Late Items Agenda of Ordinary Meeting - Thursday, 15 December 2022

CONFLICT OF INTERESTS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Disclosure and participation in meetings

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

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

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

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

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

Non-pecuniary Interests - Must be disclosed in meetings.

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

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

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

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

· Have no involvement by absenting yourself from and not taking part in any debate or voting on the issue as of the provisions in the Code of Conduct (particularly if you have a significant non-pecuniary interest)

RECORDING OF VOTING ON PLANNING MATTERS

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

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

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

(b) not including the making of an order under that Act.

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

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

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

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

OATH AND AFFIRMATION FOR COUNCILLORS

Councillors are reminded of the oath of office or affirmation of office made at or before their first meeting of the council in accordance with Clause 233A of the Local Government Act 1993. This includes undertaking the duties of the office of councillor in the best interests of the people of Byron Shire and the Byron Shire Council and faithfully and impartially carrying out the functions, powers, authorities and discretions vested under the Act or any other Act to the best of one’s ability and judgment.

BYRON SHIRE COUNCIL

Late Reports 16.1

Deferred Items

Report No. 16.1 PLANNING - DA 10.2021.685.1 - New Dwelling to Create Dual Occupancy (Detached), Swimming Pool and Strata Subdivision to create Two (2) Lots and Common Property – 2 Keats Street, Byron Bay

Directorate: Sustainable Environment and Economy

Report Author: Ivan Holland, Planner

Chris Larkin, Manager Sustainable Development

File No: I2022/1814

Proposal:

Proposal description:	New Dwelling to Create Dual Occupancy (Detached), Swimming Pool and Strata Subdivision to create Two (2) Lots and Common Property
Property description:	LOT: 1 DP: 1257709
	2 Keats Street BYRON BAY
Parcel No/s:	269977
Applicant:	Town Planning Studio Pty Ltd
Owner:	Mrs M J Kerrigan
Zoning:	R2 Low Density Residential / 2(a) Residential / 7(a) Wetlands
Date received:	16 November 2021
Integrated / Designated Development:	☒ Integrated		☒ Designated			☐ Not applicable
Concurrence required	Yes – Enter CNR No.31702
Public notification or exhibition:	- Level 2 advertising under Council’s Community Participation Plan and designated development advertising under Schedule 1 (sub 8) of the EP&A Act and ss.56, 58 of the EP&A Regs. - Exhibition period: 26 November 2021 to 17 January 2022 - Submissions received: Nil (0)
Other approvals	☐ N/R	☒ W & S (68)		☐OSMS (68)	☐ ST (68)		☒ RA (138)
	Other:
Estimated cost	$519,000.00
Delegation to determine	Council
Issues	· Coastal Wetlands under the Coastal Management SEPP – Designated Development – Environmental Impact Statement · Unauthorised conversion of shed to a dwelling

Summary:

The DA proposes construction of a new dwelling, with a swimming pool, to create a dual occupancy (detached) and strata subdivision that will result in one dwelling being located on each strata lot and the residual land being incorporated into a common property lot.

The west of the property is mapped coastal wetland and the remainder of the property is coastal wetland proximity area. Aspects of the development (i.e., subdivision boundaries, part of the driveway and bush fire asset protection zones) encroach the mapped coastal wetland. Consequently, the proposal is designated development and must be determined by Council. However, the mapped boundaries of the coastal wetland are not particularly accurate, no native vegetation needs to be removed to facilitate the development and a Vegetation Management Plan has been offered for the ongoing care of the wetland.

Part of a shed on the property has been converted to a dwelling/habitable space without approval and will be required to be restored to a shed by way of condition of consent.

The application was reported to Council on the 8 December 2022 with a recommendation for approval but was deferred subject to reconsideration of the deferred conditions for the decommissioning of the shed and the prohibition on the cats and dogs as per Condition 55(d). The resolution states:

Resolved that Development Application No. 10.2021.685.1 for New Dwelling to Create Dual Occupancy (Detached), Swimming Pool and Strata Subdivision to create Two (2) Lots and Common Property, be deferred until the 15 December 2022 pending advice on a suitable condition for the use of the shed and Condition 55(d). (Lyon/Hunter)

These matters have been considered with a timeframe for the shed to be decommissioned within 12 months of the date of the consent being granted or prior to the issue of an occupation certificate (which ever comes first), whilst the cat and dog prohibition has also been removed as the site is not within Wildlife Conservation Area (eg the Lilli Pilli Estate or Hardy Avenue).

The application is recommended for approval subject to conditions to address the above, and other site-specific matters such as stormwater management, acid sulfate soils and vehicular access.

NOTE TO COUNCILLORS:

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

RECOMMENDATION:

That, pursuant to Section 4.16 of the Environmental Planning and Assessment Act 1979, Development Application No. 10.2021.685.1 for New Dwelling to Create Dual Occupancy (Detached), Swimming Pool and Strata Subdivision to create Two (2) Lots and Common Property, be granted consent subject to conditions attached to this report.

Attachments:

1 DA 10.2021.685.1 Development and subdivision plans, E2021/130777 , page 32⇩

2 DA 10.2021.685.1 Annotated Engineering plans, E2022/62977 , page 45⇩

3 DA10.2021.685.1 - Recommended Conditions., E2022/122019 , page 47⇩

Assessment:

1. INTRODUCTION

History/Background

Council’s records indicate the following development approval history for the property:

· The subject property was created by a 2 lot subdivision (DA 10.2016.794.1) which was approved on 13/6/2017.

The development assessment report for the 2 lot subdivision identifies the following development approvals for the pre-subdivision property:

· BA 6.1996.2739.1 – Dwelling and swimming pool – approved 16/1/1997;

· DA 10.1998.382.1 – Dwelling additions FPL (shed) – approved 14/12/1998;

· DA 10.2016.301.1 – Tree Removal (1) – approved 19/10/2016;

The development assessment report also states “Proposed Lot 1, with an area of approximately 1.02 hectares, would retain the existing dwelling, pool, sheds and State Environmental Planning Policy (SEPP) No. 14 Wetland. Proposed Lot 2, with an area of approximately 6050m² consists of predominately vacant land that could provide for future residential development”, with proposed Lot1 being the subject property for this development application.

Council requested further information in relation to engineering matters, particularly vehicular access and manoeuvring, on 31 January 2022 and received a response on 8 March 2022.

Council requested further information regarding sewerage plans and specifications on 19 May 2022 and received a response on 3 June 2022.

Description of the proposed development

This application seeks approval for a dwelling house to create a dual occupancy (detached), a swimming pool and strata subdivision.

The new dwelling will:

· Be single storey with the built-form being a skillion roof over masonry walls on a concrete slab.

· Contain two bedrooms, three bathrooms, a lounge room, kitchen, laundry and dining areas.

· Be located near the south-eastern corner of the property.

· Have an inground swimming pool located on the western side of the new dwelling.

The strata subdivision will (see Figure 1):

· Result in the current dwelling being located on proposed Lot 1 (identified as Lot A).

· Have the proposed dwelling located within Lot 2 (identified as Lot B).

· Have the remainder of the property allocated to a common property lot (identified as Lot 1).

The proposed lot areas are detailed in the table below:

Figure 1. Proposed strata subdivision plan.

Description of the site

Figure 2. Aerial photo with land zoning overlay. Subject property identified by yellow polygon.

Land is legally described	LOT: 1 DP: 1257709
Property address	2 Keats Street BYRON BAY
Land is zoned:	R2 Low Density Residential / 2(a) Residential / 7(a) Wetlands (see Figure 2)
Land area is:	1.022 ha
Property is constrained by:	· Flood liable land · Bushfire prone land · Acid sulfate soils - Class 2/5 · High environmental value vegetation (coastal swamp forest) · Mapped coastal wetland · Stormwater pipeline through north of property · Key fish habitat
	Is a BDAR required due to the location of the proposed development? (see consideration in Section 1.5 of the Biodiversity Assessment (Geolink, June 2021)	☐ 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

Figure 3. Extract of property title showing “easement for drainage of water 2.01 & 6 wide” (labelled (A)).

A site inspection was carried out on 7 November 2022

A picture containing tree, outdoor, sky, grass

Description automatically generated

Photo 1 – driveway access to property from Keats Street. View east

A picture containing tree, outdoor, grass, sky

Description automatically generated

Photo 2 – driveway access to proposed new dwelling. View north

A picture containing tree, grass, outdoor, sky

Description automatically generated

Photo 3 – driveway access to proposed new dwelling. View south

A picture containing grass, tree, outdoor, plant

Description automatically generated

Photo 4 – View north over site for proposed dwelling

A picture containing grass, outdoor, sky, tree

Description automatically generated

Photo 5 – View south over site for proposed dwelling with shed in the background. East section of building to be restored to use as a shed

A picture containing grass, tree, outdoor, plant

Description automatically generated

Photo 6 – View west over site for proposed dwelling

A truck parked in a fenced in area with trees in the back

Description automatically generated with low confidence

Photo 7 – View west over driveway to coastal wetland

A picture containing tree, outdoor, plant, forest

Description automatically generated

Photo 8 – Coastal wetland west of development site. Applicant has advised that fence has been installed along western edge of bush fire asset protection zone

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 subject to conditions.
S7.11 / Contributions Planner	No objections subject to conditions.
Rural Fire Service (RFS)	RFS issued general terms of approval (GTAs) and a bush fire safety authority for the proposal on 2 September 2022 (ref: DA20220706009128-Original-1).
Department of Primary Industries – NSW Fisheries (DPI Fisheries)	DPI Fisheries issued general terms of approval for the proposal on 5 August 2022 (ref: IDA22/80).

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

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

State Environmental Planning Policies (SEPP)

Consolidated SEPPs 2021

Considerations	Satisfactory	Unsatisfactory
SEPP (Biodiversity and Conservation) 2021 Chapter 4 Koala habitat protection 2021 The subject property is located within the koala planning area covered by the Byron Coast Comprehensive Koala Plan of Management (BCCKPoM) and consequently, determination of the development application must be consistent with the BCCKPoM (cl.4.4, 4.8 and Schedule 2). The subject property is not within a koala management precinct and does not contain any mapped koala habitat (see map below). Koala management precincts (yellow hatched area) and koala habitat (green shaded areas) – subject property identified by yellow polygon.	☒	☐
SEPP (Resilience and Hazards) 2021 Chapter 2 Coastal management In relation to the mapped areas under the SEPP (Coastal Management), the development is located as follows (see map below): · Proposed Lot B and Lot 1 subdivision boundaries, part of the driveway and bush fire asset protection zones encroach the large area of the property to the west that is mapped coastal wetland; and · The new dwelling and swimming pool are to be located entirely within the coastal wetland proximity area. The proposal is designated development as part of the proposal is on land identified as “coastal wetlands” and is “any other development” (cl.2.7(1) and (2), s.4.10 EP&A Act). The Applicant obtained the Secretary’s Environmental Assessment Requirements, and the DA is accompanied by an Environmental Impact Statement (EIS). The DA has been publicly exhibited for 28 days. Development consent must not be granted “… unless the consent authority is satisfied that sufficient measures have been, or will be, taken to protect, and where possible enhance, the biophysical, hydrological and ecological integrity of the coastal wetland or littoral rainforest” (cl.2.7(4)). The application proposes the following measures to manage impacts on the wetlands: · No native tree removal; and · weed control in the coastal wetland for 5 years following initial works (details are provided in the Vegetation management Plan provide with the application). A fence has been installed to the west of the gravel driveway accessing proposed Lot B (see Photos 6-8). The applicant advised that this fence has been installed along the western limit of the required bush fire asset protection zone for the proposed dwelling. Some pruning of the canopy of a stand of Melaleucas at the west of proposed Lot B (see Photo 7) is likely to be required to meet asset protection zone standards but otherwise adverse impacts on native vegetation from the development appear to be unlikely. The application proposes to discharge stormwater from the development to the drainage channel that runs along the southern boundary of the property. Stormwater quality modelling is not required by Council’s Development Control Plan, as developed area is less than 2,500m². However, consideration of the potential impacts of the stormwater discharge on the adjoining wetlands was a requirement of the EIS. An erosion and sediment control plan has been prepared for the construction phase of the development. The application proposes treating stormwater from the completed development using a bio retention basin prior to discharge. Council’s Development Engineer has advised that the bio retention basin needs to be extended and has recommended a condition accordingly. Mitchell’s Rainforest Snails (MRS) were identified on the site as part of the biodiversity assessment in the vegetated wetland areas. No specific mitigation measures for potential impacts on MRS have been proposed however the MRS were only identified in vegetated areas of the site separate from the development footprint. The new dwelling, swimming pool and associated works are within the “proximity area for coastal wetlands” and must not significantly impact on- (a) the biophysical, hydrological or ecological integrity of the adjacent coastal wetland or littoral rainforest, or (b) the quantity and quality of surface and ground water flows to and from the adjacent coastal wetland or littoral rainforest. (cl.2.8(1)). The proposed location for the dwelling (and associated APZ) and swimming pool is currently a combination of grassed area, gravel driveway and domestic landscaping. Indirect impacts (i.e., noise, light and vehicle strike) of the development are also expected to be minimal due to the location and scale of the development. Consequently, the development is unlikely to have a significant impact on the adjoining coastal wetland. Chapter 4 Remediation of land A preliminary site contamination report (Tim Fitzroy & Associates, February 2021) was provided with the application. The report states that the site was previously filled, not contaminating activities were identified from historical aerial photos and soil sampling results did not indicate any contamination. Council’s Environmental Health Officer found no evidence of contaminating activities having been carried out on site. Based on the above, the site is considered suitable for the proposed development.	☒	☐
SEPP (Building Sustainability Index: BASIX) 2004 Consideration: The dwelling is BASIX development, and a BASIX Certificate was provided with the application.	☒	☐
SEPP (Transport and Infrastructure) 2021 Consideration: The now disused Murwillumbah to Casino rail line is to the west of the property separated by a road reserve. The proposed development is for residential accommodation which could be adversely affected by rail noise or vibration in the unlikely event the rail line was to be reused for trains (cl.2.100). In their Secretary’s Environmental Assessment Requirements (SEARS) response, Transport for NSW (TfNSW) requested the following matters be addressed: · Impact of the development (construction and operation) on the rail line; · Stormwater management and implications to the rail corridor; and · An acoustic assessment confirming residents will not be subject to adverse noise and vibration if the rail corridor becomes operational. There will be no direct impacts of the development on the rail corridor due to separation of over 100m of vegetated land. Stormwater from the new development on Lot B will be discharged to the open drain that runs along the southern boundary of the property. Provided on-site stormwater detention and bioretention is provided in accordance with the condition recommended by Council’s Development Engineer, adverse impacts on the rail corridor from stormwater from the development are unlikely. The noise & vibration assessment (Noise Measurement Services, 1/2/2021) provided with the application concluded that, in the event passenger trains were reintroduced, the internal noise limit would not be exceeded in the dwellings, even with the windows open.	☒	☐

4.2A 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 dwelling house and dual occupancy (see Note) and in cl.6.2 of the EP&A Act as subdivision of land;

(b) The land is within the R2 Low Density Residential according to the LEP 2014 Land Zoning Map;

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

Zone Objectives – R2

Consideration

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

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

The dual occupancy will provide for the housing needs of the community.

Note: The building on proposed lot B, identified as “Exist. Shed”, has been converted to a dwelling/habitable space. This application does not seek to approve the use of this building as a dwelling and as such a condition is recommended for this building to be restored to a shed (i.e., through the removal of kitchen, bathroom and all non-structural internal partitions).

4.1 Minimum subdivision lot size

The minimum lot size requirement does not apply to strata subdivisions however, the proposed lots (A and B) exceed the minimum lot size for the R2 zoned land being 600m².

4.1E Minimum lot sizes for certain residential accommodation

The property, at 1.20ha, is greater than the minimum lot size for a dual occupancy (detached) in the R2 zone being 800m².

4.3 Height of buildings

The maximum height of the proposed dwelling is 5.5m above ground level and well below the 9m maximum .

4.4 Floor space ratio

The floor space ratio for Lots A and B is 0.22:1 and 0.1:1 respectively (based on dwelling floor areas of 240m² and 187m² respectively) being below the 0.5:1 maximum .

5.21 Flood planning

Council’s GIS indicates that the property is in a flood planning area. Council’s Development Engineer is satisfied with the development is compatible with the flood hazard (i.e., no works below 100 year flood level, floor heights above flood planning level, suitable access) and will not adversely affect flood function and behaviour.

6.1 Acid sulfate soils

The property is mapped as having acid sulfate soils (Class 2 to the west and class 5 to the east). An acid sulfate soils assessment (Tim Fitzroy & Associates, February 2021) was provided with the application. The assessment report concluded that, “The results of field and laboratory testing have shown the site contains actual acid sulfate soil from the ground surface to approximately 1.5m below the ground surface. The acid sulfate soil will present an environmental hazard and it will require treatment if it is to be disturbed or excavated for the proposed development”.

The acid sulfate soils assessment included a management plan which was found to be acceptable by Council’s Environmental Health Officer.

6.2 Earthworks

The development will require earthworks for the dwelling footings, the swimming pool (~1.5m in depth), connection of services and driveway works. The earthworks are relatively minor in scale and an erosion and sediment control plan was included with the application to managed construction-phase stormwater quality. The application states that no fill will be imported to the site. Excavated soils will be removed in accordance with site contamination/acid sulfate soils management requirements.

6.6 Essential services

Subject to conditions recommended by Council’s Development Engineer, the property is expected to have access to necessary essential services as it is in an established residential area and has an established dwelling. Council’s Engineers are satisfied the development can be adequately serviced subject to recommended conditions.

6.7 Affordable housing in residential and business zones

This clause requires that prior to granting consent to development for residential accommodation or the subdivision of land, the consent authority has considered— the need for providing, maintaining, or retaining affordable housing, and the need for imposing conditions relating to providing, maintaining, or retaining affordable housing including, but not limited to, imposing covenants and the registration of restrictions about users.

While the proposal does not provide for affordable housing as defined by the clause, it responds to this clause through provision of new housing stock. To ensure the dwelling is used for residential purposes and adds to the housing stock of the Shire, a condition has been recommended to preclude use of the dwellings for short-term rental accommodation and/or holiday letting.

Without an appropriate legislative mechanism in place, Council is unable to require anything further of a proponent currently. To this aim, staff are reviewing this clause to encompass wording in line with the on exhibition Affordable Housing Contribution Scheme - Byron Shire Council (nsw.gov.au) to provide greater guidance to applicant’s on expectations.

4.2B Byron Local Environmental Plan 1988 (LEP 1988)

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

(a) The proposed development is defined in the LEP 1988 Dictionary as dual occupancy (see Note) and subdivision of land (cl.6.2 of the EP&A Act);

(b) The land is within the 2(a) Residential and 7(a) Wetlands zones 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 Objectives – 2(a)

Consideration

(a) to make provision for certain suitable lands, both in existing urban areas and new release areas, to be used for the purposes of housing and associated neighbourhood facilities of high amenity and accessibility,

(b) to encourage a range of housing types in appropriate locations,

(c) to enable development for purposes other than residential purposes only if it is compatible with the character of the living area and has a domestic scale and character, and

(d) to control by means of a development control plan the location, form, character and density of permissible development.

The proposed dwelling house and strata subdivision are not inconsistent with zone 2(a) objectives.

Zone Objectives – 7(a)

Consideration

(a) to identify all lands covered by State Environmental Planning Policy No 14—Coastal Wetlands,

(b) to identify and preserve estuaries and wetlands and allow them to continue to function as feeding and breeding areas for wildlife, shellfish and fish,

(c) to prohibit development within the zone that is likely to have a detrimental effect on the habitat or landscape qualities or the flood mitigation function of the wetlands,

(d) to enable development of public works and environmental facilities where such development would not have a significant detrimental effect on the habitat or landscape qualities of the wetland and other significant coastal habitat areas, and

(e) to enable the careful control of noxious plants and weeds by means not likely to be significantly detrimental to the native ecosystem.

The development is unlikely to have a detrimental impact on the adjoining coastal wetland due to all building works being outside the wetland area, no native tree removal being required and the scale of the development being relatively minor.

Note: Only the bush fire APZ associated with the current dwelling encroaches zone 2(a) land and the bush fire APZ associated with the proposed dwelling encroaches zone 7(a) land. Otherwise, the dwellings are entirely located within zone R2 land.

11 Subdivision in rural areas for agriculture etc

The minimum subdivision lot size for zone 7(a) land is 40ha if the subdivision is “… for agriculture, forestry or a dwelling-house… ”. Proposed Lot 1 will contain all the zone 7(a) land and will be common property under the proposed strata arrangement but will be only 7260m² in area. The applicant has argued that the minimum lot size does not apply as the dwelling will not be located on proposed Lot 1. But for a small section of asset protection zone required for the new dwelling, no component of the dwelling (e.g., including the driveway) will encroach the 7(a) zoned land. On the basis that the common property lot is not being created for a dwelling, a variation to the minimum lot size requirement for the zone 7(a) land is not required.

17 Dual occupancy

A dual occupancy is permissible on the zone 2(a) land, “ but only if, not more than 2 dwellings will be created or result on the allotment”. As noted above, the shed that has been converted to a dwelling/habitable space will need to be restored back to a shed. A requirement has been recommended to this effect. The lots for the dwelling are greater than 800m² and the resulting floor space ratio will be less than 0.5:1 and as such the proposed dual occupancy can comply with this clause.

24 Development of flood liable land

As noted above, Council’s Development Engineer is satisfied with the development in relation to flood compatibility and flooding impacts.

36 Development adjoining wetland

The bush fire APZ for the current dwelling and possibly a small part of the driveway is located within zone 2(a) land which adjoins the wetland (zone 7(a) land). Development proposed in this area is minimal and is not contrary to the requirements of this clause.

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 clauses of LEP 1988 (in some cases subject to conditions and/or to the satisfaction of other assessing officers).

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)

B1 – Biodiversity

As acknowledged in the Biodiversity Assessment (Geolink, June 2021) provided with the application, the proposal does not comply with several of the required ecological setbacks. A variation to these setbacks has been sought on the basis that:

· the dwelling is setback as far as practicable from the coastal wetland;

· no vegetation of habitat removal is required for the development;

· bush fire APZs are located on cleared land and do not overlap the coastal wetland (Joe to confirm);

· no fencing is proposed; and

· A Vegetation Management Plan has been provided for the coastal wetland.

Based on the above measures, the proposal is consistent with the objectives of the development envelope controls (D1.2.1).

The subject property is in a 10/50 vegetation entitlement clearing area however the 10/50 exemption cannot be used to clear vegetation on this parcel of land as it is wholly or partially within a coastal wetland (online tools access 10/11/22).

The subject property was created by a 2 lot subdivision (DA 10.2016.794.1) which was approved subject to a Vegetation Management Plan (VMP) for “…restoration of the SEPP 14/Coastal Wetlands …”. The figure below is extracted from the approved VMP which illustrates the actins proposed by the VMP being weed control within the swamp sclerophyll forest and supplementary planting along the drain spoil batter. The VMP provided with this development application will further the weed control initiated under the original subdivision DA.

B3 – Services

The property has an existing dwelling and is in an established residential area. Essential services (i.e., water and wastewater) are available (or can be made available with required) for the additional dwelling. Stormwater is to be discharged in the Council drainage reserve along the southern boundary of the property and vehicular access will be via Keats Street which some upgrade works to the driveway and crossover being required.

B4 – Traffic Planning, Vehicle Parking, Circulation and Access

Proposed parking and traffic impacts are acceptable however Council’s Development Engineer identified issues relating to access and has recommended conditions to address removal of the boom gate, modification of the proposed turning bay in the road reserve to minimise pavement and avoid tree removal, deletion of the driveway kerb and provision of a turning head for the new dwelling.

B6 – Buffers and Minimising Land Use Conflict

The subject property adjoins the disused rail corridor to the west. The new dwelling will be ~140m to the east of the railway line and separated by established coastal swamp forest. A Noise Assessment was provided with the application that concluded that, in the event the railway recommenced operation, the relevant noise limit would be met in the dwelling even with the windows open.

B9 – Landscaping

A landscaping plan is required but was not provided with the application. A conditions has been recommended requiring a landscaping plan consistent with relevant provisions (B9.3.1 and B9.5.1).

D1 Residential Accommodation in Urban, Village and Special Purpose Zones

D1.2 General Provisions

The dwelling will be set back 2m from the eastern boundary and is consistent with building height plane and setback requirements (D1.2.1, D1.2.2).

D1.3 Dwelling Houses

The new dwelling and proposed Lot B, on which it will be situated, have adequate space to provide the required car parking and landscaping (D1.3.1, D.3.2).

D1.5 Dual Occupancy and Semi-Detached Dwellings

There is adequate space for car parking and private open space for both dwellings (D1.5.1, D1.5.4). Character impacts and impacts of neighbours will be negligible due to the new dwelling being located at the terminus of Keats Street and behind the current dwelling (D1.5.2, D1.5.3).

D6 – Subdivision

The proposed strata subdivision is generally consistent with the relevant subdivision design guidelines (D6.2.1). The two strata lots in the zone R2 land are greater than the minimum lot size, meet lot size and shape requirements (D6.4.1) and the two development lots have, or can be provided, suitable vehicular access (D6.4.2).

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

All the land governed by DCP 2010 will be contained within the common property lot (Proposed Lot 1). Other than driveway upgrade works, no other development is proposed in the common property lot.

Part B – Subdivision

The proposed strata subdivision is generally consistent with the relevant subdivision design guidelines (B2) and development guidelines (B3). Vehicle access, stormwater management and landscaping are considered above under DCP 2014 in relation to the development lots.

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

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	The proposal will not have a significantly adverse impact on the natural environment of the locality.
Built environment	The proposal will not have a significantly adverse impact on the built environment of the locality.
Social Environment	The proposal will not have a significant social impact on the locality.
Economic impact	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.

4.7 The suitability of the site for the development

The site is capable of being serviced, has manageable constraints 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 Nil (0) 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.

[1] https://yaleclimateconnections.org/2021/04/air-pollution-from-fossil-fuels-caused-8-7-million-premature-deaths-in-2018-study-finds/

[2] https://www.who.int/news-room/fact-sheets/detail/tobacco

[3] https://www.who.int/heli/risks/climate/climatechange/en/

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	1.1: Enhance trust and accountability through open and transparent leadership	1.1.1: Leadership - Enhance leadership effectiveness, capacity, and ethical behaviour	1.1.1.1	Coordinate Council's annual policy review program, update and publish adopted policies

CSP Objective	CSP Strategy	DP Action	Code	OP Activity
5: Connected Infrastructure We have connected infrastructure, transport, and facilities that are safe, accessible, and reliable	5.4: Provide accessible community facilities and open spaces	5.4.4: Sporting facilities and swimming pools - Ensure ongoing maintenance and upgrade of inclusive sporting facilities and swimming pools	5.4.4.3	Complete review of Plan of Management and associated Landscape Masterplan for Bangalow Sportsfields and seek funding opportunities for implementation