Report to Ordinary meeting of Council 21/5/15

Assessment:

1. INTRODUCTION

1.1 History/Background

Past applications over the subject site:

BA 78/2308 Building application for Motel Additions determined 9 October 1978.

BA 82/2700 Building Application for Unit additions determined 13 December 1982.

BA 86/2051 Building application for Minor alterations determined 25 February 1986.

1.2 Consultation with Applicant

Following a review of the limited information that was submitted on 17 December 2014, the Assessment Officer wrote to the applicant raising concerns about the excessive height and FSR of the proposal and requested amended plans to comply with the relevant LEP 2014 controls.

The applicant responded on 1 April 2015 advising that the proposed height non-compliance was directly related to the increased ground floor height required to meet Council’s Flood Planning Level. However, contrary to the applicant’s claim, the proposed 1.64m non-compliance with the height control is not required to satisfy Council’s Flood Planning Level. If the Flood Planning Level was the only consideration, the ground floor of the building is only required to be raised 0.78m to achieve compliance.

It is considered the applicant could make plan amendments, whilst maintaining a three-storey design, to achieve a significantly reduced building height, much closer to the maximum height of 9.0m or alternatively have a two-storey design that would be able to comply with the maximum height of 9.0m.

The applicant has increased the ground floor height of the building in excess of Council’s Flood Planning Level of 3.17m AHD, with the ground floor of the proposed building being 3.78m AHD. The ground floor level should be lowered from 3.78m to 3.17m this would immediately lower the building by 0.61m. The applicant has also allowed 3.0m for each floor of the building, if the floor to ceiling heights of each of the three levels were also lowered, the overall building height would be further reduced. A revised design not exceeding the 9 metre height limit by more than 0.50m would likely be considered more favourably in view of the flood planning level for the subject site.

Notwithstanding the above, the applicant has also failed to provide essential information including a preliminary site investigation prepared in accordance with the relevant NSW Guidelines for SEPP No.55 (Remediation of land). The applicant has also failed to provide a preliminary assessment with regard to acid sulphate soils, without an acceptable preliminary assessment Clause 6.1 of Byron LEP 2014 specifies that development consent must not be granted.

1.3 Description of the site

The subject site is located at 33 Lawson Street, Byron Bay and is legally described as Lot 8 Section 8 DP758207. The site is located on the northern side of Lawson Street between Middleton Street and Fletcher Street. The rear of the site adjoins Bay Lane.

The site is a regular shaped allotment with a frontage of 20.12 metres to Lawson Street (front) and Bay Lane at the rear and a length of 50.37 metres. The applicant has advised the site has a total area of 1013m².

The site contains an existing single-storey motel development (Hibiscus Motel) with vehicular access from Lawson Street and on-site parking area.

Surrounding development

Existing development on the site at 31 Lawson Street comprises a two-storey (plus upper level mezzanine) building with commercial development at ground level and 2 x 2 bedroom dwelling units on the first floor and upper level mezzanine.

Existing development on the adjoining land at No.35 Lawson Street comprises a two storey plus attic level building known as ‘Waves’.

1.4 Description of the proposed development

The application seeks development consent for the demolition of an existing single-storey motel building and outdoor parking area. The proposal seeks to redevelop the site with the erection of a new five (5) level motel development comprising two (2) levels of basement parking and a three-storey motel building above.

The proposed motel development comprises forty-three (43) motel rooms each with double bed, private bathroom and an external balcony. Fifteen (15) of the proposed motel rooms have kitchenette facilities.

An elevator and stair access is proposed between each of the proposed levels, with a chair lift and stairs proposed to provide street level access. Listed below in Table 1 is a summary of what is proposed on each level.

Table 1 – Development proposed by level

Level	Details
Basement Level 2	twenty-six (26) car parking spaces, service area, and one-way signal control vehicular access ramp.
Basement Level 1	twenty-one (21) car parking spaces (including three accessible parking spaces and four stacked parking spaces), bicycle parking area, garbage bin storage room, two store/service rooms, two-way vehicle access ramp to ground level and one-way signal control vehicular access ramp to Basement Level 2.
Level 1 (Ground Floor)	reception and office, access chair lift, swimming pool and thirteen (13) motel rooms
Level 2 (First Floor)	fifteen (15) motel rooms including two wheelchair accessible rooms
Level 3 (Second Floor)	fifteen (15) motel rooms including one wheelchair accessible room

Vehicular access to the proposed basement parking levels is proposed from Lawson Street. Basement parking is proposed to contain a total of forty-seven (47) parking spaces including six (6) accessible parking spaces and a separate bicycle parking area.

The proposed building incorporates rendered and painted masonry wall construction, with elements of timber look cladding, sliding louvre screens, operable rooves for external balconies.

2. SUMMARY OF GOVERNMENT/EXTERNAL REFERRALS

	Summary of Issues
Senior Development Engineer	Flood liable land, car parking, coastal erosion, internal and external access. No objection to the proposal subject to condition. See Doc No.A2014/34368.
Environmental Officer	Council’s Environmental Officer has objected to the proposal with regard to acid sulfate soils, SEPP No.55 (remediation of land) and dewatering.
Water & Waste Services	Section 68 application required for water and sewerage connections. See Doc No.E2015/2202.
ET Engineer	Water and sewerage services available subject to the payment of applicable charges. See Doc No. A2015/3932.
NSW Office of Water	The application was referred to the NSW Office of Water for comment. (see Attachment 2 for comments).
	No other referrals.

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

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

3.1. STATE/REGIONAL PLANNING POLICIES AND INSTRUMENTS

Requirement	Proposed	Complies
State Environmental Planning Policy No. 71 - Coastal Protection Matters for consideration for development within the coastal zone include: - retention of existing public access to the coastal foreshore - impact of effluent disposal on water quality - development must not discharge untreated stormwater into a coastal water body.	The proposal is consistent with the provisions of SEPP 71.	Yes
State Environmental Planning Policy No.65 - Design Quality of Residential Flat Development SEPP No.65 applies to ‘residential flat building’ development. *residential flat building* means a building that comprises or includes: (a) 3 or more storeys (not including levels below ground level provided for car parking or storage, or both, that protrude less than 1.2 metres above ground level), and (b) 4 or more self-contained dwellings (whether or not the building includes uses for other purposes, such as shops), but does not include a Class 1a building or a Class 1b building under the Building Code of Australia.	The proposal is not for a residential flat building and as such SEPP No.65 is not applicable.	N/A
State Environmental Planning Policy No 55 - Remediation of Land (SEPP No.55) Clause 7 of SEPP No.55 specifies that contamination and remediation is to be considered in determining development application.	See assessment following this Table.	No* *(see assessment following this Table)**
Building Code of Australia	The proposed development is considered to be capable of satisfying the Building Code of Australia.	Satisfactory
Demolition	Should the application have been considered favourably conditions to require compliance with the relevant Australian Standard for demolition would have been imposed.	Yes
Disability Access (DDA) Access for persons with disabilities and integration into surrounding streetscapes without creating barriers. (Council Res.10-1118)	The proposal seeks to provide a chair lift from the Lawson Street level to provide accessibility. The proposed elevator would provide internal accessibility.	Satisfactory

State Environmental Planning Policy No 55 - Remediation of Land

Clause 7 of SEPP No.55 sets out Council’s obligations in the assessment of land contamination and remediation. Clause 7(1)(a) specifies:

“(1) A consent authority must not consent to the carrying out of any development on land unless:

(a) it has considered whether the land is contaminated, and

(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.”

The applicant has not provided a preliminary site investigation prepared in accordance with the relevant NSW Guidelines for SEPP No.55 (Remediation of land) with regard to history or condition of the subject site.

A review of Council’s radioactive sand fill mapping (extract shown in Figure 1) identifies the subject site is likely to contain radioactive sand fill.

The applicant was requested to provide a preliminary site investigation in accordance with SEPP No.55 Guidelines to allow for a preliminary assessment to be undertaken. Despite this request the applicant has not submitted a preliminary assessment prepared in accordance with the relevant NSW Guidelines for SEPP No.55 (Remediation of land).

Pursuant to Clause 7(1)(a) of SEPP No.55, Council as consent authority, must not consent to the carrying out of this development as it has not been able to determine whether land is contaminated.

Figure 1 – Subject site shown in yellow as containing possible radioactive sand fill

It is noted that on 29 April 2015 the applicant submitted a brief assessment which was not prepared in accordance with the relevant NSW Guidelines for SEPP No.55 (Remediation of land).

It is also important to note that Section 145B (Exemption from liability - contaminated land) of the Environmental Planning and Assessment Act 1979, states, (in part):

(1) A planning authority does not incur any liability in respect of anything done or omitted to be done in good faith by the authority in duly exercising any planning function of the authority to which this section applies in so far as it relates to contaminated land (including the likelihood of land being contaminated land) or to the nature or extent of contamination of land.

(2) This section applies to the following planning functions:

(c) the processing and determination of a development application and any application under Part 3A or Part 5.1,

(d) Without limiting any other circumstance in which a planning authority may have acted in good faith, a planning authority is (unless the contrary is proved) taken to have acted in good faith if the thing was done or omitted to be done substantially in accordance with the contaminated land planning guidelines in force at the time the thing was done or omitted to be done.

(e) This section applies to and in respect of:

(a) a councillor, and

(b) an employee of a planning authority, and

(c) a public servant, and

(d) a person acting under the direction of a planning authority,

in the same way as it applies to a planning authority.

As advised in Section 145B of the Environmental Planning and Assessment Act 1979, Council may incur liability if it were to grant consent to the proposed development without acting substantially in accordance with the current contaminated land planning guidelines.

3.2 BYRON LOCAL ENVIRONMENTAL PLAN 2014

Zone: B2 Local Centre

Definition: Hotel or motel accommodation

LEP Summary of Requirement

Proposed

Complies

Zone B2 Local Centre

1 Objectives of zone

• To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.

• To encourage employment opportunities in accessible locations.

• To maximise public transport patronage and encourage walking and cycling.

• To encourage vibrant centres by allowing residential and tourist and visitor accommodation above commercial premises.

The proposed development is considered to be generally consistent with the objectives of the B2 Local Centre Zone.

Yes

Permissibility

hotel or motel accommodation means a building or place (whether or not licensed premises under the Liquor Act 2007) that provides temporary or short-term accommodation on a commercial basis and that:

(a) comprises rooms or self-contained suites, and

(b) may provide meals to guests or the general public and facilities for the parking of guests’ vehicles,

but does not include backpackers’ accommodation, a boarding house, bed and breakfast accommodation or farm stay accommodation.

The proposed hotel or motel accommodation is permissible with the consent of Council within the B2 Local Centre Zone.

Yes

2.7 Demolition requires development consent

The demolition of a building or work may be carried out only with development consent.

This application seeks consent for the demolition of the existing motel.

Yes

4.3 Height of buildings

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

(a) to achieve building design that does not exceed a specified maximum height from its existing ground level to finished roof or parapet,

(b) to ensure the height of buildings complements the streetscape and character of the area in which the buildings are located,

(2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. The Height of Buildings Map provides the maximum height limit of 9.0 metres for the subject site.

Maximum roof height (excluding lift tower) 13.03m AHD lowest level below 2.39m AHD. Maximum height calculated to be 10.64m.

No*

(*See assessment following this Table)

4.4 Floor space ratio

(2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map. The FSR Map identifies the site to have a maximum FSR of 1.3:1.

Gross floor area calculations by level: Ground level 398.0m² First Floor 470.7m² Second Floor 470.7 m²

Total GFA 1339.4m²

Site area 1013m²/ GFA 1339.4m².

Proposed FSR is 1.322:1

No*

(*See assessment following this Table)

4.6 Exceptions to development standards

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

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

See assessment following this table.

5.5 Development within the coastal zone

Development consent must not be granted to development on land that is wholly or partly within the coastal zone unless the consent authority has considered the matters within Clause 5.5 and is satisfied with regard to the matters in Clause 5.5.

The proposed development is considered to be acceptable with regard to the matters for consideration within the coastal zone.

Yes

6.1 Acid sulfate soils

(1) The objective of this clause is to ensure that development does not disturb, expose or drain acid sulfate soils and cause environmental damage.

(2) Development consent is required for the carrying out of works described in the table to this subclause on land shown on the Acid Sulfate Soils Map as being of the class specified for those works.

Class of land	Works
5	Works within 500 metres of adjacent Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum and by which the watertable is likely to be lowered below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land.

(3) Development consent must not be granted under this clause for the carrying out of works unless an acid sulfate soils management plan has been prepared for the proposed works in accordance with the Acid Sulfate Soils Manual and has been provided to the consent authority.

(4) Despite subclause (2), development consent is not required under this clause for the carrying out of works if:

(a) a preliminary assessment of the proposed works prepared in accordance with the Acid Sulfate Soils Manual indicates that an acid sulfate soils management plan is not required for the works, and

(b) the preliminary assessment has been provided to the consent authority and the consent authority has confirmed the assessment by notice in writing to the person proposing to carry out the works.

...

(6) Despite subclause (2), development consent is not required under this clause to carry out any works if:

(a) the works involve the disturbance of less than 1 tonne of soil, and

(b) the works are not likely to lower the watertable.

The subject site is identified as containing Class 5 acid sulfate soils by Council’s LEP 2014 mapping. The proposal involves excavation for a two level basement. The applicant has not submitted a preliminary assessment of the proposed works to demonstrate that an acid sulfate soils management plan is not required. As such consent must not be granted under Clause 6.1.

6.2 Earthworks

(1) The objective of this clause is to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.

(2) Development consent is required for earthworks unless the earthworks are exempt development under this Plan or another applicable environmental planning instrument.

(3) In deciding whether to grant development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the following matters:

(a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development,

(b) the effect of the development on the likely future use or redevelopment of the land,

(d) the effect of the development on the existing and likely amenity of adjoining properties,

(e) the source of any fill material and the destination of any excavated material,

(f) the likelihood of disturbing relics,

(g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,

(h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

A large amount of excavation is associated with the construction of the proposed two level basement. The environmental impacts of the proposed excavation have not been able to be adequately assessed in the absence of information on matters such as acid sulphate soils, dewatering and land contamination.

6.3 Flood planning

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

(a) to minimise the flood risk to life and property associated with the use of land,

(b) to allow development on land that is compatible with the land’s flood hazard, taking into account projected changes as a result of climate change,

(2) This clause applies to land at or below the flood planning level.

(3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development:

(a) is compatible with the flood hazard of the land, and

(b) will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and

(d) will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and

(e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.

(4) In determining a development application for development at or below the future flood planning level, the consent authority must, in addition to the matters referred to in subclause (3), also consider the following matters:

(a) the proximity of the development to the current flood planning area,

(b) the intended design life and scale of the development,

(d) the potential to modify, relocate or remove the development.

(5) A word or expression used in this clause has the same meaning as it has in the Floodplain Development Manual (ISBN 0 7347 5476 0) published by the NSW Government in April 2005, unless it is otherwise defined in this clause.

The proposed development is capable of complying with the flood planning controls in Clause 6.3. The proposed ground floor level exceeds the flood planning level of 3.17 AHD by 0.61m.

Yes

6.6 Essential services

Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required:

(a) the supply of water,

(b) the supply of electricity,

(d) stormwater drainage or on-site conservation,

(e) suitable vehicular access.

The essential services identified in Clause 6.6 are available.

Yes

3.2.1 Byron Local Environmental Plan 2014 – Exceptions to development standards Clause 4.6 Assessment

1. Non-compliance with Clause 4.3 Height of buildings (Clause 4.6 assessment)

Clause 4.6(3) specifies:

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(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.

Assessment: A written request has been submitted by the applicant seeking to justify a building height of 10.09m on the subject site. The maximum height of the proposed building is 10.64m, not 10.09m as stated in the written request. The proposed building is 1.64m higher than the 9.0m height control (a non-compliance of 18.2%).

It is considered that the development standard (height of buildings) has not been demonstrated to be unreasonable or unnecessary in the circumstances of this case. The applicant has also not demonstrated there are sufficient environmental planning grounds to justify the contravention. The applicant has provided matters to justify the proposed contravention and the relevant matters are assessed as follows:

- The height of the existing building at No.35 Lawson Street is 14.14m. The development consent (DA 5.1993.167.1) for the increased height of this building was granted in 1993 under a different height control. The existing building at No 35 Lawson Street, has a sloping roofline containing only smaller ‘attic’ areas above the former 7.5m limit. Council previous DCP set a 7.5m height limit measured at the top-plate of the outer walls of the building (not the roofline). No.35 Lawson Street is also a corner allotment which may allow for height increase.

- Development application 10.2014.361.1 allowed alterations and additions to the building at No.35 Lawson Street to reach a height of 13.03m. This application involved lowering the height of the existing building from the existing 14.14m to 13.03m. It is also noted these approved alterations and additions have not been commenced.

- The applicant has stated the additional height of the building is a direct result of the flood prone nature of the site and the need to elevate the ground floor to Council’s flood level plus freeboard. This is not correct, the additional floor height to satisfy Council’s flood planning level is approximately 0.77m, whilst the proposed height non-compliance is 1.64m.

- The applicant notes that the proposed development will not adversely impact on the streetscape in view of other existing buildings including those on the opposite side of Lawson Street. The proposed increase in height and bulk of the building is not considered to be compatible with the streetscape. It is considered the relevant streetscape assessment involves only the northern side Lawson Street between Middleton Street and Fletcher Street. The streetscape drawing submitted does not establish the relevant streetscape within the 9.0m height control area. Any reference to buildings on the opposite side of Lawson Street is not considered relevant as the height limit there is 11.5m.

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

Assessment: It is considered that the applicant’s written request contains miscalculations and does not adequately address the matters as required by subclause 3.

(ii) 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, and

Assessment: The objectives of Clause 4.3 (height of buildings) are as follows:

(a) to achieve building design that does not exceed a specified maximum height from its existing ground level to finished roof or parapet,

(b) to ensure the height of buildings complements the streetscape and character of the area in which the buildings are located,

(c) to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development.

(2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.

It is considered the proposed height of the building does not satisfy the objectives of Clause 4.3. The proposed building height is considered to be excessive in the relevant streetscape. The proposed development is considered to be generally consistent with the objectives of the B2 Local Centre Zone as these objectives do not refer to built form.

(b) the concurrence of the Director-General has been obtained.

Assessment: Concurrence of the Director-General is able to be assumed for non-compliances with Clauses 4.6 (pursuant to Planning Circular 08-003).

2. Non-compliance with Clause 4.4 Floor space ratio (Clause 4.6 assessment)

Clause 4.6(3) specifies:

(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.

Assessment: It is considered that the development standard (floor space ratio) has not been demonstrated to be unreasonable or unnecessary in the circumstances of this case. The applicant has also not demonstrated there are insufficient environmental planning grounds to justify the contravention. The applicant has provided the following comments in an attempt to justify the proposed contravention, which are assessed below:

- “The proposed variation is minor as it only requests a 1.7% variation.”

The proposed 1.7% variation represents an additional 22.5m² of gross floor area.

- The degree if variation will represent no material change in the building (sic)

The deletion of 22.5m² of gross floor area would result in a material change in the proposed building.

- There are no additional bulk and scale impacts as a result of the minor non-compliance.

The proposed additional 22.5m² of gross floor area increases the bulk of the building. The proposed increased floor area is also exacerbated by the substantial height non-compliance of the building.

- The proposed variation results in better internal amenity for the proposal.”

No evidence or explanation has been submitted by the applicant to support the above claim. The deletion of one motel room would be sufficient to satisfy the maximum FSR maintaining the internal amenity.

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

Assessment: It is considered that the applicant’s written request does not adequately address the matters required to be demonstrated in subclause 3 as detailed.

Assessment: The objectives of Clause 4.4 (floor space ratio) are as follows:

(a) to ensure that new buildings are appropriate in relation to the character, amenity and environment of the locality,

(b) to enable a diversity of housing types by encouraging low scale medium density housing in suitable locations,

(c) to provide floor space in the business and industrial zones adequate for the foreseeable future,

(d) to regulate density of development and generation of vehicular and pedestrian traffic,

(e) to set out maximum floor space ratios for dual occupancy in certain areas.

(2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.

It is considered the proposed FSR of the building does not satisfy the objectives of Clause 4.4.

(b) the concurrence of the Director-General has been obtained.

Assessment: Concurrence of the Director-General is able to be assumed for non-compliances with Clauses 4.6 (pursuant to Planning Circular 08-003)

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

No relevant Draft Environmental Planning Instruments have been identified.

3.3 DEVELOPMENT CONTROL PLAN

Byron Development Control Plan 2014
Control	Assessment	Compliance
Chapter B11 Planning for Crime Prevention
B11.2.1 Development that Requires a Formal Crime Risk Assessment 1. Council will expect a formal Crime Risk Assessment for the following types of development: ……. other developments that, in the Council’s opinion, are likely to create a risk of crime. 2. Development Applications for the proposals listed in 1. above must be accompanied by a formal Crime Risk Assessment prepared by or on behalf of the applicant in accordance with NSW Police Force guidelines. The Crime Risk Assessment shall: a) assess the crime risk characteristics of the area; b) make provision in the design process to minimise crime risk; and c) address the CPTED principles as they apply to the proposed development.	The proposed two level basement car park may provide an increased crime risk area. The submitted statement of Environmental Effects has not addressed Planning for Crime Prevention. Should the application have been considered favourably further details would have been requested with regard to planning for crime prevention.	No
Chapter B12 Social Impact Assessment
B12.1.3 Application of this Chapter A Social Impact Assessment (SIA) is required for tourist and visitor accommodation for 50 or more persons. A Social Impact Assessment must be conducted and certified by a suitably qualified person and in manner prescribed in Chapter B12.	The application has not submitted a Social Impact Assessment.	No
Chapter D3 – Tourist Accommodation
D3.2.1 Location and Siting The siting, design and operation of tourist accommodation and associated development must not adversely affect important conservation values, ecological systems or characteristics of the site or the Shire. Development must respect and contribute to the natural environmental systems and values of its location and surrounds.	The proposed design of the development involves two levels of basement parking. It has not been demonstrated that the proposed development will not adversely affect conservation values and respect the natural environment.	No
Development applications for proposals located in or near ecologically sensitive areas, areas of high conservation values and/ or important natural features or sites must include a full description of those ecological, conservation and natural values and systems, together with a comprehensive, professional assessment of the impact of the proposed development thereon. The impact assessment must include an evaluation of the effectiveness and sustainability of any proposed amelioration and management measures.	The site is located in an ecologically sensitive area in terms of acid sulphate soils and groundwater. The application does not include a full description of those ecological, conservation and natural values and systems, together with a comprehensive, professional assessment of the impact of the proposed development thereon.	No
D3.2.4 Character and Design in Business and Mixed Use Zones Tourist accommodation in Zones B1, B2 and B4 must be compatible in character and amenity with development in the locality. The provisions of the following Sections in Chapter D4 Commercial and Retail Development apply to all tourist accommodation development in Zones B1, B2 and B4 in the same way they apply to commercial and retail development in Business and Mixed Use zones: Section D4.2.1 – Design Character of Retail and Business Areas. Section D4.2.2 – Design Detail and Appearance.	Noted.	Yes
D3.3.6 Hotel or Motel Accommodation The design and operation of hotel or motel accommodation must be compatible with the streetscape and character of development in the locality. Development applications must demonstrate that the proposed development will be appropriately designed and landscaped consistent with the requirements of Chapters B11 Planning for Crime Prevention and B9 Landscaping. Hotel or motel accommodation development must not adversely affect the amenity of the precinct in which it is located. Development applications may need to be accompanied by a Social Impact Assessment prepared pursuant to Chapter B12 Social Impact Assessment, where applicable. External pedestrian access must be provided between accommodation units and other facilities associated with the development, including car parking. The access must comprise covered connecting pathways or access balconies with an all-weather surface and must be integrated with the overall landscape plan for the development. Motels must incorporate eating and living areas and facilities, together with outdoor recreation/ living areas with access to winter sun and summer shade. They may also include self-contained cooking facilities. Development must be designed and constructed to minimise noise and vibration impacts on occupants of adjoining or nearby dwellings or buildings.	The proposed excessive height and excessive bulk of the proposed building is not considered to be compatible with the streetscape on the northern side of Lawson Street between Middleton Street and Fletcher Street. The applicant has not demonstrated compliance with Chapters B11 Planning for Crime Prevention or Chapter B9 Landscaping. The applicant has not satisfied the requirements for Social Impact Assessment detailed in Chapter B12. Pedestrian access is provided between accommodation units and other facilities including car parking.	No
D4.2.2 Design Detail and Appearance The design of new buildings must reflect and enhance the existing character of the precinct. The design, scale, bulk, design and operation of business, commercial and retail development must be compatible with the streetscape and with the aesthetics, function and amenity of development in the locality. Building design, roof profile, detailing, colours, materials and the like that are visible from the street and from adjoining properties must be compatible with any dominant design themes in the surrounding locality. The pattern of windows in retail areas must provide visual interest and variation and must relate to those of adjacent buildings. Building materials must relate to the context of buildings within the area to achieve continuity and harmony. Contrasting materials may be used to provide diversity, however materials and colour must not be used so that they dominate the streetscape.	The design, bulk and scale of this development is not compatible with the streetscape on the northern side of Lawson Street between Middleton Street and Fletcher Street.	No
Chapter D8 - Public Art
D8.2.1 Provision of Public Art 1. Development to which this Section applies must include the provision of public art to the value of at least 2% of the total development cost (calculated in accordance with the Environmental Planning & Assessment Regulation) up to a maximum of $25,000, as an integral part of the development. 2. The public art must be permanent and durable, and must be provided in a location on the development site that is freely accessible to members of the public or clearly visible from the public domain. 3. Details of the proposed public art must be submitted as part of the Development Application documentation. The documentation must include details of the nature and form of the proposed public art; and must define and illustrate its intended location and approximate size. 4. The documentation must also demonstrate how the proposed public art meets the following Design Selection Criteria: a) relevance and appropriateness of the work in relation to its site; b) relevance and appropriateness of the work to Byron Shire, including the Shire’s Aboriginal heritage, its particular natural environment and its diverse culture; c) consistency with the Byron Shire Cultural Plan and Public Art Policy; d) consideration of public safety, including public use of and access to the public art and associated space; e) consideration of maintenance and durability, including potential for vandalism; f) evidence of funding sources and satisfactory budget, including provision for ongoing maintenance; and g) evidence of Public Liability Insurance to cover construction and installation of the work.	The proposed development triggers the need to provide public art in accordance with Chapter D8. Should the application have been considered favourably a condition would have been imposed to require public art be provided in accordance with Chapter D8. Details of the proposed public art were not submitted as part of the Development Application documentation.	No
Section B8 Waste Minimisation and Management
A Site Waste Minimisation and Management Plan (SWMMP) is to be submitted with a Development Application and must show all matters specified within Section B8.4.	Should the application have been considered favourably a condition would have been included to require the submission of a SWMMP generally in accordance with B8.4.2.	No
Chapter B4 Traffic Planning, vehicle parking, circulation and access
B4.2.5 Car Parking Requirements 1. Unless otherwise specified elsewhere in this DCP, car parking is to be provided in accordance with the schedule contained in Table B4.1 Food and drink premises require one (1) parking space required per 20m² of GFA in Business Zone.	The proposed number of parking spaces and the access arrangements has been assessed as satisfactory.	Yes
Chapter E5 Certain Locations in Byron Bay and Ewingsdale
E5.4.1 Development and servicing of land affected by predicted coastal hazards All services must be provided from the landward side of the development such that the building is between the services and the erosion escarpment. Development within the ‘Coastal Erosion Hazard Area’ on the Byron Bay Coastal Hazards Map (E5.1) will be considered on the understanding that any consent granted will be subject to the proviso that should the erosion escarpment come within 50 metres of any building then the development consent will cease. If the development consent does cease then the owner of the land will be responsible for the removal of all buildings. The option of demolition as the means of removal will be available to all buildings. Prior to the issue of a Construction Certificate a restriction as to user must be placed on the title pursuant to the provisions of section 88E of the Conveyancing Act 1919, stating: “The subject land and any improvements erected thereon must not be used for the purpose of (land use) in the event that the erosion escarpment as defined by the Works and Services Director of the Council of the Shire of Byron from time to time comes to within 50 metres of any buildings or any part thereof at any time erected on the said land’.	Should the application have been recommended for approval a condition would been included to require the A Section 88E instrument to be placed on the title of the land to cease use when the erosion escarpment comes within 50m of the site.	Yes

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

Built Environment

The proposed development is considered to be excessive in terms of height, bulk and scale. The proposed building is not considered to be compatible with the built environment as detailed in Section 3.2.1 of this report.

Natural Environment

Social and economic impacts

The proposed development is considered to be acceptable with regard to social and economic impacts in the locality.

3.5 The suitability of the site for the development

The site is also located within the coastal erosion zone, should the application have been recommended for approval a condition would have been imposed to address this issue.

3.6 Submissions made in accordance with this Act or the regulations

The application was notified / advertised in accordance with the Level 2 provisions of Council’s DCP 2014 Part A14 - Public Notification and Exhibition of Development Applications. The exhibition period occurred from 6 January 2015 to 19 January 2015. Council’s records indicate that no submissions were received.

3.7 Public interest

The proposed development is considered to be contrary to the public interest as the development significantly exceeds the height limit prescribed by the local planning instrument which has been the subject of an extensive community consultation process.

4. DEVELOPER CONTRIBUTIONS

4.1 Water & Sewer Levies

ET assessment

Development	Number	ET Rate		ET
Development	Number	Water	Sewer	Water	Sewer
1 bedroom motel units Ref 6.4	43	0.30 / bedroom	0.45 / bedroom	12.9	19.35
Office Ref 8.4	9.8 m²	0.01 / m²	0.004 / m²	0.098	0.0392
Swimming pool – Indoor Ground Floor	Assumed 3m x14m @1.5m deep	Using Swimming pool calculator #E2015/9848		0.76	0.51
Swimming pool – Indoor Top Floor	Assumed 2m x 14m @1.5m deep	Using Swimming pool calculator #E2015/9848		0.66	0.51
Swimming pool – Outdoor Top Floor	Assumed 12m x 3m @1.5m deep	Using Swimming pool calculator #E2015/9848		0.72	0.51
TOTAL				15.138	20.9192

Therefore this development generates an additional load of:

· 15.14 – 3.50 (credit) = 11.64 ET for Water & Bulk Water;

· 20.92 – 5.05 (credit) = 15.87 ET for Sewer.

NB: figures are from the current Water and Sewer Equivalent Tenements Policy (13/005).

Had the application been recommended for approval it would require payment of Developer Servicing Charges of:

· 11.64 ET onto Councils Water & Bulk Water;

· 15.87 ET onto Councils Sewer.

4.2 Section 94 Contributions

Had the application been recommended for approval a condition would have been included to require payment of the Section 94A levy.

5. CONCLUSION

A review of Council’s radioactive sand fill mapping identifies the subject site is likely to contain radioactive sand fill which could be disturbed as the proposal involves substantial excavation for two levels of basement parking. SEPP No.55 specifies that Council must not grant consent unless it has assessed if the land is contaminated. It is also noted that Council may be liable if consent were to be granted without acting substantially in accordance with the ‘contaminated land planning guidelines’ pursuant to Section 145B (Exemption from liability - contaminated land) of the Environmental Planning and Assessment Act 1979.

The proposal is non-compliant with the provisions of Byron LEP 2014 Clause 4.3 (Height of buildings), Clause 4.4 (Floor space ratio), Clause 6.1 (Acid sulfate soils) and Clause 6.2 (Earthworks).

The proposed building with a maximum height of 10.64m exceeds the 9.0m height limit by 1.64m (a non-compliance of 18.2%). The proposal exceeds the maximum floor space ratio by 22.5m² (a non-compliance of 1.7%). Whilst the applicant has submitted a written request to vary the maximum height and floor space ratio pursuant to Clause 4.6 (Exceptions to development standards), the applicant has not demonstrated that compliance with height limit or floor space ratio is unreasonable or unnecessary.

The subject site is identified as containing Class 5 acid sulfate soils by Council’s LEP 2014 mapping. The applicant has not submitted a preliminary assessment of the proposed works to demonstrate that an acid sulfate soils management plan is not required. As such development consent must not be granted in accordance with Clause 6.1 Byron LEP 2014.

The proposal is also considered to be inconsistent with Byron DCP 2014 controls relating to the height, bulk, scale, social impact assessment and environmental impacts for tourist accommodation.

Overall the applicant has failed to submit essential information to support the proposed development. The proposed 1.64m non-compliance with the maximum height limit has not been adequately justified by the applicant. The proposed development is considered to have insufficient planning merit and it is recommended that the application be refused consent.

6. RECOMMENDATION

It is recommended that pursuant to Section 80 of the Environmental Planning & Assessment Act 1979, development application no. 10.2014.742.1 for demolition of existing single-storey motel building and erection of a three (3) storey motel accommodation building plus two (2) levels of basement parking, be refused for the following reasons:

1. Pursuant to Section 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979, the height of the proposed building exceeds the maximum height shown for the land on the Height of Buildings Map, contrary to Clause 4.3 of Byron Local Environmental Plan 2014. 2.

2. Pursuant to Section 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979, the floor space ratio of the proposed building exceeds the floor space ratio shown for the land on the Floor Space Ratio Map, contrary to Clause 4.4 of Byron Local Environmental Plan 2014.

3. Pursuant to Section 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979, an acid sulfate soils management plan (or a preliminary assessment) has not been provided to Council, in accordance with Clause 6.1 of Byron Local Environmental Plan 2014 development consent must not be granted.

4. Pursuant to Section 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979, it has not been demonstrated that the subject land is not contaminated and in accordance with Clause 7 of State Environmental Planning Policy No.55 (Remediation of land). Council must not consent to the carrying out of any development on land unless it has determined whether the land is contaminated or suitable for the purpose.

5. Pursuant to Section 79C(1)(b) of the Environmental Planning and Assessment Act 1979 the proposed height, bulk and scale of the proposed building is likely to have a negative impact on the built environment of the locality.

6. Pursuant to Section 79C(1)(e) of the Environmental Planning and Assessment Act 1979, the proposed development is considered to be contrary to the public interest in terms of possible environmental impacts.

7. DISCLOSURE OF POLITICAL DONATIONS AND GIFTS

Has a Disclosure Statement been received in relation to this application	No
Have staff received a ‘gift’ from anyone involved in this application that needs to be disclosed. Where the answer is yes, the application is to be determined by the Director or Manager of the Planning, Development and Environment Division.	No

Provide Disclosure Statement register details here: Nil.

Property description:	LOT: 8 SEC: 8 DP: 758207 33 Lawson Street BYRON BAY
Parcel No/s:	41820
Applicant:	D P Roberts Planning Solutions
Owner:	Mr P J Croke
Zoning:	B2 Local Centre Zone
Date received:	9 December 2014
Integrated Development:	No
Public notification or exhibition:	- Level 2 advertising under DCP 2014 Part A14 - Public Notification and Exhibition of Development Applications - Exhibition period: 6/01/15 to 19/01/15 - Submissions: Nil.
Delegation to determination:	Meeting of full Council
Issues:	· A review of Council’s radioactive sand fill mapping identifies the subject site is likely to contain radioactive sand fill which could be disturbed as the proposal involves excavation for two levels of basement parking. SEPP No.55 specifies that Council must not grant consent unless it has assessed if the land is contaminated. The applicant has not provided a preliminary site investigation prepared in accordance with the relevant NSW Guidelines for SEPP No.55 (Remediation of land). · Council may also be liable if consent were to be granted without acting substantially in accordance with the contaminated land planning guidelines pursuant to Section 145B (Exemption from liability - contaminated land) of the Environmental Planning and Assessment Act 1979. · The subject site is identified as containing potential Class 5 Acid Sulfate Soils and a preliminary assessment has not been provided for acid sulfate soils. Consent must not be granted under Clause 6.1 of Byron LEP 2014 for the carrying out of works unless an acid sulfate soils management plan has been prepared. · The proposal exceeds the maximum height standard for the site by 1.64 metres (a non-compliance of 18.2% with Clause 4.3 Byron LEP 2014). · The proposed building exceeds the Floor Space Ratio for the site by 22.5m² of floor area (non-compliance of 1.7% with Clause 4.4 of Byron LEP 2014). · The proposed building is considered to be excessive in terms of height, bulk and scale. · Flood prone land. Flood barriers are proposed to be erected in the event of flooding to prevent water entering the basement levels of the proposed building.