Cover page Agenda and Min Ordinary infocouncil

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Agenda

 

Ordinary Meeting

 

 Thursday, 20 September 2018

 

held at Council Chambers, Station Street, Mullumbimby

commencing at 9.00am

 

 

 

 

Public Access relating to items on this Agenda can be made between 9.00am and 10.30am on the day of the Meeting.  Requests for public access should be made to the General Manager or Mayor no later than 12.00 midday on the day prior to the Meeting.

 

 

 

Mark Arnold

General Manager

 


CONFLICT OF INTERESTS

What is a “Conflict of Interests” - A conflict of interests can be of two types:

Pecuniary - an interest that a person has in a matter because of a reasonable likelihood or expectation of appreciable financial gain or loss to the person or another person with whom the person is associated.

Non-pecuniary – a private or personal interest that a Council official has that does not amount to a pecuniary interest as defined in the Local Government Act (eg. A friendship, membership of an association, society or trade union or involvement or interest in an activity and may include an interest of a financial nature).

Remoteness – a person does not have a pecuniary interest in a matter if the interest is so remote or insignificant that it could not reasonably be regarded as likely to influence any decision the person might make in relation to a matter or if the interest is of a kind specified in Section 448 of the Local Government Act.

Who has a Pecuniary Interest? - a person has a pecuniary interest in a matter if the pecuniary interest is the interest of the person, or another person with whom the person is associated (see below).

Relatives, Partners - a person is taken to have a pecuniary interest in a matter if:

§  The person’s spouse or de facto partner or a relative of the person has a pecuniary interest in the matter, or

§  The person, or a nominee, partners or employer of the person, is a member of a company or other body that has a pecuniary interest in the matter.

N.B. “Relative”, in relation to a person means any of the following:

(a)   the parent, grandparent, brother, sister, uncle, aunt, nephew, niece, lineal descends or adopted child of the person or of the person’s spouse;

(b)   the spouse or de facto partners of the person or of a person referred to in paragraph (a)

No Interest in the Matter - however, a person is not taken to have a pecuniary interest in a matter:

§  If the person is unaware of the relevant pecuniary interest of the spouse, de facto partner, relative or company or other body, or

§  Just because the person is a member of, or is employed by, the Council.

§  Just because the person is a member of, or a delegate of the Council to, a company or other body that has a pecuniary interest in the matter provided that the person has no beneficial interest in any shares of the company or body.

Disclosure and participation in meetings

§  A Councillor or a member of a Council Committee who has a pecuniary interest in any matter with which the Council is concerned and who is present at a meeting of the Council or Committee at which the matter is being considered must disclose the nature of the interest to the meeting as soon as practicable.

§  The Councillor or member must not be present at, or in sight of, the meeting of the Council or Committee:

(a)   at any time during which the matter is being considered or discussed by the Council or Committee, or

(b)   at any time during which the Council or Committee is voting on any question in relation to  the matter.

No Knowledge - a person does not breach this Clause if the person did not know and could not reasonably be expected to have known that the matter under consideration at the meeting was a matter in which he or she had a pecuniary interest.

Participation in Meetings Despite Pecuniary Interest (S 452 Act)

A Councillor is not prevented from taking part in the consideration or discussion of, or from voting on, any of the matters/questions detailed in Section 452 of the Local Government Act.

Non-pecuniary Interests - Must be disclosed in meetings.

There are a broad range of options available for managing conflicts & the option chosen will depend on an assessment of the circumstances of the matter, the nature of the interest and the significance of the issue being dealt with.  Non-pecuniary conflicts of interests must be dealt with in at least one of the following ways:

§  It may be appropriate that no action be taken where the potential for conflict is minimal.  However, Councillors should consider providing an explanation of why they consider a conflict does not exist.

§  Limit involvement if practical (eg. Participate in discussion but not in decision making or vice-versa).  Care needs to be taken when exercising this option.

§  Remove the source of the conflict (eg. Relinquishing or divesting the personal interest that creates the conflict)

§  Have no involvement by absenting yourself from and not taking part in any debate or voting on the issue as if the provisions in S451 of the Local Government Act apply (particularly if you have a significant non-pecuniary interest)

RECORDING OF VOTING ON PLANNING MATTERS

Clause 375A of the Local Government Act 1993 – Recording of voting on planning matters

(1)   In this section, planning decision means a decision made in the exercise of a function of a council under the Environmental Planning and Assessment Act 1979:

(a)   including a decision relating to a development application, an environmental planning instrument, a development control plan or a development contribution plan under that Act, but

(b)   not including the making of an order under Division 2A of Part 6 of that Act.

(2)   The general manager is required to keep a register containing, for each planning decision made at a meeting of the council or a council committee, the names of the councillors who supported the decision and the names of any councillors who opposed (or are taken to have opposed) the decision.

(3)   For the purpose of maintaining the register, a division is required to be called whenever a motion for a planning decision is put at a meeting of the council or a council committee.

(4)   Each decision recorded in the register is to be described in the register or identified in a manner that enables the description to be obtained from another publicly available document, and is to include the information required by the regulations.

(5)   This section extends to a meeting that is closed to the public.

 


BYRON SHIRE COUNCIL

Ordinary Meeting

 

 

BUSINESS OF Ordinary Meeting

 

1.    Public Access

2.    Apologies

3.    Requests for Leave of Absence

4.    Declarations of Interest – Pecuniary and Non-Pecuniary

5.    Tabling of Pecuniary Interest Returns (s450A Local Government Act 1993)

6.    Adoption of Minutes from Previous Meetings

6.1       Byron Shire Reserve Trust Committee held on 23 August 2018

6.2       Ordinary Meeting held on 23 August 2018

7.    Reservation of Items for Debate and Order of Business

8.    Mayoral Minute

8.1       An Official Byron Shire Australia Day event that reflects an inclusive, reasonable and reflective Australia............................................................................................................................. 6

9.    Notices of Motion

9.1       Anti-Vaccination Groups................................................................................................... 9

9.2       Drainage concern about stormwater flowing under Ewingsdale Road, from the Byron Industrial Estate............................................................................................................................... 15

10.  Petitions

11.  Submissions and Grants

11.1     Byron Shire Council Submissions and Grants as at 29 August 2018............................. 18

12.  Delegates' Reports  

13.  Staff Reports

General Manager

13.1     Classification of Lots 188 DP 728535, Lot 1 DP 1159861 and Lot 138 DP 755722, (the former Mullumbimby Hospital site)............................................................................................. 20

13.2     Consolidation of 12 Lots in DP 4974 into two new Lots.................................................. 25

13.3     Lease for Massinger Street treehouse............................................................................ 28

Corporate and Community Services

13.4     Election of Deputy Mayor 2018-2019............................................................................. 32

13.5     Report of the Public Art Panel Meeting 3 August,  including proposed amendments to the Public Art Chapter of the Development Control Plan...................................................................... 36

13.6     Investments August 2018................................................................................................ 39

Sustainable Environment and Economy

13.7     PLANNING - Development Application 10.2017.683.1 Stage 1: Boundary Adjustment Subdivision to Create Two (2) Lots and Demolition of Existing Swimming Pool. Stage 2: Alterations and Additions to Existing Dwelling House and New Driveway on Proposed Lot 1, New Dwelling House and Studio above Existing Garage on Proposed Lot 2 at 2 Tincogan Street, Mullumbimby............ 47

13.8     Bushfire Prone Land Mapping......................................................................................... 66

13.9     PLANNING - 26.2017.6.1 Byron Bay Town Centre Planning Controls - Results of Preliminary Community Engagement................................................................................................ 70

13.10   PLANNING - 26.2017.5.1 Planning Proposal to activate the Rail Corridor Byron Bay: Post Exhibition Report.............................................................................................................................. 87

13.11   Report of the Planning Review Committee Meeting held on 9 August 2018................. 93

13.12   Local Heritage Places Grants 2018-19........................................................................... 95

13.13   PLANNING - Development Application 10.2018.233.1 Mobile Telecommunications Facility including 35 metre Monopole, Six (6) antennae and ancillary equipment at Wilsons Creek Road, Wilsons Creek............................................................................................................................... 98

13.14   Proposed Flying Fox Project Reference Group........................................................... 121

13.15   PLANNING - Development Application 10.2017.742.1 Alterations and Additions to Existing Dwelling House including New Swimming Pool and Spa, New Dwelling House to Create a Dual Occupancy (detached) and Two (2) Studios at 219 The Saddle Road Brunswick Heads.............. 124

13.16   Approval to Operate a Caravan Park and Camping Ground application under section 68 of the Local Government Act 1993 and Regulations 2005 for The Terrace Reserve Holiday Park 139

13.17   Update - Byron Housing Roundtable and Residential Strategy.................................... 151

13.18   PLANNING - DA2017.516.1 - Subdivison to Create 4 Lots,8 Coomburra Cr, Ocean Shores      154

Infrastructure Services

13.19   Suffolk Beachfront Holiday Park Dog Friendly Report................................................ 162

13.20   Parking Time Changes in  Mullumbimby, Bangalow and Brunswick Heads -  Status Report      171

13.21   Bayshore Drive Roundabout - Project Update............................................................. 179

13.22   Suffolk Beachfront Holiday Park - Re-classification Planning for Permanent Residents 186

13.23   Targa Restaurant Footpath Dining Application, 11 Marvell Street, Byron Bay............ 189

13.24   Spelling Error of Historical Significance "Hollingsworth" Lane should be "Hollingworth" Lane Mullumbimby................................................................................................................. 191

13.25   Naming of 2 Unnamed Roads - Tims Lane in Broken Head and Blackwell Alley in Bangalow    193

13.26   Renaming Northern Part of Granuaille Crescent on Bangalow Cemetery side of the Pacific Highway....................................................................................................................................... 197

13.27   Mullumbimby Rugby League Club S64 Contributions.................................................. 200

13.28   Mullumbimby Skate Park.............................................................................................. 202   

14.  Reports of Committees

Corporate and Community Services

14.1     Report of the Audit, Risk and Improvement Committee Meeting held on 16 August 2018 206

14.2     Report of the Finance Advisory Committee Meeting held on 16 August 2018............ 210

Infrastructure Services

14.3     Report of the Transport and Infrastructure Advisory Committee Meeting held on 16 August 2018....................................................................................................................................... 215   

15Questions With Notice

Responses to Questions on Notice are now available on www.byron.nsw.gov.au/Council/ Council-meetings/Questions-on-Notice  

16.  Confidential Reports

General Manager

16.1     Confidential - Grant of lease to Preferred Tenderer for the operation and management of the Byron tennis courts........................................................................................................ 218

Sustainable Environment and Economy

16.2     Confidential - Tender 2018-0018 - Multi Use Byron Shire Rail Corridor.............. 219

Infrastructure Services

16.3     Confidential - Reuse Irrigation............................................................................... 221  

 

 

 

 

Councillors are encouraged to ask questions regarding any item on the business paper to the appropriate Director prior to the meeting. Any suggested amendments to the recommendations should be provided to Councillor Support prior to the meeting to allow the changes to be typed and presented on the overhead projector at the meeting.

 


BYRON SHIRE COUNCIL

Mayoral Minute                                                                                                                         8.1

 

 

Mayoral Minute

 

Mayoral Minute No. 8.1       An Official Byron Shire Australia Day event that reflects an inclusive, reasonable and reflective Australia

File No:                                  I2018/1712

 

  

 

I move that Council:

 

1.       Hold its Australia Day event on 25 January

 

2.       Invite local custodians to assist in the development and management of the event

 

 

 

 

 

Background Notes:

 

Currently, Australia Day symbolises great sorrow and pain amongst indigenous mobs whilst many non-aboriginal Australians feel uneasy or conflicted celebrating our nation on this day.

 

The debate around this is occurring rapidly and divisively and is not going away. I believe Byron, by adopting a reasonable, rational and mature approach, has an opportunity to help the nation make the transition away from the historical problem of this date, whilst still honouring the needs and values of those who enthusiastically wish to celebrate our successes as a nation and our communities within Australia.

 

Historical considerations

 

I believe we, as a nation, have a lot to celebrate and a lot for which to be thankful. However, we have chosen a date that is not historically accurate nor reflective of the diverse cultural tapestry that make up our nation. Historically, if we were choose a date that signified the first of many waves of settlers on our land, we would start with the First Australians. On the 26th, we are celebrating the arrival of British settlers - it was a day that the English came with British convicts to establish an English colony - if we are content as a nation to do this, it would then be more appropriate and accurate to call the day - ‘Colonisation day’, or ‘British Arrival day’. This would be accurate, but rightfully unacceptable, as it wouldn’t reflect our diverse and wonderful nation.

 

Thus, both symbolically and historically, it would be more appropriate to acknowledge a time before white man arrived, when the first people settled on the land were indeed, the First Australians.  So, why not the night before? The evening of the 25th.

 

Inclusive considerations

 

Thus, the historical inaccuracy of celebrating on the 26th is obvious and even more obvious is the inappropriateness of this date when it is known that it causes significant grief to a section of our community. Why would we, being a nation that prides itself in the values of a ‘fair go’, equality and ‘mateship’, willingly choose a date that is not fair, hurts our fellow Australian mates and suggests that some Australians are more equal than others?  An evening tradition of celebrating Australia day on the 25th could symbolise the richness and importance of the first Australians, it would directly and clearly symbolise that, across our towns and cities, the Australia we are celebrating began with our local mobs. We would focus on a positive time for our indigenous history-rather than a day that pinpoints the start of their collective sorrow. I would love my family to celebrate our country in a way that includes and honours all our stories- whatever our skin colour, ethnicity or origins.

 

Until an obvious date became apparent, (most likely the date of when we finally become a republic), changing the date to celebrate 24 hours earlier would be more historically accurate and more inclusive of all members of our nation. A small step, but a reasonable and respectful one.

 

Contemporary considerations

 

Currently, a day of celebration to that marks the end of Summer is a great modern cultural fit for us and changing the date that acknowledges this current reality makes sense. Putting the feelings  of conflict many feel about the 26th to the side, so many of us love the Australia Day long weekend - it seems a natural fit in our lives, and so keeping that intact whilst adjusting the actual day of celebration seems reasonable and logistically sensible.  Changing the date to one that marks the concept or reality of ‘Australia’ narrows down to very few options. We could explore dates when Henry Parkes made a famous speech about establishing 'Australia' or some other date of significance, though, this would mean a fair load of change, debate, angst and difficulty and perhaps never reach a consensus. The best of a bad lot is the day of Federation - January 1st. This doesn’t work in a practical sense because Australians being Australians - New Years Day is already a holiday - losing a holiday and double dipping on another would be ‘un-Australian’.

 

Utilising the current social acceptance and convenience of this date, the 26th would still be a public holiday, but like Christmas, we can celebrate it the night before and leave the day for people to do what they wish individually - from having a bbq, being with family and friends, acknowledging the survival aspect, or holding citizenship ceremonies (if this is sacrosanct for politicians). Those who celebrate Christmas the night before have no less a powerful and wonderful experience as those who do it on the actual day, so too communities formally celebrating Australia Day the evening before and informally on the 26th for those who enthusiastically wish to support the ‘traditional’ Australia day date.

 

I'd love my kids to also continue to acknowledge their British roots and origins and it's cultural significance of Australia's past, and for them to respect those who feel strongly and nationalistically that this day is one to pay respect for those who fought and died in the name of 'Australia' and who wish to honour our achievements of the last two hundred years

 

On Australia day, we are celebrating Australia and what it means to be Australian and celebrating our diversity and different cultural backgrounds. So, let’s start with the first cultural community that has become part of our mix-the indigenous community- rather than the second group-the Anglo Saxons. Let’s move a date in a small practical and reasonable way that signifies that we as a nation are prepared to acknowledge the past and show we are mature and active enough to shift a little to grow a lot.

 

For many Australians, Australia Day is not much more than a holiday and the mark of the end of the Summer holiday. For the remaining Australians, it is probably split evenly between those who think it is the correct day and correct way to celebrate our country's achievements both past and present and those like me who feel it is an inappropriate way and day to celebrate when it is also the day the cultural decimation and denigration of the first Australians began. Decimation and denigration that we still have not rectified, learnt from, or paid penance. Our national wound remains and moving Australia Day one day earlier would mean our apology was honest.

 

How We Celebrate

 

As time for organising this years’ event is short, how we celebrate is a conversation and decision for another day and for future years. For this year, the venue may be more formal but we should still work with our local mob more collegially, to the degree they wish, to start to shift the format and style of the event. Eventually, for me, Byron Bay is ‘Cavvanbah’- the meeting place- and so let’s once more look to meet and gather and celebrate and corroboree. Imagine a few hundred people sitting in circle in the grassed space within the Sandhills area or main beach. The night will still have the great local awards component-though this time with more attendees enjoying and watching it. The council funded lunch can be changed to a council funded dinner- a relaxed open feast and one that the Arakwal could have a say in what is offered, allowing for bush tucker etc.

 

As locals sit and chat, cultural groups can bring their music and colour to the circle, one after another-after the local mob have started the dance up.

 

Mary Flick chronicled in 1906 how on most Saturday nights, the local Byron Bay community would often pay sixpence to attend the local Arakwal painting up and dancing corroboree style in the Sandhills area- most probably where the library currently sits. There is local historical significance for this area to hold a space for white fellas and black fellas to come together.

 

When my family joins me at the various events on Australia day, I'd love them to be part of events and ceremonies co-created by our local mob-instead of them only invited to welcome us to their country and then have them sit to the side for the formalities or leaving to celebrate Survival day.

 

I imagine celebrating an Australia Day with my kids starting at dusk on the 25th, consisting of an indigenous feast, music and celebration from many ethnicities and our usual community awards acknowledging great actions by our locals. I imagine circles of locals- together for one beautiful moment a year- acknowledging our collective past, present and future. 

 

I'd love to a part of that. I'd love my kids to be a part of that. I'd love the diverse country I love to be a part of that.

 

 

Is the proposal consistent with any Delivery Program tasks?

 

This Mayoral Minute is encapsulated in one of our key Vision’s within Council’s COMMUNITY VISION AND COUNCIL VALUES: We foster the arts and cultural activities, respect and acknowledge our first peoples and celebrate and embrace diverse thinking and being.

 

Key connections to the Community Strategic Plan Include:

 

 

Definition of the project/task:

 

Holding the Council Official Australia Day event on 25 January.

 

Signed:   Cr Simon Richardson

  


BYRON SHIRE COUNCIL

Notices of Motion                                                                                                                    9.1

 

 

Notices of Motion

 

Notice of Motion No. 9.1     Anti-Vaccination Groups

File No:                                  I2018/1699

 

  

 

I move:

 

1.       Does not accept bookings at any council facility from anti-vaccination groups or individuals, and in particular the Australian Vaccination Risks Network, formerly known as the Australian Vaccination Skeptics Network for the purposes of promoting an anti- vaccination message.

 

2.       Applies this restriction while ever the Public Warning issued by the Health Care Complaints Commission is in place.

 

 

 

 

 

Signed:   Cr Paul Spooner

 

Councillor’s supporting information:

 

The Federal Department of Health states: “Immunisation is the most significant public health intervention in the last 200 years, providing a safe and effective way to prevent the spread of many diseases that cause hospitalisation, serious ongoing health conditions and sometimes death. 

Since the introduction of vaccination for children in Australia in 1932, deaths from vaccine-preventable diseases have fallen by 99 per cent, despite a threefold increase in the Australian population over that period. Worldwide, it has been estimated that immunisation programs prevent approximately three million deaths each year.

 

Immunisation is critical for the health of children and the wider community. For immunisation to provide the greatest benefit, a sufficient number of people need to be vaccinated to halt the spread of bacteria and viruses that cause disease - this is known as herd immunity or community immunity. The proportion of the population that has to be immune to interrupt disease transmission differs for each vaccine preventable disease, but is around 90 per cent for most diseases. For a highly infectious disease like measles, this is up to 95 per cent of the population. This emphasises the need to stay vigilant and ensure high coverage rates, are achieved, not only at the national level, but also at the local level. ”

 

With reported rates in recent years within the Byron Shire as low as 48.4% this creates a growing and immediate public health risk for babies and children in our community. (Source: Australian Institute of Health and Welfare).

 

The rate of vaccination within parts of the Byron Shire is at a lower rate than the latest available figures for South Sudan (59%), Afghanistan (81%), Iraq (85%) and Nauru (87%). The global average for immunisation is 85% (Source: World Health Organisation).

 

The Health Care Complaints Commission (HCCC) acts to protect public health and safety by resolving, investigating and prosecuting complaints about health care in NSW. It was established under the Health care Complaints Act 1993.

 

On the 30 April 2014 the HCCC issued the following warning that remains current today:

 

Public statement – warning about the Australian Vaccination-skeptics Network, Inc. (‘AVN’), formerly known as Australian Vaccination Network Inc.

30 Apr 2014

The NSW Health Care Complaints Commission has completed an investigation into the Australian Vaccination-skeptics Network, Inc. (‘AVN’), formerly known as Australian Vaccination Network Inc and under section 94A(1) of the Health Care Complaints Act has decided to make the following public statement and warning.

 

AVN was established in 1994 in New South Wales by a group of people concerned about the lack of scientifically-based information cautioning against vaccination. AVN states on its website that the government and the medical community, in general, “exaggerate the safety and benefit profiles of vaccinations whilst downplaying their risks.” AVN states it was formed with the purpose of:

·      providing medically-referenced information on vaccine safety and effectiveness

·      lobbying to ensure that vaccinations are never made compulsory for Australian children

·      supporting those who have chosen not to vaccinate or to vaccinate selectively.

 

AVN disseminates information to the public via a variety of mediums. These include its website, www.avn.org.au, the magazine entitled ‘Living Wisdom’ (which ceased publication in January 2013), its Facebook page, Twitter account and YouTube. Meryl Dorey, the former President, has also held a number of radio interviews.

 

The Commission investigated whether information published and disseminated by AVN may be misleading or inaccurate. The investigation focussed on information provided on AVN’s website and some information disseminated on AVN’s Facebook page.

 

The investigation found that AVN provides information on vaccination that is misleading to the average reader because it is either incorrect, inaccurately represented or because it has been taken out of context. Specifically:

 

·      AVN makes specific assertions about the efficacy of the Gardasil vaccine used to prevent cervical cancer caused by the Human Papillomavirus (HPV). It states that:

the connection between HPV and cervical cancer is tenuous at best and incomprehensive at worst

the vaccine contains only four of the 100 strains of HPV and therefore its use is a “shot in the dark”

it is an experimental vaccine with no proven record of safety or effectiveness.

 

·      AVN does not qualify that:

Gardasil contains the four strains of HPV that have the greatest potential to cause cancer 

the link between HPV and cervical cancer has been established beyond reasonable doubt

significant research went into assessing the probable safety and efficacy of Gardasil before it was ever used in humans

since its use, extensive worldwide data on its safety and efficacy has been collected supporting its safety.

 

·      AVN asserts that the pertussis vaccine used to prevent whooping cough cannot protect against a new strain of pertussis, and that 84% of cases in the community are caused by this new strain. Further, AVN claims that the administration of the new acellular vaccine sometimes requires surgery at the injection site and attributes this as the reason for the change in the vaccination schedule with the removal of the 18-month booster. It is incorrect to state that the vaccine cannot offer any protection against the new strain; and there is no evidence of severe local reactions to the administration of the acellular vaccine that requires surgical intervention at the injection site. Further, the removal of the 18-month booster dose from the vaccination schedule was based on a study that evidenced protection from pertussis was maintained until six years of age when the primary vaccine course is given at two, four and six months of age.

 

·      In relation to Diphtheria-Tetanus-Pertussis (DTP) vaccines AVN asserts that “all whole cell DTP vaccines contain mercury in the form of thiomersal” and that it is one of the most toxic substances known to man and has been linked with autism. In the past, the whole cell DTP vaccine used in Australia did contain thiomersal, however even if the maximum possible number of doses were given, it is unlikely that the World Health Organisation’s (WHO)  recommended limit of exposure per kilogram of body weight would have been exceeded. In 2012, the WHO’s Global Advisory Committee on Vaccine Safety  reviewed available information on the safety of thiomersal and concluded that the levels of thiomersal attained in the body from cumulative doses of vaccines do not reach toxic levels, making a causal association between thiomersal in vaccines and autism implausible. Further, thiomersal is not present in any of the vaccines on the current National Immunisation Program for young children. 

 

·      AVN states that many of the Anti-D injections recommended for pregnant women with a negative blood group who have babies with a positive blood group, and that prevent the mother’s immune system from making antibodies to the baby’s positive cells thus preventing harm to the baby, contain thiomersal. They also state that late cord clamping and lotus birth minimises or completely eliminates the exchange of blood after birth. The Anti-D injections used in Australia are made from Australian plasma and are free from thiomersal. Further, late cord clamping and lotus birth do not completely eliminate the exchange of blood after birth; there can still be contamination of the maternal system by foetal blood. There is also an increased risk of post-partum haemorrhage and foetal jaundice.

 

·      AVN provides links on its website to 68 journal studies that AVN states support the alleged vaccine/autism causation. However, the studies mostly describe an association between autism or other neurological disorders with vaccines or other environmental exposures, but they make no claim of causality. The subject of any link between vaccines and autism has been examined by a number of expert professional groups, including the Institute of Medicine , none of which have substantiated any link. A study carried out by the Institute of Medicine in 2011 rejects a causal relationship between the measles, mumps and rubella (MMR) vaccine and autism. 

 

·      AVN states that “vaccine ingredients” and “vaccines” have never been tested, either individually or in combination. This statement is incorrect as all vaccines available in Australia must pass stringent safety testing before being approved for use by the Therapeutic Goods Administration (TGA). This testing is required by law and is usually done over many years during the vaccine’s development. There is also ongoing review of both vaccine safety and efficacy through post-marketing clinical trials and surveillance of disease and vaccine adverse events. This includes multivalent vaccines and the administration of more than one vaccine at a time. Further, much of the understanding of the safety of vaccine components comes from the use of the components and their lack of association over many years with reported significant adverse events. For components such as mercury and aluminium, conservative safety limits at most ages have been published by a number of reputable agencies, including the Environmental Protection Agency (USA) and the WHO.  

 

·      AVN uses data from the United States Vaccine Adverse Event Reporting System (VAERS) on its website, without qualifying that no cause-and-effect relationship has been established. This is because VAERS collects data on any adverse event following vaccination and it is specifically stated that any report of an adverse event to VAERS is not a causal link that a vaccine caused the event.

·      On the AVN website there is the headline ‘Nurses don’t trust vaccines’, under which an article from the Vaccine journal about a study conducted into the low rates of vaccinations among nurses who treat infants is referenced . AVN summarised the study conducted as conveying that a large number of nurses are saying no to vaccination because they don’t trust the way in which vaccines have been promoted. The study was performed on a small group of 25 nurses in Israel. Due to the small sample size and unique context under which the study was conducted, the results cannot be generalised without caution. The authors of the article “suggest” that low rates of vaccinations among nurses in Israel who treat infants are “embedded deep in the mistrust nurses have towards health authorities and the nurses’ desire for autonomy”.

 

Warning

 

The Commission has established that AVN does not provide reliable information in relation to certain vaccines and vaccination more generally. The Commission considers that AVN’s dissemination of misleading, misrepresented and incorrect information about vaccination engenders fear and alarm and is likely to detrimentally affect the clinical management or care of its readers.

 

Given the issues identified with the information disseminated by AVN, the Commission urges general caution is exercised when using AVN’s website or Facebook page to research vaccination and to consult other reliable sources, including speaking to a medical practitioner, to make an informed decision.

 

The Commission has recommended that AVN amend its published information with regard to the above issues and the Commission will monitor the implementation of these recommendations.

 

Further Information

 

Read the related media release.

For further information, contact the the Health Care Complaints Commission on 9219 7444 or send an email to media@hccc.nsw.gov.au.

The information in this media release is correct at the time of publication. Orders may change; for example, conditions may no longer apply. For current information, please contact the Commission.

 

Footnotes:

 

1.       WHO is the directing and coordinating authority for health within the United Nations system. It is responsible for providing leadership on global health matters, shaping the health research agenda, setting norms and standards, articulating evidence-based policy options, providing technical support to countries and monitoring and assessing health trends.

 

2.       GACVS was established in 1999 by the World Health Organisation to respond promptly, efficiently, and with scientific rigour to vaccine safety issues of potential global importance. Its members are acknowledged experts from around the world in the fields of epidemiology, statistics, paediatrics, internal medicine, pharmacology and toxicology, infectious diseases, public health, immunology and autoimmunity, drug regulation and safety.

 

3.       The United States Institute of Medicine is an independent, non-profit organisation that works outside of government to provide unbiased and authoritative advice to decision-makers and the public. It was established in 1970 and it is the health arm of the National Academy of Sciences. 

 

4.       Baron-Epel et al. (2012). What lies behind the low rates of vaccinations among nurses who treat infants? Vaccine, 30, 3151-3154.

 

Staff comments by James Brickley, Acting Director Corporate and Community Services, Corporate and Community Services:

(Management Comments must not include formatted recommendations – resolution 11-979)

 

Council’s guidelines for venue bookings

 

Council’s adopted Guidelines for Halls and Venues for Section 355 Management Boards and Committees (https://www.byron.nsw.gov.au/files/assets/public/hptrim/corporate-management-meetings-informal-ad-hoc-meetings-with-the-community-2018/w20181186-halls-and-venues-guidelines-for-section-355-management-committees-and-boards.pdf) outlines the booking procedure for venues.

 

Section 7 notes that conditions of hire must be formalised with a hirers agreement and based on the principle of inclusion “…the Management Committee are acting on behalf of Council, and it is important to uphold the principles of equity, accessibility and inclusivity, providing for the whole community”.

 

The template hirer’s agreement (https://www.byron.nsw.gov.au/files/assets/public/hptrim/corporate-management-meetings-informal-ad-hoc-meetings-with-the-community-2016/template-information-and-user-hire-conditions-plus-booking-form.pdf) outlines responsibilities including:

·   Bond payment

·   Licences for alcohol

·   Licences for broadcasting music    

·   Security

·   Noise

·   Public liability insurance

 

The guideline or template hirer’s agreement does not stipulate what the hall/venue can and cannot be used for.

 

Council’s position on recent screening of anti-vax film

 

An August 2018 screening of the anti-vax film ‘Sacrificial Virgins’ generated some comments from the community. At the time Council responded:

 

“Council received messages from concerned community members via Facebook regarding the screening of the film “Sacrificial Virgins” at Mullumbimby Civic Hall on 9 August.  The Venue Coordinator also received several emails.

 

The film was booked in accordance with Council’s adopted Guidelines for Halls and Venues for Section 355 Management Boards and Committees – which includes that statement that ‘it is important to uphold the principles of equity, accessibility and inclusivity providing for the whole community’.  Hire conditions and other safeguards are in place to protect Council’s asset.

 

When contacted by members of the community, the venue coordinator advised the community members that any hirer of the hall does not reflect the views of Council or the Board of Management.  Council has responded in the same vein.

 

Council advised patrons (via large signs on display on the entry to the hall and within the hall) that “The views expressed at this event are in no way any reflection of the views of Byron Shire Council or Mullumbimby Civic Hall. This event is not hosted by, or promoted by, Mullumbimby Civic Hall or Byron Shire Council.”

 

 

Guideline revision

 

Should Council wish to update the guidelines to reflect what Council’s venues and halls can be used for, it could be perceived that this would be removing the empowerment from Committees to manage the facility and limiting free speech. Such an approach could be seen as Council allowing bias or pre-judgment.

 

If Council resolved to restrict bookings, a clause could be included to provide discretion to Council and the General Manager, rather than singling out a particular organisation.  The clause could be worded as “bookings may be cancelled or refused at the General Manager’s discretion”.

 

Financial/Resource/Legal Implications:

 

The updating of the guidelines would have minimal financial implications.

 

There may be instances where venues and halls could loose bookings based on new requirements.

 

There may be legal implications with regard to prohibiting certain groups from booking venues.

 

It is noted that the Local Government Act envisages that the elected Council will primarily be involved in the creation and review of the Council’s (as defined in the (LGA) Dictionary) policies and objectives.  In that vein, Council could give the General Manager guidance on matters which the General Manager might consider in exercising his discretion, rather than direct operational management of Council’s services.

 

Is the proposal consistent with any Delivery Program tasks?

 

Council’s Community Strategic Plan 2028 “Our Byron, Our Future” includes:

 

 


BYRON SHIRE COUNCIL

Notices of Motion                                                                                                                    9.2

 

 

Notice of Motion No. 9.2     Drainage concern about stormwater flowing under Ewingsdale Road, from the Byron Industrial Estate

File No:                                  I2018/1700

 

  

 

I move:

 

That, in relation to drainage concerns raised by Belongil residents south of Ewingsdale Road, Council:

 

a)      undertake an immediate review of current and possible drainage paths for catchments leading to land at Melaleuca Drive and the Bayshore Drive intersection and investigate options for alleviating or removing impacts and report to the October 2018 Council meeting;

 

b)      prepare a "Belongil Catchment Issues Study” with the goal of then preparing a Belongil Catchment Management Plan that addresses, amongst other issues, that of drainage south of Ewingsdale Road and whether fill over large areas will not cause waterlogging downstream;

 

c)      allocate $30,000 to prepare Belongil Catchment Issues Study for presentation to Council in February 2019.

 

 

Attachments:

 

1        Attachment to NoM - Vidal Property & Drainage Lines, E2018/74735  

 

 

Signed:   Cr Jan Hackett

 

Councillor’s supporting information:

 

Council has recently completed maintenance works on a culvert under Ewingsdale Road and re-routed drainage around the Bayshore Drive roundabout. This has raised concerns from downstream landowners who are experiencing increased flooding on their land. (Refer Attachment)

 

Staff met on Friday 31 August 2018 at the Cavanbah Centre with affected Belongil residents, Drainage Union Members and some members of the Coastal Estuary Panel regarding the concerns.

 

The concerns also extended to other catchment related issues that have been highlighted further since Council completed maintenance works on the culvert and re-routed drainage around the Bayshore Drive roundabout works.

 

Staff consider that stormwater flows have always drained in this direction, albeit through a poorly maintained drain and that recent works have restored this drainage path resulting in water reaching the drain more efficiently.

 

These works have raised an issue that needs further investigation and resolution.  The above meeting highlighted the need for a whole of catchment review and a solution is considered necessary to address this issue and numerous other issues across the catchment.  Some of these issues are currently being addressed separately through other processes while others are not currently being addressed.

 

The following points are issues for further consideration within the Belongil Catchment:

 

·        Belongil Creek Entrance Opening Strategy

·        West Byron STP Alternative Flow Path

·        Shire wide Water Sensitive Urban Design strategy including focus on the meaning of flood attenuation – trimming peak flows back to pre-development peaks does not alleviate the impacts of increased stormwater volumes, especially at low flows. 

·        Drainage easements for various discharge points from the industrial estate and Byron Bay town.

·        Future planned drainage upgrades on Ewingsdale Road and Byron Bay town.

·        Melaleuca Drive Drainage

·        Proposed Butler Street Wetland Project

·        Proposed Sandhill’s Wetland Basin

·        Ewingsdale Road upgrade proposal to two lanes and other supporting infrastructure

·        Belongil Creek Floodplain Management Plan

·        Union Drain and the Drainage Union

·        Water Quality in general across the catchment

·        West Byron sub-division drainage flow paths and volumes

 

It is recommended that a “Belongil Catchment Issues Study” be prepared with the goal of then preparing a Belongil Catchment Management Plan.

 

The study will consider existing and future issues that relate to stormwater quality and quantity across the whole catchment.  The study will provide points of reference, areas needing further investigation and the proposed scope for the Belongil Catchment Management Plan. 

 

It is recommended that consultants Alluvium who are preparing the Belongil Creek Entrance Opening Strategy be considered for the study as a variation to the opening strategy contract.  Alluvium are already considering numerous issues across the catchment, which includes community consultation and reporting the Council’s Coast and Estuary Panel and Water, Waste and Sewer committee.

 

In discussions with Alluvium staff it is understood that this study would cost in the order of $30,000

 

Based on the meeting there are 2 issues that need addressing:-

 

1.       The immediate issue of increased flooding of land around Melaleuca Drive and the Bayshore drive intersection and the review of options for alleviating or removing impacts (options reported to the October Council meeting)

 

2.       a "Belongil Catchment Issues Study” with the goal of then preparing a Belongil Catchment Management Plan

 

 

Staff comments by Peter Rees, Manager Utilities, Infrastructure Services:

 

(Management Comments must not include formatted recommendations – resolution 11-979)

 

In April 2016 staff reviewed and reported to the Belongil Catchment Advisory Committee 8 major plans and strategies encompassing the Belongil Catchment.  This body of work will be made available to the Consultant.

 

It should also be noted Council resolution (Res 18-390 part 2) requires:

 

That a report on scoping of water sensitive design and whole of catchment plan to integrate works involving West Byron STP, Cape Byron Marine Park, Union Drain Trust and the community come to the next meeting WWSAC.

 

Staff will need to ensure these 2 bodies of work are complementary.

 

Financial/Resource/Legal Implications:

 

The funds for the variation work to be taken from the Sewer reserve fund.

 

Is the proposal consistent with any Delivery Program tasks?

 

Yes

 

  


BYRON SHIRE COUNCIL

Submissions and Grants                                                                                                     11.1

 

 

Submissions and Grants

 

Report No. 11.1           Byron Shire Council Submissions and Grants as at 29 August 2018

Directorate:                 Corporate and Community Services

Report Author:           Jodi Frawley, Grants Co-ordinator

File No:                        I2018/1698

Theme:                         Corporate Management

                                      Corporate Services

 

 

Summary:

 

Council have submitted applications for a number of grant programs which, if successful, would provide significant funding to enable the delivery of identified projects. This report provides an update on these grant submissions.

 

 

  

 

RECOMMENDATION:

 

That Council note the report and attachment (#E2018/74102) for the Byron Shire Council Submissions and Grants as at 29 August 2018.

 

 

Attachments:

 

1        Byron Shire Council Submissions and Grants as at 29 August 2018, E2018/74102  

 

 


 

Report

 

This report provides an update on grant submissions.

 

Unsuccessful Applications

 

·        Agricultural Outreach, National Landcare Program: Smart Farms, Small Grants, Commonwealth Department of Agriculture and Water

·        Railway Square Park, Growing Local Economies, NSW Regional Growth Fund

·        The Refurbishment of Byron’s Tennis Facilities, Infrastructure Grants – Sports and Recreation Stream, NSW Office of Responsible Gambling

 

Additional information on the grant submissions is provided in Attachment 1 – Submissions and Grants report as at 29 August 2018.

 

Financial Implications

 

If Council is successful in obtaining the identified grants more than $12 million would be achieved which would provide significant funding for Council projects.  Some of the grants require a contribution from Council (either cash or in-kind) and others do not. Council’s contribution is funded. The potential funding and allocation is noted below:

 

Requested funds from funding bodies

12,945,930

Council cash contribution

4,294,356

Council in-kind Contribution

62,266

Other contributions

8,610,853

Funding applications submitted and awaiting notification (total project value)

25,913,405

 

Statutory and Policy Compliance Implications

 

Council is required under Section 409 3(c) of the Local Government Act 1993 to ensure that ‘money that has been received from the Government or from a public authority by way of a specific purpose advance or grant, may not, except with the consent of the Government or public authority, be used otherwise than for that specific purpose’. This legislative requirement governs Council’s administration of grants.

  


BYRON SHIRE COUNCIL

Staff Reports - General Manager                                                                                 13.1

 

 

Staff Reports - General Manager

 

Report No. 13.1           Classification of Lots 188 DP 728535, Lot 1 DP 1159861 and Lot 138 DP 755722, (the former Mullumbimby Hospital site).

Directorate:                 General Manager

Report Author:           Ralph James, Legal Counsel

File No:                        I2018/1598

Theme:                         Corporate Management

                                      Community Development

 

 

Summary:

 

At its Ordinary Meeting on 3 August 2017 Council resolved that Council give notice for not less than 28 days of the following proposed resolution

 

pursuant to Section 34 of the Local Government Act 1993:

“That Lot 188 DP 728535 and lot 1 DP 1159861 and lot 138 DP 755722, the former Mullumbimby Hospital site, be classified “operational” under the Local Government Act 1993.”  

 

The proposed resolution was publicly advertised on 24 August 2017 and 7 September 2017. No objections were received.

 

On 23 August 2018 Council resolved to purchase the Mullumbimby War Memorial Hospital

site from Health Administration Corporation.

 

The provisions of Section 31 of the Local Government Act provide that before a council acquires land, or within 3 months after it acquires land, a council may resolve that the land be classified as community land or operational land. Any land acquired by a council that is not classified under the section is, at the end of the period of 3 months, taken to have been classified under a local environmental plan as community land.

 

Section 34 of the Local Government Act provides for public notice.

 

Reclassification is a two step process – a proposed resolution and notice followed by a formal resolution.

 

 

  

 

RECOMMENDATION:

That Council, having resolved to acquire Lots 188 DP 728535, Lot 1 DP 1159861 and Lot 138 DP 755722, (the former Mullumbimby Hospital site), by purchase from Health Administration Corporation, classify the land comprising Lots 188 DP 728535, Lot 1 DP 1159861 and Lot 138 DP 755722 as “operational land” under the Byron Local Environmental Plan.

 

 

 

 


 

Report

 

At its Ordinary Meeting on 3 August 2017 Council received, considered and resolved in respect of a report titled Report No. 13.7 Classification of land - former Mullumbimby Hospital site Lot 188 DP 728535, Lot 1 DP 1159861 and Lot 138 DP 755722.

 

Council resolved as follows:

 

that Council give notice for not less than 28 days of the following proposed resolution:

pursuant to Section 34 of the Local Government Act 1993:

“That Lot 188 DP 728535 and lot 1 DP 1159861 and lot 138 DP 755722, the former Mullumbimby Hospital site, be classified “operational” under the Local Government Act 1993.”

 

The proposed resolution was publicly advertised on 24 August 2017 and 7 September 2017 in the following terms:

 

CLASSIFICATION OF LAND AT

MULLUMBIMBY TO OPERATIONAL

At its meeting of 3 August 2017 Council resolved

that:

Council give notice for not less than 28 days that

Lot 188 DP 728535 and Lot 1 DP 1159861 and

lot 138 DP 755722, the former Mullumbimby

Hospital site, be classified “operational” under the

Local Government Act 1993.

Any objections to this land being classified as

operational should be forwarded to the General

Manager by 20 September 2017.

Submissions close: 4.00pm 20 September 2017

Enquiries: Mark Arnold 02 6626 7000

 

No objections were received.

 

On 23 August 2018 Council resolved to purchase the Mullumbimby War Memorial Hospital site

from Health Administration Corporation on the terms and conditions set out in the contract submitted by the Health Administration Corporation but subject to amendments being made to the contract.

 

Council authorised the General Manager to take all steps necessary to enter into the contract, as amended, and to sign and counter-sign all documents associated with the purchase of the site, including the affixing of the Council seal to all documents that may require it.

 

A Project Reference Group has been formed with 21 members (including 4 councillors) with the purpose of providing advice and recommendations to Council on the best outcome for the site, considering the wellbeing of the whole community, the environment and future generations.  Their core value is to create benefit and collective wellbeing for the whole community.

 

The PRG seek to ensure that what happens on the site is community initiated and implemented however this does not preclude members of the business community.

 

PRG members are keen to explore all ideas that a) do no harm b) contribute to all four aspects of a QBL approach and as such are not opposed to commercial activity that is fit for purpose

 

 

In order to ensure that the remediation costs are recouped it is essential that the capacity for income generation from some activities based at the site is not excluded. There is strong community and PRG support to realise the social, environmental, civic and economic potential of the site and to ensure financial sustainability and guarantee that future generations are not financially burdened.

 

On 23 August 2018 Council also resolved to authorise borrowings through an Expression of

Interest (EOI) process prior to 30 June 2019 to fund demolition and other associated costs.

 

Council also resolved that Council should endeavour to recover its costs of demolition and any other associated costs as soon as possible to retire the loan borrowings and mitigate the financial risk of this project.

 

Council, in resolving as it did on 23 August 2018, considered that Council ought be free to:

 

(a)     Earn income from the property to pay for the property’s remediation;

 

(b)     Earn any other income from the property, provided this income is reinvested into the property; or

 

(c)     Sell or lease some or all of the property.

 

Council also considered the proposed uses of the site. They are:

 

·        affordable housing

·        centre-based child care facilities

·        commercial premises

·        community facilities

·        early education and care facilities

·        educational establishments

·        environmental facilities

·        function centres

·        group homes

·        information and education facilities

·        markets

·        mixed use development

·        public land

·        recreation areas

·        recreation facilities

·        residential care facilities

·        respite day care centres

·        schools

·        school-based child care

·        seniors housing; and/or

·        any other use which, in the purchaser’s reasonable opinion, has similar characteristics to the above uses.

 

For Council to deal with the land and to use the land in accordance with the purposes listed above (and as referred to in the contract for the sale and purchase of the land) it is necessary that the land classification be “operational land”.

 

In addition, the land ought to be classified as operational land given that the Catholic Healthcare Ltd facility is commercially operated on the land. The facility has the benefit of a lease for operation on the land until the end of 2022. As such the sale to Council is subject to Council agreeing to allow Catholic Healthcare Ltd to continue occupation of the property under the same terms as the existing leases – until they expire.

 

Clause 4.4 of the contract for sale and purchase binds Council to a Deed regarding that part of the land presently occupied by Catholic Healthcare Ltd. The Deed provides that upon acquisition of the land Council will promptly arrange for the land to be subdivided to create a separate Lot for the part of the land subject to the leases.

 

Financial Implications

 

The resource implications of carrying out the recommendation for the classification of the land are minor.

 

The ‘Operational Land’ classification would maximise the options for the use of the property, with no restrictions on leasing of the site. The Deed requires Council to suddivide lease expiring in 2022 for the operation of the Coolamon Villa Aged care facility. This lease would replace the current lease in place for the same period.

 

This special condition special in the contract for sale regarding Catholic Healthcare Ltd is best managed under the ‘Operational land’ classification.

 

Statutory and Policy Compliance Implications

 

The Local Government Act provides that all Council land be classified and that there are two classifications: operational and community.

 

The Act provides that before council acquires land, or within 3 months after it acquires land,   council may resolve that the land be classified as community land or operational land.

 

Any land acquired by council that is not classified is, at the end of the period of 3 months after it acquires land, taken to have been classified under a local environmental plan as community land.

 

How public land is classified determines the ease or difficulty a council can have dealings in public land, including its sale, leasing or licensing. It also provides for transparency in council’s strategic asset management or disposal of public land.

 

The general position is that there are no special restrictions on councils' powers to manage, develop or dispose of operational land, subject to the provisions of relevant environmental planning instruments (i.e. Local Environmental Plans).

 

Community land on the other hand cannot be sold or otherwise disposed of by council. There are also restrictions on the use of community land (through Plans of Management), on the grant of leases and licences (not more than 21 years and only more than 5 years if public notice is given) and disposal (cannot be sold).

 

Community land would ordinarily comprise land such as a public park.

 

Operational land can later be reclassified as community land by council resolution, after public submissions have been considered.

 

Local Government Act

 

25   All public land must be classified

 

All public land must be classified in accordance with this Part.

 

26   What are the classifications?

 

There are 2 classifications for public land—“community” and “operational”.

 

27   How are the classifications made?

 

(1)     The classification or reclassification of public land may be made by a local environmental plan.

 

(2)     The classification or reclassification of public land may also be made by a resolution of the council under section 31, 32 or 33.

 

31   Classification of land acquired after 1 July 1993

 

(1)     This section applies to land that is acquired by a council after the commencement of this Division, other than:

 

(a)     land to which the Crown Lands Act 1989 applied before the acquisition and continues to apply after the acquisition, and

(b)     land that is acquired for the purpose of a road.

 

(2)     Before a council acquires land, or within 3 months after it acquires land, a council may resolve (in accordance with this Part) that the land be classified as community land or operational land.

 

(2A) Any land acquired by a council that is not classified under subsection (2) is, at the end of the period of 3 months referred to in that subsection, taken to have been classified under a local environmental plan as community land.

 

34   Public notice to be given of classification or reclassification by council resolution

 

(1)     A council must give public notice of a proposed resolution to classify or reclassify public land.

 

(2)     The public notice must include the terms of the proposed resolution and a description of the public land concerned.

 

(3)     The public notice must specify a period of not less than 28 days during which submissions may be made to the council.

 

35   What governs the use and management of community land?

 

Community land is required to be used and managed in accordance with the following:

 

•        the plan of management applying to the land

 

•        any law permitting the use of the land for a specified purpose or otherwise regulating the use of the land

 

•        this Division.

 

 

 


BYRON SHIRE COUNCIL

Staff Reports - General Manager                                                                                 13.2

 

 

Report No. 13.2           Consolidation of 12 Lots in DP 4974 into two new Lots

Directorate:                 General Manager

Report Author:           Deanna Savage, Roads and Property Officer

File No:                        I2018/1527

Theme:                         Corporate Management

                                      Corporate Services

 

 

Summary:

 

To enable works, funded by the Stronger Country Communities Fund Grant, to be carried out to the Bangalow Heritage House in accordance with development consent 10.2017.598.1, Council is required to consolidate all separate parcels of land, which the House spans, into one single allotment.

 

It is recommended that Council consider that part Lots 1-5 Section 12 in DP 4974 be consolidated into one lot with all remaining land consolidated into a second lot.

 

 

  

 

RECOMMENDATION:

1.       That Council endorse the Consolidation of twelve (12) Lots into two (2) allotments with the first allotment to cover part of Lots 1-5 and the second allotment to cover all remaining land as per image 1 for the purposes of complying with condition 21 of development consent 10.2017.598.1.

 

2.      That Council allocate a budget of $8,000, with funding provided from the Property Development Reserve, to fund the work required for the consolidation of 12 lots in DP 4974 into two new lots.

                                                                                                                                                           

 

 

Attachments:

 

1        Bangalow Historical Society - 10.2017.598.1 - Notice of Determination - Approval, A2018/5141  

 

 


 

Report

 

Background:

 

The Bangalow Heritage House building currently spans part of three separately registered land parcels being part of Lots 3-5 in Section 12 DP 4974.  All parcels being Byron Shire Council community land.

 

On 23 February 2018 the Bangalow Heritage Society was granted development consent 10.2017.598.1 for the alteration and additions to the existing Heritage House Museum and Restaurant/Tea Rooms. The works are fully funded by a Stronger Country Communities Fund grant.

 

Condition 21 of development consent 10.2017.598.1 requires that:

All separate parcels of land are to be consolidated into one allotment and registered with the NSW Department of Lands.

 

To enable a construction certificate to be issued for the development, Council needs to comply with condition 21 of development consent 10.2017.598.1.

 

It is recommended that the best option for the consolidation was to consolidate twelve (12) Lots into two (2) allotments with the first allotment to cover part of Lots 1-5 and the second allotment to cover all remaining land.  The advantage of this option is a lease for a term exceeding three years can be registered over the first allotment with the second allotment wholly containing the car park and other land for community use.

 

Image 1

 

 

Financial Implications

 

As outlined above the works being undertaken to Bangalow Heritage Society development consent 10.2017.598.1 are being fully funded by a Stronger Country Communities Fund grant.  The funds granted will not extend to the consolidation of the parcels of land into 2 lots.  It is estimated that a budget of $8,000 will be required to complete the work to consolidation of 12 lots in DP 4974 into two new lots. Funding for the required $8,000 can be provided by the Property Development Reserve should Council approve the consolidation of lots as indicated in this report.

 

Statutory and Policy Compliance Implications

 

The site is subject to the Generic Plan of Management for Community Land Categorised as General Community Use – Community Facilities.

 

Local Government Act 1993

 


BYRON SHIRE COUNCIL

Staff Reports - General Manager                                                                                 13.3

 

 

Report No. 13.3           Lease for Massinger Street treehouse

Directorate:                 General Manager

Report Author:           Paula Telford, Leasing and Licensing Coordinator

File No:                        I2018/1685

Theme:                         Corporate Management

                                      Corporate Services

 

 

Summary:

 

Council resolved (18-271) to advertise a proposed twelve month lease to Ms Coppin over an unused portion of road reserve adjoining 77 Massinger Street Byron Bay.  Council also resolved that if submissions were received then Council must consider the submissions and determine whether to grant the lease. Council received two submissions as a result of the public notice.

 

The resolution also required Ms Coppin to provide requisite insurance, an engineering certificate attesting to the structural integrity of the treehouse structure and an arborist report. Ms Coppin has provided all three documents that validated the structural integrity of the treehouse, confirmed the trees appeared to be healthy and evidenced public liability insurance over the treehouse.

 

Staff recommend that Council, after considering all submissions received, grants a twelve month lease to Ms Coppin over the unused public road being that part of the public road adjoining the property at 77 Massinger Street Byron Bay.

 

  

 

RECOMMENDATION:

1.       That Council consider all submissions received in attachment 4 (E2018/72737) from the public notice on the proposed lease to Ms Coppin over an unused portion of road reserve adjoining 77 Massinger Street Byron Bay; and

 

2.       That Council consider documents provided by Ms Coppin in attachments 1 to 3 (E2018/72552, E2018/72554, E2018/72557); and

 

3.       That Council delegate the General Manager authority to enter into a twelve month lease over the unused public road being that part of the public road adjoining the property at 77 Massinger Street Byron Bay in accordance with s153(1) of the Roads Act 1993 (NSW). 

 

 

Attachments:

 

1        Confidential - Insurance policy - Childrens treehouse lease to Mell Coppin, E2018/72552  

2        Structural Engineers Certificate: Lease treehouse to Mell Coppin 77 Massinger St, E2018/72554  

3        Aborist report: Lease treehouse to Mell Coppin 77 Massinger St, E2018/72557  

4        Submissions on proposed lease for treehouse 77 Massinger St Byron Bay, E2018/72737  

 

 


 

Report

 

Council resolved (18-271) on 19 April 2018:

 

1.       By close of business on Thursday, 31 May 2018 Ms Coppin of 77 Massinger Street Byron Bay provide Council with the following:

a.       evidence by way of a Certificate of Currency that Public Liability Insurance coverage to the value of $20 million has been effected in respect of the structure.

b.       evidence by way of an engineering certificate attesting to the structural integrity of the structure;

c.       evidence by way of an arborist report attesting to the health of the trees where the structure is located

 

2.       That on compliance with all components of 1 above Council, for a period of 28 days, advertise its intention to grant Ms Coppin a 12 month lease over the unused public road being that part of the public road adjoining the property at 77 Massinger Street Byron Bay at a rental of $1 per annum.

 

3.       In the event that there are no submissions Council delegate to the General Manager authority to enter into the lease referred to in 2 above, or in the event that submissions are made all submissions received be reported to Council for consideration.

 

4.       That when approval is granted Council withdraw all directions to remove the structure.

 

5.       That enforcement action in respect directions presently issued be stayed until the happening of either of the events in 3 above, whichever shall first occur.

 

In complying with resolution (18-172):

 

Ms Coppin provided Council with:

 

a)      public liability insurance current to 31 March 2019 for $20 million Confidential attachment 1 (E2018/72552);

b)      structural engineers certificate validating the structural building integrity of the structure for  a period of two years Attachment 2 (E2018/72554); and

c)      an arborist report confirming appeared health of both trees and recommended ongoing inspection every 12-24 months Attachment 3 (E2018/72557).

 

In accordance with s154 (1) of the Roads Act 1993 (NSW) the proposed lease was advertised for a period of 28 days between 2 and 30 August 2018. Council received two submissions which form Attachment  4. These submissions are not the subject of a confidential attachment because it was advised in the advertising that submissions received would be made public. They have been redacted to remove personal contact detail.

 

The submissions are summarised below:

 

Submission

Council reply

1.   Without a constructed footpath the submission asked if the pedestrian access across the land in front of 77 Massinger Street would remain open due to Massinger Street becoming a major bypass from the southern side of town to access the CBD.  As a consequence of road use and narrowness of the road it is not safe to walk on the road way.  If Council’s intends to close the informal footpath than the submitter would not agree to the lease. (E2018/68124)

 

·    The proposed lease is over a section of unused road reserve that the tree house is constructed between two existing street trees.  The leased area will not prevent or obstruct pedestrian access through that portion of unused road reserve. 

2.   The submission supports the retention of the treehouse and requests Council executes the lease and immediately withdraw any directions to remove the treehouse.(E2018/69126)

·    Council staff has recommended the lease be granted.

·    Council staff complied with resolution18-271/5.

 

As Council received no objections to the granting of a lease over an unused portion of road reserve

adjoining 77 Massinger Street and that Ms Coppin has provided all documents as required by resolution 18-271, Council staff recommend that Council, after considering all submissions received, grant Ms Coppin a 12 month lease over the unused public road being that part of the public road adjoining the property at 77 Massinger Street Byron Bay in accordance with s153(1) of the Roads Act 1993 (NSW). 

 

Financial Implications

 

In accordance with resolution 18-271 the twelve month lease is provided at $1 per annum rent.

 

Statutory and Policy Compliance Implications

 

Roads Act 1993 (NSW)

 

153   Short-term leases of unused public roads

(1)     A roads authority may lease land comprising a public road (other than a Crown road) to the owner or lessee of land adjoining the public road if, in its opinion, the road is not being used by the public.

(2)     However, a lease may not be granted under this Division with respect to land that has been acquired by RMS under Division 3 of Part 12 (being land that forms part of a classified road) except by RMS.

(3)     A lease granted under this Division may be terminated by the roads authority at any time and for any reason.

 

154   Public notice to be given of proposed lease

(1)     Before granting a lease under this Division, the roads authority must cause notice of the proposed lease:

(a)     to be published in a local newspaper, and

(b)     to be served on the owner of each parcel of land adjoining the length of public road concerned.

(2)     The notice:

(a)     must identify the public road concerned, and

(b)     must state that any person is entitled to make submissions to the roads authority with respect to the proposed lease, and

(c)     must indicate the manner in which, and the period (being at least 28 days) within which, any such submission should be made.

 

156   Decision on proposed lease

(1)     After considering any submissions that have been duly made with respect to the proposed lease, the roads authority may grant the lease, either with or without alteration, or may refuse to grant the lease.

(2)     If the roads authority grants a lease, the roads authority must cause notice of that fact to be published in a local newspaper.

 

157   Special provisions with respect to short-term leases

 

(1)     The term of a lease, together with any option to renew, must not exceed:

(a)     except as provided by paragraph (b), 5 years, or

(b)     in the case of a lease of land that has been acquired by the roads authority under Division 3 of Part 12, 10 years.

(2)     A person must not erect any structure on land the subject of a lease under this Division otherwise than in accordance with the consent of the roads authority.

Maximum penalty: 10 penalty units.

(3)     Such a consent may not be given unless the roads authority is satisfied that the proposed structure comprises a fence or a temporary structure of a kind that can easily be demolished or removed.

  


BYRON SHIRE COUNCIL

Staff Reports - Corporate and Community Services                                          13.4

 

 

Staff Reports - Corporate and Community Services

 

Report No. 13.4           Election of Deputy Mayor 2018-2019

Directorate:                 Corporate and Community Services

Report Author:           Heather Sills, Corporate Governance Officer

File No:                        I2018/1360

Theme:                         Corporate Management

                                      Councillor Services

 

 

Summary:

 

In accordance with Section 231 of the Local Government Act 1993 Councillors can elect a Deputy Mayor. Normal practice for Byron Shire is to elect their Deputy Mayor for a period of 12 months at the first meeting in September each year.

 

 

  

 

RECOMMENDATION:

1.       That Council elect a Deputy Mayor for the period from 20 September 2018 until the first meeting of Council in September 2019.

 

2.       That the method of election of the Deputy Mayor be by way of ordinary ballot.

 

Attachments:

 

1        Byron Shire Council Nomination Form Deputy Mayor 2018, E2018/60931  

 

 


 

Report

 

In accordance with Section 231 of the Local Government Act 1993, a council may elect a Deputy Mayor to assist the Mayor in the performance of their duties.

 

(1)     The councillors may elect a person from among their number to be the deputy mayor.

 

(2)     The person may be elected for the mayoral term or a shorter term.

 

(3)     The deputy mayor may exercise any function of the mayor at the request of the mayor or if the mayor is prevented by illness, absence or otherwise from exercising the function or if there is a casual vacancy in the office of mayor.

 

(4)     The councillors may elect a person from among their number to act as deputy mayor if the deputy mayor is prevented by illness, absence or otherwise from exercising a function under this section, or if no deputy mayor has been elected.

 

Term of the Deputy Mayor

 

Section 231 (2) of the Local Government Act states:  “The person may be elected for the mayoral term or a shorter term” such as:

 

1.       For a period of 12 months

2.       For the period of the Mayoral Term

3.       For another period determined by Council

 

Returning Officer

 

Schedule 7(1) of the Local Government (General) Regulation 2005 states that the “General Manager (or a person appointed by the General Manager) is the Returning Officer.

 

Nomination

 

Schedule 7(2) of the Local Government (General) Regulation 2005 states that:

 

(1)     A councillor may be nominated without notice for election as mayor or deputy mayor.

 

(2)     The nomination is to be made in writing by 2 or more councillors (one of whom may be the nominee).  The nomination is not valid unless the nominee has indicated consent to the nomination in writing.

 

(3)     The nomination is to be delivered or sent to the returning officer.

 

(4)     The returning officer is to announce the names of the nominees at the council meeting at which the election is to be held.

 

Nomination forms have been provided as an attachment to this business paper.  Any completed nomination forms should be handed to the General Manager prior to the commencement of the Council meeting.

 

Election

 

Schedule 7(3) of the Local Government (General) Regulation 2005 states:

 

(1)     If only one councillor is nominated, that councillor is elected.

 

(2)     If more than one councillor is nominated, the council is to resolve whether the election is to proceed by preferential ballot, by ordinary ballot; or by open voting.

 

(4)     The election is to be held at the Council meeting at which the Council resolves the method of voting.

 

(4)     In this clause:

 

ballot” has its normal meaning of secret ballot;

 

open voting” means voting by a show of hands or similar means.

 

Traditionally this Council has determined that the election for Deputy Mayor should be by ordinary ballot.  The following additional information is provided in respect to an election by preferential ballot and by ordinary ballot.

 

Preferential ballot – as per its normal interpretation, the ballot papers are to contain the names of all candidates and Councillors mark their votes 1, 2, 3 and so on against the various names, so as to indicate their order of preference for all of the candidates.

 

Ordinary ballot – this is the usual method adopted in New South Wales.  Ballots are secret with only one candidate’s name written on a ballot paper.

 

Where there are two candidates, the person with the most votes is elected.  If the ballots for the two candidates are tied, the one to be elected is to be chosen by lots, with the first name out being declared elected.

 

Where there are three or more candidates, the person with the lowest number of votes is eliminated and the process started again until there are only two candidates.  The determination of the election would then proceed as if the two were the only candidates.  In the case of three or more candidates where a tie occurs, the one to be excluded will be chosen by lot.

 

Choosing by Lot – to choose a candidate by lot, the names of the candidates who have equal numbers of votes are written on similar slips of paper by the returning officer, the slips are folded by the returning officer so as to prevent the names being seen, the slips are mixed and one is drawn at random by the returning officer and the candidate whose name is on the drawn slip is chosen, on the basis detailed above.

 

Financial Implications

 

On 12 June 2014, Council resolved (14-304) in part 3:  "That Council in accordance with its current practice not determine a fee payable to the Deputy Mayor."

 

 Section 249(5) of the Local Government Act 1993 states:

 

(5)   A council may pay the deputy mayor (if there is one) a fee determined by the council for such time as the deputy mayor acts in the office of the mayor.  The amount of the fee so paid must be deducted from the mayor’s annual fee.

 

Therefore the Deputy Mayor when acting in the role of Mayor, in instances where the Mayor has leave of absence endorsed by Council, would be paid a fee calculated on a pro-rata basis of the annual Mayoral allowance, which would be deducted from the amount of the monthly Mayoral allowance paid to the Mayor, in accordance with Section 249 of the Local Government Act 1993.

 

Statutory and Policy Compliance Implications

 

The Deputy Mayor will undertake the Mayor’s role at the request of the Mayor and in situations where the Mayor is prevented by illness, absence or other reasons from exercising the functions of the position.  The role of the Mayor is defined by Section 226 of the Local Government Act 1993

Section 226 states that:

 

The role of the mayor is as follows:

 

(a)     to be the leader of the council and a leader in the local community,

 

(b)     to advance community cohesion and promote civic awareness,

 

(c)     to be the principal member and spokesperson of the governing body, including representing the views of the council as to its local priorities,

 

(d)     to exercise, in cases of necessity, the policy-making functions of the governing body of the council between meetings of the council,

 

(e)     to preside at meetings of the council,

 

(f)      to ensure that meetings of the council are conducted efficiently, effectively and in accordance with this Act,

 

(g)     to ensure the timely development and adoption of the strategic plans, programs and policies of the council,

 

(h)     to promote the effective and consistent implementation of the strategic plans, programs and policies of the council,

 

(i)      to promote partnerships between the council and key stakeholders,

 

(j)      to advise, consult with and provide strategic direction to the general manager in relation to the implementation of the strategic plans and policies of the council,

 

(k)     in conjunction with the general manager, to ensure adequate opportunities and mechanisms for engagement between the council and the local community,

 

(l)      to carry out the civic and ceremonial functions of the mayoral office,

 

(m)    to represent the council on regional organisations and at inter-governmental forums at regional, State and Commonwealth level,

 

(n)     in consultation with the councillors, to lead performance appraisals of the general manager,

 

(o)     to exercise any other functions of the council that the council determines.

 


BYRON SHIRE COUNCIL

Staff Reports - Corporate and Community Services                                          13.5

 

 

Report No. 13.5           Report of the Public Art Panel Meeting 3 August,  including proposed amendments to the Public Art Chapter of the Development Control Plan

Directorate:                 Corporate and Community Services

Report Author:           Joanne McMurtry, Community Project Officer

Steve Daniels, Project Officer - Planning Reforms

File No:                        I2018/1436

Theme:                         Society and Culture

                                      Community Development

 

 

Summary:

 

An Public Art Panel meeting was held on 3 August 2018 to consider the selection of an artist for the Bayshore Drive Roundabout Public Art Project; to shortlist artists for the Railway Square Public Art Project; to consider the Brunswick Nature Sculpture Walk event and proposed permanent sculptures; and to consider a proposed amendment to the Public Art Chapter of the Development Control Plan.

 

The Panel made three recommendations to Council. Due to time constraints for the Bayshore Drive Roundabout Public Art Project, a report was provided to Council at the 23 August 2018 meeting to endorse the selection of the artist to commission for the project. The other two recommendations are provided in this report.

 

 

RECOMMENDATION:

That with respect to the Public Art Panel meeting held on 3 August 2018, Council:

 

1.       Note that the Public Art Panel has considered each artwork submission for the Brunswick Nature Sculpture Walk, for consistency with the Council’s Public Art Policy, Strategy and Guidelines and Criteria.

 

2.       Note that the event organisers have engaged structural engineers (Ardill Payne and Partners) to assess the installation of the artworks prior to the event opening and access by the general public.

 

3.       Accept the two proposed permanent artworks as a legacy of the Brunswick Nature Sculpture Walk - Allen Horstmanhoff’s Artefact of Things Past and the Labyrinth in the locations identified, noting that:

 

a)      an agreement has been reached with the artist for the Labyrinth that the artist will maintain the artwork once installed

 

b)      the judges for the permanent acquisition prize, to which Council contributed financially, include members of the Public Art Panel.

 

4.       Note that the Public Art Panel has recommended an amendment to Byron DCP 2014 Chapter D8 – Public Art.

 

5.       Receive a Strategic Planning Workshop to consider the proposed DCP amendment followed by a further report to Council.

 

Attachments:

 

1        Public Art Panel minutes 03082018, E2018/67521

Report

 

A Public Art Panel meeting was held on 3 August 2018 to consider:

 

1.       The selection of an artist for the Bayshore Drive Roundabout Public Art Project;

2.       a shortlist of artists for the Railway Square Public Art Project;

3.       the Brunswick Nature Sculpture Walk event and proposed permanent sculptures; and

4.       a proposed amendment to the Public Art Chapter of the Development Control Plan.

 

A copy of the Agenda for the Public Art Panel meeting of 3 August 2018 can be found at the following link: https://byron.infocouncil.biz/Open/2018/08/PAP_03082018_AGN_823_AT_WEB.htm

 

The Panel made three recommendations to Council. Due to time constraints for the Bayshore Drive Roundabout Public Art Project, a report was provided to Council at the 23 August 2018 meeting to endorse the selection of the artist to commission for the project.

 

The other two recommendations relating to Brunswick Nature Sculpture Walk and an amendment to the Public Art Chapter of the Development Control Plan are provided on the first page of this report.  A recommendation regarding the Railway Square Public Art project will be provided to Council on selection of the final artist for the project later this year.

 

Public Art Chapter of the Development Control Plan

 

The newly adopted Public Art Strategy includes a strategy to “build strength into the Development Control Plan [with regards to public art]”.  The Public Art Panel have considered proposed amendments to Byron Development Control Plan (DCP) 2014 – Chapter D8 Public Art at both the 26 April Public Art Panel meeting and a draft amendment at the 3 August Panel meeting.  

 

The draft amendment proposes the following changes:

 

·        Update to the aims of the Chapter considering the revised Public Art Policy and new Public Art Strategy

·        Updates to Section D8.2.1, including revised developer contribution values, details to be addressed in a Public Art Plan, and design considerations for public art proposals

·        A new section on the requirements for a development application (DA) for the provision of public art

·        A new section on the provision of murals

 

Consequential amendments would also be required to Byron DCP 2014 Part A – Preliminary.  These amendments are minor in nature and include updates to the definition of ‘public art’, and inclusion of a definition of ‘murals’.  The definitions would be taken from the Public Art Policy and new Public Art Strategy.

 

Given the complexities, Staff recommend that a Strategic Planning Workshop be held with Councillors to discuss the proposed amendments to DCP 2010, Chapter D8 - Public Art.  The draft amendment proposes significant changes to the existing chapter which need to be fully understood and considered by Council. Following the Strategic Planning Workshop, it is recommended that Council receive a further report to consider the draft amendment and public exhibition of the amendment.

 

Financial Implications

 

The Public Art Panel did not make any recommendations this meeting to spend any public art funds.

 

 

Statutory and Policy Compliance Implications

 

Public Art Policy, Public Art Strategy and Public Art Guidelines and Criteria.

 

 


BYRON SHIRE COUNCIL

Staff Reports - Corporate and Community Services                                          13.6

 

 

Report No. 13.6           Investments August 2018

Directorate:                 Corporate and Community Services

Report Author:           James Brickley, Manager Finance

File No:                        I2018/1593

Theme:                         Corporate Management

                                      Financial Services

 

 

Summary:

 

This report includes a list of investments and identifies Council’s overall cash position for the month of August 2018 for Council’s information. 

 

This report is prepared to comply with Regulation 212 of the Local Government (General) Regulation 2005.

 

 

  

 

RECOMMENDATION:

That the report listing Council’s investments and overall cash position as at 31 August 2018 be noted.

 

 

 


 

Report

 

In relation to the investment portfolio for the month of August 2018, Council has continued to maintain a diversified portfolio of investments. At 31 August 2018, the average 90 day bank bill rate (BBSW) for the month of August was 1.96%. Council’s performance to 31 August 2018 is 2.72% Council’s performance is again higher than the benchmark. This is largely due to the active ongoing management of the investment portfolio, maximising investment returns through secure term deposits and purchasing floating rate notes with attractive interest rates.

 

The table below identifies the investments held by Council as at 31 August 2018:

 

Schedule of Investments held as at 31 August 2018

 

Purch Date

Principal ($)

Description

CP*

Rating

Maturity Date

No Fossil Fuel  ADI

Type

Interest Rate Per Annum

Current Value

28/10/16

650,000

Teachers Mutual Bank

Y

BBB+

28/10/19

Y

FRN

3.17%

655,144.56

 

24/03/17

1,000,000

NAB Social Bond (Gender Equality)

Y

AA-

24/03/22

N

B

3.25%

1,017,387.17

31/03/17

1,000,000

CBA Climate Bond

Y

AA-

31/03/22

N

FRN

3.25%

1,000,000.00

16/11/17

750,000

Bank of Queensland

Y

BBB+

16/11/21

N

FRN

2.63%

750,000.00

30/08/18

500,000

Bank Australia Ltd (Sustainability Bond)

Y

BBB+

30/08/21

Y

FRN

3.26%

500,000.00

06/03/18

2,000,000

My State Bank

Y

BBB

06/09/18

Y

TD

2.65%

2,000,000.00

06/03/18

1,000,000

Bananacoast Credit Union

Y

NR

06/09/18

Y

TD

2.60%

1,000,000.00

16/03/18

1,000,000

The Capricornian Credit Union

Y

NR

17/09/18

U

TD

2.80%

1,000,000.00

04/04/18

2,000,000

Police Credit Union Limited (SA)

Y

NR

03/10/18

Y

TD

2.86%

2,000,000.00

04/04/18

1,000,000

NAB

N

AA-

04/10/18

N

TD

2.60%

1,000,000.00

05/04/18

1,000,000

AMP Bank

Y

A

02/10/18

N

TD

2.60%

1,000,000.00

05/04/18

1,000,000

Police Credit Union Limited (SA)

N

NR

02/10/18

Y

TD

2.85%

1,000,000.00

16/04/18

1,000,000

The Capricornian Credit Union

N

NR

17/09/18

U

TD

2.74%

1,000,000.00

17/04/18

1,000,000

Police Credit Union Limited (SA)

N

NR

17/10/18

Y

TD

2.94%

1,000,000.00

02/05/18

2,000,000

Police Credit Union Limited (SA)

N

NR

30/10/18

Y

TD

2.83%

2,000,000.00

02/05/18

1,000,000

Maitland Mutual Building Society

Y

NR

29/10/18

Y

TD

2.83%

1,000,000.00

15/05/18

1,000,000

Maitland Mutual Building Society

N

NR

15/10/18

Y

TD

2.85%

1,000,000.00

17/05/18

1,000,000

Hunter United Employees Credit Union

Y

NR

17/09/18

U

TD

2.80%

1,000,000.00

23/05/18

1,000,000

The Capricornian Credit Union

N

NR

23/11/18

U

TD

2.85%

1,000,000.00

24/05/18

1,000,000

ME Bank

Y

BBB

21/09/18

Y

TD

2.60%

1,000,000.00

28/05/18

1,000,000

B & E Ltd (Bank of Us)

Y

NR

28/11/18

U

TD

2.85%

1,000,000.00

30/05/18

1,000,000

Maitland Mutual Building Society

N

NR

11/09/18

Y

TD

2.80%

1,000,000.00

30/05/18

1,000,000

AMP Bank

N

A

25/02/19

N

TD

2.80%

1,000,000.00

01/06/18

1,000,000

Police Credit Union Limited (SA)

N

NR

21/09/18

Y

TD

2.82%

1,000,000.00

05/06/18

1,000,000

NAB

N

AA-

03/10/18

N

TD

2.70%

1,000,000.00

08/06/18

2,000,000

ME Bank

N

BBB

07/12/18

Y

TD

2.84%

2,000,000.00

08/06/18

1,000,000

Suncorp

Y

A

09/10/18

Y

TD

2.82%

1,000,000.00

12/06/18

1,000,000

Bankwest

Y

AA-

12/09/18

N

TD

2.70%

1,000,000.00

14/06/18

2,000,000

Suncorp

N

A

12/09/18

Y

TD

2.75%

2,000,000.00

15/06/18

1,000,000

Suncorp

N

A

15/10/18

Y

TD

2.80%

1,000,000.00

18/06/18

2,000,000

Beyond Bank

Y

BBB

18/12/18

Y

TD

2.75%

2,000,000.00

18/06/18

1,000,000

Gateway Credit Union

Y

NR

18/12/18

Y

TD

2.90%

1,000,000.00

26/06/18

1,000,000

Bankwest

N

AA-

24/09/18

N

TD

2.80%

1,000,000.00

03/07/18

1,000,000

B & E Ltd (Bank of Us)

N

NR

31/10/18

U

TD

3.00%

1,000,000.00

04/07/18

2,000,000

ME Bank

N

BBB

27/09/18

Y

TD

2.70%

2,000,000.00

04/07/18

1,000,000

NAB

N

AA-

08/10/18

N

TD

2.57%

1,000,000.00

05/07/18

1,000,000

Hunter United Employees Credit Union

N

NR

03/10/18

U

TD

2.90%

1,000,000.00

05/07/18

1,000,000

NAB

N

AA-

03/10/18

N

TD

2.76%

1,000,000.00

09/07/18

1,000,000

Beyond Bank

N

BBB

10/12/18

Y

TD

2.75%

1,000,000.00

23/07/18

1,000,000

AMP

N

A

21/01/19

N

TD

2.80%

1,000,000.00

23/07/18

1,000,000

NAB

N

AA-

22/10/18

N

TD

2.68%

1,000,000.00

23/07/18

1,000,000

Bankwest

N

AA-

22/10/18

N

TD

2.65%

1,000,000.00

24/07/18

1,000,000

ME Bank

N

BBB

22/10/18

Y

TD

2.73%

1,000,000.00

30/07/18

2,000,000

ME Bank

N

BBB

29/10/18

Y

TD

2.73%

2,000,000.00

01/08/18

1,000,000

Defence Bank

Y

BBB

30/01/19

U

TD

2.75%

1,000,000.00

01/08/18

2,000,000

Bankwest

N

AA-

30/10/18

N

TD

2.65%

2,000,000.00

01/08/18

1,000,000

Bank Vic

Y

NR

30/10/18

Y

TD

2.82%

1,000,000.00

03/08/18

2,000,000

AMP

N

A

30/01/19

N

TD

2.80%

2,000,000.00

03/08/18

1,000,000

B & E Ltd (Bank of Us)

N

NR

02/11/18

U

TD

2.80%

1,000,000.00

06/08/18

2,000,000

NAB

N

AA-

05/11/18

N

TD

2.67%

2,000,000.00

07/08/18

1,000,000

Gateway Credit Union

N

NR

07/12/18

Y

TD

2.78%

1,000,000.00

07/08/18

2,000,000

ME Bank

N

BBB

04/02/19

Y

TD

2.70%

2,000,000.00

07/08/18

1,000,000

Coastline Credit Union

Y

NR

05/11/18

U

TD

2.80%

1,000,000.00

08/08/18

1,000,000

AMP

N

A

08/02/19

N

TD

2.80%

1,000,000.00

13/08/18

1,000,000

Bank of Us

N

NR

12/11/18

U

TD

2.75%

1,000,000.00

15/08/18

1,000,000

Police Credit Union Limited (SA)

N

NR

15/11/18

Y

TD

2.70%

1,000,000.00

20/08/18

1,000,000

Maitland Mutual Building Society

N

NR

19/11/18

Y

TD

2.70%

1,000,000.00

22/08/18

1,000,000

Suncorp

N

A+

22/08/18

Y

TD

2.65%

1,000,000.00

30/08/18

1,000,000

Suncorp

N

A+

28/11/18

Y

TD

2.65%

1,000,000.00

30/08/18

2,000,000

NAB

N

AA-

14/12/18

N

TD

2.63%

2,000,000.00

31/08/18

2,000,000

Suncorp

N

A+

31/08/18

Y

TD

2.65%

2,000,000.00

N/A

2,082,036

CBA Business Online Saver

N

A

N/A

N

CALL

1.40%

2,082,036.39

12/01/18

1,012,903

NSW Treasury Corp

Y

AAA

N/A

Y

CALL

2.16%

1,012,903.22

Total

76,994,939                                                                                                                                                                             

 

 

 

 

 

AVG

2.72%

77,017,471.34

 

Note 1.

CP = Capital protection on maturity

 

N = No Capital Protection

 

Y = Fully covered by Government Guarantee

 

P = Partial Government Guarantee of $250,000 (Financial Claims Scheme)

 

 

Note 2.

No Fossil Fuel ADI

 

Y = No investment in Fossil Fuels

 

N = Investment in Fossil Fuels

 

U = Unknown Status

 

Note 3.

Type

Description

 

 

B

Bonds

Principal can vary based on valuation, interest payable via a fixed interest, payable usually each quarter.

 

FRN

Floating Rate Note

Principal can vary based on valuation, interest payable via a floating interest rate that varies each quarter.

 

TD

Term Deposit

Principal does not vary during investment term. Interest payable is fixed at the rate invested for the investment term.

 

CALL

Call Account

Principal varies due to cash flow demands from deposits/withdrawals, interest is payable on the daily balance.

 

Environmental and Socially Responsible Investing

 

An additional column has been added to the schedule of Investments above, to identify if the financial institution holding the Council investment, has been assessed as a ‘No Fossil Fuel’ investing institution.  This information has been sourced through www.marketforces.org.au and identifies financial institutions that either invest in fossil fuel related industries or do not.  The graph below highlights the percentage of each classification across Council’s total investment portfolio in respect of fossil fuels only.

 

The notion of Environmental and Socially Responsible Investing is much broader than whether a financial institution as rated by ‘marketforces.org.au’ invests in fossil fuels or not.  Council’s current Investment Policy defines Environmental and Socially Responsible Investing at Section 4.1 of the Policy.  Council’s Investment Policy can be found at Council’s website via the following link:

 

https://www.byron.nsw.gov.au/Council/Your-right-to-Council-information/Policies?dlv_OC%20CL%20Public%20DocLib%20Relative=(pageindex=6)

 

 

In this regard Council has an additional two investments that are with financial institutions that invest in fossil fuels but the purposes of the investments are in accord with the broader definition of Environmental and Socially Responsible investments as indicated below:

 

1.  $1,000,000 investment with the National Australia Bank maturing on 24 March 2022 known as a Social Bond that promotes Gender Equity.

2.  $1,000,000 investment with Commonwealth Bank maturing on 31 March 2022 known as a Climate Bond.

 

New Sustainable Investment

 

Council on 21 August 2018 secured interest in a new investment by Bank Australia known as a ‘Sustainability Bond’. The investment is for a three year period that settled on 30 August 2018. It will pay a return to Council on a floating basis at a rate established each quarter by the three month bank bill swap rate plus a fixed margin of 1.30%. This rate is currently around 3.25% per annum.

 

The investment offer from Bank Australia will use the proceeds from investors to fund the following:

 

• Loans to not for profit organisations and specialist accommodation housing.

• Loans for affordable housing.

• Loans for the construction of green buildings.

• Loans for conservation backed construction.

• Ongoing mortgage loans for energy efficient homes.

 

The Sustainability Bond offer from Bank Australia was originally a total investment pool of $100million. It was expanded to $125million but offers exceeded $250million. As the investment was oversubscribed, Council sought a $1million investment into the Sustainability Bond but was allocated $500,000.

 

For the month of August 2018, as indicated in the table below, there is a dissection of the investment portfolio by investment type:

 

Dissection of Council Investment Portfolio as at 31 August 2018

 

Principal Value ($)

Investment Linked to:-

Current Market Value ($)

Cumulative Unrealised Gain/(Loss) ($)

70,000,000.00

Term Deposits

70,000,000.00

0.00

2,900,000.00

Floating Rate Note

2,905,144.56

5,144.56

2,082,036.39

Business On-Line Saver (At Call)

2,082,036.39

0.00

1,012,903.22

NSW Treasury Corp (T Corp)

1,012,903.22

0.00

1,000,000.00

Bonds

1,017,387.17

17,387.17

76,994,939.61

 

77,017,471.34

22,531.73

 

The current value of an investment compared to the principal value (face value or original purchase price) provides an indication of the performance of the investment without reference to the coupon (interest) rate. The current value represents the value received if an investment was sold or traded in the current market, in addition to the interest received.

 

The table below provides a reconciliation of investment purchases and maturities for month of August 2018 on a current market value basis. 

 

Movement in Investment Portfolio – 31 August 2018

Item

Current Market  Value (at end of month) $

Opening Balance at 31 July 2018

73,513,731.83

Add: New Investments Purchased

23,500,000.00

Add: Call Account Additions

1,000,000.00

Add: Interest from Call Account

1,898.03

Less: Investments Matured

20,000,000.00

Add: T Corp Additions

0.00

Add: Interest from T Corp

1,841.48

Less: Call Account Redemption

1,000,000.00

Add: Fair Value Movement for period

0.00

 

Closing Balance at 31 August 2018

77,017,471.34

 

 

 

 

Investments Maturities and Returns – August 2018

 

Principal Value ($)

Description

Type

Maturity Date

Number of Days Invested

Interest Rate Per Annum

Interest Paid on Maturity $

2,000,000

NAB

TD

06/08/18

9191

2.64%

13,163.85

2,000,000

NAB

TD

30/08/18

122

2.64%

17,648.22

2,000,000

ME Bank

TD

07/08/18

91

2.60%

12,964,38

1,000,000

Banana Coast Credit Union

TD

07/18/18

153

2.55%

10,689.04

1,000,000

Defence Bank

TD

01/08/18

153

2.50%

10,479,45

2,000,000

AMP

TD

03/08/18

184

2.60%

26,213.70

1,000,000

Rural Bank

TD

02/08/18

181

2.62%

12,992,33

1,000,000

Gateway Credit Union

TD

07/08/18

182

2.55%

12,715,07

1,000,000

AMP

TD

08/08/18

181

2.60%

12,893,15

1,000,000

Police Credit Union SA

TD

15/08/18

181

2.61%

12,942.74

1,000,000

ME Bank

TD

27/08/18

91

2.60%

6,482.19

1,000,000

Coastline Credit Union

TD

07/08/18

90

2.80%

6,904.11

1,000,000

Maitland Mutual Building Society

TD

15/08/18

92

2.85%

7,183.56

1,000,000

Maitland Mutual Building Society

TD

20/08/18

82

2.80%

6,290.41

1,000,000

Maitland Mutual Building Society

TD

20/08/18

81

2.80%

6,213.70

1,000,000

Suncorp

TD

30/08/18

90

2.65%

6,534.25

20,000,000

 

 

 

 

 

182,446.77

 

The overall ‘cash position’ of Council is not only measured by what funds Council has invested but also by what funds Council has retained in its consolidated fund or bank account as well for operational purposes. In this regard, for the month of August 2018 the table below identifies the overall cash position of Council as follows:

 

Dissection of Council Cash Position as at 31 August 2018

 

Item

Principal Value ($)

Current Market Value ($)

Cumulative Unrealised Gain/(Loss) ($)

Investments Portfolio

 

 

 

Term Deposits

70,000,000.00

70,000,000.00

0.00

Floating Rate Note

2,900,000.00

2,905,144.56

5,144.56

Business On-Line Saver (At Call)

2,082,036.39

2,082,036.39

0.00

NSW Treasury Corp (T Corp)

1,012,903.22

1,012,903.22

0.00

Bonds

1,000,000.00

1,017,387.17

17,387.17

Total Investment Portfolio

76,994,939.61

77,017,471.34

22,531.73

 

 

 

 

Cash at Bank

 

 

 

Consolidated Fund

2,561,749.59

2,561,749.59

  0.00

Total Cash at Bank

2,561,749.59

2,561,749.59

  0.00

 

 

 

 

Total Cash Position

79,556,689.20

79,579,220.93

22,531.73

 

Financial Implications

 

Council uses a diversified mix of investments to achieve short, medium and long-term results

 

Statutory and Policy Compliance Implications

 

In accordance with Regulation 212 of the Local Government (General) Regulation 2005, the Responsible Accounting Officer of Council must provide Council with a monthly report detailing all monies Council has invested under section 625 of the Local Government Act 1993.

 

The Report must be presented at the next Ordinary Meeting of Council after the end of the month being reported.  In this regard, the current Council Meeting cycle does not always allow this to occur, especially when investment valuations required for the preparation of the report, are often received after the deadline for the submission of reports for the meeting.  Endeavours will be made to ensure the required report will be provided to Council and this will for some months require reporting for one or more months.

 

Council’s investments are carried out in accordance with section 625(2) of the Local Government Act 1993 and Council’s Investment Policy. The Local Government Act 1993 allows Council to invest money as per the Ministers Order – Forms of Investment, last published in the Government Gazette on 11 February 2011.

 

Council’s Investment Policy includes the objective of maximising earnings from authorised investments and ensuring the security of Council Funds.

 

 

  


BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy                                   13.7

 

 

Staff Reports - Sustainable Environment and Economy

 

Report No. 13.7           PLANNING - Development Application 10.2017.683.1 Stage 1: Boundary Adjustment Subdivision to Create Two (2) Lots and Demolition of Existing Swimming Pool. Stage 2: Alterations and Additions to Existing Dwelling House and New Driveway on Proposed Lot 1, New Dwelling House and Studio above Existing Garage on Proposed Lot 2 at 2 Tincogan Street, Mullumbimby

Directorate:                 Sustainable Environment and Economy

Report Author:           Luke  Munro , Planner

Noreen Scott, EA Sustainable Environment and Economy

File No:                        I2018/1049

Theme:                         Ecology

                                      Development and Approvals

 

 

Proposal description:

Stage 1: Boundary Adjustment Subdivision to Create Two (2) Lots and Demolition of Existing Swimming Pool. Stage 2: Alterations and Additions to Existing Dwelling House, New Dwelling House and Studio above Existing Garage on Proposed Lot 2

Property description:

LOT: 2 DP: 303076, LOT: 3 DP: 303076

2 Tincogan Street MULLUMBIMBY

Parcel No/s:

214960, 93830

Applicant:

Ardill Payne & Partners

Owner:

Mr B Buckle & Ms T Vickers

Zoning:

R2 Low Density Residential

Date received:

30 November 2017

Integrated Development:

No

Public notification or exhibition:

-    Level 1 advertising under DCP 2014 Part A14 – Public Notification and Exhibition of Development Applications

-    Exhibition period:

This DA was previously exhibited from 14 December 2017 to 10 January 2018 and was re-exhibited due to the holiday season for an additional period from 25 January 2018 to 7 February 2018

-    Submissions received: 2

Planning Review Committee:

22.02.2018 - to be determined by Council

Delegation to determination:

Council

Issues:

·    Heritage Item

Summary:

Development consent is sought for Stage 1: Boundary Adjustment Subdivision to Create Two (2) Lots and Demolition of Existing Swimming Pool. Stage 2: Alterations and Additions to Existing Dwelling House, New Dwelling House and Studio above Existing Garage on Proposed Lot 2 located at 2 Tincogan Street, Mullumbimby.

 

The re-subdivision of the land from two lots into two lots relies upon a variation to the minimum lot size requirements of 600m2 under Clause 4.6 of Byron LEP 2014. The circumstances of the case warrant a flexible approach to application of the minimum lot size given the site currently comprises two existing lots of approximately 418m2 each. The applicant’s variation request is supported and the development application is recommended for approval.

 

The proposed development is not inconsistent with the provisions of the Byron LEP 2014 and DCP 2014 and is unlikely impact on the existing residential amenity or heritage character of the neighbourhood. It is recommended that the application be approved subject to conditions of consent.

 

 

NOTE TO COUNCILLORS:

 

In accordance with the provisions of S375A of the Local Government Act 1993, a Division is to be called whenever a motion for a planning decision is put to the meeting, for the purpose of recording voting on planning matters.  Pursuant to clause 2(a) under the heading Matters to be Included in Minutes of Council Meetings of Council's adopted Code of Meeting Practice (as amended) a Division will be deemed to have been called by the mover and seconder of all motions relating to this report.

 

  

 

RECOMMENDATION:

Pursuant to Section 4.16 of the Environmental Planning & Assessment Act 1979, Development Application 10.2017.683.1 for Stage 1: boundary adjustment subdivision to create two (2) lots and demolition of existing swimming pool; Stage 2:alterations and additions to existing dwelling house, new dwelling house and studio above existing garage on proposed lot 2, be granted consent subject to the attached conditions of consent (#E2018/72625).

 

 

Attachments:

 

1        Proposed Plans, E2018/72565  

2        Conditions of consent , E2018/72625  

3        submissions received, E2018/72628  

 

 


 

 

Assessment:

1.         INTRODUCTION

 

1.1.          History/Background

 

The site is subject to a number of previous approvals including the following:

6.1992.2572.1               Alterations and Additions                           Approved   18.11.1992

10.2003.53.1                 Swimming Pool and Carport                     Approved   04.03.2003

10.2003.53.2                 s96 to Cond 3 requiring fence to pool       Approved   18.07.2003

10.2014.736.1               Fence within Front Setback                       Approved   19.01.2015

 

 

1.2.          Description of the proposed development

 

This application seeks approval for Stage 1: Boundary Adjustment Subdivision to Create Two (2) Lots and Demolition of Existing Swimming Pool. Stage 2: Alterations and Additions to Existing Dwelling House, New Dwelling House and Studio above Existing Garage on Proposed Lot 2

 

Stage 1 will consist of:

Reconfiguration of two (2) into two (2) lots

Lot 1 will command an area of 444.5m2 with 17.5m frontage to Tincogan Street and 25.4m to Brunswick Terrace. Access to the site will be gained via a Right of Way over Lot 2 to the north of the site.

 

Lot 2 will command an area of 391.2m2 with vehicular access to Brunswick Terrace and primary street frontage of 13m to Tincogan Street. No vehicular access is to be gained from Tincogan Street.

 

The existing pool will be in-filled to ensure there is no boundary encroachment.

 

All works required to service the lots including hardstand parking and associated driveways for proposed Lot 1 will be undertaken as part of Stage 1. No access will be granted from Tincogan Street as there are insufficient sightlines to enable safe egress and ingress to the site.

 

Stage 2 will consist of the following:

Lot 1 Alterations and additions to the existing dwelling will include conversion of the existing closet into an en-suite and changes to the existing bathroom layout.

 

Lot 2  New dwelling being a single storey dwelling with an enclosed loft area containing a single bedroom. A studio will be constructed above the existing garage and will consist of a toilet and large open room with deck facing to the west. Screening will be conditioned along the northern elevation of the deck area to protect the privacy of neighbouring dwellings.  

 

1.3.          Description of the site

 

Land is legally described as

LOT: 2 DP: 303076, LOT: 3 DP: 303076

Property address is

2 Tincogan Street MULLUMBIMBY

Land is zoned:

R2 Low Density Residential

Land area is:

836m2

Property is constrained by:

 

Flood Liable Land

Acid Sulfate Soils - Class 4

 

 

2.         SUMMARY OF REFERRALS

 

Referral

Issue

Development Engineer

No objections subject to conditions. Refer to Doc #A2017/31651

S64 / Systems Planning Officer

No objections subject to conditions. Refer to Doc # A2017/31653  

Heritage Consultant

No objections subject to conditions. Refer to Doc #E2018/1584  

* Conditions provided in the above referral are included in the Recommendation of this Report below

 

Access and Sightlines

Access is not permitted to Tincogan Street for either lot as there are insufficient sightlines to allow safe entry and exist manoeuvres into the site.

 

3.         SECTION 4.15C – MATTERS FOR CONSIDERATION – DISCUSSION OF ISSUES

 

Having regard to the matters for consideration detailed in Section 4.15(1) of the Environmental Planning & Assessment Act 1979 (EP&A Act), the following is a summary of the evaluation of the issues.

 

3.1       State Environmental Planning Instruments

 

 

Satisfactory

Unsatisfactory

State Environmental Planning Policy No 55—Remediation of Land

Consideration:

The site has been used for residential occupation since the construction of the heritage dwelling onsite was completed in 1928. There is no previous knowledge of contamination of the site and there is no visual sign of contamination present.

State Environmental Planning Policy (Coastal Management) 2018

Consideration:

-    No public access to the coastal foreshore will be impeded or diminished as part of the proposal

-    No effluent is proposed to be disposed other than to Council’s sewerage system.

-    Stormwater is to be discharged to the existing discharge point and will not be directly into the coastal environment.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

Consideration:

A BASIX certificate has been provided with the application.

 

4.2A  Byron Local Environmental Plan 2014 (LEP 2014)

 

LEP 2014 is an applicable matter for consideration in the assessment of the subject development application in accordance with subsection 4.15(1) of the EP&A Act because it applies to the subject land and the proposed development. The LEP 2014 clauses that are checked below are of relevance to the proposed development:

 

Part 1

1.1| 1.1AA| 1.2| 1.3| 1.4| Dictionary| 1.5| 1.6| 1.7| 1.8| 1.8A| 1.9|  1.9A

Part 2

2.1| 2.2 | 2.3 |Land Use Table | 2.4 | 2.5 | 2.6 | 2.7 | 2.8

Part 3

3.1| 3.2| 3.3

Part 4

4.1| 4.1A| 4.1AA| 4.1B |4.1C| 4.1D| 4.1E| 4.2| 4.2A| 4.2B| 4.2C| 4.2|4.3|4.4 |4.5 | 4.6

Part 5

5.1| 5.2| 5.3| 5.4| 5.5| 5.6| 5.7| 5.8|5.9| 5.9AA| 5.10| 5.11| 5.12| 5.13

Part 6

6.1| 6.2| 6.3| 6.4| 6.5| 6.6| 6.7| 6.8| 6.9

 

In accordance with LEP 2014 clauses 1.4 and 2.1 – 2.3:

(a)     The proposed development is defined in the LEP 2014 Dictionary as Subdivision, Dwelling House and Studio;

(b)     The land is within the R2 Low Density Residential according to the Land Zoning Map;

(c)     The proposed development is Permitted with Consent; and

(d)     Regard is had for the Zone Objectives as follows:

 

Zone Objective

Consideration

To provide for the housing needs of the community within a low density residential environment.

The proposed alterations and additions to the dwelling house and subdivision will provide a range of housing types in the locality and maintains the existing character of the residential area.

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

Not Applicable

 

The remaining underlined clauses have been taken into consideration in the assessment of the subject development application in accordance with subsection 79C(1) of the EP&A Act. The proposed development complies with all of these clauses (in some cases subject to conditions and/or to the satisfaction of other assessing officers), except in relation to clause which is considered further as follows:

 

What clause does the development not comply with and what is the nature of the non-compliance?

Further consideration, including whether the development application is recommended for approval or refusal accordingly

4.1 Minimum subdivision lot size

 

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

(a)  to ensure that lot sizes are compatible with local environmental values and constraints,

(b)  to facilitate efficient use of land resources for residential and other human purposes.

(2)  This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Plan.

(3)  The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land.

(4)  This clause does not apply in relation to the subdivision of individual lots in a strata plan or community title scheme.

 

See assessment below. 

 

 

4.1 Minimum subdivision lot size

Clause 4.1 of LEP 2014 is accessible via: https://www.legislation.nsw.gov.au/#/view/EPI/2014/297/part4/cl4.1

 

Matters under subclause (3) are addressed as follows:

 

The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land. In this regard the minimum lot size is 600m2.

 

The existing dwelling house straddles two lots with areas of 418m2 each and a combined total area 836m2. The proposal will realign the existing boundaries of the existing 2 lots into 2 lots.

 

Lot 1 will command an area of 444.5m2 with 17.5m frontage to Tincogan Street and 25m to Brunswick Terrace. Access to the site will be gained via a Right of Way over Lot 2 to the north of the site.

 

Lot 2 will command an area of 391.2m2 with vehicular access to Brunswick Terrace and primary street frontage of 13m to Tincogan Street. No vehicular access is to be gained from Tincogan Street.

 

 

The Applicant has submitted a clause 4.6 variation request (refer to Doc #S2017/21062). The clause 4.6 variation request is considered with reference to relevant matters as follows:

 

a)      Introduction – Summary of proposed development

The development application proposes a boundary realignment of two (2) lots into two (2) lots, and will result in Lot 1 having 521m2 and Lot 2 with 314m2.

 

b)      Clause 4.6 Exceptions to Development Standards

Clause 4.6 of Byron LEP 2014 is accessible via: http://www.legislation.nsw.gov.au/fragview/inforce/epi+297+2014+pt.4-cl.4.6+0+N?tocnav=y

 

c)      The Development Standard to be varied

The development standard to be varied is contained in LEP 2014 subclause 4.1(3), which is accessible via: https://www.legislation.nsw.gov.au/#/view/EPI/2014/297/part4/cl4.1

 

The Minimum Lot Size planning control is a development standard in accordance with the applicable definition in the Dictionary and clause 4.5 of the Environmental Planning and Assessment Act 1979 because it is provisions of an environmental planning instrument in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, requirements or standards in respect of setting a minimum lot size for any land and is not to be less than the minimum lot size shown for the land on the Minimum Lot Size Map

 

d)      Extent of Variation to the Development Standard

The Statement of Environmental Effects indicates that the existing site comprises two (2) individual lots which command a total area of 836m2. The proposal seeks a boundary realignment to reconfigure the existing lots into two (2) lots

Lot 1 will command an area of 444.5m2 with 17.5m frontage to Tincogan Street and 25.4m to Brunswick Terrace. Access to the site will be gained via a Right of Way over Lot 2 to the north of the site.

 

Lot 2 will command an area of 391.2m2 with vehicular access to Brunswick Terrace and primary street frontage of 13m to Tincogan Street. No vehicular access is to be gained from Tincogan Street.

 

The subdivision will result in Lot 1 being 25% below and Lot 2 being 35% below the minimum lot size requirements.

 

The proposal will however maintain a similar subdivision alignment along Tincogan Street, whilst undersized residential allotment’s in the Mullumbimby township are not unusual. (eg 10-14 Tincogan Street are three undersized residential lots)

 

 

e)      Objective of the Development Standard

The objectives of the development standard are stated in LEP 2014 subclause 4.1(1) which states:

(a)  to ensure that lot sizes are compatible with local environmental values and constraints,

(b)  to facilitate efficient use of land resources for residential and other human purposes

 

 

f)       Objectives of the Zone

The objectives of the R2 Low Density Residential Zone which applies to the location of the proposed boundary realignment are stated in the Land Use Table to LEP clause 2.8, which states:

 

•  To provide for the housing needs of the community within a low density residential environment.

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

 

 

g)      Assessment – the specific questions to be addressed:

 

(a)     Clause 4.6(3)(a) – Is compliance with the development standard unreasonable or unnecessary in the circumstances of the case?

 

The site currently consists of two (2) non-compliant lots. Requiring compliance with the development standard is unnecessary in this instance as there will be no further intensification of the development potential of the site and will maintain the lot sizes of the existing lots with the resultant lots each commanding an area of 444.5m2 and 391.2m2.

 

a.   The boundary realignment/reconfiguration is a two into two lots development.

b.   There currently exists the ability to develop a single dwelling house on each of the existing lots, the current proposal will not increase this development potential and will provide a better and more functional lot layout for future dwellings on the proposed Lot 2.

c.   The lots sizes are consistent within the streetscape and character of the surrounding low density residential area.

 

 

(b)     Clause 4.6(3)(b) – Are there sufficient environmental planning grounds to justify contravening the development standard?

 

The proposed realignment of property boundaries will result in lots which maintain the subdivision lot pattern of the Mullumbimby Conservation Area and will maintain lot sizes which are similar in size. The layout will remove the – just a change of alignment to the existing dividing lot boundary will remove an existing boundary encroachment.

 

There are sufficient grounds to justify the proposal on environmental planning grounds as follows:

·    No reduction in the number of lots from the current situation (2 into 2 lots)

·    The development will enable the retention of the exiting dwelling house in its current setting on the site. (whilst ensuring the house is located on a single lot);

·    The Lot sizes are consistent with the surrounding neighbourhood which is typified with lots of similar sizes to the current proposal;

·    Given the site is only partially located within a Flood Prone Area there will be no increase in intensity of development as a result of this proposal.

·    the proposed reconfiguration enables the allotments to contain an building envelope measuring 12m x 15m; 

·    the proposed Lot 2 is to be provided vehicular and pedestrian access to Brunswick Terrace;

·    the site is located within an existing urban area with close proximity to the Mullumbimby business district and with a level topography, pedestrian and cycling is a common form of transport;

·    pedestrian accessibility and service provision (garbage collection, postal services) are able to be provided from the street frontages of the new lot;

·    the existing dwelling and structures on the proposed reconfigured allotments are able to comply with the floor space ratio of 0.5:1.

 

There are sufficient environmental planning grounds to justify contravening the development standard.

 

(c)     Clause 4.6(4)(a)(ii) – Is the proposed development in the public interest? Is it consistent with the objectives of the standard and the zone as set out above?

 

The proposal provides an opportunity to provide a more suitable lot layout which is capable of contain a building envelope measuring 12m x 15m and will enable the more efficient use of land through enabling a vacant lot of land for development without having the existing dwelling straddling both existing lots.

 

The proposal will enable the future contribution to the provision of residential housing in close proximity to the Mullumbimby town centre whilst preserving, and minimising impacts on, infrastructure provision and maximising utilisation of these resources.

 

Further the proposal is consistent with the objectives of the development standard and the zone. The proposal will not create an undesirable precedent in the circumstances given there are a number of similar developments proximate to the site which have created similar boundary realignments.

 

The proposed development is not significantly contrary to the public interest because it will not adversely affect the welfare and wellbeing of the broader public.

 

The proposed lot sizes are not in accordance with Clause 4.1 of Byron LEP 2014. The development application is supported by a request for a variation pursuant to clause 4.6 of the LEP. The circumstances of the case warrant a more flexible approach to application of the minimum lot size given the site currently comprises two existing lots totalling 836m2 (approx. 418m2 each lot). The common boundary of the existing lots is located directly beneath the existing dwelling house and the proposed subdivision will remove the existing boundary encroachment. The Applicant’s variation request is supported and the development application is recommended for approval despite the non-compliance.

 

6.1 Acid Sulfate Soils

 

The subject land is identified as comprising Class 4 ASS being two metres below the surface. It is considered the potential for ASS is highly unlikely to be disturb. Further investigation is not required.

 

6.3 Flood Planning

 

A condition has been recommended requiring the FFL to be constructed to 5.81m AHD as the Flood Planning Level for this site.

 

5.10   Heritage conservation

 

The proposal will retain the existing heritage item onsite in a prominent corner location and will retain the existing landscaping to each street frontage. The application has been assessed by Councils Heritage Advisor who has concluded:

 

“it is considered that the proposed dwelling is not likely to have an adverse impact upon the significance of the existing heritage item or the Mullumbimby Conservation Area. The proposed new dwelling is not likely to dominate the streetscape or detract from the established character and heritage significance of the Conservation Area.”

 

The reconfiguration of 2 existing lots will retain the subdivision pattern of the conservation area and will enhance the Tincogan Street streetscape.

 

 

4.3       Any proposed Instrument that has been the subject of public consultation and has been notified to the consent authority

 

Not Applicable.

 

4.4A  Byron Shire Development Control Plan 2014 (DCP 2014)

 

DCP 2014 is an applicable matter for consideration in the assessment of the subject development application in accordance with subsection 4.15(1) of the EP& A Act because it applies to the land to which LEP 2014 applies. The DCP 2014 Parts/Chapters that are checked below are of relevance to the proposed development:

 

Part A

Part B Chapters:

B2| B3| B4| B5| B6| B7| B8| B9| B10| B11| B12| B13|

B14

Part C Chapters:

C1| C2| C3| C4

Part D Chapters

D1| D2| D3| D4| D5| D6| D7| D8

Part E Chapters

E1| E2| E3| E4| E5| E6| E7

 

These checked Parts/Chapters have been taken into consideration in the assessment of the subject development application in accordance with subsection 4.15(1) of the EP&A Act. The proposed development is demonstrated to meet the relevant Objectives of all relevant Parts/Chapters (in some cases subject to conditions and/or to the satisfaction of other assessing officers).

 

What Section and prescriptive measure does the development not comply with?

Does the proposed development comply with the Objectives of this Section? Address.

Does the proposed development comply with the Performance Criteria of this Section? Address.

B4.2.5 Car Parking Requirements

Yes

The single car parking space provided to Lot 1 will retain the existing heritage values of the site, reduce the detrimental effects of parking (visually) and will provide a single parking space onsite for future residents. The site is also located on a corner allotment with significant street frontage and on-street parking available in this instance.

 

Car parking is required to be provided in accordance with Table B4.1 of the DCP which requires two spaces per dwelling. The proposal will provide two spaces for the new dwelling on Lot 2, however the existing dwelling will have access to a single parking space only. The single car parking space for Lot 1 (existing dwelling) is considered acceptable in this instance as it retains the landscape curtilage of the heritage item. Proposal is considered acceptable in this instance. 

 

Reciprocal rights of carriageway are proposed fro the driveway to reduce hard stand areas for the two properties and restricts vehicle access to a shared driveway. 

C1.2.2 Assessment Requirements (4)

Subdivision applications involving a Heritage Item, located within a Heritage Conservation Area or in the vicinity of a Heritage Item or Heritage Conservation Area.

 

The proposal is a reconfiguration of 2 into 2 lots which will maintain a similar lot frontage onto Tincogan Street which will maintain the existing and heritage streetscape of the street.

 

Yes

The proposed development will result in consistent lot frontages along Tincogan Street which will maintain the rhythm of buildings in the streetscape of the Heritage Conservation Area.

C1.3.3 Gardens and Landscape

Yes

The development will not alter the landscape corner setting of the existing dwelling.

 

The proposed lot 2 and dwelling on this site will maintain the dominance of the heritage item and will reinforce the subdivision pattern of the street. The existing front fence will be retained and the landscaping and gardens will not be greatly altered as a result of this development.

 

 

Yes

The existing dwelling retains the existing frontage setbacks with the significance of the item being the dwelling itself and the corner setting of the dwelling. This will not change with the reconfiguration of the existing two lots.

 

The subdivision pattern will retain the existing settlement pattern and will also compliment the rhythm of buildings in the streetscape.

C1.4.7 Fences

Yes

The development will retain the exiting 1.8m high fence along the Tincogan Street frontage of proposed Lot 2. This was previously approved and is not part of this application.

 

Yes

Fence heights must be consistent with the heights of the predominant fences in the street. Generally height should be 1.2m forward of the front building setback, and 1.8m elsewhere.

 

The development will retain the exiting 1.8m high fence along the Tincogan Street frontage of proposed Lot 2. This was previously approved and is not part of this application.

 

C1.4.9 Subdivision

Yes

The development will retain the development and subdivision pattern of the Heritage Conservation Areas including their characteristic rhythm and spacing of the built form.

Yes

The allotment and building spacing, including frontage widths, side and front boundary setbacks must not impact adversely on vistas and views to and of heritage items and Heritage Conservation Areas.

In particular the principal elevations of buildings must not be interrupted or obscured.

 

The proposal will retain the existing heritage dwelling in its current position onsite with all main elevations being retained on the streetscape.

 

The new dwelling will be retain the existing dominance of the heritage item and will be slightly further setback than the existing dwelling and will be of a similar scale as the heritage item and other dwellings in the streetscape.

 

C1.6.1 General Policy

Yes

The overall intent of C1.6.1 and Chapter E3.3 is achieved in this instance by maintaining the low rise character of the area and its surrounds. In addition the new dwelling will be set behind the front setback of the heritage item to reinforce the item as the significant structure on this corner location

Yes

The proposed dwelling will consist of a ground floor and mezzanine floor for the single bedroom, in this instance the number of ‘storeys’ is not as important as the overall height and scale of the building. The existing dwelling has a ridge height of 6.2m AHD with the proposed dwelling having a ridge height of 6.0m AHD (below the existing dwelling) which will maintain the dominance of the heritage item in the streetscape. The overall intent of Chapter E3.3 is achieved in this instance by maintaining the low rise character of the area and its surrounds. In addition the new dwelling will be set behind the front setback of the heritage item to reinforce the item as the significant structure on this corner location.

 

This is further reinforced through the eave heights which are within 10% of the existing dwelling onsite and through the use of appropriate roof pitches to mimic the roof form of the heritage item.

 

The proposed garage and studio above will have a ridge height of 6.6m which is above the existing dwelling, however there are existing highset dwellings to the north of the site and the proposed garage is set at the rear of the site without dominating the streetscape.

 

Ridge Heights

·    Existing dwelling: 6.20m nom.

·    Proposed dwelling: 6.00m nom.

·    Proposed garage/studio: 6.60m nom.

 

C1.6.8 Mullumbimby Conservation Area

Yes

The design of the new dwelling on lot 2 the proposal will maintain the low set, horizontal emphasis of existing buildings. As the development will have similar ridge and eave heights of the adjoining heritage item on Lot 1. 

 

The design and setbacks of the new dwelling will ensure the new development is compatible in character, height and scale with the existing pattern of development in Tincogan Street.

Yes

The proposed dwelling will consist of a ground floor and mezzanine floor for the single bedroom, in this instance the number of ‘storeys’ is not as important as the overall height and scale of the building.

 

The existing dwelling has a ridge height of 6.2m AHD with the proposed dwelling having a ridge height of 6.0m AHD (below the existing dwelling) which will maintain the dominance of the heritage item in the streetscape.

D1.2.1 Building Height Plane

 

Yes –

The development will not have a detrimental impact on in terms of loss of privacy or access to sunlight for adjoining properties.

 

Yes

The proposed studio above the garage will extend into the BHP by up to 2.3m on the northern and eastern elevations, however given the orientation of the lots north-south the property to the east will maintain adequate sunlight.

 

D1.2.2 Setbacks from Boundaries

Yes – Complies

 

Yes

Complies – The proposed new dwelling over Lot 2 will be setback 7.5m to ensure that the new dwelling is subordinate to and maintains the dominance of the heritage item in the streetscape.

 

All side setbacks comply with the minimum setbacks under D1.2.2. The garage and studio will be setback 900mm from the eastern and northern boundaries.

D1.2.5 Fences

Yes – Previously approved 1.8m high front fence under 10.2014.736.1.

No

The site contains an existing 1.8m high fence to Tincogan Street which was a requirement for the previous swimming pool and was approved under 10.2014.736.1.

 

E3.3 Character, Bulk and Scale of Development

Yes

The overall intent of C1.6.1 and Chapter E3.3 is achieved in this instance by maintaining the low rise character of the area and its surrounds. In addition the new dwelling will be set behind the front setback of the heritage item to reinforce the item as the significant structure on this corner location

The overall intent of Chapter E3.3 is achieved in this instance by maintaining the low rise character of the area and its surrounds. In addition the new dwelling will be set behind the front setback of the heritage item to reinforce the item as the significant structure on this corner location.

 

This is further reinforced through the eave heights which are within 10% of the existing dwelling onsite and through the use of appropriate roof pitches to mimic the roof form of the heritage item.

 

E3.5 Infill Development in Precincts 2 and 3

Yes

The development is an appropriate form of subdivision and infill development in accordance with E3.5 which states –

 

The existing subdivision pattern in Precincts 2 and 3 is dominated by long narrow lots often with houses located across two lots with large rear yards with laneway access. These properties provide opportunities for infill housing in the form of […]boundary adjustment or re-subdivision

Yes

The proposed 2 into 2 lot subdivision is consistent in shape and form to that of the surrounding subdivision pattern and will be compatible with the existing housing and streetscape and will not impact on the privacy of neighbouring dwellings.

 

The proposed development is demonstrated to meet the relevant Objectives of DCP 2014.

 

 

4.5       Any Planning Agreement or Draft Planning Agreement?

 

 

Yes

No

Is there any applicable planning agreement or draft planning agreement?

 

 

4.6       Environmental Planning & Assessment Regulation 2000 Considerations

 

Clause

This control is applicable to the proposal:

I have considered this control as it relates to the proposal:

If this control is applicable, does the proposal comply?

92

Yes

Yes

Yes

93

No

N/A

N/A

94

No

N/A

N/A

94A

No

N/A

N/A

* Non-compliances and any other significant issues discussed below

 

4.7       Any coastal zone management plan?

 

 

Satisfactory

Unsatisfactory

Not applicable

Is there any applicable coastal zone management plan?

 

 

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

 

Impact on:

Likely significant impact/s?

Natural environment

No. The proposal will not have a significantly adverse impact on the natural environment of the locality.

Built environment

No. The proposal will not have a significantly adverse impact on the built environment of the locality.

Social Environment

No. The proposal will not have a significant social impact on the locality.

Economic impact

No. The proposal will not have a significant economic impact on the locality.

 

Are there any Council Policies that are applicable to the proposed development? None

 

Council Policy

Consideration

Building over pipelines and other underground structures Policy

Appropriate easements have been provided for sewer extension to service the existing lot.

 

4.9       The suitability of the site for the development

 

The site is a serviced, unconstrained property and is suitable for the proposed development.

 

4.10     Submissions made in accordance with this Act or the regulations

 

The development application was publicly exhibited. Two submissions were received.

 

Submission

Comment

This development will almost completely fill the curtilage of the property even though the DA is also asking for a boundary adjustment from 2 lots to 2 modified lots to accommodate the new building and studio.

 

The site as identified in the SHI Sheets of Councils Heritage Study indicate the Criteria that the listing was based is:

 

The bungalow is designed in an unusual and distinctive style with prominent front gable verandah giving the building a distinctive character and welcome aspect to the street.

 

The remainder of the physical description of the item states:

 

An unusual gable roof bungalow built with a wide entrance verandah with a prominent gable roof supported on paired timber posts with Art Nouveau inspired brackets forming a distinctive lyre shape. The house is built a large, prominent corner block opposite Federation Bridge approach.

 

The prominent corner location of the dwelling will not be altered by this proposal and the existing dwelling is located over two existing lots.

 

The proposal has been assessed by Councils Heritage Advisor who has provided the following comments:

 

“it is considered that the proposed dwelling is not likely to have an adverse impact upon the significance of the existing heritage item or the Mullumbimby Conservation Area. The proposed new dwelling is not likely to dominate the streetscape or detract from the established character and heritage significance of the Conservation Area.”

 

In this instance it is considered that the proposal will not have a detrimental impact on the item or the streetscape in terms of subdivision pattern.

This proposal should be referred to the Heritage Panel for consideration and an extension of the public exhibition time so other people can make a submission due to holidays

The Heritage Panel terms of reference does not include direct comments in relation to individual Development Applications. 

 

The proposal is inconsistent with the low rise character and scale of Mullumbimby.

 

 

The proposed dwelling will consist of a ground floor and mezzanine floor for the single bedroom, in this instance the number of ‘storeys’ is not as important as the overall height and scale of the building. The existing dwelling has a ridge height of 6.2m AHD with the proposed dwelling having a ridge height of 6.0m AHD (below the existing dwelling) which will maintain the dominance of the heritage item in the streetscape. The overall intent of Chapter E3.3 is achieved in this instance by maintaining the low rise character of the area and its surrounds. In addition the new dwelling will be set behind the front setback of the heritage item to reinforce the item as the significant structure on this corner location.

 

This is further reinforced through the eave heights which are within 10% of the existing dwelling onsite and through the use of appropriate roof pitches to mimic the roof form of the heritage item.

 

The proposed garage and studio above will have a ridge height of 6.6m which is above the existing dwelling, however there are existing highset dwellings to the north of the site and the proposed garage is set at the rear of the site without dominating the streetscape.

 

Ridge Heights

·    Existing dwelling: 6.20m nom.

·    Proposed dwelling: 6.00m nom.

·    Proposed garage/studio: 6.60m nom.

 

It is considered the proposal is consistent with the character and scale of residential development in Mullumbimby

 

The Landscape, garden setting and curtilage area of this heritage item is not retained.

DCP Heritage CH C1.2.2  4(d) Subdivision Applications   “settings of the heritage Item and a satisfactory curtilage including important landscape and garden elements are retained“

The existing dwelling retains the existing frontage setbacks with the significance of the item being the dwelling itself and the corner setting of the dwelling. This will not change with the reconfiguration of the existing two lots.

 

The subdivision pattern will retain the existing settlement pattern and will also compliment the rhythm of buildings in the streetscape.

Second Storey buildings are not permitted in this Heritage Conservation Area.

(DCP Heritage CH C1.6.1 (3) “developments in all areas must remain single storey in height to maintain the visual character and unity of the streetscape .”

 

C1.6.1 incorporates a general policy intent with further built form intents in Chapter E3 Mullumbimby which state:

 

E3.3 Character, Bulk and Scale of Development

“Development Applications must demonstrate that the character, bulk, scale and density of proposed development will be compatible with and will enhance the low rise character and scale of Mullumbimby”

 

E3.1 Aims of this Chapter

To promote compatible, innovative urban development of a high design quality that reflects and reinforces the low rise, heritage character and scale of Mullumbimby.

 

The proposed dwelling will consist of a ground floor and mezzanine floor for the single bedroom, within the pitched roof cavity, in this instance the number of ‘storeys’ is not as important as the overall height and scale of the building. The existing dwelling has a ridge height of 6.2m AHD with the proposed dwelling having a ridge height of 6.0m AHD (below the existing dwelling) which will maintain the dominance of the heritage item in the streetscape. The overall intent of Chapter E3.3 is achieved in this instance by maintaining the low rise character of the area and its surrounds. In addition the new dwelling will be set behind the front setback of the heritage item to reinforce the item as the significant structure on this corner location.

Notification of this DA inadequate.

 

This DA was previously exhibited from 14 December 2017 to 10 January 2018 and then re-exhibited from 25 January 2018 to 7 February 2018.

 

4.11     Public interest

 

The proposed development is unlikely to prejudice or compromise the public interest or create a dangerous precedent

 

5.         DEVELOPER CONTRIBUTIONS

 

As the proposal will re-subdivide two existing residential lots into two residential lots no additional S7.11 Contributions or Water and sewer Levies are required.  

 

6.         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: Not applicable

 

 

7.         CONCLUSION

 

Development consent is sought for Stage 1: Boundary Adjustment Subdivision to Create Two (2) Lots and Demolition of Existing Swimming Pool. Stage 2: Alterations and Additions to Existing Dwelling House, New Dwelling House and Studio above Existing Garage on Proposed Lot 2 located at 2 Tincogan Street, Mullumbimby.

 

The re-subdivision of the land from two lots into two lots relies upon a variation to the minimum lot size requirements of 600m2 under Clause 4.6 of Byron LEP 2014. The circumstances of the case warrant a flexible approach to application of the minimum lot size given the site currently comprises two existing lots of approximately 418m2 each. The Applicant’s variation request is supported and the development application is recommended for approval.

 

The proposed development is not inconsistent with the provisions of the Byron LEP 2014 and DCP 2014 and is unlikely impact on the existing residential amenity or heritage character of the neighbourhood. It is recommended that the application be approved subject to conditions of consent.

 

STATEMENT OF REASONS

 

Statement of Reasons

The proposed development complies with the provisions of Byron Local Environmental Plan 2014.

The proposed development complies with relevant State Environmental Planning Policies

The proposed development complies with relevant provisions of Development Control Plan 2014

The proposed development complies with Environmental Planning & Assessment Regulation 2000 considerations.

The proposed development will not have significant adverse impact on the natural, built or social environment or economic impacts on the locality.

The proposed development is considered suitable for the proposed site.

The development application was notified/advertised in accordance with Development Control Plan 2014. Issues raised in the submissions have been addressed during assessment of the application.

The proposed development is unlikely to prejudice or compromise the public interest.

The proposed development will not have a detrimental impact on the heritage character of the precinct or the buildings contained on the site. It is considered consistent with the heritage provisions contained within Development Control Plan 2014.

 

How community views were addressed

The DA was advertised in accordance with Development Control Plan 2014. The submissions received were considered on merit and addressed during assessment of the application.

 

To view the considerations, please contact Council to view a copy of the assessment report relating to this DA.

 

 


BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy                                   13.8

 

 

Report No. 13.8           Bushfire Prone Land Mapping

Directorate:                 Sustainable Environment and Economy

Report Author:           Sharyn French, Manager Environmental and Economic Planning

File No:                        I2018/1122

Theme:                         Ecology

                                      Planning Policy and Natural Environment

 

 

Summary:

 

Council considered a report at the 22 March 2018 meeting on the revised Bush Fire Prone Land Map. The revised map includes a new vegetation category (Category 3) that maps grassland greater than 10cm as a medium fire risk.

 

A number of key concerns with the mapping were reported to Council including:

·        there are large areas of grassland in Byron Shire that are now captured in this mapping

·        the NSW Rural Fire Service (RFS) Guide maps grassland in the Shire as a medium risk when RFS have advised that this is an exaggerated risk

·        that proceeding with the mapping will impose an additional impost on landowners whose land is now mapped as bush fire prone when lodging a development application for their property

·        the increased workload on Development Assessment Staff and potentially increased turnaround timeframes as many DAs will require referral to RFS

·        the mapping potentially undermines the integrity of Council’s mapping processes and accuracy

 

Due to concerns with the RFS state wide mapping methodology, Council resolved to defer submitting the map for certification until such time as a further meeting with RFS is held to discuss the issues identified in the report, and a scientific justification provided for the mapping methodology that has been applied to Byron Shire.

 

Council also resolved to seek ground truthing of the category 3 grassland sites in Byron Shire by the Rural Fire Service to ensure an evidence based Bushfire Prone Map is produced and that a further report be provided on the resolution outcomes.

 

This Report tables the outcomes of the further discussion with RFS and proposes that Council proceed with submitting the mapping to RFS for the Commissioners certification.

 

 

  

 

RECOMMENDATION:

That Council submit the Bush Fire Prone Land Map (Attachment 1 - E2018/16059) to NSW Rural Fire Services for the Commissioner’s certification.

 

 

 

Attachments:

 

1        Bush Fire Prone Land Map in accordance with RFS Guide for Bush Fire Prone Land Mapping, Nov 2015 Version 5b, E2018/16059  

2        NSW Rural Fire Service - Grassland Deeming Provisions - Development Application in Grassland Fact Sheet, E2018/60961  

 

 


 

Report

 

Council at the 22 March 2018 meeting considered a report  on the revised Byron Shire Bushfire Prone Land Mapping and resolved:

 

18-189 Resolved:

1.       That Council acknowledge that there is a new vegetation category (category 3) grassland in the Guide for Bushfire Prone Land Mapping.

 

2.       That due to concerns with the one size fits all approach to the mapping of category 3 grassland, Council defers the submission of the new Bushfire Prone Map (Attachment 1 - E2018/16059) to the NSW Rural Fire Service for certification, until such time as a further meeting with Rural Fire Service is held to discuss the issues identified in the report, and a scientific justification provided for the mapping methodology that has been applied to Byron Shire.

 

3.       That as a result of 2, Council seek ground truthing of the category 3 grassland sites in Byron Shire by the Rural Fire Service to ensure an evidence based Bushfire Prone Map is produced.

 

4.       That Council receive a further report once 2 and 3 have occurred.

 

A meeting was held on 11 May 2018 with NSW Rural Fire Service (RFS) representatives and the following matters were tabled:

 

·        The RFS have been updating bush fire prone land maps across the state to reflect the current requirements of the National Construction Code (through Australian Standard AS3959, Construction of buildings in bushfire-prone areas).

·        AS3959 identified that grasslands greater than 10 centimetres in height needed to be addressed and this informed the development of Category 3

·        The mapping of grasslands has resulted in an increase of land being captured as bush fire prone

·        AS 3959 is being reviewed and when adopted in 2019 it is expected to remove uncertainty around what should be mapped as grassland. The RFS Guide for Bushfire Prone Land Mapping version 5b November 2015 will then be revised in line with the new Australian Standard

·        The impact on Development Applications (DAs) for properties in Category 3.

Twenty-three of the 128 NSW Councils have been certified to the new mapping requirements. To ascertain the impact on development application referral numbers RFS contacted certified councils that had significant grassland areas. Responses were received from 6 Councils: Lake Macquarie, Fairfield, Cessnock, Moree Plains, Warren, Port Macquarie –Hastings. RFS concluded that the responses are not considered to indicate a clear trend in the impacts of added grassland mapping on development assessment requirements.

RFS have drafted grassland deeming provisions for Category 3 Bushfire Prone Land with Department of Planning and Environments input to simplify the approval process, refer to Attachment 2. In summary dwellings with an Asset Protection Zone (APZ) of:

·        50m won’t require bushfire protection measures

·        20m and more that have a bush fire attack level of BAL 12.5, will require bush fire protection measures such as access, services, landscaping and emergency management

·        less than 20 metres will require a full site assessment to determine the bush fire attack level (BAL) and apply all the bush fire protection measures, such as access services, landscaping and emergency management

The grassland deeming provisions are yet to be switched on; they are pending the publishing of the pre-release version of Planning for Bush Fire Protection 2018. Therefore, the assessment for grassland areas will continue to be in accordance with AS-3959 until such time as RFS switch on the deeming provisions.

During the 2017/18 period 730 DAs were lodged with Byron Shire Council. Of these 202 applications would be affected by Category 3 bushfire prone land. Council records are not able to ascertain the size of these properties APZ to determine what level of protection measures will be required under the proposed deeming provisions. Currently most landowners won’t have to apply any protection measures, but once the map and deeming provisions comes into effect there will be costs to those property managers who have an APZ less than 50m.

 

·        RFS were amenable to ground-truthing grassland sites should specific areas be identified in Byron Shire.

Council has a statutory obligation to update our bush fire prone land map every 5 years. The map (Attachment 1) has been updated in accordance with the NSW Rural Fire Services Guide for Bush Fire Prone Land Mapping version 5b November 2015. The amount of land in the Shire now mapped as Bushfire Prone Land has significantly increased due to the new Category 3 grassland mapping criteria. The Bushfire Prone Land Map is used when considering development on the land.

 

Should Council proceed with the mapping, additional assessment of affected DAs will be required and this may affect assessment timeframes. A Frequently Asked Questions document has been developed to assist landowners and media awareness on the new mapping will be undertaken.

 

It is recommended that Council submit the Bush Fire Prone Land Map (Attachment 1) to RFS for the Commissioners certification in accordance with our statutory obligations.

 

Financial Implications

 

Council has already spent up to $10,000 in up skilling staff through completion of the Planning for Bushfire Protection Course through University of Technology Sydney in anticipation of the new mapping.

 

There will likely be additional costs to applicants when lodging a DA for land mapped as bush fire prone as well as resultant construction costs in these areas.

 

Statutory and Policy Compliance Implications

 

Environmental Planning and Assessment Act 1979

146   Bush fire prone land

(1)  If a bush fire risk management plan applies to land within the area of a council, the council must, within 12 months after the commencement of this section (and before the end of the period of every 5 years after the commencement):

(a)  request the Commissioner of the NSW Rural Fire Service to designate land (if any) within the area that the Commissioner considers, having regard to the bush fire risk management plan, to be bush fire prone land, and

(b)  must record any land so designated on a map.

(2)  The Commissioner of the NSW Rural Fire Service must, if satisfied that the land designated by the Commissioner has been recorded by the council on a map, certify the map as a bush fire prone land map for the area of the council.

(2A)  The Commissioner of the NSW Rural Fire Service may, in accordance with the regulations, review the designation of land on a bush fire prone land map for an area at any time after the map is certified and revise the map accordingly. The revised map:

(a)  becomes the bush fire prone land map for the area on being certified by the Commissioner, and

(b)  is to be provided to the council by the Commissioner.

(3)  Land recorded for the time being as bush fire prone land on a bush fire prone land map for an area is bush fire prone land for the area for the purposes of this or any other Act.

(4)  The bush fire prone land map for an area is to be available for public inspection during normal office hours for the council.

(5)  In this section: bush fire risk management plan has the same meaning as it has in the Rural Fires Act 1997.

 


BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy                                   13.9

 

 

Report No. 13.9           PLANNING - 26.2017.6.1 Byron Bay Town Centre Planning Controls - Results of Preliminary Community Engagement

Directorate:                 Sustainable Environment and Economy

Report Author:           Rob Van Iersel, Major Projects Planner

File No:                        I2018/1175

Theme:                         Sustainable Environment and Economy

                                      Planning Policy and Natural Environment

 

 

 

Summary:

 

At the ordinary meeting of 23 November 2017, Council resolved (17-599):

 

1.    That Planning Proposal 26.2017.5.1 (excluding that part relating to the Butler Street Reserve) be approved by Council to proceed to gateway determination and for public exhibition.

2.    That the balance of Planning Proposal 26.2017.5.1 (relating to the Butler Street Reserve) and Planning Proposal 26.2017.6.1 be deferred for public consultation including the following:

a)    conducting community information sessions and collating feedback.

b)         issuing a media release and Council website post at least two weeks prior to the first information session to advise the community of the planning proposals with notice of all information sessions.

3.    That following completion of the information sessions and other community consultation, a report be received by Council, no later than the March Ordinary meeting, with a review of the community meetings and consultation.

 

This report relates to items 2 and 3 of the above resolution. It provides a detailed summary of the results of community engagement activities undertaken in relation to Planning Proposal 26.2017.6.1, which deals with a range of development controls applicable to the Byron Bay Town Centre, aimed at facilitating better buildings in the town.

 

Resolution 17-599 also addressed proposed planning controls relating to the Butler Street Reserve, which were primarily aimed at permitting a bus interchange on that land.  The State Government’s project regarding the delivery of that bus interchange is no longer pursuing Butler Street Reserve as the location for that facility.  Therefore there is no need to continue with that aspect of the Planning Proposal.

 

Community engagement was undertaken in relation to Planning Proposal 26.2017.6, addressing matters of zoning, building height control, and building design.  Concurrently, potential DCP amendments were explored, relating to further detail of building height and building design and provisions relating to car parking controls for the Town centre.  The potential to introduce car sharing in Byron Bay was also discussed.

 

In relation to building height, the recommendations that flow from community engagement strongly support the community’s preference to limit new development to a maximum of three storeys and ensure that new buildings reflect and preserve the character of the town.

 

While there was general community support for a change of zoning from B2 Local Centre to B3 Commercial Core, there was no strong consensus about whether that zoning should apply to the whole of the area currently zoned B2, or to a more contracted “core”.  Similarly, there was no consensus regarding the balance between allowing residential and/or tourism uses within the B3 zone.

 

There was strong support for controls that improve building design and sustainability, particularly where they can facilitate smaller footprint developments.  There was also support for minimising car parking in new developments and providing for car share in the centre.

 

The key amendments to Byron Local Environmental Plan 2014 and Byron Development Control Plan 2014, recommended from the outcomes of the community engagement, are:

·     Change the zoning of the Town Centre from the current B2 Local Centre, to B3 Commercial Core, and apply that zoning to the entirety of the area currently zoned B2.

Limit permitted tourist development in the new B3 zone to hotel or motel accommodation or serviced apartments only (backpackers accommodation would become prohibited in the Town Centre). Shop top residential housing would remain permissible in the B3 zone.

The change of zone will differentiate Byron Bay from the smaller local centres of Bangalow, Brunswick Heads, Mullumbimby, and Ocean Shores.

·    Maintain the current maximum building height at 11.5m within the LEP and introduce new provisions within Byron DCP 2014 to clarify that the maximum height will be three (3) storeys.

Amend Clause 4.6 of the LEP to specify that variations to the 11.5m building height can only be considered where the proposed building is no more than three (3) storeys.

Amend the LEP to provide that, for flood prone land within the Town Centre, the 11.5m maximum building height is measured from the applicable Flood Planning Level rather than natural ground level.

·    Amend the Building Heights Map to extend the area within which a maximum height of 11.5m applies to land bounded by Lawson Street to the south, Bay Lane to the north, Jonson Street to the west and Middleton Street to the east. 

Do not extend the 11.5m limit to any other areas suggested in the Town Centre Masterplan.

·    Introduce new provisions within the DCP to clearly state the building height limit at 3 storeys, and to set minimum floor to ceiling heights for mixed use buildings in the Town Centre.

·    Amend the Floor Space Ratio Map to remove the control from within the Byron Bay Town Centre.

·    Amend the LEP to introduce new clauses requiring that applications for new buildings demonstrate Design Excellence, and that streets and laneways are activated at ground level.

·    Amend the car parking provisions within the DCP, in relation to the Town Centre, to specify a maximum rather than minimum number of spaces for residential and / or tourist accommodation proposed above ground level, with the option for developers to ‘opt out’ of providing any parking for those uses, in exchange for practical measures that will provide and promote sustainable transport alternatives.  (Current parking rates will continue to be applied for ground floor commercial uses).

 

The recommended DCP changes would be incorporated into a new Byron Bay Town Centre Chapter, which will also include a Character Statement to assist in facilitating better design for new development.

 

Further details and explanation of the recommendations are outlined in the body of this report.

 

A draft Planning Proposal has been prepared (see Attachment 1), together with a draft DCP Chapter (Attachment 2).  It is recommended that Council resolve to send the Planning Proposal to the Department of Environment and Planning to obtain a Gateway Determination that would allow for the public exhibition of the Planning Proposal and draft DCP Chapter.

 

 

 

NOTE TO COUNCILLORS:

 

In accordance with the provisions of S375A of the Local Government Act 1993, a Division is to be called whenever a motion for a planning decision is put to the meeting, for the purpose of recording voting on planning matters.  Pursuant to clause 2(a) under the heading Matters to be Included in Minutes of Council Meetings of Council's adopted Code of Meeting Practice (as amended) a Division will be deemed to have been called by the mover and seconder of all motions relating to this report.

 

  

 

RECOMMENDATION:

That Council:

 

1.       Forward the Planning Proposal at Attachment 1 (#E2018/72394) to the NSW Department of Planning and Environment for a Gateway Determination, to amend Byron Local Environmental Plan 2014 in relation to various town planning controls applicable to the Byron Bay Town Centre.

 

2.       Agree that staff can proceed to public exhibition of the Planning Proposal and government agency consultation based on the Gateway Determination.

 

3.       For the purposes of community engagement, endorse the proposed amendment to Byron Development Control Plan 2014 at Attachment 2 (#E2018/72398), to introduce a new Chapter dealing with the Byron Bay Town Centre, to provide more detailed design and building height controls, together with the appropriate amendments to Part A of the DCP, and exhibit the draft Town Centre Chapter in conjunction with the Planning Proposal.

 

Attachments:

 

1        Planning Proposal v.1 -  BBTC Planning Control Review - Gateway Version, E2018/72394  

2        DCP Chapter E9 Byron Bay Town Centre - Draft Exhibition Version, E2018/72398  

3        Engagement recording charts - Future Byron Planning Workshop, E2018/68568  

 

 


 

Report

 

Background

The visions and suggestions put forward in the Byron Bay Town Centre Masterplan recommend a review and update for some existing planning controls applicable to that area.

The outcomes from such a review, as envisaged in the Masterplan, include:

·       facilitating well designed development of appropriate height and scale, in line with community vision;

·       defining the edges of the Town Centre 'business zone';

·       protecting the character and vibrancy of the town; and,

·       easing congestion and making the Town Centre more 'people friendly'.

 

In November 2017, Council resolved (17-599) to conduct community engagement relating to the planning controls, prior to further consideration of a formal Planning Proposal.

 

Community Engagement - Background

The aim of the community engagement was to obtain input from the community regarding key planning controls such as zoning, building height, design and car parking. 

 

Two community workshops were held prior to Council staff developing a planning proposal.  Notwithstanding the previous Council report, a semi ‘blank page’ approach was adopted for the engagement, rather than presenting a completed Planning Proposal for review and comment. 

 

The intention was for the community’s views and ideas to shape the Planning Proposal. 

 

Two workshops were held at the Byron Community Centre, with approximately 60 attendees in total.  Two workshops were held with students from Byron Bay High School (approximately 80 students).  The community workshops were widely advertised in advance, including:

·     Invitation letters posted to Byron Bay Town Centre landowners,

·     Invitation letters hand delivered to every commercial premises in Byron Bay Town Centre,

·     Media release,

·     Social Media,

·     Staff presence at Byron Bay farmers markets on two occasions;

·     Council website, and

·     Direct emails sent to:

Byron Residents Group

Byron Youth Residents Group

Arakwal Corporation

Byron Chamber of Commerce

Those who made submissions to PP 26.2017.5.1

 

The workshops were well attended, with a diverse range of the community present.  Over the two community workshops we heard from business owners and managers, land owners, real estate agents, architects, urban designers, residents, solicitors, developers and councillors from both Byron Shire and Tweed Heads.

 

For those who identified interest and/or expertise but were unable to come to the public workshops, one-to-one meetings were conducted.  The Arakwal Staff and Board and the Byron Bay Guidance group were also engaged via individual meetings.

 

Community Engagement - Content

The workshops were run on a ‘World Café’ style, whereby four tables were set up, each with a topic and a table facilitator.  After an introduction, participants were invited to a table of their choice to discuss and debate the topic. 

 

The role of the table facilitator was not to give answers, but to give lead in information, guide participants to stay on track and to ask questions.  Participants moved between the tables to provide input for each of the four topics.

 

The individual table topics were:

·     Zoning

·     Building Heights

·     Design Excellence

·     Parking

 

The subtopics and questions for the community relating to these topics were:

·      Zoning of the Town Centre

Where do you consider the 'core' of the Town Centre?

What uses should be prioritised within, and outside of, this 'core'?

·      Height of Building

Should we retain the current limit?

Where should the three-storey limit apply - all of Town Centre or part of it? (specifically examining two of the areas suggested in the Masterplan for an increase in height limit from 9.0m to 11.5m – being land at the southern end of Jonson Street, eastern side; and land north of Lawson Street).

Should the planning controls allow for varied roof structures to preserve historic character?

·      Floor Space Ratio

Is this necessary?

Can it be used to limit bulky buildings?

·      Design Excellence

How can we ensure developments are suitable for Byron Bay?

·      Active Street Frontages

Should we encourage shop fronts and the like on back lanes as well as main streets?

·      Ancillary Car Parking

What car parking controls can be used to limit the number of cars in town to reduce congestion?

·      Car Share

What is it? Should we introduce this to Byron Bay?

 

Community Engagement – What We Heard

A detailed ‘download’ of all comments captured at the two community workshops and the Byron High School session is contained in Attachment 3.  The key responses from participants are summarised below.

 

1.    Zoning

Currently, Byron Bay Town Centre is zoned B2 Local Centre, which is applicable to the area shown in Figure 1 (below).

 

Figure 1:  Extent of existing B2 zone

 

Change of zone:

The B2 Local Centre zone is also applicable in Bangalow, Brunswick Heads, Ocean Shores and Mullumbimby. 

 

To reflect the position of Byron Bay as the primary commercial centre in the Shire, and to ensure that changes made regarding permissible land uses in Byron Bay do not affect the other town centres, it was suggested that the zoning of the Byron Bay Town Centre be changed from B2 Local Centre to B3 Commercial Core. 

 

The B3 zone, while ‘available’ as part of the Standard Template LEP, has not yet been used in Byron Shire.  Introducing it for the Byron Bay Town Centre would allow Council to specify permitted development for the town to guide desired outcomes, particularly relating to residential and tourist uses (see further detail below).

 

The objectives of the B2 and B3 zones, as outlined in the Standard Template LEP, are very similar.  Council is able to add to these objectives, and it is recommended that the following be added as an objective of the (new) B3 zone:

To encourage a vibrant centre by permitting residential accommodation, serviced apartments and hotel or motel accommodation above commercial premises and community uses, as part of a mixed use development.

 

A majority of the workshop participants support the change to B3 Commercial Core.

 

Extent of zone:

Currently, the Town Centre is defined by the extent of the B2 zone, as shown in Figure 1 (above).

 

Many workshop participants noted that the southern end of Jonson Street, in its current form, is not fully commercial in nature, and has a character quite different to the area to the north. 

 

A number of participants expressed the view that the B3 zoning should only apply to the northern part of the town, from the beach front, with suggestions down to locations between Marvel Street and Kingsley Street as the southern cut-off.  It was suggested that the southern precinct could be zoned B4 Mixed Use or R3 High Density Residential.

 

These suggestions were based on existing character and conditions.  When prompted to take a more strategic, longer term view, it was generally recognised that changing the zoning boundary is not such a clear cut decision and many participants remained undecided (although it is noted that others remained of the view that the southern precinct should not be part of a Commercial Core).

 

Interestingly, the high school students agreed that the B3 zoning should encompass the current boundaries, noting, however, that more should be done to encourage the southern precinct to develop to be more like the northern area, with public transport and pedestrianisation helping to link the town.

 

Permissible land uses:

Participants were also asked to consider the land uses that should be prioritised within the B3 zone, particularly in respect to residential and/ or tourist accommodation uses of upper levels (retail and commercial should be at ground floor).

 

There were mixed views within the community whether either of these uses should be restricted or whether a mixture of both should be encouraged throughout the town.  The idea of ensuring that buildings are well designed to be flexible enough to change between office and/or residential and/or tourist accommodation in the future was valued.

 

 

2.    Building Height

Maximum building height:

The Town Centre Masterplan showed strong support for a maintaining a three (3) storey height limit in the Town Centre. 

 

Byron LEP 2014 sets the maximum building height at 11.5m for the majority of the town, as shown below in Figure 2.  This is based on the State Government’s “standard template”, which does not allow building heights to be controlled in storeys; stipulating instead that it be controlled by a measurement in metres above existing ground level, or a vertical distance from the Australian Height Datum to the highest point of the building.

 

Figure 2:  Height of Buildings Map

 

An important aspect of building height relates to the internal floor to ceiling heights for each of the storeys.  Appropriate floor to ceiling heights ensure flexible spaces at ground level and comfortable, liveable and sustainable interiors, by maximising natural ventilation and lighting. 

State guidelines suggest the following:

·    Ground floor, floor-to-ceiling height: 4.0m

·    Upper floors, floor-to-ceiling height: 2.7m, with a suggestion that first floors be increased to 3.3m floor to ceiling, to maximum future flexibility of use.

 

Allowing for these recommended minimum floor to ceiling heights, a three-storey building can comfortably fit within the current 11.5m height limit.

 

Assuming an allowance of 300mm for floor thickness between levels, these guidelines provide for:

Ground floor:

         4.0m

 

ceiling

         0.3m

 

First Floor:

         3.3m

 

ceiling

         0.3m

 

Second floor:

         2.7m

 

 

       10.6m

to ceiling of top floor

 

Currently, however, controls setting minimum ceiling heights are not in either the LEP or DCP.  Currently, therefore, a four-storey building can be proposed, meeting the maximum 11.5m maximum height, but with compressed floor to ceiling heights (Building Code of Australia suggests 2.4m as minimum).

 

A second potential issue relates to roof form.  Complying with the recommended minimum floor to ceiling heights and providing a hipped roof, similar to some of the key historic buildings in Byron Bay, cannot be achieved within the 11.5m limit.

 

Potentially, therefore, maintaining the 11.5m maximum could lead to a majority of new buildings with flat or skillion roofs.

 

Support for a maximum of 3 storeys within the Town Centre was a strong response from the majority of participants at the community workshops and at individual meetings. 

 

The Department of Planning and Environment has, to date, advised that Councils are not able to establish building height limits within an LEP based on the number of storeys.  Given this, participants were asked to consider what the maximum building height in metres should be.

 

There was no real consensus around this.  Some participants indicated support for an increase to12.5m to allow for variety in roof forms, as long as there were strong design and development controls.  Others believed that the extra 1m is neither important, necessary nor worth the potential risk of the 12.5m then being ‘pushed’ with the result of even higher buildings. 

 

While roof features were felt to be important for the character of the town, the preference for retaining 3 storeys seemed to outweigh the desire to move to 12.5m and risk taller buildings.

 

The majority of participants, however, did agree that, if the State Government could not be convinced to allow an LEP control expressed in storeys, the DCP should strongly state the limit of 3 storeys as well as the recommended minimum floor to ceiling heights. 

 

Others suggested that the 11.5m maximum should remain, with a provision stipulating that a breach of that limit would only be considered for a character roof structure, providing the resultant building is no more than 3 storeys.  This suggestion seemed to be favourable amongst most participants.

 

The high school students were tasked with an activity to be developers, some with the instruction to make money and push controls, and others with the goal of fitting in to the Byron landscape.  Interestingly, 10 of the 12 designs included buildings to the maximum height, with flat roofs and many with some sort of roof structure such as greenhouse, green roof or pool.

 

Potential extension of area subject to 11.5m maximum height:

The Town Centre Masterplan included a suggestion to expand the area subject to the existing 11.5m building height maximum, as shown in the extract below:

 

For the purposes of this review of planning controls, the only areas examined for potential height increase were:

1.    North of Lawson Street to Bay Street, between Jonson and Middleton Streets; and

2.    Southern end of Jonson Street – east side.

 

Both of these areas are currently subject to a 9.0m maximum building height.

 

North of Lawson Street

Current control (green = 9.0m max; yellow = 11.5m max)

 

The reason for a lower building height in this area is to minimise impact of taller buildings on the beachfront.  This remains a valid planning objective.

 

Existing ground levels throughout this area are shown in the survey plan extract below:

 

Existing ground levels slope up from the beachfront to Bay Street, and then fall toward the south, from Bay Street toward Lawson Street.  Based on the Fletcher Street ground levels shown in the survey, a two-storey building fronting Bay Street, built to the maximum 9.0m limit, would have a maximum elevation at around Bay Lane of approx. RL 15.0m AHD.

 

A three-storey building located between Bay Lane and Lawson Street, built to the 11.5m limit, would have a maximum elevation of between RL 16.5m AHD toward Bay Lane and RL 15.5m at Lawson Street.

 

Given that elevations at the beachfront are around RL 7.0m AHD, three-storey buildings located between Lawson Street and Bay Lane would not be visible from the beachfront, as illustrated below:

 

 

Most people at the community workshops were satisfied that the building height could be increased in this area, from 9.0m to 11.5m, but were of the view that the 9.0m limit should remain in place north of Bay Lane.

 

Southern end of Jonson Street

Current control (green = 9.0m max; yellow = 11.5m max)

 

Currently, the 9.0m maximum building height applies on the eastern side of Jonson Street, from Kingsley Street south.  This area is currently zoned the same as land on the western side of Jonson Street - B2 Local Centre, and is recommended to be included within the new B3 zone.

 

The majority of participants at the workshops were of the view that, because this area borders residential land, retention of the 9.0m height limit was appropriate.

 

3.    Design Excellence

The community workshops had two components for this topic.  The first was to identify the key characteristics of the Town Centre (particularly focussing on built form), and the second was to suggest ways in which Council could develop design controls to maintain and enhance those characteristics.

 

The key characteristics valued by the participants at the workshops were:

·     Natural feel, including landscaping;

·     Traditional roof forms;

·     Variety of built form;

·     Active spaces that enable human interaction, busking etc; and

·     Good pedestrian access.

 

Participants were generally in support of controls that enforce design excellence for new buildings, addressing design for our climate and variety within the built form.  Many suggested that a Town Centre specific DCP should be developed.

 

Within design excellence the community also discussed the concept of active street frontages.  In particular, participants were asked whether ground floor components of new buildings should provide active frontage to laneways as well as the primary street frontages.

 

Overwhelmingly the concept and encouragement of active street frontages was supported, with part of the community believing it should be applied to all streets and lanes and others believing some laneways, or sides of laneways, should be exempt due to access issues.

 

4.    Parking

As noted earlier, reducing congestion and ensuring Byron Bay can be a people friendly Town Centre was a key priority from the Masterplan. 

 

A suggestion explored at the community workshops was to amend car parking requirements for new development in the Town Centre by:

·    reducing the number of parking spaces required for the residential and/ or tourist accommodation components of mixed use (re)developments; and

·    specifying this reduced number of spaces as a maximum requirement, rather than a minimum number as currently required; and

·    providing an opportunity for development to ‘opt out’ of providing any on-site parking for those components of a mixed use building (Note: parking would still be required for commercial or retail building components).

The ability to ‘opt out’ would be subject to the submission of a Sustainable Travel Plan where the developer would outline commitments to alternative travel options for the development, such as car share spaces, bicycle parking and associated facilities, or other modes of transport that would succeed in reducing the use of cars in the Town Centre.

 

Some participants were not in favour of the suggested change; the reasons given:

·     Personal resistance to letting go of private car usage; and

·     Concern that they would no longer be able to find parking in the town.

 

However, a majority of participants were in favour of the change and believed that the change should be done as soon as possible.  Many also noted that this step on its own will not make enough of an impact and would like to see further actions to parking and the ability to drive in the town.

 

When questioned on what it is that the community would want alongside this change and from development proposals in exchange for less parking, a range of suggestions were identified, including public transport, park and ride facilities, and improved infrastructure.

 

It was also suggested that new development should provide car and/or bike sharing facilities/infrastructure, safe bicycle storage, motorcycle/scooter parking, contribution to electric car parking points. 

 

Recommendations

A draft Planning Proposal has been prepared based on the responses to the community engagement (Attachment 1). 

 

The following table summarises the suggested clauses and provides commentary.


 

 

Recommendation

Comments

Zoning

 

1.    Amend Land Zoning Map by altering the area within the Byron Bay Town Centre currently zoned B2 Local Centre, to B3 Commercial Core.

The B3 Commercial Core zone will differentiate Byron Bay from the smaller local centres of Bangalow, Brunswick Heads, Mullumbimby, and Ocean Shores in Byron Shire.

 

2.    Add the new B3 Commercial Core land use table and zone objectives into the LEP

 

The key difference, in terms of permitted land uses, between the recommended B3 zone and the current B2 zone is:

·     Options of tourist and visitor accommodation are restricted, with only hotel or motel accommodation or serviced apartments permissible in the B3 zone (backpackers’ accommodation and bed and breakfast accommodation are currently permissible in B2, but would become prohibited in the Town Centre); and

Residential accommodation, in the form of shop-top housing and/ or boarding houses, remain permitted with development consent, with other forms of residential accommodation, such as residential flat buildings or multi dwelling housing, prohibited.  This does not change with the introduction of the new zone.

3.    Amend various provisions of the LEP, which currently reference the B2 zone, to include a reference to the new B3 Commercial Core zone.

Clause 6.7 Affordable housing in residential business zones will be updated to include a reference to the new B3 Commercial Core zone, as will relevant items within Schedule 2 Exempt Development.

Building Height

 

LEP:

 

1.    Maintain the current maximum building height

It is recommended that the current maximum building height of 11.5m be maintained.  11.5m reflects the community’s desire for a maximum of 3 storeys.  11.5m can comfortably allow 3 storeys, and the DCP will set parameters for the internal floor-to-ceiling heights. 

2.    Amend the Building Heights Map to extend the area within which the maximum height of 11.5m applies to land bounded by Lawson Street to the south, Bay Lane to the north, Jonson Street to the west and Middleton Street to the east.

Given existing topography, a 11.5m building on the southern side of Bay Lane would not be visible from the beach above the 9m buildings on Bay Street.  Extending the building height map northwards to Bay Lane will mean that both sides of Lawson Street will now have 11.5m building height maximums.  As Lawson Street is a principle street in the Town Centre, it is expected that having buildings of 11.5m on either side would create a streetscape to reflect its prominence.

 

3.    Add a new clause for development on flood prone land, providing that building height can be measured from the flood planning level, rather than from existing ground level.

 

Parts of the Byron Bay Town centre are flood prone.  In those areas, new development must achieve a specified minimum ground floor level, to reduce the impact of flooding on occupiers of buildings.

The required minimum floor level, called Flood Planning Level, is derived from a detailed flood study of the Belongil Creek catchment.  The adopted level accounts for longer term sea level rise.

The result is that, for areas within the Town Centre that are flood prone, ground floor levels will need to be set above existing ground levels (varying from 0.4 - 1.2m).  As the definition of building height is based on existing ground levels, development in these flood prone areas is unreasonably restricted.

A new clause is therefore proposed to be added to LEP 2014 to address this, by providing that, in these cases, building height can be measured from a specified Australian Height Datum (AHD) level, rather than from existing ground level.  A new Building Height Allowance Map is proposed, which will specify the applicable AHD levels across the flood prone parts of the Town Centre.  The AHD levels shown on the Map will be the Flood Planning Levels derived from the Belongil Creek flood study.

4.    Amend Clause 4.6 to ensure building height can only be varied where the building contains no more than 3 storeys.

Clause 4.6 allows a development application to vary controls within the LEP.  The intention of amending this clause is to ensure that the maximum building height control cannot be varied, and breached, unless the building maintains only 3 storeys.  This reinforces the importance of a maximum 3 storeys while also allowing for varied roof structures.

DCP:

Within a new Byron Bay Town Centre Chapter, specify:

1.    A maximum building height not exceeding  3 storeys; and

The new DCP chapter will prescribe a maximum of 3 storeys for all development, new and renewal, within the Town Centre.  This is reflective of the character of the town and the community’s strongly held view.

2.    Minimum floor to ceiling heights, measured from finished floor level to finished ceiling level, of:

Ground Floor: 4.0m

First Floor: 3.3m

Second Floor: 2.7m

Internal floor to ceiling heights will assist in the maintenance of 3 storey buildings. Internal floor to ceiling heights will also assist in high quality building design by creating flexible spaces for ground and first floors, as well as comfortable habitable spaces which are less reliant on artificial lighting and ventilation.

Floor Space Ratio

 

1.    Removal of Floor Space Ratio from the LEP.

Floor Space Ratio is the ratio of the gross floor area of a development to the site area, expressed as a factor of 1.  For example, a development with a gross floor area of 200m2 on a site with an area of 400m2 would have an FSR of 0.5:1.

FSR’s are shown on the Floor Space Ratio Map, with the associated control established at Clause 4.4 of Byron LEP 2014.

The Floor Space Ratio Map currently shows an FSR of 1.3:1 as applicable for the Town Centre.

Unlike design controls for building height envelope, building alignments, setbacks, privacy distances, roof forms or landscaped areas, a maximum FSR is a poor planning mechanism for achieving built form when the objective is to conserve and enhance character and local amenity.

It is more appropriate in low density residential areas, to encourage private open space and lower building heights.

FSR unintentionally results in stacking of building mass in a smaller part of a site and a dominance of at grade parking in vacant spaces between buildings.

Additional Local Provisions

Add new Local Provisions to Part 6 of the BLEP2014, addressing:

1.  Compatible mixed use development in B3

2.  Design Excellence

3.  Active Street Frontages

1.    Compatible mixed use development

Residential development in the Town Centre is restricted to shop top housing (this would not change with a new B3 zone)

The Standard Template definition of shop top housing is:

one or more dwellings located above ground floor retail premises or business premises

The intention is to ensure that ground floor development within the Town Centre remains retail/ commercial in nature.

However, the definition is restrictive in that such housing can only be considered above retail or business premises.

The new clause proposes to allow residential development above a wider range of uses, including Child care centres; Commercial premises; Community facilities; Educational establishments; Information and education facilities; Medical centres; and Public administration building, all of which are permissible land uses in the B3 zone.

2.    Design excellence

The new provision will require that all new development or substantial additions to existing development will need to be designed to meet a number of stated requirements, relating to sustainability and consistency with existing character.

This draft clause responds to the Department of Planning and Environment’s push for a design led approach to developing policy that acknowledges and protects local character.

3.    Active street frontages

This is a model clause prepared by the Department of Planning and Environment, aimed at providing active, people-oriented streets within town centres.

It will introduce a new map into the LEP identifying streets and lanes in the Town Centre where the new provision will apply. 

The clause will require that the ground floor of proposed buildings facing the identified street or laneway is used for the purposes that will result in pedestrian movement in and out of the building (e.g. uses such as child care centres; commercial premises; community facilities; educational establishments; information and education facilities; medical centres; or public administration buildings)

Ancillary car parking

 

LEP & DCP

 

Introduce a new provision to identify the maximum number of ancillary car parking spaces that may be provided to service particular land uses as a part of a mixed use development within B3 zone.

The primary objective of the new clause is to minimise the amount of vehicular traffic generated because of new development in the Town Centre.

The provisions will relate only to the residential and/or tourism accommodation components on mixed use development in the Town Centre, and specify a maximum provision of parking as:

·      Shop to Housing:

1 space per unit, plus

1 visitor space per 5 dwellings

·      Hotel or motel accommodation or serviced apartments:

1 space per unit, plus

1 space for an on-site manager.

Given that these are maximum requirements, it will be possible for a developer to ‘opt out’ of providing any on-site parking spaces for these uses.

In that case, the new provisions will require the submission of a Sustainable Travel Plan which outlines the provisions to be provided within the development to address the transport needs of future occupants.

It is expected that these provisions would include a combination of things, such as bicycle parking, car share arrangements, etc.

In addition to these provisions, it is recommended that the amendment to the DCP be undertaken by way of a new Byron Bay Town Centre Chapter (Attachment 2).  This new Chapter would outline the desired future character for the Town Centre, and include a range of development controls to manage uses, street character, built form, car parking and the like.

Summary and conclusions

 

The attached Planning Proposal seeks to rezone land and introduce development standards and local planning provisions for the Byron Bay Town Centre to implement the strategic objectives of the Town Centre Masterplan.

 

The proposals will have positive social and economic effects by offering additional employment and trading opportunities for local people and businesses.  Numerous social and economic benefits are likely through increasing the efficient use of developable lands for jobs and mixed used development including housing in an existing centre.

 

The proposed zoning changes are consistent with the North Coast Regional Plan 2036 and Council’s Community Strategic Plan 2028.  The land is identified as an existing urban area.  An assessment of the planning proposal indicates that it is consistent with relevant SEPPs.  It is consistent with all relevant s117 Directions. 

 

There is sufficient information to enable Council to support the planning proposal and forward it to the Department of Planning and Environment for a Gateway determination.

 

Financial Implications

 

Should Council resolve to progress the Planning Proposal, it would require Council commitment for staff resources and any costs associated with community engagement and additional studies, if required by Gateway.

 

Statutory and Policy Compliance Implications

 

The relevant policy considerations are addressed above and would be further assessed in consideration of the Planning Proposal should Council resolve to proceed to Gateway.

 

 


BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy                                 13.10

 

 

Report No. 13.10         PLANNING - 26.2017.5.1 Planning Proposal to activate the Rail Corridor Byron Bay: Post Exhibition Report

Directorate:                 Sustainable Environment and Economy

Report Author:           Rob Van Iersel, Major Projects Planner

File No:                        I2018/1408

Theme:                         Sustainable Environment and Economy

                                      Planning Policy and Natural Environment

 

 

 

Summary:

 

At the ordinary meeting of 23 November 2017, Council resolved to exhibit a Planning Proposal to activate the rail corridor within the Byron Bay Town Centre (17-599).

 

That Proposal sought an amendment to the Byron LEP 2014 to enable a range of land uses on that land, including community uses and certain retail and office uses.  The Planning Proposal (26.2017.5.1) was publicly exhibited in March 2018 and attracted 6 submissions of objection.

 

The Planning Proposal was amended to remove reference to the commercial uses, and reported to the ordinary meeting of 24 May 2018, where Council resolved to seek an amended gateway to allow for the public exhibition of the amended Planning Proposal (18-298).

 

The amended Planning Proposal was publicly re-exhibited from Thursday 12 July, until Friday 3 August 2018.  Three submissions of objection were received, two from individual community members (Attachment 2) and one from the Heritage Division of the Office of Environment and Heritage (Attachment 3). 

 

A further submission was received from NSW Rural Fire Service, with recommendations regarding future management of bush fire risk (Attachment 4). 

 

The community objections relate to the flexibility of the planning proposal in allowing for ‘community use’, particularly relating to land uses potentially allowed under the definition of ‘community facility’.  The objections also opposed allowing commercial activities of any sort within the old Station building.

 

The Planning Proposal provides that development consent may be granted to community facilities in the wider corridor and in the Station building.  In the case of the Station building, the clause specifies that such a use could include “a commercial activity undertaken by a not-for-profit organisation or social enterprise”.

 

Any proposed future uses would be subject to a Development Application process, which would include public exhibition.  Council also has control as the holder of the licence over the land.

 

The concerns expressed, therefore, can be adequately managed. 

 

The Heritage Division of Office of Environment and Heritage (OEH) have advised that they do not support the Planning Proposal at this stage, recommending that it be put on hold pending completion of a Conservation Management Plan (CMP) for the corridor, which is listed as a State Heritage area.

 

Work on the preparation of the CMP has commenced, and is anticipated to take up to 2-3 months to complete.

 

Any use of this State Heritage listed area will require, in addition to planning approvals, approval under S60 of the Heritage Act 1977, with OEH the approval authority.  The completed CMP will provide the framework for such approval, which will not be able to be granted in the absence of the CMP.  The proposed amendment to the LEP has no effect on this.

 

It is considered that the proposed amendment to the LEP can continue at the same time as the CMP process, rather than needing to wait until that Plan has been completed and approved.

 

It is recommended, therefore, that Council resolve to proceed with Planning Proposal 26.2017.5.1, as exhibited, and advise the Department of Planning and Environment that the comments of OEH should be noted, but that the proposed amendment should not be delayed by the CMP process.

 

 

NOTE TO COUNCILLORS:

 

In accordance with the provisions of S375A of the Local Government Act 1993, a Division is to be called whenever a motion for a planning decision is put to the meeting, for the purpose of recording voting on planning matters.  Pursuant to clause 2(a) under the heading Matters to be Included in Minutes of Council Meetings of Council's adopted Code of Meeting Practice (as amended) a Division will be deemed to have been called by the mover and seconder of all motions relating to this report.

 

  

 

RECOMMENDATION:

That Council:

 

1.       Forward Planning Proposal 26.2017.5.1 to amend Byron LEP 2014, as exhibited and included at Attachment 1 (E2018/72385) to this report, to the Department of Planning and Environment requesting that a draft LEP be prepared.

 

2.       Advise the Department of Council’s view that the proposed amendment to Byron LEP 2014 should proceed despite the objection raised by the NSW Office of Environment & Heritage given that the amendments proposed do not impact on the need for future development to obtain approvals under the provisions of the Heritage Act 1977.

 

 

Attachments:

 

1        Planning Proposal (as exhibited) - without Annexures, E2018/72385  

2        26.2017.5.1 Community Submissions, E2018/70818  

3        NSW Office of Environment & Heritage, Heritage Division Submission, E2018/67615  

4        NSW Rural Fire Service Submission, S2018/10901  

 

 


 

Report

 

At the ordinary meeting of 23 November 2017, Council resolved (17-599):

 

1.    That Planning Proposal 26.2017.5.1 (excluding that part relating to the Butler Street Reserve) be approved by Council to proceed to gateway determination and for public exhibition.

2.    That the balance of Planning Proposal 26.2017.5.1 (relating to the Butler Street Reserve) and Planning Proposal 26.2017.6.1 be deferred for public consultation including the following:

a)    conducting community information sessions and collating feedback.

b)    issuing a media release and Council website post at least two weeks prior to the first information session to advise the community of the planning proposals with notice of all information sessions.

3.    That following completion of the information sessions and other community consultation, a report be received by Council, no later than the March Ordinary meeting, with a review of the community meetings and consultation. (Ndiaye/Richardson)

 

The Planning Proposal sought an amendment to the Byron LEP 2014 to enable a range of land uses on that land, including community uses and certain retail and office uses.  These commercial provisions were aimed at enabling small innovative local businesses to become established, as start-up projects, in the Town Centre.

 

The Proposal was publicly exhibited in March 2018.  It received 6 formal submissions of objection.  Additional objections were expressed by the Byron Bay Town Centre Masterplan Guidance Group.  The objections were all centred on the proposal to enable commercial use of the railway corridor, and most expressed the view that this would lead to unfair competition in relation to existing businesses in the Centre.

 

Based on these objectives, the Planning Proposal was amended to remove the proposed amendments relating to commercial uses of the wider corridor.  The remaining proposals sought to amend the LEP to allow community facilities and information and education facilities to be considered, subject to development consent, within the wider corridor.  It included a provision that development consent may be granted to development of the Station Building, previously used as a ticketing office for the rail station, and the adjacent railway platform, for the purposes community facility that includes a commercial activity undertaken by a not-for-profit organisation or social enterprise.

 

The amended Proposal was reported to Council at the May ordinary meeting.  At that meeting, Council resolved (18-298):

 

1.    Forward the revised planning proposal (Attachment 1) to the NSW Department of Planning and Environment to advise of the re-exhibition.

2.    Agree that staff can proceed to public exhibition of the planning proposal and government agency consultation, based on any subsequent advice from the NSW Department of Planning and Environment, and report back to Council as part of post-exhibition reporting.

 

The amended Proposal was publicly re-exhibited from Thursday 12 July, until Friday 3 August.  Three submissions of objection were received, two from individual community members (Attachment 2) and one from the Heritage Division of the Office of Environment and Heritage (Attachment 3). 

 

A further submission was received from NSW Rural Fire Service, with recommendations regarding future management of bush fire risk (Attachment 4). 

 

The community objections expressed concerns regarding the flexibility of the planning proposal in allowing for ‘community use’.  The objections also opposed allowing commercial activities of any sort within the old Station building.

 

Byron LEP defines community facility as:

a building or place:

(a)   owned or controlled by a public authority or non-profit community organisation, and

(b)   used for the physical, social, cultural or intellectual development or welfare of the community,

but does not include an educational establishment, hospital, retail premises, place of public worship or residential accommodation.

 

Information and education facility means:

a building or place used for providing information or education to visitors, and the exhibition or display of items, and includes an art gallery, museum, library, visitor information centre and the like.

 

At this time, Council does not have any specific proposals for the use of the rail corridor, other than concept plans for landscaping, removal of existing fences, and the provision of west to east pedestrian pathways connecting Butler Street to the Town Centre.

 

The LEP definitions of community facility and information and education facility were chosen as they provide for future proposals that might allow the use of the space for a range of community, cultural and educational uses of the space, to benefit the wider community and facilitate the activation of what is currently an unused space.

 

Any specific future proposals would be subject to the development application process.  The proposed amendment to the LEP merely facilitates that process, allowing proposals to be considered.

 

It is also noted that Council retains control over the land as the holder of the licence for use of the space, effectively acting as land owner in that regard.  In that capacity, Council can therefore determine whether specific proposals proceed to development application.

 

It is considered, therefore, that there is sufficient control in place to address the concern expressed.

 

The Planning Proposal provides, by way of a new Local Provision within Byron LEP 2014, development consent may be granted to community facilities in the wider corridor and in the Station building.  In the case of the Station building, the clause specifies that such a use could include “a commercial activity undertaken by a not-for-profit organisation or social enterprise”.

 

Objections have been submitted to this provision, amongst other things, that it does not guarantee sufficient social outcomes and that there remains strong potential to impact on existing local business.

 

One submission strongly suggests that Council consider use of the building for a Byron Bay museum, arguing that:

1.   A building that informed and celebrated the local history would be entirely suited to this historic precinct and would be a way to help preserve the area's historical bounty. It would be an invaluable local educational resource and could house a genealogy facility.

2.   A museum would be consistent with the aim of making Railway Park a community and family friendly area and would be a valuable addition to the range of uses and attractions of the park.

3.   With the right controls on activities a museum would enhance rather than threaten local trade. Admission and other charges could be used to maintain the building.

4.   It could be part of broadening Byron Bay's profile, catering to a more diverse tourist trade.

5.   It is possible that a museum, with the right adaptations and retractable/removable enclosure of the platform area (eg cafe blinds) could also provide an additional community and cultural facility.

 

The Planning Proposal, as currently drafted, would allow such a use, subject to development consent.

 

Other objections are summarised and addressed in the table below:

 

Concern

Comment

The objective of the Planning Proposal is to facilitate future actions as recommended in the Town Centre Masterplan – the objector does not accept the validity of the Masterplan or the extent of community support for its implementation.

The Masterplan has been adopted by Council.

Relocation of markets is no longer required, therefore such commercial activity should not be pursued for the rail corridor.

Temporary relocation may be required during construction of the Butler Street Bypass.

The proposal eliminates the sites future use for rail transport.

Any use, landscaping or activity will be designed to retain the potential to use the corridor for rail transport.

The proposal eliminates the station building from use as servicing future rail transport

Council, in considering potential future uses, would be mindful of this concern.

There is no identification of actual proposed use of the station building.

Council has not determined a use for that building at this time.

The proposal to allow single one-off events and ceremonies on public reserves and roads is not supported as these matters should be subject to development assessment and public notification processes.

Entertainment and events on public roads are currently exempt development in the LEP.  The proposed amendment merely provides greater certainty about the nature of events and extends the exemption to other public land.

The proposed developments have not demonstrated compliance with the site’s heritage listing.

Any proposed uses of the rail corridor, which is part of a State listed heritage area, would be subject to approvals under the Heritage Act, in addition to planning approval.  Nothing in this proposed amendment removes that process.

The existing Conservation Management Strategy does not account for endangered and critically endangered species that inhabit adjacent vegetation.

The Conservation Management Strategy relates to European Heritage only.  Notwithstanding, the Planning Proposal specifically excludes the area of high environmental value vegetation within the rail corridor.  As such, the amendments proposed would not facilitate any use within that area. 

Allowing Concept Landscape Plans to be implemented without consent removes the community’s ability to review and comment on detailed construction plans.

Notwithstanding this provision, Council can choose to seek input into landscape plans if it chooses.

 

 

The Heritage Division of Office of Environment and Heritage (OEH) have advised that they do not support the Planning Proposal at this stage, recommending that it be put on hold pending completion of a Conservation Management Plan (CMP) for the corridor, which is listed as an area State Heritage.

 

Work on the preparation of the CMP has commenced, and is anticipated to take up to 2-3 months to complete.  It would then be submitted to OEH for endorsement by the Heritage Council of NSW.

 

Any use of this State Heritage listed area will require, in addition to planning approvals, approval under S60 of the Heritage Act 1977, with OEH the approval authority.  The completed CMP will provide the framework for such any approvals, which will not be able to be granted in the absence of the CMP.  The proposed amendment to the LEP has no effect on this and would not authorise or facilitate any development of the land outside of the CMP and Heritage Act approval process.

 

It is considered, however, that there is no valid reason why the proposed amendment to the LEP cannot continue concurrently with the CMP process, rather than needing to wait until that CMP has been completed and approved.  This would avoid significant delays without eroding the overriding heritage protections in place.

 

It is recommended, therefore, that Council resolve to proceed with Planning Proposal 26.2017.5.1 as exhibited.

 

Financial Implications

 

As a Council initiated Planning Proposal, the administration costs has been met by Council.

 

Statutory and Policy Compliance Implications

 

Council has followed the statutory process to amend Byron LEP 2014 through this Planning Proposal.  Council should now decide whether to proceed to finalise the Proposal, with or without amendments.

 

 

 


BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy                                 13.11

 

 

Report No. 13.11         Report of the Planning Review Committee Meeting held on 9 August 2018

Directorate:                 Sustainable Environment and Economy

Report Author:           Chris Larkin, Manager Sustainable Development

File No:                        I2018/1516

Theme:                         Ecology

                                      Development and Approvals

 

 

Summary:

 

This report provides the outcome of the Planning Review Committee Meeting held on 9 August 2018.

 

 

  

RECOMMENDATION:

That Council note the report of the Planning Review Committee meeting held on 9 August 2018.

 

 

 


 

Report:

 

The meeting commenced at 4:15pm and concluded at 4:40pm.

 

Present: Crs Richardson, Spooner, Martin, Hackett, Ndiaye, Hunter

Staff:  Chris Larkin (Manager Sustainable Development).

Apologies: Nil

 

The following development applications were reviewed with the outcome shown in the final column.

 

DA No.

Applicant

Property Address

Proposal

Exhibition

Submission/s

Reason/s

Outcome

10.2018.305.1

Bayview Land Development Pty Ltd

77 Tuckeroo Avenue MULLUMBIMBY 

Subdivision to Create Thirty-Two (32) Lots

 

(Tallowood Ridge Stage 7)

Level 2

12/7/18 to 8/8/18

 

 

The perceived public significance of the application.

 

Council

10..2018.259.1

Joe Davidson Town Planning

320 McAuleys Lane

MYOCUM 

Use of Site as Landscaping Material Supplies

Level 2

21/6/18 to 4/7/18

 

10 submissions

The number of public submissions.

 

Council

10.2018.137.1

Balanced Systems Planning Consultants

149 Federal Drive EUREKA 

Rural Land Sharing Community (Multiple Occupancy) consisting of Fifteen (15) Dwelling Sites

Level 2

26/4/18 to 9/5/18

 

34 submissions

 

The number of public submissions.

 

Council

10.2018.342.1

Mr K Gillespie

5 Luan Court BYRON BAY

Secondary Dwelling

Level 1

20/7/18 to 2/8/18

 

4 submissions

The validity of the matters raised in the public submissions

 

Council determined the following original development applications. The Section 96 applications to modify the development consents were referred to the Planning Review Committee to decide if the modification applications can be determined under delegated authority.

 

DA No.

Applicant

Property Address

Proposal

Exhibition

Submission/s

Reason/s

Outcome

10.2006.738.5

Planners North

5/6 Durrumbul Road

MAIN ARM 

S4.55 to Delete Condition 28(a) and Permit More than One (1) Dwelling Per Neighbourhood Lot

Level 2

24/5/18 to 6/6/18

 

No submissions

Under Staff Delegation

10.2017.402.2

Bayview Land Development Pty Ltd

77 Tuckeroo Avenue MULLUMBIMBY 

S4.55 to include an area for Temporary Stockpile of Unsuitable Material

Level 1

16/7/18 to 29/7/18

 

1 submission

Under Staff Delegation

10.2016.189.2

Koho Projects

116 Stuart Street MULLUMBIMBY 

S4.55 to Amend Condition 17 for Road Works

Level 2

12/7/18 to 25/7/18

 

No submissions

Under Staff Delegation

 


BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy                                 13.12

 

 

Report No. 13.12         Local Heritage Places Grants 2018-19

Directorate:                 Sustainable Environment and Economy

Report Author:           Shannon Burt, Director Sustainable Environment and Economy

Nancy Tarlao, Planner

File No:                        I2018/1518

Theme:                         Ecology

                                      Development and Approvals

 

 

Summary:

 

This report seeks Council endorsement of the funding recommendations made by the Heritage Panel on 30 August, 2018 for the 2018-19 Local Heritage Places grants.

 

 

  

 

RECOMMENDATION:

1.       That Council receive the information in the report on Local Heritage Places Grants 2018-19 and endorse the funding recommendations made by the Heritage Panel on 30 August, 2018.

 

2.       That staff notify all of the grant applicants of Council’s decision.

 

Attachments:

 

1        Confidential - Project Application Local Heritage Places Fund 2018/19 - Prince Street, Mullumbimby, E2018/69097  

2        Confidential - Project Application Local Heritage Places Fund 2018/19 - Station Street, Mullumbimby, S2018/9868  

3        Confidential - Project Application Local Heritage Places Fund 2018/19 - 28 Dalley Street, Mullumbimby, S2018/9785  

4        Confidential - Project Application Local Heritage Places Fund 2018/19 - 136 Dalley Street, Mullumbimby, S2018/9867  

5        Confidential - Project Application Local Heritage Places Fund 2018/19 - 392 Middle Pocket Road, Billinudgel, S2018/9869  

6        Confidential - Project Application Local Heritage Places Fund 2018/19 - 355 Coopers Shoot Road, Coopers Shoot, S2018/9648  

7        Confidential - Project Application Local Heritage Places Fund 2018/19 - Terrace Reserve, Brunswick Heads, S2018/9949  

8        Confidential - Project Application Local Heritage Places Fund 2018/19 - 21 Fingal Street, Brunswick Heads, S2018/9682  

9        Confidential - Project Application Local Heritage Places Fund 2018/19 - 5 Lismore Road Bangalow , E2018/71866  

10      Confidential - Project Application Local Heritage Places Fund 2018/19 - 3 Granuaille Cresent Bangalow , E2018/71873  

11      Confidential - Project Application Local Heritage Places Fund 2018/19 10 Marblewood Place Bangalow , E2018/71877  

 

 

 

 

 

 

 

 

Report

 

The Local Heritage Places Grants program is jointly funded by Council and the NSW Heritage Division as part of its commitment to heritage management and tourism within Byron Shire. The purpose of the fund is to provide small grants to support owners of heritage items or draft heritage items in maintaining their heritage property.

 

There is a total of $12,000.00 in the 2018-19 fund made up of a grant from the Heritage Division of the NSW Office of Environment of $6,000.00 and $6,000.00 from the Council.

 

Up to $3,000 is available for each project from a total funding pool. The main conditions are that property owners need to provide one dollar for every dollar contributed jointly by Council and the Heritage Division and that the work must be completed before or by March, 2019.

 

Eleven (11) applications were received this year.  Each proposal was assessed by

Council’s Heritage Advisor against the required Heritage Division criteria. (Grant applications are confidential attachments 1 – 11).

 

file://fapmho2/users$/sburt/Downloads/E201851035-Local-Heritage-Fund-Guidelines-2018-19.pdf

 

 

The focus for the 2018-2019 Local Heritage Places Grants is conservation works that enhance individual places, buildings and historic streetscapes including buildings in conservation areas that will promote and foster community appreciation of the history of the Shire.

 

After consideration by the Heritage Panel members along with Council’s Heritage Adviser and staff, a total of 9 projects that met the criteria have been recommended to Council for funding this year. (Successful Applications are attachments 1-6, 8, 10 & 11). Three (3) applications will receive $2,000 each, with the remaining six (6) to receive $1000 each.

 

The funding of these projects will support over $60,000 worth of work to be carried out in this financial year on heritage property restoration.

 

Financial Implications

 

Council has delivered the Local Heritage Places Grants with the aid of a grant from the Heritage Division of the NSW Office of Environment and Heritage with Council providing $6,000 to qualify for $6,000 from the Heritage Division.

 

Statutory and Policy Compliance Implications

 

The operation of the Local Heritage Places Grants program is a task of the Byron Shire Heritage Strategy 2016-2019.

 


BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy                                 13.13

 

 

Report No. 13.13         PLANNING - Development Application 10.2018.233.1 Mobile Telecommunications Facility including 35 metre Monopole, Six (6) antennae and ancillary equipment at Wilsons Creek Road, Wilsons Creek

Directorate:                 Sustainable Environment and Economy

Report Author:           Greg Smith, Team Leader Planning Services

Noreen Scott, EA Sustainable Environment and Economy

File No:                        I2018/1564

Theme:                         Sustainable Environment and Economy

                                      Development and Certification

 

 

DA No:

10.2018.233.1

Proposal description:

Mobile Phone Telecommunications Facility including 35 Metre High Monopole, Six (6) Antennae and Ancillary Equipment

Property description:

LOT: 1 DP: 202997

Wilsons Creek Road WILSONS CREEK

Parcel No/s:

99360

Applicant:

Service Stream

Owner:

Telstra Corporation Ltd

Zoning:

7(c) (Water Catchment Zone)

Date received:

16 May 2018

Integrated Development:

No

Public notification or exhibition:

-    Level 2 advertising under DCP 2014 Part A14 – Public Notification and Exhibition of Development Applications

-    Exhibition period: 7/6/2018 to 12/7/2018

-    Submissions received: 114 individual submissions, plus a petition indicated to contain 1304 signatures on pro forma letters

-    Submissions are publically available from the following link:

www.byron.nsw.gov.au/Council/Council-meetings/Additional-Supporting-Information/

Delegation to determination:

Council

Issues:

·    Bush fire prone land

·    High environmental value vegetation, Very high ecological values, Threatened species, populations and ecological communities, High Biodiversity Values on the Biodiversity Values Map under the Biodiversity Conservation Act 2016.

·    Council cannot approve Part 4 development without a Biodiversity Development Assessment Report (BDAR).

·    Flora and Fauna assessment report and Assessment of Significance not submitted.

·    EME radiation impacts on wildlife.

·    Building height under LEP 1988 clause 40, with SEPP 1 objection submitted (development standard is 9m, total height is 36.3m).

·    Development not demonstrated to be appropriate to the location, surrounding development and environmental characteristics of the land. SEPP 1 objection not well founded and does not demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.

·    Not consistent with objective (d) of the 7(c) (Water Catchment Zone.

·    Conflicts with existing overhead 11kV powerlines, LV overhead powerlines and  a 11kV / LV pole substation.

·    Application not supported by a site plan identifying the closest residences contained in EME Report to determine the impact of the proposal on these dwellings.

·    Application fails to address on-site sewage management.

·    Public submissions (114 individual submissions, plus a petition indicated to contain 1304 signatures on pro forma letters).

 

Summary:

 

The DA proposes Mobile Phone Telecommunications Facility including 35 Metre High Monopole, Six (6) Antennae and Ancillary Equipment.

 

The proposal raised a significant level of objection from the community in terms of siting, environmental impacts, health and amenity impacts, electro magnetic radiation, visual impacts, proximity to power lines and surrounding residential properties.

 

It is considered that the development does not meet Councils planning controls or standards, having regards to the height provisions within Byron LEP 1988, and the objectives of the 7(c) Water Catchment Zone. Further having regards to the number of objections it is considered the proposed telecommunications tower is not in the public interest.  

 

The application is recommended for refusal. 

 

 

 

NOTE TO COUNCILLORS:

 

In accordance with the provisions of S375A of the Local Government Act 1993, a Division is to be called whenever a motion for a planning decision is put to the meeting, for the purpose of recording voting on planning matters.  Pursuant to clause 2(a) under the heading Matters to be Included in Minutes of Council Meetings of Council's adopted Code of Meeting Practice (as amended) a Division will be deemed to have been called by the mover and seconder of all motions relating to this report.

 

  

 

RECOMMENDATION:

That Pursuant to Section 4.16 of the Environmental Planning & Assessment Act 1979, Development Application 10.2018.233.1 for Mobile Phone Telecommunications Facility including 35 metre high monopole, six (6) antennae and ancillary equipment, be refused for the following reasons:

 

1.       Pursuant to Section 4.15(1)(a)(i) of the Environmental Planning and Assessment Act 1979 the proposed development fails to comply with Clause 45 of State Environmental Planning Policy (Infrastructure) 2007, having regards to its proximity existing overhead power lines.

 

2.       Pursuant to Section 4.15(1)(a)(i) of the Environmental Planning and Assessment Act 1979 the proposed development is inconsistent with objective (d) of the 7(c) Water Catchment Zone as insufficient information has been provided to demonstrate that the use is appropriate in terms of conserving or enhancing the environmental amenity of the locality.

 

3.       Pursuant to Section 4.15(1)(a)(i) of the Environmental Planning and Assessment Act 1979 the proposed development is inconsistent with Cause 40 (Height) of Byron LEP 1988 and the SEPP 1 Objection has failed to demonstrate that compliance with the development standard is unreasonable or or unnecessary in the circumstances of the case.

 

4.       Pursuant to Section 4.15(1)(b) of the Environmental Planning and Assessment Act 1979, the proposed development fails to satisfactorily address the environmental impacts of the proposal including impacts on threatened species, populations and ecological communities, nor does it meet the requirements under the Biodiversity Conservation Act 2016.

 

5.       Pursuant to Section 4.15(1)(c) of the Environmental Planning and Assessment Act 1979, the site is considered unsuitable for the proposed development having regards to the ecological values of the site and its proximity to surrounding properties.

 

6.       Pursuant to Section 4.15(1)(e) of the Environmental Planning and Assessment Act 1979 the proposed development is not in the public interest having regards to the level of community objection to the telecommunication tower. 

 

 

Attachments:

 

1        Proposed Plans, E2018/68630  

2        Confidential - further submissions dated 23/8/18, E2018/71816  

3        Legal Advice received from objectors dated 23 August 2018, E2018/71820  

 

 


 

 

99360

 

 

1.         INTRODUCTION

 

1.1.          History/Background

 

There is no approval history according to Council’s records for this site.

 

1.2.          Description of the proposed development

 

This application seeks approval for Mobile Phone Telecommunications Facility including 35 Metre High Monopole, Six (6) Antennae and Ancillary Equipment.

 

1.3.          Description of the site

 

Land is legally described as

LOT: 1 DP: 202997

Property address is

Wilsons Creek Road WILSONS CREEK

Land is zoned:

7(c) (Water Catchment Zone)

Land area is:

132.8m2

Property is constrained by:

Bush fire prone land, High environmental value vegetation

 

The site is owned by Telstra and accommodates an existing compound including an existing equipment shelter.

 

20180727_090627

 

 

2.         SUMMARY OF REFERRALS

 

Natural Resources Access Regulator

The NSW Natural Resources Access Regulator advises that a controlled activity approval may be required where any works are proposed on water front land as provided by Section 91 of the Water Management Act 2000.  

 

Rural Fire Service

The property is located in a Bushfire Prone Area. The proposal was referred to the NSW Rural Fire Service who raised no objection to the development. Conditions would apply should the application be approved.  

 

Essential Energy

The proposal is located in close proximity to overhead power lines and was referred to Essential Energy who advised as follows:

 

Essential Energy notes that existing overhead 11kV powerlines, LV overhead powerlines and  a 11kV / LV pole substation are impacted by the proposed development (approximate location shown on the attached Smallworld map). Essential Energy has safety concerns in relation to the proximity of the proposed development to its existing infrastructure.

 

Any development in proximity to Essential Energy’s electrical infrastructure should comply with the latest industry guideline currently known as ISSC 20 Guideline for the Management of Activities within Electricity Easements and Close to Infrastructure.

 

Having regards to the above it is considered the proposals fails to satisfy Clause 45 of SEPP Infrastructure nor meets Essential Energy’s requirements. The application does not address these requirements and is recommended for refusal.

 

Ecological Planner

The site is mapped as both Sensitive and Vulnerable Regulated Land on the Native Vegetation Regulatory map and the Biodiversity Values Map

 

 

 

 

The area surrounding the site is also mapped as HEV and threatened fauna habitat.

 

“The application states:

Despite this acknowledgement, no flora and fauna assessment has been provided with the application so it is not possible to adequately assess the ecological impacts. Such a report is required. In addition, recent survey work in Nightcap National Parks indicates adverse wildlife effects arising from mobile phone towers. In such a high environmental value area as proposed, these matters require adequate consideration”.

 

The following matters are of importance

 

1.       The location of the proposed phone tower is within an area of very high ecological values. The site is mapped as High Biodiversity Values on the Biodiversity Values Map under the Biodiversity Conservation Act 2016. Council cannot approve any Part 4 development without a Biodiversity Development Assessment Report (BDAR).

 

2.       A Flora and Fauna assessment report is required which considers the Subject Site and the Study Area in accordance with OEH guidelines and assesses the likelihood of threatened species, populations and ecological communities on and in proximity to the site and provides Assessment of Significance to determine whether the impact is likely to be significant.

-    

3.       Given recent research findings on local wildlife effects at Mount Nardi (see link below) and other research undertaken overseas which appears to indicate adverse wildlife impacts arising from EME radiation. This has not been addressed

https://ehtrust.org/science/bees-butterflies-wildlife-research-electromagnetic-fields-environment/

-     

The application does not address the above matters and is recommended for refusal.

 

 

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

 

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

 

3.1       State Environmental Planning Instruments

 

 

Satisfactory

Unsatisfactory

State Environmental Planning Policy No 55—Remediation of Land

Consideration: Council’s Environmental Health Officer advises as follows: “The subject land is currently owned by Telstra and contains an existing Telstra Facility.  The development does not result in an increased sensitivity of land use.  No further investigation is considered to be necessary”.

 

State Environmental Planning Policy (Infrastructure) 2007

Consideration: The proposed telecommunications facility is permitted with consent pursuant to clause 115 of the Infrastructure SEPP.

 

However, the development application is not satisfactory having regard to clause 45 of State Environmental Planning Policy (Infrastructure) 2007 because, having regard to the advice provided by Essential Energy:

 

(a)      there are existing overhead 11kV powerlines, LV overhead powerlines and  a 11kV / LV pole substation that are impacted by the proposed development;

(b)      there are safety concerns in relation to the proximity of the proposed development to its existing infrastructure;

(c)      the application fails to demonstrate that the development, which is in proximity to Essential Energy’s electrical infrastructure, complies with the latest industry guideline currently known as ISSC 20 Guideline for the Management of Activities within Electricity Easements and Close to Infrastructure; and

(d)      the application is not supported by plans certified by a suitability qualified person (showing distances from the proposed development to Essential Energy’s existing infrastructure) together with any other relevant information for further consideration demonstrating that the proposed development complies with ISSC20.

 

The application is recommended for refusal accordingly.

 

State Environmental Planning Policy (Rural Lands) 2008

Consideration: There are no significant issues under the Rural Lands SEPP.

 

 

4.2     Byron Local Environmental Plan 1988 (LEP 1988)

 

LEP 1988 is an applicable matter for consideration in the assessment of the subject development application in accordance with subsection 4.15(1) of the EP&A Act because it applies to the subject land and the proposed development.

 

The land is within the 7(c) Water Catchment Zone according to the map under LEP 1988. The proposed development is defined as a telecommunications facility under the Infrastructure SEPP as indicated above. The proposed development is permitted with consent in accordance with clause 115 of the Infrastructure SEPP. The proposed development is consistent (or not consistent) with the objectives of the 7(c) Zone for the following reasons:

 

Zone Objective

Consideration

(a)  to prevent development within the catchment of existing or future water supply systems which would have a significant detrimental effect on the quality or quantity of the water supply

The proposed development is not of such a scale, intensity or water quality polluting potential that would have a significant impact on existing or future water supply systems , quality or quantity.

(b)  to ensure that development maintains the rural character of the locality and minimises disturbances to the landscape through clearing, earthworks and access roads so as to avoid erosion

The proposed development will not have a significant impact upon the broader rural character of the locality, and minimises disturbances to the landscape through clearing, earthworks and access roads so as to avoid erosion.

(c)  to ensure that development does not create unreasonable or uneconomic demands, or both, for provision or extension of public amenities or services

The proposal does not create unreasonable or uneconomic demands for provision or extension of public amenities or services, but instead adds to existing amenities and services.

(d)  to enable the carrying out of appropriate uses on the land within the zone in a sound manner which conserves or enhances the environmental amenity of the locality

The DA does not demonstrate that the proposal will be carried out in a sound manner to conserve / enhance the environmental amenity of the locality for the following reasons:

 

·    The location of the proposed phone tower is within an area of very high ecological values;

·    The DA is not supported by a Biodiversity Development Assessment Report (BDAR);

·    A Flora and Fauna assessment report is not submitted in support of the DA, assessing the likelihood of threatened species, populations and ecological communities on and in proximity to the site and providing an Assessment of Significance to determine whether the impact is likely to be significant;

·    The DA does not demonstrate that there would not be significant adverse wildlife impacts arising from EME radiation;

 

The proposal is not consistent with the zone objective. The DA is recommended for refusal accordingly.

(e)  to ensure land uses which use pesticides and herbicides or other pollutants are kept to a minimum to maintain the quality of run off water

The proposed land use does not use pesticides, herbicides or other pollutants that are expected to have a significant impact on the quality of run off water, subject to appropriate erosion and sediment control measures being installed during construction.

(f)  to enable the careful control of noxious plants and weeds by means not likely to be significantly detrimental to the native ecosystem

The development is able to employ careful control of noxious plants and weeds by means not likely to be significantly detrimental to the native ecosystem as required.

 

The remaining checked clauses have been taken into consideration in the assessment of the subject development application in accordance with subsection 4.15(1) of the EP&A Act. The proposed development complies with all of these clauses (in some cases subject to conditions and/or to the satisfaction of other assessing officers), except in relation to  which  considered further as follows:

 

What clause does the development not comply with and what is the nature of the non-compliance?

Further consideration, including whether the development application is recommended for approval or refusal accordingly

40. Height

The proposed development exceeds the 9m maximum vertical distance between the topmost part of the building and the existing ground level below requirement. A SEPP 1 objection in this regard is considered below.

 

Clause 40 – Height

Subclause 40(2) of LEP 1988 states that the council must not consent to the erection of any building on land within any zone other than Zone No. 3(a), if the vertical distance between the topmost part of the building and the existing ground level below exceeds 9m. The proposed building has an overall height of 36.3m. Accordingly, the development application does not meet the 55m front setback requirement and the DA is supported by an objection pursuant to SEPP 1.

 

The Land Environment Court judgment in Wehbe v Pittwater Council [2007] identified requirements needed in order to uphold a SEPP 1 objection, and these are addressed in the circumstances of this particular case as follows:

 

Is the requirement a development standard?

The 9m height requirement is a development standard as defined by section 1.4 of the Environmental Planning and Assessment Act 1979, because it is a provision of an environmental planning instrument in relation to the carrying out of development, being a provision by or under which requirements are specified and standards are fixed in respect of the height of a building.

 

Is the objection in writing, is it an objection “that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case” and does it specify “the grounds of the objection”?

The Applicant submitted a written objection under SEPP 1 (refer to Doc #S2018/7774) dated 6/6/2018. It is an objection that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case and specifies the grounds of the objection as follows:

 

Compliance is Unnecessary

Clause 40 of the BLEP 1988 provides guidance on Development Standards on height for works within the LGA, particularly in relation to building height. While the proposal is located in an area under which the vertical distance between the topmost portion of a building and the ground level must not exceed 9 metres, the proposal does not consist of a building. The use of the term building within the BLEP 1988 relates to habitable structures within which a variety of uses are undertaken and equipment/machinery is housed. The Dictionary of the BLEP 1988 includes multiple uses of the word building which is consistent with the aforementioned statement. Furthermore the BLEP has no special provisions for telecommunication facilities. The proposed facility is considered as telecommunications infrastructure, and the monopole has a very minimal footprint and surface area. Based on this inconsistency Telstra consider the proposed facility as not constituting of a building as per the BLEP 1988. In this instance the only building is the existing equipment shelter which itself is already complies with the height requirement. Consequently the objective of Clause 40 of the BLEP 1988 is considered not relevant to the proposed development and in this case strict compliance is considered unnecessary.

 

Compliance Is Unreasonable

By their nature, telecommunications facilities are unable to comply with prescriptive height

restrictions because, to function they must protrude above the surrounding area including

topographical features, buildings and vegetation. Additionally this telecommunications pole is being proposed as part of the Federal Government's Mobile Black Spot Program. One of the key purposes of the MBSP is to improve the safety for people who live, work and travel in regional and remote areas. The ability for drivers, motorcyclists, cyclists and other road users to be able to call for help in the event of a breakdown, road accident or other emergency is critically important to the Federal Government. Currently, the only option available to people who require assistance in a mobile black spot is to flag down a passing motorist, send them to an area with adequate mobile phone coverage and trust that person to call for help. Extending beyond road safety, mobile phone coverage is important for providing an additional level of safety to tradespeople and farmers who sustain injuries while working in remote areas without access to a landline, such as a paddock or job site, or for people enjoying the natural beauty of an area by hiking or other outdoor activities which can all pose a risk of injury or getting lost. In these circumstances, mobile phone coverage enables communication with emergency services, as well as access to navigation tools and first aid information. As such Telstra considers this facility is as an important part of infrastructure in the area and its ability to function effectively is dependent on its protrusion above the surrounding environment. Additionally this telecommunications monopole is of a slimline nature and has been designed and will be finished in a manner that will not negatively affect surrounding development or the environmental characteristics of the land. As such compliance with the General Provision contained in Clause 40 of the BLEP would be unreasonable for a telecommunications facility”.

 

In addition, the SEPP 1 objection states that the development standard has been abandoned and provides planning justification for the variation as follows:

 

The Development Standard has previously been abandoned

Within the Byron LGA there are 3 communications facilities zoned 7D Scenic Escarpment pursuant to the BLEP 1988, at St Helena Road, Mcleods Shoot NSW 2479. The first is a 40m NSW Police Force Lattice Tower at Lot 1 DP 441480, RFNSA site number 2479004. The second is an Axicom Lattice Tower also on Lot 1 DP 441480, RFNSA site number 2481001. The third is a 53m Telstra owned Lattice Tower plus 12m Extension on an unidentified lot that can be recognized as being within the road reserve of St Helena Road, RFNSA 2479002. These identified structures significantly penetrate the 9m Development Standard identified under Clause 40 of the BLEP 1988. They are considerably larger than the proposed facility (a 35m monopole) both in height and scale, however due to the nature of communications infrastructure their size is warranted and they form a part of important infrastructure.

 

Planning Justification pursuant the BLEP 1988

The proposal does not impede on the objectives of 7C Water Catchment zone particularly because it is a small footprint in an existing Telstra compound that has already been disturbed for the purposes of its establishment. The primary objective of the zone is to prevent development which negatively affects the environment through significant disturbance of the landscape leading to the damaging of existing or future water supply systems. The earthworks for the establishment of the new facility would be minimal and requiring no additional vegetation clearing. The proposal will form a reliable public service by improving communication and providing access to services that previously were available. This will not create any unreasonable demands to Council for the provision of public amenities. Furthermore the proposal does not impinge on the ability of any existing activities being carried out on the land or affect the conservation of the natural environment. The proposal does not involve an activity that utilises herbicides or any other pollutants. As such the quality of run-off water will not be negatively affected. Telecommunications facilities by nature require minimal maintenance. In addition this facility will be maintained by measures that are likely not to be significantly detrimental to the native ecosystem. As such from a planning perspective it is Telstra's opinion that there are no grounds by which the proposal will break away from the objects of the zone.

 

The SEPP 1 objection concludes as follows:

 

Conclusion

Consequently with respect to the proposed DA the objective of General Provision 40 of the BLEP 1988 is considered not relevant to the proposed development and strict compliance is considered unnecessary and unreasonable.

 

Telstra consider there is clear justification for the facility to exceed the 9 metre building height

restriction in this area based on the above discussion. Accordingly, we request that Council consider the proposal under Clause 6 of the SEPP1 (Development Standards) given:

 

·        The proposed development is not considered a building as per the use of the term within the BLEP 1988. There is no reference to telecommunications facilities within this instrument and therefore this inconsistency renders the development standard unnecessary to the proposal. For telecommunications facilities, compliance with this height restriction is unreasonable.

·        Telecommunications facilities provide an essential service in the case of emergencies and are considered a normal part of modern infrastructure and in order to function must extend above their existing environment therefore compliance is unreasonable.

·        There are existing structures zoned under the BLEP 1988 that significantly exceed the 9m building height standard contained in Clause 40, that form part of important infrastructure within the LGA.

·        As the proposal does not impinge on the objectives of the relevant zone there are sufficient environmental grounds to contravene the development standard”.

 

It should be clarified that the proposed development is a “building” having regard to the applicable definition in section 1.4 of the Environmental Planning and Assessment Act 1979, which is:

 

building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure within the meaning of the Local Government Act 1993.

 

Is “the objection well founded” and will “granting of consent to the development application be consistent with the aims of SEPP 1 as set out in clause 3”?

An objection under SEPP 1 may be well founded and be consistent with the aims set out in clause 3 of the Policy in one of a variety of ways (according to the above mentioned judgment). These are:

 

1.       Compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard.

2.       The underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary.

3.       The underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable.

4.       The development standard has been virtually abandoned or destroyed by the Council’s own actions in granting consents departing from the standard and hence compliance with the standard is unreasonable and unnecessary.

5.       The zoning of particular land was unreasonable or inappropriate so that a development standard appropriate for that zoning was also unreasonable or unnecessary as it applied to that land and compliance with the standard in that case would also be unreasonable or unnecessary.

 

Clause 40 provides the following stated objectives.

 

(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 that the height and scale of development is appropriate to its location, surrounding development and the environmental characteristics of the land.