Agenda of Ordinary (Planning) Meeting - Thursday, 11 August 2022

BYRON SHIRE COUNCIL

Submissions and Grants 11.1

Submissions and Grants

Report No. 11.1 AGRN1012 - Natural Disaster $2.375 million - Program of Works

Directorate: Corporate and Community Services

Report Author: Donna Johnston, Grants Coordinator

File No: I2022/900

Summary:

Council has been allocated an additional $2.375 million AGRN1012 Disaster Flooding funding, broken into two funding streams:

1. Local Council Support Package ($2 million)

For measures and activities not eligible through existing Disaster Recovery Funding Arrangements (DRFA) or other government grants. Council must demonstrate how the project meets the project criteria.

2. Local Council Support Package Companion Animals ($375,000)

The Companion Animal grant provides financial assistance to highly impacted councils towards supporting pound operations in assisting with reuniting and rehoming pets displaced by the floods.

This report provides an overview of each of the proposed project nominations under the two funding streams.

The Program of Works must be submitted to the funding body by 12 August 2022.

RECOMMENDATION:

1. That Council endorses the following Program of Works under the $2 million Local Council Support Package:

a) Natural Disaster Planner ($220,000)

b) Natural Disaster Policy Planner ($220,000)

c) Discussion Paper: ‘After the floods: Working out possibilities together’ ($60,000)

d) Business and Visitor Economy Strategy ($70,000)

e) South Golden Beach Resilience Betterment Program ($500,000)

f) Byron Shire Council Flooding and Drainage Easement Community Education Program ($15,000)

g) Community Education Strategy and Review of Flood Options ($40,000)

h) Byron Shire Event Strategy ($50,000)

i) Review and Update of Byron DCP 2014 Chp ‘C2’ - Areas Affected by Flood and DCP 2010 Part ‘K’ – Flood Liable Land ($25,000)

j) Byron Shire Council Drainage Enhancement Program ($390,000)

k) Supporting Community Resilience and Recovery: Emergency Communications ($90,000)

l) Supporting Community Resilience and Recovery: Spontaneous Volunteering ($90,000)

m) Northern Rivers Together – Regional marketing and promotion campaign ($50,000)

n) Project Managing Community Building Restoration ($180,000)

2. That Council endorses the following Program of Works under the $375,000 Local Council Support Package Companion Animals:

a) Animal Education and Enforcement Officer ($190,000)

b) Companion Animals Education Program ($60,000)

c) Educational signage ($95,000)

d) Microgrants for Byron Dog Rescue, Animal Welfare League Mullumbimby and Pets For Life Billinudgel ($30,000)

Attachments:

1 Northern Rivers NSW Proposal & Branding Campaign, E2022/67961

Report

Council has been allocated an additional $2.375 million AGRN1012 Disaster Flooding funding.

The funding is broken into two funding streams:

1. Local Council Support Package ($2 million); and

2. Local Council Support Package Companion Animals ($375,000).

The following information provides an overview of project nominations from Council Directorates. The Program of Works must be submitted to the funding body by 12 August 2022.

The project nominations must be completed by 30 June 2024.

Local Council Support Package - $2 million

Councils must use the funding on measures and activities not eligible through existing Disaster Recovery Funding Arrangements (DRFA) or other government grants. Plus, demonstrate how the project meets the project criteria outlined below:

Project Criteria	Description
Diverse local recovery needs are balanced	The community has a need for the project and its outcomes. This need can either be demonstrated through data analysis or through community driven interest in the project and its outcome.
Alignment	The project is able to contribute to social and economic recovery needs and current recovery activities whilst avoiding duplication with other recovery initiatives already fully funded or underway.
Resilience building	The project supports the ongoing productivity, sustainability, preparedness and disaster resilience of the impacted community or infrastructure asset(s).
Local support and delivery	The community supports the project and participate, where possible, in planning and development processes. The project should aim to optimise local and Indigenous employment and procurement opportunities, including opportunities for local trades, services and other input-supplying businesses.
Feasibility	The project is feasible, risks and consequences are acceptable, and appropriate mitigation strategies are identified. Project proponents can demonstrate delivery capacity and experience, and project readiness supports commencement and completion within program timeframes. Cost is an effective, efficient, and ethical use of resources. Council must provide evidence the project has been adequately planned, costed and appropriate mitigation strategies are in place for identified risks. For infrastructure projects, council should demonstrate how any infrastructure is to be maintained, including evidence to demonstrate that the future operating and maintenance costs of the project can be continued.

The following projects are proposed to be nominated under a Program of Works and submitted to the NSW Government for approval.

Project Nominations – Local Council Support Package $2 million	Amount Requested
a) Natural Disaster Planner Residents wishing to return home and/or rebuild after the 2022 flood/storm events are facing significant hurdles and time delays to do this. Council needs ensure the swiftest decisions can be possible for those wishing to raise building heights to accommodate new flood heights and alter or rebuild on their land in a flood/storm proof manner to adapt to the new climate paradigm. To do this it is proposed to employ a fixed term Natural Disaster Planner to: · Develop advice/information package on appropriate standards for rebuilding in flood and storm impacted areas. Some of this work has commenced already with the DPE but needs to be championed locally. · Meet with and provide advice to landowners on rebuilding in flood and storm impacted areas as the data becomes available and policy changes occur. · Work across council directorates to provide planning expertise when needed to support wider flood and storm recovery and resilience work. · Implement a fast-track process for development applications and other council approvals directly relating to the flood and storm events and those that seek to future proof with alterations and or changes to become flood proof. Flood Recovery Projects have been identified as a priority in the recently adopted Delivery Program 2022-26, with specific Operational Plan activities to be delivered in 2022/23: *Strategy: 4.5 Support a resilient community that can adapt and respond to change* *Delivery Program Priority: 4.5.2 – Recovery - Support disaster recovery following the 2022 flood event* Resolution 22-249 also supports Council request for assistance with extra staff. *22-249 Resolved:* 1. That Council notes that staff will be preparing a high-level discussion paper After the Floods – Working Out Possibilities Together for presentation to Council and community engagement later in 2022. *2. That Council submits a request to the Department of Planning and Environment (DPE) for assistance with extra staff.*	$220,000
b) Natural Disaster Policy Planner The new fixed term position will: • Support the consultants engaged to review of the existing flood provisions forming part of the 2010 and 2014 DCPs. • Prepare and manage subsequent planning proposal amendments to Byron LEP 2014 and Byron DCP 2010 and 2014 for natural disaster including flood changes. • *Support the consultants engaged to prepare the Flood Discussion Paper: ‘After the floods: Working out possibilities together’ and subsequent community engagement.* • Meet with and provide advice to landowners on rebuilding in flood and storm impacted areas as the data becomes available and policy changes occur. • Work across Council directorates to provide planning expertise when needed to support wider flood and storm recovery and resilience work.	$220,000
c) Discussion Paper: ‘After the floods: Working out possibilities together’ Review existing ‘settlement strategies’ on the back of the unprecedented 2022 flood events, and to respond to the wider consideration of climate change and natural disaster management. To inform and assist these strategy reviews and compliment Council’s other work plans and programs, Council resolved (Res. 22-249) to prepare a high-level discussion paper to set out a framework for a land use and planning response to 2022 Flood Events - and identify principles/actions that could apply across the Council’s strategies, plans and programs more broadly as a result.	$60,000
d) Business and Visitor Economy Strategy Council endorsed (Res. 21-199) the framework for the review which will consider the needs of both our business and tourism industries with timely actions to support our industries, businesses and employment. Three strategic objectives have been identified based on consultation with the business and tourism industries to date: 1. Support the resilience and longevity of local industry, business and employment. 2. Encourage our emerging sectors to flourish 3. Build informed and connected businesses. These objectives cover job security and creation, entrepreneurship and innovation, business resilience, collaboration and leadership, promotion of investment, education and training, as well as support for a sustainable visitor economy. The Economic Health Check report (currently commissioned) will also inform the new strategy along with the new Census data and the Regional Economic Development Strategy (REDS) which is currently under review. The development of this strategy will include future workshops and engagement with our business community, educational institutions, tourism industry and other key stakeholders including Councillors and state agencies. Council contribution - $10,000	$70,000
e) South Golden Beach Resilience Betterment Program The South Golden Beach (SGB) resilience betterment program will consist of the following projects. 1. SGB Flood Pump Generator Continuous Power Supply Install ($100,000) 2. SGB Rear Easements Enhancements Planning (project planning to complete full enhancement of SGB rear easements ($50,000) 3. SGB Rear Easements Enhancements (on ground works from planning process) ($300,000) 4. SGB soakage pits enhancements by connecting to drainage systems ($50 000) The SGB resilience betterment program will assist Council to investigate and implement solutions that will reduce flood risk and improve disaster response in SGB, and will: a) Understand consequences and mitigate risks b) Understand future opportunities for improvement c) Understand future funding needs for implementation d) Program and resource new infrastructure.	$500,000
f) Byron Shire Council Flooding and Drainage Easement Community Education Program An education program aimed at residents and businesses to highlight the importance of open drains and easements and maintenance practices. Educations program will consist of fact sheets, social media, website updates, newspaper advertising and rates notice. The education program will assist Council and the community to ensure flooding and drainage easements are operating at the highest possible efficiency during a flooding and drainage event.	$15,000
g) Community Education Strategy and Review of Flood Options This project aims to directly support community and social recovery and well-being through exploration of the issues and deep-rooted community opinions through: · Exploration and further analysis of flood mitigation options, i.e. dredging, removal of rock training walls in Marshalls Creek, estuary siltation, ocean outlets, modelling 2022 flood event with these scenarios. · Facilitate a Project Reference Group with directly affected residents. · Discussion with key stakeholders and broader community engagement initiatives. · Community education around what has been modelled, the results and what causes the results. The project would involve a desk-top study/analysis (literature review, modelling peer review) and in-depth community engagement initiatives. A consultant would be engaged to deliver the project (estimated approx. $50,000) with in-kind support from relevant Council staff. Community participation through engagement activities would form a key component of the project. Council contribution - $10,000	$40,000
h) Byron Shire Event Strategy A key Council need is to review its support for local events, on the back of the unprecedented 2022 flood events, and to ensure Council supports enabling festivals to enhance the Shire’s creative industries, provide jobs and opportunities for creative companies and workers, and contribute to community well-being. *To inform and assist the strategic direction, Council resolved (Res. 22-288):* *1. That Council creates an action plan to enable and encourage small and medium sized festivals to operate in Byron Shire.* *2. That Council reviews small and medium sized festival proposals currently pending or recently determined to explore the feasibility for these festivals to be conducted in the period 2022-24.* 3. That Council reviews its policy and processes to ensure we support enabling festivals to enhance our creative industries, provide jobs and opportunities for creative companies and workers, and to contribute to community well-being. *4. That as part of this process, council reviews their staffing and processes as part of an events strategy.* *5. That council do further work to clarify the DA and tenure issues around local potential sites capable of hosting events of various sizes.* Delivery of this Strategy will assist with accelerating economic recovery through improving our event sector capacity and capability to respond to and strengthen their ability to withstand and recover from future disasters.	$50,000
i) Review and Update of Byron DCP 2014 Chp ‘C2’ - Areas Affected by Flood and DCP 2010 Part ‘K’ – Flood Liable Land This project will ensure an updated planning and development control framework based on the 2022 flood events. An updated flood planning framework will benefit the community and developers by ensuring better alignment with Council’s adopted flood risk management studies and plans and the NSW government’s Flood Prone Land Package (commenced July 2021). The updated framework will also focus on the safe occupation and efficient evacuation of people in the event of a flood. An updated planning and development control framework that addresses future design and scale of development, as well as safe occupation and efficient evacuation of people, is a critical component of managing the economic and social impacts from flooding. The updated flood planning framework will have a greater focus on the safe occupation and efficient evacuation of people in the event of a flood, which will improve sustainability and community preparedness to respond to major flood events in the future. It is expected that the community will be supportive of planning projects that focus more on the safe occupation and efficient evacuation of people in the event of a flood. All stakeholders will be able to provide feedback during exhibition of the updated DCP chapters, which Council will consider before finalising. The review and update of Byron DCP 2014 Chp ‘C2’ - Areas Affected by Flood and DCP 2010 Part ‘K’ – Flood Liable Land is an effective and efficient use of planning resources to guide the siting, design and scale of future development. The project can be feasibly completed by the end of 2022.	$25,000
j) Byron Shire Council Drainage Enhancement Program This project is an enhancement of the drainage maintenance program. The program will target flood affected areas and repairs and clean drains and outlets (coastal and inland) of impacts from the recent AGRN1012 sever weather and floods event; mud, silt, sand and debris. The program will allow Council to reach areas it currently cannot, due to funding shortfalls and support future stormwater and flood mitigation. Once completed, it will reduce ongoing maintenance burdens and ensure the drainage system operates at peak efficiencies and capacities.	$390,000
k) Supporting Community Resilience and Recovery: Emergency Communications This project will support Byron Shire to better prepare for, respond to and recover from disasters by building emergency communication capability in risk prone communities. The project will incorporate the following elements, in close collaboration with local communities: · Mapping communities’ residual risk relating to communication failure, to inform identification of target communities (preliminary mapping already underway) · Consulting with target communities (preliminary consultation already underway) · Engaging consultant for communications testing, advice and solution scoping for each target community – in conjunction with emergency services · Developing a simple community emergency communications plan for each community – with redundancy · Providing funding to communities for purchasing radios/repeaters/satellite phones (based on consultant advice) · Developing standard operating procedures for maintenance and Memorandum of Understanding for community ownership · Delivering training in communities, including technical operations, emergency management protocols and mechanisms for integration with formal emergency management agencies · Scenario testing. This project will partner with, and enable further capability across, local Community Resilience Teams (CRTs) and community groups. Notably, Main Arm and Wilson’s Creek have formed community associations with communications subcommittees seeking to progress this work asap. A coordinated approach can draw potentially disparate strategies together and support more efficient and effective communications capability outcomes.	$90,000
l) Supporting Community Resilience and Recovery: Spontaneous Volunteering This project will support Byron Shire to better prepare for, respond to and recover from disasters by building spontaneous volunteering capability and capacity in risk-prone communities. It seeks to create a clear, collaborative approach to spontaneous volunteering for Byron Shire that can be incorporated into formal planning and communicated pre/during/post-disaster. Phase 1 will include: · Desktop review of contemporary good practice in the regional, state, national and international context · Consultation/engagement to establish target communities and pre-existing coordination capacity, including: o Local Health and Wellbeing Subcommittee o Community Resilience Network (CRN) o Community Resilience Teams (CRTs) o Local community organisations e.g. emerging community associations in Wilson’s Creek and Main Arm · Summary Report, including options for an approach to local Spontaneous Volunteering and recommendations Phase 2 (dependent on findings of Phase 1), may include: · Brokering and endorsement of organisational roles · Appropriate resolution of legal, insurance and WHS issues · Developing organisational capability (internal and/or external) · Developing volunteering coordination resource kit · Volunteer coordination training for community groups · Scenario testing · Communication Strategy for pre/during/post-disaster settings.	$90,000
m) Northern Rivers Together – Regional marketing & promotion campaign To reinstate confidence and optimism in the Northern Rivers region, internally and externally, as a place to live, invest, pursue a career, visit, and identify. Project: A high-frequency marketing campaign over 12-18 months across multiple channels and broad audience segments under the theme of Northern Rivers Together, responding to this period of natural disaster and uncertainty to rally the population, business community and civic leaders to believe in the qualities, features and future of the region. Project will contribute to the economic recovery needs of the Byron Shire through the coordinated marketing campaign; in turn supporting jobs and supporting social resilience. Note: The June 2022 proposal from Northern Rivers Together is attached and contains further information on the campaign (Attachment 1. E2022/67961). Council received a similar request in 2020 and resolved: Res 20-225 – *1. That Council note the request from ‘Northern Rivers Together’ steering group for a cash contribution of $50,000 towards the implementation of the Northern Rivers NSW Brand.* 2. That Council agree to provide in kind support only through professional advice, discussion and engagement with the Northern Rivers councils, and the Northern Rivers NSW Committee to the implementation phase of the Northern Rivers NSW Brand. *3. That Council notify the ‘Northern Rivers Together’ steering group of Council’s decision.*	$50,000
n) Project Managing Community Building Restoration Fixed-term appointment to coordinate the delivery of the insurance repair program to remediate community buildings impacted by the recent flood and storm event. The role will include scoping damage, managing procurement, budgeting, and overseeing construction works/contractors. Project criteria: · Community has need for these assets to be restored as a priority. · The project aligns with social and economic recovery needs of the Shire. · All opportunities to engage local suppliers will be explored. It is critical that the required works to restore community buildings are appropriately managed. · Corporate and Community Services are the Asset Owners, but do not have resources or expertise to coordinate recovery works. · Open Spaces (Property Maintenance staff) have initiated inspections and quotes, but do not have capacity to project manage the full range of projects including: · Council Chambers · Mullumbimby RFS · CLIC Building · Mullumbimby Civic Hall · Mullumbimby District Neighbourhood Centre · Mullumbimby Scout Hall · Mullumbimby Drill Hall · Kohinur Hall.	$180,000

Local Council Support Package – Companion Animals - $375,000

The Companion Animal grant provides financial assistance to highly impacted councils towards supporting pound operations in assisting with reuniting and rehoming pets displaced by the floods.

Council is required to demonstrate in their Program of Works how projects aim to contribute to one or more of the following outcomes:

· Support costs associated with additional animal surrender or rehoming as a result of flooding.

· Provide a microgrant program for local animal welfare and rescue organisations to support care and rehoming of companion animals, up to a maximum amount of $10,000 per organisation. Operations must be within the eligible local government area.

· Support programs to increase desexing and pet registration.

· Support repair, maintenance, upgrade and/or new build facilities for council pound operations focussing on disaster recovery and resilience.

Project Nomination – Companion Animals $375,000	Amount Requested
a) Animal Education and Enforcement Officer Employment of an ‘Animal Education and Enforcement Officer’ for a period of up to 20 months to increase understanding of companion animals being lost or unable to be rehomed due to flooding and reduce the potential increases in the level of pets being destroyed. To develop and present regular and ongoing education programs for the community, schools and Council staff in relation to responsible pet ownership, including microchipping, desexing and registration and to encourage community and local economic recovery. To support the broader Government policy directives to improve animal welfare standards. To organise and facilitate regular community days to promote responsible companion animal ownership. To support the introduction and implementation of Council’s Dogs in Public Spaces Strategy.	$190,000
b) Companion Animals Education Program Support and promotion of education programs including community events, initiatives and incentives for pet owners, workshops, school events, outreach programs for displaced pet owners (including free microchipping and desexing programs) and to enable a visible presence throughout the Shire.	$60,000
c) Educational signage Educational signage in targeted areas within the Shire to support responsible pet ownership messaging and education.	$95,000
d) Microgrants – Byron Shire rehoming programs Microgrants of $10,000 per organisation to three (3) local rehoming organisations – Byron Dog Rescue (rehomes dogs only), Animal Welfare League Mullumbimby (rehomes dogs and cats) and Pets For Life Billinudgel (rehomes cats only). These three charities undertake fostering and rehoming of all Byron Shire Council impounded animals. These microgrants would assist in improving animal welfare standards and support the care and rehoming of companion animals within the local government area.	$30,000

Strategic Considerations

Community Strategic Plan and Operational Plan

CSP Objective	CSP Strategy	DP Action	Code	OP Activity
1: Effective Leadership We have effective decision making and community leadership that is open and informed	1.3: Ethical and efficient management of resources	1.3.1: Financial Management - Ensure the financial integrity and sustainability of Council through effective financial management	1.3.1.9	Coordinate grant applications to support the delivery of Council projects and services within management plans, masterplans, strategic plans, council resolutions and high priority actions from feasibility studies; and support the management of successful grants
3: Nurtured Environment We nurture and enahnce the natural environment	3.3: Protect the health of our coastline, estuaries, waterways, and catchments	3.3.2: Floodplain management - Mitigate the impact of flooding on private and public property	3.3.2.3	Floodplain Risk Management Committee coordination
4: Ethical Growth We manage growth and change responsibly	4.1: Manage responsible development through effective place and space planning	4.1.4: LEP & DCP - Review and update the Local Environmental Plan and Development Control Plans	4.1.4.2	Review and update LEP and DCP to reflect strategic land use priorities and/or legislative reforms
4: Ethical Growth We manage growth and change responsibly	4.5: Support a resilient community that can adapt and respond to change	4.5.2: Recovery - Support disaster recovery following the 2022 flood events	4.5.2.1	Support and coordinate community-centred, responsive and flexible recovery activities
4: Ethical Growth We manage growth and change responsibly	4.5: Support a resilient community that can adapt and respond to change	4.5.3: Disaster preparedness - Support and coordinate disaster prevention, preparednes, response and recovery activities	4.5.3.1	Support community and local services to develop and coordinate shared disaster resilience activities
5: Connected Infrastructure We have connected infrastructure, transport, and facilities that are safe, accessible, and reliable	5.5: Provide continuous and sustainable water and sewerage management	5.5.3: Storm-water - Provide stormwater infrastructure to manage flood mitigation and improve social and environmental outcomes	5.5.3.5	Annual Stormwater Capital Maintenance Renewal Works Program

Financial Considerations

Council is not required to make a financial contribution under the funding program, however the following potential contributions have been identified within the 2022/23 budget:

· Business and Visitor Economy Strategy - $10,000

· Community Education Strategy and Review of Flood Options - $10,000

Consultation and Engagement

Cross-divisional internal consultation was undertaken, including a review of current Council resolutions that require resources to complete.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.2

Staff Reports - Sustainable Environment and Economy

Report No. 13.2 Voluntary Planning Agreement (VPA) - 53 McAuleys Lane Planning Proposal

Directorate: Sustainable Environment and Economy

Report Author: Steve Daniels, Project Officer - Planning Reforms

File No: I2022/161

Summary:

At the 10 June 2021 Council (Planning) Meeting, Council considered a planning proposal to amend Byron LEP 2014. The planning proposal (Attachment 1 & 2) relates to a single lot located at 53 McAuleys Lane, Myocum, described as Lot 8 DP 589795 (Figure 1 below). The lot is identified in the Byron Rural Land Use Strategy as one of the “Priority sites for future rural lifestyle living opportunities”.

It is anticipated that the planning proposal would enable approximately 35 large lot residential lots, 6 neighbourhood community title lots and 1 association property lot.

Council resolved (21-181) to forward the planning proposal to the NSW Department of Planning & Environment (DPE) for a Gateway determination. A Gateway determination to proceed to public exhibition was issued by the DPE on 1 November 2021.

This report seeks Council support for a draft Voluntary Planning Agreement (VPA) requiring the applicant to deliver safety upgrades to McAuleys Lane, and an upgrade of the McAuleys Lane / Mullumbimby Rd intersection. The draft VPA has been reviewed by Council’s legal team and will be exhibited concurrently with the planning proposal.

The draft VPA responds to items in Res 21-181, and also includes an updated concept design for the Mullumbimby Rd / McAuleys Ln intersection that improves the safety profile of this intersection.

RECOMMENDATION:

That Council

1. Endorses the draft Voluntary Planning Agreement (as contained in Attachment 1 to this report) for exhibition with the corresponding planning proposal for the subject land; and

2. Receives a submissions report following public exhibition to consider key issues raised.

Attachments:

1 Template - Form of Special Disclosure of Pecuniary Interest - IF YOU EDIT THIS, THE TEMPLATE IN BSC TEMPLATES MUST ALSO BE UPDATED, E2012/2815

2 26.2021.1.1 Draft Planning Agreement - McCauleys Lane, Myocum - Draft 4.7.22, E2022/67967

3 26.2021.1.1 VPA letter of offer, E2021/114600

4 26.2021.1.1 Updated McAuleys Lane TIA submitted 23_5_22, E2022/48874

5 26.2021.1.1 McAuleys Lane Intersection Design RSA Prepared by Geolink, E2022/67766

Report

At the 10 June 2021 Council (Planning) Meeting, Council considered a planning proposal to amend Byron LEP 2014 Agenda of Ordinary (Planning) Meeting - Thursday, 10 June 2021 (infocouncil.biz). The planning proposal relates to a single lot located at 53 McAuleys Lane, Myocum, described as Lot 8 DP 589795 (Figure 1 below). The lot is identified in the Byron Rural Land Use Strategy as one of the “Priority sites for future rural lifestyle living opportunities”. The site is currently zoned RU2 Rural Landscape and C2 Environmental Conservation.

Council resolved (Res 21-181) to forward the planning proposal to the NSW Department of Planning & Environment (DPE) for a Gateway determination. A Gateway determination to proceed to public exhibition was issued by the DPE on 1 November 2021.

Following minor mapping amendments required by the Gateway determination, the planning proposal will rezone the RU2 area to R5 Large Lot Residential, with the existing C2 Environmental Conservation zones remaining unchanged. A portion of the land will also be identified on the Community Title / Multiple Occupancy map. It is anticipated that the planning proposal would enable approximately 35 large lot residential lots, 6 neighbourhood community title lots and 1 association property lot.

This report seeks Council support for a draft Voluntary Planning Agreement (VPA) requiring the applicant to deliver infrastructure upgrades needed to accommodate future development. This includes safety upgrades to part of McAuleys Lane, as well as an upgrade of the McAuleys Lane / Mullumbimby Rd intersection.

The landowner has submitted to Council a draft Voluntary Planning Agreement (VPA) to fund the required works (Attachment 1). The draft VPA has been reviewed by Council’s legal team and will be exhibited concurrently with the planning proposal.

Figure 1: Subject Land

Voluntary Planning Agreement (VPA)

What is a Voluntary Planning Agreement (VPA)?

Voluntary planning agreements are used widely in the planning system as a tool for delivering innovative or complex infrastructure and public benefit outcomes in connection with planning proposals and development applications. They provide a way for planning authorities and developers to negotiate flexible outcomes in respect of development contributions.

Under such an agreement, the developer may be required to dedicate land, pay a monetary contribution, or provide some material benefit to be applied towards a public purpose.

It is important to note that a VPA is voluntary and cannot be imposed on the developer. It is negotiated in good faith between the developer and Council to achieve a good development outcome that meets the infrastructure requirements of Council and the community.

In this instance, the VPA has been negotiated to provide upgrades to McAuleys Lane and the Mullumbimby Rd / McAuleys Lane Intersection.

Council Resolution 21-181

Relevant to this report are Items 1 and 2 of Res 21-181. These items are as follows:

21-181 Resolved that Council:

1. Accept the applicant’s letter of offer to enter into a Voluntary Planning Agreement (VPA) (Attachment 6 E2021/69988) with Council as part of this planning proposal subject to the letter of offer being amended to include:

a) Safety upgrades to accommodate pedestrian and cycle links from the development site to Mullumbimby Road.

b) Integration of pedestrian and cycle links with the proposed McAuleys Lane / Mullumbimby Road intersection upgrade.

c) provision of a slip lane for turning into Saddle Road from Mullumbimby Road that provides better safety and access for cyclists, pedestrians, and all road users.

2. Require that a draft VPA be prepared in accordance with the amended letter of offer.

Following the above resolution:

· An amended letter of offer was submitted by the developer (Attachment 2).

· Council worked with the developer to update the Traffic Impact Assessment and associated intersection concept plan to address the above resolution (Attachment 3).

· A road safety audit was undertaken to assess the proposed design (Attachment 4).

· A draft VPA was prepared once Council engineers were satisfied with the proposed outcome (Attachment 1).

Discussion of the draft VPA provisions

The following discussion explains how the draft VPA addresses the requirements of the above resolution, specifically items 1(a), (b) and (c).

Item 1(a) Safety upgrades to accommodate pedestrian and cycle links from the development site to Mullumbimby Road.

The location of the proposed cycleway connecting Mullumbimby to Brunswick Heads is yet to be determined by Council. If the Mullumbimby to Brunswick Heads cycleway alignment is not adjacent to Mullumbimby Road, it would not be practical or possible to require integration with the cycleway.

Therefore, the VPA provides some flexibility by giving Council the discretion to require the payment of the Cycleway Contributions in lieu of the Developer carrying out the Cycle Path Works.

Item 1(b) Integration of pedestrian and cycle links with the proposed McAuleys Lane / Mullumbimby Road intersection upgrade.

As noted above, the location of the proposed cycleway connecting Mullumbimby to Brunswick Heads is yet to be determined. It is therefore not possible to produce a detailed concept design that includes the cycleway integration with the intersection. However, the intersection concept design appended to the VPA can be modified at the DA stage if cycleway integration with the intersection is required.

Item 1(c) provision of a slip lane for turning into Saddle Road from Mullumbimby Road that provides better safety and access for cyclists, pedestrians, and all road users.

An engineering review of this requirement found that the provision of a slip lane in this location would diminish the line-of-sight for vehicles exiting Saddle Rd. This would have a negative effect on road safety and has therefore not been included in the VPA.

The updated concept plan (Appendix A in Attachment 4) for the intersection instead provides for curb delineation at Saddle Rd making it clear where vehicles are to perform a turn. This will improve the line-of-site issue and overall safety at the intersection.

Additional Changes to the Intersection Concept Design

Refer to updated Intersection Concept Design (Appendix A in Attachment 4)

Driveway access at 110 Mullumbimby Rd

Further to addressing the requirements in the above resolution, Council engineers became aware of significant safety issues related to driveway access at 110 Mullumbimby Rd that had not been given adequate consideration when the intersection concept design was initially drafted. The location of the driveway is shown below in Figure 2.

Figure 2: Location of Driveway Access – 110 Mullumbimby Rd

The GeoLink Road Safety Audit found that:

The site visit revealed significant safety issues associated with the proximity of the crest on Mullumbimby Road to the driveway providing access to No. 110 Mullumbimby Road. Although there is sufficient sight distance available to the right (northwest), the crest severely limits sight distance to the left (southeast).

The measures to prevent right turns in or out of this driveway proposed in the concept design remove the exposure to this hazard.

Preventing right turns in and out of the driveway means that driveway users heading west along Mullumbimby Rd towards Mullumbimby, will need to perform a U-turn at McAuleys Lane to access the driveway. Similarly, vehicles leaving the driveway that want to travel into Mullumbimby will need to perform a U-turn at the fruit shop road reserve on Mullumbimby Rd, or at the Gulgan Rd / Mullumbimby Rd intersection.

This constitutes a minor inconvenience for users of the driveway; however, it will significantly improve safety conditions for all road users. Preliminary discussions have been held with the landowner at 110 Mullumbimby Rd and they will be further engaged during the public exhibition process.

Recommendation

Council engineers and planning staff have worked with the developer to update the intersection concept design and prepare a voluntary planning agreement that provides the option for Council to levy contributions for cycleway integration (i.e., depending on location of the proposed cycleway connecting Mullumbimby to Brunswick Heads).

It is recommended that Council endorse the draft VPA and place the draft VPA on exhibition concurrently with the planning proposal.

Next steps

Following exhibition of the draft VPA and planning proposal, a submission report will be prepared for Council’s consideration.

Strategic Considerations

Community Strategic Plan and Operational Plan

CSP Objective	CSP Strategy	DP Action	OP Activity
Objective 4: We manage growth and change responsibly	4.1 Support the visions and aspirations of local communities through place-based planning and management	4.1.3 Manage development through a transparent and efficient assessment process	4.1.3.10 Prepare and assess Planning Proposals and Development Control Plans, and amend Local Environmental Plan maps

Recent Resolutions

· Res 21-181

Legal/Statutory/Policy Considerations

The relevant policy considerations are addressed above and in the draft Voluntary planning Agreement attached to this report.

Financial Considerations

If Council chooses to proceed with the voluntary planning agreement, it will be at the proponent’s expense as part of a landowner-initiated planning proposal.

Consultation and Engagement

Any future consultation and engagement will take place in accordance with a Gateway determination issued by the NSW Department of Planning Industry & Environment.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.3

Report No. 13.3 PLANNING - 26.2021.3.1 150 Lismore Road, Bangalow Submissions Report

Directorate: Sustainable Environment and Economy

Report Author: Sam Tarrant, Planner

File No: I2022/554

Summary:

This report presents the public exhibition outcomes for a planning proposal to rezone part of 150 Lismore Road, Bangalow from RU1 Primary Production to IN1 General Industrial and C3 Environmental Management.

The planning proposal was exhibited from 11 April to 11 May 2022. Six public submissions and six agency submissions were received.

A number of changes to the exhibited proposal are recommended including reducing the area of IN1 zoning and increasing the C3 zoning to provide a greater buffer to Maori Creek.

It is recommended that the amended planning proposal as attached to this report is adopted and submitted to DPIE for finalisation.

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 adopts the amended planning proposal as attached to this report (Attachment 1 - #E2022/62680) to rezone part 150 Lismore Road, Bangalow to IN1 General Industrial and C3 Environmental Management, and forwards this to the Department of Planning, Industry and Environment for finalisation.

Attachments:

1 26.2021.3.1 - Planning Proposal Post Exhibition Version, E2022/62680

2 26.2021.3.1 - Combined agency submissions, E2022/52801

3 26.2021.3.1 - Combined Public Submissions, E2022/44088

4 26.2021.3.1 - BCD and Applicant Flood Correspondence, E2022/67134

5 Template - Form of Special Disclosure of Pecuniary Interest, E2012/2815

Report

At the September 2021 Planning Meeting, Council received a report on a submitted planning proposal to rezone part of 150 Lismore Road, Bangalow from RU1 Primary Production to IN1 General Industrial and C3 Environmental Management.

The site is identified as an investigation area within Byron Business and Industrial Lands Strategy.

Council resolved 21-356 to proceed to public exhibition and consider a submissions report post exhibition with any recommended changes.

This report outlines the exhibition period, submissions received and recommended changes to the exhibited planning proposal.

The planning proposal was exhibited from 11 April to 11 May 2022. Notification was sent to adjoining landowners, relevant community groups and government agencies.

During exhibition, six public submissions were received including one submission that was received after exhibition had closed. In this case, the late submission has been included and considered with the other submissions.

The agency and public submissions have been summarised and addressed below. Copies of the submissions are attached to this report.

An extension to the gateway deadline was granted for this planning proposal due to the flood events delaying public exhibition and the changes recommended to the proposal from public exhibition. The gateway expires 13 November 2022.

Agency submissions

Department of Primary Industries Agriculture – No objections

Mining, Exploration and Geoscience – No objections

TransGrid – No impact to TransGrid therefore no comment required

Department of Primary Industries Fisheries – Provides comments for Council’s consideration. Notes that Maori Creek is a 4^th order waterway and is considered Type 2 key fish habitat. Fisheries policy recommends a minimum buffer of 50m. Fisheries notes that Byron Creek, which is 500m downstream, is mapped as Type 1 key fish habitat and is mapped as potential habitat for the threatened species Southern Purple Spotted Gudgeon. DPI Fisheries recommends the C3 zone consistent with the Fisheries buffer policy.

The planning proposal has been updated to include a minimum 40m E3 zoned buffer from Maori Creek to the edge of the IN1 zoning with the buffer increasing to 70m at the southern portion of the lot. This is considered a suitable distance noting that there is currently very limited riparian vegetation and Byron DCP 2014, Chapter B1 Biodiversity requires a vegetation management plan or biodiversity conservation management plan to be submitted with the subdivision development application, which will result in this area being re-vegetated.

Transport for NSW – Raises no objections and provided the following comments

- TfNSW are aware of feasibility studies undertaken by Byron Shire Council to consider transport-related uses of the corridor. The planning proposal should note this.

- The preliminary site investigation report supporting the planning proposal concludes negligible risk to human health. TfNSW is currently conducting environmental assessment for contamination along the rail corridor. TfNSW is not currently aware of contaminants in the rail corridor or on the common boundaries with the development site.

The use of this site for industrial purposes will not hinder any reactivation of the rail corridor. The planning proposal has been updated to reflect this.

Biodiversity Conservation Division (BCD) – During public exhibition BCD recommended an ecological assessment be made which included a survey to determine if Hairy Joint Grass was present on the site. The applicant provided an ecological assessment report and found no Hairy Joint Grass on site. A small soak area was identified on the site. BCD assessed this report and provided the following recommendations.

- The soak area has high environmental value and should be zoned C2 Environmental Conservation including a 20m buffer

- A C3 Environmental Management zoned buffer for a distance of 20m should apply to both sides of Maori Creek

- The planning proposal should be updated to reflect the soak area and Maori Creek being included on the Biodiversity Values Map

- The flood impact study should be updated to provide details regarding the model calibration and utilise flood data from the February-March floods if available

BCD requested opportunity to review the proposal once updated with the above recommendations. The recommendations were addressed, and the amended planning proposal as presented in this report was sent to BCD who provided support for the proposal.

BCD sought clarification if data exists at the Binna Burra gauge for the February-March 2022 flood event to calibrate the flood model.

The applicants flood engineer confirmed there is data available from the February-March event at the Binna Burra gauge and that the peak is higher than the 2017 event. The inclusion of this recent event may improve model accuracy for larger events, although the model has been calibrated to a large event in 2017. The flood assessment report demonstrates an accurate relationship between the rating curve and the model predictions indicating that the existing model is likely to provide an adequate representation for larger events than were previously modelled.

Council does not have a recent adopted flood study model for this catchment, which places the onus on the applicant when preparing flood studies. The flood engineer notes that if the model was to be re-calibrated to include the 2022 event there would be a $10-15k cost for the applicant and the work would take a minimum of 3 months to complete.

The additional time required to complete a model re-run would push the planning proposal past the gateway expiration. DPIE have stated in the gateway alteration letter that they are unlikely to support any further extension to the completion time frame for this planning proposal.

In addition, the most up to date flood information will be required at the development application stage to determine flood planning level on this site, which will utilise data from the 2022 event.

Furthermore the proposed industrial zoned area has been significantly reduced since the flood assessment was produced resulting in less fill required and the development area moving away from the lower lying areas adjacent to Maori Creek.

Given the demonstrated accuracy of the flood model, the reduction in proposed industrial land, further consideration at the development application stage and gateway time restraints, it is considered that the current model is acceptable to progress the rezoning.

No response was received from Essential Energy, NRAR, TBLALC or Rous County Council.

Public submissions

Six submissions were received, one of which was accepted after exhibition had closed. The key points within the submissions have been summarised and staff have provided comment in the following table. The submissions are available in attachment 3.

Submission	Staff comment
An FSR of 0.75:1 is not the same as the adjoining estate as the DCP required a maximum building footprint of %50 of each allotment to minimise road parking.	FSR is applied within the Byron LEP 2014. The adjoining industrial estate is mapped with a maximum FSR of 0.75:1 and a height limit of 9m. This forms the maximum building envelope permissible within the LEP. The DCP control referenced in this submission is taken from DCP 2010 Chapter B12. This DCP applies to land zoned under Byron LEP 1988 and does not apply to this site.
The flood impact assessment is now redundant due to the recent floods which covered half of the site. Green areas need to be retained to minimise impacts from flooding. The rezoning has potential to exacerbate flooding.	The flood study utilised the most up to date flood data available to model the flooding of the site and is likely to provide an adequate representation for larger events than were previously modelled. The report shows that the area to be rezoned for industrial use can be filled above the flood level without increasing off site flood impacts. The C3 zoned buffer has been significantly increased and will minimise the amount of fill required and limit industrial development to higher ground away from Maori Creek.
The rezoning will increase the size of the industrial estate considerably and increase traffic onto Lismore Road. The bulk and scale will cause amenity impacts and a significant increase in artificial light exposure from businesses.	The industrial zoned area has been reduced to provide a greater buffer to Maori Creek. Revegetation of the riparian area will reduce light spill from this development and the existing industrial area. The traffic assessment accompanying this proposal concludes that Lismore Road and turning lane is capable of facilitating this rezoning.
The proposal will have a visual impact as it is the gateway from the west of Bangalow and should be landscaped. There is an opportunity to landscape the area to mitigate visual impacts.	Part of the site is proposed to be zoned C3 Environmental Management. Planting of this area will be required at the development application stage. The site is small scale and directly adjoining an existing industrial estate. Future development of the site will be screened by the existing industrial estate and is unlikely to have a significant visual impact.
Is there any proof that additional industrial land is required in this area?	Direction 3: Long Term Supply (p.63) within the Business and Industrial Lands Strategy discusses the need for additional industrial land within the shire. Additional residential lands have come online over the last 5 years in Bangalow, including Clover Hill, The Meadows and Parrot Tree Place creating additional demand for employment lands.
Byron Creek would be put at risk by having industrial use adjoining. The buffer is too small.	The buffer has been increased to a minimum of 40m and a 20m environmental zone on the eastern side. This area will require suitable plantings as part of the development application for subdivision.
Bangalow Progress Association supports the proposal and the inclusion of the C3 Environmental Buffer.	Noted.
Part of the adjoining industrial property is incorrectly zoned RU1 and should be corrected to IN1	A small area on the eastern boundary of the existing industrial estate contains an RU1 zoning. This has carried over from a subdivision of the paper road which gave additional land to lots within the estate. This area should be rezoned IN1 for consistency, however this planning proposal has only considered the subject land at 150 Lismore Road. This inconsistency has been flagged to be corrected in a future LEP housekeeping planning proposal.
Stormwater impacts on the adjoining properties should be considered with impacts from filling and planned revegetation.	The flood study completed by BMT modelled the impact on flooding from filling the site and found no observable impacts to the existing industrial estate. Further assessment of stormwater and drainage is required at the development application stage. The details of revegetation within the C3 zone are not yet available and will be submitted and considered at the development application stage. The reduced IN1 zoned area will minimise the fill required.
Concern regarding noise pollution from a large extension of the industrial estate. Currently noise impacts from the existing industrial estate.	The area proposed for industrial land is over 400m from the closest residential zone. The area proposed for expansion is relatively small and is unlikely to significantly contribute to noise pollution. Conditions for hours of operation can be applied at the development application stage.
The proposal is directly adjacent to neighbourhood streets and residential dwellings.	The area proposed for industrial land is over 400m from the closest residential zone. See above comments regarding noise impacts.
There is a possibility of the rail corridor being used as a rail trail in the future. This industrial estate provides a good opportunity to provide peripheral car parking to service the rail trail.	This site has been identified within Byron Business and Industrial Strategy as an investigation site for industrial land. The rezoning will not hinder any future reactivation of the rail corridor.

Changes to the exhibited planning proposal

As a result of the comments received during public exhibition, a number of changes to the planning proposal are recommended including:

· Increase the C3 Environmental Management zoned buffer between Maori Creek and the IN1 land to a minimum of 40m.

· Include a 20m C3 Environmental Management buffer to the east of Maori creek

· Zone the ‘soak area’ identified in the Ecological Assessment to C3 Environmental Management

· Update the minimum lot size and floor space ratio map to reflect the change in zoning.

· Update the planning proposal to reference Maori Creek as being mapped on the Biodiversity Values map.

· Update the planning proposal to reflect the exhibition outcomes.

The updated minimum lot size and floor space ratio maps have not yet been produced. They will be updated to reflect the final adopted zone boundaries (Fig 1 below).

The changes are reflected within the post exhibition planning proposal contained in Attachment 1 (E2022/62680).

Zoning map including 40m C3 buffer. IN1 area 7663m2 and C3 area 12725m2

Figure 1: Updated land zoning map

Next steps

It is recommended that Council adopt the planning proposal in Attachment 1 and forward it to the Department of Planning, Industry and Environment for finalisation.

The gateway for this proposal expires on 13 November 2022.

Strategic Considerations

Community Strategic Plan and Operational Plan

CSP Objective	CSP Strategy	DP Action	Code	OP Activity
4: Ethical Growth We manage growth and change responsibly	4.1: Manage responsible development through effective place and space planning	4.1.4: LEP & DCP - Review and update the Local Environmental Plan and Development Control Plans	4.1.4.5	Consider landowner planning investigations for possible new industrial and/or business park areas, as identified in the BILS.

Recent Resolutions

· 21-356 to proceed to public exhibition and receive a submissions report with any recommended changes.

Legal/Statutory/Policy Considerations

This planning proposal will amend Byron Local Environmental Plan 2014 in accordance with the relevant legislative requirements.

Financial Considerations

This is an applicant initiated planning proposal with all costs borne by the applicant.

Consultation and Engagement

As outlined within this report.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.4

Report No. 13.4 PLANNING - 10.2018.384.3 - S4.55 to delay provision of suitable vehicular access for Dual Occupancy (Detached) - 183 Coopers Lane West, Main Arm

Directorate: Sustainable Environment and Economy

Report Author: Ivan Holland, Planner

File No: I2022/584

Proposal:

Section 4.55 Application No:	10.2018.384.3
Proposed modification:	Modify development consent 10.2018.384.1 to delay provision of suitable vehicular access for dual occupancy (detached)
Original Development:	Use of existing structure as a Dwelling House and Alterations and Additions to create Dual Occupancy (detached), Alterations and Additions to existing Dwelling House including Expanded Dwelling Module, Tree Removal and Upgrade existing Wastewater System
Type of modification sought:
Property description:	LOT: 2 DP: 445771
	183 Coopers West Lane MAIN ARM
Parcel No/s:	181870
Applicant:	Mr W S Weisse
Owner:	Mr W S & Mrs J L Weisse
Zoning:	RU1 Primary Production / PART 1(b2) Agricultural Protection
S4.55 Date received:	20 April 2022
Original DA determination date:	Deferred Commencement Approval 16 April 2020
Integrated Development:	No
Public notification or exhibition:	- Level 1 advertising under the Byron Shire Council Community Participation Plan. - Exhibition period: 27 April 2022 to 10 May 2022. - Submissions received: Three (3)

Summary:

This modification application seeks to modify development consent 10.2018.384.1 to delay provision of suitable vehicular access for the dual occupancy (detached). The original application was determined by Council.

The development consent currently requires (condition 14) the access road easement alignment to be corrected to overlay the physical access road prior to the issue of a construction certificate for the alterations and additions to the dual occupancy (detached). This application seeks to alter the timing for this requirement to instead be within five (5) years of the date of determination of this modification application.

It is understood that the rights of carriageway within two of the affected properties have already been amended however there has not been agreement reached with the owners of the third property to correct the inconsistency, thus preventing compliance with condition 14 of DA 10.2018.384.1.

It is noted that the modification of the consent will enable the dual occupancy to be finalised and the dwelling to be occupied which would provide housing which is generally in short supply across the Shire and the broader region. However it remains important that this matter is resolved before the continued construction and completion of the dwelling. The conditions require the easement to be in place prior to the issue of the construction certificate.

Pushing the timing of the easement back further, could mean the second dwelling is completed and occupied but the legal access is never resolved, this would leave a compliance matter which would in summary be difficult to resolve, considering the owners of the property have since the consent was issued some 28 months ago, still to come to an appropriate legal arrangement with the relevant property to rearrange the easement. It is also noted the primary dwelling on the property is not affected by the conditions.

Having regards to the provisions contained within Clause 6.6 of the Byron LEP 2014, the proposed modification does not provide a clear mechanism to ensure the development when completed will be provided with suitable vehicle access, and the application, despite the benefits of additional housing it will provide, is recommended for refusal.

NOTE TO COUNCILLORS:

RECOMMENDATION:

That pursuant to Section 4.16 of the Environmental Planning & Assessment Act 1979, Application No. 10.2018.384.3 to Modify development consent 10.2018.384.1 to delay provision of suitable vehicular access for dual occupancy (detached), be refused for the following reason:

1. The proposed modification does not ensure the development will have suitable vehicular access, contrary to the requirements of clause 6.6(e) of the Byron Local Environment Plan 2014.

Attachments:

1 10.2018.384.3 - Modification Report, E2022/31059

2 10.2018.384.1 - Applicants Legal Advice, E2020/11984

3 Confidential - submissions received 10.2018.384.3, E2022/71559

Assessment:

1. INTRODUCTION

1.1. History/Background

History

DA 10.2018.384.1 was approved by Council on 16 April 2020 as per Resolution Number 20-154:

Resolved that pursuant to Section 4.16 of the Environmental Planning & Assessment Act 1979, Development Application No.10.2018.384.1 for Alterations and Additions to existing Dwelling House Use, Alterations and Additions to existing structure to create Dual Occupancy (detached) and Upgrade Wastewater System, be approved subject to the amended conditions in document E2020/27539. (Lyon/Hackett)

The notice of determination was subsequently issued (E2020/28902) with the conditions attached to the agenda (E2020/5837) rather than those specified in the Council Resolution (E2020/27539).

An application to modify the consent (DA 10.2018.384.2) to correct this error was approved on 30 April 2020.

Background – access road

Several properties on Coopers Lane (West), Main Arm access the public road system via an access road that traverses through several properties. The access road has been in existence for many years based on a review of historical aerial photos. The entitlement for these properties to use the access road is enabled by a series of easements/rights of carriageway. Inconsistencies between the physical access road and associated legal easements for such were identified during the assessment of the original development application (DA 10.2018.384.1). This application was approved with a requirement (condition 14) for the access road and easement inconsistencies to be corrected. It is understood that the easement has been corrected in two of the three affected properties but one of the property owners, through which the access road traverses, has not been willing to support the correction of the inconsistency, thus preventing compliance with condition 14 of DA 10.2018.384.1.

The issue with the inconsistency between the access road and associated easement has been considered in several development applications subsequent to DA 10.2018.384.1 and these applications and associated decision are discussed below.

1.2. Description of the proposed development

This application seeks approval to modify development consent 10.2018.384.1 to delay provision of suitable vehicular access for the dual occupancy (detached).

Currently, condition 14 of the development consent requires the access road easement alignment to be corrected to overlay the physical access road prior to the issue of a construction certificate for the alterations and additions to the dual occupancy (detached).

This application seeks to alter the timing for this requirement to instead be within five (5) years of the date of determination of this modification application.

1.3. Description of the site

The following description was taken from the development assessment report for the original development application (10.2018.384.1):

Land is legally described as	LOT: 2 DP: 445771
Property address is	183 Coopers West Lane MAIN ARM
Land is zoned:	RU1 Primary Production / PART Deferred Matter (1(b2) Agricultural Protection)
Land area is:	2.18 ha

2. SECTION 4.55(2)

Consideration of the applicable provisions is documented below:

· The development, as modified, is substantially the same as the originally approved development (s.4.55(2)(a)).

· Rural Fire Service has been notified of the modification application (s.4.55(2)(b)).

· The application has been appropriately notified and submissions received are considered below (s.4.55(2)(c) and (d)).

· Matters relevant to determination are considered below (s.4.55(3)).

3. ENVIRONMENTAL PLANNING AND ASSESSMENT REGULATION 2021

Consideration of the applicable provisions is documented below:

· The modification application included all necessary information (Regs.99 and 100).

· The application has been appropriately notified (Reg.107).

· Rural Fire Service has been notified of the modification application (Reg.109).

4. SUMMARY OF REFERRALS

Development Engineer

Clause 6.6(e) of the BLEP 2014 states:

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—

(e) suitable vehicular access.

Current Situation

The survey by Heath & McPhail Surveying with drawing no HM18147-2 Issue A dated 16.07.2019 depicted the access alignment meandering in and out of the existing ROC easement alignment. As such the sections of the access are outside the ROW easement

Further, the alignment of the access carriageway is not generally contained in the approved alignment of the ROC in Subdivision 45/72. The existing alignment of the carriageway bypassed a section of ROC inside Lot 1 DP 445771 and meanders through an unapproved alignment inside Lot 7 DP591828 before entering back into the development lot. There is no legal documentation of the encroachment in Lot 7 DP591828.

Due to this issue, a condition was drafted to ensure Clause 6.6(e) of the BLEP

The current proposal offers to defer this requirement by 1 April 2027 and allow the issuance of Building Construction Certificate and Occupation Certificate.

The proposal was tested to see if it will satisfy clause 6.6 (e).

“Should insufficient evidence cannot be put in place by 1 April 2027, the condition will become invalid. This will result in non compliance to Clause 6.6 of BLEP 2014”

Recommendation

The proposal is not supported.

5. 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 Planning for Bush Fire Protection. The site is bush fire prone land. The original development application was referred to the NSW Rural Fire Service, which provided conditions which are included in the development consent. No changes to these conditions are proposed or required by this modification application.

6. SECTION 4.15 – 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.

6.1. State Environmental Planning Instruments

The proposed modification raises no issues under the applicable SEPPs.

6.2. Byron Local Environmental Plan 2014 (LEP 2014)

LEP 2014 is an applicable matter for consideration in the assessment of the subject application in accordance with subsection 4.15(1) of the EP&A Act because it applies to the subject land and the proposal. The LEP 2014 clause of relevance to this modification application is considered below:

Clause 6.6 Essential Services

Prior to granting development consent, Council must be satisfied that “suitable vehicular access” for the development is “available or that adequate arrangements have been made to make [suitable vehicular access] available when required”.

Considering this requirement, the original development consent (10.2018.384.1) was approved with a requirement (condition 14) for the access road and easement inconsistencies to be corrected prior to the issue of a construction certificate for the alterations and additions to the dual occupancy. Condition 14 is copied below:

14.

Legal Access to Property

The application for a Construction Certificate is to include sufficient evidence to demonstrate that the property access road through Lot 3 DP 558858, Lot 1 DP 445771 and Lot 7 DP 591828, including any changes required by the Rural Fire Service (DA-2018-03006-CL55-1, 3 December 2019 – See Schedule 3), is wholly contained within a legal right of carriageway. Any redundant rights of carriageway/easements to be extinguished.

Such evidence must include:

a) an updated survey of the access road that shows the access road and any further widening wholly within suitable rights of carriageway under the Conveyancing Act 1919.

b) A copy of the registered rights of carriageway and a title search for all effected lots.

It is understood that the rights of carriageway within two of the affected properties have already been corrected however resolving the matter with the third property (156 Coopers Lane West – Lot 3 DP 558858) has not been achieved, thus preventing compliance with condition 14 of DA 10.2018.384.1. To resolve this matter the applicant may need to proceed to use the relevant powers under Section 88K of the Conveyancing Act 1919. At the time of approval in 2020, the applicant provided legal advice that this was one of the options that it could rely upon (See Council Planning Report 13.3 dated 20 February 2020 and Planning Report 13.6 dated 20 April 2020).

The issue with the inconsistency between the access road and associated easement has been considered in several other, recent development applications, relevant details of which are summarised below:

DA number	Address	Determination date	Condition/s relating to access
10.2018.378.1 Use of Shed as dwelling	181 Coopers Lane West MAIN ARM	7/9/2019	The misalignment of the access road and easement was not identified prior to the determination of this DA.
10.2020.496.1 Use of existing building as a Dwelling house and construction of new dwelling to create dual occupancy	187 Coopers Lane West MAIN ARM	13/10/2021	1. Deferred Commencement Consent This consent does not operate until Council is satisfied as to the following matters: (a) Vehicular access The subject property must have suitable vehicular access through Lot 3 DP 558858. Lot 1 DP 445771, Lot 2 DP 445771 and Lot 7 DP 591 828. To satisfy Council that the property has suitable vehicular access, sufficient evidence must be provided to demonstrate that the access road, including any changes required by the Rural Fire Service Conditions, is wholly contained within a legal right of carriageway. Such evidence shall include but not be limited to: • A letter of consent from the owners of Lot 3 DP558858, Lot 1 DP445771, Lot 2 DP445771 and Lot 7 DP591828 for any changes required by the Rural Fire Service Conditions to the access road inside these lots; • Detailed design, construction and certification by a qualified civil engineer for the works required to meet the changes required by the Rural Fire Service Conditions; • A survey of the access road, by a registered surveyor, between the property and the Coopers West Lane Crown Road Reserve that shows the access road, including any changes required by the Rural Fire Service Conditions, is wholly within suitable rights of carriageway under the Conveyancing Act 1919; • A copy of the registered rights of carriageway and a title search for all affected lots. Any redundant rights of carriageway are to be extinguished.
10.2020.368.1 (Use of Alterations and Additions to Dwelling House, Garage, Carport & Swimming Pool)	189 Coopers West Lane MAIN ARM	Withdrawn	N/A. Application was withdrawn after applicant was advised of access issue.
10.2001.349.3 New Dwelling House – Amended in 2021 to resolve design changes to the roof of the dwelling	Coopers Lane West MAIN ARM (Lot 1 DP 405191)	25/11/2021	Matter not originally identified when first approved in 2001. Later modifications to resolve changes to the house design which were not previously approved resulted in the following condition being imposed, noting that the dwelling is already constructed and had been occupied for a number of years. 3A. Legal Access to Property Sufficient evidence is to be provided to demonstrate that the property access road through Lot 3 DP 558858, Lots 1 and 2 DP 445771, Lot 7 DP 591828, is wholly contained within a legal right of carriageway with any redundant rights of carriageway/easements extinguished by 1 December 2026. Such evidence must include, but not be limited to: a) An updated survey of the access road that shows the access road and any further widening wholly within suitable rights of carriageway under the Conveyancing Act 1919; and b) A copy of the registered rights of carriageway and a title search for all effected lots.

In terms of the above application, staff have tried to find a reasonable compromise to resolve the matter considering that the above examples involve dwellings that have been constructed either without approval or not in accordance with the approved plans. It would seem prudent for the various other landowners that need their access re-aligned this be carried out jointly with the applicant to limit costs.

The modification application requests that the requirement to correct the access is de-coupled from the construction certificate and instead offers a due date of 1 April 2027. In considering the proposed amendment to condition 14, Council’s Development Engineer notes that the proposed modification does not satisfy the requirements of clause 6.6 (e) of the LEP as if the access issue is not rectified by the proposed due date (1 April 2027), the condition will become invalid preventing Council from ensuring the development has suitable vehicular access.

It is pertinent the matter is resolved prior to the development proceeding further and as such the modification is not supported.

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

No proposed instruments were identified that are applicable to this application.

6.4. Byron Shire Development Control Plan 2014 (DCP 2014)

DCP 2014 is an applicable matter for consideration in the assessment of the subject 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 of relevance to the modification application are considered below:

B3 – Services

Vehicular access to the development is via a right of way (ROW) from Coopers West Lane. As discussed above, the access needs to be upgraded and the ROW needs to be re-aligned as per condition 14. Until this process is finalised, the development is not considered to have adequate road facilities (B3.2.1).

6.5. Environmental Planning & Assessment Regulation 2021 Considerations

The proposed modification raises no issues under the Regulations.

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

The proposed modification raises no additional issues in terms of the environmental impacts which have not been considered previously.

6.7. The suitability of the site for the development

The site is considered suitable for the development provided the access is upgraded and the ROW corrected as required by the conditions of the consent.

6.8. Submissions made in accordance with this Act or the regulations

The application was publicly exhibited, with three objections being received,

Key issues raised in submissions	Consideration
Reduction in obligation on the applicant to negotiate an outcome	Noted. It remains important that this matter is resolved prior to the development proceeding.
No legal right of carriageway over Lot 3 DP 558858	Council has obtained independent legal advice that confirms the subject property has a legal right of carriageway over Lot 3 DP 558858.
Impacts of modifying the access road	The modification application does not propose modifying the access road only altering the timeline for compliance with condition 14.
Bush fire requirements	The Rural Fire Service (RFS) have visited the subject site, reviewed the access road, and have issued approval for the development subject to conditions. The modification application does not propose any changes to bush fire conditions/requirements. The conditions recommended by the RFS do not require and changes to the physical or legal access within Lot 3 DP 558858.
Not affordable housing	The proposed development is not for affordable housing under the Housing SEPP.
No right to a dual occupancy	Dual occupancies are permitted on the subject property within the RU1 zone. This is not a relevant consideration for the current application to modify the timing to correct the vehicular access.
Access requirements are different for dwelling as compared to a dual occupancy	The requirement for suitable vehicular access applies to all developments pursuant to clause 6.6(e) of BLEP 2014.
Planning history	Noted, there appears to be a general predilection for some landowners in the Shires Hinterland to undertake development without approval. However, it is understood the dual occupancy dwelling was constructed on the subject property without approval by a previous owner.
Risk of landslip	This modification application relates only to the timing for the correction of the access easement. Landslip is not a consideration.
Traffic	As noted above, this modification application relates only to the timing for the correction of the access easement. This application has no impact on traffic generation.

6.9. Public interest

The proposed modification has the potential to compromise the public interest and/or create an undesirable precedent. Support for delaying this resolution post the completion of the second dwelling is not supported, and potentially would leave Council with a complex compliance matter to resolve.

7. CONCLUSION

The proposed modification does not satisfy the relevant planning requirements under Clause 6.6 of Byron LEP 2014 as it will not provide Council with a clear mechanism to ensure the development is completed with legal access arrangements to the property for the additional dwelling.

The modification application is not supported.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.5

Report No. 13.5 Planning Proposal - 26.2020.2.1 Affordable housing contribution scheme submissions report

Directorate: Sustainable Environment and Economy

Report Author: Natalie Hancock, Senior Planner

File No: I2022/659

Summary:

Section 7.32 of the Environmental Planning and Assessment Act 1979 (the Act) enables councils to impose a condition on development to require contributions for affordable housing where:

· a State Environmental Planning Policy (SEPP) identifies that there is a need for affordable housing

· it is authorised by a local environmental plan (LEP) and

· applied in accordance with an affordable housing contribution scheme (AHCS).

In 2018, the SEPP 70 – Affordable Housing was revised to expand its operation to LGAs across the state. At the 11 April 2019 Council meeting it was resolved (19-152) to prepare an affordable housing contribution scheme and the associated local environmental plan (LEP) provisions for Byron Shire.

Contributions are levied on the increase in land value generated by the rezoning of the land referred to as ‘upzoning’. Several requirements must be satisfied: evidence of a need for affordable housing, should land be upzoned that the contribution rate set is viable, and contributions are to be used for affordable housing in the local government area.

An AHCS and planning proposal was prepared and submitted to the Department of Planning and Environment (DPE) in December 2021 for gateway approval. In February 2022, the DPE granted a gateway for the planning proposal. Considering the flood event, DPE on 15 March 2022 issued an amended gateway providing additional time to exhibit and finalise the LEP amendment (Attachment 1).

The planning proposal and AHCS were placed on public exhibition from 17 May to 3 July 2022 (Attachment 2).

During this period 7 submissions and an agency response from the Rural Fire Service were received (Attachments 3 and 4). Two submissions were received from landowners directly affected by the draft provisions. All submissions supported application of contributions for affordable housing, although some questioned the required percentage for dedication.

The purpose of this report is to:

· provide an assessment of the submissions received

· recommend that Council adopt the planning proposal for a new Clause for ‘Affordable Housing’ under Part 6 ‘Additional Local Provisions

· recommend that Council writes to the NSW government requesting an amendment to the SEPP (Housing) 2021 to specify that any planning proposal lodged to upzone land after the issuing of a gateway for an Affordable Housing Contribution Scheme planning proposal for the same land will be subject to that AHCS should the LEP amendment and AHCS come into effect.

RECOMMENDATION:

That Council

1. adopts the planning proposal to amend Byron LEP 2014, together with the Affordable housing contribution scheme as contained in Attachment 2 (E2022/53312)

2. forwards the adopted planning proposal and Affordable housing contribution scheme to NSW Parliamentary Counsel’s Office (PCO) requesting that a draft LEP instrument be prepared

3. pending receipt of PCO opinion that the plan can be made, forwards the plan to the NSW Department of Planning and Environment for notification on the NSW Government legislation website

4. requests that staff write to the DPE requesting the NSW government amend the SEPP (Housing) 2021 to specify that any planning proposal lodged to upzone land after the issuing of a gateway determination for an Affordable Housing Contribution Scheme applying to the same land, will be subject to that AHCS should the Local Environmental Plan amendment and Affordable Housing Contribution Scheme come into effect.

Attachments:

1 Gateway determination correspondence Affordable housing contribution scheme 26.2020.2.1, E2022/53038

2 Combined PP 26.2020.2.1 and AHCS exhibition versions 2022, E2022/53312

3 Combined submissions on Affordable Housing Contribution Scheme Planning Proposal, E2022/62133

4 Rural Fire Service Response, E2022/63111

5 Summary of Council resolutions relating to the Affordable Housing Contribution Scheme, E2022/2750

6 Late community feedback received outside exhibition period, E2022/62979

7 Special Disclosure of Pecuniary Interest Annexure for matters relating to environmental planning instruments, E2012/2815

Report

Background

The following summarises the process leading up to the planning proposal.

· 4 August 2016: Council resolved (16-422) to consider means for adopting affordable housing provisions in the Shire’s planning instruments

· 22 June 2017: Council resolved (17-260) to request staff to progress an expression of interest (EOI) process inviting landowners to submit affordable housing proposals for other land in the Byron Shire for the consideration of Council as part of an early implementation program to supplement Council’s Residential Lands Strategy. Result: several landowners whose land was potentially suitable under the draft strategy coming forward to be involved

· 19 April 2018: Council resolved (18-217) to request that staff write to the DPE seeking SEPP 70 – Affordable Housing, which at this time were essentially limited to metropolitan Sydney, be expanded to include Byron LGA. Result: request was successful with SEPP expanded to LGAs across the state

· 11 April 2019: Council resolved (19-152) to prepare an affordable housing contribution scheme (AHCS) and the associated local environmental plan (LEP) amendment

· 12 December 2019: Council resolved (19-636) to support consideration of the Residential Strategy investigation areas for inclusion in the AHCS.

In preparing a planning proposal it is necessary to describe the outcome sought and its justification.

Planning proposal outcome

The planning proposal seeks to include a clause in the Byron Shire LEP 2014 to enable Council to impose, as a condition of development consent on upzoned land, an affordable housing contribution in accordance with its affordable housing contribution scheme.

Justification

Section 7.32(3)(b) of the Act and SEPP 70 – Affordable Housing (Revised Schemes) is supported by a Guideline for Developing an Affordable Housing Contribution Scheme (nsw.gov.au) for councils to help them prepare affordable housing contribution schemes.

Several requirements must be satisfied: evidence of a need for affordable housing; should land be upzoned that the contribution rate as set is viable; and contributions must be used for affordable housing in the local government area.

A planning proposal satisfying such requirements was prepared and submitted to the DPE in December 2021 for gateway approval. In February 2022, the DPE granted a gateway for the AHCS planning proposal. Considering the flood event, DPE on 15 March 2022 issued an amended gateway providing additional time to complete the plan making process such that from the date of the gateway determination:

· an exhibited planning proposal be reported to Council for a final recommendation within six months

· completed in the LEP within eight months (Attachment 1).

Further details on Council resolutions throughout the process are contained in a letter provided to the DPE as part of the gateway determination process (Attachment 5).

In 2021, SEPP 70 - Affordable Housing (Revised Schemes) was incorporated into SEPP (Housing) 2021 as part of the NSW government planning reforms.

Public Exhibition

The planning proposal and AHCS were placed on public exhibition from 17 May to 29 June 2022 (Attachment 2). Following a community member’s request the exhibition period was extended to 3 July 2022.

In accordance with the gateway determination the planning proposal was sent to NSW Rural Fire Service (RFS) and Division of Housing and Property. In addition, landowners with property identified in the AHCS were notified by letter.

In the submission period, 7 submissions and a RFS agency response were received (Attachments 3 and 4). Two of the submissions were from landowners directly affected by the draft provisions.

All submissions supported the applying contributions for affordable housing, although both landowner submissions questioned the required percentage for dedication.

Other matters raised in the submissions are summarised and addressed in the next section of this report.

Matters raised

Matter 1: Agency response

The NSW RFS considered the information submitted and subsequently raised no concerns or issues in relation to bush fire.

Matter 2: Placement of affordable housing should avoid flood prone land.

Staff comment:

This concern is addressed in several ways:

· The existence of an affordable housing contribution clause in the Byron LEP 2014 and affordable housing contribution scheme does not automatically enable a planning proposal to upzone land (i.e. identified in the AHCS). This is the function of a Residential Strategy yet to be endorsed by the NSW government.

· Once a strategy is endorsed, any planning proposal to upzone land still must be assessed on its own merits, with community consultation being undertaken. Flood risk is a standard matter to considered when rezoning land for housing.

· AHCS Section ‘2.2 – Dedication of Land’ requires that land contributed for affordable housing under the scheme must be fit for residential purposes and serviced including water, sewerage, sealed roads and storm water drainage.

Matter 3: The provisions for AHCS should apply to all development in the shire.

Staff comment:

The Guidelines make it clear that affordable housing contribution schemes apply to developments that are facilitated by upzoning. Under the Guideline, an upzoning is a change of zone to enable residential development or a change of planning controls (such as floor space ratio) which enables greater residential density in site. For this reason the AHCS scope is confined to land being considered for upzoning in an adopted Residential Strategy.

Matter 4: Smaller development sites listed in the AHCS may be more vulnerable to variations in development costs and will compete in the market with other land releases that have no affordable housing contribution requirement such as Bayside and West Bryon. Hence consideration should be given to providing for:

(a) a flexible contribution based on expected development costs or

(b) a much lower contribution than 20% as now proposed.

Staff Comment:

The adopted Residential Strategy recognises that investigation areas all have varying levels of development constraints to be addressed prior to any upzoning of the land for residential purposes. Reasonably, such analysis may identify additional site-specific requirements with added cost.

In this context, the AHCS planning proposal was preceded by the Affordable Housing Contribution Policy - Byron Shire Council and procedures that offer an alternative ‘contribution pathway’ should a need arise. That is, it provides a rezoning proponent with the capacity to use a planning agreement (PA) to contribute affordable housing at a rate that varies from the scheme should an updated viability assessment justify a rate variation This pathway is facilitated by the Environmental Planning and Assessment (Planning agreements) Direction 2019 - under s7.9 of the Act .

However it is at Council’s discretion whether or not to accept a variation. Any PA would need to be exhibited with a planning proposal to rezone the land.

Should Council accept a PA then AHCS Section 1.3 clarifies that:

· the Scheme does not apply to development where an Affordable Housing Contribution has previously been applied.

· as the Act does not prescribe any particular means by which the developer’s performance of a planning agreement may be enforced, should a party fail to meet its planning obligation under a planning agreement to contribute for the purpose of providing affordable housing (then) the Scheme applies.

Matter 4: Request for reduced rate of contribution for land fronting Rankin Drive, Bangalow

Two Bangalow landowners questioned the 20% contribution rate for their land; Lot 11 DP807867, part of Lot 261 DP1262316 and part of Lot 262 DP1262316 as shown in a dashed blue line on Figure 1.

Figure 1: Existing zoning and illustrative AHCS areas

Landowner A: Lot 11 DP807867 and part of Lot 261 DP1262316

The landowner requests a reduced contribution rate of 4% of the upzoned land based on the following justification:

· site has steeper slopes contributing to a low average lot yield area of 1500m²/lot = ~7 lot/ha compared to the AHCS estimated yield of ~ 13 lots/ha

· additional cost of rerouting a Rous water main will cost $300,000-$500,000 to avoid removal of a koala food tree

· cost of new sewer pump station

· cost of roadway retaining walls associated with the gradient of the land.

Landowner B: Part of Lot 262 DP1262316

Landowner requests the application of 1-2% contribution of the value of lot sales based on mortgage/holding costs.

Staff comment:

In both instances the land has mixed zoning also shown on Figure 1. The AHCS provisions apply if land is upzoned in this instance, the RU2 Rural Landscape zoned portion.

The Guidelines recognise that Council may need to differentiate affordable housing contribution rates in different areas where a variation is substantiated, such as taking into consideration local and state infrastructure charges or specific to the development conditions applicable to the area being rezoned.

The DPE provided a costing analysis tool to accompanying the Guideline for setting out how to determine viable contribution rates, and the exhibited AHCS rates were set using this tool. An alternative costing analysis using the DPE assessment tool has not been provided by either of the landowners as part of their submission.

In relation to Landowner A’s request: The costs identified are not solely attributed to the land with potential to be upzoned. The rerouting of the Rous water main and new sewer pump station pertains to an existing DA for the existing residential zoned land and hence considered not to be a valid additional cost that can be directly attributed to the potential upzoned land. The landowner’s position has not been sufficiently substantiated to support a reduction in the contribution rate (i.e., using the DPE assessment tool).

In relation to Landowner B’s request: To apply a rate using a formula based on an unknown future value of lot sales would be difficult to enforce and introduces a high level of uncertainty from both a monetary and timing standpoint. It also appears to be inconsistent with the Act provision 7.33 which requires contributions be made available by the consent authority for the purposes of affordable housing within a reasonable time. The landowner’s position also has not been sufficiently substantiated to support a reduction in the contribution rate (i.e., using the DPE assessment tool).

Matter 5: Lack of clarify on what happens to a contribution received

Staff comment:

The AHCS Section ‘6 Appendix C – Affordable Housing Implementation & Delivery Program Framework’ provides guidance on how contributions are to be utilised as does the Act and SEPP (Housing) 2021.

Matter 6: Appropriateness of affordable housing in Bangalow

Whilst supporting the provision of affordable housing, several submissions raised the appropriateness of affordable housing in Bangalow and a need for alignment with community values. Specific issues raised were as follows:

(i) Submission suggested halting land development in Bangalow until place planning improvements have been delivered.

Staff comment:

The AHCS does not rezone the land, nor facilitate the capacity to rezone in the absence of an adopted/endorsed Residential Strategy. Rather the AHCS specifically seeks to deliver a portion of any upzoned land as affordable housing for a combination of low- and moderate-income households.

The Northern Rivers is in the grip of an unpreceded housing crisis. The AHCS needs analysis was undertaken in mid-2019 prior to the covid and the recent flood events. The AHCS Section ‘4.3 Affordable housing demand’ states ‘an additional 3,393 dwellings are required in Byron LGA between 2016 and 2041, a proportional increase of 20%.’ It identified the ‘high levels of rental and purchase stress in Byron LGA, particularly amongst moderate income households, the high rate of people living in improvised dwellings and caravan parks, and the relatively high level of workforce containment suggests that people who work in Byron LGA lack options to rent or purchase in cheaper areas and commute into Byron LGA for work.’

The housing crisis has escalated considerably since this analysis was undertaken. The floods resulted in some 500 shire households being dislocated. A suggestion that Bangalow should be quarantined from further residential development on the basis that the community is awaiting place planning infrastructure improvements, may seem untenable and short in empathy to the situation for many currently displaced and stressed residents of the Northern Rivers.

(ii) The issue of housing mix, affordable housing and need to avoid negatively impacting on the local character and heritage of the Bangalow village in general and Ballina Road was raised.

Staff comment:

Any future rezoning of land identified as an Affordable Housing Contribution Area is subject to a separate planning proposal. Based on the 2019 population projections, 89.7% of the demand for additional dwellings in the Shire will come from increases in Couple Only and Lone Person households, suggesting a need for smaller dwellings such as residential flat buildings or multi dwelling housing. The adopted Residential Strategy has measures to guide how new residential development is to integrate with the existing Bangalow village. The community will have further opportunity to comment on planning proposals as specific land is sought to be rezoned.

(iii) Increase in traffic impacts

Staff comment:

Lismore Road & Granuaille Road have been main ‘through roads’ for more than 50 years. The Pacific motorway upgrade construction commenced late 2010. Based on the 2016 ABS census less than 50% of residents were residents of Bangalow five years earlier (in 2011). Therefore it is assumed these more recent residents have made a conscious decision to live in Bangalow, with some choosing to buy a house on or in proximity to such 'busy' through roads.

An AHCS influences the ratio of affordable housing in a development. The submissions have not provided any evidence that affordable housing households are likely to contribute to higher levels of traffic movement to other households. The investigation land captured in the AHCS is within walking distance of community facilities, a favourable outcome for affordable housing households. Any future rezoning of land identified as an Affordable Housing Contribution Area is subject to a separate planning proposal where traffic is a standard matter to considered/addressed.

(iv) Koala habitats and movement corridors

Any future rezoning of land identified as an Affordable Housing Contribution Area is subject to a separate planning proposal that must give consideration to State Environmental Planning Policy (Koala Habitat Protection) 2019, with Byron Shire part of the North Coast koala management area. The submissions have not provided any evidence that affordable housing households are likely to contribute to a higher risk for koala habitat and movement corridors.

Late community feedback

Additional feedback was received outside the extended exhibition period (Attachment 6). Both supported affordable housing. The concerns raised in one were not dissimilar to those in Matter 6 above on residential development in Bangalow.

The other feedback raised issue with a preferred approach of seeking a ‘land’ contribution. It was suggested that AHCS should also facilitate developer-built and owned affordable housing stock to be placed into the hands of a Community Housing Provider to manage.

The Guidelines require an AHCS to clarify whether the dwellings will be owned by government or a recommended community housing provider. Similarly, the Act provision 7.33 requires dedicated land to be either (i) made available by the consent authority for the purposes of affordable housing within a reasonable time or (ii) transferred by the consent authority in accordance with 7.33(3).

It is not apparent from the Guidelines nor Act provisions that the retention of dwelling ownership by the developer is an outcome envisaged.

Conclusion and Next steps

Having considered the submission issues above it considered that no amendments to the planning proposal are required. It is recommended that Council adopt this planning proposal and forward it to NSW Parliamentary Counsel’s Office (PCO) requesting that a draft LEP instrument be prepared.

Pending Council’s adoption of this planning proposal, staff will commence implementation of AHCS Section ‘6 Appendix C – Affordable Housing Implementation & Delivery Program Framework’ including:

· an expression of interest process to set a register of preferred community housing providers

· establish preferred zone provisions for likely contribution transfer land to be considered as part of any landowner’s planning proposal to upzone land.

Strategic Considerations

Community Strategic Plan and Operational Plan

CSP Objective	CSP Strategy	DP Action	Code	OP Activity
4: Ethical Growth We manage growth and change responsibly	4.2: Enable housing diversity and support people experiencing housing insecurity	4.2.2: Partnerships and pilots to address housing needs - Investigate partnerships and pilots that deliver an innovative and affordable housing model for the Shire	4.2.2.3	Affordable Housing Contribution Scheme -Implementation and Delivery program

Recent Resolutions

Encumbrances to the future process

Council at the 9 June Planning meeting resolved (22-247) to update the Residential Strategy and to prepare a Discussion Paper – Working out the possibilities together (22-249). In actioning these resolutions a situation may arise where further investigation areas or options to change the density provisions in infill areas are identified.

In the development of the exhibited AHCS a key hurdle and delay to the process was that a scheme can only apply to those sites that have not commenced the planning proposal process to upzone land. Therefore it was necessary to manage the finalisation of the Residential Strategy around the AHCS and LEP clause’s is gazettal.

It is considered this impediment could be alleviated in the future by amending the SEPP (Housing) 2021 provisions to specify that that AHCS validity date for application comes into effect upon the issuing of a gateway determination for an AHCS planning proposal (i.e. as opposed upon gazettal of the scheme). This would provide a more efficient and effective process for delivering new affordable housing stock in the Shire, as well as minimise the risk of missed affordable housing opportunities arising from planning proposals lodged post-gateway.

Recommendation

It is recommended that Council writes to the NSW government requesting an amendment to the SEPP (Housing) 2021 to specify that any planning proposal lodged to upzone land after the issuing of a gateway for an AHCS planning proposal for the same land, will be subject to that AHCS should the LEP amendment and AHCS come into effect

Legal/Statutory/Policy Considerations

This planning proposal will amend the Byron Local Environmental Plan 2014 in accordance with the relevant planning legislation.

Financial Considerations

As this is a Council initiated planning proposal, the costs of finalising will be borne by Council if it chooses to proceed.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.6

Report No. 13.6 PLANNING - Use of zipline ancillary to a primitive camping ground

Directorate: Sustainable Environment and Economy

Report Author: Ivan Holland, Planner

File No: I2022/684

Proposal:

DA No:	10.2021.683.1
NSW PP	PAN-36736
Proposal description:	Use of Zipline Ancillary to a Primitive Camping Ground
Property description:	LOT: 2 DP: 1154966
	1156 Main Arm Road UPPER MAIN ARM
Parcel No/s:	241281, 117330
Applicant:	Mr N Satz
Owner:	Mr D W McIlrath
Zoning:	RU2 Rural Landscape /1(a) General Rural / 7(k) Habitat
Date received:	26 October 2021
Integrated / Designated Development:	☐ Integrated	☐ Designated	☒ Not applicable
Concurrence required	No
Public notification or exhibition:	- Level 2 advertising under Council’s Community Participation Plan. - Exhibition period: 5 to 18 November 2021 - Submissions received: Nil (0) - Submissions acknowledged: ☐ Yes ☐ No ☒ N/A
Variation request to Development Standards under an EPI (eg clause 4.6)	Clause 64A
Estimated cost	$2,500.00
Delegation to determine	Council
Issues	· Variation to development standard - Height of building (structure)

Summary:

The DA proposes Use of Zipline Ancillary to a Primitive Camping Ground. The zipline (and campground) is located near the southern boundary of the property and Main Arm Road. The zipline runs from a 11.2m high platform, attached to a tree, for ~100m to a terminus ~3m above ground. The zipline is not to be used for commercial purposes and conditions of consent recommended accordingly. The application appropriately addresses the relevant constraints applying to the site and is recommended for approval as a deferred commencement consent and subject to the conditions attached to this Report.

NOTE TO COUNCILLORS:

RECOMMENDATION:

That Pursuant to Section 4.16 of the Environmental Planning & Assessment Act 1979, Development Application No. 10.2021.683.1 for Use of Zipline Ancillary to a Primitive Camping Ground, be granted as a deferred commencement consent subject to the conditions in Attachment 3.

Attachments:

1 DA 10.2021.683.1 - Site plan, E2021/133471

2 DA 10.2021.683.1 - Variation request, E2022/53474

3 DA 10.2021.683.1 - Recommended conditions, E2022/54860

Map

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Assessment:

1. INTRODUCTION

History/Background

Council records show the following development approval history for the property:

Graphical user interface, text, application, email

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Text

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Of key relevance to this application is DA 5.1989.173.1 being the original approval for the primitive campground on the property (Lot 5 DP 588313). Only a site plan could be located in the records for this DA (see Figure 1).

Diagram

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Figure 1. Site plan for DA 5.1989.173.1 – Primitive Camping Ground

The site plans (Figure 1) and file correspondence indicate that the campground is set-up and operating further east to the originally approved location and that this amended location (i.e., the current location) was approved (see extracts below).

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An AHIMS search for 1156 Main Arm Road did not identify any aboriginal sites or places.

Description of the proposed development

This application seeks approval for Use of Zipline Ancillary to a Primitive Camping Ground. The zipline (and campground) is located near the southern boundary of Lot 2 DP 1154966 and proximate to Main Arm Road (see Figure 2).

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Figure 2. Site plan showing location of the zipline.

Description of the site

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Figure 3. Aerial photo with land zoning overlay. Subject property is identified by yellow polygon.

Land is legally described	LOT: 2 DP: 1154966, LOT: 5 DP: 588313
Property address	1156 Main Arm Road UPPER MAIN ARM
Land is zoned:	RU2 Rural Landscape / PART 1A General Rural / 7K Habitat Zone Byron LEP 1988
Land area is:	78.49ha
Property is constrained by:	· Bushfire prone land · High Environmental Value vegetation · Powerlines · Biodiversity values/key fish habitat · Koala potential habitat · Coastal wetland buffer
	Is a BDAR required due to the location of the proposed development?	☐ Yes ☒ No
	Are there any easements in favour of Council affecting the site?	☐ Yes ☒ No
	Is there a Vegetation Management Plan which might affect the proposal?	☐ Yes ☒ No
	Is there a Voluntary Planning Agreement which might affect the proposal?	☐ Yes ☒ No

The property has biodiversity values mapped land however no works/use within mapped lands are proposed. Accordingly, there is no requirement for a BDAR to be prepared for this application.

2. SUMMARY OF REFERRALS

Referral	Issue
Building Surveyor	No objections subject to conditions.

3. SECTION 4.14 – BUSH FIRE PRONE LAND

Effect of 10/50 rule on significant vegetation: Nil. The property is not within an area where the 10/50 clearing code applies and the code would not apply to a zipline.

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.

State Environmental Planning Policies (SEPP)

Consolidated SEPPs 2021

Considerations	Satisfactory	Unsatisfactory
Biodiversity and Conservation SEPP 2021 Consideration: Council’s GIS shows some areas of the property are mapped as potential koala habitat however none of the property is mapped as ‘preferred’ koala habitat and no koala sighting have been recorded. On the basis of this information, the property is not considered to be core koala habitat and the DA may be granted under this SEPP.	☒	☐
Resilience and Hazards SEPP 2021 Consideration: The zipline is not within the coastal wetland or associated proximity area. Significant impacts on the lasted matters will not result from the use of the zipline. The subject property is not mapped as contaminated in Council’s GIS and no works are proposed by this application.	☒	☐

Considerations

Satisfactory

Unsatisfactory

Biodiversity and Conservation SEPP 2021

Consideration: Council’s GIS shows some areas of the property are mapped as potential koala habitat however none of the property is mapped as ‘preferred’ koala habitat and no koala sighting have been recorded. On the basis of this information, the property is not considered to be core koala habitat and the DA may be granted under this SEPP.

☒

☐

Resilience and Hazards SEPP 2021

Consideration: The zipline is not within the coastal wetland or associated proximity area. Significant impacts on the lasted matters will not result from the use of the zipline.

The subject property is not mapped as contaminated in Council’s GIS and no works are proposed by this application.

☒

☐

4.2A Byron Local Environmental Plan 2014 (LEP 2014)

Note: The zipline is predominantly within the RU2 zone with the eastern end of the zipline marginally encroaching into the 1(a) zone.

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

Part 1	☒1.1 \| ☒1.1AA \| ☒1.2 \| ☒1.3 \| ☒1.4 \| ☒Dictionary \| ☒1.5 \| ☒1.6 \| ☒1.7 \| ☒1.8 \| ☐1.8A \| ☒1.9 \| ☐1.9A
Part 2	☒2.1 \| ☒2.2 \| ☒2.3 \| ☒Land Use Table \| ☐2.4 \| ☐2.5 \| ☐2.6 \| ☐2.7 \| ☐2.8
Part 3	☐3.1 \| ☐3.2 \| ☐3.3
Part 4	☐4.1 \| ☐4.1A \| ☐4.1AA \| ☐4.1B \| ☐4.1C \| ☐4.1D \| ☐4.1E \| ☐4.1F \| ☐4.2 \| ☐4.2A \| ☐4.2B \| ☐4.2C \| ☐4.2D \| ☒4.3 \| ☐4.4 \| ☐4.5 \| ☐4.6
Part 5	☐5.1 \| ☐5.2 \| ☐5.3 \| ☐5.4 \| ☐5.6 \| ☐5.7 \| ☐5.8 \| ☐5.10 \| ☐5.11 \| ☐5.12 \| ☐5.13 \| ☐5.14 \| ☐5.15 \| ☐5.16 \| ☐5.17 \| ☐5.18 \| ☐5.19 \| ☐5.20 \| ☐5.21 \| ☐5.22
Part 6	☐6.1 \| ☐6.2 \| ☐6.4 \| ☐6.5 \| ☒6.6 \| ☐ 6.7 \| ☐6.8 \| ☐6.9 \| ☐6.11 \| ☐ 6.12 \| ☐6.13 \| ☐6.14 \| ☐6.15

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

(a) The proposed development is not expressly defined in the LEP 2014 Dictionary, however, is considered as an ancillary activity to the previously approved primitive camping ground as defined within the BLEP 1988 (Note: Camping Grounds are permissible in zone RU2).

(b) The land is within the RU2 Rural Landscape according to the Land Zoning Map;

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

Zone Objective	Consideration
• To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.	The zipline will not hinder this objective
• To maintain the rural landscape character of the land.	The zipline does not impact on the landscape character
• To provide for a range of compatible land uses, including extensive agriculture.	The zipline will not hinder this objective
• To enable the provision of tourist accommodation, facilities and other small-scale rural tourism uses associated with primary production and environmental conservation consistent with the rural character of the locality.	The zipline is complimentary, and ancillary, to the approved primitive camping ground
• To protect significant scenic landscapes and to minimise impacts on the scenic quality of the locality.	The zipline does not impact on the scenic quality of the locality.

4.3 Height of buildings

The zipline termini are structures and fall within the definition of ‘buildings’. The western zipline terminus is within zone RU2 but is ~3.2m above ground and less than the 9m height limit.

The remaining underlined clauses have been taken into consideration in the assessment of the subject development application in accordance with Section 4.15 of the EP&A Act. The proposed development complies with all of these clauses (in some cases subject to conditions and/or to the satisfaction of other assessing officers), except in relation to Clause 4.3 Height of buildings which is considered further as follows:

4.2B Byron Local Environmental Plan 1988 (LEP 1988)

BLEP 1988 is an applicable matter for consideration in the assessment of the subject development application in accordance with subsection 4.15(1) of the EP&A Act because it applies to the subject land and the proposed development. The LEP 1988 clauses that are checked below are of relevance to the proposed development:

Part 1	☒1 \| ☒2 \| ☒2A \| ☒3 \| ☒4 \| ☒5 \| ☒LEP 1988 Dictionary \| ☒7
Part 2	☒8 \| ☒9
Part 3	☐10 \| ☐11 \| ☐11A \| ☐11B \| ☐12 \| ☐13 \| ☐14 \| ☐15 \| ☐16 \| ☐17 \| ☐17A \| ☐17B \| ☐18 \| ☐19 \| ☐20 \| ☐22 \| ☐23 \| ☐24 \| ☐25 \| ☐27 \| ☐ 29 \| ☐29AA \| ☐29A \| ☐30 \| ☐31 \| ☐32 \| ☐33 \| ☐34 \| ☐35 \| ☒36 \| ☐37 \| ☐38 \| ☐38A \| ☐38B \| ☐39 \| ☐39A \| ☐39B \| ☐39C \| ☒40 \| ☐41 \| ☐42 \| ☐43 \| ☐44 \| ☒45 \| ☐46 \| ☐47 \| ☐47AA \| ☐47A \| ☐48 \| ☐48A \| ☐49 \| ☐51 \| ☐52 \| ☐53 \| ☐54 \| ☐55 \| ☐56 \| ☐ 57 \| ☐58 \| ☐59 \| ☐60 \| ☐61 \| ☐62 \| ☐63 \| ☐64 \| ☒64A \| ☐64B \| ☐64C \| ☐64D

In accordance with LEP 1988 clauses 5, 8 and 9:

(a) The proposed development is ancillary to “primitive camping ground” as defined in the LEP 1988 Dictionary;

(b) The land is within the LEP1988 1(a) General Rural according to the map under LEP 1988;

(d) The proposed development is consistent with the relevant objectives of the Zone for the following reasons:

Zone Objective	Consideration
(a) to encourage and permit a range of uses creating a pattern of settlement, at a scale and character that maintains or enhances the natural, economic, cultural, social and scenic amenity of the rural environment of the Shire of Byron, (b) to encourage and permit a pattern of settlement which does not adversely affect the quality of life of residents and visitors and maintains the rural character, (c) to ensure development only occurs on land which is suitable for and economically capable of that development and so as not to create conflicting uses, (d) to allow the use of land within the zone for agricultural purposes and for a range of other appropriate purposes whilst avoiding conflict between other uses and intensive agriculture, (e) to identify lands (shown hatched on the map) which in the opinion of the council possess a limited capability for more intensive uses or development, (f) to restrict the establishment of inappropriate traffic generating uses along main road frontages other than in roadside service areas, (g) to ensure sound management of land which has an extractive or mining industry potential and to ensure that development does not adversely affect the potential of any existing or future extractive industry, (h) to enable the provision of rural tourist accommodation and facilities only where such facilities are compatible with the form and density of the nature of the locality, and (i) to permit the development of limited light industries which do not pose any adverse environmental impact, (e.g., software manufacture and film processing), and (j) to ensure that the development and use of land shown cross-hatched on the map adjacent to areas of significant vegetation and wildlife habitat do not result in any degradation of that significant vegetation and wildlife habitat, and that any development conserves and protects and enhances the value of the fauna and flora.	The use of the zipline is associated with an approved tourism use and is not contrary to the relevant zone objectives

Zone Objective

Consideration

(a) to encourage and permit a range of uses creating a pattern of settlement, at a scale and character that maintains or enhances the natural, economic, cultural, social and scenic amenity of the rural environment of the Shire of Byron,

(b) to encourage and permit a pattern of settlement which does not adversely affect the quality of life of residents and visitors and maintains the rural character,

(c) to ensure development only occurs on land which is suitable for and economically capable of that development and so as not to create conflicting uses,

(d) to allow the use of land within the zone for agricultural purposes and for a range of other appropriate purposes whilst avoiding conflict between other uses and intensive agriculture,

(e) to identify lands (shown hatched on the map) which in the opinion of the council possess a limited capability for more intensive uses or development,

(f) to restrict the establishment of inappropriate traffic generating uses along main road frontages other than in roadside service areas,

(g) to ensure sound management of land which has an extractive or mining industry potential and to ensure that development does not adversely affect the potential of any existing or future extractive industry,

(h) to enable the provision of rural tourist accommodation and facilities only where such facilities are compatible with the form and density of the nature of the locality, and

(i) to permit the development of limited light industries which do not pose any adverse environmental impact, (e.g., software manufacture and film processing), and

(j) to ensure that the development and use of land shown cross-hatched on the map adjacent to areas of significant vegetation and wildlife habitat do not result in any degradation of that significant vegetation and wildlife habitat, and that any development conserves and protects and enhances the value of the fauna and flora.

The use of the zipline is associated with an approved tourism use and is not contrary to the relevant zone objectives

40 Height

The zipline termini are structures and fall within the definition of ‘buildings’. The eastern zipline terminus is within zone 1(a) and the platform is ~11.2m above ground and exceeds than the 9m height limit (see Photo 4). The application states that “The use of the platform is entirely cosmetic. It is not required for either safety of structural purposes”. Following a request by Council, the applicant provided a written request to vary the development standard with respect to height of the structure on 5/6/2022 (E2022/53251) which is considered below.

The remaining checked clauses have been taken into consideration in the assessment of the subject development application in accordance with Section 4.15 of the EP&A Act. The proposed development complies with all of these clauses (in some cases subject to conditions and/or to the satisfaction of other assessing officers), except in relation to Clause 40 Height which is considered further as follows:

Clause 64A Exceptions to Development Standards

Applicant has sought a variation to the Height (clause 40) development standard by proposing a zipline platform with a height of 11.2m (~24% variation to the standard).

The applicant has submitted a written request that strict compliance with the development standard is unreasonable or unnecessary and that there are sufficient environmental grounds to vary the controls as follows:

· A reduction in height for the zipline platform would lead to a “reduction in the margin of safety for users”.

· There will be “no discernible or detrimental environmental effect” associated with the height of the zipline platform

· A lower platform height “would detract from the novelty, excitement and enjoyment of the ride”.

It is considered that strict compliance with the development standard is unreasonable and unnecessary in the circumstances of the case and that there are sufficient environmental grounds to vary the development standard for the following reasons:

· the height and scale of the zipline platform does not conflict with the location, surrounding development or environmental characteristic of the land.

· the development standard is primarily targeted towards buildings, rather than a small (~6m2), open platform in a tree.

· the minor scale and obscured location (within and surrounding a tree) of the structure are such that visual impacts of the development are negligible

Further the proposal is in the public interest having regards to the relevant objective of the development standard being “to ensure that the height and scale of development is appropriate to its location, surrounding development and the environmental characteristics of the land” as the structure is relatively small in area (~6m²), is open (without walls or roof) and located in a tree.

The concurrence of the Planning Secretary is not required. Concurrence may be assumed by Council (but not a delegate of Council) under Planning Circular PS 20-002.

It is recommended that the development standard can be varied in this instance.

a) The development is satisfactory having regard to the requirements outlined in clause 64A;

b) The development is satisfactory having regard to applicable Department of Planning, Infrastructure and Environment Circulars;

c) The development is satisfactory having regard to relevant caselaw;

d) The DA demonstrates that compliance is with the development standard is unreasonable and unnecessary;

e) The DA demonstrates that there are sufficient environmental planning grounds to justify contravening the standard;

f) The DA demonstrates that that the development in the public interest;

g) The DA demonstrates that the development is consistent with the objectives of the standard and the zone; and

h) The DA demonstrates the grounds of the request are particular to the proposed development on this site, and that there is something particular to the development on this site to justify the variation.

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

No proposed instruments were identified that are relevant to this application.

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

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

Part A	☒
Part B Chapters:	☒ B1 \| ☐ B2 \| ☐ B3 \| ☐ B4 \| ☐ B5 \| ☐ B6 \| ☐ B7 \| ☒ B8 \| ☐ B9 \| ☐ B10 \| ☐ B11 \| ☐ B12 \| ☒ B13 \| ☐ B14
Part C Chapters:	☐ C1 \| ☐ C2 \| ☐ C3 \| ☐ C4
Part D Chapters	☐ D1 \| ☐ D2 \| ☒ D3 \| ☐ D4 \| ☐ D5 \| ☐ D6 \| ☐ D7 \| ☐ D8 \| ☐ D9
Part E Chapters	☐ E1 \| ☐ E2 \| ☐ E3 \| ☐ E4 \| ☐ E5 \| ☐ E6 \| ☐ E7 \| ☐ E8 \| ☐ E9 \| ☐ E10

B1: Biodiversity

The zipline and associated structures encroach areas of vegetation mapped as high environmental value vegetation (subtropical rainforest), key fish habitat and koala potential habitat. Consequently, the development does not meet ecological setbacks to ‘red-flagged’ areas (B1.2.1). However, a variation to the ecological setbacks is reasonable in the circumstances as:

· no tree removal is required or proposed;

· the scale and impact of the development is minimal;

· the development does not require a managed bush fire setback;

· the development does not trigger clearing entitlements under other mechanisms (e.g., NSW RFS 10/50 Vegetation Clearing Code);

· there will be no net loss of biodiversity; and

· an arborists report was provided with the application that states “… all the anchor and support trees are adequate and suitable in terms of their use for the zipline both as anchor trees and support trees”.

D3: Tourist Accommodation

Although this chapter is applicable to the zipline (particularly D3.3.3 Caravan Parks and Camping Grounds), as ancillary development to the campground, there are no provisions that are directly relevant to the proposal.

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

4.4B Byron Shire Development Control Plan 2010 (DCP 2010)

DCP 2010 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 its purpose is to provide planning strategies and controls for various types of development permissible in accordance with LEP 1988. The DCP 2010 Chapters/Parts that are checked below are of relevance to the proposed development:

Chapter 1 Parts:	☒A\| ☐B\| ☒C\| ☐D\| ☐E\| ☐F\| ☐G\| ☐H\| ☐J\| ☐K\| ☐L\| ☐N
Chapters:	☐4\| ☐6\| ☐7\| ☐8\| ☐9\| ☐10\| ☐11\| ☐12\| ☐14\| ☐15\| ☐16\| ☐17\| ☐18\| ☐19\| ☐20\| ☐21\| ☐22

Chapter 1: Part C – Residential Development

Although this chapter is applicable to the zipline (particularly C10. Caravan Parks and Camping Grounds), as ancillary development to the campground, there are no provisions that are directly relevant to the proposal.

These checked Chapters/Parts have been taken into consideration in the assessment of the subject development application in accordance with Section 4.15 of the EP&A Act. The proposed development is demonstrated to meet the relevant Objectives of DCP 2010 (in some cases subject to conditions and/or to the satisfaction of other assessing officers).

4.5 Environmental Planning and Assessment Regulation 2000 considerations

	Applicable to the proposal:	Considered the control as it relates to the proposal:	If this control is applicable, does the proposal comply?
Clause 92 - Additional matters that consent authority must consider	☐ Yes ☒ No	☒ NA	☒ NA
Clause 93 Fire safety and other considerations	☐ Yes ☒ No	☒ NA	☒ NA
Clause 94 - Consent authority may require buildings to be upgraded	☐ Yes ☒ No	☒ NA	☒ NA
Clause 94A - Fire safety and other considerations applying to erection of temporary structures	☐ Yes ☒ No	☒ NA	☒ NA

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

Impact on:	Likely significant impact/s?
Natural environment	No. The proposal will not have a significantly adverse impact on the natural environment of the locality.
Built environment	No. The proposal will not have a significantly adverse impact on the built environment of the locality.
Social Environment	No. The proposal will not have a significant social impact on the locality.
Economic impact	No. The proposal will not have a significant economic impact on the locality.
Construction Impacts	The development will generate minor impacts during its construction. Conditions of consent recommended to control hours of work, builders waste, construction noise, installation of sedimentation and erosion control measures and the like to ameliorate such impacts.

No Council Policies that are applicable to the proposed development were identified.

4.7 The suitability of the site for the development

The site is suitable for the proposed development.

4.8 Submissions made in accordance with this Act or the regulations

The development application was publicly exhibited

There were no submissions made on the development application.

4.9 Public interest

The proposed development is unlikely to prejudice or compromise the public interest or create an undesirable precedent.

5. DEVELOPER CONTRIBUTIONS

5.1 Water & Sewer Levies

No Section 64 levies will be required.

5.2 Developer Contributions

No Developer Contributions will be required.

6. DISCLOSURE OF POLITICAL DONATIONS AND GIFTS

Disclosure details

Response

Has a Disclosure Statement been received in relation to this application?

If Yes, Provide Disclosure Statement register reference: 91.

Yes ☐ No ☒

Have staff received a ‘gift’ from anyone involved in this application that needs to be disclosed.

Yes ☐ No ☒

7. CONCLUSION

The DA proposes Use of Zipline Ancillary to a Primitive Camping Ground (known as ‘Macca’s Campground) at 1156 Main Arm Road, Upper Main Arm. The zipline has already been constructed and a building information certificate is recommended as a deferred commencement requirement. The starting platform for the zipline is 11.2m high and above the 9m building height limit however the platform is relatively small and is located such that visual impacts are minimal. The application appropriately addresses the relevant constraints applying to the site and is recommended for approval as a deferred commencement consent and subject to the conditions attached to this Report.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.7

Report No. 13.7 PLANNING - DA 10.2021.348.1 Alterations to Existing Building and Change of Use to Mixed Use Development including Shop, Office Premises and Construction of a Two-Storey Carpark

Directorate: Sustainable Environment and Economy

Report Author: Patricia Docherty, Planner

File No: I2022/646

Proposal:

Proposal description:	Alterations to Existing Building and Change of Use to Mixed Use Development including Shop, Office Premises and Construction of a Two-Storey Carpark
Property description:	LOT: 9 DP: 818197, LOT: 51 DP: 844054, LOT: 4729 DP: 1228104 (Part of lot)
	156 Jonson Street BYRON BAY, 158 Jonson Street BYRON BAY, Butler Street BYRON BAY
Parcel No/s:	157320, 237062, 268546
Applicant:	156 Jonson Street Pty Ltd
Owner:	156 Jonson Street Pty Ltd
Zoning:	B2 Local Centre SP2 Infrastructure (Car Park) C2 Environmental Conservation C3 Environmental Management
Date received:	28 June 2021
Integrated / Designated Development:	☐ Integrated	☐ Designated	☒ Not applicable
Concurrence required	Yes – CNR-28907
Public notification or exhibition:	- Level 2 advertising under Council’s Community Participation Plan. - Exhibition period: 7 July 2021 – 3 August 2021 - Submissions received: Two Individual Submissions - Note. Three separate objection documents were submitted on behalf of Seadrift Residents to east. - Submissions acknowledged: ☒ Yes ☐ No ☐ N/A
Estimated cost	$13,658,873.00
Delegation to determine	Council

Summary:

This development application seeks consent for alterations and change of use of an existing building to a mixed-use development including a ground floor shop, upper-level office premises and the construction of a two-storey car park containing 231 car parking spaces. Access will be from Jonson Street.

The existing factory/warehouse building, formerly used by the Wicked Weasel Ladies Swimwear company, will fitted out for use as a Harris Farm Markets grocery store at ground level with an ancillary office, back of house cool room and bakery and separate office tenancy intended for use as a co-working space on the upper level.

The existing building is located on a battle axe lot with vehicular access from the south end of Jonson Street and frontage to Butler Street Bypass. This will be connected to a two-storey car park to be constructed south of the existing building.

The car park is proposed to be located over two lots. Part of the car park site relies on recent Council approval of the boundary adjustment to subdivide 2,035 m² of surplus rail land under separate development application 10.2021.750.1. This subdivision is required to be registered with NSW land registry services prior to any construction. All three lots including the mixed-use building and car park will be required to be consolidated into one lot.

The proposal will require road upgrades to the southern end of Jonson Street, removal of vegetation on land zoned SP2 (Car Park) and environmental regeneration of the adjoining conservation zoned land, which will be subject to a vegetation management plan.

A voluntary planning agreement (VPA) letter of offer has been received for the sum of $166,600.00 for public art and the VPA will be required to be executed prior to construction.

The application appropriately addresses the relevant constraints applying to the site and raises no issues of significance with regards to the applicable environmental planning instruments and development control plan. The application is recommended for approval subject to the conditions listed in the Recommendation of this Report.

NOTE TO COUNCILLORS:

RECOMMENDATION:

That pursuant to Section 4.16 of the Environmental Planning & Assessment Act 1979, Development Application No. 10.2021.348.1 for Alterations to Existing Building and Change of Use to Mixed Use Development including Shop, Office Premises and Construction of a Two-Storey Carpark, be granted consent subject to the conditions recommended attached to this report.

Attachments:

1 10.2021.348.1 DA Plan set - Marked in red 2/6/22, E2022/51263

2 10.2021.348.1 Recommended Conditions of Consent, E2022/50664

3 Confidential - 10.2021.348.1 submissions, E2022/53046

Map

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Figure 1 Site Location

Assessment:

1. INTRODUCTION

History/Background

The subject site comprises an existing building, vacant land and an excised part of the Rail Corridor.

History of approvals:

BA 6.1989.2600.1, Office & Shop, Finalised 24/08/1989

BA 6.1991. 2082.1, Alterations to Shop, Finalised 03/04/1992

DA 5.1998. 232.1, Miscellaneous - Skate Park, Approved Delegation 21/09/1998

BA 6.1998. 2421.1, 98/2421 Skatepark inside existing building, Approved Delegation12/03/1999

DA 10.2005. 331.1, Change of use to light industry with ancillary shop etc. Approved 26/09/2005

DA 10.2005. 331.2, S96 to Change condition in relation to access requirements. Approved 21/06/2006

DA 10.2005. 331.3, S.96 - To make internal and external alterations approved. Approved 16/08/2007

DA10.2005.0331.4, S96 - Continued use of brushwood fence (Change of use). Approved 08/03/2010

DA10.2010. 65. 1, Photographic studio and secure storage area ancillary. Approved 08/06/2010

DA10.2008.754.1, Alterations/Additions to the Byron Bay Services Club. Approved 01/07/2010

DA10.2010.65. 2, S96 - Delete Condition No. 8. Approved 12/05/2011

DA 10.2021.750.1, Boundary adjustment of disused rail land with adjoining land. Approved by Council 23/06/2022

Description of the proposed development

The DA proposes alterations to an existing building and change of use to a mixed use development including a ground floor shop, upper level office premises and construction of a two-storey carpark.

The proposal involves refurbishment of the existing building formerly used as a light industry by swimwear brand Wicked Weasel, to be fitted out for use as a Harris Farm Markets grocery store on the ground floor with an ancillary office, back of house cool room and bakery and separate office tenancy on the upper level. This will be connected to a two-storey car park to be constructed south of the existing building.

The proposal will require road upgrades to the southern end of Jonson Street, removal of vegetation in land zoned SP2 (Car Park) and environmental regeneration of the adjoining conservation zoned land.

Diagram

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Figure 3 Illustrative Façade Butler Street

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Figure 4 Proposed Ground Floor of Building

Figure 5 Proposed First Floor of Building

Description of the site

A site inspection was carried out on 6 July 2021 and 25 May 2022

Land is legally described	LOT: 9 DP: 818197, LOT: 51 DP: 844054, LOT: 4729 DP: 1228104 (Part of lot boundary adjustment (DA 10.2021.750.1)
Property address	156 Jonson Street BYRON BAY, 158 Jonson Street BYRON BAY, Butler Street BYRON BAY
Land is zoned:	B2 Local Centre SP2 Infrastructure (Car Park) C2 Environmental Conservation C3 Environmental Management
Land area is:	9,121 m²
Property is constrained by:	Flood Liable Land; Bushfire prone land; Acid Sulfate Soils Class 2; and High Environmental Value.
	Is a BDAR required due to the location of the proposed development?	☐ Yes ☒ No
	Are there any easements in favour of Council affecting the site?	☐ Yes ☒ No
	Is there a Vegetation Management Plan which might affect the proposal?	☒ Yes ☐ No
	Is there a Voluntary Planning Agreement which might affect the proposal?	☒ Yes ☐ No

The existing building is located on a battle axe lot with vehicular access from the south end of Jonson Street and frontage to Butler Street Bypass.

The proposed car park is to be located on land to the south of the existing building also with access from Jonson Street. Part of car park site relates to boundary adjustment of 2035 m² of surplus rail land approved under DA 10.2021.750.1, which would be required to be registered with NSW land registry services prior to construction.

All three lots will also be required to be consolidated.

Diagram

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Figure 6 Extracts Deposited Plans Existing Lot 9, Existing Lot 51; and Approved Lot 1

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Figure 7 Extract of Gazetted planning proposal map (26.2020.5.1).

Note. E (Environmental) Zones and now referred to as C (Conservation) Zones

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Figure 8 Zoning Map Geocortex

A picture containing tree, outdoor, grass, transport

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Description automatically generated A picture containing sky, outdoor, road, parked

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A picture containing outdoor, tree, sky, grass

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Figure 9 Site photos view from Jonson Street Road Reserve looking north and south

2. SUMMARY OF REFERRALS

Referral	Issue
Environmental Health Officer	No objections subject to conditions.
Development Engineer	No objections subject to conditions.
Building Surveyor	No objections subject to conditions.
S64 / Systems Planning Officer	No objections subject to conditions.
S7.12 / Contributions Planner	No objections subject to conditions for Voluntary Planning Agreement and S7.12 Levy.
Natural Resource Planner	No objections subject to conditions.
Resource Recovery	No objections subject to conditions.
Design Excellence	No objections subject to conditions. See additional comments below.
Public Art Panel	Applicant has made an offer to enter into a Voluntary Planning Agreement.
Roads & Maritime Services	No objections.
Transport for NSW	No objections.
Essential Energy	No objections subject to conditions.
Police	No response or objection received
Bundjalung (Arakwal)	No response or objection received

Design excellence—Byron Bay town centre

Clause 6.13 Design excellence—Byron Bay town centre only applies to the existing building and does not apply to the car park land. A Design Excellence Panel referral was made. The following commentary about the existing building in relation to the Design Excellence requirements was received:

Overall the proposal is an appropriate response to the existing building and the changes to the building will improve its relationship to the street and town centre.

The corporate sustainability objectives of Harris Farm need to be developed in greater detail and applied to the proposal in order to achieve and demonstrate ‘design excellence’.

The number of car spaces should be reduced and this should enable redesign of the car park to improve amenity and allow for deep soil planting along the boundaries and in the centre of the carpark

Further consideration of tree species and climbers and the extent of trellises is needed.

Overall the proposal has the potential to achieve design excellence if the improvements and commitments outlined above are incorporated.

Assessing Planner Comments: Although the car park is not subject to Clause 6.13 Design Excellence, the Design Excellence referral has raised the following comments about the car park and landscape design generally. Council, being the consent authority, has the opportunity to consider these comments and decide if additional conditions of consent are warranted, to address the following:

Design Excellence Comments
The proposal has an excess of 30 car spaces. Consideration should be given to the removal of 30 spaces that would allow the western edge of the car park to be set back from the rail corridor by a minimum of 600mm and to allow for deep soil planting for the creepers for the proposed green wall. It is noted that no works are permissible in the rail corridor and no agreement for maintenance of this land has been provided.

It is not clear why the ground level has a high clearance unless this aims to achieve natural ventilation. An alternative approach would be to cut out a section of the upper level in addition to the small triangular area noted as “feature tree planting” to allow light and air to the ground level parking below which would be made possible by the removal of the 30 excess parking spaces.

The introduction of the planted berm and the ‘green wall’ to the east is strongly supported. This requires a set back from the eastern boundary unless an agreement with council for planting in the road reserve is agreed.

Overall, the landscape drawings and artist impressions indicate inadequate shading of the open areas at ground level. (I am not aware of councils landscape policies, but in this instance I think deciduous trees that provide more shade than indigenous species Euc. tereticornis may be preferable in the this [sic] urban setting)

Design Excellence Recommendations:

1. Expand the areas of trellis on the upper car park level while still allowing for good solar access for the PV panels.

2. Select tree species that will provide extensive shade and aim for 100% canopy over the uncovered areas at ground level should be selected.

3. Investigate the introduction of a trellis over the ramp to the upper level to improve the appearance of the car park from Jonson Street.

4. Revise the design of the car park after removing 30 car spaces with the aim of reducing overall height and introducing more natural light to the ground level, allowing for deep soil for creepers within the site boundary on the west and possibly on the east if an agreement cannot be reached with council for planting within the road reserve.

Possible translation as conditions of consent:

· Provide details of species that will achieve 100% shading of the uncovered ground level area and more extensive shading of the upper car park level and ramp

· Reduce the number of car spaces to the minimum required.

Assessing Planner Consideration: According to architectural plans, the green wall is on the roadside and not on the rail corridor. A condition of consent is recommended for an amended landscaping plan to be provided prior to Construction Certification.

The proposed planted berm to the south of the car park on the land zoned C3 is not supported by Council as this land is intended to be regenerated for biodiversity purposes only in keeping with the objectives of the Environmental Conservation zone.

It is recommended by Council’s Natural Resources Planner that locally indigenous tree species be used on the site in keeping with the ecological community on the edge of the site. Council’s Natural Resources Planner has considered the submitted landscaping plan and requires that a condition of consent be imposed prior to the issue of a Construction Certificate, that the ‘Statement of Landscape Intent’ must be amended and incorporated into a detailed landscaping plan. The detailed plan must include all landscaping within the site external to the areas zoned C2 and C3. The landscaping plan must incorporate adequate detail to demonstrate compliance with the provisions of Chapter B9 of Development Control Plan 2014.

The plan must remove any non-native species and replace them with species that correspond to the naturally occurring vegetation community of the locality.

Assessing Planner Recommendation: The following specifications recommended in the condition of consent for a detailed landscaping plan address both ecological and design excellence considerations:

a) Select tree species that correspond to the naturally occurring vegetation community of the locality that will provide extensive shade and aim for 100% canopy over the uncovered areas at ground level should be selected.

b) Expand the areas of trellis on the upper car park level while still allowing for good solar access for the PV panels.

c) Investigate the introduction of a trellis over the ramp to the upper level to improve the appearance of the car park from Jonson Street.

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 2019’. The site is bush fire prone land. The development application is accompanied by a bushfire risk management assessment Report by Bushfire Safe (Australia) Pty Ltd dated March 2021 which provides conditions.. Condition 5 is included in the Recommendation of this Report requiring that the development must comply at all times with the requirements of bushfire risk management assessment Report by Bushfire Safe (Australia) Pty Ltd dated March 2021.

Note. Bush Fire Attack Categories

The proposed multistorey car park is exempt from bushfire construction standards.

An assessment of the bushfire attack level applicable to the proposed development was carried out using the methodology detailed in Planning for Bushfire Protection (RFS, 2019).

The bushfire risk management assessment concluded the upgrades to the existing Building shall be within a BAL-29 Bushfire Attack Level.

All vegetation within the site zoned C2 and C3 will be subject to protection in perpetuity under the provisions of a vegetation management plan.

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.

State Environmental Planning Policies (SEPP)

Consolidated SEPPs 2021

Considerations	Satisfactory	Unsatisfactory
Biodiversity and Conservation SEPP 2021 Consideration: Chapter 2 Vegetation in non-rural areas. Chapter 2 of the B&C SEPP doesn’t apply because it only relates to vegetation clearing not ancillary to development. All vegetation clearing and compensation was assessed in Council’s ecology assessment and conditions of consent to provide for vegetation management and restoration. No clearing is proposed on land Zoned C2 or C3. Chapter 4 Koala habitat protection The subject land is within the koala planning area as defined under the Byron Coast Comprehensive Koala Plan of Management (CKPoM) as approved under Section 4.17 of the B&C SEPP. As the subject land is less than 1 ha in area, the CKPoM does not apply to the proposal.	☒	☐
Resilience and Hazards SEPP 2021 Consideration: Chapter 2 Coastal management The proposal involves works on land within the proximity area to coastal wetlands as mapped under Chapter 2 of the R&H SEPP. The proposal is not expected to impact the biophysical, hydrological, and ecological integrity of the adjacent coastal wetland. It is therefore considered that the proposal complies with Section 2.8 of the R&H SEPP. Note. A small strip in the southern extent of the parcel is identified on the biodiversity values map. This area corresponds to a coastal wetland mapped under the R&H SEPP. No development is proposed on this part of the site. The mapped coastal wetland extends beyond the parcel to the south. There are also large areas of land identified on the biodiversity values map to the west and north. The remainder of the site is mapped as a proximity area for coastal wetland. Chapter 4 Remediation of land The applicant has undertaken preliminary assessment in accordance with the R&H SEPP. The findings have been assessed by Council’s Environmental Health Officer in their referral assessment referred to in Section 2.1 of this report. The proposed development can be supported subject to conditions required to be net included in the recommendations of this report.	☒	☐
Transport and Infrastructure SEPP 2021 Consideration: Chapter 2 Infrastructure The DA was referred to Essential Energy in accordance with Division 5 Electricity transmission or distribution, Subdivision 2 Development likely to affect an electricity transmission or distribution network S2.48 Determination of development applications—other development. The DA was referred to Transport for NSW in accordance with Division 15 Railways Subdivision 2 Development in or adjacent to rail corridors and interim rail corridors—notification and other requirements, S 2.97 Development adjacent to rail corridors. The DA was referred to Roads and Maritime Services in accordance with Division 17 Roads and traffic, Subdivision 2 Development in or adjacent to road corridors and road reservations, S2.118 Development with frontage to classified road and S 2.121 Traffic-generating development. All conditions required by the referral agencies are included in the recommendations of this report.	☒	☐

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 Mixed use development comprising shop and office and Car park;

(b) The land subject to the proposed development is within the B2 Local Centre and SP2 Infrastructure (Car Park) zone; according to the Land Zoning Map;

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

Zone Objective B2	Consideration
• To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.	The proposed mixed use development comprising shop and office uses will provide retail and employment and serve the needs of the community. The proposal is in the town centre and located in proximity to available public transport routes. The proposal will be required to provide for upgrades for pedestrians and cycle facilities to also encourage walking and cycling to and from the site. The proposed development is not inconsistent with the objectives of the B2 Zone.
• To encourage employment opportunities in accessible locations.
• To maximise public transport patronage and encourage walking and cycling.
• To encourage vibrant centres by allowing residential and tourist and visitor accommodation above commercial premises.

Zone Objective SP2 Infrastructure (Car Park)	Consideration
• To provide for infrastructure and related uses.	The proposal provides for car parking that is compatible with and not inconsistent with the objectives of the SP2 Infrastructure (Car Park) zone.
• To prevent development that is not compatible with or that may detract from the provision of infrastructure.

Note.

No development works are proposed on land zoned C2 Environmental Conservation or C3 Environmental Management. There will be a vegetation management plan applicable to these parts of the site for the purposes of biodiversity restoration in perpetuity. This is consistent with the objectives of the C2 and C3 Zone.

C2 Objectives of zone

· To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values.

· To prevent development that could destroy, damage or otherwise have an adverse effect on those values.

C3 Objectives of zone

· To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.

· To provide for a limited range of development that does not have an adverse effect on those values.

· To encourage passive recreation and environmental education where there is no detrimental effect to land.

Environmental protection works are permissible without consent in the C2 and C3 zone.

Clause 4.3 and 4.4 development standards including height and floor space ratio (FSR)

Existing building

The existing building is subject to a maximum height of building development standard of 11.5 metres max. and floor space ratio (FSR) development standards (1.3:1).

The overall maximum height of the existing building noting that the ridge of the existing highlight loft is 12.685 metres high. The overall height to the main roof ridge is 11.3 metres. The proposed extension of the building on the northern façade retains the existing height and does not exceed the maximum permissible 11.5 metes and complies.

The proposed additional highlights on the south section of the roof exceed the maximum permissible 11.5 m and the applicant has not sought to vary the development standard in accordance with 4.6 of the LEP, however this is supported in this particular case under the provisions of Clause 5.6 Architectural Roof Features. (See below)

Remaining new works to the roof are approximately 8.1 metres and do not exceed the maximum permissible 11.5 m on this part of the site.

The proposed FSR of the building is 0.46:1, which is below the permissible 1.3:1 under Clause 4.4 of Byron LEP 2014, calculated based on gross floor area (GFA) and site area, as follows:

Ground Floor = 2,693m²; First Floor = 1,580m²; Total GFA = 4,273m², Land Size= 9,121m²

FSR= 0.46:1

Proposed car park

The car park is subject to a maximum height of building of 9 metres max. but not subject to FSR development standards.

The maximum height of the car park is 8.1 metres according to elevation drawings and below the maximum permissible 9 metres.

Diagram

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Figure 10 Roof pop ups highlighted yellow comply with architectural roof feature clause

Figure 11 Car Park Elevations

Clause 5.6 Architectural Roof Features

The additional highlight roof windows emulate the existing highlight windows and can be considered to comply with the objectives and provisions of this clause:

5.6 Architectural roof features

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

(a) to encourage variety in built form,

(b) to provide for architectural innovation,

(c) to improve the streetscape of urban areas,

(d) to protect the amenity of the streetscape by enabling the development of roof features that are compatible with the natural and built features of the locality.

(2) Development that includes an architectural roof feature that exceeds, or causes a building to exceed, the height limits set by clause 4.3 may be carried out, but only with development consent.

(3) Development consent must not be granted to any such development unless the consent authority is satisfied that—

(a) the architectural roof feature—

(i) comprises a decorative element on the uppermost portion of a building, and

(ii) is not an advertising structure, and

(iii) does not include floor space area and is not reasonably capable of modification to include floor space area, and

(iv) will cause minimal overshadowing, and

(b) any building identification signage or equipment for servicing the building (such as plant, lift motor rooms, fire stairs and the like) contained in or supported by the roof feature is fully integrated into the design of the roof feature.

It is considered that the roof pop up meets the requirements of the architectural roof features clause. Council being the consent authority can be satisfied that the new roof highlights:

· contribute a decorative element to the upper most part of the roof.

· is in keeping with the existing character of the building including replication and consistency with the existing original highlight features on the roof.

· are not an advertising structure.

· are note capable of being converted to additional floor area.

· minimising any overshadowing because it is minimal architectural feature on the upper most part of the roof and sufficiently setback from the street and all other structures adjoining the site.

Clause 5.21 Flood Planning

Much of the site is mapped as flood prone land (see below). Conditions of consent in relation for flood compatible materials and services requirements are included in the recommended conditions attached to this report.

Figure 12 Extract of flood mapping (Council Geocortex)

Clause 6.1 Acid Sulfate Soils

This clause provides that, where applicable, development consent must not be granted for the carrying out of works unless an acid sulfate soils management plan (ASSMP) has been prepared in accordance with the Acid Sulfate Soils Manual.

Minimal excavation is proposed other than for footings and services and no basement car park is proposed. A preliminary ASSMP provides that Acid Sulfate Soils can be adequately managed. Relevant conditions are included in the Recommendation to the Report to ensure management of acid sulfate soils prior to and during works on the site.

Clause 6.13 Design excellence—Byron Bay town centre

This clause applies to development involving the erection of a new building or alterations to an existing building on land identified as “Design excellence” on the Design Excellence Map. The lot containing the existing building is located on land identified on the Design Excellence map. The objective of this clause is to ensure that development exhibits design excellence that contributes to the natural, cultural, visual and built character values of Byron Bay town centre.

Development consent must not be granted for development to which this clause applies unless the consent authority considers that the development exhibits design excellence. Council being the consent authority must consider whether—

(a) the building incorporates sustainable design principles, including in relation to the following—

(i) sunlight,

(ii) natural ventilation,

(iii) wind,

(iv) reflectivity,

(v) visual and acoustic privacy,

(vi) safety and security,

(vii) resource, energy and water efficiency, durability and adaptability, and

(b) a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, and

(c) the proposed development responds well to the environmental and built characteristics of the site and achieves an acceptable relationship with other buildings on the same site and on neighbouring sites, and

(d) the form and external appearance of the development will improve the quality and amenity of the public domain, including by encouraging social activity and casual surveillance in public places, streets and laneways, and

(e) the configuration and design of public access and communal recreational areas within the residential areas—

(i) incorporate exemplary and innovative treatments, and

(ii) promote a sociable village atmosphere, and

(f) the development minimises street clutter and provides ease of movement and circulation of pedestrian, cycle, vehicular and service access, and

(g) the development coordinates shared utility infrastructure and waste management to minimise disruption at street level in public spaces, and

(h) the development appropriately addresses the following matters—

(i) heritage issues and streetscape constraints,

(ii) minimisation of bulk and massing, and modulation of, buildings,

(iii) pedestrian, cycle, vehicular and service access and circulation requirements.

In addition, development consent must not be granted to the following development unless the Byron Design Excellence Panel has endorsed the development as exhibiting design excellence—

(b) alterations or additions to an existing building that—

(ii) change the use of 500 square metres or more of gross floor area of the building,

In this clause—

Byron Design Excellence Panel means a panel, consisting of 2 or more persons, established by the consent authority for the purposes of this clause.

Council resolved on 7 November 2021 to promulgate a design excellence panel under clause 6.13 of the BLEP to ensure optimum compliance is achieved by new development with the Byron Bay Town Centre Planning controls.

Resolved 21-485 that Council appoints the Director Sustainable Environment and Economy and Mr Rod Simpson (Wilson & Simpson) as the members of the Byron Design Excellence Panel for the purposes of development application assessment under Byron Local Environmental Pan 2014 - Clause 6.13 Design Excellence – Byron Bay Town Centre.

This clause only applies to the existing building and does not include the car park land.

A Design Excellence Panel referral was made. The following commentary about the existing building in relation to the Design Excellence requirements was received:

Sustainable design principles (cl6.13 (4a))

The application is accompanied by an NCC report that states the building will be capable of meeting the requirements of Section J of the NCC. Design ‘excellence’ is by definition more than ‘compliance’. Council need not require the applicant to conform with, or use any particular rating system, although the applicant may find this the most convenient approach.

Harris Farm has over 30 establishments and so a benchmarking exercise would be well within its capability and align with its “Sustainability Manifesto”^{^[1]}Of particular relevance is the objective to “Reduce our Carbon Footprint”: Reduce our carbon footprint by staying on the cutting edge of energy and fuel-efficient initiatives….”

And “War on Waste”: “Integrate the waste hierarchy into our operations honing in on food and packaging waste.”

The approach to sustainability should be collaborative (between Council and the proponent) and not unduly onerous. The objective to “inspire our community and team” is a very welcome indication that Harris Farm is interested in ‘igniting positive change’ and engaging with the community.

Recommendations:

1. Further details and thought are needed in relation to energy, greenhouse gas emissions, water consumption and ideally, minimisation of embodied carbon.

2. Either commit to a particular rating system (GBCA, NABERS) or preferably, working from first principles, develop an environmental management approach as follows:

The framework should comprise the following components (based on and overall EMS approach) with progress reviewed regularly

a) Scoping (describing the nature of the project and identifying its environmental impacts and sustainability include human health and well-being , and what the proponent has control over or could affect)

b) Benchmarking (define a ‘business as usual’ (BAU) comparison with other properties in the Harris Farm portfolio)

c) Targets and objectives (define what the project aims to achieve compared to BAU)

d) Plan (both the design of the physical structure but also the ‘design’ of the ongoing management)

e) Implement (progressive sign-off and certainty for both council and proponent that the proposal will achieve targets)

f) Monitor (self-explanatory but needs to be part of body corporate responsibility for entire development)

g) Report (agreed formats for different ‘audiences’- technical, council, utilities, public, promotion)

h) Adjust (adjust management regime and or technology as required)

3. Reporting of performance and learning is an integral part of ‘Design Excellence’ and aligns with the Harris Farm objective to ‘inspire our community and team’ and should be strongly encouraged.

4. More consideration could be given to natural daylighting and ventilation.

Possible translation as conditions of consent:

Having regards to the above the Panel recommended a range of conditions.

· Develop and deliver a coherent reporting framework that delivers best practice sustainability outcomes that sets the standard for future developments in the region. The reporting framework should make the roles and responsibilities of the applicant, and future reporting bodies.

· Develop a schedule of regular meetings to have ongoing open and constructive communication with Byron Shire with nominated council sustainability officer or independent expert to review progress of the sustainability strategy/environmental management plan

· Develop a set of quantifiable metrics for analysing and reporting the performance of the development. This should include but not be limited to:

- tCO2-e /annum (residential, non-residential)

- kWhr- Mj/ annum total energy consumption by fuel source

- kl potable water /annum consumption (residential, non-residential)

- kl harvested water /annum (water balance reporting)

- kl recycled grey water if any

- kWhr/annum renewable energy generation

- kWhr/ annum EV charging

- carbon neutrality reporting (offsets and renewable power purchase)

- waste generation and minimisation strategies

Contextual fit

Overall the adaptation of the industrial building and modified frontage to north facade is appropriate and will be an attractive addition to the streetscape. The southern end of the town centre has a mix of light industrial buildings and the adaptation and upgrading of the existing building sets a good precedent for this part of town.

It is noted that the building will be extended towards the north by 9.327 but that the set back from the recently constructed Browning Street will allow for large street trees and planting in this set back area.

Architectural design

The existing building is built to the boundary of the rail corridor and presents a blank façade to ‘tilt slab’ wall to the west. The existing ‘street-art’ might be supplemented by a ‘legal wall’ or mural art commissioned by the applicant.

Recommendation:

1. Give consideration to the future treatment of the western façade and potential for large scale murals or commissioned art.

The above recommendations are included in conditions attached to this report except for the consideration of the future treatment of the western façade, which is not visible from the public domain at any point.

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

The proposal is not affected by any draft EPI’s.

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

The following comments are provided against the relevant chapters of the DCP 2014.

Chapter B1 Biodiversity, B2 Tree and Vegetation Management and Chapter B9 Landscaping

The proposed development requires removal of vegetation in land zoned SP2 (Car Park) and environmental regeneration of the adjoining conservation zoned land. The proposed building work avoids all land zoned C2 and C3. Conditions of consent are recommended that require a vegetation management plan to be implemented on the C2 and C3 zoned land. Native vegetation outside of the area described as ‘Proposed Works / Clearing Footprint’ is to be protected by a Tree Protection Zone (TPZ) exclusion fence. The fence is to be constructed in accordance with Sections 3.2 and 4.3 of AS 4970-2009 - Protection of trees on development sites.

A condition of consent is recommended to address biodiversity and tree management in a detailed landscaping plan. The detailed plan must include all landscaping within the site external to the areas zoned C2 and C3. The plan is to be prepared by a suitably qualified landscape architect/ecologist who has appropriate knowledge of the biodiversity of the north coast of NSW and experience and competence in landscaping. It must incorporate adequate detail to demonstrate compliance with the provisions of Chapter B9 of Development Control Plan 2014 and include the following:

a) Remove any non-native species and replace them with species that correspond to the naturally occurring vegetation community of the locality.

b) Ensure landscaping must be located within the site only and not on Rail land or on the Road Reserve. Any planting on the boundary that will encroach into the road reserve including any planting of the proposed green wall will require separate approval by Council’s infrastructure services.

c) Select tree species that correspond to the naturally occurring vegetation community of the locality that will provide extensive shade and aim for 100% canopy over the uncovered areas at ground level should be selected.

Chapter B3 Services

The subject site is serviced with all necessary infrastructure including water, sewer, power, telecommunications and stormwater. Conditions of consent are recommended in relation to augmenting and connecting services to the development in accordance with council’s requirements.

Chapter B4 Traffic Planning, Vehicle Planning Circulation and Access, Chapter B5 Providing for Cycling and Chapter B13 Access and Mobility

A parking oversupply of 23 parking spaces is proposed within the car park and meet the required 24 bicycle spaces are required. A total of 4 accessible spaces must be provided and sufficient cycle parking spaces are provided to enable this. The loading and waste storage areas are located to enable collection and unloading to occur on the site and for vehicles to enter and leave the site in a forward direction. It is noted the adjacent Mitre 10 has limited car parking for customers and potentially some crossover will occur.

The buildings will be accessible via ramps and a lift and must comply with the BCA. Upgrades in the road reserve are also required to improve accessibility. Conditions of consent in relation to provision of access and parking are recommended to ensure compliance with Council DCP requirements.

Chapter B8 Waste minimisation and management

The applicant submitted a waste management plan and council has recommended a detailed condition of consent that requires further management arrangements to ensure the full streams of waste including connection and maintenance of an organic digestor are suitable for the long term use of the development. Arrangements including sufficient capacity to be incorporated into the waste bin storage area to allow for additional waste streams to be added over the lifetime of the proposed use are addressed. Plans have been marked in red by the assessing officer and conditions of consent are recommended to ensure waste is effectively managed at all times.

Chapter B10 Signage

Harris Farm Market business identification signage is proposed to be erected onto the northern and southern façade of the building. No other signage is proposed. It is expected that the signage will be illuminated for night time trading. Conditions of consent are recommended to address lighting impacts across the site including a detailed lighting plan and operational management requirements.

Chapter B11 Planning for Crime Prevention

The DA was referred to NSW Police, but no response or comments were received. The applicants have proposed in the submitted documentation to provide suitable lighting throughout the development plus additional street lighting in Jonson Street for security purposes and for general nigh-time access to and from the site. The Proponents also intend to install boom-gate and security cameras at the entry and exit points to the carpark, to control and manage safety and security within the facility. It is intended that the carpark will be a privately operated facility, with time limits in place for free customer parking after which fees will apply. In general it is anticipated though the car park will be in operation generally within the proposed hours of operation of the uses onsite, save for time either side of trading hours for staff and cleaners to access the site as required. Appropriate conditions of consent are recommended for lighting and operation requirements to mitigate any anti-social behaviour or misuse of the car park.

Chapter B12 Social Impact

The applicant provided the following statement in support of the proposed development:

The community benefits associated with such a mixed-use proposal, with a sustainability focus, are significant: access and support for local producers, a conscious and dynamic food retailer for the local or visiting consumer; the redevelopment of a largely under-utilised landmark building with a strong community heritage; the enhanced employment opportunities for local people; as well as a commercial office zone for public availability to cater to the local or travelling worker.

Harris Farm strive to support local, sourcing goods from local farmers and suppliers, and creating job opportunities for local residents at their stores with the majority of employees being local residents. For example, 70% of team members at their store in Willoughby and 60% of team members at the St. Ives store live locally on the Upper North Shore of Sydney. Further, the Harris Farm group link in with Job Support to ensure that across all stores there is a safe working environment that allows for the addition of members of the job support network to work as an integral part of the Harris Farm store team. It is anticipated that the Harris Farm Market in Byron Bay will create circa 200 jobs for the local community.

The market will give local businesses the opportunity to grow through the Harris Farm concession model concept of the best baker, deli and the like. The current lease agreement with Harris Farm Markets sees their occupation of the premise for 20 years upon completion of the development. They ideally wish to be open by the end of 2022, allowing for a significant build period.

In addition to this, the building works associated with the Harris Farm development and fit-out will look to support local trades and inject significant dollars into the community at an estimated $8 million. This is in addition to the $7 million expenditure required to be invested by the developer to refurbish the existing building prior to handing over to the tenant to complete the internal fit-out.

It is considered the proposal represent a viable use of an existing factory building which will have positive socio economic impacts through job creation initially and ongoing post constructions. The proposal also provides a further competitor in the food sector against the other major supermarket chain in Byron Bay giving customers greater choice for groceries and the like. It is considered the proposal will not have a undesirable social impact on the shire.

Chapter C2 Areas affected By Flood

The flood planning level for the development has been considered by Council’s Development Engineer. In accordance with C2.3.2 of the DCP, the Required Flood Planning Level is 3.315m AHD. The proposed Flood Planning Level is 3.32m AHD. The proposal meets the FPL requirement for the development. A condition of consent is recommended to require a certificate from a registered surveyor to be submitted to the Principal Certifying Authority confirming the height of floors. An Occupation Certificate must not be issued unless the floor levels are at or above the relevant flood planning levels. A copy of the floor level certification from the registered surveyor must also be submitted to Council for the attention of Council’s Drainage and Flood Engineer.

Chapter D8 Public Art

A voluntary planning agreement letter of offer has been received for the provision of public art made pursuant to S7.7 (3) of the Environmental Planning and Assessment Act) in accordance with Chapter D8 Public Art for the sum of $166,600.00. A condition of consent is recommended for the VPA to be legally executed prior to issue of a construction certificate.

Chapter D4 Commercial and Retail Development

Hours of operation - applicant’s request for a 6am start Monday to Sunday with a 10pm finish is not supported, considering the sites proximity to residential development in Jonson and Browning Street. The recommended hours are to be Monday to Sunday 7am start and 9pm finish. Conditions also recommended in relation to the car park usage with the top floor to be vacated by 6pm Sunday to Wednesday.

Chapter E10 Byron Bay Town Centre

Chapter E10 applies to the existing ‘Wicked Weasel’ building. The applicant submitted a character statement prepared by the architect for the development. The retention of the building and the sympathetic alterations and additions including the proposed use of materials and finishes is considered to be in keeping with the aesthetic and desired future character of Byron Bay Town Centre. The proposal raises no issues in terms of the provisions of E10 and the proposal represents a viable use for the factory warehouse building

4.5 Environmental Planning and Assessment Regulation 2000

	Applicable to the proposal:	Considered the control as it relates to the proposal:	If this control is applicable, does the proposal comply?
Clause 92 - Additional matters that consent authority must consider	☐ Yes ☒ No	☐ Yes ☐ No ☒ NA	☐ Yes ☐ No ☒ NA
Clause 93 Fire safety and other considerations	☐ Yes ☒ No	☐ Yes ☐ No ☒ NA	☐ Yes ☐ No ☒ NA
Clause 94 - Consent authority may require buildings to be upgraded. Conditions of consent for upgrades recommended.	☒ Yes ☐ No	☒ Yes ☐ No ☐ NA	☒ Yes ☐ No ☐ NA
Clause 94A - Fire safety and other considerations applying to erection of temporary structures	☐ Yes ☒ No	☐ Yes ☐ No ☒ NA	☐ Yes ☐ No ☒ NA

Conditions of consent to apply in terms of upgrading the building to satisfy the BCA and Fire safety requirements.

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

Impact on:	Likely significant impact/s?
Natural environment	No. The proposal will not have a significantly adverse impact on the natural environment of the locality.
Built environment	No. The proposal will not have a significantly adverse impact on the built environment of the locality.
Social Environment	No. The proposal will not have a significant social impact on the locality.
Economic impact	No. The proposal will not have a significant economic impact on the locality.
Construction Impacts	The development will generate minor impacts during its construction. Conditions of consent recommended to control hours of work, builders waste, construction noise, installation of sedimentation and erosion control measures and the like to ameliorate such impacts.

Council Policies that are applicable to the proposed development have been considered during assessment.

4.7 The suitability of the site for the development

The site is a serviced, generally unconstrained property and is suitable for the proposed development subject to compliance with recommended conditions of consent.

4.8 Submissions made in accordance with this Act or the regulations

The development application was publicly exhibited. There were 2 submissions made against the development application:

Issue	Consideration
Car Park Façade I Visual Impacts - a commitment that the façade will be totally enclosed with a solid wall on the carpark eastern and southern sides and entrance. That the approved car park façade completely screens any view of parked cars, their headlights and carpark and retail signage lighting from Seadrift.	The lighting and acoustic impacts have been addressed and a solid wall is proposed on the upper level in accordance with the acoustic report to limit car park noise. A condition is also recommended to limit evening use of the upper level of the car park Sun-Wed.
Fencing - replacement of the entire western Seadrift SP78115 boundary fence (currently a combination of colorbond and paling fence) with a suitable and agreed 2500mmH soundproof fence.	Having regards to the design of the development and the hours of operation as per conditions of consent, it is considered there is no nexus to construct a noise fence on the opposite side of Jonson Street.
Plant Screening - Robust landscaping is already detailed in the DA, in the environmental protection and management zones. Seadrift asks the owner developers to seek Council approval to extend robust landscaping along the Jonson Street 'paper road' reserve facing Seadrift. We would like the Council, regardless of approval or not, to designate more off-set land, including along the Jonson reserve road and boundary of Seadrift, 6-8 Browning Street.	The road reserve is outside the site and there is no nexus for the developer to plant out the road frontage of the Seadrift Apartments.
Pedestrian crossing - Pedestrian safety should be a priority. Clear and marked pedestrian crossings should give pedestrians priority.	Conditions of consent required for improved pedestrian access along Jonson Street to the site from Browning Street connecting with the existing pedestrian network
Cumulative traffic impacts on the bypass and local road network	The road network has been considered as being capable of catering for the additional traffic this development will generate.
Jonson Street 'Paper Road' Security Gate – Should be kept to prevent camping and illegal dumping.	Conditions of consent recommended to enable the gate or moveable bollards to be relocated to the south of the new Jonson Street Road formation to prevent unauthorised access if required.
Hours of Operation – Hours should be reduced.	Conditions of consent recommended to limit opening and closing hours from 7am to 9pm seven days a week
Rubbish Collection - no rubbish collections are made outside business hours (no early morning collection).	Conditions to apply - Goods delivery and waste collection limited to 7am to 6pm.
Deliveries - The loading dock design should ensure there is no impact on Seadrift residents caused by reversing delivery truck lights or noise. No early-morning or late-night deliveries.	Reversing within the site will be required to enable larger delivery vehicles to enter and exit the site in a forward direction. Conditions to apply for Goods delivery and waste collection limited to 7am to 6pm.
Design and Bulk - The proposed two storey car park is far too bulky and interfaces negatively with both residential and natural habitat. It is a far too large a structure for this site and dominates the site. The developers state they have provided 'surplus' parking to be used for other proposed developments within this site. The parking proposed should be appropriate just for the particular development to avoid the intense bulk and scale that such a proposed carpark will inevitably result in.	The proposed car park is entirely consistent with the SP2 Infrastructure (Car Park) zone and does not exceed the development standards that control height and bulk. The building will be appropriately screened and landscaped to mitigate nay perceivable impacts. An alternative car park design would incorporate a basement which generates other environmental issues to resolve, and construction costs with such a car park often lead developers to then seek a further intensification of development on the site with residential and tourist accommodations. The car park as proposed is considered a practical solution to support the Harris Farm development at the southern end of the town centre.
The DA should not be considered a fix for Council, as part of a 'park and walk strategy'. This is a commercial development and an 'above ground/multi storey car park' for a food retailer.	The car park as proposed is to support the current development only.
The developer of DA 10.2021.348.1 has not indicated or lodged plans for the adjacent site, with current tenants 'Mitre 10', 'Repco' and 'Singhs'. All these tenants are on short leases. With approval of the current DA before Council and the likelihood of a second DA application for the remaining sites, this could well end up a major shopping mall.	There are no DA’s for adjacent sites with Council for determination.
Zoning- The proposed change of zoning from the existing permissible use as a Rail Corridor to the proposed permissible use as a Carpark needs further community consultation. Taking away the rights of the community regarding the Rail Corridor change needs far more consultation than has occurred at this stage. The environmental protection zones are welcomed. We would like to see the E2 proposed zoning change to a E3 category.	Zoning is gazetted and cannot be amended by a DA. The rail land is surplus and does not affect the potential for the rail corridor to operate in future if required. The actual rail corridor remains functional in the event public transport (eg trains) returns to the rail corridor.
Bushfire Hazard	The proposed development has been assessed by an accredited bushfire consultant and will be compliance with Planning for Bushfire Protection 2019.
Potential contamination from past land uses	The applicant has prepared a preliminary assessment in accordance with the Resilience and Hazards SEPP and this has been assessed as satisfactory with conditions of consent recommended for the implementation of any requirements arising from the development on this land.
Water flows to drain in Jonson St, along the western boundary of the road reserve and eventually into the mapped coastal wetland south of the subject site. The entire subject site occurs within a 'Proximity Area of Coastal Wetlands.'	Stormwater is to connect to a legal point of discharge in the road reserve in accordance with Council requirements.
A loss of habitat through the destruction of several trees along the southern boundary of the proposed development. The environmental zones should be planted with indigenous trees suited to kookaburras and other birdlife and kangaroos/wallabies that are frequently spotted on this land.	A vegetation management plan is required to be implemented. Native species will be required. No building or construction works are proposed in the environmental conservation and protection zones in the southern part of the site.

4.9 Public interest

The proposed development is unlikely to prejudice or compromise the public interest or create an undesirable precedent.

5. DEVELOPER CONTRIBUTIONS

5.1 Water & Sewer Levies

Section 64 levies will be payable.

5.2 Developer Contributions

Section 7.12 Contributions will be payable.

6. DISCLOSURE OF POLITICAL DONATIONS AND GIFTS

Disclosure details

Response

Has a Disclosure Statement been received in relation to this application?

If Yes, Provide Disclosure Statement register reference: 91.

Yes ☐ No ☒

Have staff received a ‘gift’ from anyone involved in this application that needs to be disclosed.

Yes ☐ No ☒

7. CONCLUSION

The proposed development is satisfactory having regard to the relevant environmental planning instruments and planning controls applicable to the site. The proposal raises no significant issues in terms of environmental impacts which cannot be managed, and the site is considered suitable for the development. The application appropriately addresses the relevant constraints applying to the site and is recommended for approval subject to the conditions attached to this report.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.8

Sainta1062

Report No. 13.8 Byron Shire Wildlife Corridor System

Directorate: Sustainable Environment and Economy

Report Author: Lizabeth Caddick, Biodiversity Officer

File No: I2022/738

Summary:

Landmark Ecological Services have developed a revised Wildlife Corridor System for Byron Shire, that is aimed at assisting in the strategic planning of future habitat restoration projects. As well as guiding conservation planners to maximise biodiversity conservation across the shire, the Wildlife Corridor System will support implementation of Council’s Biodiversity Development Control Plan and will help to engage the community on ways they can help conserve our local biodiversity.

The wildlife corridor map is based on current species distribution, ecology and status data for Byron Shire, and takes into consideration existing land use constraints and connections, likely impacts of climate change, and location of corridors in adjacent local government areas.

Some updates to Council’s Biodiversity DCP are required to ensure that the DCP reflects the new mapping, and to clarify the different management intents proposed for cleared and vegetated parts of corridors.

Staff are seeking Councillor support to put the Wildlife Corridor System on public exhibition along with proposed updates to Council’s Biodiversity DCP. Following public exhibition, Councillors will be presented with a summary of community feedback and will have the opportunity to decide on a final Wildlife Corridor System, along with any proposed changes to Council’s Biodiversity DCP. Any subsequent DCP amendments will need to be exhibited in accordance with the relevant legislative requirements.

RECOMMENDATION:

1. That Council endorses the Byron Shire Wildlife Corridor System for public exhibition, with proposed updates to Council’s Biodiversity DCP (as set out in this report) included as supporting information.

2. That following exhibition, Council receives a submissions report to consider key issues raised and formally adopt the new Wildlife Corridor System.

3. Following completion of ‘2’ above, that Council:

a) update DCP Chapter ‘B1 – Biodiversity’ to reflect the adopted Wildlife Corridor Map and any additional supporting amendments; and

b) exhibit the DCP chapter updates in accordance with relevant legislative requirements.

Attachments:

1 FINAL REPORT - Byron Wildlife Corridor System - 10/05/2022, E2022/44542

2 Summary of Stakeholder Engagement - Wildlife Corridor System, E2021/137201

Report

A wildlife corridor is a linear area that links wildlife habitat and maintains connectivity between plant and animal populations. Wildlife corridors are critical in maintaining ecological processes, such as migration, colonisation, pollination, breeding and resilience to environmental disruptions like fire, flood and disease. It is important to understand where these ecological processes occur in our local landscape, so we can maintain a functioning ecosystem. Updating Council’s wildlife corridor mapping is listed as a very high priority action in the 2020-2030 Byron Shire Biodiversity Conservation Strategy.

Landmark Ecological have developed a draft Wildlife Corridor System for Byron Shire (Attachment 1 and Figure 1 below). The intent of the Wildlife Corridor System is to:

· Provide a decision-support tool for restoration planning – i.e. to help Council, environmental groups and landholders locate restoration sites in the most strategically important locations, where they can have the greatest biodiversity benefit.

· Strategically support Council and environmental groups in seeking grant funding for biodiversity conservation projects.

· Support the implementation of Council’s Biodiversity DCP (Chapter B1) during the development assessment process, by supporting planning decisions that best protect and enhance our biodiversity, while continuing to facilitate permitted land uses, e.g. on rural or residential zoned land.

· Motivate the community, in both rural and suburban corridors, to take steps to help create and maintain wildlife connectivity in their backyards, through showing people a bigger picture view of the importance of their backyard habitat in the overall landscape.

· Inform future Council strategic planning projects, for example vegetation and riparian overlays for the E-zone review, and subdivision structure planning for lands identified under business and residential land strategies.

The Wildlife Corridor System was developed using a methodology that assesses and ranks the dispersal capacity of threatened plants and animals that have core habitat in Byron Shire. Thus, it provides a network that primarily supports those threatened species that have the most limited dispersal capability, and which also have core habitat in Byron Shire. In other words, rather than catering for every species in the shire, the wildlife corridor map defines those landscape linkages that best cater for highest priority at risk species and highest value habitats in Byron Shire. This methodology is similar to that used in development of Lismore Council’s Wildlife Corridor System (Milledge, 2012) and the regional wildlife corridor mapping developed by NSW National Parks (Scotts, 2003). Unlike these earlier models, the Byron Shire Wildlife Corridor System includes plants and ecological communities as well as animals. 62 conservation priority fauna species, 65 flora species and 11 vegetation types based on a range of geologies were used to derive the corridor system. The methodology takes into consideration:

· Current and historic species records and habitat,

· Threatened ecological communities, Big Scrub remnants, Coastal SEPP, existing areas of native vegetation regeneration.

· Existing connections (e.g., highway underpasses and waterways),

· Existing land use constraints (e.g., avoiding residential and industrial land, prime agricultural land, and roads where possible),

· Location of wildlife corridors in adjacent shires, plus OEH 2019 climate change corridors and DEC Key Habitats and Corridors for Forest Fauna (Scotts 2003),

· Likely impacts of climate change (through consideration of flood prone land, aspect, riparian habitats etc.).

In the Byron Wildlife Corridor System report (Attachment 1), Landmark recommend that the habitat blocks and connectors comprising the corridor system be prioritised for revegetation. Revegetation should focus on infilling gaps and buffering existing remnant vegetation, with the habitat blocks being considered of highest priority for restoration, as these provide the largest and most important refugia. Other high restoration priorities include the major coast to hinterland connectors, riparian buffers, big scrub remnants, and the north-south Koonyum-Goonengerry-Wilson’s River-Booyong major connector.

Restoration plantings should be appropriate for the soils and other attributes of respective

sites, and should attempt to reconstitute the floristic composition of vegetation communities likely to have been present prior to European settlement. Byron Shire Council and local Landcare groups can provide advice on suitable planting species, and the recently released TreesNearMe app (Trees Near Me NSW app | NSW Environment and Heritage) is an informative resource for detailed species composition lists within different vegetation types, both present day and pre-clearing.

Figure 1 Byron Wildlife Corridor System 2022

Key issues – Planning Scheme

The corridors link areas of high value habitat, and the linkages go across good quality native vegetation where possible. However, due to the fragmented nature of our landscape, some corridors also cross disturbed land, including agricultural and residential areas. Because the proposed wildlife corridors cross a range of land tenures, it is important to consider how these different land tenures will be treated in Council’s planning scheme.

The Wildlife Corridor map is not a Local Environment Plan (LEP) overlay, and the Wildlife Corridor System is not intended to restrict existing land uses defined in the LEP. However, wildlife corridors are referred to in Council’s planning scheme, under Byron Shire Development Control Plan 2014, Chapter B1 Biodiversity, and some housekeeping amendments will be required to the Biodiversity DCP to:

· Ensure that the definition of a wildlife corridor in the DCP reflects the new mapping,

· Ensure that management intent is clear for both corridors in rural and built-up areas.

· Ensure that management intent is clear for both vegetated and cleared parts of corridors.

Pending Council’s adoption of a new Wildlife Corridor System, proposed amendments to Chapter B1 Biodiversity are summarised below. These amendments have been discussed with key stakeholders, including Councillors (Strategic Planning Workshop 7 October 2021), planning staff, local ecological experts, local town planning consultants, representatives of BOBBAC and RFS (refer Stakeholder Engagement Summary, Attachment 2).

1. Wildlife Corridor Definition

Byron Shire Development Control Plan 2014 Chapter B1 Biodiversity, currently refers to wildlife corridors using the following definition:

Wildlife corridor: refers to linear areas that link wildlife habitat and provide a crucial role in maintaining connectivity between plant and animal populations that would otherwise be at greater risk of extinction. Such corridors are critical for the maintenance of ecological processes, enabling migration, colonisation and interbreeding of plants and animals.

It is proposed to amend this definition to refer instead to the new Byron Shire Wildlife Corridor Map.

2. Biodiversity Planning Principles

Section B1.1.1 lists the biodiversity principles that underpin the provisions within the Biodiversity DCP chapter. It is recommend amending these to include specific references to wildlife corridors and their strategic importance for restoration (e.g. for compensatory plantings). These include:

P6. Habitat fragmentation and connectivity

Council decision-making should not contribute to habitat fragmentation and wherever possible, increase landscape connectivity, for example through protecting and enhancing native vegetation and wildlife habitat in Wildlife Corridors. Natural areas are strongly influenced by the landscape in which they are embedded. The larger, less disturbed and better-connected natural areas are, the more likely they are to retain a higher level of biodiversity and resilience to impacts.

P14. Biodiversity offsets and compensation

Subject to P13 above, where avoidance and minimisation have been clearly considered and illustrated, unavoidable residual impacts arising from development may be allowable. In such instances, an acceptable arrangement to compensate for, or offset the loss of biodiversity values should only occur on or near the impact site, and should be strategically located to maximise opportunities to enable plant and animal communities to survive in the long term, e.g. within a wildlife corridor or adjacent to existing wildlife habitat and riparian areas.

3. Ecological setbacks for Red Flagged areas

Because the wildlife corridors cross different land use zones, it is necessary for the DCP to clearly articulate different management intent for corridors in areas of native vegetation compared with those in agricultural and high-density land use zones.

Table 3, B1.2.1 of the DCP describes Red-Flagged areas (i.e. features that are ecologically significant), which must be set back from the development envelope. Table 3 describes the extent of setback for various ecological features. In the current DCP, a 20m setback is required from any wildlife corridor, as per the table below:

This is not a reasonable requirement where wildlife corridors go across cleared agricultural, residential or industrial land. The intention of the wildlife corridor mapping is to identify where we should focus our conservation/restoration efforts and to incentivise this, but not to restrict pre-existing land uses. Setbacks should thus be adjusted subject to the existing land use and vegetation. The corridor map also includes buffers to the corridors, so buffering of land adjacent to a corridor is not considered necessary. The following amendments to Table 3 are proposed:

Red Flag	Ecological Setback
Wildlife Corridors
Native vegetation within a wildlife corridor.	20
Areas where no native vegetation is present and all sites in Land Zones R1, R2, R3, B1, B2, IN1 and IN2 within a wildlife corridor.	This land is not considered a red flag and no setback is required. However, the applicant should avoid and minimise impacts on corridor function through: a) avoiding development in these areas where other suitable options occur. b) demonstrating steps taken to protect and enhance connectivity (e.g. through using fauna-friendly fencing, installing nest boxes, planting native species, restoring riparian areas).

To ensure clarity, a definition of ‘native vegetation’ should be included in the DCP. It is proposed that native vegetation be defined that included in the NSW Plant Community Types.

4. Koala habitat

Part B1.2.3 of the Biodiversity DCP refers to the protection of koala habitat. This section of the DCP is aimed at protecting koala habitat areas that are not protected under the Byron Shire Coastal Koala Plan of Management, which only defines core koala habitat in the coastal zone.

Wildlife corridors are referred to in part c.i., which states that:

i. The keeping of dogs is prohibited on the title of land for any new lots arising from a subdivision of land, where that land is adjacent to or forms part of koala habitat, wildlife corridors or refugia.

While pet exclusion zones have been successful in some large subdivisions in neighbouring shires (e.g. Koala Beach at Pottsville), in practical terms it would be very difficult to exclude a dog, for example, from the subdivision of a working agricultural property. It is recommended that the reference to wildlife corridors is removed from this section.

5. Guidelines for preparing Vegetation Management Plans and Biodiversity Conservation Management Plans

Greater reference to wildlife corridors in the VMP and BCMP guidelines will help to encourage compensatory or offset planting in strategically important areas. Proposed changes include:

- Inclusion of wildlife corridors in thematic site maps. The wildlife corridor maps will be publicly available via Council’s website once adopted by Council.

- In the guidelines for restoration activities, include information on siting restoration areas within/adjacent to mapped wildlife corridors, vegetation remnants and riparian zones.

These amendments to the DCP will need to be exhibited in accordance with the relevant legislative requirements.

Council’s planning department have advised that the planning scheme currently allows some variation in development controls, subject to proponents demonstrating good land management. For example, a proponent may be granted a reduction in the number of trees to be planted per new tourist cabin, if they can demonstrate that they have already undertaken significant habitat restoration prior to submitting a DA. This flexibility may incentivise responsible land managers to incorporate corridor protection and restoration into their proposals, in return for the opportunity to negotiate development controls. It is important that such variations be considered on a case-by-case basis, and in consideration of all site specific issues and environmental constraints. Using positive incentives to encourage better vegetation management within wildlife corridors was strongly supported during expert stakeholder consultation.

Community Engagement

Interactive map and website

One of Council’s key intentions, in developing a Wildlife Corridor System, is to motivate our community to help create and maintain wildlife connectivity in their backyards and properties, through showing people a bigger picture view of the importance of their backyard habitat in the overall landscape.

To support restoration and encourage community interest, Council has developed a simple, interactive Wildlife Corridor web map (Figure 2, Wildlife Corridors Interactive Map (arcgis.com)). With this map, users can search for their property and find out:

· the type of corridor that crosses their property,

· the importance of the corridor,

· threatened species that may use the corridor,

· a simple planting list, based on the Brunswick Valley Landcare guides: My Local Native Garden and Climate Resilient Landscapes (refer Native plants | Brunswick Valley Landcare).

This map will be available on Council’s environment web page Environment - Byron Shire Council (nsw.gov.au), and linked to the Restoring Wildlife Habitat web page Restoring wildlife habitat - Byron Shire Council (nsw.gov.au), where landholders can find out more about what to plant where, how to create wildlife habitat, as well as links to native species planting guides. The new Brunswick Valley Landcare Climate Resilient Landscapes book provides important information for landholders on designing plantings that are resilient to fire and intense rainfall, and there is an opportunity to promote this information through Councils wildlife corridor web page.

Figure 2 Wildlife Corridors Interactive Map

Hunks of Mullum Project

The ‘Hunks of Mullum’ project presents a good opportunity for Council to partner with the community to promote the Byron Wildlife Corridor System and how people can get involved, even in suburban areas. This project is a partnership between WildBnB, Brunswick Valley Landcare, Mullumbimby Chamber of Commerce, Creative Mullumbimby and Byron Shire Council, and aims to install 12 ‘Hunk-of-Trunk’ wildlife habitat hollows along the Brunswick River and Mullumbimby Creek (Figures 3 and 4). The habitat hollows were hand-crafted by WildBnB from eight Tallowwood trees that had to be removed from the Mullumbimby Public School in January 2022. The ‘Hunks of Mullum’ corridor aligns exactly with the Byron Wildlife Corridor System’s Mullumbimby Creek – Brunswick River Connector, which is an important local corridor link, connecting wet forest habitats of Upper Wilson’s Creek with sclerophyll communities at Brunswick Heads.

For residents living in or next to suburban wildlife corridors, installing fauna nest boxes is a good way they can contribute to improving their local corridors. Other tips on creating fauna habitat are also provided on Council’s restoring wildlife habitat web page Restoring wildlife habitat - Byron Shire Council (nsw.gov.au)

Figure 3 Hunks of Mullum Indicative Corridor

Figure 4 WildBnB’s hand-crafted Hunks-of-Trunks, salvaged from rescued waste logs

Next steps

The next stage of this project is to promote the Wildlife Corridor System via Council’s have your say page. This will give the community the opportunity to become familiar with the map, and to provide feedback, both on the map and on proposed changes to the Biodiversity DCP.

Following public exhibition, Councillors will be presented with a summary of community feedback, and will have the opportunity to decide on any changes proposed to Council’s DCP. Any subsequent DCP amendments will need to be exhibited in accordance with the relevant legislative requirements.

References

Milledge, D.R. 2012. Lismore Local Government Area - Key Habitats and Corridors System. Unpubl. rep. to Lismore City Council. Landmark Ecological Services, Suffolk Park, NSW.

Scotts, D. 2003. Key habitats and corridors for forest fauna. A landscape framework for

conservation in north-east New South Wales. Occasional Paper 32. NSW National Parks and Wildlife Service, Sydney, NSW.

Strategic Considerations

Community Strategic Plan and Operational Plan

CSP Objective	CSP Strategy	DP Action	Code	OP Activity
3: Nurtured Environment We nurture and enahnce the natural environment	3.1: Partner to nurture and enhance our biodiversity, ecosystems, and ecology	3.1.1: Native species - Use best practice land management to improve ecological resilience and reduce threats to biodiversity	3.1.1.9	Seek funding to implement the Biodiversity Conservation Strategy, Coastal Koala Plan of Management and Flying Fox Camp Management Plan.

Recent Resolutions

RESOLUTION NUMBER: 20-332

Resolved that Council:

1. Note the submissions received during the public exhibition period (24 March to 20 May 2020) of the Biodiversity Conservation Strategy 2020-2030, issues raised and staff responses.

2. Adopt the Biodiversity Conservation Strategy 2020-2030 with the amendments outlined in Attachment 2 (E2020/40811) of this report.

3. Make public the submissions referenced in point 1, subject to the approval of the authors

4. Also make the previous Biodiversity Conservation Strategy and the audit thereof publicly available (Coorey/Lyon)

Legal/Statutory/Policy Considerations

Refer Key Issues section above for discussion relating to Byron Shire Development Control Plan 2014, Chapter B1 Biodiversity.

Financial Considerations

N/A

Consultation and Engagement

The draft wildlife corridor map was presented to Councillors at a Strategic Planning Workshop on 7 November 2021, to local expert stakeholders through an Expert Stakeholder Workshop on 26 November 2021, and to Council’s Agriculture Cluster Group on 9 November 2021. Attachment 2 provides a summary of these discussions.

Key points raised during stakeholder engagement include:

- General support for the Wildlife Corridor System, particularly to support grant applications for conservation and regenerative agriculture projects.

- Use of some kind of interactive map to engage the community was recommended.

- Promoting the Wildlife Corridor System in partnership with the community is recommended.

- Ensuring that the community have access to advice regarding incorporating fire breaks and buffers into plantings.

- More information on what to plant where should be provided alongside the corridor map.

- Use a positive (carrot not stick) approach for developers who help to conserve and enhance wildlife corridors, e.g. through incentives. Local planning consultants can help disseminate this information if they are provided with a clear briefing.

The draft Wildlife Corridor System was also peer-reviewed by two local ecologists and their comments incorporated.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.9

Report No. 13.9 DA 10.2021.511.1 Dual occupancy (detached) and swimming pool

Directorate: Sustainable Environment and Economy

Report Author: Patricia Docherty, Planner

File No: I2022/822

Proposal:

Proposal description:	Dual occupancy (detached) and swimming pool
Property description:	LOT: 8 DP: 840653
	865 Broken Head Road BROKEN HEAD
Parcel No/s:	200460
Applicant:	Town Planning Studio Pty Ltd
Owner:	CHLH Management Pty Ltd
Zoning:	Byron LEP 2014 RU2 Rural Landscape / PART DM Deferred Matter Byron LEP 1988 1a (General Rural) Zone and 7K (Habitat) Zone Note. Larger dwelling located in part RU2/ Part 1a; Smaller dwelling located entirely within RU2; and No works in 7K zone.
Date received:	20 August 2021
Integrated / Designated Development:	☐ Integrated		☐ Designated			☒ Not applicable
Concurrence required	Yes – CNR-27112
Public notification or exhibition:	- Level 2 advertising under Council’s Community Participation Plan. - Exhibition period: From: 22 September 2021 To: 5 October 2021 - Submissions received: Five (5) - Submissions acknowledged: ☒ Yes ☐ No ☐ N/A
Other approvals	☐ N/R	☐ W & S (68)		☒OSMS (68)	☐ ST (68)		☐ RA (138)
	Other:
Variation request to Development Standards under an EPI (e.g. clause 4.6)	Clause 64A Variation for minor part of the upper most floor of one dwelling exceeding 4.5 metre development standard by 900mm (20%) - LEP 1998 Clause 40 Height.
Estimated cost	$4,400,000.00
Delegation to determine	Council
Issues	1. Road closure required for part of internal driveway built on road reserve. 2. Height variation required under Clause 64A of BLEP 1988

Summary:

The development application originally sought approval for:

· Dwelling house, ancillary detached garage and swimming pool; and

· Secondary dwelling with ancillary detached carport and laundry.

Due to Byron LEP 2014 Clause 5.5 Controls relating to secondary dwellings on land in a rural zone coming into force after the DA was lodged and the absence of any savings provisions permitting secondary dwellings over 70 m² on rural land, the applicant was requested to change the proposed development description.

It was agreed the development description be changed and the proposed development under assessment is for a Dual occupancy (detached) and swimming pool.

The larger of the two dwellings is proposed to be located on the north east of the site with a setback to the eastern boundary of 57.416 metres and a setback to the northern boundary of 26.233 metres. This dwelling has a floor area of 510.29 m² and is to be constructed over 3 levels. This dwelling is to be in generally the same location as a dwelling approved under DA 6.1997.2459.1. Documentation supporting the lawful commencement of that consent was provided by the applicant. Approval of the dual occupancy requires the surrender of Consent No. 6.1997.2459.1.

There are a total of five bedrooms with four of these on the ground level of the larger dwelling and a detached garage located to the north of the driveway. The back wall of the garage is setback from the northern boundary 10.815 metres. The swimming pool is proposed to be located to the south east of the larger dwelling with access from the main ground floor level. The upper level is limited to a bedroom suite and deck. A gym, plant room and water tanks are proposed at lower ground level.

The second smaller dwelling is proposed to be located adjacent to a dam on the site approximately 70 metres south west of the larger dwelling. This dwelling has a floor area of 133.79m² and is to be constructed on one level with two bedrooms. A detached car port and laundry are proposed 7.502 metres to the north east of the smaller dwelling.

The DA is required to be determined by Council due to the need for a Clause 64A Variation for minor part of the upper most floor of one dwelling exceeding 4.5 metre development standard by 900mm (20%) - LEP 1998 Clause 40 Height. It is noted the proposal complies with the overall 9 metre height standard under the BLEP 1988, and had the E Zoning review for the property been finalised the subject proposal in terms of height would have been considered as complying under the BLEP 2014.

A road closure is required for part of internal driveway built on an old section of road reserve. The applicant has initiated the road closure with Council Infrastructure Services (IS). A condition of consent is recommended to ensure the matter is resolved in an appropriate timeframe.

A Vegetation Management Plan is required by recommended conditions of consent for compensation of removal of a small areas of native vegetation comprising twelve trees.

The application appropriately addresses the relevant constraints applying to the site and is recommended for approval subject to the conditions listed in the Recommendation of this Report.

NOTE TO COUNCILLORS:

RECOMMENDATION:

That Pursuant to Section 4.16 of the Environmental Planning & Assessment Act 1979, Development Application No. 10.2021.511.1 for Dual occupancy (detached) and Swimming Pool, be granted consent subject to the conditions of approval attached to this report.

Attachments:

1 10.2021.511.1 - Recommended Conditions of Consent, E2022/60358

2 10.2021.511.1 - Marked Up Development Plans - 865 Broken Head Road, Broken Head_PAN-120142, E2022/60359

3 70.2021.511.1 - Concurrent Section 68 OSMS Stamped Plans, E2022/62737

4 Confidential - 10.2021.511.1 submission received, E2022/62786

Figure 1 – Locality Plan

Assessment:

1. INTRODUCTION

History/Background

Development Approvals Record:

6.1982.2049.1 – Dwelling

5.1991.467.1 – Miscellaneous (withdrawn)

5.1993.409.1 – Subdivision, Approved 15/03/1994

5.1997.107.1 – Dwelling and Demolition of Existing Dwelling (withdrawn)

5.1997.375.1 – Dwelling and Demolition Existing Dwelling, Approved 19/11/1997

6.1997.2459.1 – BA Dwelling, Approved 26/03/1998

16.2003.101.1 – Swimming Pool, Approved 29/07/2003

10.2009.442.1 – Securing of Dwelling from Pool and Removal of Pool Fencing, Approved 23/10/2009

10.2020.325.1 – Cabana, Approved 14/08/2020

The demolition of the dwelling approved under DA 6.1997.2459.1 has already been undertaken. The applicant has provided evidence of commencement of DA 6.1997.2459.1. This approval will be surrendered and a condition of consent is recommended to require this.

Description of the proposed development

The application originally sought approval for:

· Dwelling house, ancillary detached garage and swimming pool; and

· Secondary dwelling with ancillary detached carport and laundry.

The proposed development under assessment in this DA is Dual occupancy (detached) and Swimming Pool.

Diagram

Description automatically generated

Figure 2 - Site plan

The second smaller dwelling is proposed to be located adjacent to an artificial dam on the site approximately 70 metres south west of the proposed larger dwelling. This dwelling has a floor area of 133.79m² and is to be constructed on one level with two bedrooms. A detached car port and laundry are proposed 7.502 metres to the north east of the smaller dwelling.

The total floor area of both dwellings combined is 644.08 m².

Figure 3 - Larger Dwelling South Elevations and East Elevations

Diagram, engineering drawing

Description automatically generated

Figure 4 - Larger Dwelling North and West Elevations

Figure 5 Smaller Dwelling Elevations

Description of the site

A site inspection was carried out on 11 November 2021

Land is legally described	LOT: 8 DP: 840653
Property address	865 Broken Head Road BROKEN HEAD
Land is zoned:	Byron LEP 2014 RU2 Rural Landscape / PART DM Deferred Matter Byron LEP 1988 1a (General Rural) Zone and 7K (Habitat) Zone
Land area is:	35.29 ha
Property is constrained by:	Bushfire prone land; High Conservation Value / High Environmental Value; Cattle Dip Buffer
	Is a BDAR required due to the location of the proposed development?	☒ Yes ☒ No
	Are there any easements in favour of Council affecting the site?	☐ Yes ☐ No
	Is there a Vegetation Management Plan which might affect the proposal?	☐ Yes ☒ No*
	Is there a Voluntary Planning Agreement which might affect the proposal?	☐ Yes ☐ No

* A Vegetation Management Plan is required to be prepared by recommended conditions of consent attached to this report.

Map

Description automatically generated

Figure 6 - Zoning Map Extract (Geocortex 6.6.22)

Figure 7 – Photo location of larger dwelling looking south

Figure 8 – Photo location of second smaller dwelling looking south

2. SUMMARY OF REFERRALS

Referral	Issue
Environmental Health Officer	No objections subject to conditions.
Development Engineer	No objections subject to conditions.
S64 / Systems Planning Officer	No objections or conditions.
S7.11 / Contributions Planner	No objections subject to conditions.
Natural Resource Planner	No objections subject to conditions.
Essential Energy	Conditions recommended in relation to the power lines over the dam and its use for recreational activities. See further discussion under SEPP transport and Infrastructure below.
Bundjalung (Arakwal)	No objections or comments received.

Issues:

Part of the existing internal driveway has been constructed across the road reserve at some time in the past two – three decades. The section of road reserve is superfluous to Councils needs and the applicant has proposed to close it off and purchase it. It is understood the relevant application has been made for this to occur through Infrastructure Services.

Figure 9 – Part Driveway requires road closure

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 2019’. The site is bush fire prone land. The development application is accompanied by a Bush Fire Assessment Report (Including Performance Solution For Access Greater Than 200m by Peter Thornton dated 28 June 2021 which provides recommendations. Condition 6 is included in the Recommendation of this Report requiring that the development must comply at all times with the requirements of Bush Fire Assessment Report (Including Performance Solution For Access Greater Than 200m by Peter Thornton dated 28 June 2021).

Effect of 10/50 rule on significant vegetation

Nil – The south east portion of the property is mapped as coastal Wetlands under the relevant SEPP and as such the 10/50 rule does not apply in terms of clearing additional vegetation beyond what is approved for asset protection zones and there maintenance. No works are located in proximity to coastal wetlands mapped on the site.

Conditions of consent require a vegetation management plan to protect native vegetation and biodiversity regeneration on the site in perpetuity.

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 Policies (SEPP)

Consolidated SEPPs 2021

Considerations	Satisfactory	Unsatisfactory
Resilience and Hazards SEPP 2021 Consideration: Chapter 2 Coastal Management Part of the south eastern corner of the lot is mapped under the coastal management areas including coastal wetlands. The proposed development does not affect mapped littoral rainforest or coastal wetlands and no part of the development is affected by the coastal management provisions of the SEPP. Chapter 4 Remediation of Land As the site was originally used as a banana plantation, it can be expected that the site is contaminated with residual Arsenic and Organochlorine based pesticides. It is likely that the site also contains “hotspots” where chemicals were stored and mixed, or bananas processed and packed. The Chemical Residue Assessment prepared by Soil Pacific, dated the 14.01.1998 (E2021/106441) only assessed the land area surrounding the previous primary dwelling. A further assessment was prepared by Greg Alderson Associated in January 2022 to investigate the site of the proposed second dwelling (Refer to Doc# E2022/58650. The submitted reports were assessed by Council’s Environmental Health Officer and it is considered that no further investigation is required.	☒	☐
Primary Production SEPP 2021 Consideration: Chapter 2 Primary production and rural development The proposed development is not inconsistent with the aims of the chapter, including the need to reduce land use conflict and sterilisation of rural land by balancing primary production, residential development and the protection of native vegetation, biodiversity and water resources,	☒	☐
Transport and Infrastructure SEPP 2021 Consideration: Chapter 2 Infrastructure The application was referred to Essential Energy in accordance with S2.48 of the SEPP. Referral to Essential Energy resulted in comments about safety concerns related to the proximity of existing overhead powerlines to the second smaller dwelling. Based on these comments and observation at site inspection of the power lines over an artificial dam being used for recreation purposes, a condition of consent is recommended to ensure that the applicant addresses Essential Energy’s safety concerns, prior to issue of a construction certificate. The applicant is considering relocating the power underground and the condition recommended requires them to resolve this to the satisfaction of Essential Energy including the potential to relocate the power lines or make minor adjustments to the building location to ensure it is 10 metres clear of the overhead power prior to issue of a construction certificate. This will also address the separate safety issue of the use of the artificial dam for recreation and swimming purposes not subject to this DA.	☒	☐
SEPP (Building Sustainability Index: BASIX) 2004 Consideration: A valid BASIX Certificate (number: 1221524M 02) was submitted with the development application	☒	☐

4.2A Byron Local Environmental Plan 2014 (LEP 2014)

The applicant has provided the following overlay mapping to assist in understanding the location of dwellings relative to split zoning. The larger dwelling is partly located in the RU2 Rural Landscape Zone under Byron LEP 2014 and the 1(a) General Rural Zone under Byron LEP 1988. The smaller dwelling near the dam is located entirely in the RU2 Rural Landscape Zone.

Figure 10- Split zoning overlay from applicant

The following relevant clauses under Byron LEP 2014 are discussed below

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 Dual occupancy (detached);

(b) The land is within the RU2 Rural Landscape

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

Zone Objective	Consideration
• To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.	The proposed development is not inconsistent with the objectives of the zone.
• To maintain the rural landscape character of the land.
• To provide for a range of compatible land uses, including extensive agriculture.
• To enable the provision of tourist accommodation, facilities and other small-scale rural tourism uses associated with primary production and environmental conservation consistent with the rural character of the locality.
• To protect significant scenic landscapes and to minimise impacts on the scenic quality of the locality.

Clause 4.1E Minimum lot sizes for certain residential accommodation

The proposal complies with the minimum lot size requirements of 4000 m2 for detached dual occupancies.

Clause 4.2A Erection of dwelling houses and dual occupancies on land in certain rural and environment protection zones

The subject property has a “dwelling entitlement” and as such approval of the dual occupancy is permissible with consent.

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

The proposal raises no issues under the clause with both dwellings accessible from one driveway and within 100 metres of each other. The dwellings are generally low set, will not impact on the visual or scenic quality of the area, there is adequate land available for onsite effluent disposal, whilst the land can still be utilised for agricultural and rural purposes.

Clause 4.3 Height of Buildings

Both dwellings comply with the 9 metre height limit under the LEP.

Clause 4.1E Minimum lot sizes for certain residential accommodation

The proposal complies with the minimum lot size requirements of 4000 m2 for detached dual occupancies.

Clause 6.2 Earthworks

The main dwelling has a basement gymnasium and pool necessitating earthworks for their construction. It is considered the works will not have an adverse impacts on drainage patterns, or the existing or future amenity of adjoining properties, or affect the future use or redevelopment potential of the land. Appropriate conditions of consent are recommended in relation to uncovering or disturbing relics, sedimentation and erosion control measures, and the disposal of any fill material.

Clause 6.6 Essential Services

The proposal can be adequately serviced with all necessary infrastructure

The proposal raises no other issues under Byron LEP 2014.

4.2B Byron Local Environmental Plan 1988 (LEP 1988)The larger dwelling is partly in the 1A General Rural Zone. The proposal is permissible with consent in the zone and is satisfactory in terms of the zone objectives, the dwelling entitlement provisions under Clause 15, and the provision of services requirements under clause 45. The main issue is the height of the dwelling as discussed under Clause 40 and Clause 64A of the LEP below.

Clause 40 Height

The proposed development is complaint with the overall height limit of 9 metres

Subsection (2) (b) requires that the consent authority must not consent to the erection of a building if the floor of the topmost floor level of the building exceeds 4.5 metres above the existing ground level. This height limit is a development standard and a minor part of the upper level exceeds this in part by up to 900 mm or 5.4 metres above the existing ground level.

The applicant has submitted a written request to vary the development standard for the upper level to exceed the 4.5 metre height limit. The applicant’s written request pursuant to Clause 64A is considered in full below.

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

Clause 64A Exceptions to Development Standards

The Applicant has sought a variation to vary a development standard for the upper most floor to not exceed 4.5 metres under Clause 40 (2) (b) of Byron LEP 1988 by proposing a building with an upper floor height of 5.4 metres on a minor part of the upper floor of the larger dwelling highlighted red in the extract of the written request below:

Figure 11 – Extent of floor level over 4.5 metres above ground

The applicant has submitted a written request that demonstrates that strict compliance with the development standard is unreasonable or unnecessary and that there are sufficient environmental grounds to vary the controls. It is considered that strict compliance with the development standard is unreasonable and unnecessary in the circumstances of the case and that there are sufficient environmental grounds to vary the development standard provided in the applicant’s request to vary the development standard (extracted in full below that outlines the following reasons:

Split zoning provides a unique situation wherein two Local Environmental Plans apply to the new dwelling development. Each Local Environmental Plan contains its own clause that relates the maximum height of buildings. It is only the height controls listed within Clause 40 of Byron Local Environmental Plan 1988 that provide an uppermost floor level standard. The more recently formulated height controls within Clause 4.3 of Byron Local Environmental Plan 2014 only include a maximum overall height standard.

Subsequently, this arrangement provides that only the eastern side of the proposed dwelling is prescribed with a maximum 4.5 metre uppermost floor level control. No uppermost floor level requirement applies to the western side of the dwelling. Byron Shire Council is currently preparing an amendment to Byron Local Environmental Plan 2014 to include the Deferred Matter areas of the property within the 2014 Local Environmental Plan. The landowners have agreed with Byron Shire to include the subject property within "Planning Proposal 3", whereby the north-eastern corner of the allotment will fall entirely within the RU2 Rural Landscape Zone.

Byron Local Environmental Plan 2014 includes a maximum height of buildings map, limiting the height of buildings across the vast majority of the Byron Local Government Area to 9.0 metres (an exception includes the Byron Bay Town Centre which where the overall height of buildings is limited to 11.5 metres). Byron Local Environmental Plan 2014 has abandoned the 4.5 metre uppermost floor level control. The maximum height of buildings map applies a limit to the topmost part of a building only. Byron Shire Council is satisfied that the objectives of a development standard relating to building height can be achieved without the need to limit over 50% of the property to which the Development Application relates is located within the RU2 Rural Landscape Zone under Byron Local Environmental Plan 2014. The remainder is located within a Deferred Matter area, and subsequently falls within the jurisdiction of Byron Local Environmental Plan 1988. Mapping attached to this document shows that the eastern side of the proposed dwelling, its ancillary garage and swimming pool are located within the 1 (a) General Rural Zone under Byron Local Environmental Plan 1988. The western side of the proposed dwelling and the access driveway are located within the RU2 Rural Landscape Zone under Byron Local Environmental Plan 2014.

The split zoning provides a unique situation wherein two Local Environmental Plans apply to the new dwelling development. Each Local Environmental Plan contains its own clause that relates the maximum height of buildings. It is only the height controls listed within Clause 40 of Byron Local Environmental Plan 1988 that provide an uppermost floor level standard. The more recently formulated height controls within Clause 4.3 of Byron Local Environmental Plan 2014 only include a maximum overall height standard.

Byron Local Environmental Plan 2014 has abandoned the 4.5 metre uppermost floor level control. The maximum height of buildings map applies a limit to the topmost part of a building only. Byron Shire Council is satisfied that the objectives of a development standard relating to building height can be achieved without the need to limit the height of the upper most floor level.

The proposed development does not exceed the 9.0 metre height control and is consistent with this policy direction from Byron Shire Council. Once the subject site is included within Byron Local

Environmental Plan 2014 (which is estimated to be late 2021), the maximum height of buildings map will provide a 9.0 metre overall building height limit consistent with other areas of the property that are located within the RU2 Rural Landscape Zone. As such, the proposed development will comply with future height controls for the site.

Figure 12 - Overall height of previously approved dwelling on site (not constructed)

The proposed dwelling will replace an approved (but not yet constructed) dwelling that is also positioned in the north-eastern corner of the allotment. The approved dwelling design has an upper most floor level that exceeds the 4.5 metre standard. It also has an overall height that is greater than that now proposed within the site (see image below). It is submitted that the new dwelling design will provide for an improved environmental planning outcome for the site has a flat roof design and is excavated into the sit

The uppermost floor level standard is derived from an archaic clause from a Local Environmental Plan that will soon have no effect within the subject site. It is understood that the standard was introduced as a means to limit overlooking into an adjoining property from the uppermost floor level of new development. The standard may once had [sic] relevance in an urban area, however on a large rural property with generous building setbacks to neighbouring lots, the 4.5 metre uppermost floor level control does not provide any benefit to adjoining properties. The 9.0 metre overall height standard appropriately controls the height of buildings in the rural property.

The proposed floor level has a maximum floor height of 5.4 metres at the worst affected area. This comprises a variation of 900mm to the standard. Reducing the height of the floor level would not achieve any greater compliance with the objectives of Clause 40. The overall height of the development is permitted to remain at 9.0 metres as measured to the finished roof. The overall height of the development will not change by adjusting the floor level at the area of encroachment (as the remainder of the building will sit above this height). The bulk and scale of the development will remain unchanged, as permitted under Clause 40.

Byron Shire Council has recently granted approval to similar variations within a nearby property (No. 657B Broken Head Road) as part of Development Consent Nos. 10.2016.722.1 and 10.2018.529.1.

An additional example of a similar variation is Development Consent No. 10.2014.417.1 located at 43 Lawson Street, Byron Bay. The history of variations to the 4.5 metre uppermost floor level control indicates that the standard is diminished in significance, virtually abandoned by the actions of Byron Shire Council in granting similar development consent.

The proposed building design clearly meets the objectives of the development standard, which are listed within Clause 40 of Byron Local Environmental Plan 1988 as follows:

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

(b) to ensure that the height and scale of development is appropriate to its location, surrounding development and the environmental characteristics of the land.

Objective (a) specifically relates to the overall height of a building. No reference is made to the uppermost floor level of a building. As the proposed dwelling meets the maximum 9.0 metre height standard as measured from existing ground level to the roof/parapet, the development achieves this objective.

The proposal is consistent with Objective (b) as the proposed dwelling design has a similar height and scale to that already approved within the subject site. The approved plans from Development Consent No. 97/0375 show a three level dwelling with a larger roof structure positioned in the north-eastern corner of the property.

A review of a recent real estate advertisement for the adjoining property to the east (Linnaeus Estate -https:/www.realestate.com.au/property-house-nsw-broken+head-135153902) shows over a dozen high set accommodation buildings constructed within sloping land to the east of the allotment. The height of the proposed principal dwelling is comparable to these existing buildings within the neighbouring lot. The scale of development within the neighbouring lot (> 12 high set buildings) is significantly greater than the residential development that is proposed within No. 865 Broken Head Road.

Consideration: The proposal is in the public interest having regards to the objectives of the development standard under Clause 40 of Byron LEP 1988 for the following reasons outlined in the written request:

The approval of the contravention to the development standard is regarded as being in the public interest for three reasons:

(i) The fact that the development is consistent with the objectives of Clause 40;

(ii) The fact that the development does not exceed Byron Shire Council's more recently adopted height controls, as set out within Byron Local Environmental Plan 2014 which currently applies to approximately 50% of the property and will soon apply to the entire property.

(iii) The development is consistent with the objectives of the 1 (a) General Rural Zone. Refer to the attached Town Planning Report for discussion in this regard.

It is submitted that contravention of the 4.5 metre development standard is acceptable because, on the completion of the development, it will not be discernible that the uppermost floor level of the dwelling is above 4.5 metres in height. The Section Plan below from Harley Graham Architects design plans show that the natural ground level beneath the southern end of the dwelling will be filled. At the completion of works, the uppermost floor level will appear to be consistent with the 4.5 metre uppermost floor level control.

The concurrence of the Planning Secretary is not required.

It is recommended that the development standard can be varied in this instance.

1. The development is satisfactory having regard to the requirements outlined in clause 64A;

2. The development is satisfactory having regard to applicable Department of Planning, Infrastructure and Environment Circulars;

3. The development is satisfactory having regard to relevant caselaw;

4. The DA demonstrates that compliance is with the development standard is unreasonable and unnecessary;

5. The DA demonstrates that there are sufficient environmental planning grounds to justify contravening the standard;

6. The DA demonstrates that that the development in the public interest;

7. The DA demonstrates that the development is consistent with the objectives of the standard and the zone;

8. The DA demonstrates how the development produces a better planning outcome than one that strictly complied with the development standard; and

9. The DA demonstrates what it is about the grounds of the request that are particular to the proposed development on this site, and that there has to be something particular to the development on this site to justify the variation.

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

Other than the LEP amendment to bring the property fully into the Byron LEP 2014, no draft EPI’s affect the proposal. As discussed had this occurred the variation to the height limit would not have been required.

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

Part A	☒
Part B Chapters:	☒ B1 \| ☐ B2 \| ☒ B3 \| ☒ B4 \| ☐ B5 \| ☐ B6 \| ☐ B7 \| ☒ B8 \| ☐ B9 \| ☐ B10 \| ☐ B11 \| ☐ B12 \| ☐ B13 \| ☒ B14
Part C Chapters:	☐ C1 \| ☐ C2 \| ☐ C3 \| ☐ C4
Part D Chapters	☐ D1 \| ☒ D2 \| ☐ D3 \| ☐ D4 \| ☐ D5 \| ☐ D6 \| ☐ D7 \| ☐ D8 \| ☐ D9
Part E Chapters	☐ E1 \| ☐ E2 \| ☐ E3 \| ☐ E4 \| ☐ E5 \| ☐ E6 \| ☐ E7 \| ☐ E8 \| ☐ E9 \| ☐ E10

The following relevant provisions are discussed

Byron Shire Development Control Plan - Chapter B1 Biodiversity

The proposal requires a variation to the prescriptive measures of Section B1.2.1 of Chapter B1 of the DCP. Specifically, the proposed development footprint including the asset protection zones proposes removal of native vegetation and encroaches within the required 30m setback area to EECs (littoral rainforest) on the site. The application acknowledged this and proposed to incorporate a Biodiversity Conservation Management Plan (BCMP) to compensate for this variation. The proposed ecological restoration area to be subject to the BCMP is shown below. This is considered sufficient to compensate for the encroachment into the setback area and will be conditioned. Apart from this issue, the proposal is generally in accordance with Chapter B1.

Fig 13 Proposed ecological restoration areas.

Chapter B3 Services

Chapter B14 Excavation and fill

Earthworks are proposed in relation to excavating the site for the swimming pool, the basement gym and to provide a generally level platform to construct the dwellings upon. The applicant has submitted that the earthworks are proposed lower the overall height of the development into the ground with the aim (it is assumed) to minimise the visual impact of the building, whilst the extent of the earthworks as proposed are not dissimilar to that already approved under DA97/0375, which the applicant claims has commenced. It is considered that the proposal as designed will hide a section of the development into the hill and as such will reduce the overall bulk and scale of the development. Appropriate conditions of consent are recommended in relation to appropriate geotechnical reports to support the engineering plans for the construction certificate.

Chapter D2 Residential Accommodation and ancillary development in rural zones

D2.5 Dual Occupancies and Secondary Dwellings

Car Parking – the proposal incorporates sufficient car parking of a minimum of two spaces for the main dwelling and one space for the smaller dwelling.

Character and Siting – The two dwellings are not more than 100 metres apart and serviced by a common driveway.

Soundproofing – The proposed dwellings are suitably sited apart to ensure acoustic privacy.

Private Open Space – Suitable area is available on this property for open space purposes and onsite effluent disposal.

Adjoining and Nearby development – The development is suitably sited so as not to create land use conflict with neighbours with vegetation to the northern and eastern boundaries screening the development and providing a buffer. The proposal is of a bulk, scale and height to not impact on the scenic qualities of the locality and will not have an adverse impact on neighbours views, privacy or solar access.

4.4B Byron Shire Development Control Plan 2010 (DCP 2010)

Part of the main dwelling in the 1(a) Zone is covered by the provisions contained within DCP 2010 and in particular the following comments are provided in relation Chapter C Residential Development

C2.6 Setbacks – The proposal complies with the applicable 55 metre setbacks for rural dwellings on arterial roads.

C3.1 and C3.3 Visual Impacts/ Development on or near ridgetops – The main dwellings is located such that it should not be visually prominent with a treed backdrop to the north and east of the buildings. Conditions to apply in terms of colours and materials

Environmental Planning and Assessment Regulation 2000

The proposal raises no issues under the relevant regulations.

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

Impact on:	Likely significant impact/s?
Natural environment	No. The proposal will not have a significantly adverse impact on the natural environment of the locality.
Built environment	No. The proposal will not have a significantly adverse impact on the built environment of the locality.
Social Environment	No. The proposal will not have a significant social impact on the locality.
Economic impact	No. The proposal will not have a significant economic impact on the locality.
Construction Impacts	The development will generate minor impacts during its construction. Conditions of consent recommended to control hours of work, builders waste, construction noise, installation of sedimentation and erosion control measures and the like to ameliorate such impacts.

Council Policies that are applicable to the proposed development have been considered during assessment.

4.7 The suitability of the site for the development

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

4.8 Submissions made in accordance with this Act or the regulations

The development application was publicly exhibited. There were 5 submissions made on the development application:

Issue	Consideration
Matters not the subject of this DA including Existing horse stables and arena and cabana. In relation to this application, we request that council review compliance in relation to the works that currently exist on the site to ensure they are approved prior to the granting of any new works	These matters are beyond the powers of the current DA and do not preclude the consideration and recommendation for approval of the new dwellings. DA 10.2020.325.1 approved the cabana works as detailed in section 1 of this report above. The stables building was referred to compliance in September 2020 for investigation as potential illegal development and with the outcome lodged that it was an exempt development(CRM reference 30.2020.6630.1). Extent of earthworks for horse arena was referred to Compliance for further investigation on 28.6.22. These matters do not affect the development assessment and determination of the proposed dwellings and swimming pool and investigation and compliance action can occur separately.
Aboriginal Cultural Heritage	The application was referred to Bundjalung of Byron Bay Aboriginal Corporation (Arakwal) by Council at the start of the assessment process. No response or requested conditions of consent have been received by Council. Aboriginal Monitoring and oversight has not been requested. The applicant also provided a copy of an Aboriginal Heritage Information Management System(s) (AHIMs) report which shows that there are no Aboriginal sites recorded in or near the location of the subject lot nor has any Aboriginal Places been declared in or near the site location. Notwithstanding appropriate conditions of consent are recommended in relation to how an artifact would be managed in the event it is uncovered or disturbed during construction
Flora and Fauna and Environmental Zones including: In relation to this application, we request that council ensure that opportunities for the enhancement of this site are secured and believe a Biodiversity Conservation Management Plan should be in place prior to any approval for additional construction on the site and be publicly exhibited.	The application has been assessed by Council’s Natural Resources Planner (Section 2 above) and relevant conditions of consent are recommended to ensure no adverse impacts on biodiversity as a result of the development. This includes the requirement for the applicant to prepare a Biodiversity Conservation Management Plan (BCMP), which must be prepared by a qualified ecologist with experience in ecological restoration in the northern rivers.
Wastewater Disposal including concerns about stormwater and drinking water quality	The application has been assessed by Council Environmental Health Officer and Development Engineer (Section 2 above). The details of the onsite sewage management, pool backwash and stormwater are all addressed in these assessments and conditions of consent recommended by those officers are included in the recommendation at the end of this report. It is considered the site is of size and area to manage these issues onsite
Contamination	The application was submitted with one report and was further supplemented by a more recent report to cover the site of the secondary dwelling in January 2022. These matters are addressed in the Referrals and SEPP sections 2 and 4.1 of this report. The site is considered suitable for the proposed development
Contravention of a development standard	This application was submitted with a written request to vary the development standard for part of the upper floor of the larger dwelling that is 0.9 metres above the 4.5 maximum level. The dwelling is to be located on a site with an AHD of 34metres and below the 60 m defined as a ‘visually prominent site. The written request to vary the development standard for a very minor part of the building is addressed in full in Section 4.2B above. The variation does not require the concurrence of the Planning Secretary.
Request screen planting and earth tone colours	The proposal is required to provide substantial additional vegetation for the purposes of biodiversity and standard conditions are recommended to apply requiring muted bushland and earth tones be used. Neither dwelling is located in a ‘visually prominent site’ as defined by the DCP.
70 sqm limit on secondary dwellings – LEP Clause 5.5 amendment.	With regards to the recent gazettal of development standards for secondary dwellings not to exceed 70 sqm (clause 5.5), the application description has been changed to dual occupancy (detached). This is due to the lack of any savings provisions applying to secondary dwellings on rural lots. The proposed development will meet the applicable development standards and controls related to detached dual occupancies.
Substantial commencement of previous DA- current DA must be considered on its own merits.	The applicant has demonstrated substantial commencement of the previous DA which also explains the demolition and absence of a current dwelling on the site and the extent of the driveway constructed on the site. This does preclude the development from being assessed in this context but entirely on its own merits. The previous DA for the dwelling will be required to be surrendered as recommended in the conditions of consent attached to this report.

4.9 Public interest

The proposed development is unlikely to prejudice or compromise the public interest or create an undesirable precedent.

5. DEVELOPER CONTRIBUTIONS

5.1 Water & Sewer Levies

No Section 64 levies will be required.

5.2 Developer Contributions

Section 7.11 Contributions will be payable.

6. DISCLOSURE OF POLITICAL DONATIONS AND GIFTS

Disclosure details

Response

Has a Disclosure Statement been received in relation to this application?

If Yes, Provide Disclosure Statement register reference: 91.

Yes ☐ No ☒

Have staff received a ‘gift’ from anyone involved in this application that needs to be disclosed.

Yes ☐ No ☒

7. CONCLUSION

The proposed dual occupancy and swimming pool is satisfactory having regard to the relevant environmental planning instruments and planning controls applicable to the site. The proposal raises no significant issues in terms of environmental impacts which cannot be managed and the site is considered suitable for the development. The application appropriately addresses the relevant constraints applying to the site and is recommended for approval subject to the recommended conditions attached to this Report.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.11

Report No. 13.11 PLANNING - 10.2021.114.1 - 'Fed Sheds' Light Industry Excluding Artisan Food & Drink Premises at 467 Federal Drive, Federal

Directorate: Sustainable Environment and Economy

Report Author: Patricia Docherty, Planner

File No: I2022/877

Proposal:

Proposal description:	Light Industry Excluding Artisan Food and Drink Premises
Property description:	LOT: 10 DP: 790360
	467 Federal Drive FEDERAL
Parcel No/s:	22720
Applicant:	Newton Denny Chapelle
Owner:	Davgav Pty Ltd
Zoning:	RU5 Village
Date received:	26 February 2021
Integrated / Designated Development:	☐ Integrated	☐ Designated	☒ Not applicable
Concurrence required	Yes –CNR No. 18853
Public notification or exhibition:	- Level 2 advertising under Council’s Community Participation Plan. - Exhibition period: 8/3/21 to 21/3/21 - Submissions received: 213 (152 Oppose and 61 Support) - Submissions acknowledged: ☒ Yes ☐ No ☐ N/A Note. Although not mandated Community Significant Development, under the Byron Community Participation Plan, the applicant undertook pre-lodgement consultation including advertising in The Echo inviting comments via Survey Monkey 2-28 August 2020 – 133 comments were received. 53% strongly supported. 7%, somewhat supportive. 3% neither supportive or opposed, 29% strongly opposed and 8% somewhat opposed the project. (Refer to Doc #E2021/40084).
Variation request to Development Standards under an EPI (e.g. clause 4.6)	No variations are requested to the Development Standards
Estimated cost	$2,860,184.00
Delegation to determine	Council
Issues	Number of submissions raising various issues, such as: · Overshadowing · Not a residential development · Out of character with Federal · Impacts on the Village · Should await the masterplan to be completed · Car parking
Summary:
The DA proposes to demolish the exiting dwelling on the land and construct three buildings to use for light industrial purposes comprising eight tenancies of varying floor areas, six (6) with mezzanine levels, and car parking for 26 vehicles, motorbike spaces and two loading zones. The subject site is within the heart of the village and sits opposite the Federal Hall. The land has an area of 4000 m² and is zoned RU5 Village which permits a range of uses including light industry. Access and egress to the development is proposed via two new vehicle crossovers in a one-way direction through the site with all vehicles entering and leaving the site in a forward direction. Minor excavation is required at the property frontage to Federal Drive (up to 1m) and fill and retaining at the downslope (southern) side of each building. The development proposes stormwater storage tanks beneath each building and on-site sewage management and a land application area is proposed below the car park with effluent to be treated by way of a tertiary system. The property lies within the Federal Village Heritage Conservation Area under chapter E6 of Byron DCP 2014. The design of the development is considered to be sympathetic to the Heritage vernacular of the area through the use of materials and design. No part of the building exceeds the maximum permissible height on this site, which is 9 metres. The total Gross Floor Area proposed is 1364.4 m². There is no maximum Floor Space Ratio (FSR) for this location, but with a site area of 4000 m², it is a modest 0.34:1.0. The concept landscaping for the site incorporates perimeter plantings to the side and rear boundaries. Although there were a number of objections to the development as discussed in this report, there were also a number of submissions in support of the proposal. Where relevant, issues raised in the submissions have been addressed by way of conditions of consent. In summary the proposal will provide suitable working areas for those involved in light industrial activities to lease in the hinterland areas as opposed to having to find factory space in the traditional urban areas of the Shire. Alternative development on the site would be to subdivide the parcel into 4 lots for residential use, generating a net increase in housing of three dwellings. It is unlikely such housing would be “affordable”. The subject light industrial sheds are bespoke in design as opposed to a standard concrete tilt up panel industrial development in the industrial zones of Byron Bay, Bangalow, or Mullumbimby. As such the type of tenants that the development will attract are also likely to be more bespoke and it is anticipated the development will be better suited to creative type business as opposed to a car repair business or steel work fabrication, and the building design itself would not support such activity. Conditions of consent are recommended to limit hours of operation, to move the development further to the north by a metre to provide a greater setback to the nearest dwelling and for a noise/ acoustic fence to be erected around the side and rear boundaries. The application appropriately addresses the relevant constraints applying to the site located in the RU5 Village Zone, and on balance is appropriate in design for the Federal village. The application is recommended for approval subject to the conditions of consent.

NOTE TO COUNCILLORS:

RECOMMENDATION:

That pursuant to Section 4.16 of the Environmental Planning & Assessment Act 1979, Development Application No. 10.2021.114.1 for Light industry excluding artisan food and drink premises, be granted consent subject to the recommended conditions attached (Attachment 2 E2022/65440) to this report.

Attachments:

1 10.2021.114.1 Attachment 1 - DA Plans Amended 220707, E2022/63899

2 10.2021.114.1 Attachment 2 - Recommended Conditions of Consent, E2022/65440

3 Confidential - 10.2021.114.1 Attachment 3 - Report Planning meeting 11 August 2022 - eSubmissions redacted, E2022/65652

Figure 1: Locality Plan

Assessment:

5. INTRODUCTION

History/Background

A search of Council records indicates the following relevant site history:

DA 6.1989.2324.1, Dwelling, Approved 01/01/1989

22.2019.21.1, Development Advice Panel meeting 28/10/2019 (Doc # A2019/31980)

Description of the proposed development

This application seeks approval for Light Industry consisting of three buildings with ground and mezzanine floors, eight (tenancies of varying floor area, and car park including one accessible space.

Figure 2: Site Plan and Context

Building A is located to the north on the corner of Federal Drive and Coachwood Court. Building B is located to the south of Building A and bound by the internal access and car park with frontage to Federal Drive. Building C is located to the south of the site adjoining an existing residential dwelling.

Figure 3: Artistic Impression – Federal Drive

The total Gross Floor Area (GFA) of all buildings is 1364.4 m². All parts of the building do not exceed the 9-metre maximum height of buildings development standard measured vertically above existing ground level under Byron LEP 2014.

Based on spot levels and contours on the detailed site survey, the following heights are proposed:

The highest part of Building A is 7.5 metres:
The highest part of Building B is at the southern side of the roof which is just below 9 metres:
The highest part of Building C is 8.04 metres.

Figure 4: Cross Sections whole site with 9 metre height limit in red dash

In summary, the breakdown of each proposed building GFA, heights and excavation, is as follows:

Building A

Building B:

Building C:

Unit A1 = 185.9m²

Unit A2 = 111.8m²

Unit A3 = 178.7m²

1 Accessible WC =7.2 m²

Total GFA = 483.6m²

Height = 7.5 metres

1.18 m excavation

Unit B1 = 113.4m²

Unit B2 = 233m²

Unit B3 = 120.6m²

1 Accessible WC = 7.2 m²

Total GFA = 474.2m²

Height = 9 metres max.

<1m excavation, up to 1.3m retaining

Unit C1 = 183.3m²

Unit C2 = 185.1m²

Four (4) WC, one (1) accessible WC = 38.2m²

Total GFA = 406.6m²

Height = 8.04 metres

1.17 m excavation, up to 0.7m retaining

Access and egress to the development is proposed via two new vehicle crossovers in a one-way direction through the site with all vehicles entering and leaving the site in a forward direction. Minor excavation at the property frontage to Federal Drive and fill and retaining at the downslope (southern) side of each building is required.

The development site is within the Federal Village Heritage Conservation Area as mapped under the DCP 2014 Chapter E6 Federal. It is considered the design of the development is sympathetic to the heritage vernacular and character of the areas through the use of pitched roofs and sympathetic materials such as zincalume sheeting and timber wall cladding. The site is not a mapped heritage item nor is the village mapped as a conservation area under the Byron LEP 2014.

The development proposes stormwater storage tanks beneath each building with an on-site sewage management system. The proposed development for Light Industry will exclude Artisan Food and Drink Premises. The applicant understands and agrees that the use is to be restricted to also prohibit food and drink premises under this DA to avoid potential amenity impacts and due to other environmental planning reasons including capacity for on-site wastewater management.

Description of the site

Land is legally described	LOT: 10 DP: 790360
Property address	467 Federal Drive FEDERAL
Land is zoned:	RU5 Village
Land area is:	4000 m²
Property is constrained by:	Site is not serviced by reticulated water or mains sewage. Site is in Drinking Water Catchment.
	Is a BDAR required due to the location of the proposed development?	☐ Yes ☒ No
	Are there any easements in favour of Council affecting the site?	☐ Yes ☒ No
	Is there a Vegetation Management Plan which might affect the proposal?	☐ Yes ☒ No
	Is there a Voluntary Planning Agreement which might affect the proposal?	☐ Yes ☒ No

The subject site known as 467 Federal Drive, Federal and legally described as Lot 10 in DP790360 has a total site area of 4000m² and is located within the Village (RU5) Zone of the Byron LEP 2014.

The site currently contains a dwelling house built in 1990 and associated planted landscaping around the dwelling. Otherwise, the majority of the site is clear of structures and vegetation other than mown grass.

The lot is located central to Federal Village and is surrounded by a mix of residential (dwelling houses), community (park & open space), commercial (restaurant and shop), and Heritage opposite the site at Federal Drive (School of Arts/Holy Trinity Anglican Church, known locally as Federal Hall / Jaspers Corner). All properties adjoining the site are also zoned RU5 Village, which permits a broad range of land uses.

The site is located in a drinking water catchment. Otherwise, no environmental constraints, Council infrastructure nor easements encumber the site. The site is not serviced by reticulated water or mains sewage. The site has access to all other essential services.

Figure 4 – Southern side of the site is vacant looking west from Federal Drive

Figure 5 – Northern side of the site contains existing dwelling and planted landscaping

Figure 6 – Site looking south west from intersection Federal Drive and Coachwood CourtFigure 7 – Streetscape across Federal Drive Figure 8 – Vegetation to be removed

Figure Figure 9 – Federal Drive Looking South Jaspers Corner School of Art on left

Figure 10 - Federal Hall Jasper Corner opposite the site

Figure 11: R5 Village Zoning and Arial Image

6. SUMMARY OF REFERRALS

Referral	Issue
Environmental Health Officer	No objections subject to conditions.
Development Engineer	No objections subject to conditions.
Building Surveyor	No objections subject to construction certificate being required.
S64 / Systems Planning Officer	No objections or conditions.
Contributions Planner	Subject to 7.12 Levy condition for works over $100,000.
Heritage Consultant	No objections subject to conditions.
Resource Recovery	No objections subject to conditions.
Strategic Planning	No objections. Comments only.
Essential Energy	No objections or conditions. General comments provided.

7. SECTION 4.14 – BUSH FIRE PRONE LAND

8. 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.

State Environmental Planning Policies (SEPP)

Consolidated SEPPs 2021

Considerations

Satisfactory

Unsatisfactory

Resilience and Hazards SEPP 2021

Consideration:

Chapter 4 Remediation of land

Comment: an assessment provided with the application (Refer Doc #E2021/40070) concludes:

“…The history has indicated a low potential for significant contamination resulting from use of the Site when considering the proposed development; and the results of soil sample analysis show that the surface soils on the Site do not contain concentrations of the contaminants of concern above the relevant Site Assessment Criteria; The Site is considered suitable for the proposed development for commercial/industrial development.”

No further investigation is considered warranted.

☒

☐

Transport and Infrastructure SEPP 2021

Consideration:

The DA was referred to Essential Energy in accordance with Chapter 2, Section 2.48 of the Transport and Infrastructure SEPP. Comments received are included in the notes attached to the recommended conditions of consent.

☒

☐

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 Light Industry;

(b) The land is within the RU5 Village according to the Land Zoning Map;

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

Zone Objective

Consideration

• To provide for a range of land uses, services and facilities that are associated with a rural village.

The proposal seeks to establish a development which will provide for a range of land uses and provide suitable facilities for a range of compatible light industry uses and employment in the village including creative industry and high tech industry, which are permissible with consent in the zone.

Note.

light industry means a building or place used to carry out an industrial activity that does not interfere with the amenity of the neighbourhood by reason of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, wastewater, waste products, grit or oil, or otherwise, and includes any of the following—

(a) high technology industry,

(b) home industry,

(c) artisan food and drink industry,

(d) creative industry.

Note—

Light industries are a type of industry—see the definition of that term in this Dictionary.

creative industry means a building or place the principal purpose of which is to produce or demonstrate arts, crafts, design or other creative products, and includes artists’ studios, recording studios, and set design and production facilities.

Note—

Creative industries are a type of light industry—see the definition of that term in this Dictionary.

artisan food and drink industry means a building or place the principal purpose of which is the making or manufacture of boutique, artisan or craft food or drink products only. It must also include at least one of the following—

(a) a retail area for the sale of the products,

(b) a restaurant or cafe,

(c) facilities for holding tastings, tours or workshops.

Note—

See clause 5.4 for controls in industrial or rural zones relating to the retail floor area of an artisan food and drink industry.

Artisan food and drink industries are a type of light industry—see the definition of that term in this Dictionary.

high technology industry means a building or place predominantly used to carry out an industrial activity that involves any of the following—

(a) electronic or micro-electronic systems, goods or components,

(b) information technology (such as computer software or hardware),

(c) instrumentation or instruments of a scientific, industrial, technological, medical or similar nature,

(d) biological, pharmaceutical, medical or paramedical systems, goods or components,

(e) film, television or multi-media technologies, including any post production systems, goods or components,

(f) telecommunications systems, goods or components,

(g) sustainable energy technologies,

(h) any other goods, systems or components intended for use in a science or technology related field,

but does not include a building or place used to carry out an industrial activity that presents a hazard or potential hazard to the neighbourhood or that, because of the scale and nature of the processes involved, interferes with the amenity of the neighbourhood.

Note—

High technology industries are a type of light industry—see the definition of that term in this Dictionary.

The applicant has confirmed that they are not seeking approval for artisan food and drink premises and the DA has been assessed on this basis. A condition of consent is recommended that precludes artisan food and drink premises from being approved on the site. Home industry would need to be ancillary to a dwelling and no dwelling is proposed.

Clause 4.3 Height of Buildings

Based on spot levels and contours on the detailed site survey:

The highest part of Building A is 7.5 metres: RL182.00 over existing ground level RL174.50.

The highest part of Building B is at the southern side of the roof which is just below 9 metres: RL 181.5 over existing ground level RL ≥172.5.

The highest part of Building C is 8.04 metres: RL 179.00 over existing ground RL 170.96.

As detailed in Section 1 above, all parts of the building do not exceed the 9 metre maximum height of buildings development standard measured vertically above existing ground level under Byron LEP 2014.

Clause 4.5 Calculation of Floor Space Ratio and Site Area

There is no maximum Floor Space Ratio (FSR) development standard in Federal Village, zoned RU5 Village.

The subject site known as 467 Federal Drive, Federal (legally described as Lot 10 in DP790360) has a total site area of 4000m² .

The total Gross Floor Area (GFA) of all buildings is 1364.4 m².

The total FSR of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area. The FSR in this proposed development is 0.3411:1.

Clause 5.10 Heritage Conservation

The site is not a heritage item or within a heritage conservation area. The site is located opposite a heritage item at Federal Drive (School of Arts/Holy Trinity Anglican Church, known locally as Federal Hall / Jaspers Corner) The application included a heritage impact statement, prepared by Weir Phillips Heritage and was referred to Council’s Heritage Advisor and Heritage Committee.

Council’s Heritage advisor responded, as follows:

I inspected the site on 18 March 2021.

The proposed development is considered sympathetic to the context and is not likely to have any adverse impacts upon the setting of the Federal School of Arts and the Holy Trinity Anglican Church.

I do not consider that a detailed referral is required in this case and endorse the findings of Weir Phillips SOHI.

The proposed external materials are most acceptable however I would suggest a condition to control any future changes of colours/materials and signage. You can work something up from these drafts.

External Finishes - The approved colours, materials and finishes are to be maintained as per the approval. Any future changes are subject to prior approval from Council.

Reason; to protect the setting of nearby items of Environmental Heritage.

Signage - Details of all signage are to be submitted to and approved by Council prior to erection. A suite of complementary signage is required which is sympathetic to the aesthetic setting of the heritage listed items opposite the site. Any illuminated signage may only be externally illuminated and subtle in its design (and is subject to further consent)

Reason: to protect the setting of nearby items of Environmental Heritage.

Clause 6.2 Earthworks

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

Development consent is required for the proposed excavation and fill required for the buildings and car park. At the maximum depth, the excavations will be 1.4 m deep associated with the wastewater system. The excavated area will be filled once the on-site wastewater system is installed. Minor excavation at the property frontage to Federal Drive and fill and retaining at the downslope (southern) side of each building is required.

The extent of the proposed earthworks are considered to be reasonable and necessary, subject to recommended conditions of consent to avoid, minimise or mitigate the impacts of the development.

Clause 6.5 Drinking Water Catchments

The objective of this clause is to protect drinking water catchments by minimising the adverse impacts of development on the quality and quantity of water entering drinking water storages.

This clause applies to the land because it is identified as “Drinking water catchment” on the Drinking Water Catchment Map.

Subject to recommended conditions the development is not likely to have any adverse impact on the quality and quantity of water entering the drinking water storage, having regard to the distance between the development and any waterway that feeds into the drinking water storage (over 150 metres from the site), the on-site use, storage and disposal of any chemicals on the land, and the treatment, storage and disposal of waste water and solid waste generated or used by the development. The development is designed, sited and will be managed to avoid any significant adverse impact on water quality and flows.

Clause 6.6 Essential Services

The site is not connected to Council’s Reticulated water infrastructure or sewer main. The proposed roof flow is to be captured by the rainwater tanks and then overflow from the tanks and roof is to be discharged to the Proposed Raingarden and ultimately the Inter Allotment Drainage (IAD) system.

The proposed carpark flow will be conveyed overland to the designated Raingarden. All site flow ultimately discharges to LPD A via the proposed 375mm stormwater system in existing easement up to and including the 1%AEP design event. All events in excess of this will be conveyed by a design weir to the south east.

The on-site sewage management system (OSMS) proposes disposal of effluent via a novel infiltration under the paved carpark. Council’s Design Guidelines for On-site Sewage Management for Single Households nominates evapotranspiration as the preferred process. Notwithstanding, the proposal is not for a single household and has been supported by peer review of the OSMS design. The proposal has been assessed by Council’s Environmental Health Officer with conditions recommended detailing the design specifications for a S68 application should the development application be approved.

It is considered the site has access to and will be provided with the necessary infrastructure to service the development.

Clause 4.6 Exceptions to Development Standards

Not applicable

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

Not applicable

4.4 Byron Shire Development Control Plan 2014 (DCP 2014)

Comments are provided on the relevant sections of the DCP

B3 – Services:

B4 – Traffic Planning, Vehicle Parking, Circulation and Access

The proposed development requires 16 car parking spaces and there will be a total of 26 car parking spaces provided including 1 disabled accessible bay. Provision for Motorcycle and bicycle parking is available in the south west of the car park.

The DCP requires 1 Medium Rigid Vehicle (MRV) & 1 Heavy Rigid Vehicle (HRV) loading bays for industrial development. A variation is required for the provision of 1 Small Rigid Vehicle & 1 MRV loading bays. This proposed arrangement is reasonable with consideration for the scale and context of the site in the RU5 Village zone, location and surrounding road infrastructure.

B5 Providing for Cycling

Council's DCP 2014 states that no bicycle parking is required for an industrial land use, however two bicycle spaces are provided for the proposed development.

B6 – Buffers and Minimising Land Use Conflicts

The applicant submitted a Land Use Conflict Risk Assessment (LUCRA) and an Acoustic Report that does not propose food outlets nor does it support night time operating hours.

The LUCRA did not fully discuss impacts from lighting especially any security lighting. Conditions of consent are recommended to require the development to operate at all times within strict hours for operation and delivery. This requires any changes to those operations to require separate consent and for a detailed lighting / management plan to be submitted to the satisfaction of Council.

B8 Waste Minimisation and Management

The applicant submitted a detailed waste management plan, which was assessed by Council’s Resource Recovery team. Conditions of consent are recommended to address the detailed operational waste management requirements to the full satisfaction of Council.

All waste will be stored, sorted and collected on site and waste collection vehicles will enter and leave the site in a forward direction.

C1 Non Indigenous Heritage

This chapter applies because the site is land in the vicinity of a Heritage item. The site is not a heritage item or within a heritage conservation area. The site is located opposite a heritage item at Federal Drive (School of Arts/Holy Trinity Anglican Church, known locally as Federal Hall / Jaspers Corner).

The application included a heritage impact statement, prepared by Weir Phillips Heritage and was referred to Council’s Heritage Advisor and Heritage Committee.

Council’s Heritage advisor considered the proposed development to be sympathetic to the context and not likely to have any adverse impacts upon the setting of the Federal School of Arts and the Holy Trinity Anglican Church. This is considered in more detail in section 4.2 of this report.

C4 Development in a Drinking Water Catchment

As detailed in Section 4.2 above the development is subject to conditions of consent and has been assessed by Council’s Environmental Health Officer and Planner to ensure that development and use of land within the drinking water catchment does not adversely impact on the quality or quantity of public water supply.

D5.2.1 – Building Lines:

Objectives

1. To establish minimum building setbacks in industrial areas to enhance streetscape and provide suitable commercial exposure.

2. To encourage a stepped front elevation to provide variation in the front facade and building form.

Figure 12 – proposed setbacks to street

In lieu of the prescribed setback distances, the proposal presents varied setbacks from the Federal Drive frontage averaging 7.2m to the main building wall for all proposed buildings. Tenancy B2 includes a deck at the Federal Drive frontage which presents a setback of 3.7m; and at its nearest point, the development presents a setback of 2m from the outermost projection to the front boundary (at the ground floor deck roof for Building B at the centre of the property) See Figure 11.

Byron DCP 2014 prescribes building line setbacks of 10m and 6m from the front boundary of the allotment for the Primary and Secondary building lines respectively, and a minimum 2m setback to a second road frontage in a standard industrial zone. It is considered that this is unreasonable in the particular circumstances of this site that is not in an industrial zone but located in Federal zoned RU5 Village and light industry is permissible in this zone.

The pattern of development in the street including a range of uses (residential, retail and community) is generally between 0 metres and 3 metres. Excessive setbacks would detract from the streetscape, push the buildings closer to the west and potentially resulting in car parking required for the site dominating the frontage. The design and layout presents a walkable, accessible frontage and deep covered decks that enhance the functionality of the outdoor areas of the building.

The Performance Criteria (PC) of this control seek to ensure that setbacks are “designed to ensure that the aesthetics and character of industrial development will be compatible with development in the locality and with the existing and desired future character of the precinct.” Similarly, PCs note that encroachments are permissible where:

a) The proposed setback enhances the design of the building and complements the streetscape; and

b) The proposed development does not adversely affect adjoining development, nor conflict with other requirements of this Chapter.

The proposed reduction in front boundary setbacks directly aligns with the streetscape within Federal Village, where reduced front boundary setbacks are common between 1.5m - 3m in adjacent residential dwellings, and to 0m in some cases for commercial premises (see Figure 12 below). Further, Prescriptive Measures of E6.5 of DCP Chapter E6 (Federal Village) require that “setbacks within the ‘Heritage Character Area’ (illustrated on Map E6.1) are to be consistent with the existing streetscape of Federal Drive in this area.”

Figure 13 – Analysis of Street setbacks Federal Drive

Council’s Heritage Advisor has reviewed the proposal and noted that “the proposed development is considered sympathetic to the [site] context and is not likely to have any adverse impacts upon the setting of the Federal School of Arts and the Holy Trinity Anglican Church” (doc #E2021/47952). While this comment speaks specifically to the Heritage aesthetic of the proposal and its impact on surrounding Heritage Items, it is noted that this aesthetic forms the fabric of the Federal Village as discussed within Chapter E6 (Federal Village) of the DCP.

The proposed provision of any street planting would require detailed discussion with Council in the context of the Federal Village Concept Plan to ensure selection and placement of any planting is complimentary to the future character of the village and maintains functional unimpeded sightlines for safe access and egress of vehicles, cyclists and no obstructions for walking, wheelchairs etc. A condition of consent is recommended to address the need for further detailed landscaping design.

Predominantly, the reduced boundary setbacks are considered consistent with the streetscape character within Federal Village.

D5.2.3 – Water and Sewer Services

DCP Chapter D5 – Industrial Development prescribes that all industrial development must be serviced by reticulated water supply and must discharge wastewater to mains sewer infrastructure. Council’s ET Engineers have advised that the proposal does not benefit from access to reticulated water or mains sewage. Council Development Engineer and Environmental Services reviewed the proposal in particular the types of light industry that will be permitted including creative industries and high-tech industries (excluding food and drink premises) and conditions of consent are recommended to address the essential services required for the development.

Chapter E6 – Federal Village

E6.5 Character Bulk and Scale of development

The proposal is compliant with Councils overall height requirements and is at a bulk and scale consistent with the character of Federal. Materials incorporate zincalumn roof sheeting and timber cladding with pitched roof forms, eaves and verandahs consistent with prescriptive measure 1. Car parking is setback behind the building away from Federal Drive so that it is not a feature of the development whilst setbacks are satisfactory as discussed above and is compliant with measures 2 and 3

E6.6 Heritage Character Area

The proposal as discussed above has been considered by Councils Heritage advisor as acceptable in terms of heritage. The development is compatible with the heritage character of the Federal Village.

E6.8 Residential Area

In accordance with the Federal Village Map, the subject site is identified as Residential Land and should be developed for that purpose. If this was the case the site would deliver an additional three residential lots, which are unlikely to be for affordable housing. The proposal as such is inconsistent with E6.8.

However DCP provisions are set to guide development and do not overrule LEP provisions. In particular Section 3.42 of the EPA Act 1979 states that “The Provisions of a development control plan made for that purpose are not statutory requirements”. This provides Council the ability to vary controls under a DCP where it is considered the development has merit.

The proposed use (Light Industry) is development which is permitted with consent in the RU5 Zone of the Byron LEP 2014.

In terms of the objectives under E6.6 the provisions state

“To ensure that development of land in the defined ‘Residential Area’ contributes to an integrated rural village that meets the residential needs of residents and is compatible with the low density, low intensity, heritage character and scale of Federal.”

In support of the development, the subject light industrial sheds are bespoke in design as opposed to a standard concrete tilt up panel industrial development in the industrial zones of Byron Bay, Bangalow or Mullumbimby. As such the type of tenants that the development will attract are also likely to be more bespoke and it is anticipated the development will be better suited to creative type business as opposed to a car repair business or steel work fabrication. It is likely such tenants will be found within the hinterland areas of the Shire, while employment opportunities will also be provided for locals alike.

The development itself comprises three buildings at a bulk, scale and character as to what is required in Federal whilst it is noted the site itself sits opposite the local church and School of Arts Hall in Federal Drive.

Conditions of consent are recommended to limit hours of operation, to move the development further to the north by a metre to provide a greater setback to the nearest dwelling and for a noise/ acoustic fence to be erected around the side and rear boundaries. The site will also be landscaped to the side and rear boundaries.

It is considered the proposed development is satisfactory in terms of the objectives under this provision, is permissible with consent under the Byron LEP 2014, whilst the design and concept of the proposal clearly has merit. A variation to E.6 is supported in this instance.

4.5 Environmental Planning and Assessment Regulation 2000 considerations

Applicable to the proposal:

Considered the control as it relates to the proposal:

If this control is applicable, does the proposal comply?

Clause 92 - Additional matters that consent authority must consider

☐ Yes ☒ No

☐ Yes ☐ No

☒ NA

☐ Yes ☐ No

☒ NA

Clause 93 Fire safety and other considerations

☐ Yes ☒ No

☐ Yes ☐ No

☒ NA

☐ Yes ☐ No

☒ NA

Clause 94 - Consent authority may require buildings to be upgraded

☐ Yes ☒ No

☐ Yes ☐ No

☒ NA

☐ Yes ☐ No

☒ NA

Clause 94A - Fire safety and other considerations applying to erection of temporary structures

☐ Yes ☒ No

☐ Yes ☐ No

☒ NA

☐ Yes ☐ No

☒ NA

* Non-compliances and any other significant issues discussed below

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

Impact on:	Likely significant impact/s?
Natural environment	No. The proposal will not have a significantly adverse impact on the natural environment of the locality.
Built environment	No. The proposal will not have a significantly adverse impact on the built environment of the locality.
Social Environment	No. The proposal will not have a significant social impact on the locality.
Economic impact	Yes – the proposal will provide factory space for light industrial purposes and will have ongoing impacts through employment generation and the like.
Construction Impacts	The development will generate minor impacts during its construction. Conditions of consent recommended to control hours of work, builders waste, construction noise, installation of sedimentation and erosion control measures and the like to ameliorate such impacts.

4.7 The suitability of the site for the development

Issue	Comment
Services - Water/ Sewer/ Stormwater - Ph/ power - Access	Site is not serviced by reticulated water or mains sewage. Stormwater via easement to the west. Phone power and vehicular access to public road available
Onsite Effluent Disposal	The proposed OSMS is a high level nutrient reduction system (i.e. Tertiary treatment) with disinfection and land application method via absorption rather than evapotranspiration, based on an occupancy of thirty staff. The system incorporates a 5000 litre septic tank/ grease trap in advance of an aerated treatment system with disinfection via a 10000 litre balance tank before disposal to the land application area. The applicants OSSM design prepared by Greg Alderson and Associates was also peer review by Whitehead and Associates Environmental Consultants who concludes “This design presents a conservative and innovative approach to onsite wastewater management which responds to the constraints of the site.” The OSSM design is considered acceptable subject to conditions of consent. This includes conditions to limit future use of the factory units such as a prohibition on food and drink premises and Artisan Food and Drink
Hazards - Flooding - ASS - Bushfire - Landslip	The site is not affected by potential hazards including Acid Sulfate Soils, Bushfire or Flooding. A standard condition is recommended in relation for Geotechnical detail in accordance with AS 1726 prior to the issue of the construction certificate.
Land Use conflicts	Potential land use conflicts due to adjoining residential properties have been considered. Potential impacts of noise and light are to be restricted by hours of operation, acoustic mitigation measures, light planning and management requirements.

4.8 Submissions made in accordance with this Act or the regulations

The development application was publicly exhibited.

There were 216 submissions made on the development application:

- For: 64

Against: 152

A summary of key issues raised in the submissions and the assessing officer’s response is provided in the tables below.

Submission Objection:

Comment:

Perceived degradation of intrinsic village value/ Heritage:

- Submitters identify concerns that the small-scale, quaint town that they enjoy, have enjoyed for decades, and continue to support, will be overrun by more tourists, less parking, and a development which they perceive to be contrary to the scale and nature of the village.

- Confer that the proposal will have a material and detrimental effect on the village

- Design is dominating and competes with church

- Imposing structure that will diminish/overbear heritage listed church.

- Reduced front boundary setbacks and scale are out of character with the village

- Two-storeys does not align with village character

The proposed use is permissible in the zone and complies with the development standards of the Byron LEP 2014. The design of the development is cognisant of the controls of the DCP pertaining to heritage and streetscape character, aesthetic, landscaping, on-site car parking, and boundary setbacks (considered in context and alongside performance criteria).

The buildings do not exceed the maximum permissible height. Each building is one storey with six of the units having an internal mezzanine floor, which is generally reflective of buildings in the locale.

Council’s Heritage Adviser considers that the design complements the streetscape and nearby heritage buildings.

The street cross section drawing in Figure 13 demonstrates that the tallest building will be lower than the overall height of the church on the west side of the street.

Off-site impacts;

- Impact of Parking, Noise & Smell on locals

- Operating hours and impact on adjoining residences

- Risk to wildlife in creeks from runoff (Coachwood Court)

- Lighting nuisance

- On street parking opposite the site to be lost (Jasper Corner) according to TIA

- Overshadowing of adjacent property

- Loss of breeze to properties at the west

- Proximity of bathrooms to building at the south (next to kitchen and lounge room)

The proposal provides on-site car parking in accordance with the DCP and hours of operation, stormwater quality management and the impact of the development on the surrounding environment will be controlled via conditions of consent.

The development does not propose to alter the condition of street parking on the opposite side of the street. Upgrades will be required on the street frontage of the development and these treatments will be consistent with the Draft Federal Village Concept Plan.

The building provides side setbacks between 3.7 and 4.8 metres to the south boundary and 10.1, 27.2 and 11 metres to the west boundaries. The winter solstice shadow diagram in figure 14 below presents the worst case scenario and demonstrates that the windows will receive full sunlight in the morning with the windows receiving partial light in the afternoon hours. To provide for a better outcome to the neighbours to the south conditions of consent are recommended to increase the developments setback to the southern boundary by a metre, and shift the entire development to the north by the same distance closer to Coachwood Court. It is considered this should significantly reduce overshadowing and still works in terms of vehicle access and egress, with consideration for the surrounding streets and intersections.

Use:

- Housing Shortage, residential use would be more beneficial.

- Residential land should be used to provide affordable housing in the shire.

- Use not align with zone.

- Assumed micro-brewery

The site is not zoned residential. The site is zoned RU5 Rural Village where a range of permissible uses are allowed. The proposal is development that is permitted with consent in the Byron LEP 2014.

The use of the development for artisan food and drink such as a brewery will not be permitted.

DCP Noncompliance:

- DCP Chapter E – light industry use is not consistent with residential intent

The proposal is development that is permitted with consent in the Byron LEP 2014. Pursuant to the EP&A Regulation 2000, a DCP is a guidance tool which is intended to be implemented within the dual assessment pathway criteria set out in the DCP; whereas the LEP is the statutory instrument prescribing land use in the shire. These matters for consideration are assessed in this report.

The design of the development is cognisant of the controls of the DCP pertaining to heritage and streetscape character, aesthetic, landscaping, on-site car parking, and boundary setbacks (considered in context and alongside performance criteria).

It is considered the proposal on balance is acceptable in this instance.

Commercial need:

- Proponent does not demonstrate commercial need for development

The proposal is not required to justify the commercial needs as would be required for a planning proposal to rezone land for a commercial purpose. The RU5 Village zone permits light industry on the land and is the evidence based strategic planning instrument that permits the proposed use.

Transport/Traffic:

- Unnecessary increase in traffic & congestion

- TIA based on 2016 data, and does not consider Council’s review of vehicle and pedestrian activity in Federal, or school buses in the area

- On street parking to be lost (Jasper Corner) according to TIA

- Overflow car parking if tenancies are occupied by commercial premises

- Refuse collection proposed to be on street. Detrimental impacts as a result

- No footpath for pedestrians

- Light Industry demands 1 parking space/100m², however commercial premises which are anticipated to occupy the tenancies require 1/20m²

All traffic parking, loading and waste collection required for the proposed light industry use (excluding artisan food and drink premises) is to be managed on site.

The proposal is not for retail development.

Refuse collection will be within the development site.

Footpath to be constructed along Federal Drive Frontage.

Council’s Development Engineer has considered the proposal is satisfactory subject to the recommended conditions of consent attached to this report. All parking is provided for on site in excess of what the DCP requires.

Land use conflicts

- Noise impacts

- Locating light industry adjacent to residential is inappropriate and LUCRA addresses agricultural land not adjacent residential land

This is addressed in DCP section above. Strict conditions of consent for the operation and management of the development are recommended including hours of operation.

OSMS, Stormwater & Trade waste:

- Issues/concerns including capacity of stormwater easement in coachwood court; quality of stormwater leaving the site flowing into drinking water catchment; the stormwater report provided with the DA is a feasibility study only and does not prove the system would work.

- OSMS report is ‘feasibility’ study as opposed to detailed plan for an actual system.

- Capacity of OSMS – accounts for 30 persons (staff) and does not consider users

Council Building Inspector, Development Engineer and Environmental Services reviewed the proposal in particular the types of light industry that will be permitted including creative industries and high tech industries (excluding food and drink premises) and conditions of consent are recommended to address the essential services required for the development including OSSM and trade waste

Conditions imposing any change of use needs a new DA is also imposed in the recommended conditions.

Confidence in Community Consultation:

- Many local submitters attest that the community consultation report provided with the application is not an accurate reflection of the consultation/community perception.

The DA was formally advertised in accordance with the Byron Community Participation Plan, Level 2 (Exhibition period: 8/3/21 to 21/3/21) once it was lodged. Submissions received are considered in this assessment.

Although not mandated Community Significant Development, under the Byron Community Participation Plan, the applicant undertook pre-lodgement consultation including advertising in The Echo inviting comments via Survey Monkey 2-28 August 2020 – 133 comments were received. 53% strongly supported. 7%, somewhat supportive. 3% neither supportive or opposed, 29% strongly opposed and 8% somewhat opposed the project. (Refer to Doc #E2021/40084).

Concurrent Village Master planning:

- Federal Village Masterplan not completed.

Council must accept lawfully made DAs and consider proposed Planning instruments through the assessment process. There is no draft planning instrument that will supersede Byron DCP 2014 and Byron LEP 2014 that has been exhibited. Although not a legal matter for consideration under the provisions of the EP&A Act, the Draft Federal Village Concept Plan has been considered by Council officers and the proposal for light industry on this site is not considered to be contrary to the intended outcomes of the Draft Federal Village Concept Plan that was exhibited in late 2021.

Consideration of the draft Concept Plan has also been given in terms of the proposed conditions of consent in terms of road widening, footpaths and the like. It is unreasonable to withhold the determination of the DA any further, considering the merits of it and that it has been with Council since early 2021.

Figure 14 - Cross section showing height of church on left and proposal on right

Figure 15 - Shadowing in winter solstice of Lot 1 to south of site.

Submissions of Support:

The following points made in the submissions of support are noted and summarised as follows:

· Commercial activity is desired in the rural areas of the shire

· Design is well considered, and complimentary to village character

· Low profile workspaces are good for the community

· Employment opportunities proximal to rural living premises is considered to benefit the community

· Removing car parking from the streetscape and placing behind the buildings is appropriate and well considered.

4.9 Public interest

The proposed development is unlikely to prejudice or compromise the public interest or create an undesirable precedent.

5. DEVELOPER CONTRIBUTIONS

5.1 Water & Sewer Levies

No Section 64 levies will be required.

5.2 Developer Contributions

Section 7.12 Contributions will be payable.

6. DISCLOSURE OF POLITICAL DONATIONS AND GIFTS

Disclosure details

Response

Has a Disclosure Statement been received in relation to this application?

If Yes, Provide Disclosure Statement register reference: 91.

Yes ☐ No ☒

Have staff received a ‘gift’ from anyone involved in this application that needs to be disclosed.

Yes ☐ No ☒

7. CONCLUSION

[1] https://cdn.shopify.com/s/files/1/0206/9470/files/Sustainability_Manifesto_-_Sept_2021.pdf

CSP Objective	L2	CSP Strategy	L3	DP Action	L4	OP Activity
Community Objective 4: We manage growth and change responsibly	4.1	Support the visions and aspirations of local communities through place-based planning and management	4.1.1	Develop, implement and update Place Plans that promote place-based forward planning strategies and actions	4.1.1.2	Continue to implement actions from Our Mullumbimby Masterplan, Bangalow Village Plan and Byron Arts and Industry Estate Plan