BYRON SHIRE COUNCIL

13.8 - Attachment 3

Table of Contents

Part 1 Introduction. 3

Purpose. 3

Property details and existing zones. 3

Background. 4

Part 2 Explanation of provisions. 6

Development and infrastructure within West Byron. 6

Subdivision and Development of Residential Zoned Land. 8

Subdivision in E2 and E3 Zones with Split Zones. 10

Part 3 Justification. 12

Section A Need for the planning proposal 12

1. Is the planning proposal a result of any strategic study or report?. 12

2. Is the planning proposal the best means of achieving the objectives or intended outcomes, or is there a better way? 12

3. Is there a net community benefit?. 12

Section B Relationship to strategic planning framework. 13

1. Is the planning proposal consistent with the objectives and actions contained within the applicable regional or sub-regional strategy (in this case the Far North Coast Regional Strategy)?. 13

2. Is the planning proposal consistent with the local Council’s Community Strategic Plan, or other local strategic plan? 13

1. Is the planning proposal consistent with the applicable State Environmental Planning Policies (SEPPs)? 13

2. Is the planning proposal consistent with applicable Ministerial Directions (s117 Directions)?. 14

Section C Environmental, social and economic impact 33

1. Is there any likelihood that critical habitat or threatened species, populations or ecological communities, or their habitats will be adversely affected as a result of the proposal?. 33

2. Are there any other likely environmental effects as a result of the planning proposal and how are they proposed to be managed?. 33

3. How has the planning proposal adequately addressed any social and economic effects?. 33

4. Justification of Proposed Provisions. 33

Section D State and Commonwealth interests. 35

1. Is there adequate public infrastructure for the planning proposal?. 35

2. What are the views of State and Commonwealth public authorities consulted in accordance with the gateway determination?. 36

Part 4 Mapping. 36

Part 5 Community consultation. 36

Part 6 Project timeline. 36

Summary and conclusions. 36

Appendix 1 Locality and Site Map. 38

Appendix 2 Existing Subdivision Layout 39

Appendix 3 Proposed Plan of Subdivision and Table of Lots Sizes and Zoned area. 40

Appendix 4 Proposed Stormwater Outlet Plan. 41

Appendix 5 Indicative Road Layout Plan. 43

Appendix 6 Vegetation Mapping. 43

Appendix 7 Restoration Management Zones. 45

Part 1 Introduction

Purpose

The purpose of this planning proposal is to correct anomalies in the Planning Instrument in relation to the permissibility of infrastructure in the various zones, the lot size requirement for medium density housing forms in the R2 Zone, and the minimum lot sizes in the E2 and E3 zones.

Property details and existing zones

The West Byron Urban Release Area (WBURA) comprises thirteen separate lots in six different ownerships. The following table (Table 1) identifies each lot together with lot areas and ownership details.

TABLE 1 – PROPERTY SUMMARY TABLE
LOT	DEPOSITED PLAN	FOLIO IDENTIFIER	LANDOWNER	AREA(Ha)
5	622736	5/622736	NSPT Pty Limited	4.939
6	622736	5/622736	NSPT Pty Limited	5.49
1	542178	1/542178	NSPT Pty Limited	21.56
227	755695	227/755695	NSPT Pty Limited	20.03
229	755695	229/755695	NSPT Pty Limited	24.99
9	111821	1/111821	NSPT Pty Limited	1.2775
1	1166535	1/1166535	NSPT Pty Limited	1582m²
1	201626	1/201626	Telicove Pty Limited	1.143
2	542178	2/542178	Telicove Pty Limited	21.71
1	780242	1/780242	Gousse Holdings Pty Ltd	21.01
2	818403	2/818403	Anthony Roy Smith Julie Deborah Smith Fletcher Project Developments Pty Ltd	11.46
1	520063	1/520063	David John O’Connor Carol Fay O’Connor	1.619
7020	1113431	7020/1113431	Crown Land (Drainage Reserve) 30.175m wide	2.86
			TOTAL AREA	138.25

Current zones are shown in Figure 1 below.

Figure 1 – Zoning Map

Source: Byron Local Environmental Plan 1988

Background

State Significant Site Study and Byron Local Environmental Plan 1988 Amendment

In October 2009, the Minister for Planning gazetted the West Byron Bay site as a potential State Significant Site.

The site is identified as a “New Release Area” in the Far North Coast Regional Strategy, 2000 – 2031.

Subsequently, a State Significant Site Study was prepared on behalf of the West Byron Bay Landowners Association and submitted to the Department in June 2011. The Study informed rezoning of the site for urban purposes.

The Study was publicly exhibited between 12 October 2011 and 14 December 2011. Following consideration of submissions received, including the proponent’s response to submissions, the Department prepared draft documents to rezone the site by way of a Draft State Environmental Planning Policy. The Department’s proposal was exhibited for 64 days between 28 November 2013 and 31 January 2014.

Subsequently, the site was rezoned for urban purposes by way of a State Environmental Planning Policy Amendment to Byron Local Environmental Plan 1988 (BLEP1988), which took effect from 14 November 2014.

Draft West Byron Urban Release Area – Development Control Plan 2013

The Department of Planning and Environment prepared the Draft WBURA Development Control Plan 2013 to support the rezoning and guide future development. The Draft Development Control Plan (DCP) was publicly exhibited with the Draft State Environmental Planning Policy (SEPP). However, on 28 February 2015 the Department referred the exhibited Draft DCP to Byron Shire Council (BSC) for finalisation and adoption.

Subsequently, BSC prepared a draft amendment to Byron DCP2014 incorporating specific provisions relating to the West Byron Bay site and addressing the relevant matters in Clause 101 of BLEP1988 (as amended). At the date of preparing this submission the Draft Amendment has not been publicly exhibited.

Voluntary Planning Agreement

The Draft Voluntary Planning Agreement (VPA) between the Minister for Planning and West Byron Landowners was publicly notified between 28 November 2013 and 31 January 2014 and was executed by all parties on 21 October 2014.

In summary, the VPA requires each landowner to pay contributions towards urban roads, conservation of the conservation land and preparation and implementation of a Vegetation Management Plan for the conservation land.

Planning Context

The planning proposal was initial prepared by Darryl Anderson Consulting on behalf of the various land owners within West Byron., The proposal seeks to amend clauses 82 and 83 in relation to residential development in the R2 Low Density Zone, amend Clause 85 in relation to the minimum lot size provisions for land with split zones, and insert a new clause in relation to permitting infrastructure in the Environmental Zones. The planning proposal was reported to Council on 29 October 2015 where the following was resolved:

15 – 567 Resolved

1. That Council proceed with the planning proposal in Attachment 1 and forward to the Department of Planning and Environment with the exception of the infrastructure clause in relation to development in the E zones, which will be amended to only permit infrastructure to cross E Zones but not to run parallel/along them.

2. That Council request the Department of Planning and Environment to delegate to Council the preparation and making of the LEP Amendment.

The Planning Proposal was forwarded to the Department of Planning and Environment who issued a Gateway on 22 January 2016 requesting minor changes in terms of the explanation of the clauses, justification and provision of a wider locality map. The amended planning proposal was then sent back to the Department for approval and an Altered Gateway was issued on the 15 April 2015 requesting that the provisions for Clause 72A be amended further removing the restriction limiting infrastructure to only cross the E Zones. The Gateway also suggested that the planning proposal could include “heads of consideration” as a clause to ensure works in the E Zones are appropriately considered in terms of minimising impacts.

In accordance with the Altered Gateway Determination the planning proposal has been amended.

Part 2 Explanation of provisions

In reviewing the planning controls under Part 4 of Byron LEP 1988 for the WBURA, it has become apparent that there are several anomalies in the Planning Instrument in relation to the permissibility of certain land uses in the various zones and the ability to comply with minimum lot sizes in the E2 and E3 zones. In summary the Planning Proposal will seek to amend the West Byron Provisions under Part 4 of Byron LEP 1988 by:

1. Providing an enabling clause to remove issues of permissibility for stormwater drainage, water and sewer reticulation and earthworks across the West Byron Site

2. Increase the lots sizes for medium density housing forms in the R2 Low Density Residential Zone; and

3. Provide an enabling clause to facilitate the subdivision of land which is partly zoned environmental protection (E2 and or E3) from the remainder of the property.

Development and infrastructure within West Byron

Discussion

To enable the subject land to be subdivided and developed, including filling and construction of normal urban infrastructure (roads, drainage, water supply and sewerage, etc.) in accordance with the intent of BLEP1988, it is proposed that an enabling clause be included in the Instrument to make earthworks, stormwater management systems, water supply systems and sewer reticulation systems explicitly permissible, with consent, in all zones. Note: stormwater management systems are not defined in the Standard Instrument but are defined in State Environmental Planning Policy (Infrastructure) 2007.

stormwater management system means:

(a) works for the collection, detention, distribution or discharge of stormwater (such as channels, aqueducts, pipes, drainage works, embankments, detention basins and pumping stations), and

(b) stormwater quality control devices (such as waste entrapment facilities, artificial wetlands, sediment ponds and riparian management), and

(c) stormwater reuse schemes.

As indicated in Table 2, currently earthworks, drainage and sewer reticulation systems are prohibited in the E2, E3 and RE1 zones and water supply systems are prohibited in all zones.

It will be necessary to carry out earthworks, drainage, water supply and sewerage works within the E2 and E3 zones including the existing drainage channel in particular.

TABLE 2 – PERMISSIBILITY OF PROPOSED DEVELOPMENT
ZONE	PROPOSED DEVELOPMENT
ZONE	ROADS	EARTHWORKS (FILLING)	DRAINAGE⁽¹⁾	WATER SUPPLY SYSTEMS⁽²⁾	SEWER RETICULATION SYSTEMS⁽³⁾
B1	PWC*	PWC	PWC	Prohibited	PWC
E2	PWC	Prohibited	Prohibited	Prohibited	Prohibited
E3	PWC	Prohibited	Prohibited	Prohibited	Prohibited
IN2	PWC	PWC	PWC	Prohibited	PWC
R2	PWC	PWC	PWC	Prohibited	PWC
R3	PWC	PWC	PWC	Prohibited	PWC
RE1	PWC	Prohibited⁽⁴⁾	Prohibited⁽⁴⁾	Prohibited⁽⁴⁾	Prohibited⁽⁴⁾

* PWC – Permissible with Consent

Notes:

1. State Environmental Planning Policy (Infrastructure) 2007, at Clause 111(1) provides that:

“111 Development permitted without consent

(1) Development for the purpose of stormwater management systems may be carried out by or on behalf of a public authority without consent on any land.”

2. State Environmental Planning Policy (Infrastructure) 2007, at Clause 125(1) provides that:

“125 Development permitted without consent

(1) Development for the purpose of water reticulation systems may be carried out by or on behalf of a public authority without consent on any land.”

3. State Environmental Planning Policy (Infrastructure) 2007, at Clause 106(3)(b) provides that:

“106 Development permitted with or without consent

(3) Development for the purpose of sewage reticulation systems may be carried out:

(b) by any other person with consent on any land.”

4. On the basis that the filling, drainage, water supply and sewer works are appropriately characterised as development for the purpose of a recreation area, they would be permissible, with consent, in the RE1 zone.

The provisions of State Environmental Planning Policy (Infrastructure) 2007 (SEPPI) in relation to permissibility of stormwater management systems and water reticulation systems cannot be relied upon as the infrastructure is not being “carried out by or on behalf of a public authority”, but by the developer.

Proposed LEP Amendment

To remove any potential issues of how development for the purposes of earthworks, stormwater management systems and water and sewer reticulation systems are characterised and their permissibility an enabling clause is recommended. The clause would:

Proposed LEP Amendment (Plain English Explanation)	Suggested Clause Wording
1) incorporate an objective that is to facilitate the provision of infrastructure for West Byron including stormwater management systems, earthworks, and water and sewer reticulation;	1) The objective of this clause is to ensure that any person can carry out development for the purpose of stormwater management system, earthworks, water reticulation system and sewage reticulation system on any land.
2) include further provisions that enable such infrastructure to occur with development consent in any zone.	2) Despite any other provisions of this Plan, development consent may be granted to development for the purpose of earthworks, stormwater management system, water reticulation system and sewage reticulation system on any land.
3) Include heads of consideration provisions to ensure works are appropriately sited and designed to have minimal potential for environmental impacts with compensatory offset and mitigation measures where such impacts cant be avoided.	3) Development consent must not be granted for works in the E2 and E3 Zone or on adjacent Zones R2, R3 or IN2 under subclause 2 unless it has taken into consideration: a) the likely impact on i) native terrestrial flora and fauna and its habitat, and ii) native aquatic flora and fauna and its habitat, and iii) the ecological role of the land, waterways, riparian land or wetland, and iv) threatened species, communities, populations and their habitats. b) the design and siting of infrastructure has been located as far as possible to avoid, or minimise impacts on, significant native vegetation and habitat. c) where impacts are unable to be avoided, management and compensatory measures to mitigate such impacts through the restoration of any existing disturbed or modified areas on the site or on adjacent lands.
4) Confirm the definition of stormwater management systems.	4) For the purposes of this clause stormwater management system* means:* a) works for the collection, detention, distribution or discharge of stormwater (such as channels, aqueducts, pipes, drainage works, embankments, detention basins and pumping stations), and b) stormwater quality control devices (such as waste entrapment facilities, artificial wetlands, sediment ponds and riparian management), and c) stormwater reuse schemes.

Subdivision and Development of Residential Zoned Land

Discussion

In relation to subdivision and development of the residential zoned land, Clauses 82 and 83 of BLEP1988 are in the following terms:

“82 Minimum lot sizes for dual occupancy, multi dwelling housing and residential flat buildings

(1) The objective of this clause is to achieve planned residential density in certain zones.

(2) Despite clause 81, development consent may be granted to development on a lot in a zone shown in Column 2 of the Table to this clause for a purpose shown in Column 1 of the Table opposite that zone, only if the area of the lot is equal to or greater than the area specified for that purpose and shown in Column 3 of the Table.

*Column 1*	*Column 2*	*Column 3*
Dual occupancy (attached)	R2 Low Density Residential R3 Medium Density Residential	300 square metres
Dual occupancy (detached)	R2 Low Density Residential R3 Medium Density Residential	400 square metres
Multi dwelling housing	R2 Low Density Residential R3 Medium Density Residential	450 square metres
Residential flat building	R3 Medium Density Residential	1,000 square metres”

“83 Exceptions to minimum subdivision lot sizes for certain residential development

(1) The objective of this clause is to encourage housing diversity without adversely impacting on residential amenity.

(2) This clause applies to development on land in the following zones:

(a) Zone R2 Low Density Residential,

(b) Zone R3 Medium Density Residential.

(3) Development consent may be granted for a single development application for development to which this clause applies that is both of the following:

(a) the subdivision of land into 3 or more lots,

(b) the erection of a dwelling house, an attached dwelling or a semi-detached dwelling on each lot resulting from the subdivision, if the size of each lot is equal to or greater than:

(i) for the erection of a dwelling house—200 square metres, or

(ii) for the erection of an attached dwelling—150 square metres, or

(iii) for the erection of a semi-detached dwelling—150 square metres.”

Following consultations with Council Officers and the landowners, it is considered that due to the existing urban character of Byron Bay and the existing urban areas within the region, it would be more appropriate if the R2 zoned land in West Byron is more consistent with that which already exists and to provide a clear differentiation with the R3 zoned land. West Byron will deliver a diversity of dwellings through the development of the R3 zoned lands and with strategically placed development sites within the R2 zone where dual occupancy, multi dwelling housing and integrated housing are better suited.

The West Byron landowners have provided support to the proposed amendments to the R2 Zone with regard to increasing the minimum lot size to provide dual occupancy, multi dwelling housing and integrated housing under Clauses 82 and 83 of BLEP1988 as follows:

Table 3 – Minimum Lot Size requirements – Various Housing Forms

DEVELOPMENT FORM	ZONING	LOT SIZE
Dual Occupancy (attached)	R2	600m²
Dual Occupancy (detached)	R2	700m²
Multi Dwelling Housing	R2	1000m²
Integrated Housing - Subdivision of land into 3 or more lots and a dwelling erected on each lot	R2	250m² per attached or semi attached dwellings = 750m² min for 3 dwellings 300m² per detached dwellings = 900m² min for 3 dwellings

Proposed LEP Amendment

Having regard to the above, the following amendments are proposed to Clauses 82 and 83:

82 Minimum lot sizes for dual occupancy, multi dwelling housing and residential flat buildings

(1) The objective of this clause is to achieve planned residential density in certain zones.

*Column 1*	*Column 2*	*Column 3*
Dual occupancy (attached)	R2 Low Density Residential R3 Medium Density Residential	600 square metres 300 square metres
Dual occupancy (detached)	R2 Low Density Residential R3 Medium Density Residential	700 square metres 400 square metres
Multi dwelling housing	R2 Low Density Residential R3 Medium Density Residential	1,000 square metres 450 square metres
Residential flat building	R3 Medium Density Residential	1,000 square metres

83 Exceptions to minimum subdivision lot sizes for certain residential development

(1) The objective of this clause is to encourage housing diversity without adversely impacting on residential amenity.

(2) This clause applies to development on land in the following zones:

(a) Zone R2 Low Density Residential,

(b) Zone R3 Medium Density Residential.

(3) Development consent may be granted for a single development application for development to which this clause applies that is both of the following:

(a) the subdivision of land into 3 or more lots,

(b) the erection of a dwelling house, an attached dwelling or a semi-detached dwelling on each lot resulting from the subdivision, if the size of each lot is equal to or greater than:

(i) for the erection of a dwelling house—300 square metres for R2 and 200 square metres for R3;

(ii) for the erection of an attached dwelling—250 square metres for R2 and 150 square metres for R3;

(iii) for the erection of a semi-detached dwelling—250 square metres for R2 and 150 square metres for R3.

Subdivision in E2 and E3 Zones with Split Zones

Discussion

In relation to subdivision of the subject land it will also be necessary to create residual lots zoned E2 and E3 with areas of less than 40 hectares, because the parent lots do not contain more than 40 hectares of E2 and E3 land. The attached Plan of Proposed Subdivision (Figure 2, 9 September 2015 and Table) show the configuration and areas of the proposed lots.

Clause 81 of Byron LEP 1988 requires a minimum lot size of 40 hectares for lots created in the E2 and E3 zones.

As indicated on the attached Plan of Proposed Subdivision and Table, the total area of E2/E3 land in each proposed lot is well below the 40 hectare minimum, whilst some existing lots are already substantially less than 40 hectares in area. With the land owned by multiple land owners, it is unlikely that development of these parcels will be co-ordinated in such a way to create a large residual lot of E2 and E3 Zoned Land that can meet the 40ha minimum standard.

The provisions for West Byron also fail to acknowledge that some lots also retain areas of land zoned 7(a) Environment Protection (Wetlands) which are not covered by the West Byron Provisions under Byron LEP 1988 and have been deferred from Byron LEP 2014. These areas of wetland are in all likelihood to be retained within the residual lots containing E2 and E3.

Clause 85 of BLEP1988 (WB) which provides for an exception to development standards is in the following terms:

“85 Exceptions to development standards

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

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Director-General has been obtained.

(5) In deciding whether to grant concurrence, the Director-General must consider:

(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b) the public benefit of maintaining the development standard, and

(c) any other matters required to be taken into consideration by the Director-General before granting concurrence.

(6) Development consent must not be granted under this clause for a subdivision of land in Zone E2 Environmental Conservation or Zone E3 Environmental Management if:

(a) the subdivision will result in 2 or more lots of less than the minimum area specified for such lots by a development standard, or

(b) the subdivision will result in at least one lot that is less than 90% of the minimum area specified for such a lot by a development standard.

(7) After determining a development application made pursuant to this clause, the consent authority must keep a record of its assessment of the factors required to be addressed in the applicant’s written request referred to in subclause (3).

(8) This clause does not allow development consent to be granted for development that would contravene any of the following:

(a) a development standard for complying development,

(b) a development standard that arises, under the regulations under the Act, in connection with a commitment set out in a BASIX certificate for a building to which State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies or for the land on which such a building is situated,

(c) clause 87 (Controls relating to miscellaneous permissible uses),

(d) clause 99 or 100.”

In effect, Clause 85(6)(b) requires any residue lots zoned E2 or E3 to have a minimum area of 36ha. If there is less than 36ha in the parent parcel, the effect of Clause 85(6)(b) is that the urban zoned part of the land cannot be subdivided and developed. This is clearly an outcome that cant be achieved and cannot have been the intent of the Clause.

Proposed LEP Amendment

It is considered that Clause 85, is inappropriate because it precludes subdivision and development of urban zoned land and may result in impractical planning outcomes with multiple properties and different land owners. An enabling clause worded to achieve the following would be appropriate.

Proposed LEP Amendment (Plain English Explanation)

Suggested Clause Wording

i) Objectives to enable consent to be granted to create residue lots of E2 and / or E3 zoned land that are less than the minimum lot size requirement; and

ii) These residue lot must contain all of the E2 and / or E3 zoned land that was in the original lot;

1) The objective of this clause is to enable development consent to be granted for lots in the E2 and E3 Zone which do not comply with the minimum lot size map if they are residual lots

2) Despite any other provisions of this Plan, development consent can be granted for the subdivision of land in the E2 or E3 Zone provided all land originally in the E2 or E3 Zone remains in one lot as a residual lot.

Part 3 Justification

Section A Need for the planning proposal

1. Is the planning proposal a result of any strategic study or report?

No – the Planning Proposal results from anomalies in the Planning Instrument identified in the review of the planning controls for the West Byron Site.

2. Is the planning proposal the best means of achieving the objectives or intended outcomes, or is there a better way?

Rather than insert an enabling clause to permit infrastructure, the Land Use Tables could be amended to permit the currently prohibited infrastructure. However this is not considered to be an efficient and appropriate option. Similarly, the Minimum Lot Size Map could be amended to remove the minimum lot size in the E2 and E3 zones, however again, this is not considered to be an efficient and appropriate option.

3. Is there a net community benefit?

Yes – the Planning Proposal will enable development of the WBURA to be approved and constructed to meet the objectives of the Far North Coast Regional Strategy 2006-2031 (FNCRS).

Section B Relationship to strategic planning framework

1. Is the planning proposal consistent with the objectives and actions contained within the applicable regional or sub-regional strategy (in this case the Far North Coast Regional Strategy)?

Given the facilitative nature of the proposed amendments to the Planning Instrument and as there will be no change to the existing zone boundaries, it is considered that the proposal is consistent with the FNCRS.

2. Is the planning proposal consistent with the local Council’s Community Strategic Plan, or other local strategic plan?

In 2012 Council adopted a 10 year + Community Strategic Plan 2022 (CSP). The plan is based on five key themes being Corporate Management, Economy, Environment, Community Infrastructure, Society and Culture. The planning proposal is generally consistent with the following relevant goals:

CM4.1 Promote community compliance with Acts, Regulations, Instruments and Council policies and standards	Consistent – the Planning Proposal will remove potential compliance issues.
EC2.1 Build a tourism industry that delivers local and regional benefits in harmony with the community’s values.	Not applicable.
EC2.2 Develop Byron Shire as a leader in responsible and sustainable tourism and encourage sustainable business practices within the tourism industry.	Not applicable.
EC2.3 Support and promote a collaborative shire-wide approach to managing tourism.	Not applicable.

On this basis the planning proposal is generally consistent with Council’s CSP.

1. Is the planning proposal consistent with the applicable State Environmental Planning Policies (SEPPs)?

State Environmental Planning Policy (SEPP)	Compliance of Planning Proposal
SEPP 71 – Coastal Protection	Clause 70 of BLEP1988(WB) provides that SEPP71 does not apply to the West Byron Bay site. However, the proposal is not inconsistent with relevant Clause 8 matters.
SEPP 55 – Remediation of land	The Planning Proposal is not inconsistent as it does not extend the urban footprint and SEPP55 contains adequate provisions to address contamination at the Development Application stage.
SEPP (West Byron) 2014 (Repealed)	The proposed amendments give effect to the development envisaged under the SEPP.

2. Is the planning proposal consistent with applicable Ministerial Directions (s117 Directions)?

Consistency with the s117 Directions is assessed in the following table:

BYRON SHIRE COUNCIL

13.8 - Attachment 3

Consistency with S117(2) Directions

S117 Direction	Application	Relevance to this planning proposal	Consistency with direction
1. Employment and Resources
1.1 Business and Industrial Zones	Applies when a relevant planning authority prepares a planning proposal that will affect land within an existing or proposed business or industrial zone (including the alteration of any existing business or industrial zone boundary).	The Planning Proposal will extend the range of permissible uses in the B1 zone to include water supply systems.	Consistent
1.2 Rural Zones	Applies when a relevant planning authority prepares a planning proposal that will affect land within an existing or proposed rural zone (including the alteration of any existing rural zone boundary). Under this direction a planning proposal must: (a) not rezone land from a rural zone to a residential, business, industrial, village or tourist zone. (b) not contain provisions that will increase the permissible density of land within a rural zone (other than land within an existing town or village).	Not applicable – no rural zoned land involved.
1.3 Mining, Petroleum Production and Extractive Industries	Applies when a relevant planning authority prepares a planning proposal that would have the effect of: (a) prohibiting the mining of coal or other minerals, production of petroleum, or winning or obtaining of extractive materials, or (b) restricting the potential development of resources of coal, other minerals, petroleum or extractive materials which are of State or regional significance by permitting a land use that is likely to be incompatible with such development.	Nothing in this planning proposal will prohibit or restrict exploration or mining.	Consistent
1.4 Oyster Aquaculture	Applies when a relevant planning authority prepares any planning proposal that proposes a change in land use which could result in: (a) adverse impacts on a Priority Oyster Aquaculture Area or a “current oyster aquaculture lease in the national parks estate”, or (b) incompatible use of land between oyster aquaculture in a Priority Oyster Aquaculture Area or a “current oyster aquaculture lease in the national parks estate” and other land uses.	Priority Oyster Aquaculture Areas (POAA) exist in the Brunswick River however there is minimal likelihood the planning proposal will have adverse impacts on POAA as the proposed use of the land will be either minor (and therefore exempt development) or subject to an environmental assessment on a case by case basis through the development application process. Also most land in the vicinity of the POAA is already zoned for environmental protection or within the national parks estate. The WBURA is approximately 10km south of the Brunswick River.	Consistent
1.5 Rural Lands	Applies when: (a) a relevant planning authority prepares a planning proposal that will affect land within an existing or proposed rural or environment protection zone (including the alteration of any existing rural or environment protection zone boundary), or (b) a relevant planning authority prepares a planning proposal that changes the existing minimum lot size on land within a rural or environment protection zone. A planning proposal to which clauses (a) and (b) apply must be consistent with the Rural Planning Principles listed in State Environmental Planning Policy (Rural Lands) 2008. A planning proposal to which clause (b) applies must be consistent with the Rural Subdivision Principles listed in State Environmental Planning Policy (Rural Lands) 2008.	7 Rural Planning Principles The Rural Planning Principles are as follows: (a) the promotion and protection of opportunities for current and potential productive and sustainable economic activities in rural areas, Comment: The proposal does not affect potential uses of rural land. Note: no land zoned rural is affected. (b) recognition of the importance of rural lands and agriculture and the changing nature of agriculture and of trends, demands and issues in agriculture in the area, region or State, Comment: As above.	Consistent or inconsistency is minor and justified
		(c) recognition of the significance of rural land uses to the State and rural communities, including the social and economic benefits of rural land use and development, Comment: As above. (d) in planning for rural lands, to balance the social, economic and environmental interests of the community, Comment: As above. (e) the identification and protection of natural resources, having regard to maintaining biodiversity, the protection of native vegetation, the importance of water resources and avoiding constrained land, Comment: Only minor disturbance of E2 and E3 zones is likely to result. (f) the provision of opportunities for rural lifestyle, settlement and housing that contribute to the social and economic welfare of rural communities, Comment: Not applicable.
		(g) the consideration of impacts on services and infrastructure and appropriate location when providing for rural housing, Comment: Not applicable. (h) ensuring consistency with any applicable regional strategy of the Department of Planning or any applicable local strategy endorsed by the Director-General. Comment: The proposal is consistent with the FNCRS. Note. Under section 117 of the Act, the Minister has directed that councils exercise their functions relating to local environmental plans in accordance with the Rural Planning Principles. Under section 55 of the Act, the Minister may also direct a council to prepare a local environmental plan. 8 Rural Subdivision Principles The Rural Subdivision Principles are as follows: (a) the minimisation of rural land fragmentation, Comment: The proposal will not fragment existing E2 and E3 zoned land. (b) the minimisation of rural land use conflicts, particularly between residential land uses and other rural land uses,
		Comment: The proposal will not increase conflicts because it does not increase relevant additional uses in the E zones. (c) the consideration of the nature of existing agricultural holdings and the existing and planned future supply of rural residential land when considering lot sizes for rural lands, Comment: Adjoining land is used predominantly for grazing. (d) the consideration of the natural and physical constraints and opportunities of land, Comment: No changes to the extent of the E2 and E3 zones are proposed. (e) ensuring that planning for dwelling opportunities takes account of those constraints. Not applicable. Note. Under section 117 of the Act, the Minister has directed that councils exercise their functions relating to changes in minimum lot sizes under local environmental plans in accordance with the Rural Planning Principles and the Rural Subdivision Principles. Under section 55 of the Act, the Minister may also direct a council to prepare a local environmental plan.

2.1 Environment Protection Zones	A planning proposal must include provisions that facilitate the protection and conservation of environmentally sensitive areas. A planning proposal that applies to land within an environment protection zone or land otherwise identified for environment protection purposes in a LEP must not reduce the environmental protection standards that apply to the land (including by modifying development standards that apply to the land). This requirement does not apply to a change to a development standard for minimum lot size for a dwelling in accordance with clause (5) of Direction 1.5 “Rural Lands”.	It is not possible to avoid drainage work, earthworks, water supply and sewerage works in parts of the land zoned E2 and E3, particularly as the existing drainage channel within the Crown drainage reserve is zoned partly E3, and points of discharge for stormwater will be into the E2 and E3 Zones Infrastructure within the proposed road corridors will also need to cross the E2 and E3 zones. Because of the zoning configuration and to comply with geometric road standards and given the existence of the drainage corridor, infrastructure within the E2 and E3 zones is unavoidable.	Inconsistency justified.
2.2 Coastal Protection	Direction applies when a relevant planning authority prepares a planning proposal that applies to land in the coastal zone. A planning proposal must include provisions that give effect to and are consistent with: (a) the NSW Coastal Policy: A Sustainable Future for the New South Wales Coast 1997, (b) the Coastal Design Guidelines 2003, (c) the manual relating to the management of the coastline for the purposes of section 733 of the Local Government Act 1993 (the NSW Coastline Management Manual 1990).	Certain land affected by this proposal is located within the coastal zone, which affects the eastern half of Byron Shire. It is consistent with the NSW Coastal Policy as there is minimal likelihood of physical impact on the environment and where a development is not minor it will require an assessment through a development application. If any land in Byron Shire affected by coastal erosion is proposed for short term rental accommodation then Council will consider the management of the coastline and response to emergencies as part of any application it receives.	Consistent
2.3 Heritage Conservation	A planning proposal must contain provisions that facilitate the conservation of: (a) Items, places, buildings, works, relics, moveable objects or precincts of environmental heritage significance to an area, in relation to the historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value of the item, area, object or place, identified in a study of the environmental heritage of the area, (b) Aboriginal objects or Aboriginal places that are protected under the National Parks and Wildlife Act 1974, and (c) Aboriginal areas, Aboriginal objects, Aboriginal places or landscapes identified by an Aboriginal heritage survey prepared by or on behalf of an Aboriginal Land Council, Aboriginal body or public authority and provided to the relevant planning authority, which identifies the area, object, place or landscape as being of heritage significance to Aboriginal culture and people.	Byron LEP 2014 currently contains provisions that are consistent with this Direction.	Consistent
2.4 Recreation Vehicle Areas	A planning proposal must not enable land to be developed for the purpose of a recreation vehicle area (within the meaning of the Recreation Vehicles Act 1983): (a) where the land is within an environment protection zone, (b) where the land comprises a beach or a dune adjacent to or adjoining a beach,	This Planning Proposal does not enable land to be developed for a recreation vehicle area.	Consistent
	(c) where the land is not within an area or zone referred to in paragraphs (4)(a) or (4)(b) unless the relevant planning authority has taken into consideration: (i) the provisions of the guidelines entitled Guidelines for Selection, Establishment and Maintenance of Recreation Vehicle Areas, Soil Conservation Service of New South Wales, September 1985, and (ii) the provisions of the guidelines entitled Recreation Vehicles Act, 1983, Guidelines for Selection, Design, and Operation of Recreation Vehicle Areas, State Pollution Control Commission, September 1985.
3. Housing, Infrastructure and Urban Development
3.1 Residential Zones	This direction applies when a relevant planning authority prepares a planning proposal that will affect land within: (a) an existing or proposed residential zone (including the alteration of any existing residential zone boundary), (b) any other zone in which significant residential development is permitted or proposed to be permitted. A planning proposal must include provisions that encourage the provision of housing that will: (a) broaden the choice of building types and locations available in the housing market, and (b) make more efficient use of existing infrastructure and services, and	The Planning Proposal will reduce the density of residential development in the R2 zone to achieve a built form, character and amenity which is compatible with the zone objectives, which require housing “within a low density residential environment”. The amendment will also provide differentiation between the R2 and the R3 Zones in terms of maximum residential densities. The minimum lot sizes in Clauses 82 and 83 of the Instrument are inconsistent with the zone objectives and unlikely delivery good urban design outcomes.	Inconsistency justified
	(c) reduce the consumption of land for housing and associated urban development on the urban fringe, and (d) be of good design. A planning proposal must, in relation to land to which this direction applies: (a) contain a requirement that residential development is not permitted until land is adequately serviced (or arrangements satisfactory to the council, or other appropriate authority, have been made to service it), and (b) not contain provisions which will reduce the permissible residential density of land.
3.2 Caravan Parks and Manufactured Home Estates	Applies when a relevant planning authority prepares a planning proposal. In identifying suitable zones, locations and provisions for caravan parks in a planning proposal, the relevant planning authority must: (a) retain provisions that permit development for the purposes of a caravan park to be carried out on land, and (b) retain the zonings of existing caravan parks, or in the case of a new principal LEP, zone the land in accordance with an appropriate zone under the Standard Instrument (Local Environmental Plans) Order 2006 that would facilitate the retention of the existing caravan park.	The Planning Proposal does not alter existing provisions relating to caravan parks.	Consistent
	In identifying suitable zones, locations and provisions for manufactured home estates (MHEs) in a planning proposal, the relevant planning authority must: (a) take into account the categories of land set out in Schedule 2 of SEPP 36 as to where MHEs should not be located, (b) take into account the principles listed in clause 9 of SEPP 36 (which relevant planning authorities are required to consider when assessing and determining the development and subdivision proposals), and (c) include provisions that the subdivision of MHEs by long term lease of up to 20 years or under the Community Land Development Act 1989 be permissible with consent.
3.3 Home Occupations	Planning proposals must permit home occupations to be carried out in dwelling-houses without the need for development consent.	The Planning Proposal does not alter existing provisions relating to home occupations.	Consistent
3.4 Integrating Land Use and Transport	Applies when a relevant planning authority prepares a planning proposal that will create, alter or remove a zone or a provision relating to urban land, including land zoned for residential, business, industrial, village or tourist purposes. A planning proposal must locate zones for urban purposes and include provisions that give effect to and are consistent with the aims, objectives and principles of: (a) Improving Transport Choice – Guidelines for planning and development (DUAP 2001), and (b) The Right Place for Business and Services – Planning Policy (DUAP 2001).	The Planning Proposal will not alter existing zones.	Consistent
3.5 Development Near Licensed Aerodrome	Applies when a relevant planning authority prepares a planning proposal that will create, alter or remove a zone or a provision relating to land in the vicinity of a licensed aerodrome. The main requirements of the Direction are that Council considers the Obstacle Limitation Surface (OLS) as defined by that Department of the Commonwealth for residential purposes, and does not increase residential densities in areas where the ANEF, as from time to time advised by that Department of the Commonwealth, exceeds 25.	The site is not in the vicinity of an aerodrome.	Consistent

4.1 Acid Sulfate Soils	Applies when a relevant planning authority prepares a planning proposal that will apply to land having a probability of containing acid sulfate soils as shown on the Acid Sulfate Soils Planning Maps. A council shall not prepare a draft LEP that proposes an intensification of land uses on land identified as having a probability of containing acid sulfate soils on the Acid Sulfate Soils Planning Maps unless the council has considered an acid sulfate soils study assessing the appropriateness of the change of land use given the presence of acid sulfate soils.	Clause 97 of BLEP1988 (WB) contains the standard acid sulphate soils provisions.	Consistent
4.2 Mine Subsidence and Unstable Land	Applies when a relevant planning authority prepares a planning proposal that permits development on land that: (a) is within a mine subsidence district, or (b) has been identified as unstable in a study, strategy or other assessment undertaken: (i) by or on behalf of the relevant planning authority, or (ii) by or on behalf of a public authority and provided to the relevant planning authority.	The site is not within a mine subsidence district.	Consistent
4.3 Flood Prone Land	Applies when a relevant planning authority prepares a planning proposal that creates, removes or alters a zone or a provision that affects flood prone land. A planning proposal must include provisions that give effect to and are consistent with the NSW Flood Prone Land Policy and the principles of the Floodplain Development Manual 2005 (including the Guideline on Development Controls on Low Flood Risk Areas). A planning proposal must not rezone land within the flood planning areas from Special Use, Special Purpose, Recreation, Rural or Environment Protection Zones to a Residential, Business, Industrial, Special Use or Special Purpose Zone. A planning proposal must not contain provisions that apply to the flood planning areas which: (a) permit development in floodway areas, (b) permit development that will result in significant flood impacts to other properties, (c) permit a significant increase in the development of that land, (d) are likely to result in a substantially increased requirement for government spending on flood mitigation measures, infrastructure or services, or (e) permit development to be carried out without development consent except for the purposes of agriculture (not including dams, drainage canals, levees, buildings or structures in floodways or high hazard areas), roads or exempt development. A planning proposal must not impose flood related development controls above the residential flood planning level for residential development on land, unless a relevant planning authority provides adequate justification for those controls to the satisfaction of the Director-General (or an officer of the Department nominated by the Director-General). For the purposes of a planning proposal, a relevant planning authority must not determine a flood planning level that is inconsistent with the Floodplain Development Manual 2005 (including the Guideline on Development Controls on Low Flood Risk Areas) unless a relevant planning authority provides adequate justification for the proposed departure from that Manual to the satisfaction of the Director-General (or an officer of the Department nominated by the Director-General).	The Planning Proposal does not create, remove or alter a zone or a provision that affects flood prone land.	Consistent
4.4 Planning for Bushfire Protection	Applies when a relevant planning authority prepares a planning proposal that will affect, or is in proximity to land mapped as bushfire prone land. In the preparation of a planning proposal the relevant planning authority must consult with the Commissioner of the NSW Rural Fire Service following receipt of a gateway determination under section 56 of the Act, and prior to undertaking community consultation in satisfaction of section 57 of the Act, and take into account any comments so made. A planning proposal must: (a) have regard to Planning for Bushfire Protection 2006, (b) introduce controls that avoid placing inappropriate developments in hazardous areas, and (c) ensure that bushfire hazard reduction is not prohibited within the APZ. A planning proposal must, where development is proposed, comply with the following provisions, as appropriate: (a) provide an Asset Protection Zone (APZ) incorporating at a minimum: (i) an Inner Protection Area bounded by a perimeter road or reserve which circumscribes the hazard side of the land intended for development and has a building line consistent with the incorporation of an APZ, within the property, and (ii) an Outer Protection Area managed for hazard reduction and located on the bushland side of the perimeter road,	Part of the site is mapped as bushfire prone, however this Planning Proposal does not increase the area of residential land and does not increase densities. Compliance with Planning for Bushfire Protection 2006 will be addressed at the Development Application stage.	Consistent
	(b) for infill development (that is development within an already subdivided area), where an appropriate APZ cannot be achieved, provide for an appropriate performance standard, in consultation with the NSW Rural Fire Service. If the provisions of the planning proposal permit Special Fire Protection Purposes (as defined under section 100B of the Rural Fires Act 1997), the APZ provisions must be complied with, (c) contain provisions for two-way access roads which link to perimeter roads and/or to fire trail networks, (d) contain provisions for adequate water supply for fire fighting purposes, (e) minimise the perimeter of the area of land interfacing the hazard which may be developed, (f) introduce controls on the placement of combustible materials in the Inner Protection Area.
5. Regional Planning
5.1 Implementation of Regional Strategies	Planning proposals must be consistent with a regional strategy released by the Minister for Planning.	Far North Coast Regional Strategy 2006 - 2031	Consistent.
5.2 Sydney Drinking Water Catchments	Applies when a relevant planning authority prepares a planning proposal that applies to the hydrological catchment.		N/A
5.3 Farmland of State and Regional Significance on the NSW Far North Coast	The planning proposal must not rezone land mapped as State or regionally significant farmland under the Northern Rivers Farmland Protection Project for an urban use.		N/A
5.4 Commercial and Retail Development along the Pacific Highway, North Coast	A planning proposal that applies to land located on “within town” segments of the Pacific Highway must provide that: (a) new commercial or retail development must be concentrated within distinct centres rather than spread along the highway, (b) development with frontage to the Pacific Highway must consider the impact the development has on the safety and efficiency of the highway. (c) For the purposes of this paragraph, “within town” means areas which, prior to the draft local environmental plan, have an urban zone (eg “village”, “residential”, “tourist”, “commercial”, “industrial”, etc) and where the Pacific Highway speed limit is less than 80 km/hour. A planning proposal that applies to land located on “out-of-town” segments of the Pacific Highway must provide that: (a) new commercial or retail development must not be established near the Pacific Highway if this proximity would be inconsistent with the objectives of this Direction,		N/A
	(b) development with frontage to the Pacific Highway must consider the impact the development has on the safety and efficiency of the highway. (c) For the purposes of this paragraph, “out-of-town” means areas which, prior to the draft local environmental plan, do not have an urban zone (eg “village”, “residential”, “tourist”, “commercial”, “industrial”, etc) or are in areas where the Pacific Highway speed limit is 80 km/hour or greater.
6. Local Plan Making
6.1 Approval and Referral Requirements	A planning proposal must: (a) minimise the inclusion of provisions that require the concurrence, consultation or referral of development applications to a Minister or public authority, and (b) not contain provisions requiring concurrence, consultation or referral of a Minister or public authority unless the relevant planning authority has obtained the approval of: (i) the appropriate Minister or public authority, and (ii) the Director-General of the Department of Planning and Environment (or an officer of the Department nominated by the Director-General), prior to undertaking community consultation in satisfaction of section 57 of the Act, and (c) not identify development as designated development unless the relevant planning authority: (i) can satisfy the Director-General of the Department of Planning and Environment (or an officer of the Department nominated by the Director-General) that the class of development is likely to have a significant impact on the environment, and (ii) has obtained the approval of the Director-General of the Department of Planning and Environment (or an officer of the Department nominated by the Director-General) prior to undertaking community consultation in satisfaction of section 57 of the Act.	The Planning Proposal does not include provisions relating to concurrence, consultation or referral of Development Applications.	Consistent
6.2 Reserving Land for Public Purposes	A planning proposal must not create, alter or reduce existing zonings or reservations of land for public purposes without the approval of the relevant public authority and the Director-General of the Department of Planning and Environment (or an officer of the Department nominated by the Director-General).	The Planning Proposal does not reserve land for public purposes.	N/A
6.3 Site Specific Provisions	Applies when a relevant planning authority prepares a planning proposal that will allow a particular development to be carried out. A planning proposal that will amend another environmental planning instrument in order to allow a particular development proposal to be carried out must either:		N/A
	(a) allow that land use to be carried out in the zone the land is situated on, or	The Planning Proposal allows additional land uses in existing zones.	Consistent
	(b) rezone the site to an existing zone already applying in the environmental planning instrument that allows that land use without imposing any development standards or requirements in addition to those already contained in that zone, or (c) allow that land use on the relevant land without imposing any development standards or requirements in addition to those already contained in the principal environmental planning instrument being amended. A planning proposal must not contain or refer to drawings that show details of the development proposal.

BYRON SHIRE COUNCIL

13.8 - Attachment 3

Section C Environmental, social and economic impact

1. Is there any likelihood that critical habitat or threatened species, populations or ecological communities, or their habitats will be adversely affected as a result of the proposal?

The site does not contain critical habitat or threatened populations but does contain EECs, threatened species and threatened communities. However, the required infrastructure works are generally clear of these areas and are relatively minor in nature. Infrastructure works located within E2 and E3 zones are to be positioned such that vegetation impacts will be minimal as un-vegetated areas will take preference over areas with native vegetation for stormwater discharge. Preliminary development plans show the location of the Stormwater outlets, road layout, vegetation mapping and restoration at Appendices 4, 5, 6 and 7. A small amount of Swamp Mahogany forest, a primary Koala feed tree is located within the E3 zone adjacent to the central drain. Some vegetation may be proposed for removal for infrastructure provision. Other vegetation disturbance and/or loss would involve the removal of small areas of Coastal Swamp Forest (Broad-leaved Paperbark), Wallum Sand Heath, and closed exotic grasslands. The majority of E2 and E3 areas are at present predominantly cleared and it would be appropriate to undertake any infrastructure work prior to rehabilitation. Potential impacts and mitigation measures will be addressed at the Development Application stage, but in this regard it is envisaged that approximately 23 hectares of E2 and E3 Zoned land will be rehabilitated through a combination of natural and planned regeneration in areas previously disturbed by farming and other activities, and currently utilised in part for cattle grazing. For details see the preliminary Restoration Management Zone Plan at Appendix 7 and further discussion on the Justification of the Proposed Provisions below.

2. Are there any other likely environmental effects as a result of the planning proposal and how are they proposed to be managed?

Potential impacts are limited to relatively minor disturbance of land zoned E2 and E3. Impacts will be assessed and mitigated at the Development Application stage.

3. How has the planning proposal adequately addressed any social and economic effects?

In the event that the proposed changes to the Planning Instrument are not made, the WBURA cannot be developed in an efficient and sustainable manner.

4. Justification of Proposed Provisions

Subdivision Provisions

In summary, insertion of a provision to enable the creation of residue lots of less than 40 hectares in the E2 and E3 zones will not result in significant adverse impacts because no fragmentation of the E2/E3 land will occur. Similarly, no change in use or physical works in the E2/E3 zones will result from this provision. The provision will simply overcome an apparent drafting anomaly in Clauses 81 & 85 of BLEP 1988 which have the effect of precluding approval of any subdivision because the residue land zoned E2 and E3 has an area of less than 40 hectares.

Stormwater Management

A drainage reserve, 30.175 metres wide traverses the site from Ewingsdale Road to the south eastern part of the West Byron Urban Release Area. The Reserve is described as Lot 7020 DP 1113431 and is owned by the Crown with care control and management vested in the Belongil Drainage Union. The location of the Drainage Reserve is shown on the plans at Appendix 2. The Reserve contains an open drainage channel which drains the rural and urban catchments upstream of Ewingsdale Road, including the Byron Bay Arts & Industry Estate.

As indicated on the attached plan at Appendix 2 and 3, part of the reserve is zoned E3, Environmental Management. The drain then proceeds through private property to meet with other drains which discharge to Belongil Creek and is in the E2 Zone. Development for the purpose of earthworks and drainage is prohibited in these zones. Arguably, the drainage reserve could have been zoned SP2 Infrastructure in accordance with its legal status and principle purpose (ie. drainage of stormwater). While routine maintenance of the drain can continue under the existing use provisions of the Environmental Planning & Assessment Act, 1979 (as amended), any additional works by the developer in these E2 and E3 Zoned areas is not permitted under the current LEP provisions.

At present the vegetation that occupies the E3 Zone along the main drain within Lot 7020 DP1113431 and Lot 2 DP542178 is approximately 2.8 ha of semi-consolidated coastal swamp forest (Swamp Mahogany) with Coastal swamp forest (Broad-leaved paperbark) (See Appendix 6 – Vegetation Mapping). As Swamp Mahogany is a primary koala habitat tree, any removal of these trees for the purpose of infrastructure would need to be considered in terms of SEPP 44 Koala Habitat Protection. It is likely a Koala Plan of Management will need to be prepared for the site which would include offset or compensatory plantings elsewhere in the West Byron Urban Release Area if koala habitat was to be impacted upon. Details will accompany a future development application. However minor works in this locality may necessitate the removal of some native vegetation for infrastructure including road crossings and stormwater outfalls as discussed below.

As discussed above approximately 23 hectares of previously disturbed land will be rehabilitated and in summary, the proposed provision is justified for the reasons outlined above and the proposed enabling provisions for infrastructure addresses the permissibility issue.

Stormwater Outfalls

The attached Stormwater Outlets Plan at Appendix 4 shows the indicative location of the stormwater outlets / discharge points. Table 4 shows the estimated area of disturbance within the E2 & E3 zones for the outfalls, vegetation types and proposed offset arrangements.

It is proposed that the outfalls will only occupy approximately 30m² of E2 and E3 zoned land each. The outlets will incorporate end of pipe headwalls and scour protection measures. Stormwater dispersion zones are proposed beyond the headwall and scour protection, their purpose being to enable spreading and infiltration of stormwater across a broad area, reducing chances of erosion, channelling and changes in vegetative composition.

To minimise impacts on water quality and to maintain existing wetland hydrology, stormwater discharge is to be managed via infiltration into sandy soils throughout the estate and stormwater drainage area including within vegetated swales, unlined wetlands and bio-retention filters and finally within dispersion areas within the E2 and E3 zones. Preliminary investigations by the developer indicate approximately 260m² of infiltration area is required for each hectare of low density urban development, which can be achieved across the site.

As a priority stormwater discharge will be to existing grassland area which will be rehabilitated to be consistent with adjoining native vegetation communities in appearance and function, creating a buffer between sensitive receiving environments and stormwater discharge locations.

Given the proposed outfalls are the logical points of stormwater discharge, it is considered that the proposed provision is appropriate and justified.

Table 4 Estimated areas of Disturbance in the E Zones

Infrastructure	Area	Zone	Vegetation Community type	Offsets at 1:5 ratio
Stormwater Outfalls 30 in E Zones at 30m²each (Approx)	900 m²	E2 and E3	Coastal Swamp Forest, Wallum Sand Heath, Grassland	4500m²
Spine Road and services	200 m²	E3	Wallum Sand Heath	1000 m²
Other Roads and Services	2000 m²	E2 and E3	Coastal Swamp Forest, Wallum Sand Heath	1 ha
Total	3100 m²			1.55 ha
Total Area for Planned Rehabilitation	Approximately 23 ha of E2 and E3 Zoned Land

Road & Services

As indicated on the plan at Appendix 5 potentially three proposed roads cross the drainage reserve and one proposed road crosses the E2 zone within the existing Crown Road Reserve. In particular one parcel of residential zoned land in the eastern part of the site is land locked by E2 Zoned land, and hence could not be developed unless infrastructure is permitted across the E2 Zone land. The road crossings would provide for a legible residential form to enable traffic and pedestrians to move through the residential areas and to facilitate access for the Rural Fire Service. The area of disturbance for the road crossings, vegetation types and proposed offsetting arrangements are shown in Table 4 above. Water, sewer, power and telephone services would be located in the proposed road reserve.

Given the relatively small area of E2 and E3 zoned land affected, and as appropriate offset plantings can be provided within the West Byron Urban Release Area, it is considered that the proposed provision is justified in the circumstances.

DCP Provisions

In accordance with Clause 101 of Byron LEP 1988, Council is preparing a DCP for the West Byron Area. The DCP is to include stormwater and water quality management controls, provisions on acid sulfate soils and groundwater, and other measures to protect and enhance the natural environment. The DCP will require detailed assessment and consideration of flora and fauna issues including koalas and wallum frog habitat, to provide for compensatory plantings where required and rehabilitation of habitat in the Environmental zones.

Section D State and Commonwealth interests

1. Is there adequate public infrastructure for the planning proposal?

In rezoning the land in November 2014, the Department of Planning and Environment was satisfied that adequate public infrastructure is available. This Planning Proposal does not increase the demands on public infrastructure, with a potential reduction in residential yields resulting from the proposed amendments to Clauses 82 and 83.

2. What are the views of State and Commonwealth public authorities consulted in accordance with the gateway determination?

The following table provides a summary of the relevant public authorities, which in the opinion of Council, should be consulted in accordance with the Gateway Determination:

Public authority/stakeholder	Issue requiring comment
NSW Rural Fire Service	To ensure compliance with the S117 Direction 4.4 Planning for Bushfire Protection.

Part 4 Mapping

No amendments to existing maps are proposed or required. The proposed amendments are limited to the Written Instrument only.

Part 5 Community consultation

Council will commence community consultation in accordance with the Gateway Determination. For the purposes of public notification, the planning proposal is not considered to be low impact as outlined in the Department of Planning and Infrastructure’s, A guide to preparing local environmental plans, and a 28 day public exhibition period is recommended.

Notification of the exhibited planning proposal will include:

· a newspaper advertisement that circulates in the Byron LGA, which is the area affected by the planning proposal

· the website of Byron Shire Council and the Department of Planning and Environment.

Part 6 Project timeline

The proposed timeline for the completion of the planning proposal is as follows:

Estimated completion	Plan making step
January 2016	Gateway determination issued by Department of Planning and Environment.
March 2016	Government agency consultation.
April 2016	Public exhibition of planning proposal.
May – June 2016	Analysis of public submissions. Preparation of Council report.
June 2016	Public submissions report to Council.
July – August 2016	Endorsed planning proposal submitted to Department of Planning and Environment for finalisation or dealt with by Council under delegation.

Summary and conclusions

In summary, the proposed amendments to BLEP1988 (WB) are intended to correct existing anomalies and to facilitate approval of a Development Application for the efficient and sustainable development of the site in accordance with its current zoning and to achieve the objectives of the FNCRS. The Strategy includes the objective of providing additional housing choice within the Byron Bay area for future residents and the proposed amendments will assist in achieving this objective.