Agenda of Ordinary Meeting

BYRON SHIRE COUNCIL

Staff Reports - Corporate and Community Services 13.5

Report No. 13.5 Council Investments June 2017

Directorate: Corporate and Community Services

Report Author: James Brickley, Manager Finance

File No: I2017/948

Theme: Corporate Management

Financial Services

Summary:

This report includes a list of investments and identifies Council’s overall cash position for the month of June 2017 for Council’s information.

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

RECOMMENDATION:

That the report listing Council’s investments and overall cash position as at 30 June 2017 be noted.

Report

In relation to the investment portfolio for the month of June 2017, Council has continued to maintain a diversified portfolio of investments. At 30 June 2017, the average 90 day bank bill rate (BBSW) for the month of June 2017 was 1.71%. Council’s performance to 30 June 2017 is 2.62%. Council’s performance is again higher than the benchmark. This is largely due to the active ongoing management of the investment portfolio, maximising investment returns through secure term deposits and purchasing floating rate notes with attractive interest rates.

The table below identifies the investments held by Council as at 30 June 2017:

Schedule of Investments held as at 30 June 2017

Purch Date	Principal ($)	Description	CP*	Rating	Maturity Date	Ethical ADI	Type	Interest Rate Per Annum	Current Value
24/03/17	1,000,000	NAB Social Bond (Gender Equality)	N	AA-	24/03/22	N	B	3.44%	1,011,100.17
28/10/16	650,000	Teachers Mutual Bank	P	BBB+	28/10/19	Y	FRN	3.17%	653,642.89
31/03/17	1,000,000	CBA Climate Bond	N	AA-	31/3/22	N	FRN	3.25%	1,000,000.00
18/04/17	2,000,000	NAB	P	AA-	23/08/17	N	TD	2.53%	2,000,000.00
22/02/17	2,000,000	NAB	N	AA-	12/07/17	N	TD	2.56%	2,000,000.00
07/04/17	2,000,000	NAB	N	AA-	08/08/17	N	TD	2.55%	2,000,000.00
04/04/17	1,000,000	NAB	N	AA-	03/07/17	N	TD	2.53%	1,000,000.00
06/03/17	2,000,000	NAB	N	AA-	30/08/17	N	TD	2.58%	2,000,000.00
22/02/17	2,000,000	NAB	N	AA-	12/07/17	N	TD	2.57%	2,000,000.00
06/04/17	2,000,000	Bank of Queensland	P	BBB+	08/08/17	Y	TD	2.50%	2,000,000.00
01/02/17	2,000,000	Police Credit Union	P	NR	02/08/17	U	TD	2.70%	2,000,000.00
05/04/17	2,000,000	ME Bank	N	BBB	15/08/17	Y	TD	2.50%	2,000,000.00
01/06/17	2,000,000	Beyond Bank	P	BBB	03/10/17	Y	TD	2.65%	2,000,000.00
10/05/17	2,000,000	Beyond Bank	N	BBB	13/09/17	Y	TD	2.65%	2,000,000.00
07/04/17	2,000,000	ME Bank	N	BBB	07/07/17	Y	TD	2.45%	2,000,000.00
08/03/17	2,000,000	ME Bank	P	BBB	08/08/17	Y	TD	2.55%	2,000,000.00
04/01/17	3,000,000	Bank of Queensland	N	BBB+	04/07/17	Y	TD	2.75%	3,000,000.00
04/01/17	1,000,000	Bananacoast Credit Union	P	NR	04/07/17	Y	TD	2.75%	1,000,000.00
08/03/17	2,000,000	NAB	N	AA-	07/07/17	N	TD	2.56%	2,000,000.00
16/03/17	2,000,000	AMP Bank	P	A	18/09/17	N	TD	2.75%	2,000,000.00
09/06/17	2,000,000	NAB	N	AA-	08/09/17	N	TD	2.50%	2,000,000.00
27/04/17	2,000,000	ME Bank	N	BBB	30/08/17	Y	TD	2.55%	2,000,000.00
04/04/17	1,000,000	Bank of Queensland	N	BBB+	27/09/17	Y	TD	2.60%	1,000,000.00
04/01/17	2,000,000	Beyond Bank	P	BBB	04/07/17	Y	TD	2.75%	2,000,000.00
13/06/17	1,000,000	Auswide Bank Ltd	N	BBB-	13/10/17	Y	TD	2.60%	1,000,000.00
16/12/16	1,000,000	Police Credit Union	N	NR	05/07/17	U	TD	2.87%	1,000,000.00
20/01/17	1,000,000	AMP Bank	N	A	19/7/17	N	TD	2.80%	1,000,000.00
20/01/17	1,000,000	Bank of Queensland	N	BBB+	26/7/17	Y	TD	2.80%	1,000,000.00
03/02/17	1,000,000	Mystate Bank	P	BBB	09/08/17	Y	TD	2.75%	1,000,000.00
17/05/17	2,000,000	ME Bank	N	BBB	20/09/17	Y	TD	2.55%	2,000,000.00
16/02/17	1,000,000	Bank of Queensland	N	BBB+	15/08/17	Y	TD	2.70%	1,000,000.00
24/05/17	1,000,000	Beyond Bank	N	BBB	24/08/17	Y	TD	2.65%	1,000,000.00
01/03/17	1,000,000	Bananacoast Credit Union	N	NR	06/09/17	Y	TD	2.75%	1,000,000.00
03/03/17	1,000,000	Bananacoast Credit Union	N	NR	06/09/17	Y	TD	2.75%	1,000,000.00
06/03/17	1,000,000	The Capricornian Credit Union	P	NR	23/08/17	Y	TD	2.70%	1,000,000.00
07/03/17	2,000,000	Beyond Bank	N	BBB	19/07/17	Y	TD	2.65%	2,000,000.00
23/03/17	1,000,000	Police Credit Union	N	NR	27/09/17	U	TD	2.80%	1,000,000.00
03/04/17	1,000,000	Beyond Bank	N	BBB	26/07/17	Y	TD	2.65%	1,000,000.00
03/04/17	2,000,000	Police Credit Union	N	NR	04/10/17	U	TD	2.80%	2,000,000.00
03/04/17	1,000,000	Beyond Bank	N	BBB	13/09/17	Y	TD	2.70%	1,000,000.00
02/05/17	1,500,000	Beyond Bank	N	BBB	16/08/17	Y	TD	2.65%	1,500,000.00
03/05/17	1,500,000	Auswide Bank Ltd	P	BBB-	08/11/17	Y	TD	2.68%	1,500,000.00
05/05/17	2,000,000	Beyond Bank	N	BBB	16/08/17	Y	TD	2.65%	2,000,000.00
10/05/17	1,000,000	Auswide Bank Ltd	N	BBB-	15/11/17	Y	TD	2.70%	1,000,000.00
17/05/17	1,000,000	Maitland Mutual Building Society	P	NR	27/09/17	Y	TD	2.60%	1,000,000.00
02/06/17	1,500,000	ME Bank	N	BBB	04/12/17	Y	TD	2.67%	1,500,000.00
05/06/17	1,000,000	Intech Bank Ltd	P	NR	05/12/17	Y	TD	2.80%	1,000,000.00
08/06/17	2,000,000	ME Bank	N	BBB	08/12/17	Y	TD	2.65%	2,000,000.00
13/06/17	1,000,000	Bananacoast Credit Union	N	NR	13/10/17	Y	TD	2.60%	1,000,000.00
29/06/17	2,000,000	Community Alliance Credit Union	P	NR	29/09/17	U	TD	2.65%	2,000,000.00
N/A	2,055,776	CBA Business Online Saver	N	A	N/A	N	CALL	1.40%	2,055,775.54
Total	78,205,776						AVG	2.62%	78,220,518.60

Note 1.	CP = Capital protection on maturity
	N = No Capital Protection
	Y = Fully covered by Government Guarantee
	P = Partial Government Guarantee of $250,000 (Financial Claims Scheme)

Note 2.	Ethical ADI
	Y = No investment in Fossil Fuels
	N = Investment in Fossil Fuels
	U = Unknown Status

Note 3.	Type	Description
	B	Bonds	Principal can vary based on valuation, interest payable via a fixed interest, payable usually each quarter.
	FRN	Floating Rate Note	Principal can vary based on valuation, interest payable via a floating interest rate that varies each quarter.
	TD	Term Deposit	Principal does not vary during investment term. Interest payable is fixed at the rate invested for the investment term.
	CALL	Call Account	Principal varies due to cash flow demands from deposits/withdrawals, interest is payable on the daily balance.

Environmental and Socially Responsible Investing

An additional column has been added to the schedule of Investments above, to identify if the financial institution holding the Council investment, has been assessed as an “Ethical” institution. This information has been sourced through www.marketforces.org.au and identifies financial institutions that either invest in fossil fuel related industries or do not. The graph below highlights the percentage of each classification across Councils total investment portfolio.

For the month of June 2017, as indicated in the table below, there is a dissection of the investment portfolio by investment type:

Dissection of Council Investment Portfolio as at 30 June 2017

Principal Value ($)	Investment Linked to:-	Current Market Value ($)	Cumulative Unrealised Gain/(Loss) ($)
73,500,000.00	Term Deposits	73,500,000.00	0.00
1,650,000.00	Floating Rate Note	1,653,642.89	3,642.89
2,055,775.54	Business On-Line Saver (At Call)	2,055,775.54	0.00
1,000,000.00	Bonds	1,011,100.17	11,100.17
78,205,775.54		78,220,518.60	14,743.06

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

The table below provides a reconciliation of investment purchases and maturities for month of June 2017 on a current market value basis.

Movement in Investment Portfolio – 1 to 30 June 2017

Item	Current Market Value (at end of month) $
Opening Balance at 30 May 2017	77,723,334.04
Add: New Investments Purchased	16,500,000.00
Add: Call Account Additions	0.00
Add: Interest from Call Account	2,441.50
Less: Investments Matured	16,000,000.00
Less: Investments Sold	0.00
Less: Call Account Redemption	0.00
Less: Fair Value Movement for period	5,256.94
Closing Balance at 30 June 2017	78,220,518.60

Investments Maturities and Returns – 1 to 30 June 2017

Principal Value ($)	Description	Type	Maturity Date	Number of Days Invested	Interest Rate Per Annum	Interest Paid on Maturity $
2,000,000.00	Beyond Bank	TD	01/06/17	182	2.85%	28,421.92
2,000,000.00	NAB	TD	07/06/17	105	2.56%	14,728.77
2,000,000.00	NAB	TD	07/06/17	105	2.57%	14,786.30
2,000,000.00	NAB	TD	09/06/17	91	2.52%	12,565.48
1,000,000.00	Auswide Bank	TD	13/06/17	183	2.80%	14,038.36
2,000,000.00	Holiday Coast Credit Union	TD	13/06/17	102	2.70%	15,090.41
500,000.00	** Heritage Bank Ltd Bonds	BOND	20/06/17	1,831	7.25%	9,137.00
2,000,000.00	Beyond Bank	TD	21/06/17	113	2.65%	16,408.22
1,500,000.00	Auswide Bank	TD	28/06/17	194	2.80%	22,323.29
1,000,000.00	Regional Australia Bank	TD	28/06/17	113	2.70%	8,358.90
16,000,000.00						155,858.65

** The Heritage Bank bond that matured on 20 June 2017 was purchased in June 2012. This investment has returned 7.25% per annum quarterly since this date. The amount of interest shown in the table above for this investment is for one quarter only.

The overall ‘cash position’ of Council is not only measured by what funds Council has invested but also by what funds Council has retained in its consolidated fund or bank account as well for operational purposes. In this regard, for the month of June 2017 the table below identifies the overall cash position of Council as follows:

Dissection of Council Cash Position as at 30 June 2017

Item	Principal Value ($)	Current Market Value ($)	Cumulative Unrealised Gain/(Loss) ($)
Investments Portfolio
Term Deposits	73,500,000.00	73,500,000.00	0.00
Floating Rate Note	1,650,000.00	1,653,642.89	3,642.89
Business On-Line Saver (At Call)	2,055,775.54	2,055,775.54	0.00
Bonds	1,000,000.00	1,011,100.17	11,100.17
Total Investment Portfolio	78,205,775.54	78,220,518.60	14,743.06

Cash at Bank
Consolidated Fund	1,368,956.58	1,368,956.58	0.00
Total Cash at Bank	1,368,956.58	1,368,956.58	0.00

Total Cash Position	79,574,732.12	79,589,475.18	14,743.06

Financial Implications

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

Statutory and Policy Compliance Implications

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

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

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

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

Council at its Ordinary Meeting held 8 October 2015 resolved through resolution 15-515 to insert a new objective into its adopted Investment Policy, which gives a third tier consideration by Council to Environmental and Socially Responsible Investments, when making investment decisions.

BYRON SHIRE COUNCIL

Staff Reports - Corporate and Community Services 13.6

Report No. 13.6 BSC ats Glassington Land and Environment Court proceedings

Directorate: Corporate and Community Services

Report Author: Ralph James, Legal Services Coordinator

Clyde Treadwell, Planner

File No: I2017/979

Theme: Corporate Management

Governance Services

Summary:

On 4 July 2016 development application 10.2016.423.1('the DA') was received by Council. The DA sought consent for Multi Dwelling Housing (8 Townhouses) at 4 & 6 Roundhouse Place, Ocean Shores.

The DA was publicly notified to nearby and adjoining residents between 21 July 2016 and 3 August 2016. Council received 30 submissions (including petitions) raising objections to the DA.

Council refused the DA for the reasons set out in its notice of determination dated 23 March 2017.

The applicant has now submitted amended plans which have reduced the number of units to six (6) addressing the reasons for refusals. It is recommended that the General Manager be authorised to enter into consent orders or a Section 34 Conciliation Agreement to resolve the matter.

RECOMMENDATION:

That the General Manager be authorised to enter into consent orders or a s34 Conciliation Agreement approving Development Application 10.2016.423.1, subject to appropriate conditions to be finalised under delegation.

Attachments:

1 10.2016.423.1 - Amended Plans - Multi Dwelling Housing at 4 & 6 Roundhouse Place, Ocean Shores, E2017/72967 ⇨

Report

Land and Environment Court proceedings

On 12 April 2017 proceedings were commenced in Class 1 of the Land and Environment Court's jurisdiction by Alex Glassington appealing against Council's refusal of development application No. 10.2016.423.1 seeking consent for "multi dwelling housing (8 townhouses)" on the land at 4 & 6 Roundhouse Place, Ocean Shores.

The proceedings were listed for a telephone directions hearing on 15 May 2017. On that day the Court listed the matter for a conciliation conference pursuant to section 34 (see below in Statutory and Policy implications) of the Land and Environment Court Act 1979 on 15 August 2017.

Given the circumstances which are set out in full in the body of this report, delegation is sought for the General Manager to enter into a section 34 conciliation agreement or to go to a consent orders hearing as Council staff are of the opinion that Council’s contentions in the Land and Environment Court proceedings are addressed.

Background

On 4 July 2016 development application 10.2016.423.1 ('the DA') was received by Council. The DA sought consent for Multi Dwelling Housing (8 Townhouses) at 4 & 6 Roundhouse Place, Ocean Shores.

The DA was publicly notified to nearby and adjoining residents between 21 July 2016 and 3 August 2016. Council received 30 submissions (including petitions) raising objections to the DA.

Council refused the DA for the reasons set out in its notice of determination dated 23 March 2017:

1. The proposed development does not comply with Byron LEP 2014 Zone R2 Low Density objective: to provide for the housing needs of the community within a low density residential development.

2. The proposed development does not comply with Byron LEP 2014 Clause 4.1E objective - to achieve planned residential density in certain zones.

3. The proposed development does not comply with Byron Development Control Plan 2014 - DCP B4.2.12 Parking Schedules.

4. The proposed development does not comply with Byron Development Control Plan 2014 - DCP D1 .2.2 - objectives - to achieve varied and interesting streets that complement and harmonise with existing and planned streetscapes and developments in the locality.

5. The proposed development does not comply with Byron Development Control Plan 2014 - DCP D1 .2.2.3 b) - setbacks between buildings.

6. The proposed development does not comply with Byron Development Control Plan 2014 - DCP D1 - development that complements and harmonises with existing and planned streetscapes and developments in the locality.

7. The Proposed development fails to comply with the provisions of Council Policy 4.2 - Building over Pipelines and Other Underground Structures.

The Amended proposal

The amended application seeks development consent for a Multi Dwelling Housing development, including six (6) dwellings, three dwellings on each allotment with common/shared driveways, car parking, circulation and landscaped areas. Each of the dwellings incorporates a two storey contemporary design. Access is proposed from a common driveway from Roundhouse Place through the centre of the site.

The dwellings are proposed to be clad in weatherboard and rendered walls with sheet metal roofing. Each dwelling is proposed to have a ground level yard with landscaped open space.

Four of the six dwellings, that is homes 2 to 5, have upper living floor areas which open onto deck areas.

The site

The subject site comprises two adjoining allotments legally described as Lots 8 & 9 DP 1212497, street address 4 & 6 Roundhouse Place, Ocean Shores. Both of the allotments are irregular in shape, Lot 8 having an area of 1050m₂ and Lot 9 an area of 1006m₂ (total area of the site 2056m₂).

The site is located on the eastern side of Roundhouse Place and is currently vacant land.

The property contains a sewer easement along the eastern boundary and part of the southern boundary.

The locality

The subject site is elevated land located in within the Ocean Shores urban area.

The site comprises two of the eleven allotments created by a subdivision registered in September 2015 at Roundhouse Place.

The surrounding area largely comprises detached dwelling houses located on individual Torrens Title allotments. Approximately 115 metres east of the subject site is the Ocean Shores Country Club with its associated golf course and recreational facilities.

Council’s contentions in the proceedings

Scale Density and Design

The development application should be refused because the proposed development is of a scale, density and design that is inconsistent with other development in the locality and does not comply with the objectives of the R2 Low Density Zone or the objectives of clause 4.1E of Byron Local Environmental Plan 2014 ("BLEP 2014").

Particulars

a) Development in the vicinity of the site is generally comprised of low density residential development.

The amended proposal achieves this by

· providing a variety of housing choice to meet the needs of the community – other development in the locality on 1000m2 allotments have been approved with two detached 4 bedroom 2 storey dual occupancies that have similar or greater impact on adjoining residents than the amended development.

· addressing potential amenity and character impacts on surrounding existing development.

b) The proposed development includes dwelling houses at a density of 1 dwelling per 257m₂ while the prevailing density of the locality is generally 1 dwelling per 600 m₂.

The amended proposal may not typical of a “low density residential environment” as it proposes dwelling houses at a density of 1 dwelling per 343m² while the prevailing density of the low density zone for the Shire may more readily equate to 1 dwelling 600 m² (in accordance with the minimum lot size map). However recent approvals, for dual occupancy or secondary dwellings on allotments in the locality, have created a local density which would be in the order of 1 dwelling per 300m². The amended revised layout and proposal is a better outcome than the application that was refused, as the amended proposal accords with the prevailing density in the locality.

c) When viewed from Roundhouse Place, each group of four proposed dwelling houses either side of the driveway will appear as a large building.

The amended proposal

When viewed from Roundhouse Place each group of three houses either side of the driveway will appear better spaced and separated by landscaping than the previous layout. This is shown on the two elevations below:

d) The proposed development, when viewed from adjoining dwellings will appear as a two-storey building that continues for a length of 42 metres.

The amended proposal

The bulk and scale of the amended multi dwelling development is of a different residential character than the prevailing development of the locality. The views to the development from adjoining lands to the east will still be impacted by the development but it will appear more like two separate two storey dwellings with site setbacks, separation between the dwellings and the articulation of the buildings rather than a single continuous building. This elevation is shown below:

e) The proposed development, as a result of its scale, density and design, does not provide for the housing needs of the community within a low density residential environment and therefore is inconsistent with the first objective of the R2 Low Density Residential Zone under BLEP 2014.

The amended proposal assists with the housing needs of the community by providing a choice in housing types, which may be more affordable than the typical existing development in the locality.

f) The proposed development does not meet the objective in clause 4.1E(1) of BLEP 2014 in that the development does not achieve the planned residential density in the R2 Zone.

The amended proposal meets the density that prevails in the locality given the number of recently approved dual occupancy developments.

g) The proposed development is of a scale and design that does not complement the existing streetscape for the locality and is inappropriate for the site.

The amended proposal complements the streetscape and will appear of similar scale to the area’s existing and recent developments.

Building Separation/Setbacks

The development application should be refused because the proposed development does not provide sufficient separation between the dwellings on the site and does not comply with prescriptive measure 3(b) in Clause D1.2.2 - setbacks between buildings of BDCP 2014 and the objectives of D1.2.2 of BDCP 2014.

Particulars

The proposed development fails to provide 3 metre setbacks between dwellings on the site and does not comply with prescriptive measure 3(b) in Clause D1.2.2 of BDCP 2014.

a) The inadequate setbacks/building separation is likely to have adverse impacts on the amenity of future residents of the development particularly in relation to privacy.

b) The proposed development does not achieve the objectives of clause D1.2.2 of BDCP 2014 in that:

i. the proposed development does not achieve varied and interesting streets that complement and harmonise with existing and planned streetscapes and development in the locality;

The amended proposal

Comment on a) & b) above

The amended proposal now provides a minimum of 3 metre setbacks between dwellings on the site and thus complies with prescriptive measure 3(b) in Clause D1.2.2 of BDCP 2014. The setbacks/building separation provided in the amended layout will is not likely to have any adverse impacts on the amenity and privacy of future residents of the development.

ii. To achieve varied and interesting streets which complement and harmonise with existing and planned streetscapes and developments in the locality.

Comment: while the proposed development is the first multi dwelling development in the locality that is dominated by dual occupancy and single dwelling development the amended plans have:

· Reduced the number of proposed dwellings from 8 to 6;

· modified the layout and provided larger side and rear boundary setbacks;

· relocated and reduced upper level balconies that had the potential of overviewing adjoining residences;

· increased internal separation of the proposed dwellings, enabling air flow, solar access and view corridor opportunities;

Therefore the amended development can be considered to complement and harmonise with existing and planned streetscapes and developments in the locality.

iii. the proposed development does not achieve good spacing of residential development that achieves high quality living environments;

The amended proposal

Comment: the amended development proposal provides for an appropriate and reasonable spacing between the on site dwellings. The multi dwelling development does not create excessive shading in either the winter and/or summer months and enables appropriate access to sunlight throughout the day during winter. Refer shadow diagram below:

The amended multi dwelling development will have a lesser impact or creation of shadow over existing adjoining residential development.

The shade diagram above shows no impact of the buildings onto adjoining site for noon on a winter’s day, the greatest impact is demonstrated below:

iv. the proposed development does not achieve effective use of allotments to create useable and liveable private open space and courtyards.

The amended proposal achieves effective use of allotments creating useable and liveable private open space and courtyards which are related to each unit and takes into account solar access, orientation, views, air circulation, privacy and overviewing.

c) Inadequate building separation also results in a lack of sunlight and air between the buildings and poor orientation of some of the proposed dwellings. In particular inadequate solar access is provided to the private open spaces for dwellings 6, 7 and 8.

The amended proposal

The amended plan has additional space between the buildings which leads to better solar access, more light and air flow between buildings. The open space between the buildings receives appropriate sunlight for several hours during winter.

The amended layout has better orientation of some of the dwelling houses; hence each unit would have adequate solar access available for their respective private open space areas.

Character

The development application should be refused because the proposed development, as a result of its scale, density and design, is inconsistent with the character of the locality.

The amended proposal

The amended proposal is now at a scale, density and design, that is more consistent with the character of the locality that is experiencing development of large dwellings and large detached dual occupancy development.

Amenity

The development application should be refused because the proposed development is likely to have an unacceptable adverse amenity impact on owners and occupiers of adjoining residential development.

Particulars

a) The proposed fencing on the eastern boundary is likely to significantly impact the adjoining neighbour in terms of visual amenity, solar and general enjoyment.

The amended proposal

The amended proposal has removed the proposed 2.4m high fence and proses a 1.2 high fence for a small portion of the area while leaving the existing boundary fencing in place.

b) The proposed development will have an adverse visual impact when viewed from adjoining and nearby development.

The amended proposal

While the proposed development is the first multi dwelling development in the locality that is dominated by single dwellings and dual occupancy development the amended plans have

· Reduced the number of proposed dwellings from 8 to 6;

· modified the layout and provided larger side and rear boundary setbacks;

· relocated and reduced upper level balconies that had the potential of overviewing adjoining residences;

· increased internal separation of the proposed dwellings, enabling air flow, solar access and view corridor opportunities;

c) The proposed balconies are likely to have adverse privacy impacts on the occupants of adjoining residential development.

The amended proposal

The amended proposal reconfigures the balconies to ensure they are incidental rather major features where they can over view adjoining properties. Many of the balconies are now “inward” facing. Additional screening is also to be provided.

d) The inclusion of living areas on the first floor of the proposed dwellings is likely to result in adverse privacy impacts on adjoining residents.

The amended proposal

The amended proposal reconfigures the living areas on the first floor of the proposed dwellings and as there is a reduction in the total number of units proposed, the privacy impacts likely to be experienced are reduced.

Parking

The development application should be refused because the proposed development provides inadequate parking and does not comply with Clause B4.2.12 Parking Schedules of BDCP 2014.

Particulars

a) The proposed development includes six (6) three-bedroom dwellings and two (2) "two-bedroom" dwellings. The rumpus area of the two-bedroom dwellings are capable of use as separate sleeping quarters or a third bedroom and must be included in the calculation of car parking required for the development.

b) A total of 18 spaces is therefore under the parking schedule in Clause 84.2.12 in Chapter B4 of BDCP 2014, including two spaces per dwelling and two visitor spaces.

c) Only 16 spaces are proposed on the site

The amended proposal

For multi dwelling housing development the DCP requires the provision of car parking of 1 space per 1 or 2 bed unit; 2 spaces per 3 or more bedroom units, 1 visitor space per 4 dwellings. It specifies that- “Where dwellings are designed with studies/offices and other areas capable of being used as separate sleeping quarters these will be counted as bedrooms. The DA refused by Council included spaces that meant the applicant had some conjecture over the applicable car parking rates.

The amended plans enable a clear unambiguous car parking calculation for the development to be determined. The amended proposal has 6 (units) x 2 (car spaces) = 12 car spaces plus 2 visitor spaces (a total of 14 spaces). The proposal complies with the DCP provisions.

It should also be noted that the amended plans do not have any visitor parking over the Council sewer easement that traverses the eastern and southern boundaries of the site. Thus the proposal also is in accordance with Council Policy 4.2 Building over Pipelines and Other Underground Structures in regard to this easement.

Thus as a total of 14 on site car parking spaces are required and these 14 spaces are provided, this will mean that the development is less likely to impact the cul de sac’s on street parking and not result in functionality and operational issues with the road network.

Overshadowing

The development application should be refused because insufficient information has been provided to assess the extent of overshadowing caused by elements of the proposed development.

Particulars

a) The shadow diagrams do not take into account the fencing proposed on the site and in particular, the 2.4m high eastern boundary fence.

The amended proposal

The shadow diagrams above take into account the proposed amended 1.2m high fencing.

Building over pipelines

The development application should be refused because the proposed development fails to comply with the provisions of Council Policy 4.2 - Building over Pipelines and Other Underground Structures.

Particulars

a) The proposal includes visitor parking over a sewer main and within an easement located adjacent to the eastern boundary. The proposal is inconsistent with Council Policy 4.2 Building of Pipelines and other structures.

b) Building over a sewer main would seriously impact upon the ability to access and repair the main if required.

c) The inclusion of a parking space over the easement area is indicative that the development is of a scale and density that is inappropriate for the site.

The amended proposal

The amended proposal complies with the provisions of Council Policy 4.2 - Building over Pipelines and Other underground Structures.

The property is affected by a sewer easement along the eastern boundary. No buildings are located in the easement, the applicant in the amended proposal has removed the need to utilise the area for additional car parking. The proposal as amended now complies with this policy of Council.

Precedent

The development application should be refused because the proposed development would set an undesirable precedent for similar inappropriate development in the locality.

The amended proposal

Public interest

The development application should be refused because the proposed development is not in the public interest having regard to the nature and number of submissions received objecting to the proposal and the Contentions raised above.

Amended plans

The applicant has submitted amended plans which have been considered by Council staff.

Many of the matters raised in objections have been addressed in the amended proposal as it complies more readily with the provisions of the LEP, DCP and Council’s development related policies.

Financial implications

The estimated professional legal costs of defending the appeals are $25,000 excluding GST, assuming that the hearing in the matter only takes 1 day. If the hearing takes longer the legal costs will be higher.

Statutory and Policy Compliance Implications

Section 34 Conferences

Conciliation in the Court is undertaken in accordance with Section 34 of the Court Act (otherwise known as a Section 34 Conference).

Section 34 Conferences, as articulated by the Chief Judge in (2008) 19 ADRJ 72, provide: “for a combined or hybrid dispute resolution process involving first, conciliation and then, if the parties agree, adjudication. The conciliation involves a Commissioner with technical expertise on issues relevant to the case acting as a conciliator in a conference between the parties. The conciliator facilitates negotiation between the parties with a view to their achieving agreement as to the resolution of the dispute. If the parties are able to reach agreement, the conciliator, being a Commissioner of the Court, is able to dispose of the proceedings in accordance with the parties’ agreement.”

The Court’s practice note encourages parties to consider using Section 34 Conferences to resolve disputes or narrow the scope of issues in dispute. The parties should properly prepare for each conference with this purpose in mind.

In accordance with Section 34(1A) of the Court Act it is the duty of each party to proceedings where a conciliation conference has been arranged to participate, in good faith, in the conciliation conference.

Conciliation Agreement/Consent Orders

The differences between finalising the Court proceedings via a Conciliation Agreement compared to Consent Orders are as follows:

1. A Conciliation Agreement is between Council and the applicant ie Council stays the determining authority.

Use of a Conciliation Agreement would bring the Court cases to an end immediately and without the need for Council to include any expert witness costs or any legal costs beyond the minor costs associated with finalising the Conciliation Agreement.

2. Consent Orders are Orders issued by the Court by agreement ie the Court becomes the determining authority and has the power to refuse to issue the orders the parties are asking for and/or to make different orders instead. With a Consent Orders hearing, everything, including the proposed conditions, is open to the Court to finally determine and, for example, a Commissioner might disagree with proposed conditions and issue orders with different conditions.

Because the Court becomes the determining authority, Consent Orders will not be entered by the Court without a hearing. That means a hearing would need to be held (usually commencing on-site then adjourning to a local Court house) and solicitors, expert witnesses and people who lodged an objection who wished to make a verbal submission to the hearing would have to attend, and Council would incur the associated legal and witnesses costs.

Usually, Consent Orders Hearing are shorter than defended hearings, often only 2 - 4 hours instead of the minimum full day hearing or more, but the hearing still needs to be prepared for and attended, just like a defended hearing would be, which means that the vast majority of the costs are still incurred.

Due to the reduced certainty and the higher costs, this is usually not the option recommended by staff for disposal of the court cases where Conciliation Agreement option is still available, as is the case here.

BYRON SHIRE COUNCIL

Staff Reports - Corporate and Community Services 13.7

Report No. 13.7 Classification of land - former Mullumbimby Hospital site Lot 188 DP 728535, Lot 1 DP 1159861 and Lot 138 DP 755722

Directorate: Corporate and Community Services

Report Author: Ralph James, Legal Services Coordinator

File No: I2017/958

Theme: Corporate Management

Governance Services

Summary:

Council is in the process of acquiring the former Mullumbimby Hospital site. The Local Government

Act requires that all Council land be classified as either ‘community’ or ‘operational’. Council may classify the land by resolution before acquisition or within three months of it, provided Council gives

public notice of its proposed resolution and considers public submissions. If Council does not

resolve to classify it operational, the land becomes ‘community’.

RECOMMENDATION:

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

pursuant to Section 34 of the Local Government Act 1993:

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

Attachments:

1 Copy of letter from the Ministry of Health 6/7/17 and copy of front page of contract, E2017/70864 ⇨

Report

Following a community campaign over several years the Minister for Health, The Hon Brad Hazzard, wrote to the Council on 10May 2017 supporting the acquisition of the former Mullumbimby Hospital site by the Council for $1.

The transfer of the site to Council was conditional upon Council entering into a contract for sale for $1 and accepting the property “as is” including any contamination or hazardous substances on the site.

On 17 May 2017 Council wrote to the Minister requesting that a contract for the sale of the site to Council be provided.

A Contract for sale was provided to Council on 7 June 2017 and is presently being considered. A copy of the letter from the NSW Ministry of Health and a copy of the front page of the contract has been included at Attachment 1.

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

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

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

It is proposed that the site will provide services to the community on behalf of Council and operational is therefore an appropriate classification.

The purpose of classification is to identify clearly that land made available for use by the general public (community) and that land which need not (operational).

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

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

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

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

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

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

Affordable housing on the site would probably not be facilitated by a Community Land classification.

Options

1. Adopt the recommendation to classify the land “operational.”

2. Defer the matter for a decision to be made within 3 months of Council acquiring the land.

3. Make no resolution, acknowledging that if Council does not classify the land by resolution within 3 months of Council acquiring the land, it will be automatically classified ‘community.’

The staff recommendation has been formulated on the basis of practical operational considerations.

It will be the Council who ultimately determine whether to classify the land as operational and must take into consideration the submissions received during the public exhibition period, prior to finally determining the issue.

Financial Implications

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

The ‘Operational’ classification would maximise the options for the use of the property, with no restrictions on leasing of the site. The NSW Ministry for Health has in its letter advised the inclusion of a special condition in the draft Contract for sale requiring Council to execute with the Catholic Healthcare a lease expiring in 2022 for the operation of the Coolamon Villa Aged care facility. This lease would replace the current lease in place for the same period.

This special condition could be best managed under the ‘Operational’ land classification.

If Council were to classify the land ‘community’ it would be required under the Local Government Act to prepare a plan of management and further categorise the land, which would involve further community consultation, along with staff and councillor time, etc. The ability to lease the building or parts of it would be restricted and more difficult to manage if that were desirable in the future.

Statutory and Policy Compliance Implications

Local Government Act

25 All public land must be classified

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

26 What are the classifications?

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

27 How are the classifications made?

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

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

31 Classification of land acquired after 1 July 1993

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

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

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

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

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

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

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

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

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

35 What governs the use and management of community land?

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

• the plan of management applying to the land

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

• this Division.

BYRON SHIRE COUNCIL

Staff Reports - Corporate and Community Services 13.8

Report No. 13.8 BSC ats Hunter Land and Environment Court proceedings
DA 10.2016.486.1, DA 10.2013.559.1

Directorate: Corporate and Community Services

Report Author: Ralph James, Legal Services Coordinator

File No: I2017/967

Theme: Corporate Management

Governance Services

Summary:

Development Application DA 10.2016.486.1 was lodged with Council on 26 July 2016 and sought consent for the use of three farm buildings as storage premises and the use of 12 storage units relocated from a road transport terminal on land at 31 Pinegrove Road Myocum.

On 15 December 2016, Council refused consent for the Development Application.

On 1 March 2014 Council had approved Development Application DA 10. 2013.559.1 for the change of use of a farm building to a road transport terminal on the land. The approval was to cease two years after the commencement of the operations i.e. on 4 September 2017.

On 13 March 2017 an application was lodged with Council to modify the road transport terminal consent. The effect of the modification application would be to modify the road transport terminal consent so that Condition 1A will only cease to authorise the use of a road transport terminal if development consent is granted for the New Development Application, and a construction certificate is issued in relation to it.

Council had not determined the application by the expiry of 40 days from the date on which the modification application was lodged. Council was deemed to have refused it on 24 April 2017.

Proceedings have been lodged in the Land and Environment Court.

RECOMMENDATION:

That the General Manager be authorised to enter into consent orders or a s34 Conciliation Agreement approving development application 10.2016.486.1,subject to appropriate conditions to be finalised under delegation.2. That the General Manager be authorised to enter into consent orders or a s34 Conciliation Agreement modifying development application 10.2013.559.1, subject to appropriate conditions to be finalised under delegation

Report

Given the circumstances which are set out in full in the body of this report, delegation is sought for the General Manager to enter into a section 34 conciliation agreement or to go to a consent orders hearing if Council’s independent external experts agree that Council’s contentions in the Land and Environment Court proceedings are addressed.

Background-the subject land

Alan Hunter and Joan Hunter (the Applicants) are the registered proprietors of Lot 15 in DP 1030574, also known as 31 Pinegroves Road, Myocum NSW (the subject land).

They reside on the subject land and operate a farm on it, primarily for cattle production.

Background-Original Consent-the Road Transport Terminal Consent

On 1 May 2014 Council granted development consent, DA 10.2013.559.1 for the use of part of the subject land for the purposes of a road transport terminal (the Road Transport Terminal Consent). The Applicants commenced operations under the Road Transport Terminal Consent on 4 September 2015.

Condition 1A of the Road Transport Terminal Consent provides:

This consent ceases two (2) years after the commencement of operations

Accordingly, the use of the approved road transport terminal must end on 4 September 2017, unless the Road Transport Terminal Consent is modified.

Background-New development application-DA 10.2016.486.1

On 26 July 2016, the Applicants lodged a development application with Council, DA 10.2016.486.1 for the use of the subject land for the purpose of a storage facility (the New Development Application).

Broadly, the New Development Application proposes to move the structures that currently form the road transport terminal and consolidate them with the other structures on the subject land, to form a storage facility.

On 15 December 2016, Council refused consent for the New Development Application.

The reasons for refusal were:

1 Pursuant to Section 79C(1)(b) of the Environmental Planning and Assessment Act 1979, the proposed development is likely to result in adverse environmental and social impacts as a result of increased traffic generation.

2. Pursuant to Section 79C(1)(b) of the Environmental Planning and Assessment Act 1979, the proposed development is likely to result in adverse environmental and social impacts as a result of increased effluent generated by the proposed use.

3. Pursuant to Section 79C(1) of the Environmental Planning and Assessment Act 1979, the proposed land use is inconsistent with the character and amenity of the locality.

4. Pursuant to Section 79C(1) of the Environmental Planning and Assessment Act 1979,the current trial approval is yet to lapse and a review of compliance with conditions imposed yet to be undertaken

Background-the First Proceedings, appeal in relation to the New Development Application

On 1 March 2017, the Applicants lodged an appeal to the Land and Environment Court against Council’s decision to refuse the New Development Application, proceedings no. 2017/64945 (the First Proceedings).

At the first directions hearing on 20 April 2017, the First Proceedings were set down for conciliation conference. The conciliation conference is to take place on 25 July 2017.

Background-proposed modification of the Road Transport Terminal Consent

On 13 March 2017 the Applicants also lodged an application with Council under s96(2) of the Environmental Planning and Assessment Act 1979 to modify the Road Transport Terminal Consent (the modification application).

The effect of the modification application would be to modify the Road Transport Terminal Consent so that Condition 1A will only cease to authorise the use of a road transport terminal if development consent is granted for the New Development Application, and a construction certificate is issued in relation to it.

Council has not determined the modification application. Due to the expiry of 40 days from the date on which the modification application was lodged, Council is deemed to have refused it on 24 April 2017.

The Applicants' have lodged a second class 1 appeal to the Land and Environment Court against Council's deemed refusal of the modification application (the Second Proceedings).

Background-mention before the Land and Environment Court

The two sets of proceedings were listed for Notice of Motion and directions hearing in the Land and Environment Court on 16 May 2017.

The applicant sought that the two sets of proceedings be heard concurrently with evidence in each matter being evidence in the other and for expedition of both preceding so that, whilst the conciliation conference date (25 July 2017) was to be maintained, the proceedings be listed for hearing on a date before 4 September 2017 (the date that the use of the approved road transport terminal must end on 4 September 2017, unless the Road Transport Terminal Consent is modified).

The parties provided the Court with an agreed position which sought that the matters be heard concurrently and that the proceedings be listed for a hearing on 24 and 25 August 2017.

Council’s contentions in the Land and Environment Court proceedings

The First Proceedings

TRAFFIC AND PARKING

1. The development application should be refused because insufficient information has been provided to confirm that the proposed development will not have an unacceptable adverse impact on traffic in the locality.

Particulars

(a) The traffic generation data recorded by the owner of the land over 15 days in November 2015 is not "independent". Surveys conducted by an independent traffic consultant have not been provided.

(b) The number of occupied / used storage units in the traffic generation rates estimates has not been stated.

(c) Traffic surveys taken over numerous weeks of a typical year is required to record any seasonal peak usage times. The Aurecon Self Storage Results and Findings report was complied from the months of February and May whilst the data supplied by the Applicant was in November. The traffic generation for the months of February and May has not been provided.

(d) The data compiled does not include details of car-trailer combinations and has not included any truck activity.

(e) The truck usage / generation figures are required to determine whether the usage of the premises, inclusive of the proposed development, will result in an accelerated deterioration of the existing pavement condition along the Pinegroves Road approach to the site.

(f) The proposed parking for Shed 2 is unsatisfactory as it blocks access to storage units.

EFFLUENT DISPOSAL

2. The development application should be refused because insufficient information has been provided to confirm that the development will not have an adverse environmental and social impact as a result of the effluent disposal system proposed for the site.

Particulars

(a) A composting toilet is proposed. As this is not a sealed system, further information is required to ensure that there will not be an adverse environmental impact arising from the use and operation of the composting toilet.

(b) No detailed effluent management information has been provided, such as a waste water report.

(c) Further information is required to confirm the proposed development complies with the Chapter B3.2.2 of Byron Development Control Plan 2014, Australian Standard AS1547 and the NSW Department of Environment and Conservation Guidelines on the Use of Effluent By Irrigation produced in 2004.

FLOODING

3. The development application should be refused because insufficient information has been provided in relation to the impact of flooding on the proposed development.

Particulars

(a) The flood report by Rob Aungle & Associates is vague and insufficient information has been provided to justify the flood planning level relied upon.

CHARACTER AND ZONE OBJECTIVES

4. The development application should be refused because insufficient information has been provided to demonstrate the proposed development is consistent with the objectives of the zone and the character of the locality.

Particulars

(a) There is no schedule of material and finishes provided to confirm the proposed development will not have an adverse impact on the character of the area.

(b) Insufficient information has been provided to demonstrate the development will encourage primary industry production by maintaining and enhancing the natural resource base.

(d) The proposal does not demonstrate that its scale and siting is compatible with the zone.

(e) The proposal does not provide for rural tourism.

(f) The proposal does not demonstrate that the “impacts on the scenic quality of the locality” are minimised.

INSUFFICIENT AND INADEQUATE INFORMATION – PLANS

5. The development application should be refused because inadequate plans have been provided.

Particulars

(a) There is inadequate information about ground levels (existing and proposed).

(b) The plans provided do not comply with the Land and Environment Court’s Practice Directions in the following circumstances:

i. The Survey Plan does not indicate: a) existing buildings, structures and features of the site; b) topography (spot levels, contours); c) natural drainage of the site; d) significant existing vegetation, indicating its location on the site, type and spread; and e) location, height and use of adjoining buildings.

ii. The Site Plan does not indicate: a) existing significant trees, indicating whether they will be retained or removed; b) extent of paved/gravel areas; and c) garbage/waste storage areas.

iii. The Floor plan does not indicate: a) Shed 2 WC information (room area and dimensions, location of windows and door/s, wall construction); and b) spot levels of natural ground to AHD.

iv. The Elevations do not indicate: a) Material and finishes to be used in construction; b) proposed window size, sill height and location (Shed 2 WC); and c) the height of eaves ridge and floor levels to AHD.

v. There are no Sections. These should indicate: a) adequate representation of ground level; b) areas of cut and/or fill; c) indicate footings for the proposed extensions; and d) height of levels to AHD.

vi. There is no landscape plan

(d) A stormwater drainage plan has not been provided.

(e) There are no plans or elevations of the existing Machinery Shed.

(f) The tree and bottlebrushes to be removed are not identified on the plans.

(g) There is no demolition plan and remediation/landscape plan for the “Road Transport Terminal” to be removed.

PRECEDENT

6. The development application should be refused because the approval of the proposed development is likely to set an undesirable precedent for similar inappropriate development.

PUBLIC INTEREST

7. The development application should be refused because the proposed development is not in the public interest having regard to the above contentions and the submissions received objecting to the proposed development.

The Modification Application

8. The modification application should be refused because the consent authority could not be satisfied that adverse amenity impacts will not result from the operation of the roads transport terminal.

Particulars

(a) The trial period condition was imposed on the original development consent to ensure no adverse amenity impacts would result from the use of the land as a roads transport terminal.

(b) The consent authority cannot be satisfied that the trial period condition should be deleted and replaced from the original consent in circumstances where the use of the land has not operated in accordance with the original consent and the consent authority has not been able to observe and assess the use of the land in accordance with the consent as granted.

External experts briefed

Council has briefed experts who have reviewed all of the documents filed in the proceedings and who have provided advice on whether:

I. The development application warrants refusal on traffic grounds

II. The development application warrants refusal on planning grounds or for any other related to the expert’s area of expertise.

III. The development application warrants refusal on effluent disposal grounds or for any other reason related to the expert’s area of expertise.

The Expert Witness Code of Conduct provided by the Uniform Civil Procedure Rules provides that an expert witness is not an advocate for a party and has a paramount duty, overriding any duty to the party to the proceedings or other person retaining the expert witness, to assist the court impartially on matters relevant to the area of expertise of the witness.

Financial Implications

The estimated professional legal costs of defending the appeals are $25,000 excluding GST, assuming that the hearing in the matter only takes the 2 allocated days. If the hearing takes longer the legal costs will be higher.

Because Council staff recommended that the New Development Application be approved, it was necessary for Council to retain the services of independent external experts. Estimates as to experts costs are approximately $45,000.

Council’s attention is drawn to the legal advice forwarded separately as to the general question of adverse costs.

Statutory and Policy Compliance Implications

Staff requested advice from Marsdens Law Group on the prospects of success of defending the appeals. That advice has been forwarded to all Councillors other than Cr. Hunter.

That advice is covered by legal professional privilege and is presented as CONFIDENTIAL. The advice must not be discussed with or disclosed to any non Councillor. It must not be discussed with or disclosed to Cr. Hunter.

In the meeting it is recommended that Council move into confidential session if Councillors want to discuss the legal advice as per the following recommended motion:

1. That pursuant to Section 10A(2)(g) of the Local Government Act, 1993, Council resolve into Confidential Session to discuss BSC ats Hunter LEC 2017/64945 and BSC ats Hunter LEC 2017/125755

2. That the reasons for closing the meeting to the public to consider this item are that the advice contains advice concerning litigation and advice that would be privileged from production in legal proceedings on the grounds of legal professional privilege.

3. That on balance it is considered that receipt and discussion of the matter in open Council would be contrary to the public interest, as it could compromise the position of the Council in the legal proceedings.

The differences between finalising the Court proceedings via a Conciliation Agreement compared to Consent Orders are as follows:

1. A Conciliation Agreement is between Council and the applicant ie Council stays the determining authority.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.11

Report No. 13.11 PLANNING - 10.2016.625.1 - Alterations and Additions to Existing Commercial Building to Create a Cafe and Day Spa at 35-37 Burringbar Street Mullumbimby

Directorate: Sustainable Environment and Economy

Report Author: Luke Munro , Planner

File No: I2017/943

Theme: Ecology

Development and Approvals

Proposal:

Proposal description:	Alterations and Additions to Existing Commercial Building to Create a Cafe and Day Spa
Property description:	LOT: B DP: 302891
Property description:	35-37 Burringbar Street MULLUMBIMBY
Parcel No/s:	7150
Applicant:	Chris Lonergan - Town Planner
Owner:	Mr R D Akins
Zoning:	B2 Local Centre
Date received:	21 September 2016
Integrated Development:	No
Public notification or exhibition:	- Level 2 advertising under DCP 2014 Part A14 – Public Notification and Exhibition of Development Applications - Exhibition period: 6 October 2016 to 19 October 2016 - Submissions received: 3
Other approvals (S68/138):	Water & Sewer (60)
Planning Review Committee:	Not applicable
Delegation to determination:	Council
Issues:	· Located in Mullumbimby Heritage Conservation Area

Summary:

Development consent is sought for Alterations and Additions to Existing Commercial Building to create a Recreation Facility (Indoor - Spa) and Food and Drink Premises (Café – Juice Bar) over land at 35-37 Burringbar Street, Mullumbimby on Lot B DP302891.

The proposed development is consistent with all relevant state planning instruments and with the provisions of the Byron Local Environmental Plan 2014 & Development Control Plan 2014. The property is located within the Mullumbimby Heritage Conservation Area, and was previously used as a bank for a number of years. The proposal will add a further storey to the building, but this is generally behind the front façade and wont be readily visible from Burringbar Street. The development also preserves existing elements such as the bank vault and is considered to be in keeping with the character of this conservation area.

The development relies upon a voluntary planning agreement for a shortfall in car parking of 15.3 spaces. This is supported by Councils Section 94 Officer with money collected to be spent constructing additional spaces either in existing road reserves or subject to an agreement with State Rail to construct a car park on rail land. The exact location would be determined after completion of the Mullumbimby Town Centre Masterplan.

The proposed development is not contrary to the public interest, and is recommended for approval subject to conditions of consent.

NOTE TO COUNCILLORS:

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

RECOMMENDATION:

Pursuant to Section 80 of the Environmental Planning & Assessment Act 1979, Development Application 10.2016.625.1 for alterations and additions to existing commercial building to create a recreation facility (indoor - spa) and food and drink premises (café – juice bar), be granted consent subject to conditions listed in Attachment 2 #E2017/72513

Attachments:

1 Proposed Plans 10.2016.625.1 35-37 Burringbar Street Mullumbimby, E2017/71253 ⇨

2 Conditions of consent 10.2016.625.1 - Burringbar Street Mullumbimby, E2017/72513 ⇨

3 Confidential - submissions received 10.2016.625.1 35-37 Burringbar Street Mullumbimby, E2017/70869

Assessment:

1. INTRODUCTION

1.1. History/Background

The building was originally built in 1928 and opened in 1929 for the English, Scottish and Australia Bank which later became the ANZ Bank. Prior to the opening of the bank at this site the bank operated from 98 Dalley Street, Mullumbimby which was constructed in 1909 after fire destroyed the previous building in 1908. The use of the site as a bank ceased approximately 15-20 years ago.

There have been a number of applications relating to the site in recent times which are described below:

Application Number	Proposal	Decision
06.1995.2618.1	Alteration/Addition to Office - reroof	Approved 21.11.1995
10.2002.689.1	Sign	Approved 06.02.2003
10.2008.217.1	Change of Use – Bank to Shop with recreation centre (yoga)	Approved 25.08.2008
10.2009.158.1	Demolition of existing toilet block, new toilet block and verandah	Refused 19.06.2009
10.2010.78.1	New Toilet Block and Carport (including demolition of existing toilet)	Approved 17.05.2010

1.2. Description of the proposed development

This application seeks approval for Alterations and Additions to Existing Commercial Building to Create a Recreation Facility (Indoor - Spa) and Food and Drink Premises (Café – Juice Bar) with ancillary treatment rooms on a new upper floor and pool and spa pools in the rear yard of the site.

The proposed development includes an additional storey and will incorporate the following:

Ground Level

· Café (Juice Bar)

· Recreation Facility (Spa) including reception, treatment and exercise areas.

First Floor

· Three (3) treatment rooms each with shower toilet and hand basin including 10.8m² deck.

· Lift

· Large covered roof deck for health and relaxation (approx. 162m²).

Rear Yard

· Two (2) Spa Pools

· Plunge Pool and Lap Pool

· Toilet and Change room facilities

· Plant and Equipment Room

· Covered and enclosed Garbage store

· Covered seating area

· Male and Female Steam Rooms

· Sauna

The proposed first floor addition will incorporate a hipped roof addition which is setback from the front façade/parapet of the original bank building to minimise any impact on the streetscape and to match the general roof form of the adjoining heritage item to the east. The first floor addition will be constructed from rendered ‘blue board’ to the upper level walls to differentiate the new addition from the original fabric of the building. The roof will be constructed from colourbond roof sheeting.

Internally the applicant will remove one of the two old bank safes and will retain a single safe as a store room. Internal nib walls will be retained to identify the original floor plan and extent of the original building. A new lift will be included within the building to give equitable access to the first floor.

The rear wall of the original building will be largely removed and replaced with bi-fold stacking doors to give greater visual connection between the internal uses of the building with the rear yard and pool area.

No additional car parking is proposed and the applicant has agreed to enter into a Voluntary Planning Agreement for the provision of 15.3 car parking spaces which currently equates to a monetary contribution of $118321.79 as at 10 May 2017. This amount will be indexed at the time of payment in accordance with the All Groups Sydney Consumer Price Index as published quarterly by the Australian Bureau of Statistics.

1.3. Description of the site

Land is legally described as LOT: B DP: 302891.

Property address is 35-37 Burringbar Street MULLUMBIMBY

Land is Zoned: B2 Local Centre

Land area is: 607 m²

Property is constrained by:

· Flood Prone Land

· Acid Sulfate Soils (Class 4)

· Heritage Conservation Area

The site contains an older style single storey commercial building which was originally built in 1928 and opened in 1929 for the English, Scottish and Australia Bank which later became the ANZ Bank. Prior to the opening of the bank at this site the bank operated from 98 Dalley Street, Mullumbimby which was constructed in 1909 after fire destroyed the previous building in 1908. The use of the site as a bank ceased approximately 15-20 years ago. Currently the building is used as a Shop with the internal floor plan intact which includes several rooms, two (2) bank safes and two (2) bathrooms. The building has a gross floor area of approximately 234m².

The rectangular allotment fronts Burringbar Street to the north and Studal Lane to the west. Commercial developments are situated on the adjacent allotments to the east, north and west.

The site is relatively level and vegetation on the site generally consists of lawn at the rear of the building. The site is not identified as being designated bushfire prone land and is identified as being Class 4 potential acid sulfate soils however there are no works proposed 2m below ground level with the deepest pool being the lap pool having a depth of 1.4m. The allotment however is identified as being flood prone land and is burdened by a sewer line adjacent to the rear property boundary.

The site is located within the Mullumbimby Heritage Conservation Area and is adjacent to a Heritage Item being Commercial Premises to the east of the site.


LEP Zoning B2 – Local Centre	DCP Precinct 1

Acid Sulfate Soils Overlay – Class 4	Floor Space Ration – 0.75

Heritage – Conservation area (Mullumbimby)	Height of Buildings – 9m

Flood Planning Layers

2. SUMMARY OF REFERRALS

Referral	Issue
Environmental Health Officer*	No objections subject to conditions. Refer to Doc # A2016/24723
Development Engineer	No objections subject to conditions. Refer to Doc # A2016/24724
Water & Sewer Engineer (Local Approvals Officer)	No objections subject to conditions. Refer to Doc # A2016/24725
Building Surveyor	No objections subject to conditions. Refer to Doc # A2016/24737
S64 / Systems Planning Officer	No objections subject to conditions. Refer to Doc # AA2016/24737
S94 / Contributions Officer	No objections subject to conditions. Refer to Doc # A2016/24738
Heritage Consultant	Amendment required to design in terms of upper level roof and window positioning (Refer to Doc # E2016/95612) Further discussions to building design to address heritage issues discussed below

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

Issues:

Heritage Assessment

The proposal was forwarded to Councils Heritage Advisor for comment with a number of comments on the original design being made. The applicant has addressed these through the redesign of the proposal and are addressed below:

Comments on Proposal	Design Response
The subject former bank is a contributory historic commercial building in largely unaltered form, retaining much original fabric.	The majority of the development will retain the original building with the first floor addition and rear wall being the new additions to the existing building which will retain the complimentary streetscape character of the building.
The proposed design of a double skillion roof form structure for the upper floor is considered to be out of character with the traditional roof form of the original building and its heritage listed neighbour, which both have traditional hipped roof forms. This does not provide a harmonious addition. It is suggested that this be reconsidered and a simple hipped roof form is utilised. As the building is on a corner, the additions to the upper floor and roof form would be particularly visible from the main street and the laneway. The addition should remain setback from the parapet as far as possible, so that the view of the original façade is maintained with minimal impact to the streetscape. The use of a hipped roof will also minimise height behind the parapet. Additional glazing could be provided with Velux skylights.	The roof has been redesigned to a hipped roof form and set back 4.2m from the front façade of the building. This change has provided a traditional roof form typical of the era and to compliment the neighbouring Heritage Item.
The proposed glazing to the upper floor facing the laneway does not have a harmonious relationship to the historic character and proportions of the building and should be reconsidered with regard to terms of placement and proportion.	The proposed windows have largely been lined up with the original windows on the ground floor with the exception of the stairway window which is to be removed.
The proposal involves demolition of original fabric, including the safe behind the principal banking chamber, and demolition of the original southern rear brick walls to create large openings with bi fold doors. It is considered that there is no justification for demolition of the safe, which is a significant interior element which is linked closely to the historical significance of the building. The design should incorporate this element as part of the future proposed use.	The proposal will retain one of the two safes and the demolished safe door will be retained onsite and used as a storage room door.
The proposed demolition of the southern walls for full glazing is also likely to have an adverse impact on historic original fabric of the building and less intrusive options need to be explored.	The rear wall is to be removed however the applicant has reduced the amount of glazing within this elevation and to utilise rendered board to provide a better relationship with the new addition. The walls that are to be removed will retain small ‘nib’ walls as a clue to the original layout of the building. Further the building itself is not a Heritage Item and the proposed rear wall demolition will only be visible from Studal Lane and will not impact on the Burringbar Streetscape or the adjoining Heritage Item.

3. SECTION 79BA – BUSH FIRE PRONE LAND

Under section 79BA of the Act, Council must be satisfied prior to making a determination for development on bush fire prone land, that the development complies with the document ‘Planning for Bush Fire Protection 2006’. The site is not bush fire prone land.

4. SECTION 79C – MATTERS FOR CONSIDERATION – DISCUSSION OF ISSUES

Having regard to the matters for consideration detailed in Section 79C(1) of the Environmental Planning & Assessment Act 1979 (EP&A Act), the following is a summary of the evaluation of the issues.

4.1 State Environmental Planning Instruments

	Satisfactory	Unsatisfactory
State Environmental Planning Policy No 71—Coastal Protection	x	☐
Consideration:

Satisfactory

Unsatisfactory

State Environmental Planning Policy No 71—Coastal Protection

☐

Consideration:

4.2A Byron Local Environmental Plan 2014 (LEP 2014)

In accordance with Clauses 1.4 and 2.1 – 2.3:

(a) The proposed development is defined in the LEP 2014 Dictionary as Recreation Facility (Indoor - Spa) and Food and Drink Premises (Café – Juice Bar);

(b) The land is within the B2 Local Centre according to the Land Zoning Map;

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

Zone Objective	Consideration
· To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.	The proposed development will provide a greater range of business opportunities within the Mullumbimby town centre including Recreation Use (Spa) and Food and Drink Premises (Café) with a number of pools, spa’s and
· To encourage employment opportunities in accessible locations	The development is located in the main street of the Mullumbimby Town Centre and is highly accessible by both pedestrians and cars.
· To maximise public transport patronage and encourage walking and cycling.	The location of the development ins the centre of town will enable the efficient use of future public transport services.
· To encourage vibrant centres by allowing residential and tourist and visitor accommodation above commercial premises.	Not Applicable

The following clauses have been taken into consideration in the assessment of the subject development application in accordance with subsection 79C(1) of the EP&A Act 1979 with comment provided:

Applicable Clauses

Comments

Clause 4.4 – Floor Space Ratio

Floor Space Ratio Map indicates a maximum 0.75.

The proposed development will have a maximum FSR of 0.73 less than the allowable FSR of 0.75:1 allowable within the Mullumbimby Local Centre.

Clause 5.10 Heritage Conservation

a) to conserve the environmental heritage of Byron,

b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,

c) to conserve archaeological sites,

to conserve Aboriginal objects and Aboriginal places of heritage significance

(4) Effect of proposed development on heritage significance

The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned.

(5) Heritage assessment

The consent authority may, before granting consent to any development:

(a) on land on which a heritage item is located, or

(b) on land that is within a heritage conservation area, or

require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned

The proposed development seeks a first floor addition which will incorporate a traditional hipped roof form similar to neighbouring heritage items. Further the development will incorporate the use of sympathetic modern addition and materials which include window placements with excellent vertical integration with existing ground floor windows.

The development also seeks to retain one of the two bank safes inside the building and will retain the removed door onsite as a entry to a storage room.

The development will provide an adaptive reuse of the existing bank building and maintain the existing Burringbar Streetscape.

The development has been referred to Councils heritage advisor (See section 2 of this report) and recommendations have largely been reflected in the amended design of the building with a hipped roof form, first floor deck being further setback from the front façade and the use of large expanses of glazing at the rear reduced with internal ‘nib’ wall retained where original walls are to be removed.

The applicant provided a Heritage Character Area Assessment as part of the application documentation.

Clause 6.1 – Acid Sulphate Soils

Development does not disturb, expose or drain acid sulfate soils and cause environmental damage.

· Works more than 2 metres below the natural ground surface.

· Works by which the watertable is likely to be lowered more than 2 metres below the natural ground surface.

The applicant has indicated that the development will not involve excavations greater than 2m deep and will therefore not impact on any Class 4 Acid Sulfate Soils. However, the excavation of the pools may intercept the ASS and therefore a condition has been recommended requiring a Preliminary Acid Sulfate Soils Investigation be submitted to Council prior to the issue of a Construction Certificate.

Clause 6.3 Flood Planning

(a) to minimise the flood risk to life and property associated with the use of land,

(b) to allow development on land that is compatible with the land’s flood hazard, taking into account projected changes as a result of climate change,

The flood planning level for this development is 5.56m A.H.D. The plans and specifications to accompany the construction certificate application are to indicate the use of flood compatible materials and services below the flood planning level.

Clause 6.6 Essential Services

Adequate services are available for the development

The property is fully serviced with all necessary water, sewer, stormwater and electrical services. The site has access to both Burringbar Street and the Studal Lane.

4.2B Byron Local Environmental Plan 1988 (LEP 1988)

Not Applicable

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

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

The following comments are provided on the applicable chapters of DCP 2014

What Section and prescriptive measure does the development not comply with?	Does the proposed development comply with the Objectives of this Section? Address.	Does the proposed development comply with the Performance Criteria of this Section? Address.
B3: Services	Yes – The site has all services connected to the property.	Yes – The site has all services connected to the property.
B4: Traffic Planning, Vehicle Parking, Circulation and Access
B4.2.5 Car Parking requirements	Deemed to Comply – The site does not propose any onsite car parking as required under Table B4.1 – Parking Rates, however the developer has agreed to enter into a Voluntary Planning Agreement for the shortfall of 15.3 parking spaces.	Deemed to Comply – The site does not propose any onsite car parking as required under Table B4.1 – Parking Rates, however the developer has agreed to enter into a Voluntary Planning Agreement for the shortfall of 15.3 parking spaces. Contributions collected will be spent constructing additional spaces either in existing road reserves or subject to an agreement with State Rail to construct a car park on rail land. The exact location would be determined after completion of the Mullumbimby Town Centre Masterplan. Spaces in the existing road reserves would be created by sealing and line marking unsealed road shoulder on the periphery of the town centre.
B4.2.8 Bicycle, Motorcycles and Coach Parking	Yes - Development Proposals must make provision for bicycle parking in accordance with Table B4.1. A condition has been recommended requiring the development provide bicycle parking onsite for a minimum of 5 bikes.	There is adequate area available onsite to accommodate bicycle parking. Condition of consent recommended requiring the provision of adequate bicycle parking onsite.
B4.2.9 Loading Bays	Yes –The proposed GFA of the development does not require any additional loading bays over the current situation with a small rigid vehicle under Table B4.2 – Loading Bays.	The existing site has operated as a business use for over 100 years with no onsite loading bay. Loading and unloading currently occurs from Studal Lane. This is similar to many business operators within the Mullumbimby CBD. The proposed GFA of the development does not require any additional loading bays over the current situation with a small rigid vehicle under Table B4.2 – Loading Bays.
Chapter B8 – Waste Management and Minimisation
B8.3.1 Demolition of Buildings or Structures	Yes – A condition has been recommended requiring the submission of a Site Waste Minimisation and Management Plan prior to the issue of a construction certificate.	No – The application was not supported by a Site Waste Minimisation and Management Plan.
B8.3.2: Construction of Buildings or Structures	Yes – A condition has been recommended requiring the submission of a Site Waste Minimisation and Management Plan prior to the issue of a construction certificate.	No – The application was not supported by a Site Waste Minimisation and Management Plan.
Chapter B9 Landscaping
B9.7: Commercial and Retail Landscaping	Yes – The site contains lawn at the rear of the building currently with the proposed development including a number of pools and structures in he rear yard, this area was previously a hardstand parking area. The development will not remove any vegetation of significance and as the existing building has a zero setback to both Burringbar Street and Studal Lane there is no opportunity for frontage landscaping. There is however an established landscape area at the front of the site within the Burringbar Street road reserve.	Not Applicable – The proposed development is not a large scale stand alone development.
Chapter C1 – Non Indigenous Heritage
C1.3.1 General Streetscape Context	Yes – the development compliments the existing character and amenity of the Burringbar Streetscape and responds appropriately by setting the first floor roof back off the street frontage to retain the prominence of the exiting parapet and to match the typical roof from through the use of a hipped roof.	Yes – The proposed development respects and complements the existing heritage character of the streetscape by maintaining the general scale, height, bulk and proportions of the traditional buildings in the streetscape. The first floor addition is well setback from the street frontage to minimise any impact on the existing Burringbar Streetscape.
C1.4.1 Roof Form and Chimneys	Yes – the proposal will retain the dominant hipped roof form of the original building and surrounding heritage item.	Yes – the proposed development incorporates a hipped roof form similar to the original roof of the building and also the neighbouring heritage item to the east.
C1.4.3 Windows and Doors	Yes – the original windows and doors are to be retained with new windows on the upper level fronting Studal Lane maintaining the vertical proportions of the lower level.	Yes – the original windows and doors are to be retained.
C1.4.4 Building Materials	Yes - The selection of building materials is used to differentiate the new additions from the original fabric of the building to avoid ‘imitating’ the original building.	Yes – The additions have been designed and detailed using materials that complement the character of the existing heritage item and the area generally. The use of contemporary materials is more appropriate, particularly to differentiate between the old and the new components of the development.
C1.4.5 Colours	Yes – A condition is recommended to ensure colours used on the development will comply with the existing character of the conservation area and adjoining heritage item.	Yes – The proposal will use traditional colour schemes as outlined in the Byron DCP 2014 Appendix C1.3.
C1.4.8 Outbuildings and Swimming Pools	Yes – The proposed pools and outbuildings do not detract from the heritage significance of the site or Heritage Conservation Area as these elements of the development will not be visible from the street frontages of the site.	Yes – The proposed lap pool, plunge pool and spa pools are located at the rear of the site and appropriately screened from the Studal Lane frontage by proposed outbuildings which will be sympathetic to the existing structure onsite.
C1.5 Special Guidelines – Development in the Vicinity of a Heritage Item	Yes – The development does not impact on the existing streetscape as the first floor is setback behind the existing parapet and provides consistent setback to Studal Lane. There is no change to the side setbacks and the development will not obscure from view the heritage item to the east.	Yes – The new development is contemporary in design but will however incorporate important elements such as hipped roof form, window placements and will be setback from the street frontage on the first floor to ensure the development does not create an overbearing impact on the adjoining heritage item. The proposal has also through the use of contemporary materials avoided making a replica copy of the existing building onsite or adjoining heritage item.
C1.6.8 Mullumbimby Conservation Area	Yes – The proposal demonstrates an appropriate response to the Mullumbimby Heritage Conservation Area and will maintain the existing heritage commercial character of the area.	Yes - The development provides consistent setbacks and built form within the Mullumbimby Town Centre. The proposal provides infill development with appropriate roof form, materials and setbacks to compliment the existing streetscape and heritage values of the area. The proposal will not incorporate onsite car parking and therefore will not impact on the pedestrian network.
C1.6.10 Alterations and Additions in Heritage Conservation Areas	Yes – The proposed first floor addition will minimise any impact on the existing streetscape by retaining the prominence of the existing parapet on Burringbar Street and has set the roof form 4.2m from the street frontage to ensure that the existing streetscape character is maintained.	Yes – The development has been designed in accordance with C1.6.1 – C1.6.8 as previously described. The application was accompanied by a Heritage Impact Statement prepared by Chris Lonergan. Further assessment was undertaken by Councils Heritage Advisor with the applicant amending the proposal accordingly with a new roof form, setbacks, rear elevation and window placements.
Chapter C2 – Areas Affected by Flood
C2.3.2 Minimum Floor Levels	Yes –Councils engineer has assessed the development proposal and recommended a condition regarding the minimum floor level for the building.	Yes – Councils engineer has assessed the development proposal and recommended a condition regarding the minimum floor level for the building.
Chapter D4 – Commercial and Retail Development
D4.2.1 Design and Character of Retail and Business Areas	Yes – the proposed development incorporates a number of business uses and will result in greater diversity of commercial offering within Mullumbimby.	Yes – The development has been designed to integrate with the Mullumbimby Town Centre and to provide additional employment opportunities in the shire.
D4.2.3 Vehicle Access and Parking	Deemed to Comply – The developer has agreed to enter into a Voluntary Planning Agreement for the shortfall of 15.3 parking spaces.	Deemed to Comply – The developer has agreed to enter into a Voluntary Planning Agreement for the shortfall of 15.3 parking spaces.
D4.2.4 Loading Docks	Yes –The proposed GFA of the development does not require any additional loading bays over the current situation with a small rigid vehicle under Table B4.2 – Loading Bays.	Yes –The proposed GFA of the development does not require any additional loading bays over the current situation with a small rigid vehicle under Table B4.2 – Loading Bays.
D4.2.10 Restaurants, Cafes, Small bars, Pubs Registered Clubs, Function Centres and other Licensed Premises in the Urban Areas of Byron Shire	No – The applicant has not provided the proposed hours of operation for the development including café and has not provided a Noise Management Plan. In this instance a Condition has been recommended restricting the hours of operation of the proposed uses onsite.	No – The applicant has not provided the proposed hours of operation for the development including café and has not provided a Noise Management Plan. In this instance a Condition has been recommended restricting the hours of operation of the proposed uses onsite.
Chapter E3 – Mullumbimby
E3.1 Character Precincts Central Business District – Precinct 1	The development is considered to protect the heritage and conservation values of the conservation area and provide a positive contribution to the streetscape.	Yes – The proposed development has ben designed to minimise any potential impact on the streetscape whilst complimenting the existing building through the use of complimentary materials, height and roof form.
	General guidelines An objective of this Chapter is to encourage the central business and shopping area to remain compact and to maximise its accessibility for residents and visitors. Public accessibility within the commercial area is to be improved by provision of walkways and arcades within commercial redevelopment, linking the laneways and car parking areas to the main commercial street frontages.	Yes – The proposed development provides additional commercial activities within the central core of Mullumbimby.
	Scale – two storey is preferable	Yes – The proposal is for a 2 storey commercial building with the existing first floor and ceiling height retained.
	Form – hipped or hipped gabled roof with pitch of 25 – 30 degrees preferable.	Yes – The proposal incorporates a hipped roof design with a pitch similar to the existing roof. The roof will be largely hidden behind the existing parapet to minimise any potential impact on the existing streetscape.
	Materials – face brick and or painted cement rendered brickwork	The development will incorporate a rendered look to the upper level over ‘blueboard’ to provide adequate fire separation. Existing brick work to the street and land to be retained
	Verandahs and awnings Shopfronts	Not Applicable – The existing bank building does not incorporate an awning and the proposed development will retain the existing street façade.

4.5 Any Planning Agreement or Draft Planning Agreement?

Yes

Is there any applicable planning agreement or draft planning agreement?

☒

☐

Planning Agreement

Council had adopted the Byron Developer Contributions Plan 2012 in December 2012. This plan levies contributions for residential development under the terms of Section 94 of the Environmental Planning and Assessment Act 1979. Contributions for all other types of non residential development such as commercial and industrial are levied under section 94A of the Act. Section 94A levies are calculated at 1% of the cost of construction of the development. Section 94A (2) states: “A consent authority cannot impose as a condition of the same development consent a condition under this section as well as a condition under section 94.” As S94 contributions for parking cannot be levied on development for which a 94A levy is charged Council will accept a contribution for a shortfall in car parking in the form a planning agreement.

Under the terms of DCP 2010 and DCP 2014 contributions for car parking are only available for commercial development in town centres where Council has provided or will provide public car parking. The town centre of Mullumbimby meets this requirement.

At the Meeting of 16 July 2015 Council resolved to grant delegation to the General Manager to exhibit and enter into planning agreements where the value per parking space is set as per the following table:

Proposed Contributions Rate Per Car Space for a VPA
Locality	Per Space
Byron Bay CBD	38,000
Brunswick Heads CBD	61,690
Bangalow	5,600
Mullumbimby CBD	7,525

The cost per space in Mullumbimby indexed to May 2017 is now $7733.45 per car space.

If this development is short 15.3 car parking spaces based on the engineering referral then the value of the planning agreement will be 15.3 x 7733.45 = 118321.79.

Subsection 93I (3), as set out below, allows for conditions to be imposed on a development consent in certain circumstances

(3)___ However, a consent authority can require a planning agreement to be entered into as a condition of a development consent, but only if it requires a planning agreement that is in the terms of an offer made by the developer in connection with:

(a)___ the development application, or

(b)___ a change to an environmental planning instrument sought by the developer for the purposes of making the development application,

or that is in the terms of a commitment made by the proponent in a statement of commitments made under Part 3A.

The owner of the site has agreed to enter into a Voluntary Planning Agreement for the provision of offsite car parking in Mullumbimby.

4.6 Environmental Planning & Assessment Regulation 2000 Considerations

Clause	This control is applicable to the proposal:	I have considered this control as it relates to the proposal:	If this control is applicable, does the proposal comply?
92	Yes	Yes	Yes
93	No	N/A	N/A
94	Yes	Yes	Yes
94A	No	N/A	N/A

* Non-compliances and any other significant issues discussed below

The building and alterations and additions will require full compliance with the Building Code of Australia.

4.7 Any coastal zone management plan?

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

Satisfactory

Unsatisfactory

Not applicable

Is there any applicable coastal zone management plan?

☐

☒

Consideration:

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

Impact on:	Likely significant impact/s?
Natural environment	No. The proposal will not have a significantly adverse impact on the natural environment of the locality.
Built environment	No. The proposal will not have a significantly adverse impact on the built environment of the locality. The proposed first floor addition has incorporated a hipped roof form consistent with the adjoining heritage item, has set the roof back from the existing parapet ensuring minimal change to the existing streetscape and the retention of internal wall nibs, one safe and the retention of the other safe door within the development.
Social Environment	No. The proposal will not have a significant social impact on the locality. The development will retain the existing building onsite and proposes a sympathetic addition whilst retaining the significant fabric of the building which links the historical context of the buildings previous use to the history of Mullumbimby.
Economic impact	No. The proposal will not have a significant economic impact on the locality and will enhance the mix of tenancies and commercial and recreational offerings within Mullumbimby.
Noise Impact	The site is located within the Town Centre with a number of Shop Top Housing units surrounding the site. The applicant has not identified the operating hours nor provided a Noise Management Plan for the proposed uses. A condition of approval is recommended restricting the operating hours of the businesses onsite to maintain the amenity of existing residents surrounding the site.

Are there any Council Policies that are applicable to the proposed development?

Council Policy	Consideration
Building over pipelines and other underground structures Policy	The proposed development identifies the existing sewer line running through the site and has been conditioned to comply with Policy 4.20.
Planning Agreements Policy	The applicant has agreed to a Voluntary Planning Agreement to pay a monetary contribution for the shortfall of car parking provided onsite.

4.9 The suitability of the site for the development

The site is a serviced, largely unconstrained property and is suitable for the proposed development. No hazards or constraints affect the development from proceeding.

4.10 Submissions made in accordance with this Act or the regulations

The development application was publicly exhibited .

There were 3 submissions made on the development application:

- 0 For

- 3 Against

Submission	Response
Developments should have consideration to materials, roof form, colour etc and there is no need for modern architectural contrast and this is an invitation for ‘anything goes’.	The use of differing materials has been used to accentuate the historic building rather than trying to provide a poor ‘replica’ of the existing heritage building. The building was initially designed with a split skillion roof and has been amended to provide a hipped roof form to be sympathetic with the surrounding heritage buildings and the existing roof form on the current building, and in accordance with the DCP provisions.
The development proposes a FSR of 0.75:1 and the submitter wanted to be assured by the planning department that the development would not exceed this requirement.	The proposed development complies with the FSR requirement and will have a maximum FSR of 0.73:1.
The development is an over development of the site with most of the backyard being developed and with very little opportunity for landscaping. The development indicates 3 ‘units’ (treatment rooms) however the plans indicate 6 units.	The original set of plans submitted proposed three treatment rooms only (the plans did contain a typo which indicated up to 6 units which was incorrect). The site is located within the central business district of Mullumbimby and has a maximum allowable FSR of 0.75:1 which is to restrict gross overdevelopment of sites. In this instance the proposal has a maximum FSR of 0.73:1 and does not constitute an over development of the site.
Parking – The applicant states they have parking credits of 13 spaces based on previous uses of the site. Can Council insist on provision of parking onsite. Even where money is provided in lieu of onsite parking this will not solve the parking problem within Mullumbimby.	The applicant has entered into a voluntary planning agreement to provide a monetary contribution in lieu of onsite parking, this money will go to parking improvements within the Mullumbimby area to assist in providing additional parking to alleviate the existing parking issues within the township.
As a long term resident and advocate for the retention of the heritage character of the town I am very opposed to the introduction of paid parking.	The provision of paid parking in Mullumbimby is not a consideration of this application.
Street frontage – The street elevation with the skillion roof form above the parapet will have a significant impact on the streetscape.	The applicant has amended the proposed roof form to a hipped roof form and set the roof back 4.2m from the front elevation of the parapet and the eave line of the roof being set below the parapet. This will minimise any impact on the street elevation and will provide a more sympathetic response to the surrounding conservation area.
Bank Vaults. Where internal features are to be removed there should be clues left behind as to where these elements of the buildings once stood. This includes the bank vaults.	The proposed internal modifications will remove one vault and will however retain the vault door onsite under the stairs leading to the first floor. The second vault will remain in place as a reminder of the historical use of the building. Further any internal walls removed will retain ‘nib’ walls showing the location of the original wall locations.
The building should be included as a heritage item in the Byron LEP 2014 and the development should not be decided until the site is listed.	The building was considered during the adoption of the Byron LEP 2014 and was not listed at this time. Any further listing would be subject to further assessment by Councils Strategic Planning team, and ultimately will require an LEP amendments This is not a reason to withhold making a decision on this application.
My particular concern is with the bulk and scale of the additional building and the necessity of having yet another coffee shop in Mullumbimby	The development has been broken into differing materials to reduce the perceived bulk and scale of the development with the roof form amended to a hip roof form to compliment the surrounding heritage items and streetscape. Further the roof form has been set back from the street frontage to minimise any impacts on the streetscape from the first floor addition.

4.11 Public interest

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

The development of the first floor addition will comfortably sit within the existing Burringbar Streetscape and will ensure that the development retains its heritage values. The additions incorporate significant common elements with adjoining heritage items being roof form and retention of the existing parapet.

The development of commercial land uses within the Mullumbimby local centre will provide additional recreation opportunities and employment opportunities which are in the public interest for additional employment within the town.

4.12 Section 5A of the EP&A Act – Significant effect on threatened species

Having regard to sections 5A, 5C and 5D of the EP&A Act, there is unlikely to be a significant effect on threatened species, populations or ecological communities, or their habitats as a result of the proposed development.

4.13 Section 5B of the EP&A Act – Have regard to register of critical habitat

The NSW Critical Habitat Register does not identify any critical habitat on or adjacent to the site.

5. DEVELOPER CONTRIBUTIONS

5.1 Water & Sewer Levies

Section 64 levies will be payable.

This development generates an additional load onto Councils Water and Sewer System

Council requires Payment of Developer Servicing Charges (prior to issue of a construction certificate) of:

· 3.66 ET for Water &

· 4.35 ET for Sewer.

5.2 Section 94 Contributions

Section 94A Contributions are payable in addition to the voluntary planning agreement for the shortfall in car parking.

6. CONCLUSION

The proposed development is consistent with the relevant environmental planning instruments and planning controls applicable to the site. The proposal raises no significant issues in terms of environmental impacts or impacts on the Mullumbimby Heritage Conservation Area which cannot be managed and the site is considered suitable for the development. The application is recommended for approval and subject to conditions of consent.

7. RECOMMENDATION

It is recommended that pursuant to Section 80 of the Environmental Planning & Assessment Act 1979, Development Application 10.2016.625.1 for alterations and additions to existing commercial building to create a recreation facility (indoor - spa) and food and drink premises (café – juice bar), be granted consent subject to conditions listed in Attachment 2 #E2017/72513

8. DISCLOSURE OF POLITICAL DONATIONS AND GIFTS

Has a Disclosure Statement been received in relation to this application	No
Have staff received a ‘gift’ from anyone involved in this application that needs to be disclosed. Where the answer is yes, the application is to be determined by the Director or Manager of the Planning, Development and Environment Division.	No

BYRON SHIRE COUNCIL

Staff Reports - Infrastructure Services 13.14

Staff Reports - Infrastructure Services

Report No. 13.14 North Ocean Shores Sports Field Renaming

Directorate: Infrastructure Services

Report Author: Nikki Bourke, Project Officer

File No: I2017/957

Theme: Community Infrastructure

Open Space and Recreation

Summary:

The purpose of this report is to present the process underway for the renaming of the North Ocean Shores Sports Field (NOSSF) including name suggestions by the community. The report also presents the option for Council to pursue corporate sponsorship for naming rights.

RECOMMENDATION:

1) That Council:

a) selects a preferred permanent name for the North Ocean Shores Sports Field from the community suggestions provided in this report;

b) staff proceed to exhibit the preferred name for 28 days as per Council’s Naming of Public Places and Community Facilities Policy; and

c) should no objections be received for the preferred new name, that the name be adopt and submit the name to the NSW Geographical Names Board for approval and registration.

OR, ALTERNATIVELY

RECOMMENDATION

That Council issue an Expression of Interest for corporate sponsorship for naming rights of the North Ocean Shores Sports Field.

Attachments:

1 24.2014.14.1 Shara Bvd Sports Field - Bob Bellear naming Submission (from Brian Walker), E2017/12255 ⇨

2 24.2014.14.1 Shara Bvd Sports field - Jon Prendergast - PROPOSAL TO NAME THE NEW SHARA BLVDE SOCCER FIELD, E2017/74041 ⇨

3 24.2014.14.1. Shara Bvd Sports Field - North Ocean Shores Sports Field - name suggestions - tuckaburra from Geoff Bensley, E2017/74043 ⇨

4 24.2014.14.1. shara Bvd Sports field - sports ground name submission "Pat Boone Park" from Paul Waters, E2017/74044 ⇨

Report

Signage is required at the North Ocean Shores Sports Field (NOSSF) in order to complete the project. In naming the field and ordering signage, Council should first consider:

· The progress of the renaming process to date; and

· The option of corporate sponsorship for naming rights of the site.

Renaming Process

A renaming process in accordance with Council’s Naming of Public Places and Community Facilities Policy (Policy No. 11/004) commenced in 2017 to finalise a name for the new sports field.

Advertisements and media communication occurred throughout February and March 2017 calling for name suggestions from the community for the NOSSF. Submissions closed 4pm, 31 March 2017. The resultant community submissions for name suggestions are provided in the table below in order of first submission date:

Name Suggestion	Summary of significance to the NOSSF site	Submitted by	Date Submitted	Method of Submission
“Bob Bellear Sports Field”	Bob Bellear was Australia’s first indigenous judge. He was raised in Billinudgel, attended Mullumbimby High School and was an accomplished sportsman representing both the high school and Australian Navy in Rugby. Bob Bellear has a notable history of community service with Indigenous communities. The submission with extensive supporting information is attached (E2017/12255).	Brian Walker	20-1-17	Written application submitted in person.
“Patten Park”	Marc Patten is the current Shores United Soccer Club President. Marc Patten has a notable history of community service relating to both the club and his employment as a NSW Police Officer. See attached email submission from Jon Prendergast for more details. (E2017/5226)	Jon Prendergast	22-1-17	Email
		David Johnson	30-1-17	Email
		Scott and Sharon Thompson	2-2-17	Email
		Stephen Albert	23-2-17	Email
		Brian Hedge	23-2-17	Email
“Fearnside Field”	Kim Fearnside was the former Registrar of the Shores United Soccer Club: “…she has always for 8 years now kept this club running…”.	Tammie McCulloch	7-3-17	Email
“The Snake Pit”	“…In honour of the mighty Brown Snakes…”. The Shores United Brown Snakes is the name of the Senior Men’s team.	Jennifer Hughes	7-3-17	Email
Unspecified indigenous name	“How about asking the local indigenous people for a one word name…”	Jill Keogh	14-3-17	Email
“Tuckaburra”	“Tuckaburra was the name of the area that the fields are located on.” Submission email including historical newspaper articles attached. (E2017/22427)	Geoff Bensley	16-03-17 26-3-17	Email & BSC Facebook
“Billy Ocean Oval”	“Because this field borders Billinudgel and Ocean Shores…”	Ali Morfee	24-3-17 27-3-17	Email & BSC Facebook
“Pat Boone Park”	“…Pat Boone was instrumental in developing Ocean Shores, He was a good man and very well known entertainer world wide…”. Submission email with supporting information attached. (E2017/22429)	Paul Waters	26-3-17	Email
“O Sports Field” “NO Sports Field” “Ocean Shores Sports Field”	“It’s a bit of a mouthful but that’s what it [the field] is…why not just Ocean Shores…”	Louise Emery	26-3-17	BSC Facebook
“Shores Sports Field” “Shores Playing Field” “Shores North Oval”		June Chesters	30-3-17	Postal submission
“F.N.C Sports Arena” (Far North Coast Sports Arena)		Justin Singleton	31-3-17	Email
“Shara Blvd Sports Field”	“Having the location be part of the name will help people identify the location, and it will be a "neutral" name in that sense, that is, not favouring any particular person or sport.”	Denise Nessel	31-3-17	Email
“Shara Sports Field”	“…It is simple, to the point, easy to spell and indicative of the geographical location of the field. …”	Angela Dunlop	31-3-17	Email
“Shara Sports Field”		Kathy Norley	31-3-17	Email

The CEO of the Tweed Byron Local Aboriginal Land Council (TBLALC) was originally contacted by phone and email on 15 June 2016 and was requested that the TBLALC propose their preferred name(s) for the sports field. A follow up email was sent to the TBLALC on 24 March 2017. No responses to the emails or name suggestions have been submitted from TBLALC.

In accordance with Council’s Naming of Public Places and Community Facilities Policy the remaining steps in adopting a new name include:

· Council to select the preferred name so that it can be placed on public exhibition for 28 days;

· Report any objections back to Council and either adopt the name or revisit proposals; and

· Submit the adopted name to the NSW Geographical Names Board (GNB) for approval and registration.

Corporate Sponsored Name

Prior to adopting a preferred name Council may wish to consider the possibility of giving naming rights to a corporate sponsor for the duration of the sponsor agreement. Council could thereby receive funds that could be reinvested for the maintenance of the field. Policy 13/009 – Sponsorship Received by Council addresses the matter as follows:

“8.3 Suitable types of recognition of sponsorship include but are not limited to:

…

(e) Naming rights for an event, building etc for the term of the sponsorship;…”

The policy outlines the 10 ICAC sponsorship principles as set out in the set out in the Independent Commission Against Corruption “Sponsorship in the Public Sector” May 2006 Guide. The policy also specifies ‘Suitable Sponsors’ as follows:

“7.1 Sponsors are to be reputable entities or individuals.

7.2 The objectives, values and products of sponsors must be consistent with the values,

objectives and services of Council.”

The following are not suitable sponsors:

“ (a) involved in the manufacture, distribution and wholesaling of tobacco related products,

pornography and/or addictive drugs;

(b) found guilty of illegal or improper conduct by ICAC or any similar authority;

(c) involved in political fields eg political parties;

(d) involved in a competitive tender or purchasing process at or around the time of

negotiating a sponsorship agreement;

(e) who have an unacceptable sponsorship record with Byron Shire Council or with any

other government authority.”

Additionally, a sponsor must not:

“(a) involve or create an actual or perceived conflict of interest;

(b) influence or hinder how Council operates;

(c) impose or imply a fetter or influence on Council’s ability to carry out its functions

fully or impartially.”

If Council is interested in pursuing corporate sponsorship in exchange for naming rights for the NOSSF, it is recommended that:

· Site specific sponsorship guidelines and sponsorship agreement be developed so that conflicts of interest specific to the site are avoided. For example, Policy 13/009 does not prevent corporations involved in the manufacture and sale of alcohol or junk food, which is in conflict with the use of the field by children and encouraging a healthy lifestyle. Council may also wish to consider other requirements for corporate sponsors relating to supporting local business and ethical or sustainable organisations;

· The physical form of name signage should be specified in the guidelines and agreement to ensure compliance with building and construction codes. A painted sign on the northern end of the amenities building would be effective at the NOSSF and would avoid any additional structures. Parties responsible for renewing the signage should also be specified and any approvals process with respect to suitability of the signage and imagery;

· A process is developed surrounding the competitive tender or purchasing process with sponsorship durations specified;

· Consideration is given to engaging sponsorship brokers in accordance with Policy 13/009; and

· Allocation of budgets and resources (staff) to implement and manage a corporate sponsorship program for the NOSSF including any required community consultation.

The NSW GNB was contacted on 3 April 2017 regarding their role in corporate sponsorship of naming rights. The GNB stated that they have no jurisdiction of corporate sponsorship of stadiums. They are currently considering developing a policy on the matter. Business and corporate names are not suitable under their policy for permanent place names. Council would still be required to submit a permanent place name for the reserve to the GNB for approval and registration. The GNB noted concern over changing place names due to the need for emergency services to quickly locate and attend to sites.

Financial Implications

Costs will be involved in finalising this renaming process and creating signage for the field. Should the renaming process be deferred, a duplication of costs may eventuate from the need to create signage now to finalise the project. This signage would be for the current “North Ocean Shores Sports Field” name.

Should corporate sponsorship for naming rights be preferred, establishment costs will be incurred to ensure site specific guidelines and sponsorship agreements are fit for purpose. An ongoing operational budget would also be required to manage the procurement process at the time of sponsorship renewal. Sponsorship fees should be set at levels to cover these resourcing costs and to recoup additional funds for maintenance of the fields.

Statutory and Policy Compliance Implications

Policy 11/004 Naming of Public Places and Community Facilities

Policy 13/009 – Sponsorship Received by Council

DA No.	10.2016.806.1
Development	Alterations and Additions to Existing Dual Occupancy Dwelling
Property:	32 Alcorn Street Suffolk Park
Lot and DP:	LOT: 5 DP: 789988
Zoning:	DM Deferred Matter - 7(f 2) Urban Coastal Zone (f2) Zone under Byron LEP 1988.
Development Standard being varied:	Byron LEP 1988 - Clause 40 (2)(b)(i) Heights
Justification	The proposed additions and alterations to the dual occupancy are not permissible under the Byron Local Environmental Plan 1988 as they exceed an established development standard of that instrument. However, the application is lodged under the provisions of Section 106 of the Environmental Planning and Assessment Act 1979 – indicating that “Existing Use Rights” prevail for the proposed development. On this basis the application includes a SEPP 1 objection. The SEPP 1 is submitted as the proposal exceeds 4.5 metres above the existing ground level – this is the maximum height to topmost floor level of the building above ground level as established in Clause 40 (2) (b) (i) of LEP 1988. The dual occupancy additions and alterations have been designed to reflect and integrate with the existing dual occupancy.
Extent of variation	The SEPP 1 for the proposal marginally exceeds the 4.5 metres above the existing ground level (by less than 10%) – this is the maximum height to topmost floor level of the building above ground level as established in Clause 40 (2) (b) (i) of LEP 1988.
Concurrence	Council
Determined Date	21/6/17

DA No.	10.2016.273.1
Development	Subdivision of Land and Construction of Multi-dwelling Housing
Property:	21 Ballina Road Bangalow
Lot and DP:	LOT: 3 DP: 1220608
Zoning:	R3 Medium Density Residential & DM (1(a) General Rural under BLEP 1988)
Development Standard being varied:	Byron LEP 1988 – Clause 11(1) - Minimum lot size of 40ha; Byron LEP 2014 – Clause 4.3 - 9m height of buildings
Justification	BLEP1988 - The proposal is not inconsistent with the objectives of the 1(a) zone; The area of 1(a) zoned land is already significantly less than the minimum lot size and that area is not being further fragmented; The proposal raises no issues of state or regional planning significance; and There is considered to be no public benefit in maintaining the development standard in this instance. BLEP2014 - non-compliance arises die to topographic constraints; Height exceedance is minor - for a short length of roof line; will not result in overshadowing/ overlooking or privacy impacts as there is vacant rural land adjoining.
Extent of variation	BLEP1988 - 95%; BLEP2014 - 5%
Concurrence	Department Planning & Environment
Determined Date	20/4/17

DA No.	10.2016.794.1
Development	2 Lot Subdivision
Property:	2-6 Keats Street, Byron Bay
Lot and DP:	LOT: 10 DP: 622728
Zoning:	Byron LEP 2014 R2 Low Density Residential/PART DM Deferred Matter; Byron LEP 1988 7(a) Wetlands Zone.
Development Standard being varied:	Clause 11 LEP 1988 - 7(a) Wetlands - minimum lot size (40 hectares) for subdivision for the part of the land zoned 7(a) Wetlands.
Justification	The application is subject to a SEPP 1 Objection to Development Standards based on the proposed subdivision not according with the minimum lot size for subdivision for the part of the land zoned 7(a) Wetlands under LEP 1988. The NSW Planning and Environment has issued their concurrence for the SEPP 1 application. Concurrence was granted in this instance for the following reasons: • The proposal is not inconsistent with the objectives of the 7(a) zone; • The proposal raises no issues of state or regional planning significance; and • There is considered to be no public benefit in maintaining the development standard in this instance.
Extent of variation	The variation is to effectively separate the subject land into two allotments along the alignment of the deferred matter line (zone boundary).
Concurrence	Issued by NSW Planning and Environment as per undated letter reference – 17/04675.
Determined Date	15 June 2017.