SEPP 71 – Coastal Protection

Permitting tourist and visitor accommodation (only in part) in RU1 and RU2 zones and serviced apartments in the B4 zone could result in applications in the coastal zone of Byron Shire. The aim of the SEPP and the matters for consideration in clause 8 of the SEPP are matters that Council will consider on a site specific basis in future development applications.  In most cases the development will either be in existing urban areas or relatively small scale. If larger scale development is proposed it will need to be carefully considered. Byron DCP 2014 currently limits rural tourism accommodation to a maximum of 12 bedrooms and 24 guests.  The planning proposal is compliant with the aims of the SEPP.

Permitting short term rental accommodation in zones where dwellings are already permitted could result in applications in the coastal zone of Byron Shire. The aim of the SEPP and the matters for consideration in clause 8 of the SEPP are matters that Council will consider on a site specific basis in future development applications.  In most cases the change of use (if approved) will not result in impacts on the coast beyond that already generated by the existing dwelling. The planning proposal is compliant with the aims of the SEPP.

SEPP 55 – Remediation of land

In this case no land is actually being rezoned. The addition of serviced apartments to the B4 zone will not significantly increase the range of sensitive land uses on that land which is already zoned for urban use.   Permitting tourist and visitor accommodation (only in part) in RU1 and RU2 zones will require an applicant to address past land use and possible contamination in any development application. It is consistent with the SEPP.

In this case no land is actually being rezoned and short term rental accommodation will only be permissible where a dwelling is already permitted on the land. This will not significantly increase the range of sensitive land uses on the site and past land use will still be addressed in any development application (if required). It is consistent with the SEPP.

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 the boundaries or extent of business or industrial zones. However it will allow shop top housing to be used for short term rental accommodation.  This will not reduce the area available for employment land uses and not alter any locations for business or industry.

Consistent

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.

(a)        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 apply to rural zoned land where a dwelling is permitted.

It will not alter the zone of any rural land. It will not alter the density of land use within any rural zone.

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

(a)        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

(a)        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 the proposed use of the land will be either minor (and therefore exempt development) or subject to an environmental assessment on a case by case basis through the development application process. 

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

(a)        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 or RU2 where a dwelling is permitted.  It will not alter the minimum lot size on any land.

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.  If a development application is required then the SEE will need to address this issue.

(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 use of dwellings for short term rental accommodation is in response to the changing nature of agriculture in Byron Shire including the need for 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 us of existing dwellings for short term rental 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 land use lawfully.  The Byron experience suggests it is widespread and occurs without proper controls. 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 (if a development application is required).

(f)      the provision of opportunities for rural lifestyle, settlement and housing that contribute to the social and economic welfare of rural communities – short term rental accommodation is a tourism experience that (if properly managed) can contribute to the economic welfare of rural communities.

(g)     the consideration of impacts on services and infrastructure and appropriate location when providing for rural housing – Council will expect services and infrastructure to be addressed in applications for short term rental accommodation.

(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 tourism experiences and forms of tourist accommodation…”(page 38).  The LEP changes will limit tourism in rural areas to a small scale.

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.  No environmental standards will be reduced by the proposed LEP changes.

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 where a development is not minor it will require an assessment through a development application.  If any land in Byron Shire affected by coastal erosion is proposed for short term rental accommodation then Council will consider the management of the coastline and response to emergencies as part of any 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,

(a)        Aboriginal objects or Aboriginal places that are protected under the National Parks and Wildlife Act 1974, and

(a)        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. 

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,

(a)        where the land comprises a beach or a dune adjacent to or adjoining a beach,

(a)        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

(i)        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),

(a)        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

(a)        make more efficient use of existing infrastructure and services, and

(a)        reduce the consumption of land for housing and associated urban development on the urban fringe, and

(a)        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

(a)        not contain provisions which will reduce the permissible residential density of land.

The planning proposal will affect residential zoned land.

The purpose of the LEP amendment is to broaden the potential use of some residential buildings in Byron Shire by permitting short term rental accommodation.

This may lead to a reduction in the availability of housing for permanent occupation in some locations.  

It will not affect the density of residential development.

It will give the choice of using a dwelling for permanent or short term rental accommodation if it meets the criteria in the LEP.

Existing clause 6.6 of Byron LEP 2014 already requires adequate essential services to be available to the land at the time at which consent is granted.

Consistent

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

(a)        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

(a)        The Right Place for Business and Services – Planning Policy (DUAP 2001).

The planning proposal will alter the permitted uses on land zoned for residential (and other purposes) where dwellings are permitted. However, it will not alter zone boundary or create a new zoned area. There is unlikely to be any impact on public transport as a result of this planning proposal.

Consistent.

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 considers 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 that may affect rural zoned land located in the vicinity of the Tyagarah aerodrome.

However, it is about increasing the uses for existing dwellings and will not increase densities or create obstacles in proximity to the aerodrome. Any application in the vicinity of the aerodrome would need to address the issues that relate to this location.

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.

Some land to which this planning proposal will apply may be 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 this location 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

(a)        has been identified as unstable in a study, strategy or other assessment undertaken:

(i)        by or on behalf of the relevant planning authority, or

(i)        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,

(a)        permit development that will result in significant flood impacts to other properties,

(a)        permit a significant increase in the development of that land,

(a)        are likely to result in a substantially increased requirement for government spending on flood mitigation measures, infrastructure or services, or

(a)        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 short term rental accommodation if it were proposed on land that is flood prone.

Given that attached dwellings are already permitted in the affected zones, the planning proposal will not permit significant development on flood prone land (beyond that already permitted).

The use of dwellings for short term rental accommodation 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,

(a)        introduce controls that avoid placing inappropriate developments in hazardous areas, and

(a)        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

(i)        an Outer Protection Area managed for hazard reduction and located on the bushland side of the perimeter road,

(a)        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,

(a)        contain provisions for two-way access roads which link to perimeter roads and/or to fire trail networks,

(a)        contain provisions for adequate water supply for fire fighting purposes,

(a)        minimise the perimeter of the area of land interfacing the hazard which may be developed,

(a)        introduce controls on the placement of combustible materials in the Inner Protection Area.

Some parts of the land to which this planning proposal applies in Byron Shire may be identified as bushfire prone land.  This will be a consideration in any application for short term rental accommodation.

Early consultation with the Commissioner of the NSW Rural Fire Service resulted in changes to the exempt development provisions as they relate to short term rental accommodation. The provisions now state that “Prior to commencement a Bushfire Safety Authority under S.100B of the RFS Act 1997 is required on land identified as bush fire prone”.

Where a development application is lodged for short term rental accommodation on land identified as bushfire prone land, the RFS consider it will be Integrated Development under Section 91 of the EPA Act, 1979.

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.  It is assumed that any concerns that RFS may still have can be addressed as the planning proposal proceeds.

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 Economic Development and Employment Growth.  The proposal specifically responds to the following tourism related actions:

Local environmental plans will ensure that appropriate land is available to provide for a range of tourism experiences and forms of tourism accommodation.

Local environmental plans will permit no more than small scale tourism development in rural or environment protection zones.

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. 

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

(a)        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

(i)        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

(a)        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

(i)        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. It does not identify development as designated development.

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

(a)        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

(a)        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

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 the boundaries or extent of business or industrial zones. However it will allow land zoned B4 Mixed Use to be used for serviced apartments.  This will not reduce the area available for employment and will not alter any locations for business or industry.  The B4 zone is confined to two small areas in Byron Bay town centre, an area of vacant land at the northern end of Bayshore Drive in West Byron,  and a strip of Council owned land in Mullumbimby and a section of Tweed Street (Old Pacific Hwy) in Brunswick Heads. 

The B4 zone in Lismore, Ballina and Tweed LGA’s all permit serviced apartments with consent.

Consistent

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 apply to rural zoned land.

It will not alter the zone of any rural land. It will not alter the density of land use within any rural zone.

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 the proposed use of the land will be either minor (and therefore exempt development) or subject to an environmental assessment on a case by case basis through the development application process. 

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 or RU2.  It will not alter the minimum lot size on any land.

Tourist and Visitor Accommodation is permitted with consent in the RU1 and RU2 zones in neighbouring Ballina LEP 2012.  This does not appear to have caused any significant problems.

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.  Any development application for rural tourist and visitor accommodation will need to address this issue.

(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 use of land for rural tourist and visitor accommodation is in response to the changing nature of agriculture in Byron Shire including the need for 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.  Rural tourist and visitor accommodation in appropriate locations should not undermine this recognition.

(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 rural tourist and visitor accommodation with Council consent. 

(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 – Development applications for rural tourist and visitor accommodation will require consideration of the physical environment in which the development will be located.

(f)      the provision of opportunities for rural lifestyle, settlement and housing that contribute to the social and economic welfare of rural communities – rural tourist and visitor accommodation is a tourism experience that (if properly managed) can contribute to the economic welfare of rural communities.

(g)     the consideration of impacts on services and infrastructure and appropriate location when providing for rural housing – Council will expect services and infrastructure to be addressed in applications for rural tourist and visitor accommodation.

(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 tourism experiences and forms of tourist accommodation…”(page 38).  Byron DCP 2014 limits tourism in rural areas to a small scale.

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.  No environmental standards will be reduced by the proposed LEP changes.

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).

Some land affected by this planning 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 where a development is not minor it will require a development application.  If any land in Byron Shire affected by coastal erosion is proposed for rural tourist and visitor accommodation then Council will consider the management of the coastline and response to emergencies as part of any 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. 

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 will affect residential zoned land.

The purpose of the LEP amendment is to broaden the potential use of some residential buildings in Byron Shire by permitting larger bed and breakfast accommodation (up to 5 bedrooms) in all residential zones with consent and smaller bed and breakfast accommodation (1 bedroom) as exempt development.

This may lead to a reduction in the availability of housing for permanent occupation in some locations. 

It will not affect the density of residential development.

It will give the choice of using a dwelling for permanent or short term rental accommodation if it meets the criteria in the LEP.

Existing clause 6.6 of Byron LEP 2014 already requires adequate essential services to be available to the land at the time at which consent is granted.

Consistent

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 will alter the permitted uses on land zoned for residential, business, village and tourist purposes. However, it will not alter zone boundaries or create a new zoned area. There is unlikely to be any impact on public transport as a result of this planning proposal.

Consistent.

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 considers 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 that may affect rural zoned land located in the vicinity of the Tyagarah aerodrome.

Any application in the vicinity of the aerodrome would need to address the issues that relate to this location.

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.

Some land to which this planning proposal will apply may be 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 this location 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.  It will affect some land that is known to be flood prone. Byron LEP 2014 already contains a flood planning clause (Cl 6.3) and a floodplain risk management clause (Cl 6.4) that would apply to all forms of tourist and visitor accommodation if it were proposed on land that is flood prone.

Within the residential, business and tourist zones, the planning proposal will not permit significant development on flood prone land beyond that already permitted.

The proposed application of tourist and visitor accommodation in various zones is consistent with the Floodplain Development Manual 2005, as applications will be assessed on merit.

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.

Some parts of the land to which this planning proposal applies in Byron Shire may be identified as bushfire prone land.  This will be a consideration in any application for tourist and visitor accommodation.

Early consultation with the Commissioner of the NSW Rural Fire Service resulted in changes to the exempt development provisions as they relate to single bedroom bed and breakfast accommodation. The provisions now state that “Prior to commencement a Bushfire Safety Authority under S.100B of the RFS Act 1997 is required on land identified as bush fire prone”.

Where a development application is lodged for tourist and visitor accommodation on land identified as bushfire prone land, the RFS consider it will be Integrated Development under Section 91 of the EPA Act, 1979.

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.  It is assumed that any concerns that RFS may still have can be addressed as the planning proposal proceeds.

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 that relate to Economic Development and Employment Growth.  The proposal specifically responds to the following tourism related actions:

Local environmental plans will ensure that appropriate land is available to provide for a range of tourism experiences and forms of tourism accommodation.

Local environmental plans will permit no more than small scale tourism development in rural or environment protection zones.

Council’s DCP 2014 requires that rural tourism accommodation be limited to 12 bedrooms in total and 24 guests.

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. 

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. It does not identify development as designated development.

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

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.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.

Estimated completion

Plan making step

July August 2015

Gateway determination issued by Department of Planning and Environment.

August / September 2015

Public exhibition of planning proposal.

Government agency consultation.

September / October 2015

Analysis of public submissions.

Preparation of Council report.

October November 2015

Public submissions report to Council.

November  December 2015

Endorsed planning proposal submitted to Department of Planning and Environment for finalisation or dealt with by Council under delegation.