BYRON SHIRE COUNCIL

13.6 - Attachment 1

Introduction.. 2

Purpose 2

Property details and existing zones. 2

Background 2

Part 1 Objectives and intended outcomes. 5

Objective and intended outcome. 5

Part 2 Explanation of provisions. 5

Part 3 Justification.. 7

Section A Need for the planning proposal 7

1 Is the planning proposal a result of any strategic study or report?. 7

2 Is the planning proposal the best means of achieving the objectives or intended outcomes, or is there a better way?. 7

3 Is there a net community benefit?. 7

Section B Relationship to strategic planning framework. 7

1 Is the planning proposal consistent with the objectives and actions contained within the applicable regional or sub-regional strategy (in this case the Far North Coast Regional Strategy)?. 7

2 Is the planning proposal consistent with the local Council’s Community Strategic Plan, or other local strategic plan?. 7

3 Is the planning proposal consistent with the applicable State Environmental Planning Policies (SEPPs)?. 8

4 Is the planning proposal consistent with applicable Ministerial Directions (s117 Directions)? 10

Section C Environmental, social and economic impact 27

1 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?. 27

2 Are there any other likely environmental effects as a result of the planning proposal and how are they proposed to be managed?. 27

3 How has the planning proposal adequately addressed any social and economic effects? 27

Section D State and Commonwealth interests. 27

1 Is there adequate public infrastructure for the planning proposal?. 27

2 What are the views of State and Commonwealth public authorities consulted in accordance with the gateway determination?. 27

Part 4 Mapping.. 30

Part 5 Community consultation.. 30

Part 6 Project timeline. 30

Summary and conclusions. 31

Introduction

Purpose

At the Byron Shire Council meeting of 13 June 2013, Council discussed the need to amend its new LEP and resolved as follows:

“2. Permissibility of dual occupancies (detached) and secondary dwellings in the RU1, RU2 and RU5 zones be considered in a Planning Proposal to amend the Byron LEP 2012 after the plan’s gazettal.”

This resolution affects two different types of land, being the RU1 Primary Production and RU2 Rural Landscape land that are the predominant zones for the non-urban parts of Byron Shire, and the RU5 Village land that affects Billinudgel, Federal and Main Arm villages only.

Given the different impacts of this resolution on a rural area compared to an urban area, the planning proposal will be split into two parts. This planning proposal deals only with the amendment of Byron LEP 2014 in relation to the RU1 and RU2 zones. A separate planning proposal will deal with the RU5 zone component of the resolution.

Property details and existing zones

The planning proposal directly affects all land zoned RU1 Primary Production and RU2 Rural Landscape under Byron LEP 2014.

Background

Byron LEP 2014 and its predecessor Byron LEP 1988 both prohibit detached dual occupancy in rural zones. This prohibition related to a clause in the North Coast Regional Environmental Plan (REP) that restricted dual occupancy on rural land to attached dwellings only. With the making of LEP 2014, the REP no longer applies, which means it is possible to pursue an amendment to the LEP. The objective of the REP in relation to rural housing was to ‘ensure that any opportunities for rural housing are available only as part of a planned strategy for rural living areas’. Although the REP no longer applies, considering opportunities for rural housing as part of a planned strategy is good planning practice because it allows Council and the community to fully explore and debate the implications of increasing the amount of housing in rural areas, where it should occur and under what circumstances.

A major factor in the content of LEP 2014 was that it would largely transition the 1988 planning controls into the Standard LEP format without too many policy changes. Consequently, even though the issue of detached rural dual occupancy was raised during the public exhibition it was not in the exhibited draft LEP and staff recommended that it be dealt with as a planning proposal after gazettal of the new LEP.

Lismore City Council amended its LEP to permit detached rural dual occupancy in its rural zones in late 2013. At the time it considered the following table of advantages and disadvantages:

Advantages	Disadvantages
Additional dwellings can allow farmers and others approaching or at retirement age to remain on their farm/rural land but not within the same dwelling as a new farmer takes over. This creates opportunity for physical (workers), social and financial support, and can assist with succession planning.	Increase in dispersed rural settlement. This will occur gradually as long as subdivision of the second dwelling is not supported. Pressure for subdivision will occur if substantial dual occupancy dwellings are erected.
Potential to legitimise unapproved dwellings and structures, and receive financial contributions from such buildings that may otherwise be occupied illegally. Section 94 contributions apply to detached dual occupancy (not to secondary dwellings).	Potential increase in land use conflict, which can impact adversely on existing farming operations. The potential for conflict can be mitigated to some extent by requiring dwellings to have the same vehicle access from a public road and to be within a prescribed radius of each other.
Increasing the number of residents in rural areas can provide increased support for rural halls and schools.	Potential for fragmentation and alienation of land from farming. This can be minimised if locational criteria are used. The inability to subdivide the dwellings will also assist.
Providing for an additional housing option on existing rural land may reduce the need to subdivide larger allotments for new rural residential estates.	As with any form of dispersed settlement, there is the potential for increased vehicle traffic, especially if employment is not available in the immediate area. Not only will this increase the cumulative impact on rural roads but it raises questions about long term environmental sustainability, for example, increased vehicle emissions. Section 94 contributions provide some financial response; however they cannot address the longer term maintenance impacts.
Additional dwellings can provide farm income to subsidise the agricultural activity and provide additional rental housing to the market.	Impact on rural character. An increase in dispersed dwellings will impact on the rural landscape. This can be managed to some extent through the development assessment process but there will still be an impact over time.

Lismore Council was successful in amending its LEP to permit detached rural dual occupancy. In first 12 months of operation the provisions resulted in 10 applications (although seven were for conversion of existing structures such as “studios”). With these applications there has been minimal concern over the requirement for a shared driveway, but some pressure to extend the 100 metre maximum separation distance. Lismore Council staff consider the LEP amendment has been a positive one. Lismore Council also deleted the standard rural workers dwelling clause from its LEP because it was not being used. It was considered the test was too difficult to achieve on relatively small farms. The option of an attached rural dual occupancy remains in Lismore LEP, but this has only generated four applications in the previous 10 years.

In Byron LEP 2014 the current definitions and controls apply:

dual occupancy means a dual occupancy (attached) or a dual occupancy (detached).

dual occupancy (attached) means 2 dwellings on one lot of land that are attached to each other, but does not include a secondary dwelling.

dual occupancy (detached) means 2 detached dwellings on one lot of land, but does not include a secondary dwelling.

secondary dwelling means a self-contained dwelling that:

(a) is established in conjunction with another dwelling (the principal dwelling), and

(b) is on the same lot of land as the principal dwelling, and

(Note: See clause 5.4 for controls relating to the total floor area of secondary dwellings.)

Also Clause 5.4 of LEP 2014 currently states:

“If development for the purposes of a secondary dwelling is permitted under this Plan, the total floor area of the dwelling (excluding any area used for parking) must not exceed whichever of the following is the greater:

(a) 60 square metres,

(b) 35% of the total floor area of the principal dwelling.”

Part 1 Objectives and intended outcomes

Objective and intended outcome

This planning proposal will:

§ Permit detached dual occupancy dwellings in the RU1 and RU2 zones with Council consent;

§ Permit secondary dwellings in the RU1 and RU2 zones with Council consent;

§ Establish a 4000 square metre minimum lot size for detached dual occupancy development in the RU1 and RU2 zones; and

§ Set out consent considerations for development of detached dual occupancies and secondary dwellings in the RU1 and RU2 zones to address matters such as access, siting, land suitability and potential impacts.

This should provide for an additional form of rural housing for rural land owners that when correctly implemented should have limited negative impacts on agriculture and other rural land uses.

Part 2 Explanation of provisions

The intended outcomes are to be achieved by an amendment to Byron Shire Council LEP 2014 as follows:

§ Amend the Land Use Table in Part 2 of LEP 2014 for the RU1 and RU2 zones to delete the word “(attached)” following “Dual occupancies”, and add the words “secondary dwellings”. This has the effect of permitting both attached and detached dual occupancy development and secondary dwellings in the RU1 and RU2 zones.

§ Amend Clause 4.1E to include an additional row in the table to the clause for ‘Dual occupancy (detached)’ (Column 1) in the RU1 Primary Production and RU2 Rural Landscape zones (Column 2) that specifies a 4000 square metre area for that purpose (Column 3). This is necessary to ensure consistency with minimum lot size provisions for “Dual occupancy (attached)” in this clause.

§ Amend Clause 4.2A to delete the word “attached” wherever it occurs. This has the effect of permitting both attached and detached dual occupancy development on RU1 and RU2 land wherever you can currently undertake an attached dual occupancy.

§ Add a new provision that states:

4.2D Erection of dual occupancies (detached) and secondary dwellings in Zones RU1 and RU2

(1) The objectives of this clause are as follows:

(a) to provide alternate accommodation for rural families and workers,

(b) to ensure development is of a scale and nature that is compatible with the primary production potential, rural character and environmental capabilities of the land,

(c) to set out consent considerations for development of detached dual occupancies and secondary dwellings to address matters such as access, siting, land suitability and potential impacts.

(2) Development consent must not be granted to development for the purpose of a dual occupancy (detached) or secondary dwelling on land in the RU1 Primary Production or RU2 Rural Landscape zones unless the consent authority is satisfied that:

(a) the development will not impair the use of the land for agriculture or rural industries, and

(b) each dwelling will use the same vehicular access to and from a public road, and

(c) dwellings will be situated within 100 metres of each other, and

(d) the land is physically suitable for the development, and

(e) the land is capable of accommodating the on-site disposal and management of sewage for the development, and

(f) the development will not have an adverse impact on the scenic amenity or character of the rural environment.

This provision provides some guidance on what must be addressed in an application for a detached dual occupancy development or secondary dwelling.

One of the key aspects of the proposed clause is the 100m distance between the two dwellings. Specifying a distance will ensure the dwellings are clustered, which will assist to minimise land use conflict and reduce impact on the rural landscape and character. The existing attached dual occupancy control in the Shire wide DCP prescribes an 80m circle within which two dwellings must be located. The 100 metre standard provides more opportunity for privacy between dwellings and variations in the topography of rural properties. It is a useful starting point for consideration of detached dual occupancy and as it would be a development standard, it can be varied under clause 4.6 of the LEP where the applicant demonstrates:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

In relation to clause 4.6 Council also has to be satisfied, ‘that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out’.

If the Department gives a Gateway Determination to proceed with the planning proposal, the standard will be subject to public consultation and changes can be made in light of comments from the community.

Part 3 Justification

Section A Need for the planning proposal

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

No. The planning proposal is an amendment to LEP 2014 that came up at a Councillor workshop during discussion of submissions relating to the draft Shire-wide LEP. The resolution then came from the Council.

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

A planning proposal is considered to be the only way to change the land use tables and local provisions for the RU1 and RU2 zones.

3 Is there a net community benefit?

The Net Community Benefit Criteria is identified in the NSW Government’s publication The Right Place for Business and Services. Assessment against the Net Community Benefit Assessment Criteria is not appropriate for a planning proposal that deals with rural housing issues.

Section B Relationship to strategic planning framework

1 Is the planning proposal consistent with the objectives and actions contained within the applicable regional or sub-regional strategy (in this case the Far North Coast Regional Strategy)?

The planning proposal is largely consistent with the outcomes and actions contained within the Far North Coast Regional Strategy (FNCRS). In particular, the actions related to Settlement and Housing and Environment and Natural Resources. The proposal specifically responds to the following actions:

§ Councils will plan for a range of housing types of appropriate densities, location and suitability that are capable of adapting and responding to the ageing of the population.

§ Local government will consider a range of affordable housing strategies, including forms of low cost housing.

§ Local environmental plans will:

- include minimum subdivision standards for rural and environment protection zones;

- include provisions to limit dwellings in the rural and environmental zones.

2 Is the planning proposal consistent with the local Council’s Community Strategic Plan, or other local strategic plan?

In 2012 Council adopted a 10 year + Community Strategic Plan 2022 (CSP). The plan is based on five key themes being Corporate Management, Economy, Environment, Community Infrastructure, Society and Culture. The planning proposal is generally consistent with the following relevant Goals:

EN3.6 Support initiatives that enhance socio-economic prosperity and resilience at the local level

Permitting additional rural housing options can enhance the social outcomes for extended families that want to live on the land as well as providing rental income for a rural property that may allow it to stay in production.

On this basis the planning proposal is generally consistent with Council’s CSP.

3 Is the planning proposal consistent with the applicable State Environmental Planning Policies (SEPPs)?

The State Environmental Planning Policies relevant to the planning proposal are identified in Table 1 and discussed in the following section.

Table 1: Consistency with SEPPs

State Environmental Planning Policy	Consistency
SEPP No 1 – Development Standards	N/A (repealed for BSC)
SEPP No 4 – Development Without Consent and Miscellaneous Exempt and Complying Development	N/A
SEPP No 6 – Number of Storeys in a Building	N/A
SEPP No 10 – Retention of Low Cost Rental Accommodation	N/A
SEPP No 14 – Coastal Wetlands	N/A
SEPP No 15 – Rural Landsharing Communities	N/A
SEPP No 19 – Bushland in Urban Areas	N/A
SEPP No 21 – Caravan Parks	N/A
SEPP No 22 – Shops and Commercial Premises	N/A
SEPP No 26 – Littoral Rainforests	N/A
SEPP No 29 – Western Sydney Recreation Area	N/A
SEPP No 30 – Intensive Agriculture	N/A
SEPP No 32 – Urban Consolidation (Redevelopment of Urban Land)	N/A
SEPP No 33 – Hazardous and Offensive Development	N/A
SEPP No 36 – Manufactured Home Estates	N/A
SEPP No 39 – Spit Island Bird Habitat	N/A
SEPP No 41 – Casino Entertainment Complex	N/A
SEPP No 44 – Koala Habitat Protection	N/A
SEPP No 47 – Moore Park Showground	N/A
SEPP No 50 – Canal Estate Development	N/A
SEPP No 52 – Farm Dams and Other Works in Land and Water Management Plan Areas	N/A
SEPP No 53 – Metropolitan Residential Development	N/A
SEPP No 55 – Remediation of Land	Consistent. See additional comment below.
SEPP No 59 – Central Western Sydney Regional Open Space and Residential	N/A
SEPP No 62 – Sustainable Aquaculture	N/A
SEPP No 64 – Advertising and Signage	N/A
SEPP No 65 – Design Quality of Residential Flat Development	N/A
SEPP No 70 – Affordable Housing (Revised Schemes)	N/A
SEPP No 71 – Coastal Protection	N/A
SEPP (Affordable Rental Housing) 2009	N/A
SEPP (Building Sustainability Index: BASIX) 2004	N/A
SEPP (Exempt and Complying Development Codes) 2008	N/A
SEPP (Housing for Seniors or People with a Disability) 2004	N/A
SEPP (Infrastructure) 2007	N/A
SEPP (Kosciuszko National Park – Alpine Resorts) 2007	N/A
SEPP (Kurnell Peninsula) 1989	N/A
SEPP (Major Development) 2005	N/A
SEPP (Mining, Petroleum Production and Extractive Industries) 2007	Consistent. See additional comments below.
SEPP (Miscellaneous Consent Provisions) 2007	N/A
SEPP (Penrith Lakes Scheme) 1989	N/A
SEPP (Rural Lands) 2008	Consistent. See additional comments below.
SEPP (Transitional Provisions for SEPP 53) 2011	N/A
SEPP (State and Regional Development) 2011	N/A
SEPP (Sydney Drinking Water Catchment) 2011	N/A
SEPP (Urban Renewal) 2010	N/A
SEPP (Sydney Region Growth Centres) 2006	N/A
SEPP (Miscellaneous Consent Provisions) 2007	N/A
SEPP (Western Sydney Employment Area) 2009	N/A
SEPP (Western Sydney Parklands) 2009	N/A
SEPP (Three Ports) 2013	N/A
SEPP (North Coast Regional Environmental Plan 1988)	N/A (repealed for BSC)

SEPP No 55 – Remediation of Land

SEPP 55 (Remediation of Land) recognises that land which is known to be contaminated by past land uses can still be zoned for development as long as:

“(a) the planning authority has considered whether the land is contaminated, and

(b) if the land is contaminated, the planning authority is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for all the purposes for which land in the zone concerned is permitted to be used, and

(c) if the land requires remediation to be made suitable for any purpose for which land in that zone is permitted to be used, the planning authority is satisfied that the land will be so remediated before the land is used for that purpose.“

In this case no land is actually being rezoned and the detached dual occupancy or secondary dwelling will only be permissible where a dwelling is already permitted on the land.

Because the planning proposal is not significantly increasing the range of sensitive land uses on the site and past land use will still be addressed in any development application, it is consistent with the SEPP.

SEPP (Mining, Petroleum Production and Extractive Industries) 2007

Nothing in this planning proposal will alter the permissibility of mining or extractive industries on the subject land.

The planning proposal is consistent with the SEPP.

SEPP (Rural Lands) 2008

This SEPP identifies rural planning principles (clause 7) that must be taken into account when a Council prepares a planning proposal. These are brought into effect through a s117 Direction. This is dealt with in more detail in the following section.

It also identifies matters to be considered in determining development applications for rural subdivision and rural dwellings (clause 10). These are the matters that Council must take into account if it receives an application for a detached dual occupancy or a secondary dwelling, should the planning proposal succeed in amending Byron LEP 2014.

The planning proposal is consistent with the rural planning principles and any application arising from this planning proposal will only be approved if it is consistent with the matters in clause 10. On balance it is consistent with the SEPP.

4 Is the planning proposal consistent with applicable Ministerial Directions (s117 Directions)?

Consistency with the s117 Directions is assessed in the following Table 2.

BYRON SHIRE COUNCIL

13.6 - Attachment 1

Table 2: Consistency with S117(2) Directions

S117 Direction	Application	Relevance to this planning proposal	Consistency with direction
1. Employment and Resources
1.1 Business and Industrial Zones	Applies when a relevant planning authority prepares a planning proposal that will affect land within an existing or proposed business or industrial zone (including the alteration of any existing business or industrial zone boundary).	This planning proposal will not affect business or industrial zones.	N/A
1.2 Rural Zones	Applies when a relevant planning authority prepares a planning proposal that will affect land within an existing or proposed rural zone (including the alteration of any existing rural zone boundary). Under this direction a planning proposal must: (a) not rezone land from a rural zone to a residential, business, industrial, village or tourist zone. (b) not contain provisions that will increase the permissible density of land within a rural zone (other than land within an existing town or village).	This planning proposal will not alter the zone of any rural land. Attached dual occupancy is already permitted in the RU1 and RU2 zones. Permitting detached dual occupancy and secondary dwellings will allow the additional dwelling to be located away from the primary dwelling on the land. This will be more attractive for land owners but will not actually increase the permitted density.	Consistent.
1.3 Mining, Petroleum Production and Extractive Industries	Applies when a relevant planning authority prepares a planning proposal that would have the effect of: (a) prohibiting the mining of coal or other minerals, production of petroleum, or winning or obtaining of extractive materials, or (b) restricting the potential development of resources of coal, other minerals, petroleum or extractive materials which are of State or regional significance by permitting a land use that is likely to be incompatible with such development.	Nothing in this planning proposal will prohibit or restrict exploration or mining.	N/A
1.4 Oyster Aquaculture	Applies when a relevant planning authority prepares any planning proposal that proposes a change in land use which could result in: (a) adverse impacts on a Priority Oyster Aquaculture Area or a “current oyster aquaculture lease in the national parks estate”, or (b) incompatible use of land between oyster aquaculture in a Priority Oyster Aquaculture Area or a “current oyster aquaculture lease in the national parks estate” and other land uses.	Priority Oyster Aquaculture Areas (POAA) exist in the Brunswick River however there is minimal likelihood the planning proposal will have adverse impacts on POAA as an environmental assessment will be required on a case by case basis. Also most land in the vicinity of the POAA is already zoned for environmental protection or within the national parks estate.	Consistent.
1.5 Rural Lands	Applies when: (a) a relevant planning authority prepares a planning proposal that will affect land within an existing or proposed rural or environment protection zone (including the alteration of any existing rural or environment protection zone boundary), or (b) a relevant planning authority prepares a planning proposal that changes the existing minimum lot size on land within a rural or environment protection zone. A planning proposal to which clauses (a) and (b) apply must be consistent with the Rural Planning Principles listed in State Environmental Planning Policy (Rural Lands) 2008. A planning proposal to which clause (b) applies must be consistent with the Rural Subdivision Principles listed in State Environmental Planning Policy (Rural Lands) 2008.	This planning proposal will affect land zoned RU1 and RU2. It is consistent with the Rural Planning Principles listed in State Environmental Planning Policy (Rural Lands) 2008 as follows: (a) the promotion and protection of opportunities for current and potential productive and sustainable economic activities in rural areas – the proposed amendment is not intended to undermine or create conflict with agriculture or other rural land uses. Applications will be required to address this as it will be a head of consideration in the LEP clause. (b) recognition of the importance of rural lands and agriculture and the changing nature of agriculture and of trends, demands and issues in agriculture in the area, region or State – the need for detached dual occupancy or a secondary dwelling is in response to the changing nature of agriculture in Byron Shire including the need for part-time labour and additional income to keep the farm viable. (c) recognition of the significance of rural land uses to the State and rural communities, including the social and economic benefits of rural land use and development – Byron Shire has a sustainable agriculture strategy and understands the benefits of maintaining rural land uses. The proper application of detached dual occupancy and secondary dwellings will not undermine this. (d) in planning for rural lands, to balance the social, economic and environmental interests of the community – the nature of rural land use is changing and the socio-economic interests of the Byron Shire community will be best served by permitting this form of rural housing. The Lismore experience suggests it is happening by stealth through the use of rural studios and unauthorised structures. This change to the LEP will permit it to happen openly and to be better controlled. (e) the identification and protection of natural resources, having regard to maintaining biodiversity, the protection of native vegetation, the importance of water resources and avoiding constrained land – the LEP amendment will require consideration of the physical environment in which the development will be located as well as its visual impact. (f) the provision of opportunities for rural lifestyle, settlement and housing that contribute to the social and economic welfare of rural communities – detached dual occupancy and secondary dwellings will allow additional rural residents to contribute to the rural communities of Byron Shire. (g) the consideration of impacts on services and infrastructure and appropriate location when providing for rural housing – on-site sewage management will be a key matter in assessing applications and will influence the location of the development. A shared driveway will reduce impacts on public roads. Keeping the dwellings close (within 100 m) should allow sharing of electricity and telephone connections as well. (h) ensuring consistency with any applicable regional strategy of the Department of Planning or any applicable local strategy endorsed by the Director-General – the Far North Coast Regional Strategy applies to Byron Shire and this planning proposal is consistent with it, particularly in relation to providing for a range of housing types including affordable housing. The sustainable small house design competition recently run in the Northern Rivers area has provided a number of designs that would be applicable to rural localities when this planning proposal has been implemented.	Consistent.
2 Environment and Heritage
2.1 Environment Protection Zones	A planning proposal must include provisions that facilitate the protection and conservation of environmentally sensitive areas. A planning proposal that applies to land within an environment protection zone or land otherwise identified for environment protection purposes in a LEP must not reduce the environmental protection standards that apply to the land (including by modifying development standards that apply to the land). This requirement does not apply to a change to a development standard for minimum lot size for a dwelling in accordance with clause (5) of Direction 1.5 “Rural Lands”.	The planning proposal does not alter or remove any environment protection zone.	Consistent.
2.2 Coastal Protection	Direction applies when a relevant planning authority prepares a planning proposal that applies to land in the coastal zone. A planning proposal must include provisions that give effect to and are consistent with: (a) the NSW Coastal Policy: A Sustainable Future for the New South Wales Coast 1997, (b) the Coastal Design Guidelines 2003, (c) the manual relating to the management of the coastline for the purposes of section 733 of the Local Government Act 1993 (the NSW Coastline Management Manual 1990).	Certain land affected by this proposal is located within the coastal zone, which affects the eastern half of Byron Shire. It is consistent with the NSW Coastal Policy as there is minimal likelihood of physical impact on the environment and it will require an assessment of the visual impact on a case by case basis. RU1 and RU2 land does not currently apply to any land in Byron Shire affected by coastal erosion issues. If this is the case in the future then Council will consider the management of the coastline should it be relevant to an application it receives.	Consistent.
2.3 Heritage Conservation	A planning proposal must contain provisions that facilitate the conservation of: (a) items, places, buildings, works, relics, moveable objects or precincts of environmental heritage significance to an area, in relation to the historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value of the item, area, object or place, identified in a study of the environmental heritage of the area, (b) Aboriginal objects or Aboriginal places that are protected under the National Parks and Wildlife Act 1974, and (c) Aboriginal areas, Aboriginal objects, Aboriginal places or landscapes identified by an Aboriginal heritage survey prepared by or on behalf of an Aboriginal Land Council, Aboriginal body or public authority and provided to the relevant planning authority, which identifies the area, object, place or landscape as being of heritage significance to Aboriginal culture and people.	Byron LEP 2014 currently contains provisions that are consistent with this Direction. This planning proposal will not alter those provisions and they will apply to any future applications for detached dual occupancy and secondary dwellings.	N/A
2.4 Recreation Vehicle Areas	A planning proposal must not enable land to be developed for the purpose of a recreation vehicle area (within the meaning of the Recreation Vehicles Act 1983): (a) where the land is within an environment protection zone, (b) where the land comprises a beach or a dune adjacent to or adjoining a beach, (c) where the land is not within an area or zone referred to in paragraphs (4)(a) or (4)(b) unless the relevant planning authority has taken into consideration: (i) the provisions of the guidelines entitled Guidelines for Selection, Establishment and Maintenance of Recreation Vehicle Areas, Soil Conservation Service of New South Wales, September 1985, and (ii) the provisions of the guidelines entitled Recreation Vehicles Act, 1983, Guidelines for Selection, Design, and Operation of Recreation Vehicle Areas, State Pollution Control Commission, September 1985.	The proposal does not enable land to be developed for the purpose of a recreation vehicle area.	N/A
3. Housing, Infrastructure and Urban Development
3.1 Residential Zones	This direction applies when a relevant planning authority prepares a planning proposal that will affect land within: (a) an existing or proposed residential zone (including the alteration of any existing residential zone boundary), (b) any other zone in which significant residential development is permitted or proposed to be permitted. A planning proposal must include provisions that encourage the provision of housing that will: (a) broaden the choice of building types and locations available in the housing market, and (b) make more efficient use of existing infrastructure and services, and (c) reduce the consumption of land for housing and associated urban development on the urban fringe, and (d) be of good design. A planning proposal must, in relation to land to which this direction applies: (a) contain a requirement that residential development is not permitted until land is adequately serviced (or arrangements satisfactory to the council, or other appropriate authority, have been made to service it), and (b) not contain provisions which will reduce the permissible residential density of land.	The planning proposal does not affect residential zoned land or a zone that permits significant residential uses.	N/A
3.2 Caravan Parks and Manufactured Home Estates	Applies when a relevant planning authority prepares a planning proposal. In identifying suitable zones, locations and provisions for caravan parks in a planning proposal, the relevant planning authority must: (a) retain provisions that permit development for the purposes of a caravan park to be carried out on land, and (b) retain the zonings of existing caravan parks, or in the case of a new principal LEP, zone the land in accordance with an appropriate zone under the Standard Instrument (Local Environmental Plans) Order 2006 that would facilitate the retention of the existing caravan park. In identifying suitable zones, locations and provisions for manufactured home estates (MHEs) in a planning proposal, the relevant planning authority must: (a) take into account the categories of land set out in Schedule 2 of SEPP 36 as to where MHEs should not be located, (b) take into account the principles listed in clause 9 of SEPP 36 (which relevant planning authorities are required to consider when assessing and determining the development and subdivision proposals), and (c) include provisions that the subdivision of MHEs by long term lease of up to 20 years or under the Community Land Development Act 1989 be permissible with consent.	This proposal does not seek development for the purposes of a caravan park or manufactured homes estate, nor does it impact upon any land that does permit development for the purposes of a caravan park or manufactured homes estate.	N/A
3.3 Home Occupations	Planning proposals must permit home occupations to be carried out in dwelling-houses without the need for development consent.	This proposal does not alter home occupation provisions in Byron LEP 2014.	N/A
3.4 Integrating Land Use and Transport	Applies when a relevant planning authority prepares a planning proposal that will create, alter or remove a zone or a provision relating to urban land, including land zoned for residential, business, industrial, village or tourist purposes. A planning proposal must locate zones for urban purposes and include provisions that give effect to and are consistent with the aims, objectives and principles of: (a) Improving Transport Choice – Guidelines for planning and development (DUAP 2001), and (b) The Right Place for Business and Services – Planning Policy (DUAP 2001).	The planning proposal does not affect urban land.	N/A
3.5 Development Near Licensed Aerodrome	Applies when a relevant planning authority prepares a planning proposal that will create, alter or remove a zone or a provision relating to land in the vicinity of a licensed aerodrome. The main requirements of the Direction are that Council takes into consideration the Obstacle Limitation Surface (OLS) as defined by that Department of the Commonwealth for residential purposes, and does not increase residential densities in areas where the ANEF, as from time to time advised by that Department of the Commonwealth, exceeds 25.	The planning proposal will alter provisions on RU1 and RU2 land in the vicinity of the Tyagarah aerodrome. This facility, however, is mainly a grass strip and is lightly used. It will create some opportunity for new dwellings in proximity to existing dwellings but will not increase density overall as dual occupancy is already permitted. Council manages this facility and any potential for conflict will be assessed at the application stage.	Consistent.
4. Hazard and Risk
4.1 Acid Sulfate Soils	Applies when a relevant planning authority prepares a planning proposal that will apply to land having a probability of containing acid sulfate soils as shown on the Acid Sulfate Soils Planning Maps. A council shall not prepare a draft LEP that proposes an intensification of land uses on land identified as having a probability of containing acid sulfate soils on the Acid Sulfate Soils Planning Maps unless the council has considered an acid sulfate soils study assessing the appropriateness of the change of land use given the presence of acid sulfate soils.	There are significant areas of RU1 and RU2 land in Byron Shire that are affected by acid sulfate soils. The planning proposal will not necessarily lead to intensification of land uses proposed on land identified on the Acid Sulfate Soils Planning Maps. Council will consider acid sulfate soils if it receives an application in these locations in accordance with cl. 6.1 of Byron LEP 2014.	Consistent.
4.2 Mine Subsidence and Unstable Land	Applies when a relevant planning authority prepares a planning proposal that permits development on land that: (a) is within a mine subsidence district, or (b) has been identified as unstable in a study, strategy or other assessment undertaken: (i) by or on behalf of the relevant planning authority, or (ii) by or on behalf of a public authority and provided to the relevant planning authority.	This proposal does not impact on any mine subsidence area.	N/A
4.3 Flood Prone Land	Applies when a relevant planning authority prepares a planning proposal that creates, removes or alters a zone or a provision that affects flood prone land. A planning proposal must include provisions that give effect to and are consistent with the NSW Flood Prone Land Policy and the principles of the Floodplain Development Manual 2005 (including the Guideline on Development Controls on Low Flood Risk Areas). A planning proposal must not rezone land within the flood planning areas from Special Use, Special Purpose, Recreation, Rural or Environment Protection Zones to a Residential, Business, Industrial, Special Use or Special Purpose Zone. A planning proposal must not contain provisions that apply to the flood planning areas which: (a) permit development in floodway areas, (b) permit development that will result in significant flood impacts to other properties, (c) permit a significant increase in the development of that land, (d) are likely to result in a substantially increased requirement for government spending on flood mitigation measures, infrastructure or services, or (e) permit development to be carried out without development consent except for the purposes of agriculture (not including dams, drainage canals, levees, buildings or structures in floodways or high hazard areas), roads or exempt development. A planning proposal must not impose flood related development controls above the residential flood planning level for residential development on land, unless a relevant planning authority provides adequate justification for those controls to the satisfaction of the Director-General (or an officer of the Department nominated by the Director-General). For the purposes of a planning proposal, a relevant planning authority must not determine a flood planning level that is inconsistent with the Floodplain Development Manual 2005 (including the Guideline on Development Controls on Low Flood Risk Areas) unless a relevant planning authority provides adequate justification for the proposed departure from that Manual to the satisfaction of the Director-General (or an officer of the Department nominated by the Director-General).	The planning proposal will not rezone any land. Byron LEP 2014 already contains a flood planning clause that would apply to detached dual occupancy and secondary dwellings if they were proposed on land that is flood prone. Given that attached dual occupancy is already permitted in the RU1 and RU2 zones, the planning proposal will not permit significant development on flood prone land (beyond that already permitted). Detached dual occupancy and secondary dwellings will require Council consent. Their inclusion in Byron LEP 2014 as a permitted use in the RU1 and RU2 zones is consistent with the Floodplain Development Manual 2005, and there is unlikely to be a net increase in demand for flood rescue services for sites where it is approved.	Consistent.
4.4 Planning for Bushfire Protection	Applies when a relevant planning authority prepares a planning proposal that will affect, or is in proximity to land mapped as bushfire prone land. In the preparation of a planning proposal the relevant planning authority must consult with the Commissioner of the NSW Rural Fire Service following receipt of a gateway determination under section 56 of the Act, and prior to undertaking community consultation in satisfaction of section 57 of the Act, and take into account any comments so made. A planning proposal must: (a) have regard to Planning for Bushfire Protection 2006, (b) introduce controls that avoid placing inappropriate developments in hazardous areas, and (c) ensure that bushfire hazard reduction is not prohibited within the APZ. A planning proposal must, where development is proposed, comply with the following provisions, as appropriate: (a) provide an Asset Protection Zone (APZ) incorporating at a minimum: (i) an Inner Protection Area bounded by a perimeter road or reserve which circumscribes the hazard side of the land intended for development and has a building line consistent with the incorporation of an APZ, within the property, and (ii) an Outer Protection Area managed for hazard reduction and located on the bushland side of the perimeter road, (b) for infill development (that is development within an already subdivided area), where an appropriate APZ cannot be achieved, provide for an appropriate performance standard, in consultation with the NSW Rural Fire Service. If the provisions of the planning proposal permit Special Fire Protection Purposes (as defined under section 100B of the Rural Fires Act 1997), the APZ provisions must be complied with, (c) contain provisions for two-way access roads which link to perimeter roads and/or to fire trail networks, (d) contain provisions for adequate water supply for fire fighting purposes, (e) minimise the perimeter of the area of land interfacing the hazard which may be developed, (f) introduce controls on the placement of combustible materials in the Inner Protection Area.	Large parts of the land zoned RU1 and RU2 in Byron Shire are identified as bushfire prone land. This will be a consideration in any application for a dual occupancy or secondary dwelling. Consultation with the Commissioner of the NSW Rural Fire Service following receipt of a gateway determination under section 56 of the Act will take place when the gateway determination has been received. Given the precedent set by Lismore City Council it, is assumed that any concerns they may have can be addressed.	Consistent.
5. Regional Planning
5.1 Implementation of Regional Strategies	Planning proposals must be consistent with a regional strategy released by the Minister for Planning.	The planning proposal is largely consistent with the outcomes and actions contained within the Far North Coast Regional Strategy (FNCRS). In particular, the actions related to Settlement and Housing and Environment and Natural Resources. The proposal specifically responds to the following actions: Councils will plan for a range of housing types of appropriate densities, location and suitability that are capable of adapting and responding to the ageing of the population. Local government will consider a range of affordable housing strategies, including forms of low cost housing. Local environmental plans will: - include minimum subdivision standards for rural and environment protection zones; - include provisions to limit dwellings in the rural and environmental zones. The planning proposal includes criteria to limit the location and impact of detached dual occupancy and secondary dwellings.	Consistent.
5.2 Sydney Drinking Water Catchments	Applies when a relevant planning authority prepares a planning proposal that applies to the hydrological catchment.	The proposal is not within this catchment.	N/A
5.3 Farmland of State and Regional Significance on the NSW Far North Coast	The planning proposal must not rezone land mapped as State or regionally significant farmland under the Northern Rivers Farmland Protection Project for an urban use.	No land is proposed to be rezoned by this planning proposal. It is a minor change to the land use controls. Council, however, will consider farmland issues when an application is made.	N/A
5.4 Commercial and Retail Development along the Pacific Highway, North Coast	A planning proposal that applies to land located on “within town” segments of the Pacific Highway must provide that: (a) new commercial or retail development must be concentrated within distinct centres rather than spread along the highway, (b) development with frontage to the Pacific Highway must consider the impact the development has on the safety and efficiency of the highway. (c) For the purposes of this paragraph, “within town” means areas which, prior to the draft local environmental plan, have an urban zone (eg “village”, “residential”, “tourist”, “commercial”, “industrial”, etc) and where the Pacific Highway speed limit is less than 80 km/hour. A planning proposal that applies to land located on “out-of-town” segments of the Pacific Highway must provide that: (a) new commercial or retail development must not be established near the Pacific Highway if this proximity would be inconsistent with the objectives of this Direction, (b) development with frontage to the Pacific Highway must consider the impact the development has on the safety and efficiency of the highway. (c) For the purposes of this paragraph, “out-of-town” means areas which, prior to the draft local environmental plan, do not have an urban zone (eg “village”, “residential”, “tourist”, “commercial”, “industrial”, etc) or are in areas where the Pacific Highway speed limit is 80 km/hour or greater.	This planning proposal does not affect commercial or retail uses in proximity to the Pacific Highway.	N/A
6. Local Plan Making
6.1 Approval and Referral Requirements	A planning proposal must: (a) minimise the inclusion of provisions that require the concurrence, consultation or referral of development applications to a Minister or public authority, and (b) not contain provisions requiring concurrence, consultation or referral of a Minister or public authority unless the relevant planning authority has obtained the approval of: (i) the appropriate Minister or public authority, and (ii) the Director-General of the Department of Planning and Environment (or an officer of the Department nominated by the Director-General), prior to undertaking community consultation in satisfaction of section 57 of the Act, and (c) not identify development as designated development unless the relevant planning authority: (i) can satisfy the Director-General of the Department of Planning and Environment (or an officer of the Department nominated by the Director-General) that the class of development is likely to have a significant impact on the environment, and (ii) has obtained the approval of the Director-General of the Department of Planning and Environment (or an officer of the Department nominated by the Director-General) prior to undertaking community consultation in satisfaction of section 57 of the Act.	The planning proposal will not include provisions that require the concurrence, consultation or referral of development applications to a Minister or public authority.	N/A
6.2 Reserving Land for Public Purposes	A planning proposal must not create, alter or reduce existing zonings or reservations of land for public purposes without the approval of the relevant public authority and the Director-General of the Department of Planning and Environment (or an officer of the Department nominated by the Director-General).	The planning proposal does not create, alter or reduce land reserved for a public purpose.	N/A
6.3 Site Specific Provisions	Applies when a relevant planning authority prepares a planning proposal that will allow a particular development to be carried out. A planning proposal that will amend another environmental planning instrument in order to allow a particular development proposal to be carried out must either: (a) allow that land use to be carried out in the zone the land is situated on, or (b) rezone the site to an existing zone already applying in the environmental planning instrument that allows that land use without imposing any development standards or requirements in addition to those already contained in that zone, or (c) allow that land use on the relevant land without imposing any development standards or requirements in addition to those already contained in the principal environmental planning instrument being amended. A planning proposal must not contain or refer to drawings that show details of the development proposal.	The planning proposal does not seek to allow a particular development to be carried out. The planning proposal does not contain schematic drawings.	N/A

BYRON SHIRE COUNCIL

13.6 - Attachment 1

The following table provides a summary of the relevant public authorities, which were specifically consulted in accordance with the Gateway Determination:

Public authority/stakeholder	Issue requiring comment
NSW Rural Fire Service	Section 117 of the Environmental Planning and Assessment Act 1979, Ministerial Direction 4.4 to consult with the Commissioner of the NSW Rural Fire Service.
Department of Primary Industries	Impact of rural housing on farming and rural industries.

NSW Rural Fire Service

The RFS does not object to the planning proposal. It suggests that if a detached dual occupancy or secondary dwelling is proposed on bushfire prone land then a Section 79BA assessment is required.

Comment: The advice is noted. Council will require this assessment if the locality is bushfire prone. It can be a reason for refusal if the matter has not been properly dealt with. It may also result in conditions of approval that relate to bushfire buffers and building construction.

Recommendation: No change.

NSW Department of Primary Industries

The DPI raises a number of concerns about the planning proposal as follows:

· The planning proposal does not consider the long term implications or cumulative impacts on agriculture and resources

· The planning proposal is not consistent with the objectives of the RU1 zone

· The planning proposal is not well justified by an independent study or evidence

· The planning proposal is not consistent with the Governments position on affordable housing

· The decision for additional housing is not reversible

· The planning proposal does not address land use conflict, increased land values, or sterilisation of resources in the long term

· A Landscape of houses will make it difficult for new agribusiness to occur in the Shire

Comment: Long term implications are always difficult to gauge when applications are dealt with on a merits basis at a single point in time. Cumulative impacts are also difficult to gauge for the same reason. However, there is a requirement that the development “will not impair the use of the land for agriculture or rural industries.” Council can refuse an application if this requirement cannot be achieved. There is no assumption that all properties will be suited to additional dwellings.

The objectives of the RU1 zone are broad and include protecting the natural resource base, encouraging primary industries, minimise land fragmentation, minimise land use conflict, encourage lot consolidation, enable rural tourism, and protect scenic landscapes. Additional dwellings could be either consistent or inconsistent with these objectives depending on the circumstances. The six matters for consideration to be included in the LEP amendment are specifically aimed at ensuring any additional dwellings are consistent with the objectives of the RU1 (and RU2) zones. This is a reasonable position for Council to take.

Council has not undertaken an independent study of this issue. The idea came from a Councillor workshop. However, both Lismore City and Kyogle Shire LEP’s permit rural detached dual occupancy dwellings. This is a significant precedent and it is difficult to understand how it will be different in Byron Shire. The Lismore experience is that it received about ten DA’s in the first twelve months with seven of these being for existing unapproved structures. Byron may get more than this, but many will also be existing structures. The number Byron gets may be influenced by the charges and fees that apply including S.94 contributions.

Affordable housing is best placed in an urban environment with access to facilities and services and less car dependence. However, there is a case that in some circumstances ( eg family members, those that want to remain on the farm after retirement and farm workers) where detached dual occupancy (or secondary dwellings) can actually be more affordable than moving off the land. It is a way that someone who is asset rich but cash poor can provide accommodation at considerably less cost than buying a house with land in an urban area in Byron Shire where average house prices (or rents) are not very affordable. One submission pointed out that the recent parliamentary inquiry into affordable housing did recommend that SEPP (Affordable Rental Housing) 2009 be amended to apply to rural land. This may be an indication of a shift in Government policy.

The decision to amend the LEP is reversible if Council over time considers it is not working. Any dwellings legally approved will be able to remain but this is the same for all approvals. Importantly the additional dwellings do not come with an expectation of future subdivision.

The potential for land use conflict is real and is a problem in Byron Shire. This will be a matter that Council should consider in assessing any applications. It is a consideration for attached Dual occupancy in chapter D2 of Byron DCP 2014 – “The development must be located so that it does not create potential conflict with adjoining agricultural activities or other legitimate land uses.” This chapter will be amended to also apply to rural detached dual occupancy and secondary dwellings.

Council does not anticipate a “landscape of houses” as a result of this LEP amendment. It is expected that there will be an initial surge of interest and many of these will be existing structures. It is also anticipated that the requirement for a shared vehicular access and a location of 100 metres from the primary dwelling should minimise the excessive sterilisation of rural land from future rural industries.

Recommendation: No change.

Part 4 Mapping

The planning proposal does not involve any map amendments.

Part 5 Community consultation

Council undertook community consultation in accordance with the Gateway Determination. For the purposes of public notification, the planning proposal is not considered to be low impact as outlined in the Department of Planning and Infrastructure’s, A guide to preparing local environmental plans, and a 28 day public exhibition period is recommended.

The planning proposal was exhibited from 25 November 2014 until 16 January 2015. The extended exhibition period was to allow for public holidays over the Christmas New Year period.

Notification of the exhibited planning proposal included:

§ a newspaper advertisement that circulates in the Byron LGA, which is the area affected by the planning proposal

§ the website of Byron Shire Council and the Department of Planning and Environment.

Forty seven submissions received from the public. Two agency submissions (NSW Rural Fire Service and NSW Department of Primary Industries). Forty two submissions were in favour of the planning proposal (some conditionally). Five were opposed to the planning proposal. The issues raised are addressed in the Council planning report.

No amendments are recommended as a result of these submissions. It is recommended that the planning proposal proceed to finalisation.

Part 6 Project timeline

The proposed timeline for the completion of the planning proposal is as follows:

Estimated completion	Plan making step
November 2014	Gateway determination issued by Department of Planning and Environment.
November 2014 – January 2015	Public exhibition of planning proposal. Government agency consultation.
February 2015	Analysis of public submissions. Preparation of Council report.
April 2015	Public submissions report to Council.
May 2015	Endorsed planning proposal submitted to Department of Planning and Environment for finalisation.

Summary and conclusions

Byron Shire Council has initiated a planning proposal to modify its 2014 LEP to permit detached dual occupancy and secondary dwellings in the RU1 and RU2 zones.

The preferred method to achieve this will be to:

§ Add a new provision (cl 4.2D) that provides some guidance on what must be addressed in an application for a detached dual occupancy development or secondary dwelling in the RU1 and RU2 zones.

§ Amend Clause 4.1E to establish a 4000 square metre minimum lot size for detached dual occupancy development in the RU1 and RU2 zones.

The planning proposal is broadly consistent with the Far North Coast Regional Strategy and SEPPs. It is also consistent with section 117 Directions.

The planning proposal was placed on public exhibition from 25 November 2014 until 16 January 2015. Forty seven submissions received from the public and two agency submissions (NSW Rural Fire Service and NSW Department of Primary Industries).

No amendments are recommended as a result of these submissions. It is recommended that the planning proposal proceed to finalisation.