots. Council may or may not have taken into consideration whether there was any cultural significance when the building was demolished, when the land was rezoned to Residential and / or when the land was reclassified to operational however the Report on the Planning Proposal does not need to be satisfied either way.

The current park reserves in South Ocean Shores are limited in their accessibility and are constrained by slope or flood. There has been no preservation of park reserve in the Roundhouse development by Council or further planning of parks in the Ocean Shores catchment contributing to the issue of preservation of good quality park reserve for recreation for current and future generations. The reclassification of land of the “Roundhouse site” is not in line with Council’s Strategic Objective CI3.4 Ensure all public parks and open spaces are accessible, maintained and managed to meet the recreational needs of current and future residents.

Comment: The land is not zoned Public Recreation, it is zoned Low Density Residential. Council has not identified the site as suitable for a public reserve but has instead developed the land for the purpose of a residential cul-de-sac subdivision development.

I was not informed of the development which has already taken place on this resumed property.

Comment: The development application for the approved subdivision was publicly exhibited.

The advertisements do not indicate that the correct reason for the rezoning and as such do not comply with the Act.

Comment: The advertisement explains the objectives and intended outcomes of the Planning Proposal and refers to the Planning Proposal should more information be required.

Ocean Shores is classed by the Planning Proposal as a coastal village which is of course is totally wrong and I ask why?

Comment: It is the Far North Coast Regional Strategy which identifies Ocean Shores as a coastal village, not the Planning Proposal.

The Planning Proposal states that the site does not contain nor adjoin any SEPP 26 littoral rainforest, but native trees were cut down for the subdivision work

Comment: The land does not contain nor adjoin any SEPP 26 littoral rainforest – SEPP 26 areas are mapped and do not include the site. Trees may have been removed in relation to the approved subdivision however this is not of relevance to the Planning Proposal.

Contamination was in the well on the Roundhouse site but council's `softly softly' investigation said, "No" and 2 weeks before Christmas 2013, protectively dressed 'workers' were seen to be working at the well.

Comment: Council was satisfied in relation to the development application for subdivision that there were no outstanding issues in respect of SEPP 55 considerations and that no further investigation was warranted in this regard.

These homes will not be adequate, affordable and suitable housing, they will be more 'upmarket' than that.

Comment: This was a consideration relating to the North Coast Regional Environmental Plan (REP), however the REP has been repealed in so far as it previously related to Byron Shire.

Massive drainage problems were caused by the subdivision works to homes below, being in Narooma Drive and Bulgoon Crescent, including to resident's gardens and surrounding land.

Comment: The Planning Proposal will not have an impact on drainage problems associated with this locality.

4. 1 submission advising of a natural spring on the land which could make this site unstable for future development which could give rise to public safety and liability issues. However the subdivision of the land has been approved and carried out, and if applications are submitted for development on any of the proposed lots (ie. development application, complying development certificate application, construction certificate application) the relevant assessor can seek further information in relation to soil stability in the event that they have concerns in this regard.