Agenda of Planning Meeting

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 6.1

Staff Reports - Sustainable Environment and Economy

Report No. 6.1 PLANNING - DCP 2014 Minor Amendments

Directorate: Sustainable Environment and Economy

Report Author: Isabelle Hawton, Planner

File No: I2018/2110

Theme: Sustainable Environment and Economy

Planning Policy and Natural Environment

Summary:

The DCP is periodically reviewed to ensure that planning controls are current and correct. This amendment proposes minor changes to DCP 2014 to assist Council officers when assessing development applications, and to better reflect the planning policies of Council. Circumstances that have necessitated the proposed amendments include: resolutions of Council that require amendments to the DCP; policies adopted by Council that require amendments to the DCP; amendments associated with planning proposals or Council initiatives such as Town Centre Masterplans; and issues identified through the day to day application and interpretation of the current planning controls.

The amendments proposed in this report are minor in nature and seek to address anomalies and inconsistencies that create issues when assessing development applications. These proposed amendments have been grouped together in a ‘housekeeping’ format. Amendments of greater complexity that have policy implications will be reported to Council separately in due course.

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. Proceed with preparation and public exhibition of the Byron DCP 2014 amendments proposed in this report, as detailed in Attachment 1 (E2019/14452)

2. Receive a further report for consideration of submissions following the statutory public exhibition period

3. Should there be no submissions as of the close of the statutory public exhibition period, adopt the Byron DCP 2014 amendments as exhibited and give public notice of its decision in accordance with the regulations.

Attachments:

1 24.2018.65.1 - Schedule of Proposed Amendments - DCP 2014 Housekeeping Minor Amendments, E2019/14452 , page 12⇩

2 Form of Special Disclosure of Pecuniary Interest, E2012/2815 , page 35⇩

REPORT

The last round of DCP amendments were adopted by Council on 22 March 2018 (Res 18-130). Since this time staff have identified further required amendments to the DCP. Circumstances that have necessitated the proposed amendments include: resolutions of Council that require amendments to the DCP; policies adopted by Council that require amendments to the DCP; amendments associated with planning proposals or Council initiatives such as Town Centre Masterplans; and issues identified through the day to day application and interpretation of the current planning controls.

The amendments proposed in this report are minor in nature and seek to address anomalies and inconsistencies that create issues when assessing development applications. These proposed amendments have been grouped together in a ‘housekeeping’ format. Amendments of greater complexity and implications will be reported to Council separately in due course.

Table 1 below provides a summary of the DCP amendments proposed, including rationale and description. Excerpts from the relevant DCP chapters and further details of the proposed changes are provided in Attachment 1 – Schedule of Proposed Amendments to Byron DCP 2014.

Table 1 – Summary of proposed ‘Housekeeping’ Amendments to Byron DCP 2014

Item #	Provision(s)	Reason for/ Description of Proposed Amendment
Item 1	B3.2.1 1 c)	Reason for Proposed Amendment Bring the DCP requirements into line with the relevant NSW Fire and Rescue requirements for provision of hydrants. Council’s Building Services Team have requested this amendment to be included to assist with assessing Development Applications.
Item 1	B3.2.1 1 c)	Description of Proposed Amendment Insert wording that requires subdivisions and residential development to comply with relevant fire and rescue NSW guidelines for provision of hydrants.
Item 1	B3.2.1 1 f)	Reason for Proposed Amendment Clarify water tank requirements for Secondary Dwellings in non-reticulated water supply areas.
Item 1	B3.2.1 1 f)	Description of Proposed Amendment Insert wording that requires the installation of a 20,000L water tank for secondary dwellings.
Item 3	B3.2.3 7 d)	Reason for Proposed Amendment To clarify the volume of soil disturbance area in relation to stormwater management provisions. Council engineers requested that this be included to facilitate assessment of applications.
Item 3	B3.2.3 7 d)	Description of Proposed Amendment Change wording in clause 7 to be consistent with B3.2.4 for sediment control and erosion measures.
Item 4	B4.2.3 2)	Reason for Proposed Amendment To bring vehicle existing requirements for Dual Occupancies and multi-dwelling houses into compliance with AS2890.1. The current clause does not meet the minimum requirements for Australian Standard.
Item 4	B4.2.3 2)	Description of Proposed Amendment Change wording of B4.2.3 to bring it into compliance with AS2890.1
Item 5	B4.2.3 6)	Reason for Proposed Amendment To create a baseline width requirement for driveways for dual occupancies or multi-dwelling housing. Council is receiving applications that do not provide for adequate vehicle movement.
Item 5	B4.2.3 6)	Description of Proposed Amendment Modify prescriptive measures to include requirement for 4m wide envelope and 2.7m of clearance for 3 or less dwellings. The 2.7m is to allow access for larger vehicles such as trucks.
Item 6	B4.2.3 7)	Reason for Proposed Amendment To ensure amenity for neighbours is retained and that noise and light pollution is not externalised from hatchet shaped/battle-axe lots.
Item 6	B4.2.3 7)	Description of Proposed Amendment Insert wording requiring fencing down either side of access handles for battle-axe blocks, accommodating provision of services such as wheelie bins/letterboxes at the road reserve.
Item 7	B9.4.1	Reason for Proposed Amendment To reflect the update of terminology for the chapter D1 Residential Accommodation in Urban Village and Special Purpose Zones.
Item 7	B9.4.1	Description of Proposed Amendment Under B9.1 change the wording "Chapter D1 Residential Development in Urban and Special Purpose Zones" to read "Chapter D1 Residential Accommodation in Urban, Village and Special Purpose Zones"
Item 8	B14.2 5)	Reason for Proposed Amendment Under Res 18-398 Council resolved that an amendment to Chapter B14.2 of DCP 2014 be prepared as part of the next House Keeping DCP amendment/s by adding the following clause to the Prescriptive Measure in DCP – Chapter B14 – Excavation and Fill: Lots that are identified as having stability problems either on Council’s GIS mapping or through the development assessment process (slopes greater than 15 degrees, land that has historically been used for uncontrolled filling, or land that has is constrained by springs or wet areas etc.) are to adequately address geotechnical constraints through the submission of a detailed geotechnical report prepared by a suitably qualified professional. The development application shall also incorporate preliminary design detail for footings, driveways and storm water management to demonstrate how the risk is adequately managed. In certain circumstances the geotechnical constraints will prevent properties from being developed for infill development and applications will not be approved.
Item 8	B14.2 5)	Description of Proposed Amendment Insert the above description under Chapter B14.2
Item 9	D1.2.2	Reason for Proposed Amendment To protect the amenity of neighbours where development is proposed to ensure that consequences/negative impacts are not externalized. Privacy, along with noise and light pollution for both the property owners and neighbours should be considered when siting a development on a property.
Item 9	D1.2.2	Description of Proposed Amendment Insert performance based controls to encourage development be sited in such a way that impacts are not externalized. In addition, require dual occupancies and secondary dwellings to be set back 1.5 metres from rear boundary in alignment with the requirements for multi-dwelling housing.
Item 10	D1.2.8	Reason for Proposed Amendment To ensure that the provision of parking is accounted for elsewhere on the site when converting a garage to a habitable space.
Item 10	D1.2.8	Description of Proposed Amendment Insert new section, part D1.2.8 that includes objectives and performance criteria to clearly outline that parking must be provided for in accordance with Chapters D1.2.2 and B4.
Item 11	D1.2.9	Reason for Proposed Amendment Provide guidelines for energy efficiency requirements outside of state requirements, for residential approvals that do not require a BASIX certificate (e.g. moveable dwellings).
Item 11	D1.2.9	Description of Proposed Amendment Provide performance based criteria for energy efficiency measures in residential development. Include prescriptive criteria relating to minimum insulation requirements and star ratings.
Item 12	D1.4.3	Reason for Proposed Amendment To inform the public that Secondary Dwellings are prohibited on Strata-titled Lots. The Affordable Housing SEPP does not include community titled or strata titled lots in its definition of secondary dwellings and it is suggested that the DCP align with this for residential zones that fall under the AH SEPP.
Item 12	D1.4.3	Description of Proposed Amendment Insert a clause that prohibits the siting of secondary dwellings on strata titled lots.
Item 13	D2.6; D2.8; D3.3.4, D3.3.5	Reason for Proposed Amendment To create clearer guidelines for environmental reparations for Rural Tourist facilities, Eco Tourist Facilities and other rural development, including Multiple Occupancy and Community Titled Development. Currently, the primary document for this is the Rural Settlement Strategy 1998. As this document is now 20 years old, Council staff have suggested that some more specific guidelines be built into the DCP to ensure consistency.
Item 13	D2.6; D2.8; D3.3.4, D3.3.5	Description of Proposed Amendment Require a vegetation management plan and the planting of 900 trees per cabin (or equivalent determined action) to be included in any development application for rural tourist facilities. In addition, clarify the requirements for environmental reparations for multiple occupancies and community titled properties. Please refer to the attachment for specific details relating to Vegetation Management Plan requirements.
Item 14	D2.7.2	Reason for Proposed Amendment To create clearer guidelines for fencing adjoining E-zones. Due to the environmentally delicate nature of the e-zones, fencing style should be sympathetic to native wildlife.
Item 14	D2.7.2	Description of Proposed Amendment Insert performance criteria relating to wildlife friendly fencing.
Item 15	D2.7.2	Reason for Proposed Amendment To create clear guidelines when decommissioning a house to be a shed. As it stands many development applications requiring decommissioning are not specific enough about what is required, resulting in illegal use of the dwelling after ‘decommissioning’.
Item 15	D2.7.2	Description of Proposed Amendment Insert performance based criteria to specify requirements for conversion of a house into a shed.
Item 16	D2.8	Reason for Proposed Amendment To clarify the status of Secondary Dwellings and Dual Occupancies on Community Titled land.
Item 16	D2.8	Description of Proposed Amendment Change prescriptive measure to include Secondary Dwellings unless otherwise specified in the approval or Schedule 1 of Byron LEP 2014
Item 17	D3.3.2	Reason for Proposed Amendment To bring the DCP 2014 into accordance with LEP 2014 with reference to Bed and Breakfast Accommodation.
Item 17	D3.3.2	Description of Proposed Amendment Change the prescriptive measures from 3 bedrooms and 6 guests to 5 bedrooms and 10 guests to match those outlined in LEP 2014.
Item 18	D6.4.1	Reason for Proposed Amendment To tighten the provisions so that blocks have appropriate access to services and the road and remove redundant information.
Item 18	D6.4.1	Description of Proposed Amendment Require all lots to have road frontage and vehicular access to allow for provision of garbage bins, services and letterboxes. In addition, remove the table that indicates the “preferred minimum lots sizes” as this information is now contained in the Byron LEP 2014 and is no longer relevant to the DCP 2014.
Item 19	D6.4.1, D6.5.1, D6.5.2	Reason for Proposed Amendment To correct a typographical omission relating to Splay corners during subdivision.
Item 19	D6.4.1, D6.5.1, D6.5.2	Description of Proposed Amendment Correct prescriptive measures to include references to splay corners.
Item 20	Throughout	Reason for Proposed Amendment To update inconsistent terminology used throughout the DCP 2014.
Item 20	Throughout	Description of Proposed Amendment Change “High Conservation Value” to “High Environmental Value” wherever it occurs.

Options

1. Proceed with to public exhibition with the proposed amendments to the Byron DCP 2014 as set out in Attachment 1.

2. Proceed to public exhibition with some of the changes proposed in Attachment 1, making amendments as Council sees fit.

STRATEGIC CONSIDERATIONS

Community Strategic Plan and Operational Plan

CSP Objective	L2	CSP Strategy	L3	DP Action	L4	OP Activity
Community Objective 4: We manage growth and change responsibly	4.2	Support housing diversity in appropriate locations across the Shire	4.2.1	Establish planning mechanisms to support housing that meets the needs of our community
Community Objective 4: We manage growth and change responsibly	4.5	Work to improve community resilience in our changing environment	4.5.1	Develop and implement strategies for our community's needs	4.5.1.1	Scope and prepare a comprehensive Development Control Plan (DCP) review

Legal/Statutory/Policy Considerations

The amendment of development control plans is governed by Environmental Planning and Assessment Regulation 2000 (Part 3 – Development Control Plans). The amendment process is summarised below:

Part 3 of the regulation states that a draft development control plan must be publicly exhibited for at least 28 days, and copies of the draft development control plan to be made publicly available. After considering any submissions about the draft development control plan that have been duly made, the Council:

(a) may approve the plan in the form in which it was publicly exhibited, or

(b) may approve the plan with such alterations as the council thinks fit, or

The Council must give public notice of its decision in a local newspaper within 28 days after the decision is made. Notice of a decision not to proceed with a development control plan must include the council’s reasons for the decision. A development control plan comes into effect on the date that public notice of its approval is given in a local newspaper, or on a later date specified in the notice.

The relevant policy considerations are addressed above.

Financial Considerations

As this is a Council initiated DCP amendment, the processing costs will be borne by Council. If Council chooses not to proceed then the matter does not incur any additional costs.

Consultation and Engagement

It is recommended that the amendments proposed in Attachment 1 be publicly exhibited for a period of 28 days.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 6.4

Report No. 6.4 PLANNING - 10.2018.552.1 Multi Dwelling Housing Consisting of Nine (9) Dwellings, Torrens and Strata Title Subdivision and Tree Removal over Multiple Stages

Directorate: Sustainable Environment and Economy

Report Author: Ben Grant, Planner

File No: I2019/257

DA No:	10.2018.552.1
Proposal description:	Multi Dwelling Housing Consisting of Nine (9) Dwellings, Torrens and Strata Title Subdivision and Tree Removal over Multiple Stages
Property description:	Lot 1490 DP 245028, Lot 1489 DP 245028, Lot 1497 DP 245028
Property description:	11 Warrambool Road, 13 Warrambool Road, 9 Bian Court, Ocean Shores
Parcel No/s:	97730, 97720, 105260
Applicant:	Mr C Sked
Owner:	Sked Holdings Pty Ltd
Zoning:	R2 Low Density Residential
Date received:	5 November 2018
Public notification or exhibition:	- Level 2 advertising under DCP 2014 Part A14 – Public Notification and Exhibition of Development Applications - Exhibition period: 22/11/18 to 12/12/18 and 10/01/2019 to 30/01/2019 - Submissions received: 19, including a petition with 202 signatures
Delegation to determination:	Council
Issues:	· Zone objectives · Character, Amenity, and visual impact · Earthworks and retaining walls exceeding 1m · Site layout and subdivision design · Loss of native vegetation · Waste collection · Stormwater drainage · Parking, Internal access and manoeuvring · Staging and servicing · Accessibility · Impacts on the natural and built environment · Landslip · Landscaping

Summary:

This development application seeks consent for a multi dwelling housing development comprising 9 dwellings across three separate parcels of land between Bian Court and Warrambool Road, Ocean Shores. The development involves the erection of 8 new double storey detached dwellings along with bulk earthworks, retaining walls and associated infrastructure. Torrens and Strata title subdivision is proposed to facilitate the development over 3 main stages and 2 sub-stages. Street access is provided to the site via a single internal driveway off the Bian Court frontage extending nearly 100m into the site.

The site covers a combined area of 5,386m² located between Bian Court to the west and Warrambool Road to the east, approximately 50m north of the intersection with Rajah Road in Ocean Shores. The subject site is located in an established low density residential area characterized by large lots containing single dwelling houses with deep setbacks and established gardens. The area has steep undulating terrain which is interspersed with pockets of vegetation on the slopes and ridges.

The site is zoned R2 Low Density Residential pursuant to Byron Local Environmental Plan 2014. The proposal is defined as multi dwelling housing and is permissible in the R2 zone with development consent.

The development application was publicly notified on Council’s Website and in a local newspaper between 21 November 2018 and 12 December 2018. Due to an error in the advertising process, letters were not sent to adjoining owners. The application was re-advertised and notified between 10 January 2019 and 30 January 2019. Council received 19 submissions from individuals and community groups. A petition objecting to the development with 202 signatures was also received. A broad range of concerns were expressed in the public submissions, with the majority relating to overdevelopment, lack of compatibility with existing character, tree removal, loss of amenity, stormwater, waste collection and geotechnical instability.

The main issues arising from the assessment of this application are:

· Site layout and subdivision design

The site layout and lot design does not enable dwellings to be sited to protect natural features, and does not respond to site constraints including native vegetation, drainage, geotechnical instability and topography.

· Character and visual impact

The resulting built form, in terms of its height, scale and density will be incompatible with the existing and desired future character of the surrounding area.

· Loss of native vegetation and environmental impact

All native and non-native vegetation on the site will be cleared with associated impacts on flora, fauna and the surrounding coastal environment. The applicant plans to provide 280 compensatory plantings on another site approximately 2km to the north, however, this receiving site is already fully allocated with offsets from another development.

· Earthworks and the potential for drainage issues and soil instability

Extensive earthworks that could potentially affected drainage and soil stability in the immediate locality. The highly modified land form and high retaining walls will also detract from the existing and desired future character of the surrounding area.

· Overly complex staging arrangements

Insufficient information has been provided to demonstrate how each stage of the development can be adequately serviced to facilitate an orderly development of the site.

· Stormwater drainage

Insufficient information has been submitted to demonstrate how stormwater can be diverted to a lawful point of discharge

· Parking and internal access

Internal access arrangement are too tight and don’t allow anything greater than the minimum vehicle size to efficiently manoeuvre through he site. Inadequate visitor parking provided.

· Access and mobility

No adaptable housing has been provided as required by DCP 2014 Chapter B13 – Access and Mobility.

· Kerbside waste collection

Insufficient information to demonstrate how kerbside waste collection can be carried out in an efficient an orderly manner.

Court Appeal – Deemed Refusal

On 25 January 2019 Council was served with documents relating to the commencement of proceedings in class 1 of the Land and Environment Court jurisdiction appealing against Council’s deemed refusal of the development application.

A Statement of Facts and Contentions (SOFC) has been submitted to Council’s lawyers setting out 17 reasons why the development application should be refused. The reasons for refusal contained in the recommendations of this report largely reflect those in the SOFC.

It is concluded that the development as proposed exhibits a number of inconsistencies with various planning development controls and does not respond well to the sites constraints and natural features. Therefore, it is concluded that the development application should be refused based on the issues raised in this report.

NOTE TO COUNCILLORS:

RECOMMENDATION:

That pursuant to Section 4.16 of the Environmental Planning & Assessment Act 1979, development application no. 10.2018.552.1 for multi dwelling housing consisting of nine (9) dwellings, Torrens and Strata Title Subdivision and tree removal over multiple stages, 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 is considered to be incompatible with the objectives of the R2 Low Density Residential zone in Byron LEP 2014.

2. Pursuant to Section 4.15 (1)(a)(i) of the Environmental Planning and Assessment Act 1979, the proposed development is considered to be unsatisfactory in relation to clause 6.2 Earthworks of Byron LEP 2014. Insufficient information has been provided to demonstrate that the proposed earthworks will not adversely affect drainage patterns and soil stability in the locality of the development.

3. Pursuant to Section 4.15 (1)(a)(i) of the Environmental Planning and Assessment Act 1979, the proposed development fails to satisfy the clause 6.6 Essential Services of Byron LEP 2014. Insufficient information has been provided to demonstrate how essential services can be provided to each stage of the development.

4. Pursuant to Section 4.15 (1)(a)(i) of the Environmental Planning and Assessment Act 1979, the proposed development fails to satisfy the matters for consideration under clause 13 of State Environmental Planning Policy (Coastal Management) 2018. Given the removal of all native vegetation, the lack of available offset and the filling of natural drainage lines, .Council cannot be satisfied that the development will not adversely affect the integrity and resilience of the biophysical, hydrological and ecological environment and coastal environmental values.

5. Pursuant to Section 4.15 (1)(a)(i) of the Environmental Planning and Assessment Act 1979, the proposed development fails to satisfy the matters for consideration under clause 14 of State Environmental Planning Policy (Coastal Management) 2018. The development is considered to be incompatible with the surrounding coastal and built environment having regard to its bulk, size and scale.

6. Pursuant to Section 4.15 (1)(a)(iii) of the Environmental Planning and Assessment Act 1979, the proposed development fails to satisfy Byron DCP 2014, Chapter B2 Preservation of Trees, because the proposed offset plantings are not considered to be feasible. The nominated receiving site is already fully allocated with offsets from another development.

7. Pursuant to Section 4.15 (1)(a)(iii) of the Environmental Planning and Assessment Act 1979, the proposed development fails to satisfy Byron DCP 2014, Chapter B3, Clause B3.2.3 Stormwater and Clause 3.2.1 Provision of Services. Insufficient information has been provided to demonstrate that stormwater is able to be adequately managed and directed to a lawful point of discharge.

8. Pursuant to Section 4.15 (1)(a)(iii) of the Environmental Planning and Assessment Act 1979, the proposed development fails to satisfy Byron DCP 2014, Chapter B4, Clause B4.2.3 Vehicle Access and Manoeuvring Areas. The proposed development does not provide for the safe and efficient circulation of vehicles within the site.

9. Pursuant to Section 4.15 (1)(a)(iii) of the Environmental Planning and Assessment Act 1979, the proposed development fails to satisfy Byron DCP 2014, Chapter B4, Clause B4.2.3 Vehicle Access and Manoeuvring Areas and Clause 4.2.5 Car Parking. Insufficient visitor parking is available to meet the needs of the development

10. Pursuant to Section 4.15 (1)(a)(iii) of the Environmental Planning and Assessment Act 1979, the proposed development fails to satisfy Byron DCP 2014, Chapter B8 Waste Minimisation and Management. Insufficient information has been provided to demonstrate how waste can be collected from the development in an efficient and orderly manner.

11. Pursuant to Section 4.15 (1)(a)(iii) of the Environmental Planning and Assessment Act 1979, the proposed development fails to satisfy Byron DCP 2014, Chapter B9 Landscaping. The site layout and subdivision design does not protect and retain existing significant native vegetation on the site or incorporate existing trees into the landscape design. Screen plantings to the driveway and street frontage have not been provided.

12. Pursuant to Section 4.15 (1)(a)(iii) of the Environmental Planning and Assessment Act 1979, the proposed development fails to satisfy Byron DCP 2014, Chapter B13 Access and Mobility, Clause B13.2.2. Insufficient information has been provided to demonstrate how at least one dwelling within the development is capable of meeting the design requirements for adaptable housing.

13. Pursuant to Section 4.15 (1)(a)(iii) of the Environmental Planning and Assessment Act 1979, the proposed development fails to satisfy Byron DCP 2014, Chapter B14 Excavation and Fill, Clause B14.2, because:

a) The earthworks will result in a highly modified landform and overall built form that will detract from the existing and desired future character of the surrounding area.

b) There is insufficient information to determine if the resulting drainage characteristics of the site will be consistent with Chapter B3 Services and with Water Sensitive Urban Design Principles.

c) The design does not minimise the need for engineering works such as retaining walls.

d) There is insufficient information to determine the risk of geotechnical instability and there is a known history of landslip in the immediate locality.

14. Pursuant to Section 4.15 (1)(a)(iii) of the Environmental Planning and Assessment Act 1979, the proposed development fails to satisfy Byron DCP 2014, Chapter D1, Clause D1.2.4 Character and visual impact. The resulting built form, in terms of its height, scale and density will detract from the general attractiveness of the streetscape and does not harmonise with the existing natural or built environment in the surrounding locality.

15. Pursuant to Section 4.15 (1)(b) of the Environmental Planning and Assessment Act 1979, the proposed development is likely to cause detrimental impacts to flora and fauna as a result of clearing all of the native and non-native vegetation from the site.

16. Pursuant to Section 4.15 (1)(c) of the Environmental Planning and Assessment Act 1979, insufficient information has been provided to demonstrate the site is suitable for the development given the well-known history of land-slip in the immediate locality.

Attachments:

1 Plans, E2019/15804 , page 69 ⇩

2 Reasons for refusal, E2019/15500 , page 112 ⇩

3 submissions received, E2019/15755 , page 114⇩

Assessment:

1. INTRODUCTION AND BACKGROUND

1.1. Recent development application history

Development application no. 10.2018.127.1 for thirteen townhouses, Torrens and Strata Title subdivision over 3 stages was submitted to Council for assessment on 27 March 2018. Soon after lodgement, Council requested further information in relation to, staging, traffic, waste collection, parking and geotechnical instability. 28 public submissions were received during the advertising period objecting to the development.

The applicant elected to withdraw the DA on 15 May 2018 without fully responding to the request for additional information.

1.2. Previous determinations

Previous development applications determined for each property are detailed in the table below.

Property	App. No.	Description	Status
9 Bian Court	90/2480	Dwelling house	BA issued on 23 October 1990.
	97/2765	Alts and adds to dwelling	BA issued on 9 January 1998.
	10.2005.586.1	Tree removal (23 trees)	Consent issued 8 June 2005.
	10.2014.224.1	Colorbond garage	Consent issued 7 October 2014.
11 Warrambool Rd	79/402	Dwelling house	BA issued on 14 November 1979.
11 Warrambool Rd	10.2005.587.1	Tree removal (11 trees)	Consent issued 14 November 2005.
13 Warrambool Rd	73/2402	Dwelling house	BA issued on 13 December 1973

1.3. Request for additional information

An initial review of the subject application identified the need for additional information to be provided. On 14 November 2018 Council sent the applicant a letter requesting the following:

· A geotechnical report from a suitably qualified geotechnical engineer to address concerns over land-slip and soil stability;

· Shadow diagrams demonstrating shadows from the proposed development at mid-winter and mid-summer;

· ABSA stamped plans to accompany the BASIX certificate.

Shadow diagrams and ABSA stamped plans were submitted to Council on the morning of 19 December 2019. That afternoon, the applicant sent Council’s an e-mail advising that they would not be providing the requested Geotechnical report and asked for the assessment of the application to continue without it.

1.4. Court appeal – deemed refusal

On 25 January 2019 Council was served with documents relating to the commencement of proceedings by Sked in class 1 of the Land and Environment Court jurisdiction appealing against Council’s deemed refusal of the development application.

In relation to the missing geotech report, the applicant has since provided the report to Council for review, some 3 weeks after lodging the appeal. Given the inadequate time to review the report and consider its findings prior to drafting the SOFC, it has not been considered in this assessment.

1.5. Description of the proposed development

The proposed development involves the construction of eight detached double storey dwelling houses along with Torrens and Strata title subdivision over three stages. An existing dwelling house at 9 Bian Court will be retained and integrated into the project, resulting in a multi dwelling housing complex comprising nine dwellings.

Five different dwelling designs are proposed. Each type is a variation on a common theme involving a two storey house with three bedrooms, open plan living, two bathrooms and a single car garage. Materials consist of lightweight floors and walls on concrete slab with metal skillion roofing.

Access to the development will be facilitated via a single internal driveway off the Bian Court Frontage extending for a distance of nearly 100m into the site. Ancillary works include the provision of visitor car parking spaces, landscaping and drainage infrastructure.

The project will require bulk earthworks including excavation and retaining walls to a depth of 3m on the steeper parts of the site with aim of creating level building areas for each dwelling. A new piped drainage system will be constructed to manage stormwater flows generated by the development.

Staging

The project is intended to be undertaken over three main stages and two sub-stages as follows:

(1) Stage 1: Three (3) Dwelling houses, strata subdivision, site access and tree removal

Stage 1 involves the construction of two new dwelling houses on either side of the existing dwelling house at 9 Bian Court, resulting in a total of three dwelling houses on this allotment. A new driveway is to be constructed from the Bian Court frontage to service stage 1 including two visitor car parking spaces. Vegetation along the northern boundary will be cleared to accommodate the new driveway.

Stage one will be strata subdivided to provide a separate lot for each dwelling with the driveway and visitor parking designated as common property. A right of way and easement for services is to be established at this time.

(1A) Stage 1(a): Torrens Title subdivision (one lot into two)

In sub-stage 1(a) it is proposed subdivide Lot 1489 DP 245028 (13 Warrambool Drive) into two Torrens Title lots with areas of 1176m² and 740m² respectively. These lots are described in the application as Lot 11 and Lot 13.

An easement is to be provided over Lot 11 to facilitate stormwater drainage for the existing dwelling house at Lot 13. Stormwater is to be directed through a bunded swale on the southern boundary of Lot 11, directing drainage until piped drainage is provided in future stages.

(2) Stage 2: Boundary adjustment between two lots and Torrens Title subdivision of Lot 1490

Stage 2 proposes a boundary adjustment between Lot 1490 DP 245028 Lot 1489 DP 245028 (Nos. 11 and 13 Warrambool Road) in anticipation of the proposed access driveway and future development of the site. The boundary adjustment will reconfigure Lot 1489 into an “L” shaped parcel with an area of 1166m².

Further within this stage is proposed a two lot Torrens Title subdivision of Lot 1490 (No. 13 Warrambool Road), to create a lot of 622m² fronting Warrambool Road, with the residue forming a new vacant lot with an area of approximately 1300m².

(2A) Stage 2(a): Dwelling houses, strata subdivision, site access and tree removal

Stage 2(a) involves the construction of three new dwelling houses on the 1300m² residue lot, extension of the internal access driveway, bulk earthworks and clearing of vegetation. Strata subdivision is proposed to create separate lots for each of the three dwelling houses plus a common property driveway. Easements for the drainage of stormwater and sewage are also provided at this stage.

(3) Stage 3: Provision of three dwelling houses

Stage 3 will see the construction of three new dwelling houses within Lot 11 plus clearing of vegetation and strata subdivision to create a separate strata lot for each dwelling. Provision of easements for an overland flow path will be undertaken at this stage.

Extracts from the plans illustrating the site layout and dwelling designs are shown at figures 1 – 4 below.

01032019092656-0001

Figure 1: Site layout of the proposed multi dwelling housing development containing nine dwellings.

01032019092935-0001

Figure 2: Northern elevation

01032019093435-0001

Figure 3: Southern elevation

28022019165102-0001

Figure 4: Artist impression of the five house types used within the development.

1.6. Description of the site

Land is legally described as:	Lot: 1490 DP: 245028, Lot: 1489 DP: 245028, Lot: 1497 DP: 245028
Property address is:	11 Warrambool Road, 13 Warrambool Road, 9 Bian Court, Ocean Shores
Land is zoned:	R2 Low Density Residential
Land area is:	1929 m², 1917m², 1540m² (5386m²total)
Property is constrained by:	Slipe Prone Land

The site covers a combined area of 5386m² located between Bian Court to the west and Warrambool Road to the east, approximately 50m north of the intersection with Rajah Road in Ocean Shores. The Pacific Highway is approximately 200m to the west; a local shopping centre known as Ocean Village is 750m to the north-east.

The site is located in an established low density residential suburb characterized by large residential lots containing single dwelling houses with deep setbacks and established gardens. The area has steep undulating terrain which is interspersed with pockets of vegetation on the slopes and ridges.

9 Bian Court is a fan shaped lot with an area of 1540m². It has a frontage to Bian Court of 18.5m and a maximum depth of 59.81m. A two storey masonry and timber dwelling house and metal garden shed are located in the centre of the lot. The site gently slopes away from the Bian Court frontage, falling by approximately 4m from the road boundary to a gully at the rear of the site.

11 and 13 Warrambool Road have similar characteristics. Both are long rectangular lots with an approximate width of 24m and depth of 85m. Each lot contains a brick and tile dwelling house located near the Warrambool Road boundary. The land slopes steeply away from the road, falling from a maximum height of 38m AHD near the front boundary to 22m AHD at the rear of the site. The steeper land at the rear of 11 Warrambool Road is covered in a mixture of native and non-native vegetation.

Figure 5: A view east from the site entrance at 9 Bian Court.

Figure 6: A view east towards the centre of the site. Five dwellings are proposed in this location.

2. SUMMARY OF REFERRALS

Referral	Recommendation
Ecologist	Recommended for refusal based on information submitted
Development Engineer	Recommended for refusal based on information submitted
Systems Planning Officer	Conditions to apply if approved .
S94 Contributions Officer	Conditions to apply if approved. .
Essential Energy	No objections (Refer to #E2018/111994).

3. ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979

3.1 Section 4.14 – bush fire prone land

Under section 4.14 of the Act, Council must be satisfied prior to making a determination for development on bush fire prone land, that the development complies with the document Planning for Bush Fire Protection 2006. The site is not bush fire prone land.

3.2 Section 4.15 Evaluation

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.

3.3 State Environmental Planning Instruments

State Environmental Planning Policy No 55—Remediation of Land

Clause 7 of this policy requires the consent authority to consider if the subject land is contaminated and, if so, whether the land will be suitable in its contaminated state (or will be suitable after remediation) for the proposed development.

Clause 7–Contamination and remediation to be considered in determining development application

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

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

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

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

The site has a long standing history of residential use dating back to the early 1970’s and there are no potentially contaminating land uses known to have operated on or near the site before this time. The property is not listed on Council’s contaminated lands register, and, based on all of the available information the probability of contamination is low. The site is considered to be suitable for the proposed residential use in its current state and no further investigation is warranted.

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

A valid multi-dwelling BASIX certificate has been provided with the development application indicating that the development is capable of achieving the building sustainability targets contained in this SEPP.

State Environmental Planning Policy (Coastal Management) 2018

The subject site is located inside the coastal zone and is included in the coastal use area map and coastal environment map area under the Coastal SEPP. The following provisions are relevant to the assessment of this application.

Clause 13 Development on land within the coastal environment area

(1) Development consent must not be granted to development on land that is within the coastal environment area unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on the following:

(a) the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment,

(b) coastal environmental values and natural coastal processes,

(c) the water quality of the marine estate (within the meaning of the Marine Estate Management Act 2014), in particular, the cumulative impacts of the proposed development on any of the sensitive coastal lakes identified in Schedule 1,

(d) marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms,

(e) existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(f) Aboriginal cultural heritage, practices and places,

(g) the use of the surf zone.

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

(a) the development is designed, sited and will be managed to avoid an adverse impact referred to in subclause (1), or

(b) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

(c) if that impact cannot be minimised—the development will be managed to mitigate that impact.

The proposed development is considered to have inadequately responded to the environmental constraints of the site. Given the removal of all native vegetation, the lack of available offset and the filling of natural drainage lines, clauses 13(1)(a) the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment, and (1)(b) coastal environmental values cannot be satisfied with the current layout. This matter is discussed further in the assessment of the likely impacts of the development on flora and fauna contained in Section 3.10 of this report.

Clause 14 Development on land within the coastal use area

(1) Development consent must not be granted to development on land that is within the coastal use area unless the consent authority:

(a) has considered whether the proposed development is likely to cause an adverse impact on the following:

(i) existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(ii) overshadowing, wind funnelling and the loss of views from public places to foreshores,

(iii) the visual amenity and scenic qualities of the coast, including coastal headlands,

(iv) Aboriginal cultural heritage, practices and places,

(v) cultural and built environment heritage, and

(b) is satisfied that:

(i) the development is designed, sited and will be managed to avoid an adverse impact referred to in paragraph (a), or

(ii) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

(iii) if that impact cannot be minimised—the development will be managed to mitigate that impact, and

(c) has taken into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development.

The proposed development involves the erection of eight multi dwelling housing units within an established low density residential suburb. The location is considered inappropriate for the development given its scale and internal layout which does not respond to the sites natural features. The development is considered to be incompatible with the surrounding built environment. Further assessment and discussion of the proposed development in relation to its design and compliance with the relevant planning controls is addressed in more detail in sections 3.6 and 3.10 of this report.

State Environmental Planning Policy (Infrastructure) 2007

Underground electricity infrastructure is located within the site. Pursuant to clause 45(1)(a) the application was referred to Essential Energy for comment however no specific objections were provided.

3.4 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\| ☒1.6\| ☒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 4	☒4.1\| ☒4.1E\| ☒4.3\|☒4.4 \|☒4.5
Part 6	☒6.2\| ☒6.6\| ☒ 6.7

Clauses 1.4, 2.1 – 2.3 and Land Use Table

The proposed development is defined in the LEP 2014 Dictionary as:

· Multi dwelling housing (9 dwellings);

· Subdivision of land (Torrens and Strata Title);

· Earthworks (Ancillary);

· Clearing Vegetation.

The land is within the R2 Low Density Residential according to the Land Zoning Map and the proposed development is permitted with consent in the zone. Regard is had for the Zone Objectives as follows:

R2 Low Density Residential zone

· 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.

The proposed development does meet the above objectives of the zone because the siting of the dwellings, subdivision layout and extensive use of earthworks and retaining walls results in an overall development that is incompatible with the characteristics of the surroudning low density residential environment.

Clause 6.2 Earthworks

This clause seeks to ensure that earthworks will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.

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

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

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

(c) the quality of the fill or the soil to be excavated, or both,

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

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

(f) the likelihood of disturbing relics,

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

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

Substantial bulk earthworks are proposed including excavation to a depth of 3 metres. Retaining walls to a maximum height of 3m are proposed within Lots 6, 7, 8 and 9. The earthworks will result in a highly modified landform which could potentially impact on soil stability and drainage patterns in the immediate locality. In particular, the potential for landslip is a genuine concern given the well-known history of geotechnical instability in the area.

Without further information addressing drainage, landslip and soil stability, it is not certain that the proposed earthworks are satisfactory in relation to Clause 6.2(3)(a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development.

Clause 6.6 Essential services

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

(a) the supply of water,

(b) the supply of electricity,

(c) the disposal and management of sewage,

(d) stormwater drainage or on-site conservation,

(e) suitable vehicular access.

The staging arrangements for the development are relatively complex and involve Torrens and Strata title subdivision at various stages to facilitate gradual development of the site. For Council to be satisfied that the development can be properly serviced, a development servicing plan must be provided which demonstrates how reticulated services, stormwater and vehicular access can be provided to each stage of the development in an orderly way. Such a plan has not been submitted. Without this information it is not possible to determine if the proposed development is capable of satisfying the provisions of this clause.

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

There are no proposed instruments that are relevant to the subject application.

3.6 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	☒ Preliminary
Part B Chapters:	☒ B2\| ☒ B3\| ☒ B4\| ☒ B5\| ☒ B6\| ☒ B7\| ☒ B8\| ☒ B9\| ☒ B10\| ☒ B11\| ☒ B12\| ☒ B13\| ☒ B14
Part C Chapters:	☒ C3
Part D Chapters	☒ D1

These checked parts of DCP 2014 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 considered to be unsatisfactory in relation to the objectives, performance criteria and prescriptive measures (where relevant) of the following Parts of DCP 2014:

Chapter B2 Preservation of Trees and Other Vegetation

B2.2.2 Assessment of Development Applications

At least 688m² of native and non-native vegetation will be cleared as part of the proposed development; all of the vegetation on the site. To offset the loss, the application proposes 280 replacement plantings on another site (Lot 9 DP 1046566) approximately 2km to the north.

The proposal is unable to accord with the provisions of Chapter B2 because the alternate site nominated for offset planting is already committed for a previously approved development (Kulgun St town houses 10.2014.743.2). Council land is not available for private offsetting since that would represent an actual or perceived conflict of interest for Council.

Chapter B3 Services

B3.2.1 Provision of Services

The proposed development is not considered to comply with the provisions of this clause because a development servicing plan has not been provided to demonstrate how each stage of the development can be adequately serviced. Without the provisions of such a plan, there is no certainty that each stage of the project can proceed with adequate reticulated services, vehicular access and stormwater drainage.

B3.2.3 Stormwater Management

The development application did not include sufficient information to demonstrate how the concentrated stormwater flows created by the development into downstream properties can be directed to a lawful point of discharge. Consequently, there is no certainty that the development is capable of complying with the provisions of this clause or section D5.20.4 of Council’s Northern Rivers Local Government Development and Construction Guidelines.

Council’s Development Engineer was not satisfied that the proposal complied with the relevant standards, noting exceedances for the velocity and depth of overland flow, and insufficient information to comply with the stormwater quality requirements specified in Table B3.1.

Chapter B4 Traffic Planning, Vehicle Parking, Circulation and Access

B4.2.3 Vehicle Access and Manoeuvring Areas

The vehicle manoeuvring plans submitted with the application illustrate encroachments inside allotment areas, landscaped areas and a potential conflict with the end retaining wall. Any vehicle larger than the minimum size will not be able to efficiently manoeuvre within the designated manoeuvring areas of the development. In addition, the plans do not provide sufficient information to demonstrate that the access driveway is able to comply with the minimum aisle width and grade requirements specified in AS2890.

B4.2.5 Car Parking Requirements

Car parking rates for medium density development are 2 spaces for each dwelling with 3 or more bedrooms and 1 visitor space per 4 dwellings or part thereof. The proposed development generates demand for 21 spaces including 3 visitor spaces.

Only 2 parking visitor parking spaces are proposed instead of 3. In addition, the architectural plans do not illustrate the floor plan and garage layout of the existing dwelling at 9 Bian Court, so it is not possible to be certain if it can provide two parking spaces in accordance with Council’s standards and AS2890.

Chapter B8 Waste Minimisation and Management

B8.3.3 Bin Sizes and Collection Measures

Waste collection will occur at the Bian Court frontage which has a width of approximately 13m excluding the proposed driveway. It is unclear if there is sufficient room to accommodate green waste, recycling and garbage bins from the development at this location.

The Site Waste Minimisation and Management Plan notes that bins will be placed kerbside by the property manager on service day, and will be returned to the waste room as soon as practicable after collection. It is not clear how such an arrangement can be practically enforced and the plans make no reference to a waste room on the site.

Chapter B9 Landscaping

Part B9.3.1 General Landscape Design Principles

The proposed development does not satisfy the objectives or performance criteria of Part B9.3.1 Landscape Design Principles, because the site layout and subdivision design does not protect and retain existing significant native vegetation on the site or incorporate existing trees into the landscape design.

Part B9.4 Landscape Principles

The proposed development does not satisfy the objectives or performance criteria of Part B9.4 Landscape Principles because the landscape plan does not include screen plantings to the street frontage and driveway areas. Landscaping along the driveway corridor and frontage to the site will help soften the appearance of the driveway and improve the overall aesthetic environment.

Chapter B13 Access and Mobility

Chapter B13 Access and Mobility

Clause B13.2.2 requires that a minimum 10% of units, rounded up to the nearest whole number should be adaptable housing. Based on this requirement, one dwelling in the proposed multi dwelling housing development is required to be adaptable housing.

Neither the plans, nor the Statement of Environmental Effects, make any reference to adaptable housing or clause B13.2.2. Council cannot be satisfied that the proposed development is capable of providing an adaptable housing unit in accordance with the provisions of clause.

Chapter B14 Excavation and Fill

B14.2 Excavation and fill in all zones

Prescriptive measure 1 limits excavation and filling to a maximum depth of 1m. Exceptions are allowed where the excavation is incorporated into the dwelling structure to satisfy the minimum car parking requirement up to a maximum of 2m. The proposed development significantly exceeds this figure. Earthworks across the site will reach a maximum depth of 3m including retaining walls to a maximum height of 3m within Lots 6, 7, 8 and 9.

The proposed development fails to satisfy the objectives and performance criteria of clause B14.2 for the following reasons:

· The earthworks will result in a highly modified landform and overall built form that will detract from the low to medium density form, scale and desired future character of the surrounding area.

· There is insufficient information to determine if the resulting drainage characteristics of the site will be consistent with Chapter B3 Services and with Water Sensitive Urban Design Principles.

· The design does not minimise the need for engineering works such as retaining walls.

· There is insufficient information to determine the risk of geotechnical instability and there is a known history of landslip in the immediate locality.

Chapter D1 Residential Accommodation in Urban, Village and Special Purpose Zones

D1.2.4 Character and visual impact

The surrounding area is characterized by single dwelling houses on large lots with deep setbacks and established gardens. The area has steep undulating terrain which is interspersed with pockets of vegetation on the slopes and ridges. The proposed development introduces a subdivision pattern and built form that is at-odds with these existing characteristics and does not harmonize with surrounding development.

The proposal fails to satisfy the objectives and relevant performance criteria of clause D1.2.4 for the following reasons:

· The site layout does not take account of existing vegetation or natural features of the site.

· Loss of the existing vegetation will adversely impact on the visual amenity of the immediate locality.

· Dwellings are sited high on the sloping parts of the site requiring significant modification to the natural landform.

· The resulting built form, in terms of its height, scale and density will detract from the general attractiveness of the streetscape and does not harmonise with the existing natural or built environment in the surrounding locality.

Chapter D6 Subdivision

D6.2.1 Subdivision Design Guidelines & D6.4.1 Lot Size and shape

The proposed development does not satisfy the relevant objectives and performance criteria of clauses D6.2.1 Subdivision Design Guidelines and Clause D6 Lot size and shape for the following reasons:

· The site layout and subdivision design does respond the natural features of the site and the locality. Dwellings are sited high on the sloping part of the site requiring extensive earthworks and loss of native vegetation.

· The site layout and lot design does not enable dwellings to be sited to protect natural features, and does not respond well to site constraints including topography, native vegetation, drainage and geotechnical instability.

3.7 Any Planning Agreement or Draft Planning Agreement?

There is no applicable Planning Agreement for the site.

3.8 Environmental Planning & Assessment Regulation 2000 Considerations

There are no matters for consideration within the Regulations that are relevant to the subject application.

3.9 Any Coastal Zone Management Plan

There is no applicable Coastal Zone Management Plan.

3.10 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	Flora and Fauna The proposed development is likely to cause detrimental impacts to flora and fauna as a result of clearing all of the native and non-native vegetation from the site. The proposed offset plantings are unacceptable because the receiving site is already fully allocated with offsets from another development. Insufficient assessment has been undertaken to determine whether the environmental impact will be significant, particularly with regard to Koalas and rainforest fauna. Furthermore, Council’s Ecological Planner noted that the proposal has failed to demonstrate that it will not result in a significant impact on threatened species, populations or ecological communities since: · Assessments of Significance have not been conducted in accordance with the relevant NSW Guidelines and have not considered of off-site and indirect impacts, which are considered likely to be substantial. · Flora and fauna surveys have not been conducted in accordance with relevant NSW guidelines or assessment methodologies, nor has survey been undertaken in accordance with DECC Guidelines for threatened species survey methodology or BAM methodology in that only the ‘subject site’ has been surveyed, the ‘Study Area’ has not been defined and no formal plots or transects have been undertaken. · the vegetation on site has not been assessed against the NSW Scientific Committee Guidelines to determine whether an Endangered Ecological Community listed under the Biodiversity Conservation Act 2016 is present on site and will be lost; · species with suitable habitat available on site have been discounted yet their presence must be assumed unless sufficient targeted survey in the right seasons/conditions has been undertaken Stormwater Quality and Quantity A stormwater management plan was submitted with the application however Council’s Development Engineer did not support the proposed design and noted there was insufficient information to demonstrate consistency with Council’s requirements for stormwater quality and quantity. Based on the stormwater issues raised in this assessment, the development application does not adequately address the management of stormwater on the site and is not supported in this regard.
Built environment	Context and setting The proposed development involves the erection of multi dwelling housing containing 9 dwellings plus extensive earthworks. The existing development style in the locality consists of low density large lots occupied by single dwellings separated by vegetated areas and open space. The proposed development has been assessed against the relevant planning controls and been found to be unsatisfactory in a number of areas. It is therefore considered an inappropriate development given the context and setting of the site. Traffic Council’s Development Engineer calculated traffic volumes generated by the nine dwellings as 45 vehicles per day and 4.5 vehicles per peak hour. The volume of traffic generation is considered to be low impact and is not included as reason for refusal. Site access, internal driveways and parking design A review of the swept path diagrams submitted with the application identified encroachments into allotment areas, landscaped zones and conflict with the end retaining wall. In addition, the driveway design does not meet AS2890 which requires a 5.5m driveway width for the first 6m from the property boundary to provide a two way lane at the entry point. Any vehicle greater than the minimum size will not be able to efficiently manoeuvre within the site. The internal access arrangements of the development are not considered to be acceptable. Car Parking Council’s Car Parking requirements are detailed in Table B4.1 of Chapter B4 in DCP 2014. The minimum parking rates specified in the DCP are implemented to ensure adequate off-street parking is provided within the development site and to minimise the impact on the surrounding road network. As detailed in section 3.6 of this report, the proposal fails to satisfy the minimum parking requirements of DCP 2014 Chapter B4. Only 2 visitor parking spaces are provide instead of 3, and there is insufficient information to demonstrate adequate parking for the existing dwelling at 9 Bian. Overflow parking in the surrounding streets or within the internal driveway corridor of the development site is considered to be an undesirable outcome and the development is not supported in this regard. Water and Sewer Infrastructure Two sewer pipelines traverse the site, running close to the Council stormwater line along the rear boundary of 9 Bian Court. The sewer pipes will need to be realigned to accommodate the proposed development layout. Council’s Systems Planning Officer provided e-mail comments indicating the relocation of the sewer infrastructure appeared achievable and should not be a considered a reason for refusal. If approval of the development application is granted, the works would be subject to approval under Section 68 of the Local Government Act 1993. Further engineering details would need to be provided as part of this approval process.
Social Environment	Accessibility Provision of at least one adaptable housing unit is considered appropriate to offer housing opportunities for people with disabilities or other special mobility needs. As indicated in Section 3.6 of this report, no information has been supplied to demonstrate how this can be achieved in accordance with provisions of DCP 2014 Chapter B13 – Access and Mobility. The proposed dwellings within 9 Bian Court have the greatest potential to provide adaptable housing, however, further information needs to be provided to clearly demonstrate how one of the dwellings in the development can be fitted out to comply with AS4299 including a continuous accessible path of travel and accessible car parking.
Economic impact	Approval of the development application may result in short term benefits to the local economy through additional employment in the construction industry, although, no long lasting economic impacts are expected. Concerns were raised in the public submissions that the development may negatively impact on surrounding property values. It is considered beyond the scope of this assessment to speculate in relation to the effect the development may have, either positively or negatively, on private property values.

3.11 The suitability of the site for the development

Insufficient information has been provided to demonstrate that the site is suitable for the development having regard to the steepness of the land and the well documented history of landslip in the immediate locality. Without a proper geotechnical investigation it is not possible to be certain the site is safe or suitable for development given the extent of the development footprint and depth of excavation across the site.

3.12 Submissions made in accordance with this Act or the regulations

The DA was publicly notified on Council’s Website and in a local newspaper between 21 November 2018 and 12 December 2018. Due to an error in the advertising process, letters were not sent to adjoining owners. The application was re-advertised and notified between 10 January 2019 and 30 January 2019.

Council received 19 submissions from individuals and community groups. A petition objecting to the development with 202 signatures was also received. A broad range of concerns were expressed in the public submissions, with the majority relating to overdevelopment, lack of compatibility with existing character, tree removal, loss of amenity, stormwater, waste collection and geotechnical instability.

The submissions raising objections to the proposed development have been summarised and addressed as detailed in the table below.

Issue	Comment
Character and visual impact · Out of character with the surrounding low density residential area.	Agree. The siting of the dwellings, subdivision layout and extensive use of earthworks and retaining walls results in an overall development that is incompatible with the characteristics of the surroudning low density residential environment.
Overdevelopment · Density of the development is too high given the environmental constraints of the land and steep topography	The proposal meets Council’s floor space ratio, landscaping and deep soil requirements. The overall number of dwellings is not so much the issue as site layout and subdivision design which does not respond well to the sites natural features.
Tree removal and environmental impact · Subdivision design should incorporate existing vegetation. · Offsets should not be provided on another site Residents report wide range of fauna on the site. · Environmental reporting considered inadequate.	Agree. The application is likely to cause detrimental impacts to the environment and insufficient information has been provided to demonstrate how the impact can be reasonably offset.
Loss of amenity · Will diminish visual amenity from neighbouring properties through loss of vegetation and area views. · Noise and light pollution will be unacceptable.	Acknowledged. There is insufficient information to accurately assess the impact on neighbouring properties in relation to privacy, views, overshadowing, noise or light.
Construction impacts (ongoing) · Construction likely to disturb residents over a long period of time. A construction management plan was not provided.	It is considered that construction impacts are able to be addressed through conditions of consent. This is not relevant however as the application is recommended for refusal.
Traffic generation and impact on local roads · Bian court is in a state of disrepair. 8 townhouses will further degrade the road. · Excessive impact on surrounding road network.	Acknowledged. Bian Court is in a poor state and needs repairing. In relation to traffic generation, Council’s Development Engineer did not identify this as a potential issue.
Parking and internal access · Visitor parking inadequate. · Driveway design and internal manoeuvring areas inadequate.	Agree. The proposal does not meet the minimum car parking or internal access requirements within DCP 2014, Chapter B4 and AS2890.
Loss of property values · Development will cause a significant loss of value to surrounding properties.	Property values are not a matter for consideration under S4.15 of the Act.
Garbage collection and storage · Insufficient room along the Bian Court frontage to accommodate green waste, recycling and garbage bins for collection.	Agree. The application has not demonstrated how the proposed kerbside waste collection can be carried out in an efficient and orderly manner.
Stormwater · Stormwater flows not adequately calculated in the DA. · Likely to cause major impacts to downstream properties with the potential for flooding during storm events. · Unclear how existing stormwater drainage infrastructure can be relocated.	Agree. There is insufficient information to demonstrate how stormwater can be adequately managed and directed to a lawful point of discharge.
Building over easement · The development will be constructed over existing easements for stormwater.	The application proposes new stormwater drainage infrastructure within new easements. As indicated above, Council’s Development Engineer was not satisfied the proposed stormwater management measures were satisfactory.
Slip prone land · Well known history of landslip in the area. · Geotechnical report not provided. · Lack of geotech report contravenes Council’s resolution of 12 June 2018. The amendment to chapter B14.2 of the DCP 2014 (Excavation and Fill) specifies that unstable lands require geotechnical reports. Affected residents have been asked to make submissions without being fully informed.	Agree. Council requested a geotechnical report soon after the DA was lodged. The applicant did not provide sufficient information during the assessment period to demonstrate the site is suitable given the well know history of geotechnical instability in the area.
Flooding · Lands have a natural spring in the middle of the site and are boggy. · Unmanaged stormwater flows may create flooding hazards for downstream properties.	Acknowledged. Filling is proposed in the middle of the site. Although the site is not considered to be flood prone land, further information is required to assess the impact of the earthworks on flow paths for water within the site and on surrounding properties.
Earthworks · Earthworks significantly exceed the prescriptive measures in DCP 2014 chapter B14. · Earthworks are incompatible with the site natural features. · Character bulk and scale of development is not compatible with the surrounding environment.	Agree. The extent and scale of the bulk earthworks is excessive and does not satisfy the objectives, performance criteria and prescriptive measures of DCP 2014, clause B14.2 Excavation and Fill in all Zones.
Affordable housing · Proposed development will not provide any additional affordable housing to the area.	The proposal is not considered to be affordable housing.
Non-compliance with planning controls · Numerous inconsistencies with state and local planning controls.	Agree. The proposal dos not satisfy a number of development controls as detailed in the body of this report.
Timeframes for submissions	The application was readvertised and notified in accordance with DCP 2014 between 10 January 2019 and 30 January 2019 for a three week period. All public submissions have been duly considered.

A number of valid issues were raised in the public submissions which are noted in this report. It would be fair to say that the volume and content of submissions was generally similar to those received for the previous development application for 13 town houses that was withdrawn on 15 May 2018.

3.13 Public interest

It is acknowledged that there is a need for a greater supply of housing stock in the Byron Shire and medium density forms of development can add diversity to the range of available options. However, in this particular instance, the proposed development is considered to be incompatible with the existing and desired future character of the immediate locality. The design has not adequately addressed the environmental constraints of the site and demonstrates a number of inconsistencies with Council’s development controls. Having regard to these issues, it is considered that approval of the proposed development would not be in the public interest and is therefore not supported.

4. DEVELOPER CONTRIBUTIONS

Water and Sewer Levies and S7.11 Contributions would apply if the application was to be approved for the additional dwellings.

5. CONCLUSION

It is concluded that the development as proposed exhibits an unreasonable number of inconsistencies with various planning instrument and development controls and does not respond well to the sites constraints and natural features. Therefore, it is concluded that the development application should be refused based on the issues raised in this report.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 6.6

Report No. 6.6 PLANNING - 10.2018.591.1 Multi Dwelling Housing, Argyle Street, Mullumbimby

Directorate: Sustainable Environment and Economy

Report Author: Rob Van Iersel, Major Projects Planner

File No: I2019/291

Proposal:

DA No.	10.2018.591.1
Proposal description:	Construction of Multi Dwelling Housing Comprising Eight (8) Dwellings Under the State Environmental Planning Policy - Affordable Rental Housing 2009
Property description:	LOT: 1 DP: 21743
	28 Argyle Street MULLUMBIMBY
Parcel No/s:	20030
Applicant:	Lismore Venture Pty Ltd
Owner:	Brisnaric Family Super Pty Ltd
Zoning:	R2 Low Density Residential
Date received:	21 November 2018
Integrated / Designated Development:	☐ Integrated	☐ Designated	☒ Not applicable
Concurrence required	No
Public notification or exhibition:	- Level 2 advertising under DCP 2014 Part A14 – Public Notification and Exhibition of Development Applications - Exhibition period: 13/12/18 to 16/1/19 - Submissions received: 46 – 45 objections; 1 support (the letter of support was in the form of a petition containing 15 signatures)
Planning Review Committee:	14 February 2019
Concurrent approvals (S68/138):	Not applicable
Variation request	☐ Clause 4.6	☐ SEPP 1	☒ Not applicable
Delegation to determination:	Council
Issues:	· Inconsistent with character of the locality; · Non-compliance with key controls in DCP 2014 – building height plane, setbacks, private open space; and · Design provides poor residential amenity.

Summary:

The development application is made under the provisions of State Environmental Planning Policy (SEPP) - Affordable Rental Housing 2009. The proposal consists of eight (8) two storey townhouses; four (4) containing a single bedroom, and four (4) containing two bedrooms, arranged in two groups of four (4) around a central internal car parking area.

Two (2) dwellings are proposed to be set aside for affordable housing as defined by the SEPP.

The one bedroom units each have a floor space of 42m², and the two bedroom units each have a floor space of 52m². The proposed dwelling size is less than that set by way for the non-discretionary standard within the SEPP, resulting in units that provide poor internal amenity for future residents.

The proposal takes advantage of the floor space “bonus” applicable under the SEPP resulting in a floor space ratio of 0.52:1 (the maximum floor space ratio specified for this locality is 0.5:1).

The proposal also takes advantage of the reduced car parking provisions of the SEPP, proposing six (6) spaces, arranged in a central uncovered parking area.

The proposal is inconsistent with the following requirements of Byron DCP 2014:

· Building height plane – encroachments on both residential boundaries;

· Setbacks – covered external decks intrude within the front setbacks of both Argyle & Queen Streets; and

· Private open space – a number of the units do not comply with the quantum of open space required. The space provided for Units 1-5 is located on the street side of those units, with the majority (all for some units) within the street setback. The low fencing results in these spaces lacking privacy and being essentially unusable.

The provision of housing diversity addresses an identified need in Mullumbimby. In this case, however, the application proposes a scale of development that is inappropriate in the context of the site. It would result in a development that is significantly out of character with the locality, individual dwellings with poor residential amenity and no useable private open space, and encroachment into the building height plane, which would lead to privacy and overlooking issues for neighbouring properties.

The applicant has commenced a Class 1 appeal in the Land and Environment Court against the deemed refusal of the application.

Council’s contentions in the Land and Environment Court proceedings could be addressed by way of a redesign of the proposal, to reduce floor space and address the issues raised above, which could provide an outcome that would be acceptable in the context of the site and its locality.

The development in its current form, however, is not supported and it is recommended that the application be refused. Delegation is sought for the General Manager to enter into negotiations around an appropriate resolution of issues, through the section 34 conciliation hearing associated with the Class 1 appeal.

NOTE TO COUNCILLORS:

RECOMMENDATION:

1. That, pursuant to Section 4.16 of the Environmental Planning & Assessment Act 1979, Development Application no. 10.2018.591.1 for construction of multi dwelling housing comprising eight (8) dwellings under State Environmental Planning Policy (Affordable Rental Housing) 2009, be refused for the following reasons:

a) Having regard to Section 4.15(1)(a) of the Environmental Planning and Assessment Act 1979, the proposal is inconsistent with the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 in that:

i) the density and scale of the development is inconsistent with the character of the area; and

ii) the proposed development is inconsistent with Seniors Living Policy Urban design guidelines for infill development.

b) Having regard to Section 4.15(1)(a) of the Environmental Planning and Assessment Act 1979, the proposal does not comply with Byron Development Control Plan 2014, in that:

i) street boundary setbacks do not comply with the standard contained at Chapter D1.2;

ii) the proposed development encroached into the Building Height Plane on northern and eastern boundaries, resulting in impacts on neighbouring residential properties;

iii) inadequate useable private open space is provided to the units, with most private spaces proposed within the front setbacks of the two street frontages; and

iv) the internal unit design does not provide adequate internal amenity for future residents.

2. That the General Manager be authorised to enter into consent orders or a s34 Conciliation Agreement approving Development Application 10.2018.591.1, subject to review of amended plans that address the reasons for refusal and appropriate conditions to be finalised under delegation.

Attachments:

1 Plans, E2019/16406 , page 228 ⇩

2 submissions received, E2019/15645 , page 246 ⇩

REPORT

Assessment:

1. INTRODUCTION

1.1. History/Background

10.2017.550.1

Secondary dwelling

Approved 29/11/2017

1.2. Description of the proposed development

The proposal consists of eight (8) two storey townhouses; four (4) containing a single bedroom, and four (4) containing two bedrooms, arranged in two groups of four (4) around a central internal car parking area.

The one bedroom units have a floor space of 42m², containing a lounge, kitchen, laundry and storage at ground floor and a bedroom, bathroom and study on the upper level.

The two bedroom units have a floor space of 52m², with the same room configuration at ground floor, and two bedrooms and a bathroom on the upper level.

The units are elevated on posts; with ground floor level at RL 3.75m (existing ground level is at approx. RL 3.00m). External timber decks are proposed off the ground floor, similarly elevated above existing ground level. Decks also connect the rear of each unit within the four (4) unit cluster.

Vehicle access is proposed off Queen Street to a central uncovered parking area containing six (6) spaces. A central bin storage area is proposed on the edge of the driveway.

1.3. Description of the site

Land is legally described as	LOT: 1 DP: 21743
Property address is	28 Argyle Street MULLUMBIMBY
Land is zoned:	R2 Low Density Residential
Land area is:	724.7m²
Property is constrained by:	Acid Sulfate Soils Class 3
	Flood Liable Land

The property is located on the corner of Argyle and Queen Streets, Mullumbimby. It is rectangular in shape with an area of 724.7m² and is oriented roughly north / south. The southern boundary, which is the Argyle Street frontage, has a length of 18.29m. The western boundary is the frontage to Queen Street, with a length of 39.625m.

The property currently contains a single dwelling with detached garage. Development consent was issued in December 2017 for a secondary dwelling on the property, proposed to be constructed by way of a second storey addition to the existing garage. Construction has not commenced on that development.

There is no substantial vegetation on the land, other than landscape plantings.

The property is generally flat at an elevation of approx. RL 2.95-3.00m AHD.

Argyle Street provides the primary vehicle access from the east into the town of Mullumbimby. The immediate locality is residential in nature, primarily characterised by single storey dwellings, mostly limited to one dwelling per lot.

Farm land is located in close proximity to the north / north-east of the site. Mullumbimby Primary School is located approx. 65m north along Queen Street (primary access to the school is off Morrison Ave on the western side of the school site).

The disused north coast rail line is approx. 300m to the west along Argyle Street, with the eastern edge of the Mullumbimby Town Centre approx. 100m further to the west.

2. SUMMARY OF REFERRALS

Referral	Issue
Environmental Health Officer	No objections subject to conditions.
Development Engineer	No objections subject to conditions. (See Doc #A2018/38451)
S64 / Systems Planning Officer	Assessment incomplete – recommendation for refusal on planning grounds
S94 / Contributions Officer	Assessment incomplete – recommendation for refusal on planning grounds

3. SECTION 4.14 – BUSH FIRE PRONE LAND

Under section 4.14 of the Act, Council must be satisfied prior to making a determination for development on bush fire prone land that the development complies with the document planning for Bush Fire Protection 2006.

The site is not bush fire prone land.

EFFECT OF 10/50 RULE ON SIGNIFICANT VEGETATION

The site is located in an area where this entitlement is available. However, there is no vegetation on the property.

4. 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.

4.1 State Environmental Planning Instruments

	Satisfactory	Unsatisfactory
State Environmental Planning Policy No 44—Koala Habitat Protection	☒	☐
Consideration: The site has an area less than 1ha. The development control provisions of this SEPP, therefore do not apply.
State Environmental Planning Policy No 55—Remediation of Land	☒	☐
Consideration: A Preliminary Contamination Assessment has been undertaken and concludes that the site is suitable for the proposed development.
State Environmental Planning Policy (Affordable Rental Housing) 2009	☒	☐
Consideration: The proposed development has been submitted under the provisions of Division 1 of this SEPP. See detailed assessment below
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004	☒	☐
Consideration: Certification provided.
State Environmental Planning Policy (Coastal Management) 2018	☒	☐
Consideration: The site is mapped within the Coastal Environment Area. No substantive issues are raised in regard to this.

State Environmental Planning Policy (Affordable Rental Housing) 2009

Policy requirement/summary	Proposed	Complies
8. Relationship with other environmental planning instruments If there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.	The provisions of this SEPP prevail over any inconsistencies with Byron LEP 2014.	Noted
Part 2 New affordable rental housing
Division 1 In-fill affordable housing
10. Development to which Division applies
(1) This Division applies to development for the purposes of dual occupancies, multi dwelling housing or residential flat buildings if: (a) the development concerned is permitted with consent under another environmental planning instrument, and (b) the development is on land that does not contain a heritage item that is identified in an environmental planning instrument, or an interim heritage order or on the State Heritage Register under the Heritage Act 1977.	The site is zoned R2 Low Density Residential. Multi dwelling housing is permissible in the R2 zone. The site does not contain a heritage item.	Yes
(2) Despite subclause (1), this Division does not apply to development on land in the Sydney region unless all or part of the development is within an accessible area.	Not applicable.
(3) Despite subclause (1), this Division does not apply to development on land that is not in the Sydney region unless all or part of the development is within 400 metres walking distance of land within Zone B2 Local Centre or Zone B4 Mixed Use, or within a land use zone that is equivalent to any of those zones.	The site is located approximately 390m (walking distance) from the nearest edge of the B2 Local Centre Zone (Mullumbimby Town Centre).	Yes
13. Floor space ratios
(1) This clause applies to development to which this Division applies if the percentage of the gross floor area of the development that is to be used for the purposes of affordable housing is at least 20 per cent.
(2) The maximum floor space ratio for the development to which this clause applies is the existing maximum floor space ratio for any form of residential accommodation permitted on the land on which the development is to occur, plus: (a) if the existing maximum floor space ratio is 2.5:1 or less: (i) 0.5:1 - if the percentage of the gross floor area of the development that is used for affordable housing is 50 per cent or higher, or (ii) Y:1 - if the percentage of the gross floor area of the development that is used for affordable housing is less than 50 per cent, where: AH is the percentage of the gross floor area of the development that is used for affordable housing. Y = AH ÷ 100	The application proposes to use a minimum of 20% of the gross floor area of the development for affordable housing. The existing FSR applicable in this location is 0.5:1. Based on the formula contained in the clause, the applicable FSR will be 0.5:1 plus 0.2 = 0.52:1. The proposal complies with this requirement.	Yes
14. Standards that cannot be used to refuse consent
*(1) Site and solar access requirements* A consent authority must not refuse consent to development to which this Division applies on any of the following grounds: (a) (repealed)
*(b) site area* if the site area on which it is proposed to carry out the development is at least 450 square metres,	The site has an area of 725m²	Yes
*(c) landscaped area* if: (i) in the case of a development application made by a social housing provider—at least 35 square metres of landscaped area per dwelling is provided, or (ii) in any other case—at least 30 per cent of the site area is to be landscaped,	Application not made by a social housing provider. Plans show a total of 290m² landscaped space, which is 40% of the site.	Yes
*(d) deep soil zones* if, in relation to that part of the site area (being the site, not only of that particular development, but also of any other associated development to which this Policy applies) that is not built on, paved or otherwise sealed: (i) there is soil of a sufficient depth to support the growth of trees and shrubs on an area of not less than 15 per cent of the site area (the deep soil zone), and (ii) each area forming part of the deep soil zone has a minimum dimension of 3 metres, and (iii) if practicable, at least two-thirds of the deep soil zone is located at the rear of the site area,	A total of 120m² deep soil zone is provided, being 16% of the site area. It is provided in two areas, each having a minimum dimension of at least 3m. The nature of the site, being a corner lot, makes it impractical to provide all of the deep soil zone to the rear. In this case, the design intention of having the internal car parking located behind the buildings has taken priority, leaving the deep soil zones toward the frontages of the property. In the circumstances, this is considered acceptable.	Yes
*(e) solar access* if living rooms and private open spaces for a minimum of 70 per cent of the dwellings of the development receive a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter.	6 of the 8 units (75%) received the required solar access.	Yes
*(2) General* A consent authority must not refuse consent to development to which this Division applies on any of the following grounds:
*(a) parking* if: (i) in the case of a development application made by a social housing provider for development on land in an accessible area—at least 0.4 parking spaces are provided for each dwelling containing 1 bedroom, at least 0.5 parking spaces are provided for each dwelling containing 2 bedrooms and at least 1 parking space is provided for each dwelling containing 3 or more bedrooms, or (ii) in any other case—at least 0.5 parking spaces are provided for each dwelling containing 1 bedroom, at least 1 parking space is provided for each dwelling containing 2 bedrooms and at least 1.5 parking spaces are provided for each dwelling containing 3 or more bedrooms,	Application not made by a social housing provider. Application generates the following: 4 x 1 bedroom = 2 spaces 4 x 2 bedroom = 4 spaces TOTAL = 6 spaces 6 spaces are provided	Yes
*(b) dwelling size* if each dwelling has a gross floor area of at least: (i) 35 square metres in the case of a bedsitter or studio, or (ii) 50 square metres in the case of a dwelling having 1 bedroom, or (iii) 70 square metres in the case of a dwelling having 2 bedrooms, or (iv) 95 square metres in the case of a dwelling having 3 or more bedrooms.	The 4 x 1 bedroom units each have only 42m² floor area. The 4 x 2 bedroom units each have only 52m² floor area. Compliance with SEPP requirement would result in a total floor space of 480m². Proposal provides for a total floor space of 376m². Overall, the proposed development has a ‘shortfall’ in floor space of 104m² The reduced floor area results in design of the dwellings that does not provide an acceptable level of amenity, in that: · there is not sufficient circulation space provided in the bedrooms; · poor kitchen design results in unacceptable outcomes such as food storage spaces being located distant from the kitchen, behind the front door; · laundries are accessible only from the external decks; and · ground floor store rooms are accessible only from stairwell.	No
*(3)* A consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (1) or (2).	Noted
15. Design requirements
(1) A consent authority must not consent to development to which this Division applies unless it has taken into consideration the provisions of the Seniors Living Policy: Urban Design Guidelines for Infill Development published by the Department of Infrastructure, Planning and Natural Resources in March 2004, to the extent that those provisions are consistent with this Policy.	Part 1 – Responding to context Proposal is inconsistent with existing character in terms of scale and density. It does not appropriately respond to the context of the site, given the issues associated with the internal amenity of the units as proposed and their relationship to neighbours (encroachment into Building Height Plane). Part 2 – Site Planning & Design In addition to character concerns, encroachment into the Building Height Plan raises the potential for privacy, overlooking and overshadowing issues. Part 4 – Impacts on neighbours Encroachment into the Building Height Plan raises the potential for privacy, overlooking and overshadowing issues. Part 5 Internal site amenity The proposal does not provide adequate residential amenity, given the small internal floor space. Also, the private open space for Units 1-5 is entirely within the front setback, resulting in a significant lack of privacy for these spaces and compromising the useability of these outdoor areas.	No
16A Character of local area A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.	Argyle Street provides the primary access spine for entry into Mullumbimby from the east. The residential area east of the rail corridor was developed later than the central residential area of town and contains housing dating from the 1940s onwards. In the main, the residential character is dominated by single one-storey dwellings. Prominent nearby exceptions are Mullumbimby Primary School, located around 65-70m to the north, and the Seventh Day Adventist church, located approx. 95m west on Argyle Street. Within the residential area north of Argyle Street, single one-storey dwellings are the majority land use, with a small number of units and two-storey built form located to the extreme north of the area, approx. 450-500m to the north of the site. More variety exists to the south of Argyle Street, primarily in the form of secondary dwellings fronting rear lanes. The majority of dwellings in this area remain, however, single storey in height. In this case, there is an inherent inconsistency in character, given the character described above and the proposal for multi dwelling housing. The design of the development results in a significant non-conformance with the Building Height Plane requirements of Council’s Development Control Plan 2014 (see below), which indicates that the scale and density of the proposed development is inconsistent not only with the existing residential character, but also with the future character that can be reasonably be expected for this locality.	No
*17. Must be used for affordable housing for 10 years* (1) A consent authority must not consent to development to which this Division applies unless conditions are imposed by the consent authority to the effect that: (a) for 10 years from the date of the issue of the occupation certificate: (i) the dwellings proposed to be used for the purposes of affordable housing will be used for the purposes of affordable housing, and (ii) all accommodation that is used for affordable housing will be managed by a registered community housing provider, and	A condition can be included in to require that 2 of the proposed dwellings are to be used for the purposes of affordable housing for a period of ten years from the date of issue of an occupation certificate. (Dwellings 2 & 7 are nominated) This affordable housing is also required to be managed by a registered community housing provider.	*Yes (Subject to conditions)
(b) a restriction will be registered, before the date of the issue of the occupation certificate, against the title of the property on which development is to be carried out, in accordance with section 88E of the Conveyancing Act 1919, that will ensure that the requirements of paragraph (a) are met.	An appropriate condition can be applied.
(2) Subclause (1) does not apply to development on land owned by the Land and Housing Corporation or to a development application made by, or on behalf of, a public authority.	Noted
18. Subdivision Land on which development has been carried out under this Division may be subdivided with the consent of the consent authority.	The subject development application does not seek consent for subdivision at this time.	Noted

4.2 Byron Local Environmental Plan 2014 (LEP 2014)

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 multi dwelling housing;

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

(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.

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

The proposal will provide additional rental accommodation, with an affordable component, which is an identified housing need for Mullumbimby.

The proposed development complies with all of these clauses except in relation to the following:

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

Cl.4.1E Minimum lots sizes for dual occupancies, multi dwelling housing and residential flat buildings

Development consent must not be granted to development for multi dwelling housing on land within the R2 zone, unless the property has an area of 1,000m².

This requirement is inconsistent with clause 14(1) of SEPP (Affordable Housing) 2008, which sets a minimum site area of 450m². As indicated above, the provisions of the SEPP prevail in respect of any inconsistency.

Cl.4.4 Floor space ratio

The FSR specified for the locality is 0.5:1.

See comments above – an FSR ‘bonus’ of 0.2:1 is available under the provisions of SEPP (Affordable Housing) 2008.

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

None applicable

4.4 Byron Shire Development Control Plan 2014 (DCP 2014)

The proposed development complies with all sections of DCP2014, except in relation to certain prescriptive measures, which are considered further (having regard to the DCP 2014 Section A1 Dual Path Assessment) as follows:

*Non-compliance*	*Comments*
B4.2.5 Car Parking Requirements Proposal does not comply with parking numbers outlined in Table B4.1	The provisions of SEPP (Affordable Housing) 2008 take precedent over the DCP controls. Cl. 14(2) of the SEPP establishes minimum parking requirements. The proposal meets those requirements.
D1.2.1 Building Height Plane	The proposed development encroaches into the Building Height Plane: · upper levels of Units 6, 7 & 8, including bedroom windows, which overlook a single-storey dwelling on the neighbouring property; · upper floor of Unit 1, including a bedroom window, overlooking a single-storey dwelling on the neighbouring property. The encroachment has the potential to result in privacy and overlooking issues for neighbouring properties.
D1.2.2 Setbacks	Argyle Street is a classified road. The setback requirement therefore is 9m. The development is proposed with a minimum setback of 4.7m to the decks of Units 1-3, and 6.5m to the walls. The majority of existing dwellings fronting Argyle Street have a setback between 6.5 – 7.0m, providing a uniform streetscape to that street. The intrusion of the roofed decks into the Argyle Street setback is not supported, as it would be inconsistent with the established streetscape character. For corner lots, Section D1.2.2 of DCP 2014 sets a prescriptive measure that allows setbacks to be reduced to 3m on one frontage. The existing dwelling on the subject land has part of the building with a setback of approx. 2.5m from the Queen Street frontage, with the bulk of the dwelling approx. 8m from the frontage. The remaining dwellings on the eastern side of Queen Street have a relatively uniform setback around 7m. The proposed units fronting Queen Street have a setback to the wall of 3.088m. Each unit includes a roofed deck structure which protrudes into the setback, set at 1.288m from the boundary. The intrusion of the roofed decks into the Queen Street setback is not supported, as it would be inconsistent with the established streetscape character. A minimum distance of 3m is required between buildings on a site for multi dwelling housing. The distance between units3 & 4 and 5 &6 is less than this at 1.8m. In the circumstances of affordable rental accommodation, this variation can be supported.
D1.6.1 Private Open Space Courtyards	Each dwelling is required to have access to an individual courtyard at ground level with an area of at least 30m². A number of the units do not comply with this requirement. Arguably, the requirement is ‘overwritten’ by the landscape area requirements within SEPP ARH (see above). Notwithstanding that, the private open space areas provided for Units 1-5 are entirely within the street frontage setbacks. The openness of these frontages, while required for streetscape purposes, means that the open space areas would not be private nor useable for residents.

4.5 Any Planning Agreement or Draft Planning Agreement?

	Yes	No
Is there any applicable planning agreement or draft planning agreement?	☒	☒
Consideration:

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

4.7 Any COASTAL ZONE MANAGEMENT PLAN?

	Satisfactory	Unsatisfactory	Not applicable
Is there any applicable coastal zone management plan?	☐	☐	☒
Consideration:

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	Yes. The encroachment into the Building Height Plane results in a proposal that will have an adverse impact on the built environment of the locality.
Social Environment	Yes. While the provision of additional rental accommodation would be a benefit in the area, particularly with an affordable component ‘locked-in’, the proposal has tried for too much floor space for this site, resulting in cramped spaces for future residents and no useable private open space. This will result in an adverse social impact on the locality.
Economic impact	No. The proposal will not have a significant economic impact on the locality.

4.9 The suitability of the site for the development

The site is a serviced, unconstrained property and is suitable for residential development. While the existing character of the locality relates to very low scale housing, the provisions of Council’s LEP and DCP and the SEPP ARH are such that it is reasonable to expect an increase in scale and density in the future.

The proposed development, however, seeks a quantum of development that is in excess of what would be a reasonable expectation for this site and context.

The combination of poor residential amenity associated with minimal internal floor space, open spaces for many of the units that is not private or useable, and the encroachment into the building height plane on boundaries adjoining existing dwellings demonstrates that the development as proposed is an overdevelopment of the site.

4.10 Submissions made in accordance with this Act or the regulations

The development application was publicly exhibited. There were 46 submissions made on the development application, 1 in support and 45 objecting. The letter of support was in the form of a petition containing 15 signatures.

The table below addresses the issues raised in the submissions:

*Issue*	*Comment*
Support:
The development will provide more long term rental accommodation for people living and working in Mullumbimby It will increase the housing stock for singles and couples in an area well serviced by retail and commercial services. It will provide accommodation close to employment.	While the provision of additional rental accommodation would be a benefit in the area, particularly with an affordable component ‘locked-in’, the proposal has tried for too much floor space for this site, resulting in cramped spaces for future residents and no useable private open space. This would result in amenity impacts for future residents. The development also encroaches into the building height plane for both adjoining residences. These impacts need to be measured against the benefits associated with the provision of additional rental housing.
Objection:
Development is not in keeping with the surrounding area, which is an older part of town; overdevelopment of the site.	See discussions above.
Traffic congestion on Queen Street associated with public school; additional traffic would create/ add to safety issues/ conflicts with school buses and children walking to school.	A traffic impact assessment has not been provided. The development has the potential to generate up to 40 daily vehicle trips and 4 peak hour trips. This is not considered to be a significant increase in local traffic. While the locality does experience minor congestion at before and after school times, issues are minor and there are no significant safety issues, primarily because traffic is very slow moving generally and particularly at peak times. Overall, it is considered that traffic impacts are manageable and would not create significant safety or efficiency issues.
Too few parking spaces; will result in cars parked on street. Restricted bus services mean that car ownership is a necessity in Mullumbimby.	As outlined above, the provisions of SEPP ARH prevent Council from refusing an application made under that Policy on the basis of car parking if the minimum standards outlined in the SEPP are met. The development meets those standards, and Council can therefore not refuse this application on parking grounds.
Local drainage issues would be exacerbated.	A Stormwater Management Plan has been provided and has been assessed by Council’s Development Engineer as being acceptable. Any approval for this application would include conditions addressing this issue, to ensure that local drainage issues would not be worsened.
Two storey nature of development is not conducive to residents with mobility problems.	There is no statutory or policy requirement specifying that development of this scale should provide for mobility impaired residents.
Low income rent is not specified. Concern that units will be rented above ‘affordable levels’.	As required by SEPP ARH, 20% of the total floor space – in this case two of the proposed units would be set aside for affordable rental for a period of at least 10 years. The SEPP does not require all of the units to meet this requirement.
Upper level bedrooms will be hot during summer, requiring costly cooling that will not be affordable for target renters.	As discussed above, the internal arrangements of the units will result in a lack of amenity for future residents, primarily associated with small, cramped rooms. An increase in internal floor space would allow an improvement in this issue, providing for improved natural ventilation.
Insufficient number of garbage bins for 8 units.	The proposal proposes shared garbage bins.
Insufficient private open space for units.	See discussion above – this objection is supported. Open space for units 1-5 is wholly within the front setbacks of Argyle & Queen Streets. As such, it provides no privacy, which significantly impairs the useability of those spaces for residents.
Flooding – proposal relies on an outdated flood study.	Flood data was provided by Council dated 09/10/2018 and is therefore current.
Non-compliance with DCP – building height plane; setbacks on Argyle & Queen Streets and private open space requirements.	See discussion above – this objection is supported.

4.11 Public interest

Given the issues raised in this report, primarily associated with the combination of resident amenity concerns and inconsistency with character of the locality, approval of the development in its current form would prejudice or compromise the public interest.

5. DEVELOPER CONTRIBUTIONS

5.1 Water & Sewer Levies

Section 64 levies would be payable for this development. Given the recommendation of this report to refuse, calculation of the applicable levies has not been completed.

5.2 Section 7.11 Contributions

No Section 7.11 Contributions would be payable for this development. Given the recommendation of this report to refuse, calculation of the applicable contributions has not been completed.

6. CONCLUSION

The development application is made under the provisions of SEPP (Affordable Rental Housing) 2009. The proposal consists of eight (8) two storey townhouses; four (4) containing a single bedroom, and four (4) containing two bedrooms, arranged in two groups of four (4) around a central internal car parking area.

Two (2) dwellings are proposed to be set aside for affordable housing as defined by the SEPP. This is consistent with the requirements of the SEPP that at least 20% of the available floor space be used for this purpose.

The one bedroom units have a floor space of 42m², containing a lounge, kitchen, laundry and storage at ground floor and a bedroom, bathroom and study on the upper level.

The two bedroom units have a floor space of 52m², with the same room configuration at ground floor, and two bedrooms and a bathroom on the upper level.

The proposal takes advantage of the floor space “bonus” applicable under the SEPP, resulting in a floor space ratio of 0.52:1 (the maximum floor space ratio specified for this locality is 0.5:1).

The proposal also takes advantage of the reduced car parking provisions of the SEPP providing six (6) spaces, arranged in a central uncovered parking area.

The proposed dwelling size is less than that set by way for the non-discretionary standard within the SEPP, as outlined in the table below, resulting in units that provide poor internal amenity for future residents.

Dwelling Size:

*Unit Type*	*SEPP Standard*	*Proposed*
One bedroom	50m²	42m²
Two bedroom	70m²	52m²

The proposal is inconsistent with the requirement of Byron DCP 2014 in the following ways:

· Building height plane – encroachments on both residential boundaries;

· Setbacks – covered external decks intrude within the front setbacks of both Argyle & Queen Streets; and

The development in its current form is not supported and it is recommended that the development application be refused.

The applicant has commenced a Class 1 appeal in the Land & Environment Court against the deemed refusal of the application.

While the development in its current form is not supported, delegation is sought for the General Manager to enter into negotiations around an appropriate resolution of issues, through the section 34 conciliation hearing associated with the Class 1 appeal.

7. REASONS FOR DECISION, HOW COMMUNITY VIEWS WERE ADDRESSED

Statement of Reasons

The proposed development is inconsistent with the character of the locality.

The proposed development does not comply with significant provisions of Byron Development Control Plan 2014.

The proposed development is inconsistent with State Environmental Planning Policy (Affordable Rental Housing) 2009.

How community views were addressed

The DA was notified/advertised in accordance with Development Control Plan 2014. 46 submissions were received; 45 in objection.

As summarised in the table at Section 4.10 of this report, a number of the issues raised in submissions have been identified in this assessment of the application, resulting in the recommendation for refusal.

8. 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

DA No	10.2018.125.1
Development	Dwelling house secondary dwelling swimming pool
Property:	9 Wollumbin Street BYRON BAY
Lot and DP:	LOT 2 DP 1145775
Zoning:	R2 Low Density Residential
Development Standard being varied	Clause 4.3 Height of Building - 9m
Justification	Parts of the roof are above the maximum 9 metres. Amended plans were submitted to reduce the building height to reduce the overall bulk of the building as it presents to the street. The site is steeply sloping and adjoining properties are immediately to the east and west, therefore overshading impacts are not considered to be an issue and the minor breaches of the building height plane on the lowest part of the site. For these reasons it is considered reasonable in the circumstances of the case to permit an exception to the development standard.
Extend of variation	The variation is 5%.
Concurrence	Assumed concurrence from DPE
Determination Date	25/10/2018
Determined by	Director SEE

DA No.	10.2018.290.1
Development	Dwelling House and Swimming Pool
Property:	1/40 Corkwood Crescent SUFFOLK PARK
Lot and DP:	LOT 2 DP 1244945
Zoning:	R2 Low Density Residential
Development Standard being varied:	Clause 4.3 Height of Building - 9m
Justification	Parts of the roof is above the maximum 9 metres. The variation is 800mm at its maximum and therefore less than 10 %. Due to the levels required to achieve access from the driveway that was previously constructed under a subdivision approval for 40-42 Corkwood Crescent the floor plans need to align with this whilst the site is steeply sloping. It is considered reasonable in the circumstances of the case to permit an exception to the development standard.
Extent of variation	8.8% - 800mm over the max is 9 m (less than 10 % Variation)
Concurrence	Assumed concurrence from DPE
Determined Date	26/10/2018
Determined By	Director SEE

DA No.	10.2018.86.1
Development	Installation of Telecommunications Facility and Associated Ancillary Equipment
Property:	Old Pacific Highway BRUNSWICK HEADS
Lot and DP:	LOT 339 DP 755692
Zoning:	RE2 Private Recreation
Development Standard being varied:	Clause 4.3 Height of Building - 9m
Justification	The proposed telecommunication tower has a proposed maximum height of approximately 31.5m. The height is required to provide extensive coverage for the Brunswick Heads Area, whilst the location is on the southern periphery of town and away from dwelling houses. It is considered reasonable in the circumstances of the case to permit an exception to the development standard.
Extent of variation	The extent of the variation is approximately 250%.
Concurrence	Assumed concurrence from DPE
Determined Date	22/11/2018
Determined By	Council

DA No.	10.2018.237.1
Development	Dwelling House and Three (3) Swimming Pools
Property:	168 Grays Lane TYAGARAH
Lot and DP:	LOT 4 DP 748585
Zoning:	1(a) General Rural Zone
Development Standard being varied:	Clause 40 Height
Justification	The proposed upper floor level of the building does not comply with the maximum permitted topmost floor level of 4.5m. The approved upper floor is 6.0m above existing ground level at its highest point. A variation is supported in this instance with the works integrating with the contours of the land and unlikely to visually impact upon the scenic amenity of the area. It is considered reasonable in the circumstances of the case to permit an exception to the development standard.
Extent of variation	33%
Concurrence	Assumed concurrence from DPE
Determined Date	13/12/2018
Determined By	Council

DA No.	Applicant	Property Address	Proposal	Exhibition Submission/s	Reason/s Outcome
10.2018.552.1	Mr C Sked	11 Warrambool Road OCEAN SHORES	Multi Dwelling Housing Consisting of Eight (8) New Townhouses, Torrens and Strata Title Subdivision and Tree Removal over Multiple Stages	Level 2 22/11/18 -12/12/18 4 submission and petition	The perceived public significance of the application Council
10.2018.591.1	Lismore Venture Pty Ltd	28 Argyle Street MULLUMBIMBY	Construction of Multi Dwelling Housing Comprising Eight (8) Dwellings Under Affordable Housing Strategy 2009	Level 2 13/12/18 -16/1/19 21 submissions	The number of public submissions Council
10.2018.483.1	Frank Stewart Architect	58 Montecollum Road WILSONS CREEK	Rural Tourist Accommodation: Eight (8) Cabins, Swimming Pool and Associated Works	Level 2 11/10/18 -24/10/18 16 submissions	The validity of the matters raised in the public submissions The perceived public significance of the application Council
10.2019.16.1	Ardill Payne & Partners	18 Pioneers Crescent BANGALOW	Proposed Mixed Use Development Comprising Eco Tourism Facilities, Recreational Facilities, Environmental Facility, Agricultural Produce Industries and Associated Retail Outlets, Garden Centre with Restaurant/Cafe	Level 2 31/1/19 – 20/2/19 13 submissions	Outside staff delegation over $10 million Council