Agenda of Ordinary Meeting

BYRON SHIRE COUNCIL

Notices of Motion 9.3

Notice of Motion No. 9.3 Massinger Street Treehouse

File No: I2018/629

I move that Council:

1. Remove any notice issued regarding the removal of the Massinger Street Treehouse;

2. Provide approval for the Massinger Street Treehouse to remain in place;

3. Request the following of the owner at 77 Massinger Street Byron Bay:

a) to hold Public Liability Insurance coverage to the value of $20 million in regards to the Massinger Street Treehouse;

b) to provide an engineering certificate attesting to the structural integrity of the treehouse;

c) to provide an arborists report attesting to the health of the trees where the treehouse is located;

d) to provide any other report reasonably required by council to allow the treehouse to remain.

Attachments:

1 Letter of 4 August 2017, E2018/29871 ⇨

2 Roads Act Direction 2 February 2018, E2018/29872 ⇨

3 Confidential - Legal advice , E2018/28728

Signed: Cr Paul Spooner

Councillor’s supporting information:

At the 22 March 2018 council meeting local resident Mell Coppin made a submission to council to consider holding off enforcement action in regards to a treehouse constructed on the verge at the front of her residence in Massinger Street Byron Bay.

This motion seeks council endorsement for the treehouse to remain.

Mell Coppin’s Submission To Council:

My necessity to publicly respond to councils request to remove the treehouse, is on the basis of strong neighbourhood support & that it seems to meet with councils own criteria of public art.

The beautiful cubby floating in the gums at the T intersection of Kingsley and Massinger streets has become more than a treehouse.

Neighbours can attest to the many people who take photos of it, who literally daily pull up their cars to marvel at it.

The cubby has encouraged conversations and reminiscences about simple childhood times when many houses had cubbies in long gone backyards. It has been a precious topic of conversation between children and their parents and grandparents.

For me it is a romantic gesture – to an era of grass roots, DIY, alternative living; all that made Byron Shire an exciting place to be.

Unlike a commissioned piece of artwork that would attempt to symbolise these ideas – the treehouse is ours and it’s REAL. It’s a well-considered thing of beauty that we built, in our street, and it’s THAT authenticity - that people seem to delight in.

I find encouragement from British artist Tracey Emin who looks for art that makes us feel better - that makes us stop and slow down in our day.

I think, the Massinger Street Treehouse is a glimpse into a bit of real life lived magic and people enjoy participating in that.

As the natural custodian of the treehouse at 77 Massinger, I want to let councillors know that my builder has ensured its structural integrity and that my arborist has ensured that good health of the gums.

Furthermore pending a favourable outcome from you, I am willing to foot the expense for council inspections.

FYI the treehouse is physically too low to cause serious injury, yet high enough that most people cannot access it.

I really wish I had photos of all the people’s faces who have shared its pleasure and connection. I hope you’ll take my word for it.

The Neighbourhood loves the Treehouse. It has become a piece of art that has encouraged conversations and reminiscences about simple childhood times when many houses had cubbies in long gone backyards. It has been a precious topic of conversation between children and their parents and grandparents.

It seems to meet with councils own Public Art Criteria:

· Site specificity – all public art has to be relevant to its site in response to values of identity and place, and of an appropriate scale to its context.

· Meaning – public art must reflect the cultural narratives of the Shire.

· Sustainability – the longevity and robustness of artwork is vital not only to its artistic integrity but also as a means of minimising maintenance.

· Value – ensure public art provides value for money as well as adding value to the community quality of life.

· The treehouse has structural integrity, as supported by my builder: Steve Walsh Bld license no.77283C.

· The gums are healthy & uncompromised as supported by local Arborist; Paulo Shrimpton.

· Mell Coppin is willing to foot the bill for upkeep & council inspections, as well as seek to include the artwork into her insurance.

· The Massinger Street Treehouse is a glimpse into a bit of real life lived magic and people enjoy participating in that.

Staff comments by Ralph James, Legal Counsel, Corporate and Community Services:

It is assumed that the NoM intends that all directions to remove the structure be withdrawn and that approval be granted for the structure to remain BUT THAT those actions take place after all of the matters set out in part 3 of the NoM have occurred.

To read the NoM otherwise i.e. sequentially, would mean that directions would be withdrawn and approval granted before, and without, all of the matters in 3 of the NoM being attended to.

There is currently no timeframe for the actions in 3 of the NoM to be taken.

If directions are to be withdrawn and approval granted Council MUST first be satisfied that:

a. evidence is provided that Ms Coppin has effected Public Liability Insurance coverage to the value of $20 million. A Certificate of Currency should be produced.

b. evidence is provided by way of an engineering certificate attesting to the structural integrity of the structure;

c. evidence is provided by way of an arborist report attesting to the health of the trees where the structure is located;

To achieve this, a resolution of Council could be in the following form:

1. That by close of business on Thursday, 31 May 2018 Ms Coppin provide Council with the following:

a. evidence by way of a Certificate of Currency that Public Liability Insurance coverage to the value of $20 million has been effected in respect of the structure.

b. evidence by way of an engineering certificate attesting to the structural integrity of the structure;

c. evidence by way of an arborist report attesting to the health of the trees where the structure is located.

2. That on compliance with ALL components of 1 above Council, for a period of 28 days, advertise its intention to grant Ms Coppin a 12 month lease over the unused public road being that part of the public road adjoining the property at 77 Massinger Street Byron Bay at a rental to be determined by an independent market valuation of the unused public road in question.

3. That

a. in the event that there are no submissions Council delegate to the General Manager authority to enter into the lease referred to in 2 above, or

b. in the event that submissions are made all submissions received be reported to Council for consideration.

4. That when approval is granted Council withdraw all directions to remove the structure.

5. That enforcement action in respect directions presently issued be stayed until the happening of either 3a or 3b above, whichever shall first occur.

Directions given

On 4 August 2017 Council wrote to Ms Coppin requesting that she remove the treehouse. A copy of that letter is attachment 1.

On 2 February 2018 Council issued Ms Coppin with a direction pursuant to section 107 Roads Act 1993 directing the removal of the tree house. A copy of that direction is attachment 2.

Insurance advice

Council’s insurer has provided the following information:

Essentially, this would be a matter for Council to resolve with the resident, which may require legal advice, especially if the matter is to proceed to the land and environmental court (sic).

In terms of liability, should a person become injured, and Council is joined in an action, Statewide would defend Council only, for any liability that Council may have subject to the terms of the Mutual. If a person is injured, or if property is damaged due to the residents tree house, and Council sought cover from Statewide in defending a claim against Council, we would defend Council, subject to Statewide Liability scheme terms and conditions, and we would seek to subrogate against the homeowner for any losses or damage arising out of the treehouse structure, to the full extent permissible at law.

The treehouse owner in all likelihood would not have insurance projection beyond the confines of their allotted property / address. If they do have Public Liability cover as a homeowner, they may find themselves to be self-insured should a loss arise unless their insurers have specifically agreed to cover the homeowner on Council’s land.

From a risk perspective, if Council allows a treehouse to be built on its reserve under a licence/ with an indemnity, this may create a significant increase in applications for such structures on Council land.

This is offered in our capacity as insurance advisors to Council and shouldn’t be construed as legal advice. We suggest consulting with your legal advisors for an opinion if required, including the drafting of any indemnity clauses that you may seek from the homeowner.

Can there be an approval and, if so, what form would it take?

Picture 1.

Picture 2

Council as a road authority may grant a short-term lease of land comprising a public road to the owner of land adjoining the public road under s153 of the Roads Act 1993 (NSW) only if in Council’s reasonable opinion the road is not being used by the public. Section 145 Roads Act provides that all public roads (including footpaths) within a local government area are vested in fee simple in the appropriate road authority. Council is a road authority for all public roads within the shire, s7 Roads Act.

Massinger Street including the footpath is a public road under authority of Byron Shire Council.

The tree house is constructed on a public road (picture 1) adjacent to a strata unit owned by Ms Coppin.

To grant a lease Council must form an opinion that the public road is unused by the public. As there are no formed footpaths on either side of this part of Massinger Street the forming of a reasonable opinion that the public road is unused by the public may be difficult to achieve (picture 2).

If in Council’s opinion the public road is unused then public notice of the proposed lease must be advertised in a local newspaper calling for submissions (Roads Act s154). Council must duly consider all submissions before considering granting a lease.

An independent market rent valuation is required to set rent payable under the lease. Based on rent payable on similar leases granted over small encroachments on public roads in the Byron Shire, market rent could be as high as $1500 per annum exclusive of GST.

Legal Implications:

The Land and Environment Court have been strong in stating that “there is a need for the upholding of the integrity of the system of planning and development control. This system depends on persons taking steps to obey the law by ascertaining when development consent is required and then obtaining development consent before carrying out development”.

In this matter the treehouse was constructed to completion without contact with Council concerning approvals required, let alone, obtaining those approvals.

Council obtained advice from its external solicitors. A copy of that advice is at confidential attachment 3.

Is the proposal consistent with any Delivery Program tasks?

N/A

BYRON SHIRE COUNCIL

Staff Reports - Corporate and Community Services 13.5

Report No. 13.5 Investments March 2018

Directorate: Corporate and Community Services

Report Author: James Brickley, Manager Finance

File No: I2018/614

Theme: Corporate Management

Financial Services

Summary:

This report includes a list of investments and identifies Council’s overall cash position for the month of March 2018 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 31 March 2018 be noted.

Report

In relation to the investment portfolio for the month of March 2018, Council has continued to maintain a diversified portfolio of investments. At 31 March 2018, the average 90 day bank bill rate (BBSW) for the month of March was 1.93%. Council’s performance to 31 March 2018 is 2.53%. 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 31 March 2018:

Schedule of Investments held as at 31 March 2018

Purch Date	Principal ($)	Description	CP*	Rating	Maturity Date	No Fossil Fuel ADI	Type	Interest Rate Per Annum	Current Value
28/10/16	650,000	Teachers Mutual Bank	P	BBB+	28/10/19	Y	FRN	3.17%	653,642.89
24/03/17	1,000,000	NAB Social Bond (Gender Equality)	P	AA-	24/03/22	N	B	3.25%	1,011,100.17
31/03/17	1,000,000	CBA Climate Bond	P	AA-	31/03/22	N	FRN	3.25%	1,000,000.00
16/11/17	750,000	Bank of Queensland	P	BBB+	16/11/21	N	FRN	2.63%	750,000.00
04/10/17	2,000,000	Police Credit Union	P	NR	04/04/18	Y	TD	2.70%	2,000,000.00
05/10/17	1,000,000	Police Credit Union	N	NR	05/04/18	Y	TD	2.56%	1,000,000.00
17/10/17	1,000,000	Police Credit Union	N	NR	17/04/18	Y	TD	2.55%	1,000,000.00
23/10/17	1,000,000	Bank of Queensland	N	BBB+	23/04/18	N	TD	2.55%	1,000,000.00
02/11/17	2,000,000	Police Credit Union	N	NR	02/05/18	Y	TD	2.73%	2,000,000.00
03/11/17	1,000,000	Maitland Mutual Building Society	P	NR	02/05/18	Y	TD	2.55%	1,000,000.00
15/11/17	1,000,000	The Capricornian Credit Union	P	NR	16/04/18	U	TD	2.55%	1,000,000.00
17/11/17	1,000,000	Police Credit Union	N	NR	17/05/18	Y	TD	2.75%	1,000,000.00
23/11/17	1,000,000	The Capricornian Credit Union	N	NR	23/05/18	U	TD	2.55%	1,000,000.00
24/11/17	1,000,000	ME Bank	P	BBB	24/05/18	Y	TD	2.55%	1,000,000.00
28/11/17	1,000,000	Bananacoast Credit Union	P	NR	28/05/18	Y	TD	2.65%	1,000,000.00
30/11/17	2,000,000	NAB	N	AA-	30/04/18	N	TD	2.49%	2,000,000.00
30/11/17	2,000,000	ME Bank	N	BBB	30/04/18	Y	TD	2.49%	2,000,000.00
06/12/17	1,000,000	Hunter United Employees Credit Union	P	NR	06/04/18	U	TD	2.55%	1,000,000.00
08/12/17	2,000,000	ME Bank	N	BBB	08/06/18	Y	TD	2.55%	2,000,000.00
08/12/17	2,000,000	My State Bank	P	BBB	08/06/18	Y	TD	2.65%	2,000,000.00
19/12/17	2,000,000	Credit Union Australia	P	BBB	19/06/18	Y	TD	2.60%	2,000,000.00
19/12/17	2,000,000	Gateway Credit Union	P	NR	19/04/18	Y	TD	2.50%	2,000,000.00
02/01/18	1,000,000	ME Bank	N	BBB	04/04/18	Y	TD	2.40%	1,000,000.00
02/01/18	2,000,000	ME Bank	N	BBB	04/07/18	Y	TD	2.55%	2,000,000.00
09/01/18	1,000,000	Gateway Credit Union	N	NR	11/05/18	Y	TD	2.50%	1,000,000.00
10/01/18	1,000,000	Bankwest	P	AA-	10/04/18	N	TD	2.50%	1,000,000.00
12/01/18	1,000,000	Bank of Queensland	N	BBB+	12/06/18	N	TD	2.55%	1,000,000.00
12/01/18	1,000,000	Bankwest	N	AA-	12/06/18	N	TD	2.55%	1,000,000.00
12/01/18	1,000,000	Bankwest	N	AA-	12/04/18	N	TD	2.50%	1,000,000.00
23/01/18	1,000,000	AMP Bank	P	A	23/07/18	N	TD	2.60%	1,000,000.00
24/01/18	1,000,000	ME Bank	N	BBB	24/07/18	Y	TD	2.60%	1,000,000.00
29/01/18	2,000,000	Rural Bank	P	BBB+	30/07/18	Y	TD	2.60%	2,000,000.00
31/01/18	2,000,000	AMP Bank	N	A	03/08/18	N	TD	2.60%	2,000,000.00
02/02/18	1,000,000	Rural Bank	N	BBB+	02/08/18	Y	TD	2.62%	1,000,000.00
05/02/18	2,000,000	NAB	N	AA-	07/05/18	N	TD	2.47%	1,000,000.00
06/02/18	2,000,000	Bankwest	N	AA-	15/05/18	N	TD	2.45%	2,000,000.00
06/02/18	1,000,000	Gateway Credit Union	N	NR	07/05/18	Y	TD	2.55%	1,000,000.00
07/02/18	2,000,000	ME Bank	N	BBB	08/05/18	Y	TD	2.45%	2,000,000.00
07/02/18	2,000,000	Beyond Bank	P	BBB	18/06/18	Y	TD	2.50%	2,000,000.00
08/02/18	1,000,000	AMP	N	A	08/08/18	N	TD	2.60%	2,000,000.00
15/02/18	1,000,000	Bankwest	N	AA-	15/06/18	N	TD	2.50%	1,000,000.00
15/02/18	1,000,000	Police Credit Union Limited (SA)	N	NR	15/08/18	Y	TD	2.61%	1,000,000.00
16/02/18	1,000,000	Hunter United Employees Credit Union	N	NR	17/05/18	U	TD	2.45%	1,000,000.00
16/02/18	1,000,000	Gateway Credit Union	N	NR	18/06/18	Y	TD	2.45%	1,000,000.00
26/02/18	1,000,000	B & E Ltd (Bank of Us)	P	NR	28/05/18	U	TD	2.48%	1,000,000.00
26/02/18	1,000,000	ME Bank	N	BBB	28/05/18	Y	TD	2.38%	1,000,000.00
28/02/18	1,500,000	Defence Bank	P	BBB	29/05/18	U	TD	2.40%	1,500,000.00
28/02/18	1,000,000	ME Bank	N	BBB	29/05/18	Y	TD	2.35%	1,000,000.00
01/03/18	1,000,000	Defence Bank	N	BBB	01/08/18	U	TD	2.50%	1,000,000.00
05/03/18	1,000,000	NAB	N	AA-	05/06/18	N	TD	2.54%	1,000,000.00
06/03/18	2,000,000	My State Bank	N	BBB	06/09/18	Y	TD	2.65%	2,000,000.00
06/03/18	1,000,000	Bananacoast Credit Union	N	NR	06/09/18	Y	TD	2.60%	1,000,000.00
07/03/18	1,000,000	Beyond Bank	N	BBB	09/07/18	Y	TD	2.50%	1,000,000.00
07/03/18	1,000,000	Bananacoast Credit Union	N	NR	07/08/18	Y	TD	2.55%	1,000,000.00
14/03/18	1,000,000	NAB	N	AA-	16/07/18	N	TD	2.58%	1,000,000.00
15/03/18	1,000,000	Auswide Bank Ltd	P	BBB-	15/06/18	Y	TD	2.51%	1,000,000.00
15/03/18	1,000,000	The Capricornian Credit Union	N	NR	15/06/18	U	TD	2.55%	1,000,000.00
16/03/18	1,000,000	The Capricornian Credit Union	N	NR	17/09/18	U	TD	2.80%	1,000,000.00
28/03/18	1,000,000	Bankwest	N	AA-	26/06/18	N	TD	2.50%	1,000,000.00
N/A	574,357	CBA Business Online Saver	N	A	N/A	N	CALL	1.40%	574,357.30
12/01/18	1,003,599	NSW Treasury Corp	N	AAA	N/A	Y	CALL	1.27%	1,003,599.31
Total	76,477,956						AVG	2.53%	76,492,699.67

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.	No Fossil Fuel 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 a ‘No Fossil Fuel’ investing 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 Council’s total investment portfolio in respect of fossil fuels only.

The notion of Environmental and Socially Responsible Investing is much broader than whether a financial institution as rated by ‘marketforces.org.au’ invests in fossil fuels or not. Council’s current Investment Policy defines Environmental and Socially Responsible Investing at Section 4.1 of the Policy. Council’s Investment Policy can be found at the following link:

https://www.byron.nsw.gov.au/files/assets/public/hptrim/corporate-management-policies-current/council-investments-policy-2017-current_policies.pdf

In this regard Council has an additional two investments that are with financial institutions that invest in fossil fuels but the purposes of the investments are in accord with the broader definition of Environmental and Socially Responsible investments as indicated below:

1. $1,000,000 investment with the National Australia Bank maturing on 24 March 2022 known as a Social Bond that promotes Gender Equity.

2. $1,000,000 investment with Commonwealth Bank maturing on 31 March 2022 known as a Climate Bond.

For the month of March 2018, as indicated in the table below, there is a dissection of the investment portfolio by investment type:

Dissection of Council Investment Portfolio as at 31 March 2018

Principal Value ($)	Investment Linked to:-	Current Market Value ($)	Cumulative Unrealised Gain/(Loss) ($)
71,500,000.00	Term Deposits	71,500,000.00	0.00
2,400,000.00	Floating Rate Note	2,403,642.89	3,642.89
574,357.30	Business On-Line Saver (At Call)	574,357.30	0.00
1,003,599.31	NSW Treasury Corp (T Corp)	1,003,599.31	0.00
1,000,000.00	Bonds	1,011,100.17	11,100.17
76,477,956.61		76,492,699.67	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 March 2018 on a current market value basis.

Movement in Investment Portfolio – March 2018

Item	Current Market Value (at end of month) $
Opening Balance at 1 March 2018	77,990,508.24
Add: New Investments Purchased	12,000,000.00
Add: Call Account Additions	0.00
Add: Interest from Call Account	1,256.78
Less: Investments Matured	13,500,000.00
Add: T Corp Additions	0.00
Add: Interest from T Corp	934.65
Less: Call Account Redemption	0.00
Less: Fair Value Movement for period	0.00
Closing Balance at 31 March 2018	76,492,699.67

Investments Maturities and Returns – March 2018

Principal Value ($)	Description	Type	Maturity Date	Number of Days Invested	Interest Rate Per Annum	Interest Paid on Maturity $
1,000,000	Defence Bank	TD	01/03/18	90	2.50%	6,164.38
1,000,000	NAB	TD	05/03/18	152	2.55%	10,619.18
1,500,000	ME Bank	TD	06/03/18	92	2.40%	9,073.97
1,000,000	Bananacoast Credit Union	TD	06/03/18	182	2.60%	12,964.38
1,000,000	Bananacoast Credit Union	TD	07/03/18	182	2.60%	12,964.38
2,000,000	ME Bank	TD	13/03/18	123	2.42%	16,310.14
1,000,000	Auswide Bank Ltd	TD	15/03/18	90	2.45%	6,041.10
1,000,000	Peoples Choice Credit Union	TD	15/03/18	181	2.55%	12,645.20
1,000,000	The Capricornian	TD	15/03/18	120	2.50%	8,219.18
1,000,000	Bank of Queensland	TD	19/03/18	122	2.45%	8,189.04
1,000,000	Bank of Queensland	TD	27/03/18	181	2.50%	12,397.26
1,000,000	Defence Bank	TD	20/03/18	109	2.50%	7,465.75
13,500,000						123,053.96

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 March 2018 the table below identifies the overall cash position of Council as follows:

Dissection of Council Cash Position as at 31 March 2018

Item	Principal Value ($)	Current Market Value ($)	Cumulative Unrealised Gain/(Loss) ($)
Investments Portfolio
Term Deposits	71,500,000.00	71,500,000.00	0.00
Floating Rate Note	2,400,000.00	2,403,642.89	3,642.89
Business On-Line Saver (At Call)	574,357.30	574,357.30	0.00
NSW Treasury Corp (T Corp)	1,003,599.31	1,003,599.31	0.00
Bonds	1,000,000.00	1,011,100.17	11,100.17
Total Investment Portfolio	76,477,956.61	76,492,699.67	14,743.06

Cash at Bank
Consolidated Fund	1,546,689.17	1,546,689.17	0.00
Total Cash at Bank	1,546,689.17	1,546,689.17	0.00

Total Cash Position	78,024,645.78	78,039,388.84	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 - Sustainable Environment and Economy 13.7

Staff Reports - Sustainable Environment and Economy

Report No. 13.7 PLANNING - Development Application 10.2017.712.1 for Strata Subdivision to create two lots, relocation of and alterations to an existing dwelling at 25 Strand Avenue New Brighton

Directorate: Sustainable Environment and Economy

Report Author: Rob Van Iersel, Major Projects Planner

File No: I2018/463

Theme: Ecology

Development and Approvals

Proposal:

Proposal description:	Relocation of and Alterations and Additions to Existing Dwelling House, Tree Removal and Strata Subdivision to create Two (2) Strata Lots
Property description:	LOT: 2 DP: 536175
Property description:	25 Strand Avenue NEW BRIGHTON
Parcel No/s:	91210
Applicant:	Joe Davidson Town Planning
Owner:	Kratzke Investments Pty Ltd & P & R Lee Holdings Pty Ltd
Zoning:	DM Deferred Matter (7(f2) Urban Coastal Lands under Byron LEP 1988)
Date received:	12 December 2017
Integrated Development:	No
Public notification or exhibition:	- Level 1 advertising under DCP 2014 Part A14 – Public Notification and Exhibition of Development Applications - Exhibition period: 28/12/17 to 10/1/18 (re-exhibited due to holiday period: 25/01/18 to 07/02/18) - No submissions received
Delegation to determination:	Council
Issues:	· Coastal hazards · Suitability of the site · Public Interest

Summary:

The application proposes a strata subdivision of the land, to create two lots of 1,030m² and 975m². Proposed Lot 1 (1,030m²) includes an access-handle 5.3m wide onto Strand Avenue. It will be vacant.

Alterations are proposed to the existing six-bedroom, two-storey dwelling, which will also be repositioned to be wholly within proposed Lot 2 (975m²).

The proposal includes removal of 13 trees, including 2 trees located in the road reserve of Strand Avenue (Council consent as land owner provided).

The repositioning of the dwelling involves its rotation from its existing north/south orientation to an east/west orientation, so that it will be contained wholly within proposed Lot 2. The alterations proposed include demolition of part of the existing structure, internal reconfiguration of rooms, and extension of external decks on the southern elevation of both levels.

The site is located within an identified coastal hazard area. Previous hazard mapping (for Part J DCP 2010) shows the eastern part of the land within Erosion Precinct 1 and the western part, containing the existing dwelling, within Precinct 2. The reconfigured dwelling would be repositioned to remain in Precinct 2.

Updated coastal hazard mapping, adopted for the purpose of an updated Coastline Management Plan (not yet prepared), shows that the property is significantly impacted, with both the ‘best estimate’ 2050 erosion line and the ‘best estimate’ 2100 line located well within the property.

The Coastline Hazards Assessment report (September 2013) indicates that continued coastal erosion is inevitable in the New Brighton locality. A Coastline Management Plan would address how these ongoing hazards are to be managed in the future. However, work has not yet commenced on the preparation of such a Plan for this part of the coast.

In the absence of a Coastline Management Plan, and given the nature and extent of hazard in this locality it is considered that the site is not suitable for further development.

The property is subject to the provisions of Byron Local Environmental Plan 1988. Clause 32 of that LEP restricts the intensity of development in locations subject to these coastal hazards. In particular, the provisions of that clause prohibit subdivision of land, although an anomaly in the wording allows subdivision to be approved if it is undertaken under the Strata titling provisions.

It is suggested that the intent of that provision was to allow for the subdivision of existing lawfully approved buildings, rather than to allow the creation of vacant lots, as it makes no sense why subdivision to create vacant land would be prohibited for one form of titling but acceptable for another.

It is accepted, however, that the current words within the clause do not clearly state that intent. It is recommended, therefore, that a Planning Proposal be prepared to amend the wording of clause 32 of BLEP 1988 to clarify that Strata title subdivision only be permitted in relation to existing lawfully approved buildings (i.e. no vacant lots). An associated amendment to Part J of Byron Development Control Plan 2010 is also recommended.

These amendments would continue to restrict the intensification of land use within high risk areas prior to the development of a Coastal Zone Management Plan.

The proposed development is not considered to be suitable in that it would result in intensification of development in an area subject to significant natural hazards (coastal erosion and flooding). The applicant has also failed to demonstrate that stormwater can be adequately managed in accordance with Council’s standards. Refusal of the development application is recommended.

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:

1. That pursuant to Section 80 of the Environmental Planning & Assessment Act 1979, development application 10.2017.712.1 for Relocation of and Alterations and Additions to Existing Dwelling House, Tree Removal and Strata Subdivision to create Two (2) Strata Lots be refused for the following reasons:

a) Pursuant to S79C(1)(c) of the Environmental Planning & Assessment Act 1979, the subject land is not considered suitable for the development as proposed given the nature and extent of coastal hazard;

b) Pursuant to S79C(1)(e) of the Environmental Planning & Assessment Act 1979, approval of the development is not in the public interest in regard to intensifying development in a location subject to significant coastal hazard and flood hazard.

c) Pursuant to S79C(1)(a)(i) of the Environmental Planning & Assessment Act 1979, approval of the development is not consistent with the provisions of State Environmental Planning Policy No. 71, in that the type, bulk, scale and size of the development is not appropriate to its location.

d) Pursuant to S79C(1)(a)(i) of the Environmental Planning & Assessment Act 1979, approval of the development is not consistent with the aims, objectives and guiding principles of Byron Local Environmental Plan 1988.

e) Pursuant to S79C(1)(a)(i) of the Environmental Planning & Assessment Act 1979, approval of the development is not consistent with the objectives of clause 32 of Byron Local Environmental Plan 1988.

f) Pursuant to S79C(1)(a)(i) of the Environmental Planning & Assessment Act 1979, Council is not satisfied that the proposed subdivision would not restrict the flow characteristics of flood waters, increase the level of flooding on other land in the vicinity or provide satisfactory access during a flood, which compromises clause 24(3) of Byron LEP 1988.

g) Pursuant to S79C(1)(a)(iii) of the Environmental Planning & Assessment Act 1979, insufficient information has been provided to demonstrate that the proposed stormwater management system for the subdivision could be feasible within the site, as required by Part N2 of DCP 2010. A lawful point of discharge has not been provided to the development, which compromises Part N3.1 of DCP 2010.

2. That Council:

a) agree to initiate a Planning Proposal to amend clause 32 of Byron Local Environmental Plan 1988, to clarify that subdivision of land under the Strata Schemes Development Act 2015 is only permitted in relation to existing lawfully approved buildings, and not to create vacant lots.

b) prepare an amendment to Part J of Byron Development Control Plan 2010 to clarify that subdivision of land under the Strata Schemes Development Act 2015 is only permitted in relation to existing lawfully approved buildings, and not to create vacant lots.

c) forward the planning proposal to the NSW Department of Planning and Environment for a Gateway determination.

d) agree that staff can proceed to public exhibition of the planning proposal and the draft DCP amendment and government agency consultation based on the Gateway determination issued by the NSW Department of Planning and Environment, and report back to Council as part of post-exhibition reporting.

Attachments:

1 Attachment A Plans - DA 10.2017.712.1, E2018/24924 ⇨

Assessment:

1. INTRODUCTION

1.1. History/Background

DA 5.1987.308.1	Two-storey dwelling	Approved 02/07/87
BA 6.1988.2337.1	Two-storey dwelling	Approved 01/09/88
DA 10.2008.715.1	1.8m front fence	Approved 03/02/09

1.2. Description of the proposed development

This application seeks approval for Relocation of and Alterations and Additions to Existing Dwelling House, Tree Removal and Strata Subdivision to create Two (2) Strata Lots.

The strata subdivision of the land will create:

· Lot 1 – 1,030m²; a vacant lot on the northern side of the existing lot, with a 5.3m wide access handle, positioned at the western end of the lot, to Strand Avenue. The lot will be vacant.

· Lot 2 – 975m²; on the southern side of the existing lot, to contain the repositioned dwelling.

Existing Property:

Proposed Strata Subdivision:

Alterations are proposed to the existing six-bedroom, two-storey dwelling, which will also be repositioned to be wholly within proposed Lot 2 (i.e. reorientated 90⁰). The alterations involve:

· Lower level – demolition of part of a bedroom and rumpus room and removal of a deck; reconfiguration of internal space to provide two bedrooms, a bathroom, laundry and new living area, and extension of external deck, including stairs to upper floor (existing double-garage retained);

· Upper level – demolition of two bedrooms, a bathroom and deck, and reconfiguration to provide four bedrooms, two with ensuite bathrooms, two additional bedrooms, kitchen, dining, lounge and new external covered deck.

The total floor space of the renovated and reoriented dwelling will be approx. 185m².

The proposal includes removal of 13 trees, including 2 trees located in the road reserve of Strand Avenue (Council consent as land owner provided).

The property is located within a coastal erosion precinct. The existing dwelling pre-dates the DCP requirement to be removable. The reorientation of the dwelling will not result in a modular structure that is able to be removed, and the application suggests that, in the circumstances, demolition of the structure would be required if the erosion escarpment condition is triggered in the future.

Development on the vacant strata lot would be subject to a separate DA process.

1.3. Description of the site

Land is legally described as	LOT: 2 DP: 536175
Property address is	25 Strand Avenue NEW BRIGHTON
Land is zoned:	DM Deferred Matter (7(f2) Urban Coastal Lands under BLEP 1988)
Land area is:	2,023m²
Property is constrained by:	Acid Sulfate Soils Class 3 & 5
	Coastal Erosion Precinct 1 & 2
	Updated Coastal Hazard Mapping (see detailed mapping below)
	Flood Prone Land (whole site)
	Threatened flora/fauna

The Site – showing proximity to beach and scale of existing development in immediate locality

2. SUMMARY OF REFERRALS

Referral	Issue
Development Engineer	Application not supported due to concerns relating to flooding and stormwater – see below.
S64 / Systems Planning Officer	No objections subject to conditions. S64 levies are payable
S94 / Contributions Officer	No objections subject to conditions. S94 Contributions are payable
Ecologist	Application is not supported. See Issues (below)

Issues:

Stormwater:

The application includes a concept Stormwater Management Plan, prepared on the basis of a dual occupancy, rather than a land subdivision. It does not meet with requirements of Council’s DCP in regard to dual occupancies.

Insufficient information has been provided to demonstrate that the proposed stormwater management system for the subdivision could be feasible within the site, as required by Part N2 of DCP 2010, particularly regarding existing site elevations relative to existing kerb and gutter. A lawful point of discharge has not been provided to the development, which compromises Part N3.1 of DCP 2010.

Flooding:

The Marshalls Creek Floodplain Management Plan (Paterson Consultants Pty Ltd, November 1997) permits limited filling for driveway works subject to the provision of local drainage patterns not being adversely affected. The proposed subdivision will likely adversely affect local drainage provisions, and as such Council can not be satisfied that the requirements of clause 24 of BLEP 1988 can be satisfied (see further information below).

Vehicle access will be restricted during storm events greater than a Q20 year which provide a reasonable level of service. Evacuation will be managed by SES in accordance with flood excavation plan developed with SES and available on Council’s web-site if evacuation is required. The additional allotment requiring evacuation is not a significant economic impact on the community, however the cumulative impact of similar developments should be considered and given the Marshalls Creek Floodplain Management Plan (Paterson Consultants Pty Ltd, November 1997) requires the building footprint to be limited to a single dwelling on any one allotment, Council can not be satisfied that this clause is satisfied.

Ecology:

The site contains areas of native vegetation as well as planted non-local natives and exotic species. The application proposes the removal of 13 trees. Plans submitted with the application, however, indicate that two additional trees would potentially be impacted by the development works.

Council’s Ecologist is not satisfied that the proposed planting is sufficient in terms of species type or number to offset the ecological impacts associated with the tree removal proposed, although this issue could be addressed by way of conditions of consent should approval of the application be recommended.

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.

EFFECT OF 10/50 RULE ON SIGNIFICANT VEGETATION

The property is not located in a designated 10/50 vegetation clearing entitlement area.

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 14—Coastal Wetlands	☒	☐
Consideration: There are no SEPP 14 wetlands in the vicinity.
State Environmental Planning Policy No 26—Littoral Rainforests	☒	☐
Consideration: There are no SEPP 26 Littoral Rainforests in the vicinity.
State Environmental Planning Policy No 44—Koala Habitat Protection	☒	☐
Consideration: The site has an area less than 1ha. Therefore, the development control provisions of this SEPP do not apply.
State Environmental Planning Policy No 55—Remediation of Land	☒	☐
Consideration: The property has been occupied for residential purposes for over three decades. There is no history of land use that would suggest a potential for soil contamination.
State Environmental Planning Policy No 71—Coastal Protection	☐	☒
Consideration: See further assessment below.

SEPP 71 – Coastal Protection

Cl. 8 Matters for Consideration:
(a) the aims of this Policy set out in clause 2:
(a) to protect and manage the natural, cultural, recreational and economic attributes of the New South Wales coast, and	Not directly applicable.
(b) to protect and improve existing public access to and along coastal foreshores to the extent that this is compatible with the natural attributes of the coastal foreshore, and	The proposed development does not impeded coastal foreshore access in the short term.
(c) to ensure that new opportunities for public access to and along coastal foreshores are identified and realised to the extent that this is compatible with the natural attributes of the coastal foreshore, and	Not directly applicable.
(d) to protect and preserve Aboriginal cultural heritage, and Aboriginal places, values, customs, beliefs and traditional knowledge, and	No perceived impacts.
(e) to ensure that the visual amenity of the coast is protected, and	Minimal impact on visual amenity.
(f) to protect and preserve beach environments and beach amenity, and	Minimal impact on beach amenity.
(g) to protect and preserve native coastal vegetation, and	Tree clearing is proposed – see comments in this report.
(h) to protect and preserve the marine environment of New South Wales, and	Not directly applicable.
(i) to protect and preserve rock platforms, and	Not directly applicable.
(j) to manage the coastal zone in accordance with the principles of ecologically sustainable development (within the meaning of section 6 (2) of the Protection of the Environment Administration Act 1991), and	A precautionary approach would suggest that, in the absence of a Management Plan to address known coastal risks/ hazards, approval of further development in the coastal hazard area is not appropriate.
(k) to ensure that the type, bulk, scale and size of development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area, and	As above – given the nature and extent of the known coastal hazard, further intensification of development should not be undertaken in the absence of an adopted Management Plan that addresses the risks.
(l) to encourage a strategic approach to coastal management.	As above.
(b) existing public access to and along the coastal foreshore for pedestrians or persons with a disability should be retained and, where possible, public access to and along the coastal foreshore for pedestrians or persons with a disability should be improved	The proposed development does not impeded coastal foreshore access.
(c) opportunities to provide new public access to and along the coastal foreshore for pedestrians or persons with a disability	Not directly applicable.
(d) the suitability of development given its type, location and design and its relationship with the surrounding area	As detailed further in this report, it is considered that the creation of an additional vacant lot is not appropriate in this location given the nature and scale of coastal erosion risks and the fact that Council does not yet have an adopted Management Plan to address the hazard.
(e) any detrimental impact that development may have on the amenity of the coastal foreshore, including any significant overshadowing of the coastal foreshore and any significant loss of views from a public place to the coastal foreshore	The development will not result in any significant amenity impacts.
(f) the scenic qualities of the New South Wales coast, and means to protect and improve these qualities	As above.
(g) measures to conserve animals (within the meaning of the Threatened Species Conservation Act 1995) and plants (within the meaning of that Act), and their habitats	See ecology comments above.
(h) measures to conserve fish (within the meaning of Part 7A of the Fisheries Management Act 1994) and marine vegetation (within the meaning of that Part), and their habitats	No significant impacts envisaged.
(i) existing wildlife corridors and the impact of development on these corridors	Not directly applicable.
(j) the likely impact of coastal processes and coastal hazards on development and any likely impacts of development on coastal processes and coastal hazards	See detailed assessment in this report – the site is located within an identified coastal hazard area. In the absence of any adopted coastal hazard management options, the development will be impacted by coastal recession/ erosion at some time in the future.
(k) measures to reduce the potential for conflict between land-based and water-based coastal activities	Not directly applicable.
(l) measures to protect the cultural places, values, customs, beliefs and traditional knowledge of Aboriginals	The development will not impact on any known areas of Aboriginal Heritage.
(m) likely impacts of development on the water quality of coastal waterbodies	The development is unlikely to impacts coastal water quality.
(n) the conservation and preservation of items of heritage, archaeological or historic significance	The development will not impact on any known areas of historic significance.
(o) only in cases in which a council prepares a draft local environmental plan that applies to land to which this Policy applies, the means to encourage compact towns and cities	Not directly applicable.
(p) only in cases in which a development application in relation to proposed development is determined: (i) the cumulative impacts of the proposed development on the environment, and (ii) measures to ensure that water and energy usage by the proposed development is efficient.	The property immediately to the west of the land was subdivided in 2010 to provide 2 vacant strata lots. Cumulatively, this proposal adds to the intensification of development in this coastal hazard area.
Cl. 13 Flexible zone provisions	Not directly applicable.
Cl. 14 Public access	See above – the proposal does not impede coastal access.
Cl. 15 Effluent disposal	Reticulated sewer is available.
Cl. 16 Stormwater	Stormwater can be adequately managed on site.

Coastal Hazards:

The Byron Shire Coastline Hazards Assessment Update (Sept 2013) provides a detailed analysis of the nature and extent of coastal hazards affecting the whole of the Shire. In relation to New Brighton, the assessment indicates a net shoreline recession equating to 0.1-0.3m/year. It further notes that factors, such as the beach scraping that has been undertaken in the area, mean that there is some uncertainty in these rates, which could be more than calculated. It concludes that “there is significant risk of erosion and wave overtopping over-wash to the hind dune areas”, and “the immediate erosion hazard could involve breakthrough to the low land areas behind the dune”.

It is noted that no beach scrapping is being undertaken this year.

Allowing for the uncertainty, and considering sea level rise predictions, the Assessment has plotted updated Coastal Hazard lines that have a serious impact on the subject property.

The “immediate hazard” line is plotted only approx. 12m to the east of the current property boundary. The “best estimate” of the 2050 erosion line is approx. 20m inside the site, with the 2100 “best estimate” approx. 44m into the property.

This hazard assessment clearly shows that the property is significantly affected, raising serious concerns around the suitability of the site for more intensive development. The hazard assessment is also reflected in the State Government’s draft Coastal Management SEPP, which maps the whole of the land within the Coastal Vulnerability Area (see below).

The updated hazard assessment will inform the preparation of a Coastal Zone Management Plan, which will determine how the hazards will be managed into the future. At this time, however, preparation of the Management Plan is proceeding for Byron Bay, and no work has started on management options for New Brighton.

In the absence of management plan work, it is considered that the proposed development is inconsistent with the provisions of SEPP 71, in that it is not suitable for further development. On this basis, refusal of the development application is recommended.

4.2 Byron Local Environmental Plan 1988 (LEP 1988)

LEP 1988 is an applicable matter for consideration in the assessment of the subject development application in accordance with subsection 79C(1) of the EP&A Act because it applies to the subject land and the proposed development.

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

(a) The proposed development is defined in the LEP 1988 Dictionary as Dwelling House, and in accordance with the EP&A Act as subdivision of land;

(b) The land is within the 7(f2) Urban Coastal Lands Zone according to the map under LEP 1988;

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

Zone Objective	Consideration
(1) to identify urban land likely to be influenced by coastal processes,	The land is influenced by coastal process – see further information below.
(2) to permit urban development within the zone subject to the council having due consideration to the intensity of that development and the likelihood of such development being adversely affected by, or adversely affecting, coastal processes,	While the development is (technically) permissible, the provisions of cl.32 seek to minimise intensification of land uses in the zone. It is therefore inconsistent with these zone objectives. See further discussion below.
(3) to permit urban development within the zone subject to the council having due consideration to: (i) the need to relocate buildings in the long term, (ii) the need for development consent to be limited to a particular period, (iii) the form, bulk, intensity and nature of the development, and (iv) continued safe public access to the site, and
(4) to allow detailed provisions to be made, by means of a development control plan, to set aside specific areas within the zone for different land uses and intensities of development.

Special Provisions:

Cl. 2 Aims, objectives and guiding principles

Guiding Principles:

· The precautionary principle: In some circumstances this will mean actions will need to be taken to prevent damage even when it is not certain that damage will occur.

This is directly relevant to the subject application – in the absence of adopted measures to manage the protection of existing development in the face of known coastal hazards/ risks, the precautionary principle is supported by Council’s objectives, expressed in cl. 32 of the LEP, to restrict intensification of development.

The application cannot be supported under the precautionary principle.

Cl. 24 Development of flood liable land

Council cannot consent to development on flood prone land unless it is satisfied that:

· the development would not restrict the flow characteristics of flood waters

· the development would not increase the level of flooding on other land in the vicinity

The Marshalls Creek Floodplain Management Plan (Paterson Consultants Pty Ltd, November 1997) permits limited filling for driveway works but requires the building footprint to be limited to a single dwelling on any one allotment and as such Council can not be satisfied that this clause is satisfied.

· the structural characteristics of any building or work the subject of the application are capable of withstanding flooding

The driveway can be constructed to withstand flooding and future highset dwelling construction on the vacant strata lot can be made to comply with this clause.

· the building is adequately flood proofed

Future highset dwelling construction on the vacant strata lot can be made to comply with this clause by having habitable floors above the flood planning level and flood compatible materials below the flood planning level.

Cl. 32 Development within Zone No 7(f2) (Urban Coastal Land Zone)

(3) Council, in deciding whether to grant consent shall take into consideration:

(a) the likelihood of the proposed development adversely affecting, or being adversely affected by, coastal processes

See the assessment above. Based on the recent assessment of coastal hazards (Byron Shire Coastline Hazards Assessment Update, Sept 2013), the whole of the property is located within an area subject to coastal erosion/ recession.

Both the reoriented existing dwelling and a future dwelling on the proposed vacant lot would be affected by coastal recession within the anticipated lifetime of those buildings.

Council has yet to undertake the work required to address these hazards. In the absence of an adopted Coastal Zone Management Plan for this section of coast, it is considered that it is inappropriate to approve substantial additional development which will be affected by coastal processes.

(b) the need to relocate buildings in the long term

Council has a policy of “planned retreat” to manage development in coastal hazard areas, implemented through the provisions of Part J of DCP 2010 (see further detail below).

A key component of this policy is to provide for the relocation/ removal of dwellings/ structures in coastal areas when the erosion escarpment comes within 50m of the building.

Standard development conditions are implemented on development approvals to implement this policy. There are, however, known difficulties in implementing the policy and enforcing the conditions of approval and Council does not have unilateral power to remove buildings.

In the event that removal/ demolition is triggered (i.e. when the erosion escarpment comes within 50m of the building), Council would advise the land owner that, in accordance with the terms of the condition, development consent has ceased and the dwelling is to be removed/ demolished.

If no action were taken by the land owner, Council would need to take legal actions for a breach of consent/ condition.

Conditions of consent can be enforced in two main ways:

· Council can issue orders under s121B of the Environmental Planning and Assessment Act, but only where the requirements and circumstances set out in s121B are met. A statutory process must be followed by Council before such an order can be issued. The recipient of the order has a merit right of appeal to the Land and Environment Court (“Orders pathway”); or

· civil enforcement proceedings can be brought in the Land and Environment Court seeking orders from the Court to remedy or restrain the alleged breach of the condition of consent (“litigation pathway”).

Restrictions on title, where they exist, could potentially be enforced by proceedings in the Supreme Court. If Council sought to do this, the affected landowner could raise counter arguments seeking that the restrictions be extinguished, utilising provisions of the Conveyancing Act 1919.

Whether there is an enforcement option open to Council needs to be assessed individually for each landowner, according to the facts and circumstances of each property.

Even if Council could prove that there has been a breach of a consent condition, the Court has discretion as to whether any orders should be made to “remedy” the breach.

(c) the need for the development consent to be limited to a particular period

Rather than specify a time limit on approvals, Council’s policy of planned retreat specifies a condition requiring buildings be removed when the erosion escarpment comes within 50m. See further comments above.

(d) the form, bulk, intensity and nature of the development

These matters need to be considered in relation to the provisions of parts (4) & (5) below.

Clause 32 is specifically written to limit the intensity of development, prohibiting a range of development, including dual occupancies, and prohibiting the subdivision of land (other than certain cases – discussed further below).

The proposed development would result in an intensification of the use of the site, resulting in two dwellings where there currently is one. Were it not for the anomaly in the wording of the clause (discussed below), the development as proposed would not be permissible.

(e) continued safe access to the site

While safe access will be available in the foreseeable future, in the absence of adopted management measures to address coastal recession, continued access cannot be guaranteed in the longer term.

(4) The council shall not consent to the carrying out of development on land shown edged heavy black and stippled on the map marked “Byron Local Environmental Plan 1988 (Amendment No 66)” for the purpose of clubs, commercial premises, hostels, hotels, motels, residential flat buildings, shops or tourist facilities or for a purpose that would otherwise be permissible with consent under clause 17 (Dual occupancy).

The clear intent of this clause is to restrict the scale and intensity of development in this zone. In relation to residential development, by specifically prohibiting dual occupancy and residential flat buildings, the intent of the clause is to restrict such development to one dwelling per property.

While the current development does not propose dual occupancy, the end result will be the same – two dwellings on what is currently one parcel of land.

(5) The Council must not consent to the subdivision of land within Zone No 7 (f2) other than:

(a) a subdivision under the Strata Schemes (Freehold Development) Act 1973, or

(b) a subdivision to excise an allotment that is, or that the Council is satisfied is intended to be, used for a public purpose, or

(c) a subdivision that, in the opinion of the Council, is only a boundary adjustment where no additional lots are created.

There is an anomaly in this clause, particularly when read in conjunction with part (4). While it is clear why a subdivision for public purposes or a boundary adjustment that does not create additional lots should be acceptable, it is unclear why the creation of one or more vacant lots might be acceptable only under one particular titling system – i.e. strata title, when the clause specifically seeks to restrict the subdivision of land.

It is more likely that the intention of the clause was to allow the strata title subdivision of existing lawfully erected buildings (which is not subdivision of land).

It is acknowledged, however, that the clause is not currently clearly worded to reflect that interpretation.

The applicant has provided a number of precedent approvals where Council has previously approved vacant strata title lots in the 7(f2) zone.

It is recommended, however, that the wording of this clause of LEP 1988 be amended to clarify the intent, by amending part (a) to read:

a subdivision of an existing lawfully erected building (or buildings) under the Strata Schemes Development Act 2015 (updated legislation) – see Part 6 of this report.

Conclusion:

Notwithstanding that the proposed strata subdivision is permissible given the words of the clause, it is considered that the development should not be supported given the resulting form and intensity of development, on a site that is affected by known coastal processes.

Cl. 40 Height

The maximum building height within this clause is 9.0m to the topmost part of the building, measured from existing ground level.

The plans provided with the application do not provide dimensions or levels to accurately gauge the maximum height of the building. ‘Scaling’ from the plans indicates that the peak of the roof may be slightly in excess of the 9.0m limit.

This could be addressed by a condition if approval is recommended, requiring compliance with the 9.0m limit, to be demonstrated on plans submitted with an application for Construction Certificate.

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

Draft SEPP (Coastal Management) 2016

The Draft Coastal Management State Environmental Planning Policy (SEPP) proposes to establish a new, strategic land use planning framework for coastal management. It is intended to support the implementation of the management objectives set out in the Coastal Management Act 2016.

Once adopted, the Coastal Management SEPP will be the single land use planning policy for coastal development and will bring together and modernise provisions from SEPP 14 (Coastal Wetlands), SEPP 26 (Littoral Rainforests) and SEPP 71 (Coastal Protection).

The aim of the Draft SEPP is to promote an integrated and co-ordinated approach to planning in the ‘Coastal Zone’, identifying four coastal management areas:

· coastal wetlands and littoral rainforests area

· coastal environment area;

· coastal use area; and

· coastal vulnerability area.

The whole of the subject site will be mapped within the coastal use area and the coastal vulnerability area.

Coastal use area: Similar provisions to SEPP 71, relating to foreshore access and amenity/ overshadowing impacts on the beach. The application does not raise any issues in this regard.

Coastal vulnerability area:

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

(a) if there is an existing beach adjacent to the proposed development – allows for the ambulatory and dynamic nature of the beach and foreshore or provides for beach nourishment, and

As indicated above, in the absence of an adopted Coastal Zone Management Plan for this area, the site will be subject to coastal recession.

(b) is not likely to cause increased risk of coastal hazards on that land or other land, and

The development would cause increased risk to the extent that it would provide for an additional dwelling, which will be subject to the identified coastal hazards.

(c) is not likely to alter coastal processes to the detriment of the natural environment or other land, and

The development is unlikely to alter coastal processes.

(d) is not likely to reduce the public amenity, access to and use of any beach, foreshore, rock platform or headland adjacent to the proposed development, and

The development will not impact beach access or amenity.

(e) incorporates appropriate measures to manage risk to life and public safety from coastal hazards.

There are no such measures incorporated into this development, and Council does not have an adopted Management Plan that outlines such measures for this location.

Development consent must not be granted to development on land to which this clause applies unless the consent authority has considered, given anticipated impacts of coastal processes and coastal hazards, whether:

(a) any proposed buildings or works should be temporary buildings or works, and

See commentary above regarding the removal of the reorientated dwelling.

(b) whether any use of land should be a temporary use of land.

See comments above.

Conclusion:

The development as proposed is inconsistent with the provisions of the draft SEPP as they would apply to the Coastal Vulnerability Area.

4.4 Byron Shire Development Control Plan 2010 (DCP 2010)

DCP 2010 is an applicable matter for consideration in the assessment of the subject development application in accordance with subsection 79C(1) of the EP& A Act because its purpose is to provide planning strategies and controls for various types of development permissible in accordance with LEP 1988.

Part G Vehicular Circulation and Car Parking

Table G2.1 indicates a car parking requirement for a dwelling house with a floor area greater than 100m² is 2 spaces, plus 1 additional space per 2 bedrooms over 4 bedrooms.

In this case, the dwelling has in excess of 100m² floor area, with 6 bedrooms, requiring the provision of 3 spaces.

Only 2 spaces have been provided. However, there would be sufficient room on the site to accommodate an additional parking space if approval were to be recommended.

Part J Coastal Erosion Lands

The eastern part of the property is within Coastal Erosion Precinct 1 – Beach Escarpment to the Immediate Impact Line. The western part, containing the existing dwelling, is within Precinct 2 – Between the Immediate Impact Line and the 50 year Erosion Line.

The application states that the reoriented dwelling will remain wholly within Precinct 2.

As outlined above, the most recent erosion study shows different hazard lines, with the immediate impact and best estimate 50 year lines located slightly seaward of the Part J Precinct lines.

The more recent lines have not yet been adopted for the purpose of the Development Control Plan, and therefore the Precinct controls in Part J remain applicable.

Precinct 2 – Prescriptive Measures:

Development within this precinct will be granted on the understanding that any consent granted will be subject to the proviso that must the erosion escarpment come within 50 metres of any building then the development consent will cease.

A condition to this effect would be imposed on any approval of this application. See comments above regarding concerns about enforcement of such a condition.

If the development consent does cease then the owner of the land will be responsible for the removal of any or all buildings from the site, or, where possible, to a location on the site further than 50 metres from the erosion escarpment. Prior to lodging an application with Council, the developer of the land must determine whether buildings are to be relocatable or demolished, should the consent cease.

The application proposes that the building would be demolished.

Notwithstanding the above, all Class 1 residential buildings (dwelling-houses) must be relocatable. Extensions to existing dwellings may also be required to be demountable, taking into consideration the additional floor space proposed and the likely effect of the extension on the ability of the building to be relocated in an emergency.

The reoriented dwelling, which is a Class 1 building, will not be relocatable. The application argues that this is not required as it is an existing dwelling.

4.5 Any Planning Agreement or Draft Planning Agreement?

There is not any applicable planning agreement or draft planning agreement relevant to this application.

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 Coastal Policy	Yes (see below)	Yes	Yes
93 Change of Building Use	No	N/A	N/A
94 Rebuilding, enlargement of existing building	Yes	Yes	Yes
94A Temporary structures	No	N/A	N/A

The NSW Coastal Policy is the overarching framework for management of the coastal zone. It is implemented through Coastline Management Planning process and the provisions of SEPP 71.

The Coastline Hazards Assessment Update referred to above is the first step in the Coastal Zone Management Process for this locality, having identified the scale and nature of coastal processes and hazards. The preparation of a Management Plan would be the next step, identifying measures to manage the identified hazards.

That work has not yet begun in relation to the New Brighton area.

The provisions of SEPP 71 are addressed above.

4.7 Any coastal zone management plan?

As highlighted above, work has not yet commenced on a Coastal Zone Management Plan for this section of the coast.

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	Minimal. The proposal involves tree clearing and therefore will have a some adverse impact on the natural environment of the locality.
Built environment	No. The proposal will not have a significantly adverse impact on the built environment of the locality.
Social Environment	Yes. The proposal will have a significant social impact on the locality by providing for a vacant lot that would be developed for additional residential development within a location subject to significant coastal hazard.
Economic impact	Potential. An increase in the intensity of development in this locality has the potential to increase the future cost of management/ protection works which, ultimately, will be an economic cost to the community.

4.9 The suitability of the site for the development

As highlighted above, the property is identified as being subject to coastal hazards. In the absence of management / protection measures, coastal recession will physically impact the land within the lifetime of the proposed dwelling.

Council’s policy, as outlined in clause 32 of Byron LEP 1988, is to restrict the intensity of development in locations subject to these coastal hazards. In particular, the provisions of that clause prohibit subdivision of land, although an anomaly in the wording allows subdivision to be approved if it is undertaken under the Strata titling provisions.

It is suggested that the intent of that provision was to allow for the subdivision of existing lawfully approved buildings, rather than to allow the creation of vacant lots, as it makes no sense why the subdivision of land to create vacant lots might be acceptable for one form of titling but not for another.

It is accepted, however, that the current words within the clause do not clearly state that intent.

Council has not yet started work on a Coastal Zone Management Plan for this section of coast. Such a Plan would include measures to address the level of risk and clarify the extent to which future development could be supported.

In the absence of such a Plan, approval of the current application would provide for additional development that would be subject to coastal recession within its planned lifetime, with no measures in place for Council or the land owner to manage that risk, other than to remove dwellings when the erosion escarpment comes within 50m of the buildings.

Legal advice has raised questions regarding the ability for Council to rely on this condition of approval to achieve removal of dwellings.

In the circumstances, it is considered that the land is not suitable for the development as proposed.

4.10 Submissions made in accordance with this Act or the regulations

The development application was publicly exhibited 28/12/17 to 10/1/18; and then re-exhibited due to holiday period from 25/01/18 to 07/02/18.

There were no submissions made on the development application.

4.11 Public interest

The application would result in an intensification of use in this vulnerable area, increasing the burden on Council and the community to protect that development when it is impacted by coastal erosion / recession in the future.

In the absence of an adopted Management Plan for this part of the coast, it is considered that intensification of land use is not in the public interest.

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 not likely 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 would be payable if the application were approved.

5.2 Section 94 Contributions

Section 94 Contributions would be payable if the application were approved.

6. AMENDMENT TO BYRON LEP 1988

Byron LEP 1988 will continue to apply to coastal lands identified as being subject to coastal hazard until Council has finalised a review of those lands and determined an appropriate zoning to incorporate into Byron LEP 2014.

At this time, the State Government’s Standard LEP Template does not provide a zoning option that is directly equivalent to the 7(f1) or 7(f2) zones.

Council is continuing discussions with the State Government in this regard, but it is likely that the situation will take some time to resolve. In the meantime, it is considered that it worth addressing the anomaly in the clause 32 of the existing clause, to prevent continued pressure to create additional vacant development lots that are subject to coastal hazards.

As outlined above, it is suggested that there is an anomaly in the current wording of clause 32 of the LEP, where the subdivision of land is prohibited, apart from subdivision undertaken under the strata titling legislation.

Historically, strata title was more or less exclusively used to subdivision existing buildings. In this context, allowing strata subdivision makes sense, as it is not then the subdivision of land.

In more recent time, strata provisions have been used to create vacant allotments, mostly in the case of staged development proposals, where specific building designs have also been approved for the ‘development lot’.

It has rarely been used as proposed in this application, to create a vacant allotment not linked to a specified building proposal, as the torrens title (i.e. conventional land subdivision) system is much less cumbersome.

Strata subdivision is proposed in this case simply because the words in clause 32(5) are written to allow “a subdivision under the Strata Schemes (Freehold Development) Act 1973” (superseded legislation).

It is likely that the intention of the clause was to allow the strata title subdivision of existing lawfully erected buildings.

It is acknowledged, however, that the clause does not currently specify that intent, and the applicant has provided a number of precedent approvals where Council has previously approved vacant strata title lots in the 7(f2) zone. As such, it is not considered appropriate to refuse the current application based on an interpretation of this clause.

It is recommended, however, that a Planning Proposal be prepared with the intention of amending the wording of this clause of LEP 1988 to clarify the intent. It is suggested that clause 32(5)(a) be amended to read:

a subdivision of an existing lawfully erected building (or buildings) under the Strata Schemes Development Act 2015, where no vacant lots result from the subdivision

7. AMENDMENT TO BYRON DCP 2010

Part J of the DCP deals with development within identified coastal erosion precincts. It will continue to apply to deferred areas as long as Byron LEP 1988 is applicable.

It is recommended that this part be amended by including the following:

J2.6	Element – Subdivision of Land
	Element Objective
	Restrict the intensity of development within locations adversely affected by coastal processes.
	Performance Criteria
	Development will not be considered where it would result in the creation of vacant land capable of being development for residential purposes.
	Prescriptive Measures
	Council will not consent to the subdivision of land within Precincts 1 and 2 other than: (a) a subdivision of an existing lawfully erected building (or buildings) under the Strata Schemes Development Act 2015, where no vacant lots result from the subdivision; or (b) a subdivision to excise an allotment that is, or that the Council is satisfied is intended to be, used for a public purpose, or (c) a subdivision that, in the opinion of the Council, is only a boundary adjustment where no additional lots are created.

Criteria	74 Charltons Road, Federal
i) situated west of the Pacific Highway (undeveloped sites only) AND within a 5 km radius of a town with a high school; and	Ï Outside 5km service catchments of Mullumbimby & Byron Bay
ii) not identified in a draft or adopted strategy for future urban purposes, or for future village / urban development in this strategy; and	P
iii) contains at least 10ha of unconstrained land AND does not require access through constrained land, as identified in Table 1 of the Site Suitability Criteria and Mapping Methodology; and	Ï No unconstrained land due to the following: - regionally significant farmland (entire site) - slope > 25% (part of site)
iv) can be adequately serviced by existing or committed road infrastructure at a standard suitable for the predicted level and type of traffic resulting from development, at no cost to the wider community	Ï Located outside 5km major service catchment and in an area that cannot be serviced adequately by existing or committed road infrastructure.

When	What	Status
December 2017	· Commence development of the CZMP and accompanying EASP for the Eastern Precincts BBE (Cape Byron to Main Beach).	Commenced
· Report to 14 December Council meeting on status of draft plan and other coastal projects. · Plan for the Eastern Precincts acknowledged as highest priority project.	Complete
January 2018	· Workshop with Public Agencies (24 Jan) on the draft plan	Complete
February / March 2018	· Close consultation with OEH to finalise the draft plan · Preliminary review of draft CZMP by OEH and public agencies · Workshop for Councillors (8 Feb) - presentation of draft plan and agency comments/feedback · Report to Council (22 Feb) – update on development of plan	Complete
April 2018	· Further comment and feedback on the draft CZMP by agencies. · Report to Council (19 Apr) on draft CZMP. Council approve draft CZMP to go to public exhibition. · Commence public exhibition and community engagement activities.	Commenced This report Pending
May 2018	· Public Exhibition (4 weeks) · Community engagement activities	Pending
May/June 2018	· Review submissions and feedback. · Report to Council at 21 June 2018 meeting, finalise plan	Pending
July 2018	· Submit to Minister for certification	Pending
July 2018	· Review and approval of the CZMP	Pending

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.11

Report No. 13.11 PLANNING - Development Application 10.2017.681.1 alterations and additions to existing amenities building to create a clubhouse for Byron Bay Football Club at 35 Carlyle Street Byron Bay

Directorate: Sustainable Environment and Economy

Report Author: Chris Larkin, Manager Sustainable Development

Noreen Scott, EA Sustainable Environment and Economy

File No: I2018/246

Theme: Ecology

Development and Approvals

DA No:	10.2017.681.1
Proposal:	Alterations and additions to existing amenities building to create an upper floor clubhouse
Property description:	Lot: 44 Section 28 DP: 758207 35 Carlyle Street BYRON BAY Byron Recreation Grounds
Parcel No/s:	177670
Applicant:	Byron Bay Football Club
Owner:	Byron Shire Council
Zoning:	Zone No. RE1 Public Recreation
Date received:	30 November 2017
Integrated Development:	No
Public notification or exhibition:	- Level 2, advertising under DCP 2014 Part A14 – Public Notification and Exhibition of Development Applications - Exhibition period: 21 December 2017 to 10 January 2018 - Submissions: For = 0 Against = 2 Neutral/Other = 1 (Crown Lands)
Delegation to determination:	Council
Issues:	· Hours of operation · Use of site for functions, events, etc · Traffic and parking · Noise from patrons · General impacts on surrounding residential development · Disabled access

Summary:

The application proposes alterations to an existing amenities block to create a second storey for part of the building to be used as a clubhouse and administration building. The upper floor will include a large balcony on the eastern and northern side and access will be via an external staircase at the north west corner and an internal staircase in a central location. The ground floor layout will be modified to allow for the internal staircase. A solar array and club signage will be included on the upper floor.

The land is approximately 5.13 hectares in area, bounded by Cowper Street to the east, Tennyson Street to the west, Carlyle Street to the south and the Sandhills Crown land to the north. It is Community Land pursuant to the Local Government Act 1993.

The proposed clubhouse is within the RE1 Public Recreation Zone, and Recreation Area is permitted with Council consent. The clubhouse is ancillary to the use of the site for community sporting events and activities

The Statement of Environmental Effects accompanying the DA adequately addresses the LEP and DCP requirements and demonstrates that the proposed clubhouse on this site is appropriate, subject to conditions.

NOTE TO COUNCILLORS:

RECOMMENDATION:

That Pursuant to Section 80 of the Environmental Planning & Assessment Act 1979, development application 10.2017.681.1 for alterations and additions to an existing amenities building to create an upper floor clubhouse be granted consent subject to the conditions listed in Attachment 2 #E2018/16544.

Attachments:

1 Proposed Plans prepared by John McKay Architects , E2018/13305 ⇨

2 Conditions of consent , E2018/16544 ⇨

3 submissions received, E2018/17259 ⇨

Assessment:

1. INTRODUCTION

1.1 History/Background

The Byron Recreation Grounds were established in 1921 commencing with a War Memorial and then Memorial Gates at the Tennyson Street entrance.

The site was progressively developed for sports and community uses including:

· Fields and courts for active recreation – football (soccer), cricket, rugby union, tennis, croquet, netball, basketball, athletics, school uses and personal training.

· Playground and shelter;

· Passive community uses;

· Buildings such as a scout hall, community cabin (formerly guide hall), croquet club, tennis club, rugby club and football club amenities.

The amenities building the subject of this application is the central southern building used by the football club (Figure 1). The northern half of this building was approved in September 2004 (DA 10.2004.245.1) and constructed shortly after that.

Subject building air photo

Figure 1: Existing amenities block that is proposed to be altered to create a clubhouse on an upper floor

The land on which the club house is proposed is zoned RE1 Public Recreation under Byron LEP 2014 (Figure 2). The clubhouse fits with the definition of Recreation Area and is permitted with Council consent.

LEP 2014 zones

Figure 2: The land on which the club house is located is zoned RE1 under Byron LEP 2014

1.2 Description of the site

The subject land is approximately 5.13 hectare lot (Lot 444 Section 28 DP 758207) located in Byron Bay (Figure 3). It is bounded by Cowper Street to the east, Tennyson Street to the west, Carlyle Street to the south and the Sandhills Crown land to the north. It is Community Land pursuant to the Local Government Act 1993 and is owned by Council. Surrounding land is generally residential in nature with a mix of one and two storey development.

Lot 444 air photo

Figure 3: The land is a single lot that is a developed sports facility.

The site is mostly sports fields and courts, amenities and clubhouses and small areas of passive open space with scattered native shade trees. It includes a popular east/ west shared path. The War Memorial and Memorial Gates are located at its western edge along Tennyson Street.

Electricity and telephone are connected to the subject land and it is connected to reticulated water and sewerage. It is supplied with a Council solid waste and recycling service. The subject land does not contain any native vegetation mapped as ecologically significant. It is affected by flooding in all events from the 10 year ARI through to the probable maximum flood (PMF). Figure 4 shows the area affected in the 100 year ARI event that is the design flood event.

100 yr ARI flood event

Figure 4: The 100 year ARI event affects that subject land.

The land is not listed as a heritage item but is immediately adjacent to a Heritage Conservation Area (HCA) Figure 5.

LEP 2014 heritage

Figure 5: The land is adjacent to a Heritage Conservation Area

The entire Byron Recreation Ground is identified as “unhealthy building land” on Council’s mapping system (Figure 6). It is not listed on Council’s contaminated land register and is not identified as a site that has received mineral sands tailings. The “unhealthy building land” designation appears to be as a result of historic drainage issues as there is no clear evidence of a past use that would have caused contamination. Parts of the site have been filled over the years through its use as a sports ground. The proposed clubhouse will be on land that has been filled. Minimal ground disturbance is anticipated for the upper floor alterations.

Figure 6: The entire site is mapped as “unhealthy building land”.

Land immediately to the north of the subject land includes vegetation mapped as having a bushfire hazard. The buffer to this vegetation affects the northern part of the site but not the location of the proposed clubhouse.

Figure 7: The proposed clubhouse if not affected by bushfire hazard (red) or buffer (green)

1.3 Description of the proposed development

The applicant wants to keep the existing single storey amenities building mostly as is and add a second storey to part of it. The upper floor will yield about 151m² of enclosed floor space to be used for offices, toilets, storage, a small kitchen and a general purpose club room. It will also include balconies on the north and east side with a combined area of 100 m². The existing ground floor will remain as is, other than modifying the existing physio/coaches room into a foyer and stairwell to the upper floor. The upper floor will also have an access from an external stair case at the north west corner of the building. The roof of the clubhouse will include a solar array. Signage for the football club is proposed on the south facing gable end of the upper floor.

Although not shown on plans, the applicants have indicated that they intend to install a lift chair in the internal foyer to enable disabled persons to access the upper floor. The upper floor materials will be light weight cladding and a metal roof in earth tones to match the existing structure. The lower floor (existing) is largely brick on concrete slab.

Use of the new clubhouse is proposed to be dominated by football club activities such as a supporter viewing area, post-match presentation area, club offices and meetings. All training is generally completed by 9pm. Matches are completed by 9:30 pm with field lighting switched off at 10pm. Club activity will be completed at 11pm each day at the latest.

The Football club has stated that it intends to rent out the venue up to 6 times per year to other community groups. No external groups will be allowed to use the facility after 10 pm. Noise will need to comply with industrial noise policy. (Note: this consent does not permit the use of this site for events, etc).

The Football club would like to lease the clubhouse and take on maintenance of it as part of that lease process. (Note: this consent does not address maintenance or lease issues).

2. SUMMARY OF GOVERNMENT/EXTERNAL/ INTERNAL REFERRALS

	Summary of Issues
Environmental Health Officer	Supported conditionally. Comments included in relevant report sections.
Principal Engineer - Systems Planning, Utilities	No Objections. The BB FC is able to demonstrate that it can meet the exemption criteria for water and sewer fees in section 2.7 of Council’s DSP as a non profit charitable organisation that makes a significant contribution to the community. There are Council pipelines in proximity to the proposed balcony supports and stairs. Compliance with Council Policy 4.20. Building Over Pipelines and Other Underground Structures is required.
Engineer	No Objections. On the basis that the club house is to be used by the existing football club members then it will not result in additional traffic or car parking. If this development is to be used for external functions, parties, wedding or events this development consent must be amended to account for car parking and traffic requirements that would be generated by such uses.
Building Services Supervisor	No Objections. The proposed works are able to satisfy the BCA. A platform lift for disabled persons is required to access the upper floor. This type of lift is able to satisfy the BCA. The existing building will need to be structurally adequate for future loads. Engineers to certify as part of Construction Certificate.
Dept of Industry (Lands and Forestry)	No Objections. However, development should not encroach on any Crown land or affect Crown land in any way. Note that the nearest Crown Land is Lot 457 DP 1087879 and comprising Reserve 755695 for Future Public Requirements notified 29 June 2007 (Sandhills); and Public Crown Road (part Cowper Street).

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

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

State/Regional Planning Policies and instruments - Issues

3.1. STATE/REGIONAL PLANNING POLICIES AND INSTRUMENTS

Requirement	Requirement	Proposed	Complies
State Environmental Planning Policy 55 – Remediation of Lands	A consent authority must not consent to the carrying out of any development on land unless: (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.	The Byron Recreation Ground has been used since the1930s as a recreation area. It is mapped as “unhealthy building land” most likely as a result of it being poorly drained. There is no clear evidence of a past use that would result in contamination. The proposed development is an upper storey addition and minimal ground disturbance is required. As the proposed development is a non-residential use of the land it is suitable for this location. No further investigation is warranted.	Yes
SEPP 71 Coastal Protection (NSW Coastal Policy 1997)	Clause 7 requires Council to consider certain matters in determining a DA in the coastal zone. These are set out in Clause 8 of the SEPP. These matters cover the key issues of the NSW Coastal Policy.	The subject land is set back approximately 0.5 km from the high water mark at the nearest beach and it is in the coastal zone. (a) the application is consistent with the aims of this Policy, (b) the development will not impact existing public access to and along the coastal foreshore for pedestrians or persons with a disability , (d) the development is suitable given its type, location and design and its relationship with the surrounding area given there is a mix of one and two storey dwelling sin the surrounds, (e) the development will not have any detrimental impact on the amenity of the coastal foreshore, including no overshadowing of the coastal foreshore and no significant loss of views from a public place to the coastal foreshore, (f) the scenic qualities of the New South Wales coast will remain unchanged by this development, (g) no threatened fauna (within the meaning of the Threatened Species Conservation Act 1995) and plants (within the meaning of that Act), and their habitats will be affected by this development, (h) no fish or marine vegetation or their habitat will be affected, (i) existing wildlife corridors will not be impacted as no vegetation is to be removed, (j) the site is not impacted by coastal processes or coastal hazards, (k) measures to reduce the potential for conflict between land-based and water-based coastal activities, (l) the development is unlikely to impact the cultural places, values, customs, beliefs and traditional knowledge of Aboriginals, (m) the development will not impact the water quality of coastal waterbodies, (n) the development is set back approximately 90 metres from the nearby HCA conservation and mature trees are located in this buffer. The heritage or historic significance of this locality is unlikely to be impacted by this development, (o) the development will not impact on compact towns and cities, (p) the cumulative impacts of the proposed development on the environment are minimal given the sporting related use of the subject land. A solar array for the roof will offset energy usage making the building more energy balanced than it currently is. Water efficient toilets and showers will be installed to reduce water usage.
Building Code of Australia	Class 9b building	The proposed works are able to satisfy the BCA	Yes
Demolition	A Site Waste Minimisation and Management Plan is required to assist applicants in planning for sustainable waste management.	Demolition on the site will be limited to removing the roof of part of the amenities block and modifications to the ground floor to allow an internal stair well. A Site Waste Minimisation and Management Plan has not been prepared but will be required as a condition of approval.	Conditions to apply.
Disability Access (DDA)	Access for persons with disabilities and integration into surrounding streetscapes without creating barriers. (Council Res.10-1118)	No disability access to the upper floor has been shown on the plans submitted. In response to an RFI the applicant has indicated they intend to install a lift chair or platform lift on the internal stairwell to enable disabled access to the upper floor.	Conditions to apply.

* Non-complying issues discussed below

3.2. BYRON LOCAL ENVIRONMENTAL PLAN 2014

Zone: Zone No. RE1 Public Recreation

Definition: Dual occupancy (detached) dwelling

LEP Requirement	Summary of Requirement	Proposed	Complies
Meets zone objectives	• To enable land to be used for public open space or recreational purposes. • To provide a range of recreational settings and activities and compatible land uses. • To protect and enhance the natural environment for recreational purposes.	The development is consistent with the objectives of the RE1 zone because the proposed club house is a building ancillary to the use of the site for recreation purposes (sport). It will not unduly impact on the setting and is compatible with adjacent sporting uses. It will not impact on the natural environment.	Yes
Permissible use	The clubhouse fits with the definition of Recreation Area and is permitted with Council consent. Recreation Area means a place used for outdoor recreation that is normally open to the public, and includes: (a) a children’s playground, or (b) an area used for community sporting activities, or (c) a public park, reserve or garden or the like, and any ancillary buildings, but does not include a recreation facility (indoor), recreation facility (major) or recreation facility (outdoor).	Recreation Area	Yes
4.3 Height of buildings	This clause requires that buildings not exceed the height shown on the Height of Buildings map. In this case the prescribed maximum height is 9 metres.	The building will be a maximum height of 7.5 metres above ground level.	Yes
5.5 Development within the coastal zone	This clause duplicates the provisions of the NSW Coastal Policy 1997.	Compliance with this clause is covered previously in the section above addressing SEPP 71.	Yes
6.1 Acid Sulfate Soils	This clause requires ASS assessment if ASS are likely to be disturbed on the site.	The subject land that is classified as ASS Class 3. However the land on which the clubhouse is to be located has been filled. Minimal soil disturbance is proposed. It will be limited to post holes for veranda posts and the base of the external stairs.	Yes
6.2 Earthworks	Earthworks that require consent should have minimal impact on environmental functions, neighbouring uses, cultural heritage and surrounding land.	Minimal soil disturbance is proposed. It will be limited to post holes for veranda posts and the base of the external stairs. The small amount of disturbance will not affect the environment or impact on neighbours or surrounding land. All works need to avoid Council pipelines in the vicinity of the amenities.	Yes
6.3 Flood Planning	This clause requires that Council consider a range of issues for any development at or below the flood planning level. The subject land is partly below the flood planning level (1:100 ARI flood event plus 0.5 m freeboard).	The clubhouse is an upper level structure that will be well above flood heights for this location. The existing lower level amenities building was not built to be entirely above the flood planning level so the upper floor will provide a flood refuge for sporting equipment that may be stored on the site.	Yes
6.6 Essential services	The development should have adequate · water · sewer · electricity · stormwater · vehicle access	The existing building is connected to reticulated water supply, sewerage and electricity and this will also service the upper floor club house. The site also has controlled vehicle access. Stormwater is a problem on this flat site but has been addressed in past approvals. The proposed alteration to create a club house will not significantly exacerbate stormwater issues.	Yes

* Non-complying issues discussed below

Byron Local Environmental Plan 2014 - Issues

There are no issues of non-compliance with LEP 2014 that raise any concerns.

Draft EPI that is or has been placed on public exhibition and details of which have been notified to the consent authority - Issues

There are no issues that relate to draft LEPs that have been placed on public exhibition.

3.3 DEVELOPMENT CONTROL PLANS

Development Control Plan 2014

Chapter B3 – Services

The purpose of this Chapter is to identify the minimum requirements necessary to adequately service development for water, sewer, stormwater management, on-site effluent disposal and other necessary infrastructure. The site has reticulated town water supply, sewerage, reticulated power and communications.

The site is flat and has a history of poor drainage. However, past filling and stormwater drainage that links to the existing amenities building can be use by the clubhouse on the same footprint. The application complies with the requirements in this chapter.

Council records show that a sewer pipeline and recycled water pipeline are both located in proximity to the proposed club house. It is important that buildings are not constructed over these pipelines and that posts for the proposed verandah are not too close to pipelines or cause damage to them.

Chapter B4 – Traffic Planning, Vehicle Parking Circulation and Access

The purpose of this Chapter is to provide guidelines, controls and standards for traffic planning, vehicle access, circulation and parking for developments. This application provides no dedicated parking for the clubhouse and relies on the surrounding street parking. The Byron Recreation Ground does not have any dedicated parking area and has always relied on street parking. A Recreation Area is not listed as a specific land use in the parking schedule in this chapter.

Most clubhouse users will park on the street and walk a short distance into the ground to use the club house for games or training, etc. Delivery vehicles and construction vehicles can access the site via locked gates. Pedestrians and cyclists can easily access the centrally located site. The clubhouse is a relatively minor expansion of usable floor space and is intended to be used by the club members that already use the site anyway. It is therefore not expected to result in an increase in traffic and parking demand. If its use is confined to the definition of a Recreation Area then it does not need to supply additional parking. It should be noted that Recreation Area does not include a recreation facility (indoor), recreation facility (major) or recreation facility (outdoor). This consent does not cover a function centre which means a building or place used for the holding of events, functions, conferences and the like, and includes convention centres, exhibition centres and reception centres, but does not include an entertainment facility. It also does not include a food and drink premises.

This application complies with the parking requirements of the DCP.

Chapter B5 – Providing for Cycling

This Chapter aims to retain, increase and improve cycling facilities; consistently review cyclist needs; and provide a consistent standard of facilities for cyclists within the area.

The clubhouse is a relatively minor expansion of usable floor space and is intended to be used by the club members that already use the site anyway. The site already has a cycle rack close to the proposed clubhouse site. A Recreation Area is not listed as a specific land use in the bicycle parking schedule in Chapter B4.

This application complies with the cycling requirements of the DCP.

Chapter B6 – Buffers and Minimising Land Use Conflicts

The purpose of this Chapter is to provide advice and guidance on planning for land use compatibility, avoiding land use conflict and the use of buffers. The application is located on RE1 zoned land that is surrounded on three sides by R2 Low Density Residential land. The site has been use for recreation purposes since the 1930s and the clubhouse is consistent with that long term use.

The nearest dwellings in Cowper and Carlyle Streets are approximately 120 metres from the proposed club house. However, sound from the club house upper floor would travel this distance easily, particularly at night when background noise subsides. Management of noise (and lights) at the site needs to be a focus of the Football Club if the impacts on residential neighbours are to be kept reasonable.

Operating hours for the club house should be restricted to preserve neighbourhood amenity as follows: Monday to Saturday - 9.30pm and Sunday – 6.30pm.

The subject land does not contain vegetation classified as a bushfire hazard and the buffer to vegetation on the adjacent Sandhills site does not affect the proposed clubhouse site. A detailed bushfire hazard assessment is not required.

Chapter B8 – Waste Minimisation and Management

Council requires a Site Waste Minimisation and Management Plan for this development. No plan has been provided with the statement of environmental effects. It should be provided as a condition of approval prior to the issue of a construction certificate.

Chapter B9 – Landscaping

This Chapter provides advice, guidelines and controls relating to design, construction and maintenance of landscape and vegetation associated with all developments on land to which Byron LEP 2014 applies. In this case a landscape plan was approved for the original ground floor amenities building. This upper floor extension does not warrant any changes to that plan.

Chapter B10 – Signage

The purpose of this Chapter is to provide guidelines and controls for signage consistent with the objectives and provisions of Byron Local Environmental Plan 2014 and State Environmental Planning Policy 64 – Advertising and Signage (SEPP).

The development plans show a wall sign on the south facing gable end of the upper floor structure depicting the football club logo. This is effectively a building identification sign. No dimensions or details are provided. This sign faces the HCA and it is reasonable that it be kept to a modest size (2.5 m² is suggested by the DCP) and not be illuminated.

Chapter B11 - Planning For Crime Prevention

This Chapter aims to ensure that all development plays a role in enhancing the safety of our communities; to reduce the vulnerability of our community to crime through good urban design; and to

require developers to work with the community and the NSW Police Force to create a safer environment and be active in practical crime prevention.

The DCP does not identify this development as one that must be accompanied by a formal Crime Risk Assessment prepared in accordance with NSW Police Force Safer by Design guidelines. The SEE does not address the CPTED principles as required by the DCP. The four principles that should have been addressed are:

Surveillance – The upper floor club house can be easily viewed from all directions including three public streets and the various playing fields around it. It is easily viewed form the busy main shared path that runs east /west across the recreation grounds. When the club is being used it will be possible to view most of the Recreation Grounds form the balcony and this will increase passive surveillance of the whole sports facility.

Access control - This aspect can be improved. The access to the upper floor stairs needs to be gated (as the canteen etc is now) to ensure that it does not become a hiding place after dark. Other than that it is an upper floor addition and access is only by internal stairs or the external stairs.

Territorial reinforcement- The clubhouse will be perceived as “belonging” to the Byron Bay FC and this creates a sense of territory that promotes a sense of ownership and pride in the football players that use the space. This is not to say that Council is giving exclusive use rights to the football club. That matter is not part of this development application.

Space management - Strategies relevant to this site include activity coordination (football club events), site cleanliness, rapid repair of vandalism and graffiti ( use of murals) , the replacement of burned out security lighting and the removal or refurbishment of decayed physical elements.

The Byron Recreation Ground has been the subject of complaints relating to poor behaviour, homeless camping, backpackers camping in cars on the streets, littering and crowd behaviour at sporting events. These are ongoing site management matters that will not be exacerbated by this development.

Chapter B13 – Access and Mobility

The Commonwealth Disability Discrimination Act 1992 (DDA) is the primary Australian statute that aims to eliminate discrimination on the grounds of disability. Section 23 of the DDA makes it unlawful to discriminate against people with a disability or their associates in relation to access to and use of premises that the public enter or use.

The site is accessed by a concrete path from three directions. This includes access to ground floor toilets and changes rooms. The upper floor will be accessible via an internal chair lift incorporated into the internal stair well. This chair lift is not shown on plans and needs to be included as a condition of approval. This access must be provided to and within the facilities in accordance with the provisions of the BCA and AS1428.1 – Design for Access and Mobility –General Requirements for Access – New Buildings.

Parking is not being provided however it would be appropriate that a space along Carlyle Street be dedicated as a disabled parking space when this area of parking is formalised.

Chapter C1 – Non Indigenous Heritage

The purpose of this Chapter is to set out controls and guidelines that complement Byron LEP 2014 in relation to development to or in the vicinity of heritage items and Heritage Conservation Areas. Any development to or in the vicinity of heritage items or Heritage Conservation Areas will need to be in harmony with the surroundings, both natural and constructed, and enhance the physical context valued by the community and by the Shire's increasing number of visitors.

In this case the club house is a simple design that has a neutral impact on the heritage character of the adjacent HCA. It does not compromise the significance and character of the components of the HCA. The club house is set well back from the HCA (about 90 metres) and there are substantive shade trees in the recreation grounds that filter views to the club house from many angles. Signage on the club house building will not impose on the HCA.

Chapter C2 – Areas Affected by Flood

The purpose of this chapter is to identify development requirements for flood liable lands that are appropriate for the degree of flood hazard on that land.

The land on which the club house is proposed is flood affected. The floor level proposed for the upper level is well above the 3.9 metre AHD that represent the design flood in this location. The upper floor clubhouse is not flood affected. It will provide an opportunity to store gear upstairs temporarily if a flood is going to inundate the ground floor of the building. This flood free storage area may also be useful for other users of the Byron Recreation Ground in times of flood.

Flood isolation of the club house is likely to be short duration given that the area is at the edge of the flood affected land and is caused by heavy local rainfall rather than overbank flower from a river with a large catchment. Flood velocity is not an issue in this situation.

Chapter C3 - Visually Prominent Sites, Visually Prominent Development and View Sharing

Council is committed to ensuring that the Shire’s landscape character and visual quality are maintained and where possible enhanced in the development process. The visual quality of an area can be strongly influenced and affected by the treatment of visually prominent sites and locations. These include land in the coastal zone, ridgetops and nearby lands, escarpments, environmentally sensitive sites on sloping land and any site where development has the potential to degrade visual amenity.

The subject land is in the coastal zone and therefore it meets the definition of a visually prominent site and this chapter applies.

A visual impact statement was not supplied by the applicant and is not warranted in this case.

The site is not significant when viewed form public places such as the beach or Cape Byron. The proposed clubhouse will not disrupt or impact on neighbours’ views or prominent viewscapes.

Other Development Control Plan/s - Issues

The current plan of management for the subject land is the Byron Recreation Ground Plan of Management , 2002. The site of the clubhouse is classified as Sports Ground under this plan. Land in this category is used or proposed to be used primarily for active recreation involving organised sports or the playing of outdoor games. The amenities and proposed clubhouse are ancillary to the playing of football on this site. This is consistent with the Plan of Management (PoM).

Many of the actions of this plan of management have been implemented since 2002. Construction of the ground floor amenities block above which the clubhouse is to be built was an action of this PoM. It could be argued that this clubhouse is an extension of the amenities block that embellished the amenities by providing more toilets and showers as well as a covered spectator area (the balconies ) and a general meeting room and offices. The PoM does clearly indicate that all new structures should be shared use facilities. This aspect needs to be negotiated between Council and the Byron Bay FC.

Three versions of a draft PoM to replace the 2002 version have been prepared for Byron Recreation Grounds over the last few years and none have been finally adopted.

On 1^st February 2018 Council resolved in relation to the Byron Recreation Grounds to:

Confirm that the draft Plan of Management will facilitate only those alternative community or commercial uses that:

a) are compatible both with the categorisation of the facility and the current sporting uses at the Grounds; and

b) that do not interfere with the scheduled use of the sporting fields nor degrade fields or facilities utilised by sporting users.

The proposed club house is compatible with the current categorisation of the site and the various sporting uses at the site. Other than during construction it will not interfere with the scheduled use of the fields and facilities. It will not degrade the fields or facilities.

A further revised draft PoM will be prepared and exhibited in due course. It is difficult to give any weight to previous drafts until they are finalised and adopted.

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

Subject to consent conditions the proposed upper floor clubhouse is not likely to result in any negative impacts on the natural and built environment nor is it likely to negatively impact socially or economically on the locale.

3.5 The suitability of the site for the development

The site has an adequate size and shape to accommodate the development. The existing amenities block is a suitable location being central to the recreation grounds and adjacent to the football fields. No native vegetation needs to be removed to enable the development. The upper floor is not affected by hazards and will not impact significantly on the nearby HCA. It is suitable for a club house development as proposed.

3.6 Submissions made in accordance with this Act or the regulations

The application was lodged with letters of support from the Byron Bay Rugby Club, Byron Bay Cricket Club, Byron Bay Netball, 1^st Byron Bay Scout Group, RSL Byron Bay Sub Branch, Byron Bay Public School, Byron Community Primary School, Byron Bay High School, and St Finbarr’s Primary School. Although they are not technically submissions they do show that other site users support the development.

There were two submissions made on the development application from residents of Carlyle and Cowper streets. The submissions both object to the development and make the following points:

1. The DA intends to have six functions a year and has a stated capacity of 166 persons seated and 332 standing. Object to this being a new function centre

Planning Response: This application is for a recreation area with the clubhouse being ancillary to the sporting use of the site by the football club (and potentially other sporting users). It is not being granted consent for a function centre. (A function centre means a building or place used for the holding of events, functions, conferences and the like, and includes convention centres, exhibition centres and reception centres). It is not being granted consent for a food and drink premises either.

2. Traffic and parking are major issues with this site already and with no parking proposed for this DA it will only get worse.

Planning Response: The application is for embellishment of facilities primarily for the Byron Bay FC that already use the site on a regular basis. If this is the case then there will not be additional parking demand generated. Although street parking is annoying for neighbours there is minimal opportunity for off street parking in this location (without reducing sports facilities) and sports related use has taken place on this site for many decades based on street parking. The site is not being given consent to be used as a function centre or a food and drink premises.

3. A two storey building is not in keeping with surrounding buildings.

Planning Response: The other buildings on the recreation grounds are all single storey but surrounding residential streets have two storey developments. The proposed building is below the 9 metre height limit and will not impact on views or cause problematic overshadowing to other land. It is consistent with the height of nearby trees.

4. Behaviour of site users and impact of noise, litter etc on surrounding residential land

Planning Response: All sporting venues in residential areas experience some problems with user behaviour from time to time. This application is unlikely to exacerbate problems with this site. It is up to the football club and other sports users to control their own members. If laws are broken then it is a matter for the police. Council will need to enforce the conditions of this or any other approvals to ensure that the site is not used other than in accord with its consents. Noise control is a matter that Council in conjunction with the Police can take action about. Compliance with NSW noise laws will be expected at this site and enforced by Council. Imposition of hours of operation on the clubhouse may assist in reducing noise impacts. Littering is a matter of concern but requires individuals to be “caught in the act”.

5. Building safety and crime prevention

Planning Response: It is agreed that the upper floor balcony needs to be gated to ensure that it is not a late night crime venue or a place to party after hours. This can be imposed as a condition of consent.

6. Hours of operation

Planning Response: It is appropriate for a clubhouse in a residential neighbourhood to have restricted operating hours to preserve neighbourhood amenity as follows: Monday to Saturday - 9.30pm and Sunday – 6.30pm. This can be a condition of approval.

7. Alcohol and security

Planning Response: Alcohol licensing is a matter for the NSW Liquor and Gaming. This consent is not for a Registered Club, Hotel, Pub, Restaurant or other use that typically has a liquor licence. It is not a food and drink premises. Any application for a temporary liquor licence would be assessed by authorities on merit and breaches of licensing laws are a serious offence. Security is a good idea at larger sporting events if alcohol is served but this is a decision for the club to make based on its own risk assessment.

3.7 Public interest

This development does raise significant issues of public interest but on balance the proposed clubhouse is an appropriate use of the site and if managed properly will not compromise the wider public interest in the site.

4. DEVELOPER CONTRIBUTIONS

4.1 Water & Sewer Levies

The proposed upper floor club house will be connected to reticulated water or sewerage. The ground floor is already connected. No levies apply because the Byron Bay FC is a not for profit sporting organisation that contributes to the Byron Shire community. This development has met criteria listed in Section 2.7 of Council’s Developer Servicing Plan for water supply and sewerage and is therefore exempt from water and sewerage developer contributions.

4.2 Section 94 Contributions

The works are an embellishment of an existing recreation area, do not involve dwellings or accommodation of any type and no contributions will be required.

6. DISCLOSURE OF POLITICAL DONATIONS AND GIFTS

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

Provide Disclosure Statement register details here: Nil

7. CONCLUSION

Council recognises the role of local sporting clubs in arranging organised sport for the Byron Shire community. Council supports uses that are compatible both with the categorisation of the facility and the current sporting uses at the Byron Recreation Grounds; and that do not interfere with the scheduled use of the sporting fields nor degrade fields or facilities utilised by sporting users.

It is also important that use of the clubhouse is restricted to sports related matters and does not interfere with the amenity of the neighbourhood. This consent does not include approval for a function centre which means a building or place used for the holding of events, functions, conferences and the like, and includes convention centres, exhibition centres and reception centres. This consent does not include approval for a food and drink premises of any type, such as a restaurant or café. Appropriate conditions have been recommended in relation to hours of operation.

This development meets the Council’s requirements. Conditional approval is appropriate.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.12

Report No. 13.12 PLANNING - Development Application 10.2017.429.1 Dual Occupancy (Detached) 31 Charlotte Street , Bangalow

Directorate: Sustainable Environment and Economy

Report Author: Simone Kenyon, Planner

File No: I2018/258

Theme: Ecology

Development and Approvals

Proposal:

Proposal description:	Dual Occupancy (Detached),
Property description:	LOT: 42 DP: 1232435
Property description:	31 Charlotte Street BANGALOW
Parcel No/s:	268781
Applicant:	Mrs N E Dodge & Mr V Tassiello
Owner:	Bodhi Superannuation Pty Ltd & Mrs N E Dodge & Mr V Tassiello
Zoning:	PART R2 Low Density Residential/PART RU1 Primary Production/PART DM Deferred Matter – 1A General Rural Zone
Date received:	11 August 2017
Integrated Development:	No
Public notification or exhibition:	- Level 1 advertising under DCP 2014 Part A14 – Public Notification and Exhibition of Development Applications - Exhibition period: 24/8/17 to 6/9/17 - Submissions received: Nil
Planning Review Committee:	N/A
Delegation to determination:	Council
Issues:	- 30% variation to the minimum site area permissible for dual occupancies within the RU1 Primary Production zone

Summary:

Development approval is sought for a dual occupancy (detached) at 31 Charlotte Street, Bangalow. The property is zoned Part R2 Low Density Residential/Part RU1 Primary Production/Part DM Deferred Matter – 1A General Rural Zone in accordance with the Byron Local Environment Plans 2014 and 1988 respectively. The battle axe shaped allotment has a total land area of 1227m² and is currently vacant. It is proposed that each dwelling will provide for three bedrooms and double garage.

The proposed development is generally consistent with the relevant environmental planning instruments and planning controls applicable to the site including the LEP and DCP provisions for this type of development. However part of the site although a residential allotment is partly zoned RU1 Primary Production and a smaller area is zoned 1(a) General Rural in the north east corner of the property. Councils planning controls establish a minimum lot size for dual occupancy of 4000 m² in the RU1 Zone. However due to the inherent residential nature of this property, its access to necessary services and its location within a clearly residential area of Bangalow a variation is supported in this instance.

It is considered the proposal raises no significant issues in terms of environmental impacts which cannot be managed through reasonable and relevant conditions of approval, and the site is considered suitable for the development. As such the application is recommended for approval subject to conditions of consent.

NOTE TO COUNCILLORS:

RECOMMENDATION:

That pursuant to Section 80 of the Environmental Planning and Assessment Act 1979, development application no. 10.2017.429.1 for a Dual Occupancy (Detached), be granted consent subject to conditions listed in Attachment E2018/19348.

Attachments:

1 Plans 10.2017.429.1 31 Charlotte Street, Bangalow , E2018/25319 ⇨

2 conditions of consent 10.2017.429.1 31 Charlotte Street Bangalow, E2018/19348 ⇨

Assessment:

1. INTRODUCTION

1.1. History/Background

The subject lot was registered 27 January 2017 as a result of Development Application 10.2011.413.1 which granted consent for a 42 lot subdivision. The land is currently vacant.

1.2. Description of the proposed development

This application seeks approval for a Dual Occupancy (Detached) comprising three bedrooms, modest living and dining areas with suitable area for car parking landscaping and private opne space. Plan extracts are provided below.

1.3. Description of the site

2. SUMMARY OF REFERRALS

Referral	Issue
Development Engineer	No objections subject to conditions. See Doc # A2017/29006.
Building Surveyor	No objections subject to conditions. See Doc # A2017/21419.
S64 Systems Planning Officer	No objections subject to conditions. See Doc # A2017/21422.
S94 Contributions Officer	No objections subject to conditions. See Doc # A2017/21429.

3. SECTION 79BA – 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 and Assessment Act 1979 (EP&A Act 1979), the following is a summary of the evaluation of the issues.

4.1 State Environmental Planning Instruments

	Satisfactory	Unsatisfactory
State Environmental Planning Policy No 55—Remediation of Land	☒	☐
Consideration: A check of the parcel number against contaminated land, chemical sensitivity, dip site, acid sulfate soils and unhealthy building land was undertaken with no results. No past history to indicate site contamination exists. Any potential site contamination matters were dealt with at the time the estate was subdivided.
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004	☒	☐
Consideration: BASIX Certificate supplied by applicant that is consistent with architectural plans.
State Environmental Planning Policy (Rural Lands) 2008	☒	☐
Consideration: No conflicts between land uses expected given that the intended use of the site is for that of residential purposes and the adjoining lot will be utilised for recreational purposes in the future.

4.2A Byron Local Environmental Plan 2014 (LEP 2014)

LEP 2014 is an applicable matter for consideration in the assessment of the subject development application in accordance with subsection 79C(1) of the EP&A Act 1979 because it applies to the subject land and the proposed development. The LEP 2014 clauses that are checked below are of relevance to the proposed development:

Part 1	☒1.1\| ☒1.1AA\| ☒1.2\| ☒1.3\| ☒1.4\| ☒Dictionary\| ☒1.5\| ☒1.6\| ☒1.7\| ☒1.8\| ☐1.8A\| ☒1.9\| ☐1.9A
Part 2	☒2.1\| ☒2.2 \| ☒2.3 \|☒Land Use Table \| ☐2.4 \| ☐2.5 \| ☐2.6 \| ☐2.7 \| ☐2.8
Part 3	☐3.1\| ☐3.2\| ☐3.3
Part 4	☐4.1\| ☐4.1A\| ☐4.1AA\| ☐4.1B \|☐4.1C\| ☐4.1D\| ☒4.1E\| ☐4.2\| ☒4.2A\| ☐4.2B\| ☐4.2C\| ☒4.2D\|☒4.3\|☒4.4 \|☐4.5 \| ☒4.6
Part 5	☐5.1\| ☐5.2\| ☐5.3\| ☐5.4\| ☐5.5\| ☐5.6\| ☐5.7\| ☐5.8\|☐5.9\| ☐ 5.9AA\| ☒5.10\| ☐5.11\| ☐5.12\| ☐5.13
Part 6	☐6.1\| ☒6.2\| ☒6.3\| ☐6.4\| ☐6.5\| ☒6.6\| ☐ 6.7\| ☐6.8\| ☐6.9

Note: The floor space ratio applies only to the portion of land that is zoned R2 Low Density Residential and the gross floor area of structures within this zone is compliant. It is worth noting that the intent for the site is that of R2 Low Density Residential and the boundary lines are an anomaly in the mapping. As part of general housekeeping amendments to BLEP 2014, the subject site will in the not too distant future will be located in its entirety, within the R2 Low Density Residential zone. As such, a calculation of the proposed gross floor area applied to the total land area indicates that the proposal would still comply with the FSR standard.

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

a) The proposed development is defined in the LEP 2014 Dictionary as Dual Occupancy (Detached),

b) The land is partly within R2 Low Density Residential/PART RU1 Primary Production/PART DM Deferred Matter – 1A General Rural Zone according to the Land Zoning Map. Given that the proposal is wholly located within the areas mapped R2 Low Density Residential and RU1 Primary Production an assessment against BLEP 2014 is required and BLEP 1988 is not applicable.

c) The proposed development is permissible with consent; and

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

R2 Low Density Residential Zone Objectives	Consideration
To provide for the housing needs of the community within a low density residential environment; and to enable other land uses that provide facilities or services to meet the day to day needs of residents.	The proposed dual occupancy will meet the day to day needs of the immediate residents.

RU1 Primary Production Zone Objective

Consideration

· To encourage sustainable primary industry production by maintaining and enhancing the natural resource base;

· To encourage diversity in primary industry enterprises and systems appropriate for the area;

· To minimise the fragmentation and alienation of resource lands;

· To minimise conflict between land uses within this zone and land uses within adjoining zones;

· To encourage consolidation of lots for the purposes of primary industry production;

· To enable the provision of tourist accommodation, facilities and other small-scale rural tourism uses associated with primary production and environmental conservation consistent with the rural character of the locality; and

· To protect significant scenic landscapes and to minimise impacts on the scenic quality of the locality.

The proposal is unlikely to conflict with existing adjacent rural land uses. The proposal in its current location will not adversely impact on the scenic and environmental qualities of the site.

The remaining checked 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. The proposed development complies with all of these clauses (in some cases subject to conditions and/or to the satisfaction of other assessing officers), except in relation to Development Standard 4.1E which stipulates the following:

4.1E Minimum lot sizes for dual occupancies, multi dwelling housing and residential flat buildings

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

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

*Column 1*	*Column 2*	*Column 3*
Dual occupancy (attached)	Zone R2 Low Density Residential, Zone R3 Medium Density Residential	800m²
Dual occupancy (attached)	Zone RU1 Primary Production, Zone RU2 Rural Landscape, Zone RU5 Village, Zone R5 Large Lot Residential	4,000 m²
Dual occupancy (detached)	Zone RU1 Primary Production, Zone RU2 Rural Landscape	4,000 m²
Dual occupancy (detached)	Zone R2 Low Density Residential, Zone R3 Medium Density Residential	800 m²
Multi dwelling housing	Zone R2 Low Density Residential	1,000 m²
Multi dwelling housing	Zone R3 Medium Density Residential	800 m²
Residential flat building	Zone R3 Medium Density Residential	800 m²

The Applicant has submitted a clause 4.6 variation request (refer to Doc # E2017/90084). The clause 4.6 variation request is considered with reference to relevant matters as follows:

1. Introduction – Summary of proposed development

The development application proposes a dual occupancy (detached) on an allotment within the newly created residential estate on Charlotte Street, Bangalow. The site is dual zoned R2 low Density Residential and RU1 Primary Production.

2. Clause 4.6 Exceptions to Development Standards

LEP 2014 clause 4.6 allows the granting of a development consent, even though the development would contravene a development standard. However Council must first consider a written request from the Applicant that seeks to justify the contravention of the development standard by demonstrating:

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

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

Council must be satisfied that the Applicant’s written request has adequately addressed the matters required to be demonstrated and that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out (noting that the concurrence of the Secretary is not required to be obtained in this instance).

3. The Development Standard to be varied

The development standard to be varied is the minimum lot size planning control of 4000m² applicable to this site under LEP 2014 clause 4.1E as described above.

The minimum lot size planning control is a development standard in accordance with the applicable definition in section 4 of the Environmental Planning and Assessment Act 1979 because it is a provision of an environmental planning instrument in relation to the carrying out of development, being a provision by or under which requirements are specified or standards are fixed in respect of any aspect of that development, being the area of land.

4. Extent of Variation to the Development Standard

The extent of the variation is 30% as indicated above.

5. Objective of the Development Standard

The objectives of development standard subclause 4.1(E) are is to achieve planned residential density in certain zones. The intent for this particular site was solely for the purpose of Low Density Residential purposes.

6. Objectives of the Zone

The objectives of the R2 Low Density Residential and RU1 Primary Productions Zones are stated and have been addressed in this section of this report above.

7. Assessment – the specific questions to be addressed:

a) Clause 4.6(3)(a) – Is compliance with the development standard unreasonable or unnecessary in the circumstances of the case?

The clause 4.6 written request submitted in support of the DA advises as follows in this regard:

‘It is submitted that compliance with the development standard is both unreasonable and unnecessary in the circumstances of this particular case. The proposed development includes land identified as RU1 Primary Production in accordance with the provisions of BLEP14. The approved subdivision of the lot created a land parcel with multiple zones over the land. The subject site is largely zoned R2 Low Density Residential. The strict compliance with the development standard is unreasonable given the approved lot configuration and land use zoning. It is also submitted that strict compliance with development standard is unnecessary in the subject circumstances whereby a residential development is proposed on an approved allotment within an existing urban subdivision and setting’.

b) Clause 4.6(3)(b) – Are there sufficient environmental planning grounds to justify contravening the development standard?

The clause 4.6 written request submitted in support of the DA advises as follows in this regard:

‘The environmental planning grounds to justify the development standard relate to the approved allotment and associated land use zoning. The creation of an allotment with part of the land zoned RU1 Primary Production, part zoned R2 Low Density Residential and part zoned 1(a) General Rural has resulted in a proposal which does not strictly comply with the development standard but is consistent with the form and scale of development envisaged by the planning controls’.

c) Clause 4.6(4)(a)(ii) – Is the proposed development in the public interest? Is it consistent with the objectives of the standard and the zone as set out above?

The clause 4.6 written request submitted in support of the DA advises as follows in this regard:

‘The proposed development is consistent with the objectives of the particular development standard. The development standard seeks to ensure that development for the purposes of detached dual occupancy in rural zones is undertaken on allotments with an adequate area to accommodate the proposed development and able to cater for servicing of the land, particularly wastewater management. In the subject case the allotment is connected to Council’s sewerage system and strict compliance with the minimum lot size is not necessary particularly having regard for the partial R2 Low Density Residential zoning of the land’.

The proposal produces a better planning outcome than one that strictly complies with the development standard because requiring strict compliance would result in built form that is not in keeping with the approved and establishing built form of this locality. The circumstances of the case warrant a more flexible approach to the application of the minimum lot size development standard, which in this case, is merely due to zoning mapping that is not reflective of the intended use for this site. The Applicant’s variation request is supported and the development application is recommended for approval despite the non-compliance. No public submissions have been received to the exhibition of the development application and the proposed development is considered to be in the public interest.

It is further noted that the mapped zoning of the subject site will be amended as part of Council’s housekeeping amendments to the BLEP 2014.

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

1. Draft State Environmental Planning Policy (Coastal Management) 2016 (CM SEPP). The proposal is unlikely to conflict with this Policy.

2. The Department of Planning and Environment (‘DPE‘) has announced a Draft Remediation of Land SEPP (‘Draft SEPP‘) which will repeal and replace the current State Environmental Planning Policy No 55—Remediation of Land (‘SEPP 55‘). The Explanation of Intended Effect of the Draft SEPP is on exhibition to 31 March 2018. The Draft SEPP will maintain the two categories of remediation work currently in SEPP 55:

· Category 1 – works that require development consent; and

· Category 2 – works that may be carried out without development consent.

The proposal is unlikely to conflict with this Policy.

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

DCP 2014 is an applicable matter for consideration in the assessment of the subject development application in accordance with subsection 79C(1) of the EP& A Act 1979 because it applies to the land to which LEP 2014 applies. The DCP 2014 Chapters that are detailed below are of relevance to the proposed development:

Part A: Preliminary

The appropriate plans were submitted by the applicant. Public Notification was undertaken as per the requirements of this Chapter.

Chapter B2: Preservation of Trees and Other Vegetation

The proposal does not result in vegetation removal.

Chapter B3: Services

The proposal is located on an allotment that is already equipped with services in the form of water, stormwater, electricity and telecommunications.

Chapter B4: Traffic Planning, Vehicle Parking, Circulation and Access

Sufficient carparking numbers have been provided and manoeuvrability within the site has or can be achieved through conditions of approval imposed by Council’s Development Engineer.

B6 Buffers and Land Use Conflict

It is considered that the proposal will not result in land use conflicts as the intent for the subject site was for that of residential purposes. Adjacent rural allotments that are capable of establishing rural activities will not be impacted upon given the creek location, existing vegetation and the Council owned eastern adjoining lot whose intent was for that of recreational activities.

Chapter B8: Waste Minimisation and Management

A Site Waste Minimisation and Management Plan was submitted by the applicant and considered to be satisfactory. Conditions of approval will be imposed with regards to the implementation of this plan.

Chapter B14: Excavation and Fill

The proposal has been designed to ensure no more than 1 metre of cut is required to facilitate the construction of garages associated with the dwellings.

Chapter C1: Non-Indigenous Heritage

C.1.6.7 of Chapter C1 requires development to be consistent with the specific policy provisions for the Bangalow Heritage Conservation Area included in Chapter E2 Bangalow.

The site is located within a new estate that is establishing a development pattern of Queenslander style dwellings. The proposal is considered to be consistent with the forming and desired built pattern and character of Bangalow. The proposal raises no issues in terms of heritage.

Chapter C2: Areas Affected by Flood

A small portion of the lot along the access handle and to the rear eastern corner is mapped as being flood affected. However, an assessment by Council’s Development Engineer has determined the site is not flood affected and the access handle provides floor free access to the proposed dwelling sites.

Chapter D1: Residential Accommodation in Urban, Village & Special Purpose Zones

The proposal complies with all required setbacks, the building height plane as well as providing sufficient carparking and private open space to the dwellings. The proposal has been designed to minimise any potential for overlooking of adjoining residences which is somewhat difficult given the battle axe arrangement and the slope of the land.

Chapter E2: Bangalow

The proposed design complements the bulk, scale and character of development in the existing town and is compatible between new and old development in terms of streetscape, landscaping, building materials, colour, roof pitch and materials.

4.5 Any Planning Agreement or Draft Planning Agreement?

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

4.6 Environmental Planning and 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	Yes	Yes	Yes
94	Yes	Yes	Yes
94A	No	N/A	N/A

4.7 Any coastal zone management plan?

	Satisfactory	Unsatisfactory	N/A
Is there any applicable coastal zone management plan?	☐	☐	☒

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.
Social Environment	No. The proposal will not have a significant social impact on the locality.
Economic impact	No. The proposal will not have a significant economic impact on the locality.

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

Council Policy	Consideration
Building over pipelines and other underground structures Policy	Conditioned to comply.

4.9 The suitability of the site for the development

The subject site is an existing allotment within the R2 Low Density Residential zone. Having regard to the above assessment of the proposed development, the site is suitable for the proposal.

4.10 Submissions made in accordance with this Act or the regulations

No submissions being received by Council.

4.11 Public interest

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

4.12 Section 5A of the EP&A Act 1979 – Significant effect on threatened species

4.13 Section 5B of the EP&A Act 1979 – 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.

5.2 Section 94 Contributions

Section 94 Contributions will be payable.

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 which cannot be managed and the site is considered suitable for the development. The application is recommended for approval subject to conditions of consent.

7. RECOMMENDATION

It is recommended that pursuant to Section 80 of the Environmental Planning and Assessment Act 1979, development application no. 10.2017.429.1 for a Dual Occupancy (Detached), be granted consent subject to conditions of approval.

DISCLOSURE OF POLITICAL DONATIONS AND GIFTS

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

Provide Disclosure Statement register details here: Nil.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.13

Report No. 13.13 PLANNING - Report update of Council resolution 17-327 Tyagarah Airstrip - 26.2015.1.1

Directorate: Sustainable Environment and Economy

Report Author: Rob Van Iersel, Major Projects Planner

File No: I2018/380

Theme: Ecology

Planning Policy and Natural Environment

Summary:

Council considered a report on this matter at the Ordinary Meeting 24 August 2017 and resolved as follows:

17-327 Resolved:

1. That Council considers progressing the Tyagarah Airstrip Planning Proposal after the following have been completed:

a) a Social Impact Assessment (SIA) associated with any expansion and intensification of commercial uses at the Tyagarah Airfield;

b) an assessment of noise impacts associated with any expansion and intensification of commercial uses at the Tyagarah Airfield

c) an updated flood impact assessment associated with any expansion and intensification of commercial uses at the Tyagarah Airfield

d) a Councillor workshop to consider other uses for the site that do not involve increased aircraft activity.

e) community consultation to include all affected stakeholders.

f) a report on the cumulative ecological impacts of tree clearing required for the airfield and in the interim cease any tree clearing not associated with current airstrip safety.

2. The Council does not support, and thus, removes any reference to commercial helicopter operations or activities operating at Tyagarah Airfield, including construction of a heliport.

In accordance with part 1(d) of the resolution, a Strategic Planning Workshop was held on 8 February 2018, during which Councillors indicated a strong preference for alternative employment generating uses of the land, which would minimise intensification in flight numbers.

Based on that workshop, consideration of the Tyagarah site has been included in the current Employment Lands Strategy. A recent State Agency workshop, held in relation to that strategy project, identified the Tyagarah site (in conjunction with other adjoining land to the north) as to having short and long term potential to be rezoned for industrial uses (land currently zoned RU2 Rural Landscape).

The current RU2 zoning also provides potential for the consideration of food / agricultural produce industries, which could be considered through the development application process without the need to rezone the land.

The draft Employment Lands Strategy is expected to be reported to Council in June. In the meantime, this report presents a number of options for consideration, arising from the discussions at the February Councillors Workshop.

Given the previous resolutions and workshop discussions, it is recommended that Council move forward with a Planning Proposal to rezone part of the Council-owned land immediately north of the airstrip from RU2 Rural Landscape to IN1 General Industry concurrently with the finalisation of the Employment Lands Strategy.

NOTE TO COUNCILLORS:

RECOMMENDATION:

That Council:

1. Agree to initiate a Planning Proposal over the area within the Council-owned land located immediately north of the airstrip, currently zoned RU2 Rural Landscape, to amend the Byron Local Environmental Plan 2014 to apply a zoning of IN1 General Industry to that area.

2. Forward the Planning Proposal to the NSW Department of Planning and Environment for a Gateway Determination.

3. Agree that staff can proceed to public exhibition of the planning proposal and government agency consultation based on the Gateway Determination issued by the NSW Department of Planning and Environment, and report back to Council as part of post-exhibition reporting.

Report

Council has been considering options to optimise the financial return from the operation of the Tyagarah Airfield, specifically examining the potential to provide for further development of the Council-owned property for airfield related uses.

As part of this, a Planning Proposal has been prepared, to amend Byron Local Environmental Plan 2014 (BLEP) by reducing the minimum lot size applicable to the land. This could facilitate the further subdivision of the land to provide additional lots that could then be sold or leased.

Under the provisions of State Environmental Planning Policy (Infrastructure) 2007, development for retail, business, recreational, residential or industrial uses is permissible with consent on that land, if the development is ancillary to the use of the airfield.

Most of the site is zoned RU2 Rural Landscape under the Byron LEP and therefore, employment generating uses that are not directly related to the use of the airfield are restricted, with agricultural produce industries being the only non-airfield related industry type currently permissible.

The Department of Planning and Environment initially issued a Gateway Determination for the Planning Proposal in March 2016. That Proposal was publically exhibited in May 2016. Eight public submissions were received, including a submission that suggested that the site would be better utilised for high technology industry or the like.

In considering the submissions, Council resolved (17-327):

1. That Council considers progressing the Tyagarah Airstrip Planning Proposal after the following have been completed:

a) a Social Impact Assessment (SIA) associated with any expansion and intensification of commercial uses at the Tyagarah Airfield;

b) an assessment of noise impacts associated with any expansion and intensification of commercial uses at the Tyagarah Airfield;

c) an updated flood impact assessment associated with any expansion and intensification of commercial uses at the Tyagarah Airfield;

d) a Councillor workshop to consider other uses for the site that do not involve increased aircraft activity;

e) community consultation to include all affected stakeholders;

f) a report on the cumulative ecological impacts of tree clearing required for the airfield and in the interim cease any tree clearing not associated with current airstrip safety.

2. That Council does not support, and thus, removes any reference to commercial helicopter operations or activities operating at Tyagarah Airfield, including construction of a heliport.

To assist in implementing the resolution, a number of structure plan options were prepared, investigating the development potential of the Council-owned land for industrial-sized lots (around 1,000m²), which could house hangars or other industrial-scale buildings, to be used for airfield-related purposes.

There is approximately 4ha of relatively unconstrained land located on the north side of the existing airstrip. This takes into consideration the presence of an “Obstacle Limitation Surface” off the side of the strip, which prevents building too close to the airstrip. The presence of high environmental value vegetation was also considered, with those areas excluded from potentially developable land.

Preliminary flood assessment indicates that, while the whole of the land is flood prone, it would be possible to design filling of the land in a manner that does not result in external flood increases.

The structure planning work also assumed that wastewater could be managed by way of individual treatment systems discharging to a common irrigation / disposal space. Further investigations would be required to establish the feasibility of connecting the site to reticulated sewerage infrastructure (connection to Brunswick Heads infrastructure appears to be viable).

The structure planning work indicates that it could be possible to create 10-20 airfield-related lots on the land, depending on whether the existing buildings are retained.

If the airstrip were removed / redeveloped, the potentially unconstrained land is increased by approx. 5-6ha, providing a total of around 9-10ha of land potentially suitable for development (Note: flooding, servicing and acid sulfate soils remain issues to be addressed in any development of this land).

The Council-owned part of the Tyagarah site has been included in the consideration of the current Employment Lands Strategy. A recent State Agency workshop held in relation to that project identified that the Tyagarah site (in conjunction with other adjoining land to the north) appears to have short and long term potential as a site for industrial uses.

That workshop was undertaken to examine sites that have potential to provide for additional industrial development. Preliminary work undertaken for the Employment Lands Strategy indicates that approx. 8-10ha of additional land is required to meet forecast demand for service industries, and that there are no existing zoned sites that could provide that area.

The workshop included an inspection of a number of sites, all of which are constrained to some extent. The Tyagarah site, which includes the Council-owned airfield site and RMS land immediately to the north, was noted to have the least encumbrances of the sites viewed.

It was also noted during the workshop that the current rural zoning provides potential for the immediate consideration of food/ agricultural produce industries, which could be considered through the development application process without the need to rezone the land.

The draft Employment Lands Strategy is expected to be reported to Council in June.

Background – Flights & Aircraft Noise

Tyagarah airfield is not certified or controlled by the Civil Aviation Safety Authority (CASA), nor is the airspace above it, up to a height of 4,500 feet above ground, controlled by Airservices Australia (above 4,500 feet, airspaces is managed by Air Traffic Control out of Gold Coast Airport).

CASA is a Commonwealth Government authority regulating air safety, whereas Airservices Australia manages operations within airspace.

The majority of recreational flights in and out of Tyagarah are uncontrolled, as they generally remain lower than 4,500 feet. The exceptions are the Byron Skydive flights, which are ‘controlled’, from the Gold Coast Airport Air Traffic Control Centre, once they climb above 4,500 feet.

Those skydive flights are logged and must respond to the orders of air traffic control. Skydive Australia advise that their preferred flight path is direct east-west, climbing mostly over the ocean. Airservices Australia is aware of that preferred path. From time to time, for weather or traffic reasons, air traffic control might require the skydive flight to take a different route, but this appears to occur infrequently.

Above 4,500 feet, the coastal airspace from Gold Coast Airport down to Cape Byron Lighthouse is designated in “Danger Areas” 656A-D, with 656D above Tyagarah itself.

These Danger Areas have been designated by Airservices Australia for flight training use, with the majority of training flights originating out of Gold Coast Airport.

An operator of Airgoldcoast, a pilot training organisation located at Gold Coast Airport advises that, depending on weather conditions, there are likely to be an average of 35-40 flights per day out of Gold Coast Airport, flying south within the designated Danger Areas.

It is reasonable to assume that a large portion of complaints that Council receives about aircraft noise are generated by these training flights.

The training operator advises that training flights will generally avoid flying directly over Tyagarah because of the skydiving activities, diverting instead either out to sea or to the west. Good communication is maintained between skydive and training flights to ensure ongoing safety.

The training operator suggested that closure of the Tyagarah airstrip would have no effect on the numbers of training flights operating out of Gold Coast Airport.

Options

Based on work undertaken to date, and on previous Council resolutions there are a number of options for proceeding with consideration of the Tyagarah Airfield land

1. Do Nothing – continue to manage the airfield for its current purpose

While there were previous years where the operation of the airfield was conducted at a financial loss, work over the last two financial years has returned the operation to profitability, as shown below:

Year	Net Operating Profit / Loss
2015	-$506.00
2016	-$14,016.00
2017	$42,603.00

Council would continue to implement improvements and new ways to increase revenue from the existing facilities at the site.

In terms of flight numbers, it is understood that Skydive Byron Bay account for an estimated 95% of all flights in and out of Tyagarah.

There are currently 5 “lots” at the site, leased for airfield related purposes, plus the glider club, located on Crown land to the east. The airfield is not certified by CASA (Civil Aviation Safety Authority) and the airspace immediately above the airfield (up to 4,500ft) is not controlled by Airservices Australia. As such, there is no reliable data on flight numbers, other than those associated with the skydive operations.

The current Planning Proposal, to reduce the minimum lot size, would be withdrawn, as it would no longer be required.

Council would negotiate appropriate lease arrangements with existing tenants, who are currently on ‘hold-over’ terms. Council would also deal with Skydive Australia to secure the appropriate planning approval for their business.

2. Continue to optimise the site for airfield-related uses:

As outlined above, the development potential for subdivision of the land for these purposes is in the order of 10-20 lots (in total).

For this option, Council would continue work to implement the previous Council resolution. Based on the preliminary Structure Plan options, staff would commission a Social Impact Assessment to examine the potential impacts of expansion of the airfield related uses. The work currently being undertaken in relation to a Fly Neighbourly Agreement could address potential noise impacts.

The current Planning Proposal would remain active, with Council to respond to the Department of Planning and Environment to request the Minister to make the change to the LEP.

Council could then undertake the investigation and assessment required for the preparation of a Development Application to subdivision the land.

Council would negotiate appropriate lease arrangements with existing and potential tenants. Council would also deal with Skydive Australia to secure the appropriate planning approval for their business.

3. Close the airfield and redevelop the land for alternative employment generating uses:

The Tyagarah site is being considered in terms of its suitability for a wider range of employment generating uses, particularly for service industries that require good connection to the highway.

Preliminary work undertaken for the Employment Lands Strategy suggests that it might be one of the best placed sites available for such a use.

The Employment Lands Strategy is expected to be completed in September 2018.

Further consideration of this option should wait for the completion of that work, to understand whether the Tyagarah site is the only reasonable choice for future industrial land, or whether it is one of a number of sites that have this potential.

That knowledge would then allow consideration of the relative merits of industrial use versus maintaining the airstrip.

The current Planning Proposal, to reduce the minimum lot size, would be withdrawn. A new Proposal could be developed to rezone the land for industrial uses, subject to the outcome of the Employment Lands Strategy.

It should be noted that closure of the airstrip is unlikely to reduce aircraft noise in some areas within the Shire, as it is apparent that local airspace is used extensively by flight training operations out of Gold Coast Airport.

It has been suggested that closing Tyagarah could actually result in an increase in these training flights out of the Gold Coast, as some operators are said to avoid the local area because there are regular skydiving activities.

4. Interim – staged approach:

While the Employment Lands Strategy is continuing, work is sufficiently advanced to justify preparation of a Planning Proposal to amend the current RU2 zoning of the site to IN1 General Industry. This would, in the first stage, only relate to the area north of the airstrip (outside of the Obstacle Limitation Surface constraint).

It would then allow works to prepare a subdivision proposal that could provide for a wider diversity of land uses, airfield related, more general, or food industries for example.

Depending on the outcome of the Employment Lands Strategy, Council could consider whether the airstrip should remain in place in the longer term, or be replaced by an expansion of the IN1 General Industry zoning.

The current Planning Proposal would be withdrawn, to be replaced by the proposal to rezone the land, which would also include amendment to the minimum lot size map.

Option 4 is recommended as it will provide the greatest flexibility by allowing short term actions to proceed whilst further strategic decisions are made. The outcome and recommendations of the Employment Lands Strategy will provide a context within which Council can decide on the future of the airstrip.

Financial Implications

The options described above would lead to different financial outcomes. In the short term, the maximum financial return would be gained through rezoning, subdivision and sale of lots. As part of that process, financial modelling can be undertaken to measure options, including sale versus lease and comparison of returns against fees generated by aircraft movement.

Statutory and Policy Compliance Implications

Other than doing nothing, all options require amendment to Byron LEP 2014.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.14

Report No. 13.14 PLANNING - Development Application 10.2017.460.1 - Utility Installation: Telecommunication Tower at 54 Jones Road Wooyung

Directorate: Sustainable Environment and Economy

Report Author: Simone Kenyon, Planner

File No: I2018/391

Theme: Ecology

Development and Approvals

Proposal:

Proposal description:	Utility Installation: Telecommunication Tower
Property description:	LOT: 100 DP: 1178907
Property description:	54 Jones Road WOOYUNG
Parcel No/s:	241928
Applicant:	Optus Mobile Pty Ltd
Owner:	Billinudgel Property Pty Ltd
Zoning:	Part RU1 Primary Production/Part DM Deferred Matter – 7(k) Habitat Zone
Date received:	24 August 2017
Integrated Development:	No
Public notification or exhibition:	- Level 2 advertising under DCP 2014 Part A14 – Public Notification and Exhibition of Development Applications - Exhibition period: 14/9/17 to 27/9/17 - Submissions received: Two (2) submissions received
Planning Review Committee:	N/A
Delegation to determination:	Council
Issues:	- Natural Constraints – Flood, Bushfire, Acid Sulfate Soils – Class 3, High Conservation Value Vegetation and a Cattle Dip Buffer; and - Clause 40 – Exceeds 9m height limitation – SEPP 1 Objection

Summary:

Development approval is sought for a Utility Installation – Telecommunications Tower at 54 Jones Road, Wooyung. The property is zoned Part RU1 Primary Production/Part DM Deferred Matter – 7(k) Habitat Zone in accordance with the Byron Local Environment Plans 2014 and 1988 respectively. However, it is noted that the proposal is wholly located within the portion of the site that is mapped 7(k) Habitat Zone and as such, an assessment against BLEP 1988 and BSDCP 2010 only, has occurred.

The fragmented allotment has a total land area of 21.235 hectares and is utilised for a variety of purposes, more specifically the ‘Splendour on the Grass’ festival. The proposal includes one (1) 35m tower with ancillary infrastructure such as dishes, antennae and cabling. The phone tower is to provide improved telecommunication in the Wooyung area and festival goers. It is noted that mobile phone towers are used at present for the festivals.

The proposed development is generally consistent with the relevant environmental planning instruments and planning controls applicable to the site including the LEP and DCP provisions for this type of development, excluding Clause 40 of BLEP 1988. The height of the tower is supported as strict compliance with the development standards is not warranted in this instance. In particular a phone tower would be in-effective at 9 metres in height, whilst the proposal is unlikely to have an adverse impact on the visual amenity of the locality.

NOTE TO COUNCILLORS:

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

RECOMMENDATION:

That pursuant to Section 80 of the Environmental Planning and Assessment Act 1979, development application no. 10.2017.460.1 for a Utility Installation: Telecommunication Tower, be granted consent subject to conditions listed in Attachment 2 E2018/30097.

Attachments:

1 Proposed Plans 10.2017.460.1, E2018/28608 ⇨

2 Conditions of consent 10.2017.460.1, E2018/30097 ⇨

3 submissions received 10.2017.460.1, E2018/25091 ⇨

Assessment:

1. INTRODUCTION

1.1. History/Background

The subject allotment was registered 19 September 2012. A search of Council records identifies the following development application history:

1.2. Description of the proposed development

This application seeks approval for Utility Installation Telecommunication Tower as demonstrated Attachment 1.

The proposal includes:

a) One (1) 35m monopole;

b) Six (6) panel antennas, each less than 2.8m in length, mounted on the pole in the following configurations:

i. Three (3) panel antennas mounted on a turret headframe at a centreline height of 36.5m; and

ii. Three (3) panel antennas mounted on the pole at a centreline height of 31.7m.

c) One (1) radio-communication dish with a diameter of 1.2m, mounted at 28.7m in height;

d) One (1) outdoor equipment shelter, with a floor area of 7.5m², mounted at ground level adjacent to the new pole; and

e) Ancillary equipment associated with operation and safety of the facility, including remote radio units, cabling, safe access methods, earthing, electrical works and air conditioning equipment.

The facility will be within an 80m² compound area, enclosed by a 2.4m chain-link security fence. The total height of the facility, including antennas and ancillary equipment, will be no taller than 38.3m above the natural ground level.

1.3. Description of the site

Land is legally described as Lot 100 DP1178907.

Property address is 54 Jones Road, Wooyung.

Land is zoned Part RU1 Primary Production/Part DM Deferred Matter – 7(k) Habitat Zone.

Land area is 21.235ha.

The property has a whole is constrained by Flood, Bushfire, Acid Sulfate Soils Class 3, High Conservation Value Vegetation and a Cattle Dip Buffer.

The subject lot is a fragmented allotment that supports numerous festivals including ‘Splendour on the Grass’. The portion of the allotment proposed to support the facility is within a cleared portion of the allotment.

2. SUMMARY OF REFERRALS

Referral	Issue
Environmental Health Officer	No objections subject to conditions.
S94 Contributions Officer	No objections subject to conditions.
Consultant Heritage Advisor	No objection. Conditions to apply in relation to cultural heritage
Ecologist	No objections subject to conditions.
Office of Environment & Heritage – National Parks	Original information submitted was deemed insufficient. Information supplied by the applicant in response to this request is considered to satisfy any concerns raised.
Bundjalung (Arakwal)	Original information submitted was deemed insufficient. Re-referral was undertaken. No objection was received by Council.
Tweed Byron Land Council	Original information submitted was deemed insufficient. Re-referral was undertaken. No objection was received by Council.

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 bush fire prone land. The development application is accompanied by a Draft Bushfire Management Plan, Reference No. 003.07.17, prepared by Bushfire Risk Reducers dated July 2017.

Conditions have been included in the Recommendation of this Report requiring that the development must comply at all times with the requirements of the Draft Bushfire Management Plan, Reference No. 003.07.17, prepared by Bushfire Risk Reducers dated July 2017.

EFFECT OF 10/50 RULE ON SIGNIFICANT VEGETATION

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

4.1 State Environmental Planning Instruments

	Satisfactory	Unsatisfactory
State Environmental Planning Policy No 1—Development Standards	☒	☐
Consideration: Where the consent authority is satisfied that the objection is well founded and is also of the opinion that granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3, it may, with the concurrence of the Director, grant consent to that development application notwithstanding the development standard the subject of the objection referred to in clause 6.
State Environmental Planning Policy No 44—Koala Habitat Protection	☒	☐
Consideration: No vegetation removal will occur to facilitate the proposal. The proposal has been assessed by Council’s Ecologist who has determined that the proposal will unlikely adversely impact on any koalas in this locality.
State Environmental Planning Policy No 55—Remediation of Land	☒	☐
Consideration: The subject site is located on undeveloped, cleared land used as a service area for the parklands, approximately 470m northeast of the Pacific Highway. The subject site is bounded by established mature vegetation, and located close to but not within Billinudgel Nature Reserve. A review of the EIS (DEC 2017) for Parklands discovered that a site contamination assessment was conducted on the subject site by EAL Consulting Services on behalf of Parklands as part of the original concept plan for the Festival Site. The assessment included: · A site history review; · Geological and hydrogeological review; site inspection; · Soil and water sampling, including 65 individual soil samples and 1 water samples from the farm dam; and · Analysis of potential contaminants of concern. The assessment found that the Parklands site had been used for low intensity agricultural purposes since at least 1947. Past agricultural use included dairy farming, some cropping for banana (approximately 10 to 12 acres for 3 to 4 year, typically north facing slopes), and some cropping for sugar cane (in low lying areas and, predominantly, cattle grazing. Soil and water samples were analysed for a range of potential contaminants of concern including hydrocarbons, pesticides and heavy metals. The analysis found that contaminate levels were all below the applicable criteria, with the exception of: · Chromium and manganese in some samples; and’ · Total petroleum hydrocarbons (TPH) in one sample near an abandoned car in a forested area. Chromium and manganese are naturally elevated in local soils. The TPH is not located near the proposed Telecommunication Tower. No further investigation is warranted.
State Environmental Planning Policy (Rural Lands) 2008	☒	☐
Consideration: The compound has been sited as close as possible to the lot boundary, allowing for large trucks to pass the compound unimpeded. Because this area hosts large festivals and other events, Optus are willing to coordinate scheduled maintenance activities with Council and North Byron Parklands to minimise conflict. This may be formalised as a condition of development consent. No significant Land use conflicts are envisaged should the development be approved by Council. The proposal will not adversely impact on rural land uses within the immediate locality.
State Environmental Planning Policy (Infrastructure) 2007	☒	☐
Consideration: Development permitted with consent (1) Development for the purposes of telecommunications facilities, other than development in clause 114,[applies to works by public authorities] may be carried out by any person with consent on any land. The SEPP makes the proposed development permissible in any Zone and would over ride any LEP prohibition. The application invokes the SEPP thereby ensuring that there is no uncertainty in regard to the permissibility of the proposed development

4.2A Byron Local Environmental Plan 1988 (LEP 1988)

LEP 1988 is an applicable matter for consideration in the assessment of the subject development application in accordance with subsection 79C(1) of the EP&A Act 1979 because it applies to the subject land and the proposed development. The LEP 1988 clauses that are checked below are of relevance to the proposed development:

Part 1	☒1\| ☒2\| ☒2A\| ☒3\| ☒4\| ☒5\| ☒LEP 1988 Dictionary\| ☒7
Part 2	☒8\| ☒9
Part 3	☐10\| ☐11\| ☐11A\| ☐11B\| ☐12\| ☐13\| ☐14\| ☐15\| ☐16\| ☐17\| ☐17A\| ☐17B\| ☐18\| ☐19\| ☐22\| ☐22\| ☐23\| ☒24\| ☐25\| ☐27\| ☐ 29\| ☐29AA\| ☐29A\| ☐30\| ☐31\| ☐32\| ☐33\| ☐34\| ☐35\| ☐36\| ☐37\| ☐38\| ☒38A\| ☐38B\| ☐39\| ☐39A\| ☐39B\| ☐39C\| ☒40\| ☐41\| ☐42\| ☐43\| ☐44\| ☒45\| ☐46\| ☐47\| ☐47AA\| ☐47A\| ☐48\| ☐49\| ☐51\| ☒52\| ☐53\| ☐54\| ☐55\| ☐56\| ☐ 57\| ☐58\| ☐59\| ☐60\| ☐61\| ☐62\| ☒63\| ☐64
Part 5	\| ☐65\| ☐66\| ☐67\| ☐68\| ☐69\| ☐70\| ☐71\| ☐72\| ☐73\| ☐74\| ☐75\| ☐76\| ☐77\| ☐78\| ☐79\| ☐80\| ☐81\| ☐82\| ☒83\| ☐84\| ☐85\| ☐86\| ☐87\| ☐88\| ☐89\| ☐90\| ☐91\| ☐92\| ☐93\| ☐94\| ☐95\| ☐96\| ☐97\| ☐98\| ☐99\| ☐100\| ☐101

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

a) The proposed development is defined in the LEP 1988 Dictionary as a ‘utility installation’;

b) Whilst the land has multiple land use zones, the proposed structure will be wholly located within the 7(k) Habitat Zone under LEP 1988;

c) The proposed development is made permissible by the Infrastructure SEPP; and

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

Zone Objective

Consideration

The objectives are:

a) To identify and protect significant vegetation and wildlife habitats for conservation purposes;

b) To prohibit development within the zone that is likely to have a detrimental effect on the wildlife habitats which exist;

c) To enable the carrying out of development which would not have a significant detrimental effect on the wildlife habitats; and

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

The 7K zone identifies and protects significant vegetation; the general area around the Optus site is acknowledged to retain environmental significance based on Council policy and Optus’ own environmental assessments, and is therefore appropriately zoned.

The Optus proposal does not prevent this area from being identified ‘significant’ – the area will still retain its significance after the facility has been constructed. Further, the proposal does not conflict with the objective of protecting the area, since the subject site is on land that has been previously disturbed, with minimal environmental impact.

What clause does the development not comply with and what is the nature of the non-compliance?	Further consideration, including whether the development application is recommended for approval or refusal accordingly
Clause 40 (2)(b)(ii)- (1) The Council must not consent to the erection of any building if the vertical distance between the topmost part of the building and the existing ground level below exceeds 9 metres.	The proposed maximum height inclusive of ancillary antennae and dishes of 38.5m. As such, further discussion is detailed below:

Clause 40 – Height of buildings

Subclause 40(2)(b)(ii) of LEP 1988 states that ‘Council must not consent to the erection of any building if the vertical distance between the topmost part of the building and the existing ground level below exceeds 9 metres’.

The LEP map indicates that the site is zoned 7(k) Habitat zone with the proposed utility installation having a maximum height of 38.5m, a variation of approximately 425% to the 9m height restriction.

Accordingly, the development application does not meet the 9m building height requirement and the DA is supported by an objection pursuant to SEPP 1. The Land Environment Court judgment in Wehbe v Pittwater Council [2007] identified requirements needed in order to uphold a SEPP 1 objection, and these are addressed in the circumstances of this particular case as follows:

Is the requirement a development standard?

The 9m building height requirement is a development standard as defined by section 4 of the Environmental Planning and Assessment Act 1979, because it is a provision of an environmental planning instrument in relation to the carrying out of development, being a provision by or under which requirements are specified and standards are fixed in respect to the maximum height of a building.

Is the objection in writing, is it an objection “that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case” and does it specify “the grounds of the objection”?

The development application is accompanied by an objection in writing. It is an objection that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and specifies the grounds of the objection as follows:

‘This proposal is in response to an established community need for improved mobile coverage in the Wooyung area. Optus have a discrete and specific area (the area around and including North Byron Parklands) within which coverage is to be improved by establishing a new telecommunications facility.

There is a technical requirement for telecommunications facilities to protrude above the surrounding environment to function correctly. In order to achieve Optus’ coverage objectives, this facility needs to be at its current proposed height. A shorter tower would be blocked by surrounding vegetation and terrain, meaning it would not work.

· Optus cannot achieve a feasible level of coverage in this location, or any alternate site in the vicinity, without exceeding Council height limits. Council’s policies are designed to prevent inappropriately tall buildings being constructed; the policy is not responsive to the technical needs of telecommunications infrastructure, or the actual amenity impacts of the development;

· All of the potential sites in North Byron Parklands would require a protrusion above the 9m height limit. Because this protrusion cannot be avoided, Optus have selected a site where amenity impacts resulting from the protrusion can be minimised, while still ensuring a feasible technical outcome.

· From a visual amenity perspective, this site is considered highly favourable.

- There is very little development in the area. There is one residence approximately 240m west of the site, which is oriented away from the Optus facility; the next closest residences are over 1.5km east;

- The facility is located in a heavily vegetated, hilly area well screened from passing traffic on Jones Road; and

- The facility will have a visual presence from within North Byron Parklands. This is unavoidable given the nature of the use; however the North Byron Parklands owners, who are likely to be most affected, are supportive of the project. For visitors to the Parklands, and festivalgoers, the visibility of the facility is unlikely to adversely impact their experiences at the venue – especially as their presence onsite is transient, and only a handful of events are held each year.

We acknowledge Council’s policy is designed to protect the visual amenity of the local community. In this case there are very few community members whose amenity could feasibly be impacted, and the facility is well hidden from these perspectives.

It is an established principle that telecommunications carriers seek out rural and industrial areas for deployment of new infrastructure, if possible, over residential areas or community spaces. This site is in a rural area. While the facility will contravene Council’s height limit for the area, Optus consider there is both technical need, and sufficient planning merit, for the variation to be allowed’.

Is “the objection well founded” and will “granting of consent to the development application be consistent with the aims of SEPP 1 as set out in clause 3”?

An objection under SEPP 1 may be well founded and be consistent with the aims set out in clause 3 of the Policy in one of a variety of ways (according to the above mentioned judgment). These are:

1. ‘Compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard.

2. The underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary.

3. The underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable.

4. The development standard has been virtually abandoned or destroyed by the Council’s own actions in granting consents departing from the standard and hence compliance with the standard is unreasonable and unnecessary.

5. The zoning of particular land was unreasonable or inappropriate so that a development standard appropriate for that zoning was also unreasonable or unnecessary as it applied to that land and compliance with the standard in that case would also be unreasonable or unnecessary’.

In the subject case, compliance with the development standard is unreasonable and unnecessary because the objectives of the development standard were created at a date in time that facilities such as these were not in existence or the purpose of mobile phone coverage. The technical needs of a functional mobile telecommunications network are such that they need height to work. In this regard, compliance with this objective would ensure the proposal was ineffective and thus is considered unreasonable. Further:

a) This proposal is in response to an established community need for improved mobile coverage in the Wooyung area. Optus have a discrete and specific area (the area around and including North Byron Parklands) within which coverage is to be improved by establishing a new telecommunications facility;

b) The surrounding trees exceed 9m in height, meaning the actual protrusion of the tower above the surrounding landscape is much lower than the numbers would suggest. The standard fails to account for existing landscape features;

c) Strict compliance with Council’s height limits would prevent new telecommunications facilities from being deployed in much of Byron Shire. Optus and other mobile carriers would be unable to deliver an effective service to the community, with significant social, economic and public safety implications; and

d) There is a precedent for telecommunications facilities to be installed in areas subject to a height restriction in Byron Shire, provided they can be justified appropriately on town planning grounds. Some examples include the 35m Optus monopoles at 8 Grevillea Street, Byron Bay (DA10.2008.425.1) and Byron Golf Club, 62 Broken Head Road, Byron Bay (DA 10.2011.325.1). While these sites are obviously in very different environments to this proposal, both were progressed under the 1988 LEP and deemed to be appropriate on planning grounds, despite exceeding a 9m height restriction.

Given the above, it is considered that the SEPP 1 objection is well founded notwithstanding non-compliance with the development standard and it is recommended that the SEPP 1 objection be upheld.

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

1. Draft State Environmental Planning Policy (Coastal Management) 2016 (CM SEPP). The proposal is unlikely to conflict with this Policy.

· Category 1 – works that require development consent; and

· Category 2 – works that may be carried out without development consent.

The proposal is unlikely to conflict with this Policy.

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

DCP 2010 is an applicable matter for consideration in the assessment of the subject development application in accordance with subsection 79C(1) of the EP& A Act 1979 because its purpose is to provide planning strategies and controls for various types of development permissible in accordance with LEP 1988. The DCP 2010 Chapters/Parts that are checked below are of relevance to the proposed development:

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

These checked Chapters/Parts 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. The proposed development is demonstrated to meet the relevant Objectives of DCP 2010 (in some cases subject to conditions and/or to the satisfaction of other assessing officers).

4.5 Any Planning Agreement or Draft Planning Agreement?

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

4.6 Environmental Planning and 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	Yes	Yes	Yes
94	No	N/A	N/A
94A	No	N/A	N/A

4.7 Any coastal zone management plan?

	Satisfactory	Unsatisfactory	N/A
Is there any applicable coastal zone management plan?	☐	☐	☒

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.
Social Environment	No. The proposal will not have a significant social impact on the locality.
Economic impact	No. The proposal will not have a significant economic impact on the locality.

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

Council Policy	Consideration
Management of Contaminated Land Policy	Considered acceptable.

4.9 The suitability of the site for the development

The proposed telecommunications tower is appropriately sited on a cleared portion of land that is utilised for numerous festivals and will provide telephone reception in a commonly known ‘blackspot’ area.

4.10 Submissions made in accordance with this Act or the regulations

The development application was publicly exhibited with two (2) submissions being received by Council. An outline of these submissions is detailed below:

1) No Community Consultation – ‘According to the DA the proposal for the OMT has been in the pipeline for almost 12 months. Despite this, there has been no community consultation with residents of Jones Road from the proponent (Optus) or the landowner (North Byron Parklands)’.

Planner’s Comment

The proponent is not required to consult with residents prior to lodgement of the application. The application was placed on Level 2 notification and residents are permitted to lodge submissions up to the point an application is determined. Two (2) submissions only were received by Council.

It is considered that the community has been reasonably consulted with.

2) Concerns of impacts by electromagnetic fields on fauna species and the 7(k) habitat zone

Planner’s Comment

The proposal does not involve vegetation clearing. Information supplied by the applicant considered potential impacts on bats and was found to be considered satisfactory by Council’s Ecologist. Conditions have been supplied by Council’s Environmental Health Officer in relation to electromagnetic impacts and was further considered by Council’s Ecologist.

3) Fire Hazard Area – ’It is our understanding that telecommunication towers have been known to ignite and cause fires.

Planner’s Comment

The applicant has proposed a site layout and facilities to avoid clearing for an APZ, as well as upgrade the housing unit to Flame Zone standard. The bushfire consultant’s report also satisfactorily demonstrates that the tower itself and associated facilities would not increase bushfire risk to surrounding natural areas.

4) Festival Site – ‘Over the past 5 years during festival events, NBP have provided ‘Cell On Wheels’ (Optus, Telstra & Vodaphone) to cater for the patrons, staff and emergency services on site. Our family utilizes Optus as a provider, which is reliable and not an issue. We understand, however, that the Yelgun Valley & Crabbes Creek areas have poor mobile phone reception.

Planner’s Comment

The proposal will provide service to an area with a telecommunications blackspot.

5) Alternate Locations – ’Optus needs to investigate alternate sites located outside areas identified as ‘Extreme Fire Risk’. For example, there may be areas in the north of the Parklands site or alternatively on the western side of Tweed Valley Way which could potentially supply the festival site as well as the Yelgun Valley and Crabbes Creek communities.

Planner’s Comment

It is clear from the previous submission comment that there is a significant need for this service within this area. There is not a better location that one that does not require vegetation removal.

6) Power Supply – ‘We have lived on Jones Road for 39 years. Our property is at the very end of the power supply. During this time, our power supply has often been affected, i.e. black outs, power shortages and interferences which has resulted in the loss of electrical equipment. We are concerned that our electricity supply could become even more problematic, if the MOT is approved for this location.

Planner’s Comment

Whilst power supply is matter for some consideration, it would be apparent that the matters involving the submission author’s power supply is a matter for their power supply company.

7) Aesthetics – ‘The installation of a 35 metre MOT is not in keeping with the surrounding rural environment and is contrary to the values of the Marshalls Ridge wildlife corridor and the adjacent Billinudgel Nature Reserve’.

Planner’s Comment

Additional studies were undertaken by the applicant which has since been reviewed by Council’s Ecologist. The proposal is considered to be more than acceptable and unlikely to adversely impact on the values of the wildlife corridor or the Billinudgel Nature Reserve.

Given the above, it is determined that the concerns raised by submission authors have been considered within the assessment of this application.

4.11 Public interest

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

4.12 Section 5A of the EP&A Act 1979 – Significant effect on threatened species

Having regard to sections 5A, 5C and 5D of the EP&A Act 1979, 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 as the proposal does not involve the removal of vegetation. In addition, the applicant provided a flora and fauna report which offered particular attention to microchiropteran bats. Given the location of the tower within a cleared area, and the extent of any potential harm being reduced by no roosts or hollows/caves being affected which are used for breeding, the proposal does not impact on bats.

4.13 Section 5B of the EP&A Act 1979 – 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

No Section 64 levies will be required.

5.2 Section 94 Contributions

Section 94 Contributions will be payable.

Disclosure of Political Donations and Gifts

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

Provide Disclosure Statement register details here: Nil.

6. CONCLUSION

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.15

Report No. 13.15 PLANNING - DA. 10.2017.588.1 - Demolition of cottage; construction of four (4) storey mixed-use building comprising: ground floor commercial, two (2) levels of hotel and motel accommodation with basement parking,roof top swimming pool with raised roof deck, covered amenties and open bar at 4 Marvell Street Byron Bay

Directorate: Sustainable Environment and Economy

Report Author: Patricia Docherty, Planner

File No: I2018/418

Theme: Ecology

Development and Approvals

Proposal description:	Demolition of existing building and construction of a four (4) storey mixed use development comprising of restaurant, bar, shops, motel accommodation, roof top pool, bar and amenities block with basement car parking
Property description:	LOT: B DP: 325834
Property description:	4 Marvell Street BYRON BAY
Parcel No/s:	50260
Applicant:	Ardill Payne & Partners
Owner:	Marvell Street Investments Pty Ltd
Zoning:	B2 Local Centre
Date received:	19 October 2017
Integrated Development:	Yes - Office of Water
Public notification or exhibition:	- Level 2 advertising under DCP 2014 Part A14 – Public Notification and Exhibition of Development Applications - Exhibition period: 09/11/2017 - 22/11/2017 - Submissions received: No submissions
Planning Review Committee:	22/02/2018
Delegation to determination:	Council – Clause 4.6 variation
Issues:	Site constraints Acid Sulfate Soils – Class 3 Flood Prone Land Groundwater Byron LEP 2014 · Clause 4.3 Height of buildings · Clause 4.4 Floor space ratio · Clause 4.6 Exceptions to development standards · Clause 6.6 – Essential Services Byron DCP 2014 · B2 Preservation of Trees and Other Vegetation · Chapter B4 Traffic Planning, Vehicle Parking, Circulation and Access · B4.2.2 Parking Layout Standards · B4.2.3 Vehicle Access and Manoeuvring Areas · B4.2.5 Car Parking Requirements · B4.2.9 Loading Bays · B4.2.12 Parking Schedules · Chapter B8 Waste Minimisation and Management · B8.3.3 Bin Sizes and Collection Measures · Chapter B12 – Social Impact Assessment · B12.1.3 Application of this Chapter · B12.2 Qualifications for Conducting a Social Impact Assessment · Chapter D3 Tourist Accommodation · D3.2.4 Character and Design in Business and Mixed Use Zones · Chapter D4 Commercial and Retail Development · D4.2.1 Design Character of Retail and Business Areas. · Section D4.2.2 – Design Detail and Appearance. · D4.2.10 Restaurants, Cafes, Small bars, Pubs Registered Clubs, Function Centres and other Licensed Premises in the Urban Areas of Byron Shire Noise impacts – noise report and operational plan not provided Dewatering - insufficient information to clarify need for permanent dewatering associated with basement parking

Summary:

Development consent is sought for demolition of existing building and construction of a four (4) storey mixed use development comprising of restaurant, bar, shops, motel accommodation, roof top pool, bar and amenities block with basement car parking.

The proposed development is inconsistent with provisions of the Byron LEP 2014 and DCP 2014. The proposed development contravenes Council’s adopted development standards and controls without sufficient justification under both Byron LEP 2014 and Byron DCP 2014. In particular the proposal includes a fourth storey roof top bar, whilst inadequate car parking and access arrangements are provided within the development. The proposed development if approved would set an undesirable precedent within the Byron Bay Town Centre and is not in the public interest.

It is recommended that Development Application No.10.2017.588.1 be refused for the reasons outlined in this report.

NOTE TO COUNCILLORS:

RECOMMENDATION:

That Pursuant to Section 80 of the Environmental Planning & Assessment Act 1979, development application no. 10.2017.588.1 for demolition of existing building and construction of a four (4) storey mixed use development comprising of restaurant, bar, shops, motel accommodation, roof top pool, bar and amenities block with basement car parking, be refused for the following reasons:

a) Pursuant to Section 79C (1)(a)(i) of the Environmental Planning and Assessment Act 1979, the proposed development does not comply with Clause 4.3 Height of buildings which sets a maximum height of 11.5 metres.

b) Pursuant to Section 79C (1)(a)(i) of the Environmental Planning and Assessment Act 1979, the written request accompanying the proposed development fails to comply with clause 4.6 of Byron Local Environmental Plan 2014. Insufficient justification has been provided to demonstrate that compliance with height of building development standards is unreasonable or unnecessary or that there are sufficient environmental planning grounds to justify contravening the standard or that the proposed development is in the public interest.

c) Pursuant to Section 79C (1)(a)(i) of the Environmental Planning and Assessment Act 1979, the proposed development does not comply with clause 6.6 of Byron Local Environmental Plan 2014 which requires development consent must not be granted to a development unless suitable vehicular access has been provided in relation to waste collection vehicles.

d) Pursuant to Section 79C (1) (a) (iii) of the Environmental Planning and Assessment Act 1979, the proposed development does not comply with Byron Development Control Plan 2014, for the following reasons:

• B2 Preservation of Trees and Other Vegetation

• Chapter B4 Traffic Planning, Vehicle Parking, Circulation and Access

• B4.2.2 Parking Layout Standards

• B4.2.3 Vehicle Access and Manoeuvring Areas

• B4.2.5 Car Parking Requirements

• B4.2.9 Loading Bays

• B4.2.12 Parking Schedules

• Chapter B8 Waste Minimisation and Management

• B8.3.3 Bin Sizes and Collection Measures

• Chapter B12 Social Impact Assessment

• B12.1.3 Application of this Chapter

• B12.2 Qualifications for Conducting a Social Impact Assessment

• Chapter D3 Tourist Accommodation

• D3.2.4 Character and Design in Business and Mixed Use Zones

• Chapter D4 Commercial and Retail Development

• D4.2.1 Design Character of Retail and Business Areas

• D4.2.2 Design Detail and Appearance

• D4.2.10 Restaurants, Cafes, Small bars, Pubs Registered Clubs, Function Centres and other Licensed Premises in the Urban Areas of Byron Shire

e) Pursuant to the provisions of Section 79C (1)(b) of the Environmental Planning and Assessment Act 1979 insufficient information has been provided to demonstrate that the development will have no significant environmental impacts on both the natural and built environments, and social and economic impacts in the locality, in relation to:

· excessive height;

· noise impacts;

· operational management; and

· site dewatering requirements over the life of the development.

f) Pursuant to the provisions of Section 79C (1)(c) of the Environmental Planning and Assessment Act 1979, the site is not considered suitable for the development as proposed, as there is insufficient information to demonstrate that sufficient space is available to accommodate essential vehicle access for garbage collection on site.

g) Pursuant to the provisions of Section 79C (1)(e) of the Environmental Planning and Assessment Act 1979, approval of a development which contravenes Council’s adopted development standards and development controls without sufficient justification may set an undesirable precedent and is not in the public interest.

Attachments:

1 DA Plans 180305_4Marvell_Rev-G, E2018/27584 ⇨

Assessment:

1. INTRODUCTION

1.1. History/Background

5.1993.135.1 – Change of use - Approved 28/04/1993

5.1998.99.1 – Commercial development – addition to treatment room - Approved 15/05/1998

6.1993.2185.1 – Alteration of dwelling to consulting room - Approved 06/05/1993

6.1997.2678.1 – Addition/alteration to dwelling - Approved 09/07/1998

22.2017.15.1 – Development advice panel 15/08/2017n - proposal the subject to this assessment report. (Refer to minutes at Trim Doc #A2017/20894)

1.2. Description of the proposed development

This application seeks approval for demolition of an existing building and construction of a four (4) storey mixed use development comprising of basement parking, restaurant, bar, shops, 24 hotel rooms, roof top pool, bar and amenities block. All five (5) levels accessible by lift.

Extract of Site Plan Drawing 1.0 Revision G, Prepared by Harley Graham Architects Dated 1 March 2018

Development plans propose the following:

Level 0	Basement car parking, storage, 36 m² dewatering station. The entrance to basement car park off Marvel Lane is designed to the flood planning level and a flood gate barrier proposed to be activated in the event of flooding; to prevent water entering the basement levels of the proposed building. Gross floor area on this floor is nil.
Level 1	Ground floor retail, hotel lobby, bar and restaurant, manager residence, toilets and outdoor dining in an onsite ‘public space area’, connecting Marvel Street and Marvel Lane. Access to a loading/waste area and basement car park off Marvel Lane. Bicycle store (28 bikes) in the onsite ‘public space’ area. Gross floor area on this level is 360 m²
Level 2	12 Hotel Rooms with balconies. Gross floor area on this level is 465 m²
Level 3	12 Hotel Rooms with balconies. Gross floor area on this level is 465 m²
Level 4	Roof top pool, bar and amenities block. Gross floor area on this level is 57 m²

Extract of elevations Drawing 2.1 Revision G, Prepared by Harley Graham Architects Dated 1 March 2018

1.3. Description of the site

Land is legally described as	LOT: B DP: 325834
Property address is	4 Marvell Street BYRON BAY
Land is zoned:	B2 Local Centre
Land area is:	1,012m²
Property is constrained by:	Acid Sulfate Soils (Class 3) – The proposed development involves works more than 1 metre below the natural ground surface.
	Flood Prone Land - The 2050, 100yr storm event, Flood Planning Level for this site is 3.44m AHD.

Site boundary of subject lot

1. Existing cottage at 4 Marvel Street to be demolished;

2. Existing cottage with adjoining side wall of commercial building on boundary of 6 Marvel Street

3. Property boundary adjoining side wall of ‘‘Vinnies’ building at 2 Marvel Street

4. Existing car park located off Marvel Lane – roof of ‘Vinnies’ building behind parked cars

5. Front of adjoining 3 storey building - 6 Marvel Street with architectural roof feature 11.1 m high

6. Rear of adjoining 3 storey building - 6 Marvel Street – 10.1 m high on the south elevation both (10.2004.732.1)

7. Existing 2 Storey buildings on northern side of Marvel Street opposite site

8. Marvel Street - 3 storey commercial and tourist accommodation approved 2000 (DA.10.2000.368.1)

9. Streetscape Marvel Lane / Keesing Lane

10. Existing laneway frontage - English Language School located behind site on Keesing Lane

11. Existing 3 storey backpackers accommodation – Max height approved is 10.88 metres (DA.10.2015.505.1)

12. Existing 2 storey English language school to north of Marvel Lane

2. SUMMARY OF REFERRALS

Referral	Issue
Environmental Health Officer	Not supported. *REASONS FOR REFUSAL* 1. The application fails to demonstrate compliance with Byron Development Control Plan 2014 Section D4.2.10 as it did not include a Noise Report required for developments operating after 6pm. 2. The application fails to demonstrate that environmental impact of the proposed development are consistent with the public interest having regard to noise and disturbance for neighbouring residents. 3. The application fails to demonstrate the likely environmental impact of the proposed development by failing to provide sufficient information regarding 4. The application fails to demonstrate that environmental impact of the proposed development are consistent with the public interest by failing to provide sufficient information regarding site dewatering requirements over the life of the development.
Development Engineer	Not supported. The application has not provided sufficient car parking spaces in accordance with DCP 2014 Chapter B4 requirements. Insufficient justification has been submitted to vary the DCP requirements. Comments have also been provided to discuss inadequate access for garbage collection. *Reasons for Refusal* 1. Essential Services Car Parking The applicant has not provided acceptable justification or adequate data to vary Council DCP 2014 Chapter B4 car parking requirements. Therefore, the development does not comply with Council requirements. In addition, proposed disabled parking in not in accordance with AS2890.1 requirements. Modifying car park layout to incorporate disabled parking would result in an increased non-compliance. Service Area Inadequate access has been provided for skip bin collection by front end loading garbage trucks. In accordance with DCP 2014 Chapter B8.3.3 prescriptive measures the SWMMP and DA submission must illustrate on a site plan the proposed bin locations and pick up vehicle access and manoeuvring. While Council requested a Waste Minimisation Plan this was not submitted. When skip bins are presented for collection there is not sufficient room within the laneway for a FEL to manoeuvre into position for bin collection. In the unlikely event the FEL can manoeuvre into position the vehicle will extend approximately 4m into the laneway, effectively blocking off the lane during collection. In addition, in accordance with DCP 2014 Chapter B8...3.3 where collection vehicles are required to enter a site to collect bins the layout must be designed to ensure collection vehicles enter and leave in a forward direction. This has not been provided.
S64 / Systems Planning Officer	No objections subject to conditions.
S94 / Contributions Officer	Council’s Section 94 Contributions Officer has provided the following comments. The applicant has not proposed a VPA to address the shortfall in parking on the site. The proposed development has both a commercial / tourist accommodation and a permanent residential component. The managers residence would us part of the existing credit for a dwelling on the lot. The remainder of the development would be subject to the S94A levy.
Resource Recovery Officer	Applicant has failed to provide sufficient information demonstrating that manoeuvring areas are available for garbage collection from the rear lane.
Department of Primary Industries – Office of Water	No objections subject to the following advice was provided on 21 March 2018: … we agree that de-watering for construction purposes at the site of the proposed development would likely involve minor volumes. WaterNSW are the approval body with responsibility to license groundwater extraction. However minor dewatering as described in the letter attached, does not require a license unless the volume of water extracted is likely to exceed 3ML/year. Both DoIW and WaterNSW offer their sincere apologies for this very late response. I would appreciate it if you could ensure the proponent receives a copy of the advice in the attached letter. The letter provided advice as follows: The application proposes basement parking which may possibly trigger the need for dewatering. Any take of water as a result of minor temporary dewatering activities that is estimated to be less than 3 megalitres per year (3ML/yr) will generally not require a licence or approval from WaterNSW [Grafton Office (02) 6641 6500]. It is the applicant’s responsibility to assess and monitor water take and impacts, and to advise WaterNSW if they exceed these conditions, at which time a licence must be obtained. The applicant must also meet all requirements of other agencies and consent authorities as per usual. If it is the applicant’s estimation that water take will exceed 3ML/yr then they must apply for a licence under Part 5 of the Water Act 1912 prior to commencing the activity. NOTE: Neither DoIW nor WaterNSW support permanent dewatering of basement car parking. It is the applicant’s responsibility to determine whether this outcome would be likely and the basement be made waterproof to avoid the need for permanent dewatering.

3. SECTION 79BA – 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 55—Remediation of Land	☒	☐
Consideration: A Preliminary Contaminated Site Investigation Report prepared by Ardill Payne and Partners dated October 2017 has been submitted in support of the application. Based on an assessment of historic land use and analysis of soil samples taken from the site, the report concludes that the potential for soil contamination is low and the site is suitable for its intended use.
State Environmental Planning Policy No 64—Advertising and Signage	☒	☐
Consideration: The application does not include any signage proposals. Signage would therefore be subject to separate applications in the future.
State Environmental Planning Policy No 71—Coastal Protection	☒	☐
Consideration: The proposal has no impact on public access to the coastal foreshore and will not result on overshadowing of any foreshore area. No effluent is proposed to be disposed other than to Council’s sewerage system. The property is not likely to be detrimentally impacted by coastal process or hazards. The proposed development will not impact the scenic qualities of the coast nor any coastal environmental features. Stormwater – A separate approval of the stormwater management plan, including details of the method of treating stormwater runoff would be required.
State Environmental Planning Policy (Infrastructure) 2007	☒	☐
Consideration: The development does not constitute traffic generating development as defined in this SEPP. No other provisions of the SEPP are applicable.
State Environmental Planning Policy (State and Regional Development) 2011	☒	☐
Consideration: The development does not constitute either state or regional development as defined in this SEPP. Council remains the consent authority for this application.

4.2 Byron Local Environmental Plan 2014 (LEP 2014)

LEP 2014 is an applicable matter for consideration in the assessment of the subject development application in accordance with subsection 79C(1) of the EP&A Act because it applies to the subject land and the proposed development. The LEP 2014 clauses that are checked below are of relevance to the proposed development:

Part 1	☒1.1\| ☒1.1AA\| ☒1.2\| ☒1.3\| ☒1.4\| ☒Dictionary\| ☒1.5\| ☒1.6\| ☒1.7\| ☒1.8\| ☐1.8A\| ☒1.9\| ☐1.9A
Part 2	☒2.1\| ☒2.2 \| ☒2.3 \|☒Land Use Table \| ☐2.4 \| ☐2.5 \| ☐2.6 \| ☒2.7 \| ☐2.8
Part 3	☐3.1\| ☐3.2\| ☐3.3
Part 4	☐4.1\| ☐4.1A\| ☐4.1AA\| ☐4.1B \|☐4.1C\| ☐4.1D\| ☐4.1E\| ☐4.2\| ☐4.2A\| ☐4.2B\| ☐4.2C\| ☐4.2\|☒4.3\|☒4.4 \|☒4.5 \| ☒4.6
Part 5	☐5.1\| ☐5.2\| ☐5.3\| ☐5.4\| ☒5.5\| ☐5.6\| ☐5.7\| ☐5.8\|☐5.9\| ☐ 5.9AA\| ☒5.10\| ☐5.11\| ☐5.12\| ☐5.13
Part 6	☒6.1\| ☒6.2\| ☒6.3\| ☒6.4\| ☐6.5\| ☒6.6\| ☐ 6.7\| ☐6.8\| ☐6.9

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

(a) The proposed development is defined in the LEP 2014 Dictionary as mixed use development, including: retail premises (which is a type of commercial premises); restaurant or café (which is a type of retail premises; which is a type of commercial premises); dwelling (in this case, ancillary to hotel or motel accommodation); and hotel or motel accommodation (which is a type of tourist and visitor accommodation).

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

(c) Mixed use development, commercial premises, and tourist and visitor accommodation are all permitted with consent in the B2 zone; and

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

Zone Objectives

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.

· To encourage employment opportunities in accessible locations.

· To maximise public transport patronage and encourage walking and cycling.

· To encourage vibrant centres by allowing residential and tourist and visitor accommodation above commercial premises.

The proposed use of the land is compatible with the objectives of the zone.

The remaining checked 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. The proposed development complies with all of these clauses (in some cases subject to conditions and/or to the satisfaction of other assessing officers), except in relation to those considered further as follows:

What clause does the development not comply with and what is the nature of the non-compliance?

Further consideration, including whether the development application is recommended for approval or refusal accordingly

Clause 4.3 - Height of buildings

Maximum height limit as shown on the Height of Buildings Map is 11.5 metres.

*building height (or height of building) means:

(a) in relation to the height of a building in metres—the vertical distance from ground level (existing) to the highest point of the building, or

(b) in relation to the RL of a building—the vertical distance from the Australian Height Datum to the highest point of the building,

including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like.

ground level (existing) means the existing level of a site at any point.

4.3 Height of buildings

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

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

(b) to ensure the height of buildings complements the streetscape and character of the area in which the buildings are located,

(2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.

It is noted that the Statement of Environmental Effects submitted with the application, inaccurately states that the maximum height of the proposed building is 13.87 metres.

A detailed assessment identifies that the building height is 14.76 metres above the existing ground level, based on:

1. architectural plans prepared by Harley Graham Architects (Revision G, dated 1 March 2018;

2. a survey plan prepared by Canty’s Surveyors, dated 4 July 2016; and

3. the legal definition of building height and ground level (existing), in the NSW Standard Instrument LEP dictionary*

Calculation of building height exceeding the 11.5 metre maximum, is detailed as follows:

Lift overrun:

The uppermost part of the lift overrun shown on plans is +17.780 RL and the existing ground level shown on the survey plan where the lift overrun will be located is 3.02 RL. This means that the maximum proposed building height is 14.76 metres (17.780-3.02). This would require a variation of 3.26 metres or 28.35% above the 11.5 metre development standard.

Roof over pool deck/bar/toilet/change facilities:

The roof over the proposed deck, bar, toilets and change facilities shown on plans is +17.13 RL and the lowest point at existing ground level below, shown on the survey plan is 2.82 RL. This means that this part of the building height is 14.31 metres (17.13-2.82). This would require a variation of 2.81 metres or 24.43% above the 11.5 metre development standard.

Pool deck level:

The pool deck level shown on plans is +14.940 RL and the lowest point at existing ground level below shown on the survey plan is 2.85 RL. This means that this part of the building height is 12.09 metres (14.940-2.85). This would require a variation of 0.59 metres 5.13% above the 11.5 metre development standard.

Remainder of the roof over hotel/motel is below the 11.5 metre height limit:

The lower roof section shown on plans is +13.44 RL and the lowest point of the existing ground level below, shown on the survey plans is 2.78 RL. This means that this part of the building height is 10.66 metres (13.44-2.78).

The development should be refused, because the proposed variation to the height of building development standard fails to meet the objectives of Clause 4.3. Specifically in relation to:

An assessment of existing approved buildings in this part of Byron Bay Town Centre (see images and comments in section 1.2 above) clearly demonstrates that the proposed 4 storey building that exceeds the height of building development standard by 28.35% at the highest point and 24.43% along the eastern boundary, fails to ensure that height of buildings complements the character of the area in which the buildings are located.

The extent of the height variation fails to minimise visual impact, privacy and loss of solar access to existing development. Potential amenity issues are likely to arise with the use of the rooftop as a bar area.

Clause 4.4 - Floor space ratio

Maximum floor space ratio for a building on the subject site is not to exceed 1.3:1 as shown on the Floor Space Ratio Map.

4.4 Floor space ratio

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

(a) to ensure that new buildings are appropriate in relation to the character, amenity and environment of the locality,

(b) to enable a diversity of housing types by encouraging low scale medium density housing in suitable locations,

(d) to regulate density of development and generation of vehicular and pedestrian traffic,

(e) to set out maximum floor space ratios for dual occupancy in certain areas.

(2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.

(2A) Despite subclause (2), the maximum floor space ratio for dual occupancies on land in Zone R2 Low Density Residential is 0.5:1.

The total area of the subject allotment is 1,012m². The maximum permissible gross floor area on this site is 1,315.6m² (1.3x1,012).

It is noted that the Statement of Environmental Effects submitted with the application, inaccurately states that the Gross Floor Area (GFA) for this development is 1,434m², which is 118.4m² more than the permissible GFA and an FSR variation of 9%.

Based on the LEP definition of Gross Floor Area*, Council has assessed that the building is calculated at 1,347 m², which is 31.4 m² more than the permissible FSR and a lesser variation of 2.4 %.

*gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes:

(a) the area of a mezzanine, and

(b) habitable rooms in a basement or an attic, and

but excludes:

(d) any area for common vertical circulation, such as lifts and stairs, and

(e) any basement:

(i) storage, and

(ii) vehicular access, loading areas, garbage and services, and

(f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and

(g) car parking to meet any requirements of the consent authority (including access to that car parking), and

(h) any space used for the loading or unloading of goods (including access to it), and

(i) terraces and balconies with outer walls less than 1.4 metres high, and

(j) voids above a floor at the level of a storey or storey above.

The FSR variation is considered to be relatively minor in the context of land zoned

Clause 4.6 - Exceptions to development standards

Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument.

The application seeks to vary the 11.5m building height development standard and the 1.3:1 floor space ratio development standard.

This would require a variation of 3.26 metres or 28.35% above the 11.5 metre development standard and a variation of 31.4 m² or 2.4 % more than the permissible FSR development standard.

The proposed development should be refused because it provides insufficient justification for variation to the height of building development standard.

The information submitted by the applicant to seek a variation to the development standards is inaccurate and contains miscalculations that understate the height of building. The assessing officer considers that Council would not be satisfied that:

a) the Applicant’s written request under Clause 4.6 of BLEP 2014 has adequately addressed the following matters required to be demonstrated:

i. that compliance with the height of building development standard is unreasonable or unnecessary in the circumstances of the case, and

ii. that there are sufficient environmental planning grounds to justify contravening the height of building development standard.

iii. the proposed development will be in the public interest.

b) The extent of the exceedence of the proposed development does not ensure:

· that height of buildings complements the character of the area in which the buildings are located.

· that height of buildings minimise visual impact, privacy and loss of solar access to existing development.

Clause 6.6 Essential Services

The proposed development should be refused because Council is not satisfied that adequate arrangements have been made for suitable vehicle access that is essential for the development including waste collection arrangements and the appropriate number of car parking spaces including disabled accessible car parking that is fully compliant with not in accordance with AS2890.1.

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

Draft SEPP (Coastal Management) 2016

The draft SEPP proposes to replace SEPP 14 (Coastal Wetlands), SEPP 26 (Littoral Rainforest) and SEPP 71(Coastal Protection). It will redefine the current ‘Coastal Zone’, to be within four coastal management areas:

· coastal wetlands and littoral rainforests area

· coastal environment area;

· coastal use area; and

· coastal vulnerability area.

The subject site will be mapped within the coastal use area. The proposed development is not in a wetland, littoral rainforest, coastal environment area or coastal vulnerability area. The proposed amendments to the consent do not raise any specific issues that apply to the coastal use area provisions under the draft SEPP.

4.4 Byron Shire Development Control Plan 2014 (DCP 2014)

DCP 2014 is an applicable matter for consideration in the assessment of the subject development application in accordance with subsection 79C(1) of the EP& A Act because it applies to the land to which LEP 2014 applies. The DCP 2014 Parts/Chapters that are checked below are of relevance to the proposed development:

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

These checked Parts/Chapters have been taken into consideration in the assessment of the subject development application in accordance with subsection 79C(1) of the EP&A Act. The proposed development complies with all sections of these Parts/Chapters (in some cases subject to conditions and/or to the satisfaction of other assessing officers), except in relation to certain prescriptive measures which are considered further (having regard to the DCP 2014 Section A1 Dual Path Assessment) as follows:

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.

B2 Preservation of Trees and Other Vegetation

There are no specific objectives in this section.

The application identifies the location and species of 9 trees to be removed. It is noted that 3 trees on the street frontage are to be retained.

The application did not provide sufficient information to assess the impact of the proposed removal of 9 trees.

Council cannot be satisfied that the proposed removal of trees is in accordance with the DCP.

N/A There is no performance criteria within this chapter.

Chapter B4 Traffic Planning, Vehicle Parking, Circulation and Access

B4.2.2 Parking Layout Standards

B4.2.3 Vehicle Access and Manoeuvring Areas

B4.2.5 Car Parking Requirements

B4.2.9 Loading Bays

B4.2.12 Parking Schedules

The applicant has not provided acceptable justification or adequate data to vary Council DCP 2014 Chapter B4 car parking requirements. Therefore, the development does not comply with Council requirements.

Council’s Development Engineer reviewed the application against the DCP requirements and further undertook a merit based assessment.

The total number of spaces proposed fails to satisfy the minimum required.

In addition, proposed disabled parking in not in accordance with AS2890.1 requirements. Modifying car park layout to incorporate disabled parking would result in an increased non-compliance.

N/A There is no performance criteria within this chapter.

Chapter B8 Waste Minimisation and Management

B8.3.3 Bin Sizes and Collection Measures

No. The proposal fails to:

· ensure adequate provision is made for collection and transport of waste, commensurate with the development’s scale, nature and potential for waste generation.

· demonstrate that the design and provision of waste collection, storage and transport facilities does not create significant adverse impacts on the amenity of the surrounding locality.

Service Area

Inadequate access has been provided for skip bin collection by front end loading garbage trucks. In accordance with DCP 2014 Chapter B8.3.3 prescriptive measures the SWMMP and DA submission must illustrate on a site plan the proposed bin locations and pick up vehicle access and manoeuvring. While Council requested a Waste Minimisation Plan this was not submitted.

When skip bins are presented for collection there is not sufficient room within the laneway for a FEL to manoeuvre into position for bin collection. In the unlikely event the FEL can manoeuvre into position the vehicle will extend approximately 4m into the laneway, effectively blocking off the lane during collection.

In addition, in accordance with DCP 2014 Chapter B8..3.3 where collection vehicles are required to enter a site to collect bins the layout must be designed to ensure collection vehicles enter and leave in a forward direction. This has not been provided.

Yes.

The applicant could enter a contractual arrangement with a service provider, however this will not address the prescriptive measures required.

Chapter B12 – Social Impact Assessment

B12.1.3 Application of this Chapter

B12.2 Qualifications for Conducting a Social Impact Assessment

No. The application fails to ensure that social impact assessments are prepared and certified by persons with appropriate qualifications and experience.

A Social Impact Assessment (SIA) will be required for the following:

tourist and visitor accommodation for 50 or more persons.

The applicant stated in the Statement of Environmental Effects that they did not accept that there was a need for a Social Impact Assessment.

The proposal will provide accommodation including 26 x double beds, capable of accommodating 52 visitors at any one time. This also fails to consider the potential for additional guests that may be accommodated in rollaway/sofa-bed arrangements that are expected to be available upon request in the four larger hotel rooms proposed.

The proposal therefore fails to ensure that social impact assessments are prepared systematically and contain the information required to enable objective evaluation of social issues, impacts and management measures and elements for consideration including safety and amenity such as noise.

N/A. There is no performance criteria in this Chapter.

D3.2.4 Character and Design in Business and Mixed Use Zones

No. The open bar on the roof top for use by guests does not 1. To ensure that tourist accommodation in Business … Zones is compatible with the character and amenity of development in the locality where residential development including shop top housing is located and permissible with consent.

No.

Tourist accommodation in Zones B1, B2 and B4 must be compatible in character and amenity with development in the locality. The provisions of the following Sections in Chapter D4 … in the same way they apply to commercial and retail development in Business and Mixed Use zones:

a) Section D4.2.1 – Design Character of Retail and Business Areas.

b) Section D4.2.2 – Design Detail and Appearance.

D4.2.1 – Design Character of Retail and Business Areas.

Council cannot be satisfied the establishment and operation of the rooftop deck and bar would contribute to and not detract from the social and economic robustness, diversity and vitality of retail, business and community areas and precincts.

No.

Development must be compatible with and reinforce the role of the centre in the commercial centres hierarchy. Development within coastal centres must reflect a lowscale, tourist-beach image. Development in rural centres or localities must be compatible with the atmosphere and character of the centre or locality.

Development applications must demonstrate that the establishment and operation of the proposed development will not adversely affect: a) The social and economic robustness, diversity and vitality of retail, business and community areas and precincts. b) The social amenity of the precinct in which it is located. 7. Development applications must demonstrate that the proposed development will be consistent with the requirements of this DCP, including (but not limited to) Chapter B4 Traffic Planning, Vehicle Parking, Circulation and Access, B8 Waste Minimisation and Management, B10 Signage and B11 Planning for Crime Prevention.

Section D4.2.2 – Design Detail and Appearance.

No. the excessive height of the building particularly on the eastern boundary does not ensure that development is compatible with the design and amenity of development in the locality.

No.

The design of new buildings must reflect and enhance the existing character of the precinct. The design, scale, bulk, design and operation of business, commercial and Byron Shire Development Control Plan 2014 – Chapter D4 – Commercial and Retail Development Adopted 26 June 2014 Effective 21 July 2014 8 retail development must be compatible with the streetscape and with the aesthetics, function and amenity of development in the locality.

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 application fails to demonstrate that the restaurants or cafes, and other licensed premises, operating in the urban areas of Byron Shire do not adversely impact upon the amenity of the are and Council cannot be satisfied that they would operate in a manner that does not generate offensive noise or create anti social behaviour.

No.

The application did not include a management plan or a noise report required for developments operating after 6pm.

The application fails to demonstrate that environmental impact of the proposed development are consistent with the public interest having regard to noise and disturbance for neighbouring residents.

Restaurants or cafes, other licensed premises or venues are to be suitably located in relation to residential properties, shop top housing and other development that may be sensitive to offensive noise.

Development applications are to be submitted with sufficient information detailing how the development will be managed in relation to noise, patron behaviour, staffing, crime prevention measures and other operational requirements

The proposed development is recommended for refusal for non compliance with relevant sections of Byron DCP 2014.

4.5 Any Planning Agreement or Draft Planning Agreement?

	Yes	No
Is there any applicable planning agreement or draft planning agreement?	☐	☒
Consideration: The applicant has not prepared a Draft Planning Agreement.

4.6 Environmental Planning & Assessment Regulation 2000 Considerations

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

4.7 Any coastal zone management plan?

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

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

Impact on:	Likely significant impact/s?
Natural environment	No. The proposal will not have a significantly adverse impact on the natural environment of the locality.
Built environment	Yes. The proposal will have a significantly adverse impact on the built environment of the locality having regards to the height of the development and lack of car parking.
Social Environment	No. The proposal will not have a significant social impact on the locality.
Economic impact	No. The proposal will not have a significant economic impact on the locality.

4.9 The suitability of the site for the development

Issue

Comment

Services

- Access

4.10 Submissions made in accordance with this Act or the regulations

The development application was publicly exhibited. There were no submissions made on the development application.

4.11 Public interest

The proposed development contravenes Council’s adopted development standards and controls without sufficient justification and approval will set a precedent for similarly inappropriate development within land zoned B2 Local Centre in Byron Bay Town Centre. The proposed development is not in the public interest.

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 because no high environmental value land is known to be located on the site.

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

Section 64 Levies and S94A Contributions would be payable, should the application be approved.

6. CONCLUSION

The proposed development is not consistent with a range of planning controls under Byron Local Environmental Plan 2014 and Byron Development Control Plan 2014. The proposal is considered to be an overdevelopment of the site and is recommended for refusal.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.16

Report No. 13.16 PLANNING - Development Application No. 10.2017.686.1 - Stage 1: Alterations & Additions to existing dwelling to create two (2) lots strata; Stage 2: two (2) dwellings to create multi-dwelling housing comprising three (3) dwellings and strata subdivision at 57 Carlyle Street Byron Bay

Directorate: Sustainable Environment and Economy

Report Author: Patricia Docherty, Planner

File No: I2018/419

Theme: Ecology

Development and Approvals

Proposal:

Proposal description:	Multi-dwelling housing comprising 3 dwellings, in two (2) stages as follows: Stage 1: Alterations and additions to existing dwelling and strata subdivision to create two (2) strata lots including vacant development lot; and Stage 2: Two (2) dwellings to create multi dwelling housing comprising three (3) dwellings and strata subdivision.
Property description:	LOT: 14 SEC: 30 DP: 758207 and Lot 2: DP 401710
Property description:	57 Carlyle Street BYRON BAY
Parcel No/s:	112490
Applicant:	Dromore Properties Pty Ltd
Owner:	Dromore Properties Pty Ltd
Zoning:	R2 Low Density Residential
Date received:	30 November 2017
Integrated Development:	No
Public notification or exhibition:	- Level 2 advertising under DCP 2014 Part A14 – Public Notification and Exhibition of Development Applications - Exhibition period: 21/12/2017 - 10/01/2018 - Submissions received: four (4)
Planning Review Committee:	22/02/2018
Delegation to determination:	Council
Issues:	Byron LEP 2014 The proposal fails to meet the requirements of Byron Local Environmental Plan 2014, in relation to: · Clause 4.1 Minimum subdivision lot size (600m²) – new strata subdivision breaches minimum lot size as follows: · Stage 1: 7.8 % for vacant lot; 3.3% for lot containing Dwelling A. · Stage 2: 52.5% for Dwelling B; 55.3% for Dwelling C. · Clause 4.6 Exceptions to development standards - insufficient justification for variation to development standards. · Clause 5.10 Heritage conservation – unacceptable impacts. · Clause 6.1 Acid Sulfate Soils - Class 3 - Part of Lot 2. · Clause 6.6 Essential services – vehicle access unsuitable for stacked parking and vehicle manoeuvring Byron DCP 2014 The proposal fails to meet the requirements of Byron Development Control Plan 2014,particularly in relation to: road access; parking layout standards; set-backs and onsite parking; non indigenous heritage; preservation of trees and landscaping. · Public submissions

Summary:

Development consent is sought for multi-dwelling housing comprising 3 dwellings, in two (2) stages as follows:

· Stage 1: Alterations and additions to existing dwelling and strata subdivision to create two (2) strata lots including vacant development lot; and

· Stage 2: Two (2) dwellings to create multi dwelling housing comprising three (3) dwellings and strata subdivision.

The proposed development is inconsistent with provisions of the Byron LEP 2014 and DCP 2014 and is likely to result in significant impacts on the existing residential environment in the Kingsley Heritage Conservation Area.

The proposed development contravenes Council’s adopted development standards and controls having regards to access and parking, heritage character and landscaping without sufficient justification. It is considered approval will set a precedent for similarly inappropriate development within land zoned low density residential in a heritage conservation area. The proposed development is not in the public interest.

It is recommended that Development Application No.10.2017.686.1 be refused for the reasons outlined in this report.

NOTE TO COUNCILLORS:

RECOMMENDATION:

That pursuant to Section 80 of the Environmental Planning & Assessment Act 1979, development application no. 10.2017.686.1 for multi-dwelling housing in stages -

Stage 1: Alterations and additions to existing dwelling and strata subdivision to create two (2) strata lots including vacant development lot; and

Stage 2: Two (2) dwellings to create multi dwelling housing comprising three (3) dwellings and strata subdivision,

be refused for the following reasons.

REASONS FOR REFUSAL:

a) Pursuant to Section 79C (1)(a)(i) of the Environmental Planning and Assessment Act 1979, the proposed development does not comply with clause 4.1 Minimum subdivision lot size of Byron Local Environmental Plan 2014, which sets a 600m² minimum lot size for new lots.

b) Pursuant to Section 79C (1)(a)(i) of the Environmental Planning and Assessment Act 1979, the proposed development does not comply with clause 5.10 Heritage conservation. The proposed development would have a significant effect upon the significance and setting of the Kingsley Street Heritage Conservation Area. The proposed roof forms, design of the proposed additions and the rear dwellings are likely to negatively impact upon the setting of the existing dwelling, and the group of single storey dwellings, streetscape and landscape setting which collectively demonstrate historical, and aesthetic significance as part of the Kingsley Street Heritage Conservation Area.

c) Pursuant to Section 79C (1)(a)(i) of the Environmental Planning and Assessment Act 1979, the proposed development does not comply with clause 6.6 of Byron Local Environmental Plan 2014, which requires development consent must not be granted to a development unless suitable vehicular access has been provided. The proposed vehicular access does not meet requirements in accordance with Australian Standards AS2890.1.

d) Pursuant to Section 79C (1) (a) (iii) of the Environmental Planning and Assessment Act 1979, the proposed development does not comply with Byron Development Control Plan 2014, for the following reasons:

· Chapter B2 Preservation of Trees and Other Vegetation

· Chapter B3 Services

· B3.2.1: Road Access - laneway aisle width not adequate for cars reversing out of stacked car park. Vehicular stacked parking located in building setback on laneway.

· Chapter B4 Traffic Planning Vehicle Parking, Circulation and Access

· B4.2.2: Parking Layout Standards -Inadequate width on Marvel Lane for cars reversing out of the stacked parking - does not comply with AS2890.1 requirements

· Chapter B9 Landscaping

o B9.3.1 General Landscape Principles

o B9.4 Multi Dwelling Housing, Attached Dwellings and Residential Flat Buildings

· Chapter C1 Non Indigenous Heritage

· C1.3.1 General Streetscape Context

· C1.4.1 Roof Form and Chimneys

· C1.4.2 Verandahs

· C1.4.6 Parking, Garages and Carports

· C1.4.9 Subdivision

· C1.6.3 Kinsley Street Byron Bay Conservation Area

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

· D1.2.2 Setbacks - Minimum Street Frontage Setbacks

· D1.6.3 Landscaping

· D1.6.4.1 On site car parking

e) Pursuant to the provisions of Section 79C (1)(c) of the Environmental Planning and Assessment Act 1979, the site is not considered suitable for the development as proposed, as there is insufficient area to accommodate the proposed dwellings and associated vehicle access and deep soil area resulting in further removal of vegetation and an overdevelopment of the site.

f) Pursuant to the provisions of Section 79C (1)(e) of the Environmental Planning and Assessment Act 1979, approval of a development which contravenes Council’s adopted development standards and development controls without sufficient justification may set an undesirable precedent and is not in the public interest..

Attachments:

1 DA Plans from S2017 21065 Dromore Properties Pty Ltd - 10.2017.686.1 - PN112470 - Application and Supporting Documentation, E2018/23968 ⇨

2 submissions received 10.2017.686.1, E2018/24979 ⇨

Assessment:

1. INTRODUCTION

1.1. History/Background

6.1976.22075.1 - Garage - Approved 14/04/1976

6.1986.2145.1 - Dwelling Alterations - Approved 07/04/1986

10.2000.316.1 - Tree Removal - Approved 27/06/2000

10.2017.515.1 - Tree Removal Three (3) trees - Approved 09/10/2017

1.2. Description of the proposed development

This application seeks approval for multi-dwelling housing comprising 3 dwellings, as follows:

Stage 1: Alterations and additions to existing dwelling and strata subdivision to create two (2) strata lots including vacant development lot (each 580 m² and 553 m² respectively); and

Stage 2: Two (2) dwellings to create multi dwelling housing comprising three (3) dwellings and strata subdivision lots (each 580 m², 285 m², and 268 m²).

Proposal – Photomontage from Carlyle Street

Current – cottage and detached garage looking north from Carlyle Street

Current – cottage looking south from Marvel Lane

1.3. Description of the site

Land is legally described as	LOT: 14 SEC: 30 DP: 758207; Lot 2: DP 401710
Property address is	57 Carlyle Street BYRON BAY
Land is zoned:	R2 Low Density Residential
Land area is:	1165 m² (area of both lots combined)
Property is constrained by:	Kingsley Street Heritage Conservation Area Acid Sulfate Soils - Class 3 - Part of Lot 2 Minimum Lot Size - 600 m² Marvel Lane carriageway width limitations on vehicle access

Site boundary of subject lots

The Kingsley Street Conservation Area Statement of Significance describes the area, as follows:

“A group of dwellings and other buildings, back lanes, street trees and landscaping, which taken together, illustrate an aspect of town development that has a special coastal town character which is highly attractive and of high value in the district.”

Streetscape character

2. SUMMARY OF REFERRALS

Referral	Issue
Development Engineer	Not supported from an engineering viewpoint. *Reasons for Refusal* *1. Marvel Lane* In accordance with Byron Local Environmental Policy 2014 suitable vehicular access has not been provided. Marvel lane carriageway width is 5m in front of the proposed Dwelling B and C driveways. This width is not adequate for cars reversing out of the stacked parking and does not comply with AS2890.1 requirements. *2. Car Parking* In accordance with Development Control Plan 2014 Chapter B4.2.2 item 4 insufficient justification has been submitted to permit stacked parking. All three dwellings propose stacked parking which is not consistent with other developments in the immediate vicinity. In addition, while DCP 2014 Chapter B4.2.2 does permit stacked parking in specific situations, this development does not reflect the stated situations.
Heritage Consultant	Not supported. “It is considered that the proposed development would have an adverse impact upon the significance and setting of the Kingsley Street Heritage Conservation Area. The proposed roof forms, design of the proposed additions and the rear dwellings are likely to negatively impact upon the setting of the existing dwelling, and the group of single storey dwellings, streetscape and landscape setting which collectively demonstrate historical, and aesthetic significance as part of the Kingsley Street Heritage Conservation Area.”
S64 / Systems Planning Officer	No objections subject to conditions.
S94 / Contributions Officer	No objections subject to conditions.

3. SECTION 79BA – 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 55—Remediation of Land	☒	☐
Consideration: The site is located in an established urban area with a long standing history of residential use. There are no potentially contaminating land uses or dip sites known to have occurred on the site or in the immediate vicinity and a search of Council’s records find no history on contaminated land register. The closest radioactive sands sites are at 53 Carlyle Street and 36 Marvell Street, both separated by a lot or road reserve. A preliminary site investigation report is not required.
State Environmental Planning Policy No 71—Coastal Protection	☒	☐
Consideration: - No public access to the coastal foreshore will be impeded or diminished as part of the proposal - No effluent is proposed to be disposed other than to Council’s sewerage system. - Stormwater is to be discharged to street discharge point and will not be directly into the coastal environment.
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004	☒	☐
Consideration: Two BASIX certificates for alterations and additions; and multi dwelling were submitted with the development application.

4.2 Byron Local Environmental Plan 2014 (LEP 2014)

Part 1	☒1.1\| ☒1.1AA\| ☒1.2\| ☒1.3\| ☒1.4\| ☒Dictionary\| ☒1.5\| ☒1.6\| ☒1.7\| ☒1.8\| ☐1.8A\| ☒1.9\| ☐1.9A
Part 2	☒2.1\| ☒2.2 \| ☒2.3 \|☒Land Use Table \| ☐2.4 \| ☐2.5 \| ☒2.6 \| ☒2.7 \| ☐2.8
Part 3	☐3.1\| ☐3.2\| ☐3.3
Part 4	☒4.1\| ☐4.1A\| ☐4.1AA\| ☐4.1B \|☐4.1C\| ☐4.1D\| ☒4.1E\| ☐4.2\| ☐4.2A\| ☐4.2B\| ☐4.2C\| ☐4.2\|☒4.3\|☒4.4 \|☒4.5 \| ☒4.6
Part 5	☐5.1\| ☐5.2\| ☐5.3\| ☐5.4\| ☒5.5\| ☐5.6\| ☐5.7\| ☐5.8\|☐5.9\| ☐ 5.9AA\| ☒5.10\| ☐5.11\| ☐5.12\| ☐5.13
Part 6	☒6.1\| ☒6.2\| ☐6.3\| ☐6.4\| ☐6.5\| ☒6.6\| ☐ 6.7\| ☐6.8\| ☐6.9

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

(a) The proposed development is defined in the LEP 2014 dictionary as Multi dwelling housing;

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

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

Zone Objective	Consideration
To provide for the housing needs of the community within a low density residential environment.	The proposed development would provide multi dwelling housing at a density that is not suited to the particular location within a low density environment and heritage conservation area.
To enable other land uses that provide facilities or services to meet the day to day needs of residents.

What clause does the development not comply with and what is the nature of the non-compliance?

Further consideration, including whether the development application is recommended for approval or refusal accordingly

Clause 4.1 Minimum subdivision lot size (600m²) – new strata subdivision breaches minimum lot size

The proposed development should be refused because it will result in a significant breach of the minimum subdivision lot size:

Stage 1: 7.8 % for vacant lot; 3.3% for lot containing Dwelling A.

Stage 2: 52.5% for Dwelling B; 55.3% for Dwelling C.

Clause 4.1E Minimum lot sizes for dual occupancies, multi dwelling housing and residential flat buildings (800 m²)

Complies because the current lots size is 1,165m² (area of both lots combined). It is noted that the proposed development will create a vacant lot of 553 m² for the proposed development of Two (2) dwellings on one lot.

Clause 4.4 – Floor Space Ratio (Maximum 0.5:1)

The total FSR complies for all three dwellings proposed when calculated against the current total site area of 1,165 m² (area of both lots combined).

It is noted that the combined gross floor area of Dwellings B & C proposed in stage 2 equals 339.64 m² on a 553 m² site, which is an FSR that exceeds 0.6:1.

Clause 4.6 Exceptions to development standards

The proposed development should be refused because it provides insufficient justification for variation to development standards. The assessing officer considers that Council would not be satisfied that:

a) the Applicant’s written request under Clause 4.6 of BLEP 2014 has inadequately addressed the following matters required to be demonstrated:

i. that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

ii. that there are sufficient environmental planning grounds to justify contravening the development standard.

iii. the proposed development will be in the public interest.

b) The proposed development does not ensure that lot sizes and floor space ratio are compatible with local environmental values and constraints and does not facilitate the efficient use of land resources for residential purposes.

Clause 5.10 Heritage conservation – unacceptable impacts

The proposed development should be refused because the proposed built form is unacceptable in the Kingsley Street Heritage Conservation Area, comprising a group of single storey dwellings, streetscape and landscape setting, which collectively demonstrate historical, and aesthetic significance in Byron Bay.

The dominant roof pitch in this locality is approximately 20-25 degrees. The proposed roof feature is 40 degrees and the total height extends above the ridgeline of the existing roof structure. Impacts arise, particularly with reference to the 40 degree high pitched roof feature, flat roof features and dominance of the built form on the streetscape of Carlyle Street and in Marvel Lane.

It is noted that the area is characterised by dwellings, dual occupancies and granny flats, not multi dwelling housing.

The history of tree removal on the site has resulted in a reduction in mature landscape setting with no evidence of replacement planting having been undertaken in accordance with previous approvals for tree removal. The proposed density and limited building separation will reduce space on the site for deep soil planting. Council is not satisfied that the overall layout and design constrained by multiple built structures, including swimming pools, would support mature trees to be successfully re-established on the site.

Clause 6.6 Essential services

The proposed development should be refused because Council is not satisfied that adequate arrangements have been made for suitable vehicle access that is essential for the development.

The proposed location of stacked parking in the building set back and located side by side in Marvel Lane is unsuitable for safe and suitable vehicle access and egress and would result in multiple cars performing complex reversing manoeuvres to enter and leave the site.

The width of Marvel Lane is not adequate for cars reversing out of the stacked parking and does not comply with AS2890.1 Australian Standards requirements.

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

Draft SEPP (Coastal Management) 2016

· coastal wetlands and littoral rainforests area

· coastal environment area;

· coastal use area; and

· coastal vulnerability area.

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

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

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.

B2 Preservation of Trees and Other Vegetation

There are no specific objectives in this section.

The application did not provide sufficient information to assess the impact of the proposed removal of 9 trees.

A site survey plan submitted with the development application labels most trees as palms or other species excluded from this section of the DCP. Notwithstanding the plan also identifies Two (2) Eucalypts and one tree species as ‘unknown’.

Council cannot be satisfied that the proposed removal of trees is in accordance with the DCP.

N/A There is no performance criteria within this chapter.

Chapter B3. Section B3.2.1: Provision of Services

· B3.2.1 Road Access - laneway aisle width not adequate for cars reversing out of stacked car park.

No The proposal fails to ensure provision of adequate engineering and safety standards for public road access.

The width of Marvel Lane is not adequate for cars reversing out of stacked parking and does not comply with AS2890.1 Australian Standards requirements.

N/A There is no Performance Criteria within this Section.

Chapter B4 Traffic Planning, Vehicle Parking, Circulation and Access

· B4.2.2 Parking Layout Standards

The proposed layout fails to:

1. ensure that parking supply and management in new developments supports Council policies and objectives for the development of Byron Shire;

2. ensure the safe and efficient circulation of vehicles entering, leaving and within car parking and service/delivery areas;

3. ensure that entry/exit points to car parking areas are situated in a way that sight distances are maximised, and disruption to the circulation of vehicles on the public road system is minimised.

Car parking requirements, parking layout, driveway widths and vehicle manoeuvring areas are not in accordance with the relevant sections of the current editions of Australian Standard 2890.

Each dwelling has 2 car spaces proposed. However, all three dwellings propose stacked parking. This is not considered to be in accordance with the intent of DCP 2014 Chapter B4.2.2 where stacked parking is generally only favoured in specific situations.

This development does not reflect the stated situations. Therefore, the car park design is to be amended to eliminate the proposed stacked parking for all dwellings.

In addition, it is noted that all three dwellings propose cars to be parked within the front set back of the building.

N/A There is no Performance Criteria within this Section.

Chapter B9: Landscaping

B9.3.1 General Landscape Principles

B9.4 Multi Dwelling Housing, Attached Dwellings and Residential Flat Buildings

No.

The proposed development fails to meet the specified general principles that apply to landscape design associated with development in Byron Shire:

· Landscaping not to interfere with utilities and services

· Planting in the north west corner is located above the planned sewer connection.

· Landscaping not to interfere with the structural integrity of buildings and structures - Trees must not be planted within 3 metres of any building.

· Proposed trees for Dwelling Band C are planted between 30 cm and 2.5 metres from the proposed dwellings and pools.

· Landscaping does not conserve - remaining trees.

· Nine (9) trees proposed to be removed within a heritage conservation area.

· Landscaping fails to incorporate sufficient compensatory locally indigenous plantings for a previously tree removal (DA.10.2017.515.1) the planned removal of further trees will significantly impact the character of the heritage area

Landscaping will be constrained by the proximity of building structures and services. This is expected to limit the growth of mature trees to soften the harsh visual effect of extensive areas of hard-surfacing, and the cumulative effect of building walls, car parking areas and pavements when the development is viewed from adjoining public streets or neighbouring properties.

The proposed development will fail to ensure a high quality landscape and aesthetic environment for multi dwelling housing, attached dwellings.

Specifically the proposal will not ensure:

a) retention of suitable existing vegetation;

b) screen planting to street frontages and driveway areas, to provide privacy between dwelling houses and around the boundaries of the site;

d) planting selection that relates to building scale and mass.

The proposed Dwelling B and C fail to provide at least 90m² of landscaped area, required as a minimum.

There is no Performance Criteria for B9.3.1.

No. Landscaping does not reflect the scale of development, does not complement existing the streetscape in Kingsley Heritage Conservation Area has not been designed to maximise the number of trees retained on the site.

Chapter C1 Non Indigenous Heritage

C1.3.1 General Streetscape Context

C1.4.1 Roof Form and Chimneys

C1.4.2 Verandahs

C1.4.6 Parking, Garages and Carports

C1.4.9 Subdivision

C1.6.3 Kingsley Street Byron Bay Conservation Area

No.

The proposal does not meet the following objectives:

1. To promote development that complements the existing heritage character and amenity of the area and the heritage significance of the heritage item or Heritage Conservation Area.

2. To maintain and enhance the heritage character of the streetscape in the vicinity of the heritage item or within the Heritage Conservation Area.

3. To ensure that new development respects the established patterns and visual setting in the streetscape including setbacks, siting, landscape settings, car parking and fencing.

4. To retain and reflect the character of building frontage design in the streetscape.

The Heritage assessment prepared by Council’s Heritage Consultant, does not support the development:

“It is considered that the proposed development would have an adverse impact upon the significance and setting of the Kingsley Street Heritage Conservation Area. The proposed roof forms, design of the proposed additions and the rear dwellings are likely to negatively impact upon the setting of the existing dwelling, and the group of single storey dwellings, streetscape and landscape setting which collectively demonstrate historical, and aesthetic significance as part of the Kingsley Street Heritage Conservation Area.” ( Refer to Doc # E2018/21832)

The proposal will significantly impact the established landscape character of the locality including height of canopy and density of boundary landscape plantings which will not be retained

The proposed development does not respect and complement the existing heritage character of the streetscape. Extensions with 40 degree pitched roof taller than the existing roof ridgeline will overwhelm the original building.

No. The proposal fails to retain the characteristic scale and massing of roof forms. Particularly the triangular roof feature, altered roof pitches and flat roof structures on the verandah and garage.

No. The proposal does not ensure that original verandahs or verandah elements are retained and that any new verandah elements relate to the proportions and scale of the existing heritage fabric.

No. The proposal does not ensure that garages and driveways are designed to be compatible with the heritage environment, have an adverse visual impact on heritage streetscapes and are visually discreet.

No. The proposed development fails to retain the development and subdivision pattern of the Kingsley Street Heritage Conservation Area including the characteristic rhythm and spacings of the built form.

Comment:

The proposed development fails to:

· retain all attributes of the Heritage Conservation Area that demonstrate its heritage character and significance including its pattern of subdivision development, boundary setbacks and all original external fabric; and

· does not respect the existing character and integrity of the Heritage Conservation Area and is not designed to be compatible with the existing group in terms of its exterior appearances, facades, building heights, building styles, materials, landscaping and lot sizes.

It does not provide adequate and visually compatible accommodation for vehicles. This will have an adverse impact on the visual quality of the low density setting of the Kingsley Street Heritage Conservation Area.

The proposed development fails to meet the policy of Kingsley Street Conservation Area. It does not:

· Retain all attributes of the Heritage Conservation Area that demonstrate its heritage character and significance including its pattern of subdivision development, boundary setbacks and all original external fabric.

· Respect the existing character and integrity of the Heritage Conservation Area and must be designed to be compatible with the existing group in terms of its exterior appearances, facades, building heights, building styles, materials, landscaping and lot sizes.

No.

Fails to demonstrate that the proposed development complements the character and heritage significance of the established streetscapes on Carlyle Street and Marvel Lane in relation:

· roof form and pitch

· scale, height and proportion of buildings

· landscaping and garden treatment

· spaces between buildings

· facade treatment, verandahs and window placement.

· placement and design of

· garages and driveways.

No. The proposed development fails to meet the performance criteria for Clause C1.4.1, as follows:

· Maintain traditional roof forms and materials.

· Roofs of extensions should be carefully related to the existing roof in materials, shape and pitch.

· New buildings must have roofs that reflect the orientation, size, shape, pitch, eaves, ridge heights and bulk of existing roofs in the locality, and must be in proportion with the proposed building.

No. The proposed development fails to meet the performance criteria for Clause C1.4.2, as follows:

· In altering existing buildings, original verandahs must be kept where possible, repaired and respected.

· Additional verandahs must not compete with the importance of the original and should be simple in design.

No. The proposed development fails to meet the performance criteria for Clause C1.4.6, as follows:

Garages should generally be kept separate from the house, be of a simple design, must use traditional pitched roof forms and must match the roof pitch, form and materials of the main building as closely as possible.

Further, the location of car parking for dwelling B and C does no respect the existing vegetation and original garden layouts on the site.

No. The proposed development fails to meet the performance criteria for Clause C1.4.9, as follows:

· Allotment and building spacing, including frontage widths, side and front boundary setbacks must not impact adversely on vistas and views to and of heritage items and Heritage Conservation Areas.

· The setting of a heritage item and a satisfactory curtilage, including important landscape and garden elements, must be retained.

· The subdivision must not require Landscape quality of the streetscape in Heritage Conservation Areas must be retained.

here is no performance criteria for Clause C1.6.3

D1 Residential Accommodation in Urban, Village and Special Purpose Zones

· D1.2.1 Building Height Plane

Yes.

The breach of the Building height planes is relatively minor.

Not applicable.

· D1.2.2 Setbacks - Minimum Street Frontage Setbacks

No.

The proposed dwellings will not :

· complement and harmonise with existing and planned streetscapes and development in the locality.

· achieve spacing of residential developments that achieve high quality living environments relative to residential amenity and proximity of neighbouring development.

No.

No development or car parking is permitted within the building setbacks other than garbage, storage facilities, mail boxes, landscaping and driveways.

The proposed single garages would necessitate car spaces required by the development to be located within the minimum street frontage setback for the building. This is not permitted under the DCP.

The proposed integrated garages are not detached as required in the heritage conservation area and will dominate the laneway street frontage.

D1.6.3 Landscaping

No.

The proposed development fails to provide attractive landscapes that reinforce the function of the street, enhance the amenity of dwellings and the built environment, and allow preservation of significant vegetation.

It is particularly noted that the proposed subdivision of the dwellings would provide minimal deep soil area and in the absence of a common landscaped area, the subdivisions would result in dwellings both attached and detached on their own lot.

It is noted that at least 25% of the entire site will be deep soil area (319.78 m² being 27.5 %).

Although not strictly a numeric requirement applicable to multi dwelling housing, subdivision would result in dwellings on their own lot. It is considered that the individual lot sizes proposed would result in minimal deep soil areas with limited space between buildings to support the growth of mature trees:

Dwelling A: 29.5 %:

Site area: 580 m²

Deep soil area: 171.32 m²

Dwelling B: 30 %

Site area: 285 m²

Deep soil area: 86.85 m²

Dwelling C: 23 %

Site area: 268 m²

Deep soil area: 61.61m²

The proposal is an overdevelopment of the site and removes further trees and mature vegetation.

No.

D1.6.4 On site car parking

No. The proposal does not ensure that vehicle access to and from development is safe, effective and enhances visual amenity.

No. See B4 above.

The proposed development should be refused because it does not meet multiple relevant Objectives and prescriptive measures of Byron DCP 2014.

4.5 Any Planning Agreement or Draft Planning Agreement?

Yes

Is there any applicable planning agreement or draft planning agreement?

☐

☒

Consideration: Not applicable.

4.6 Environmental Planning & Assessment Regulation 2000 Considerations

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

* Non-compliances and any other significant issues discussed below

4.7 Any coastal zone management plan?

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

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	Yes. The proposal will have a significantly adverse impact on the natural environment of the locality.
Built environment	Yes. The proposal will have a significantly adverse impact on the built environment of the locality.
Social Environment	No. The proposal will not have a significant social impact on the locality.
Economic impact	No. The proposal will not have a significant economic impact on the locality.

The development has been assessed against Council Policies that are applicable to the proposed development.

4.9 The suitability of the site for the development

Issue

Comment

Services

- Access

The proposed development should be refused because Council is not satisfied that adequate arrangements have been made for suitable vehicle access that is essential for the development.

The width of Marvel Lane is not adequate for cars reversing out of the stacked parking and does not comply with AS2890.1 Australian Standards requirements.

The proposal represents an overdevelopment of the site.

4.10 Submissions made in accordance with this Act or the regulations

The development application was publicly exhibited. There were four (4 ) submissions made on the development application:

- Two (2) with no objections

- Two (2) Against

Submissions made in relation to the following matters:

No objection

1. No objection to the application for alterations and additions. However, we would like to bring to Councils attention that the current state of the road in the area of 57 Carlyle Street is already in a very poor state of repair.

2. We are the owners of 58 Carlyle St, Byron Bay and would like to provide additional support to the below request made by our neighbour, Robyn and Denis Unwin for Byron Bay Council to address the damaged road that we share.

We agree that the state of the road is a risk to property and the safety of drivers and pedestrians using the road.

Can you please confirm Council’s intention to address this risk, and the timeframe that it will be completed?

Against

1. Multiple concerns:

a. Whilst Marvell Lane has “recently been upgraded” it should not be used for vehicle parking.

b. We do not need any more short-term holiday letting in the vicinity.

c. Do the proposed 2 X 3 bedroom units, i.e. 6 bedrooms on Marvell Lane, have enough off-street vehicle parking?

d. Why is there only one pedestrian access of 1.2m?

e. Site access during construction

f. Site access after construction

g. Please take into consideration our concerns for this development. If Council decides to approve this development, then the continued amenity of our neighbourhood without additional visual, noise and air pollution, and without holiday let disruptions.

h. that the laneway neighbourhood is not significantly disrupted during the build process with congestion by delivery and trades parking for unnecessarily long times in the lane.

2. Multiple concerns:

a. Marvell lane cannot handle 2 x 3 bedroom residences with no parking for all. It will be very disruptive for all existing residents. It is not complying with council regulations or even considering surrounding residents.

b. I have observed on the plans that they are requesting stacked parking for the two rear residences with no set back. It is my understanding that a 3 meter set back is required in the laneway (5.5 m for a driveway non compliant.) This DA is requesting this for 2 residences on 1 site. You are also assuming that they will be using the garage for the second parking space for each residence, currently other residences do not park in garages and driveways, instead using the lane and do not have consideration for other residents. Bottom line is, what they are requesting is illegal and does not work. The Lane is already very congested and I believe this will cause more congestion and ongoing problems.

c. Height planes for the front and back structures on the western boundaries are also non compliant. Both of these structures need to be within required height plains and will affect our property with shading. They are trying to put too much on each lot and I strongly object.

d. The drawings show new fences along the western boundary. What type?, how high? This needs to be clarified. Also our landscaping and trees we have planted as well as dogs cannot be impacted with construction of the new proposed fence.

e. Parking in the laneway is a huge problem, with our driveways being blocked consistently by residents that do not use their garages or driveways and also builders. It is very important that we can access our driveways with ease. The turning radius is very tight in the lane therefore parking on the fences up to driveways is not acceptable.

f. I request that during the building period that there is no parking for builders and trades in the Lane, only onsite parking and deliveries only. All trucks and cars need to park in Cowper Street or on development site. We had this clause on our recent build and our builders and trades adhered to this which worked for all residents living in the lane. It is very important due to the congestion in Marvell Lane. We had a sign displayed so it was very clear what the rules are. A traffic management plan needs to be put in place – again we had this on our DA and it worked.

g. Privacy is very important to us and I request privacy screens on the second story Bedroom windows or mature trees on the western boundary as mature trees have already been removed which has already impacted our privacy. We did not receive a DA showing removal of said native trees.

h. I object the current DA and feel they are trying to put too much on each lot. The rear lot cannot withstand two 3 three bedroom dwellings. I feel my above requests are very important and justified.

4.11 Public interest

The proposed development contravenes Council’s adopted development standards and controls without sufficient justification and approval will set a precedent for similarly inappropriate development within land zoned low density residential in a heritage conservation area. The proposed development is not in the public interest.

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

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 would be payable should the development be approved.

5.2 Section 94 Contributions

Section 94 Contributions would be payable should the development be approved.

6. DISCLOSURE OF POLITICAL DONATIONS AND GIFTS

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

Provide Disclosure Statement register details here: Not applicable

7. CONCLUSION

The proposed development is not consistent with relevant clauses of Byron LEP 2014 and various sections of Byron DCP 2014. In particular heritage character, landscaping, car parking and access to the site remain of a significant concern and the proposal represents an over development of the site. The site is not suitable for the proposed development and the development is not in the public interest. Accordingly, the proposed development is recommended for refusal.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.18

Report No. 13.18 Directions Document and Draft Integrated Pest Management Policy

Directorate: Sustainable Environment and Economy

Report Author: Clare Manning, Biodiversity Officer

File No: I2018/461

Theme: Ecology

Planning Policy and Natural Environment

Summary:

To inform the preparation of an Integrated Pest Management Strategy (IPM Strategy), Council has prepared a Directions Document and draft Integrated Pest Management Policy (Policy), as per Resolution 13-621.

The Directions Document reports on the current success and impediments to implementing Resolution 13-621, which addresses pesticide use in Byron Shire. In the nearly five years since the passing of the Resolution, pesticide use by Council staff has ceased in all children’s playgrounds, formal bus stops, in town and village centres and 15 of 23 sports fields. However, achieving reduced pesticide use has not come without cost, and whilst in many situations that cost is acceptable, in others it is not. For example, cessation or reduced use of pesticides has resulted in some areas having potentially compromised public or operator safety, biosecurity management or infrastructure protection; and in some cases there are issues around responsible financial management. These impediments have been considered in the Directions Document which identifies opportunities to place the intent of the original Resolution in a more practical and secure long-term pesticides use policy framework.

The Directions Document and draft Policy will underpin and provide guidance on the development of the IPM Strategy. It is intended that the IPM Strategy will establish local priorities for pest species and areas to be managed and identify required pest management strategies and actions, with implementation timeframes and responsibilities assigned. The action plan component will include mechanisms and timeframes for monitoring and reporting on its implementation and success in managing the impacts of pest species within Byron Shire while also aspiring to cease or minimise pesticide use.

The timeframe to develop the IPM Strategy was reported to the 12 March 2018 Biodiversity Advisory Committee. The Committee supported Option 1 which provides for delivery of the IPM Strategy by early 2019 to enable robust and well considered community engagement on the draft Policy, which ultimately underpins the Strategy. Refer to the ‘Report on the Biodiversity Advisory Committee Meeting held on 12 March 2018’ also on todays agenda.

It is therefore recommend that the draft Policy, accompanied by the Directions Document, be placed on public exhibition for a period of six weeks from April to May 2018. The exhibition will be supported by government agency and community workshops tentatively planned for early May 2018.

RECOMMENDATION:

That Council:

1. Place the draft Integrated Pest Management Policy (Attachment 2 E2018/28298) on public exhibition for a period of six weeks and that the exhibition of the Policy be accompanied by the Directions Document (Attachment 1 E2018/28400).

2. Consider an allocation of $50,000 in 2018-19 budgets to complete the development of the Integrated Pest Management Strategy.

Attachments:

1 Integrated Pest Management Directions Document for Public Exhibition (version 1.0), E2018/28400 ⇨

2 Draft Integrated Pest Management Policy for Public Exhibition (version 0.7), E2018/28298 ⇨

Report

Council resolved (Resolution 13-621) to develop a shire-wide Integrated Pest Management Policy and Strategy for Council owned and managed lands.

In response to the Resolution, a consultant was engaged to prepare a preliminary draft Integrated Pest Management Strategy. The preliminary draft Strategy was considered at the 4 August 2016 Council Meeting and Council resolved (Resolution 16-362 in part) to peer review the draft Integrated Weed Management Strategy against Council resolution 13-621 to ensure its compliance. Council at the 20 April 2017 meeting (Resolution 17-141 in part) noted that staff are undertaking an internal peer review of the preliminary draft Strategy.

The Pest Management Working Group, consisting of staff and a Landcare representative, found that the preliminary draft Strategy only partially aligned with the intent of Resolution 13-621 in that:

· a shire wide integrated weed management strategy was prepared for Council owned and managed land, in consultation with Council staff, community and experts in the field

· the IWMS makes a strong case to minimize (though not cease) the use of pesticides on Council owned or managed land but where required, to use them responsibly in the control of pests i.e. that weeds cannot be adequately and economically controlled in the Shire unless synthetic pesticide (i.e. a man-made produced substance register with the APVMA that prevents, repels, alters or kills a pest) are used in some situations.

· the draft IWMS provides an audit of pesticides used by Council

· the draft IWMS makes clear that alternative weed control methods are most needed in highly frequented public use areas only and supports the use of planting as means of weed control

· the draft IWMS offers slight guidance on monitoring and reporting requirements

· the draft IWMS offers actions to trial organic pesticides

The Working Group concluded the draft IWMS does not:

· offer a clear vision statement to underpin the development of a shire wide integrated pest management policy

· provide a shire wide integrated pest management policy or framework

· address integrated pest animals management

· direct Council on how and where to prioritise and cease (or even minimise) the use of synthetic pesticides within the desired timeframe of 5-years

· offer what priority research projects should be undertaken in partnership with universities to guide Council on monitoring and assessing the use of synthetic pesticides

· offer suggested initiatives to encourage landholders to adopt non-use of synthetic pesticides to be considered by Council

Also at the 20 April 2017 meeting Council resolved to note (Resolution 17-141 in part) that staff are developing a Directions Document to provide a continued direction for reducing the use of pesticide on Council land in the long term.

In the nearly five years since the passing of Resolution 13-621, pesticide use by Council staff has ceased at:

· All 34 children’s playgrounds;

· All 41 formal bus shelters;

· All 207 public garden beds and kerbs in town and village centres (excluding roundabouts);

· 70% (or 15 of 23 sports fields that are permanently open to the public;

· Roadsides where there is no safety or known biosecurity issue; and,

· Majority of public buildings (with respect to managing rodents).

Cessation of pesticide use has been achieved through adoption of Integrated Pest Management principles, which has allowed improvements and innovation in various locations. Approaches to pesticide-free weed control in the Shire now include manual weed removal, timely treatments, steam cleaning (of kerbs), steam weeding, garden bed edging and mowing.

The Directions Document (Attachment 1) reports these current success further as well as impediments to implementing Resolution 13-621, through a series of case studies, along with other pesticide reduction initiatives from around the world. It identifies circumstances in which pesticides, while the least preferred option, might at times be essential to ensure that Council meets its statutory obligations around road safety and pest management as prescribed in legislation. For example, on 1 July 2017, the Biosecurity Act 2015 and Biosecurity Regulations 2017 commenced providing specific legal requirements for state-level priority weeds and high-risk activities. The Directions Document also identifies opportunities to place the intent of the original Resolution in a more practical and secure long-term integrated pest management framework. This framework underpins the draft Integrated Pest Management Policy (Attachment 2).

It is recommended that the draft Integrated Pest Management Policy is publicly exhibited for a period of 6 weeks from April to May 2018 and that its exhibition be accompanied by the Directions Document.

Bryon Shire hosts a broad diversity of views on the issue of pesticide use, and community engagement is vital to shape a policy and strategy that reflects these views. Due to the complexity and highly debated range of issues it would be prudent to ensure adequate community engagement is undertaken to disseminate information to the local and wider community and gain feedback in a meaningful and constructive way.

The draft Policy will establish Council’s position on the use of pesticides. Exhibiting the draft Policy ahead of the Strategy will ensure that the Strategy is founded on a Policy that has received robust community engagement.

Biodiversity Advisory Committee consultation

The Biodiversity Advisory Committee considered the delivery timeframe for the Directions Document, draft Policy and Strategy at the 12 March 2018 meeting. The Committee recommends that Council support Option 1 for delivery of the Directions Document and draft Policy in April 2018 and the Strategy in early 2019. Refer to the ‘Report on the Biodiversity Advisory Committee Meeting held on 12 March 2018’ also on todays agenda and the following link to the Committees 12 March meeting agenda which includes information on the two timeframe options to deliver the Strategy:

http://byron.infocouncil.biz/RedirectToDoc.aspx?URL=Open/2018/03/BAC_12032018_AGN_870_AT.PDF

Should Council not support the Biodiversity Advisory Committees recommendation and instead resolves on Option 2 timetable for delivery of a Strategy by December 2018, then Council would not exhibit the draft Policy and accompanying Directions Document but instead support them in principle so they can inform development of the Strategy. The draft Policy and draft Strategy would then be exhibited together later in the year. The risk with Option 2 is that Council’s draft policy position on the use of pesticides will not have received community input and the Strategy will be drafted on a policy position that has not been adopted by Council.

Additionally, if Council adopts the Option 2 timeframe for delivery of the Strategy then further funds are required to support other biodiversity projects as existing staff resources will be reassigned to delivery of the Integrated Pest Management Strategy, including:

· Delivery of the Pest Animal Plan, a grant funded project. Additional funds of $8,600 will be required to keep the deliverables on track, as per the Grant Agreement.

· Delivery of the Biodiversity Conservation Strategy would need to be placed on hold to fast tack the Integrated Pest Management Strategy. Alternatively, if Council chose to proceed with this project concurrently an additional project officer would be required to manage the project at an additional budget allocation of $40,000.

The Biodiversity Advisory Committee considered the draft Policy and Directions Document at the 9 April 2018 meeting. The Committee undertook an inspection of several pest management sites in Byron Bay and Brunswick Heads to better understand the intent of the draft Policy.

Public exhibition

Over the six week public exhibition period, the public will be informed, consulted and involved by:

· Factsheets

· Our website

· Media releases

· Community workshop tentatively planned for early May 2018. in Mullumbimby

· Making a written submission by email to submissions@byron.nsw.gov.au or post to The General Manager, PO Box 219 Mullumbimby 2482.

Financial Implications

Council’s 2017-18 budget has provided funds of $33,300 for the Directions Document, draft Policy and community engagement program.

Additional funds estimated of $50,000 in 2018-19 budget will be required for the completion of the IPM Strategy and further community engagement.

Statutory and Policy Compliance Implications

Council’s 2017-18 Operational Plan lists the preparation of an Integrated Pest Management Policy and Strategy as key activities (EN 1.1.3).

All planning documents:

Ø Byron Shire’s Community Engagement Policy

Ø Byron Shire’s Community Strategic Plan 2022

Ø NSW Biosecurity Act

Ø Local Land Services Act

The Acts (above) guide how pest (weeds & pest animals) are managed across NSW. The Acts establish a responsibility for all landholders to manage pests on their land.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.19

Report No. 13.19 PLANNING - Update on Council Resolution 18-041 - Planning a new era for the Byron Arts and Industry Estate

Directorate: Sustainable Environment and Economy

Report Author: Rob Van Iersel, Major Projects Planner

File No: I2018/478

Theme: Ecology

Planning Policy and Natural Environment

Summary:

At the Ordinary Meeting of 1 February 2018, Council resolved (18-041):

1. Note the report and acknowledge the current work and projects under way that relate to the Byron Arts and Industrial Estate.

2. Acknowledge the need to prepare a comprehensive precinct plan for the staged redevelopment and revitalisation of the Byron Arts and Industrial Estate. The key objectives of the precinct plan to include inter alia:

· provision of new opportunities for economic growth and employment generation in the Byron Arts and Industry Estate that capitalise on the creative industries there

· to enable the precinct to receive a much needed “face lift” as well as improving access and amenity and facilities for all users

3. Request staff in the Place Planning Team to commence the preparation of a detailed project plan for the preparation of a comprehensive precinct plan for the Byron Arts and Industrial Estate and wider environs as per 2 above; and that the precinct plan is to include consideration of the following: traffic and parking management, alternate transport options including car share, park and ride, use of the rail corridor, land use mix and density, place activation and beautification, technology needs like NBN, identification of land which links key sites including Cavanbah, Bayshore Drive railway station, future park and ride sites and walking and pedestrian links. The project plan will outline the key stages, milestones, stakeholders and a budget outline for the project.

4. Note that to inform the Byron Arts and Industrial Estate project viability and a feasibility assessment of Lot 12 Bayshore Drive and the Council depot site for a range of uses to ensure any on or off site impacts from the future redevelopment of these sites is taken into account during this precinct planning process. The feasibility study is to be included in the project plan.

5. Consider the project plan and costing at the April council meeting, and that a budget allocation for the project be considered as part of the in the 2018-19 budget process reported then.

This report provides information on the Project Plan developed in response to this resolution.

It is recommended that the preparation of the Precinct Plan for the estate be undertaken through an Enquiry by Design process.

Enquiry by Design has been described as "an intensive, interactive forum, over 2 – 4 days that aims to produce non-binding urban design and planning visions for complex projects". It can be a very useful participatory process that brings together technical expertise and community vision to provide urban design outcomes. It can also compress timeframes for what could be, under a more traditional process, a project that could span many months.

There are a number of urban design consulting firms with significant experience in this process. Bringing them together with the knowledge, skills and vision of key community stakeholders, and the technical expertise of relevant Council staff, will provide an opportunity to achieve the key objectives outlined in the Council resolution.

While no quotes have yet been sought, it is anticipated that the costs required to undertake an Enquiry by Design process for the Arts and Industry Estate Precinct Plan Project will be in the order of $40,000-$60,000, depending on the make up of the final team and the number of days required for the forum itself. This would be additional to staff time for the Place Planning Team and representatives of Infrastructure Services.

NOTE TO COUNCILLORS:

RECOMMENDATION:

1. That Council endorse Enquiry by Design as the process for preparation of the Arts and Industry Estate Precinct Plan, subject to budget allocation of $60,000 in the 2018/19 Budget.

2. That, subject to allocation of project budget, Council prepares a Request for Quotation, targeting urban design consultants with expertise and experience in Enquiry by Design.

3. That assessment of quotations received be reported to Council with a recommendation in regard to proceeding with the project.

Report

As outlined in the report to Council’s meeting of 1 February 2018, the Byron Arts and Industry Estate has changed substantially over recent years. Having started as a conventional industrial estate, it has evolved into a much more diverse precinct, with creative industries, business start-ups, retail, shop top housing, food and more adding to mix of enterprises undertaken at the Estate.

As this evolution continues, it generates a range of issues that need consideration, including, but not limited to, infrastructure (including telecommunications), movement of people and vehicles, land use compatibility and urban design/ cohesiveness.

Council’s planning controls should be reviewed to ensure that they stay ‘ahead of the game’ in facilitating the future for the estate that is envisaged by the landowners, users and wider community.

Consideration of Council-owned land at Lot 12 is important in this mix, as is the potential future for Council’s current depot site and the continued use and operation of the Cavanbah Centre and the Elements tourist facility.

Master planning for this locality will require:

· close collaboration with land owners and users;

· a thorough understanding of the existing place, its users, challenges and needs;

· specific technical expertise in respect of planning, urban design, infrastructure planning (and more);

· appreciation of wider community visions and aspirations; and

· an ability to pull all of this together into a realistic plan that can provide a framework for the future.

It is recommended that the following scope be adopted for the project:

1. Information gathering / strategy development

There is a lot we already know about the Arts & Industry Estate. Consultants engaged by Council for the Employment Lands Strategy have undertaken a comprehensive audit of existing land uses, which we can build on to get a clear picture of what is there at the moment.

We can also collate and build on what we know in regard to servicing, traffic and parking and flooding and drainage.

2. Preliminary consultation

To assist in building a clear understanding of the area, we would engage with Councillors, key land owners/ occupiers/ community groups and the wider community to appreciate current issues and future visions.

3. Enquiry by Design

Enquiry by Design is an intensive, interactive process particularly suited to urban redevelopment projects. In essence, it brings together governance, technical skills and key community stakeholders to produce urban design outcomes, tested “live” as they are developed.

The following summary, taken from website participedia.net provides a useful overview of the process.

Summary

An Enquiry-by-Design is defined by deliberative democracy scholar and practitioner Janette Hartz-Karp as "an intensive, interactive forum, over 2-4 days that aims to produce non-binding urban design and planning visions for complex projects" (Hartz-Karp 2004). Similar in procedure to a Charette, the Enquiry-by-Design method is used in more specific instances of urban design such as single-site redevelopment.

Problems and Purpose

Enquiry-by-Design is used in cases where an urban redevelopment project is thought to have positive, regenerative effects on the community. This creates a win-win situation between the government or other implementing body and the citizenry: where the former requires an urban area be altered, the latter will most likely be keen to have a say in the process. The Enquiry workshops bring together a technical team and a consultation group to develop a both a mutually satisfying design and a feasible implementation strategy (Hartz-Karp 2004). It is therefore suggested that the Enquiry-by-Design method be employed in cases where interrelated urban challenges are being discussed; while the technical team could adequately address the immediate design concerns on their own, the consultant group is necessary to ensure the design fits in with the broader goals of the community. For example, the Enquiry-by-Design method was used in Bassendean, Australia to redesign a train station which, it was hoped, would provide an "attractive and safe focal point, as well as [a] catalyst for further renewal of the Bassendean town centre area" (Parry, 2016).

History

The Enquiry-by-Design process has been used in both Australia, New Zealand, and England (ESD: Enquiry by Design).

Two case studies are available on Participedia.net ;

· the Bassendean Train Station Enquiry-by-Design in 2001 at http://participedia.net/en/cases/bassendean-train-station-enquiry-design; and

· the comprehensive, long-term community planning of Port Hedland in 2004 at http://participedia.net/en/cases/port-hedland-enquiry-design.

Participant Recruitment and Selection

The method used to select participants can vary from case to case and is primarily determined by the scope of the project and the level of actual or anticipated contention among stakeholders. The Bassenden case used a random selection method, public advertisements and targeted invitation of key stakeholder groups. In contrast, the Enquiry-by-Design in Port Hedland used a telephone survey prior to the event followed by a random sample, public advertisements and the establishment of a steering group made up of stakeholders, local council’s representatives and members of the regional development commission (Parry 2016). The technical team is usually comprised of "multidisciplinary experts including local and state government representatives and consultants such as urban designers, economists and architects, notionally around 20 people" (NCDD 2008).

Deliberation, Decisions, and Public Interaction

The Enquiry can last anywhere from 2-4 days and is attended by members of the technical team and the consultation group. The first half day is dedicated to briefing members of both groups on the event process, the design principles and project scope. As well, a discussion of the community values is held which, it is expected, both teams will take into consideration in their decision-making. This time period may also include brief presentations on specific issues by technical experts.

The rest of the first day and the morning of the next are dedicated to the development of urban design concepts by the technical team. Depending on the complexity of the project, it may be useful for smaller sub-teams to conceptualize and brainstorm ideas which are then fed back to the main team for consideration.

At the end of the second day, the technical team meets with the consultation team and relays their work thus far. The consultation team then takes the rest of the day to independently review the progress and suggest any changes.

The technical team takes the final 1-2 days to incorporate the consultation team's advice into its final design plans, which are again reviewed by the consultation team before the final report is written. The final report is to contain "the process, the community's input, the technical team's response, and implementation strategies" (Hart-Karp 2004).

Influence, Outcomes, and Effects

The novelty of the Enquiry-by-Design process lays in what Hartz-Karp terms a "live environment" which "provides immediate feedback to the Technical Team developing the plans" (Hartz-Karp 2004). The final report is thus far more complete than those of other processes such as citizens' juries or consensus forums, since it is not only a measure of public opinion but an amalgamation of public opinion, technical know-how and stakeholder approval. In short, the final report, presents the convening body with a 'ready-to-go' implementation plan - both technically feasible and community approved.

Analysis and Lessons Learned

The enquiry-by-design method is unique in providing multiple instances for the collection of feedback from the participants. At the end of each of the technical team's two working days, the consultation team is provided with a report not only of the design plans but of the procedure followed to create them. The consultation team is to assess all aspects of the technical team's work and may therefore provide 'live' feedback on the procedure itself. The enquiry-by-design's success hinges on the ability and willingness of the technical team to take in and act on the consultation team's advice.

As well, the enquiry-by-design method is meant to include all stakeholders - including lay community members - from conceptualization to design to implementation. While the final report is a the product of technical design and community consultation, and could, in theory be placed solely into the hands of officials for implementation, the enquiry process demands that the report be distributed to all participants for further consideration and consensual development of further action plans (Prince's Foundation 2008). Practitioners looking to use the enquiry-by-design method should take seriously the continued engagement of the original technical and consultation teams during and after the implementation process if the totality of positive, regenerative effects of the design is to be actualized.

For the Arts & Industry Estate project, it is recommended that an urban design consultancy team, with experience in leading the process, be engaged. This team would be supplemented by Council staff from Sustainable Environment and Economy and Infrastructure Services. In particular, Council’s Business Analyst would be a key team member, to provide feasibility assessments before and during the process for key sites such as Lot 12 and the depot land.

While quotations have not been sought, previous experience would suggest that consultants costs could be in the order of $40,000 - $60,000, depending on the number of consultants making up the team and the number of days proposed for the Enquiry by Design.

4. Wider engagement and adoption of the Precinct Plan

While the Enquiry by Design process can provide a well-developed precinct plan, it would be wise to undertake a broader consultation process with the wider community. At the same time, further work would be undertaken internally to consider and document a detailed project plan to implement the plan.

The results of both these steps could then be considered by Council before adoption of a final plan.

Financial Implications

As outlined above, preparation of a Precinct Plan for the Arts & Industry Estate, addressing the requirement of Council resolution 18-014 is likely to require a budget allocation in the order of $60,000. Note a consideration of this amount has been included in the 2018/19 budget process current.

Statutory and Policy Compliance Implications

Implementation of the Precinct Plan for the Arts and Industry Estate is likely to require amendments to Byron Local Environmental Plan 2014 and Byron Development Control, Plan 2014. The nature and extent of these amendments would become clear during the Enquiry by design process.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.20

Report No. 13.20 PLANNING - 26.2017.4.1 - Planning Proposal for Rezoning and Reclassifying Part Lot 22 DP 1073165 Mullumbimby

Directorate: Sustainable Environment and Economy

Report Author: Steve Daniels, Project Officer - Planning Reforms

File No: I2018/498

Theme: Ecology

Planning Policy and Natural Environment

Summary:

On 23 November 2017 Council resolved to support a planning proposal that relates to Council owned land located at the southern edge of Mullumbimby, described as part Lot 22 DP 1073165.

The planning proposal aims to:

· Alter the land use zone (and related controls) to permit residential development with an emphasis on affordable housing.

· Reclassify the land from Community land to Operational land.

· Include local provisions to encourage diverse and affordable housing on key sites to be identified on a map in Byron LEP 2014.

The planning proposal was sent to DPE requesting a Gateway determination in December 2017. In March 2018 DPE advised “there is an issue with the proposed affordable housing provisions in the planning proposal for Stuart Street Mullumbimby. Council’s intention to require 50% of the dwellings in a development to be used for affordable housing is in effect a contribution for affordable housing. Since Byron LGA is not listed in SEPP 70 (Affordable Housing), the inclusion of the affordable housing provisions in the Byron LEP 2014 as proposed by the planning proposal is contrary to the EPA Act, 1979.”

DPE suggested there are three options for this planning proposal to proceed:

“1. Amend the planning proposal to remove the proposed affordable housing provisions; or

2. Withdraw the planning proposal until such time as Byron Council has pursued its inclusion into SEPP 70; or

3. Request the Department to proceed to issue a Gateway determination for the planning proposal as submitted, though it is likely that any Gateway determination will contain a condition requiring the removal of the affordable housing provisions from the proposal.”

Council has allocated resources to this planning proposal in order to achieve affordable and diverse housing outcomes on part of Lot 22 DP 1073165 through its rezoning and reclassification. The matters raised by DPE are valid but they are not fatal to Council achieving affordable and diverse housing outcomes on this land.

Option 3 allows Council to maintain the momentum of the planning proposal and continue with the site specific studies and further consultation that are required prior to exhibition of the planning proposal (e.g. a summer survey for the threatened species Hairy-joint Grass and Missionary Nutgrass). Rezoning and reclassifying this land is the key to achieving affordable housing on it. That process should continue.

Council can also resolve to commence a separate process to consider amending SEPP 70, LEP 2014 and the Development Contributions Plan in relation to affordable housing provisions.

Council should request DPE issue a Gateway determination for the planning proposal as submitted with a condition requiring the removal of the affordable housing provisions from the proposal.

NOTE TO COUNCILLORS:

RECOMMENDATION:

That Council:

1. Request NSW Department of Planning and Environment proceed to issue a Gateway determination for the planning proposal as submitted by Council and accept that this will include a condition requiring the removal of the affordable housing provisions from the proposal.

2. Agree that staff can proceed to further studies and then public exhibition of the planning proposal and government agency consultation based on the Gateway determination issued by the NSW Department of Planning and Environment, and report back to Council as part of post-exhibition reporting.

3. Request staff to prepare a report for Council outlining the information and process to consider amending SEPP 70, LEP 2014 and the Byron Development Contributions Plan in relation to affordable housing provisions.

Attachments:

1 Form of Special Disclosure of Pecuniary Interest, E2012/2815 ⇨

Report

The Planning Proposal

On 23 November 2017 Council resolved to support a planning proposal that relates to Council owned land located at the southern edge of Mullumbimby, described as part Lot 22 DP 1073165. Lot 22 is an irregular shaped lot that is split by a railway line and has part of its boundary to Saltwater Creek. It includes Mullumbimby community gardens. It has a total area of approximately 29.2 hectares. Approximately 22 hectares was affected by zone changes in the planning proposal. The balance of the zones within the subject land was to remain unchanged.

The planning proposal Council supported was to:

§ Insert R1 General Residential as a new zone in Byron LEP 2014

§ Rezone approximately 22 hectares of the existing RE1 Public Recreation zone to R1 General Residential

§ Apply a minimum lot size of 200 m² to the R1 General Residential zone area on Lot 22 DP 1073165

§ Reclassify part Lot 22 DP 1073165 from Community to Operational to reflect the changes to the zoning of the land and prospective change of land use

§ Insert a Key Sites Map in Byron LEP 2014 and identify part Lot 22 DP 1073165 on that map

§ Insert new local provisions into Byron LEP 2014 to encourage diverse and affordable housing on key sites identified on the Key Sites Map.

Past Council Resolutions on this Planning Proposal

Council resolved on 23 November 2017 as follows:

17-597 Resolved that Council:

1. Agree to initiate the planning proposal to amend Byron LEP 2014 (Attachment 1) for the reasons outlined in this report.

2. Forward the planning proposal to the NSW Department of Planning and Environment for a Gateway determination.

3. Agree that staff can proceed to public exhibition of the planning proposal and government agency consultation based on the Gateway determination issued by the NSW Department of Planning and Environment, and report back to Council as part of post-exhibition reporting.

Key Issues

Department of Planning and Environment (DPE) Response to Gateway

The planning proposal and supporting information was sent to DPE in December 2017.

On 1 March 2018 DPE advised:

“there is an issue with the proposed affordable housing provisions in the planning proposal for Stuart Street Mullumbimby. Council’s intention to require 50% of the dwellings in a development to be used for affordable housing is in effect a contribution for affordable housing.

Section 7.32 (formerly 94F) of the Act provides that a contribution for affordable housing cannot be required unless the local government area (LGA) is listed in clause 9 of SEPP No. 70 Affordable Housing (Revised Schemes). Even if an LGA is listed in SEPP 70 it must also have in place a scheme for dedications or contributions for affordable housing adopted by the SEPP.

Since Byron LGA is not listed in SEPP 70, the inclusion of the affordable housing provisions in the Byron LEP 2014 as proposed by the planning proposal is contrary to the Act.

The Department is happy to talk with Council about being included in SEPP 70. Council would need to justify inclusion in the SEPP by providing a detailed analysis of the need for affordable housing in their LGA as has recently been done for Randwick City, Inner West, Northern Beaches, City of Ryde and City of Canada Bay councils.

Byron Council could then write to the Minister asking the SEPP be amended. Such a process would follow the same process that has occurred for the current exhibition for the above mentioned metro councils only the amendment would go further and remove the requirement to be within the Greater Sydney area.

Council has the following options in relation to the planning proposal:

1. Amend the planning proposal to remove the proposed affordable housing provisions; or

2. Withdraw the planning proposal until such time as Byron Council has pursued its inclusion into SEPP 70; or

Should the planning proposal proceed with the reclassification and rezoning of the Stuart Street land without the proposed affordable housing provisions, it is envisaged that Council could still pursue its intention to provide affordable housing on the site as it is the land owner. This could be achieved through mechanisms outside of the planning system such as conditions on contracts of sale for the land, Council developing the land itself in conjunction with a community housing provider etc.”

Staff has reviewed the DPE advice and agree with it. DPE now require Council to decide on how it wants to proceed with this planning proposal.

Options to Move Forward

Option 1 – This entails DPE sending the planning proposal back and then Council amending it before going back to DPE requesting a Gateway determination on the revised version. The amended version cannot refer to the local provisions for affordable housing. It is an option that will achieve the same as option 3 in the end but take a couple of months longer to get there. Option 3 is preferred.

Option 2- This requires Council to resolve to write to DPE asking them to send the planning proposal back to Council. Council would then need to prepare a case to amend SEPP 70 including sufficient information to justify the specific affordable housing provisions. Byron LEP 2014 would then still need to be amended as would Byron Development Contributions Plan. This work would take at least another 12 months (or more) to complete (starting from the date of the decision to proceed) and require considerable staff or consultant resources. There is no guarantee that DPE will agree with amending the SEPP or applying the local affordable housing provisions. When the SEPP has been amended the planning proposal could go back to DPE for a Gateway determination. This option is not preferred.

Option 3 - This requires Council to resolve to write to DPE agreeing that it can proceed to issue a Gateway determination (knowing that it will be conditional on the removal of the affordable housing local provisions). This Gateway can be issued quickly and then Council can continue to finalise the supporting information and early consultation before commencing the public exhibition of the planning proposal. The planning proposal would still rezone the subject land for residential purposes, reclassify the land and identify it on a key sites map as suitable for diverse housing. Because Council owns the land it can still be developed for affordable housing, with the involvement of organisations such as North Coast Community Housing once the land is rezoned. While this planning proposal continues Council staff can bring a report back that considers a separate process to commence the amendment of SEPP 70, LEP 2014 and the Byron Development Contributions Plan to achieve affordable housing provisions. This option is preferred.

In summary the three options open to Council on this matter are:

1. Ask DPE to send the planning proposal back so Council can remove the proposed affordable housing provisions.

2. Ask DPE to send the planning proposal back and commence a process to amend SEPP 70, LEP 2014 and the Development Contributions Plan

3. Request DPE to proceed to issue a Gateway determination for the planning proposal as submitted, accepting that it will be conditional on requiring the removal of the affordable housing provisions from the proposal.

Conclusion

Option 3 allows Council to maintain the momentum of the planning proposal and continue with the site specific studies and further consultation that are required prior to exhibition of the planning proposal ( eg a summer survey for the threatened species Hairy-joint Grass and Missionary Nutgrass). While this is occuring Council can commence a separate process to consider amending SEPP 70, LEP 2014 and the Development Contributions Plan in relation to affordable housing provisions.

Council should request DPE to proceed to issue a Gateway determination for the planning proposal as submitted with a condition requiring the removal of the affordable housing provisions from the proposal.

Financial Implications

If Council chooses to proceed with the planning proposal, it will be at its own expense given that Council owns the land and has initiated the planning proposal. If Council chooses not to proceed then the matter does not incur any additional costs.

Statutory and Policy Compliance Implications

The relevant policy considerations are addressed above and in the previous reports on this planning proposal.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.21

Report No. 13.21 PLANNING -DA 10.2017.526,1 Carport and Shed at 1 Lawson Street, Byron Bay

Directorate: Sustainable Environment and Economy

Report Author: Rochelle Barclay, Planner

File No: I2018/605

Theme: Ecology

Development and Approvals

Proposal:

DA No:	10.2017.526.1
Proposal description:	Carport and Shed
Property description:	LOT: 5 DP: 827049
Property description:	1 Lawson Street BYRON BAY
Parcel No/s:	187230
Applicant:	Matt Walker Town Planning
Owner:	Byron Shire Council
Zoning:	RE1 Public Recreation
Date received:	25 September 2017
Public notification or exhibition:	- Level 0 advertising under DCP 2014 Part A14 – Public Notification and Exhibition of Development Applications - Exhibition period: NA - Submissions received: N/A
Planning Review Committee:	Not applicable
Delegation to determination:	Council
Issues:	· Erosion Precinct · Acid Sulfate Soils · Bushfire Prone Land (Part site Buffer)

Summary:

This application seeks development consent for the construction of a Carport and a Shed (ancillary to existing development (Caravan park & Camping Ground)(LEP 2014). The proposed development is not likely to result in significant impacts on the existing environment and raises no issues in terms of Councils Planning controls. It is recommended that the development be approved subject to conditions of consent. .

NOTE TO COUNCILLORS:

RECOMMENDATION:

Pursuant to Section 80 of the Environmental Planning & Assessment Act 1979, Development Application No. 10.2017.526.1 for the construction of a Carport and a Shed (ancillary to existing Caravan Park & Camping Ground) be granted consent as per the conditions in Attachment 2.#E2018/26467.

Attachments:

1 Proposed Plans 10.2017.526.1, E2018/25389 ⇨

2 consent conditions, E2018/28627 ⇨

Assessment:

1. INTRODUCTION

1.1. History/Background

· BA 71/2120 for Cabins Approved 9/1/1985;

· BA 96/2538 for Dwelling Approved 12/9/96

· 5.1992.175.1 Dwelling Approved 28/5/92

· 5.1995.174.1 Cycleway and Path and Revegetation works approved 25/9/96

· 5.1996.326.1 Dwelling additions approved 7/4/97

· 6.1992.2199.1 Relocated Dwelling approved 7/4/97

· 6.1993.2135.1 Outbuilding- Garage/storage/laundry approved 8/4/93

· 6.1994.2349.1 Outbuilding-Shed approved 22/6/94

· 6.1994.2538.1 Outbuilding- Amenities Block/Camp Kitchen approved 8/8/94

· 6.1996.2548.1 Dwelling Caretaker/Manager- additions to managers residence approved 16/6/98

· 10.2000.632.1 Storage Room approved 15/12/00

· 10.2001.305.1 Add/alt to Kiosk, new first aid building and replacement fencing approved 16/10/01

· 10.2002.738.1 Tree Trimming and pruning Withdrawn

· 10.2004.539.1 Managers Residence and Campers Kitchen Approved 15/06/05

· 10.2006. 12.1 Tree Removal approved 15/2/06

· 10.2008.25.1 Alterations & additions to existing caravan park approved 28/2/08

1.2. Description of the proposed development

This application seeks approval for the construction of a single Carport and a Shed (ancillary to existing development being The First Sun Caravan Park & Camping Ground) near the entrance to the site of Lawson Street

The proposed carport will also provide cover to the proposed shed which will be adjoining an existing shed on the site. The carport roof reaches a maximum height of 3.0m with a colorbond roof and cladding along the two sides.

The image below shows the positioning of the proposed carport and shed relevant to other existing development on the site:

Figure 1 Perspective

Figure 2: Floor Plan

1.3. Description of the site

Land is legally described as	LOT: 5 DP: 827049
Property address is	1 Lawson Street BYRON BAY
Land is zoned:	RE1 Public Recreation
Land area is:	18630 m2
Property is constrained by:	Bushfire prone land – Part site (Buffer) Acid Sulfate Soils Class 3 High Conservation Value High Environmental Value No vegetation removal is proposed as a part of this application and accordingly this item is not addressed in any further detail.

2. SUMMARY OF REFERRALS

Referral

Issue

Building Surveyor

No objections subject to conditions. Refer to Doc # A2017/25810.

The Building Certifier highlighted the required setback of 1.8 metres to the adjoining cabin. A condition of consent will be included to ensure that prior to issue of the Construction certificate, a site plan showing regulatory setbacks is provided.

S64 / Systems Planning Officer

No objections subject to conditions. Refer to Doc # A2017/16689.

3. SECTION 79BA – BUSH FIRE PRONE LAND

Part of the site is mapped as Bushfire Buffer Zone (north western corner). Referencing the “Best Practice Guide to Bushfire Protection- Upgrading of Existing Buildings.” (NSW Rural Fire Service, 2011) and in consideration of the small scale of the development and the proximity to any bushfire risk, it is considered that the development is unlikely to be affected by bushfire. Notwithstanding a separate approval is required under Section 100B of the Rural Fires Act 1997. Conditions of consent to apply.

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 21—Caravan Parks	☒	☐
Consideration: This SEPP should already have been considered for the initial application. The proposal is for ancillary structures only.
State Environmental Planning Policy No 55—Remediation of Land	☒	☐
Consideration: This application was not referred to the Environmental Health officer at the allocations meeting. The lot has been improved by cabins since 1986. Records indicate there has been a continued tourist and visitor accommodation use on the site. No records indicate the lot was used for anything other than these purposes... The application is for a shed and carport ancillary to the existing caravan park and is not intended for habitation. It is considered that this application does not intensify the use of the site, nor does it propose to change the existing use. Based on the existing and continuous use of the land it is considered that the site is unlikely to be contaminated.
State Environmental Planning Policy No 71—Coastal Protection	☒	☐
Consideration: Council must consider the matters listed at Section 8 of SEPP 71. Matters for consideration for development within the coastal zone: · retention of existing public access to the coastal foreshore · impact of effluent disposal on water quality · development must not discharge untreated stormwater into a coastal water body. The proposed application has no detrimental effects in relation to Coastal Protection.

4.2A Byron Local Environmental Plan 2014 (LEP 2014)

Part 1	☒1.1\| ☒1.1AA\| ☒1.2\| ☒1.3\| ☒1.4\| ☒Dictionary\| ☒1.5\| ☒1.6\| ☒1.7\| ☒1.8\| ☐1.8A\| ☒1.9\| ☐1.9A
Part 2	☒2.1\| ☒2.2 \| ☒2.3 \|☒Land Use Table \| ☐2.4 \| ☐2.5 \| ☐2.6 \| ☐2.7 \| ☐2.8
Part 3	☐3.1\| ☐3.2\| ☐3.3
Part 4	☐4.1\| ☐4.1A\| ☐4.1AA\| ☐4.1B \|☐4.1C\| ☐4.1D\| ☐4.1E\| ☐4.2\| ☐4.2A\| ☐4.2B\| ☐4.2C\| ☐4.2\|☒4.3\|☐4.4 \|☐4.5 \| ☐4.6
Part 5	☐5.1\| ☐5.2\| ☐5.3\| ☐5.4\| ☐5.5\| ☐5.6\| ☐5.7\| ☐5.8\|☐5.9\| ☐ 5.9AA\| ☐5.10\| ☐5.11\| ☐5.12\| ☐5.13
Part 6	☒6.1\| ☐6.2\| ☐6.3\| ☐6.4\| ☐6.5\| ☒6.6\| ☐ 6.7\| ☐6.8\| ☐6.9

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

(a) The proposed development is defined in the LEP 2014 Dictionary as Carport & Shed;

(b) The land is within the RE1 Public Recreation according to the Land Zoning Map;

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

Zone Objective	Consideration
• To enable land to be used for public open space or recreational purposes.	The proposal is for a shed and carport ancillary to the existing approved caravan park & camping ground and does not compromise the intent of the objectives.
• To provide a range of recreational settings and activities and compatible land uses.
• To protect and enhance the natural environment for recreational purposes.

The remaining checked 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. The proposed development complies with all clauses of LEP 2014 (in some cases subject to conditions and/or to the satisfaction of other assessing officers).

6.1 Acid Sulfate Soils

The site is situated on land in PASS 5 category. It is unlikely that the proposed works will lower the water table below 1 metre AHD on any adjacent Class 1, 2, 3 or 4 land. In this way no further consideration of this item is considered necessary.

Clause 6.6 Essential Services

Clause 6.6 of Byron LEP 2014 states that:

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

(a) the supply of water,

(b) the supply of electricity,

(c) the disposal and management of sewage,

(d) stormwater drainage or on-site conservation,

(e) suitable vehicular access.

The proposal was referred to Councils Development Engineer and ET team. The proposed development will have essential services available to service the development. It is noted that the development is ancillary to existing approved development.

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

Draft SEPP (Coastal Management) 2016

The aim of the Draft SEPP is to promote an integrated and co-ordinated approach to planning in the ‘Coastal Zone’, identifying four coastal management areas:

· coastal wetlands and littoral rainforests area

· coastal environment area;

· coastal use area; and

· coastal vulnerability area.

The subject site is mapped within the ‘coastal use area’ and ‘coastal hazard area’. The draft provisions for consideration of development within this area generally reflect the existing matters for consideration currently outlined in SEPP 71.

The proposal is considered to be acceptable having regard to the provisions of the Draft SEPP particularly Division No’s. 4 & 5. The proposed development is not in a wetland, littoral rainforest, or coastal vulnerability area.

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

Part A	☐
Part B Chapters:	☐B2\| ☐B3\| ☐B4\| ☐B5\| ☐B6\| ☐B7\| XB8\| ☐B9\| ☐B10\| ☐B11\| ☐B12\| ☐B13\| ☐B14
Part C Chapters:	☐C1\| ☐C2\| ☐C3\| ☐C4
Part D Chapters	☐D1\| ☐D2\| XD3\| ☐D4\| ☐D5\| ☐D6\| ☐D7\| ☐D8
Part E Chapters	☐ E1\| ☐E2\| ☐E3\| ☐E4\| XE5\| ☐E6\| ☐ E7

These checked Parts/Chapters have been taken into consideration in the assessment of the subject development application in accordance with subsection 79C(1) of the EP&A Act. The proposed development is demonstrated to meet the relevant Objectives of all relevant Parts/Chapters (in some cases subject to conditions and/or to the satisfaction of other assessing officers).

B8- Site Waste Minimisation & Management

No SWMMP was provided- a condition of consent requiring compliance with the intent of this chapter will be included in the consent.

E5 - Certain Locations in Byron Bay and Ewingsdale

A condition of consent will be included in relation to the erosion escarpment; including a S88E instrument.

4.5 Any Planning Agreement or Draft Planning Agreement?

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

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	No	No
94	No	No	No
94A	No	No	No

* Non-compliances and any other significant issues discussed below

4.7 Any coastal zone management plan?

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

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.
Social Environment	No. The proposal will not have a significant social impact on the locality.
Economic impact	No. The proposal will not have a significant economic impact on the locality.

4.9 The suitability of the site for the development

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

4.10 Submissions made in accordance with this Act or the regulations

The development application was not publicly notified .

4.11 Public interest

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

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 because explanation no native vegetation is proposed for removal.

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

No Section 64 levies will be required.

5.2 Section 94 Contributions

No Section 94 Contributions will be required.

6. DISCLOSURE OF POLITICAL DONATIONS AND GIFTS

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

Provide Disclosure Statement register details here: Not applicable

7. CONCLUSION

This application seeks development consent for the construction of a Carport and a Shed (ancillary to an existing development Caravan park & Camping Ground). The proposed development is not likely to result in significant impacts on the existing environment and is considered suitable for the proposed development. It is recommended that the development be approved subject to conditions of consent listed at the end of this report.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.22

Report No. 13.22 PLANNING - Development Application 10.2018.10.1 - Use of existing garage as a bedroom with ensuite and wet bar, construction of new parking space and driveway - 5 Milton Street, Byron Bay

Directorate: Sustainable Environment and Economy

Report Author: Paul Mills, Senior Planner

File No: I2018/610

Theme: Ecology

Development and Approvals

Proposal:

DA No:	10.2018.10.1
Proposal description:	Use of existing garage as a bedroom with ensuite and wet bar, construction of new parking space and driveway.
Property description:	LOT: 1 DP: 317023
Property description:	5 Milton Street BYRON BAY
Parcel No/s:	118160
Applicant:	Planners North
Owner:	Ms E Van Haandal
Zoning:	R2 Low Density Residential
Date received:	15 January 2018
Integrated Development:	No
Public notification or exhibition:	- Level 0 advertising under DCP 2014 Part A14 – Public Notification and Exhibition of Development Applications - Exhibition period: N/A - Submissions received: Nil.
Planning Review Committee:	Not applicable.
Delegation to determination:	Meeting of full Council
Issues:	· Clause 4.6 request for variation submitted, seeking to exceed the maximum FSR of 0.5:1. Proposed FSR is 0.588:1 (The proposal represents a 17.5% to the development standard) · The proposal does not comply with Council’s DCP 2014 controls for parking spaces, landscaping and expanded houses. · Bush fire prone land.

Summary:

This application seeks approval for Use of existing garage as a bedroom with ensuite and wet bar, construction of new parking space and driveway.

The proposed development exceeds the maximum Floor Space Ratio (FSR) for the subject site as refer to in Clause 4.4 of LEP 2014. The applicant has submitted a Clause 4.6 request for variation to allow the proposed development to exceed the maximum FSR by 17.5%, this request is not considered to have sufficient planning merit to warrant approval. The proposal also involves non-compliances with Council’s DCP 2014 controls relating to car parking, landscaping and expanded houses.

The application has not demonstrated the proposed development is able to satisfy Section 79BA of the Act which requires the development to accord with the provisions of the document Planning for Bush Fire Protection 2006.

The proposed development is considered to lack planning merit is and is recommended for refusal.

NOTE TO COUNCILLORS:

RECOMMENDATION:

That pursuant to Section 80 of the Environmental Planning & Assessment Act 1979, Development Application no. 10.2018.10.1 for Use of existing garage as a bedroom with ensuite and wet bar, construction of new parking space and driveway, be refused for the following reasons:

1. Section 76A of the Environmental Planning and Assessment Act 1979 provides that specified development may not be carried out except with development consent, and that a person must not carry out development on land (to which that provision applies) unless such a consent has been obtained and is in force. The submitted Development Application seeks retrospective development consent for a conversion which has already been carried out and development consent is unable to be granted.

2. Pursuant to Section 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979, the proposed development significantly exceeds the maximum Floor Space Ratio shown for the land on the Floor Space Ratio Map, contrary to Clause 4.4(2) of Byron Local Environment Plan 2014.

3. Pursuant to Section 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979, the proposed development fails to provide two (2) on-site parking spaces to satisfy the requirements of Byron Development Control Plan 2014 Section B4.2.5 Car Parking Requirements.

4. Pursuant to section 79C(1)(b) of the Environmental Planning and Assessment Act 1979, insufficient information has been submitted to demonstrate that the proposed development is compatible with the built environment of the area.

5. Pursuant to section 79C(1)(c) of the Environmental Planning and Assessment Act 1979, the proposal is considered to be an overdevelopment of the subject site and the application fails to demonstrate that the subject site is suitable for the proposed development having regard to residential amenity.

6. Pursuant to section 79C(1)(e) of the Environmental Planning and Assessment Act 1979, the application fails to demonstrate that the proposed development is consistent with the public interest.

Attachments:

1 Proposed Plans 10.2018.10.1, E2018/28681 ⇨

Assessment:

1. INTRODUCTION

1.1. History/Background

10.2003.389.1 Development Application seeking consent to Demolish/remove 2 existing sheds; New carport/shed; Deck with roofing, consent granted 27 November 2003.

10.2015.175.1 Development Application seeking consent for Additions to a dwelling, consent granted 11 May 2015.

1.2. Description of the proposed development

This application seeks approval for Use of existing garage as a bedroom with ensuite and wet bar, construction of new parking space and driveway.

Note: At time of inspection the garage had already been converted to what appeared to be a studio dwelling with kitchenette, bedroom, separate bathroom and separate external access from Milton Street.

1.3. Description of the site

Land is legally described as	LOT: 1 DP: 317023
Property address is	5 Milton Street BYRON BAY
Land is zoned:	R2 Low Density Residential
Land area is:	253 m²
Property is constrained by:	Flood Liable Land, Bushfire prone land & Acid Sulfate Soils Class 3

Figure 1 - Photographs of existing development

2. SUMMARY OF REFERRALS

Referral	Issue
Development Engineer	Car parking, access and flood planning. See comments in Doc No. A2018/2048.

3. SECTION 79BA – BUSH FIRE PRONE LAND

Using the procedure provided on the NSW Rural Fire Service webpage titled ‘Site Assessment Methodology’, the asset protection zone and bush fire attack levels for this proposed development (which is in fire weather area FDI 80) are as follows:

Direction	South-South -West
Vegetation formation	Swamp Forest
Distance between vegetation formation and building	86m
Effective slope	0 degrees,
Asset Protection Zone	Minimum 20 metres.
Bushfire Attack Level (BAL) BAL – 12.5

The applicant has not demonstrated the proposed development is able to comply with the document Planning for Bush Fire Protection 2006.

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 55—Remediation of Land	☒	☐
Consideration: Existing residential property no indications the site has been used for purposes likely to have caused contamination. Proposal does not involve a change of use.
State Environmental Planning Policy No 71—Coastal Protection	☒	☐
Consideration: No issues identified.
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004	☒	☐
Consideration: Estimated cost of works less than $50,000.
State Environmental Planning Policy (Infrastructure) 2007	☒	☐
Consideration: The proposed new driveway location is closely adjacent to an existing electricity pole.

4.2A Byron Local Environmental Plan 2014 (LEP 2014)

Part 1	☒1.1\| ☒1.1AA\| ☒1.2\| ☒1.3\| ☒1.4\| ☒Dictionary\| ☒1.5\| ☒1.6\| ☒1.7\| ☒1.8\| ☐1.8A\| ☒1.9\| ☐1.9A
Part 2	☒2.1\| ☒2.2 \| ☒2.3 \|☒Land Use Table \| ☐2.4 \| ☐2.5 \| ☐2.6 \| ☐2.7 \| ☐2.8
Part 3	☐3.1\| ☐3.2\| ☐3.3
Part 4	☐4.1\| ☐4.1A\| ☐4.1AA\| ☐4.1B \|☐4.1C\| ☐4.1D\| ☐4.1E\| ☐4.2\| ☐4.2A\| ☐4.2B\| ☐4.2C\| ☐4.2\|☒4.3\|☒4.4 \|☒4.5 \| ☒4.6
Part 5	☐5.1\| ☐5.2\| ☐5.3\| ☐5.4\| ☒5.5\| ☐5.6\| ☐5.7\| ☐5.8\|☐5.9\| ☐ 5.9AA\| ☒5.10\| ☐5.11\| ☐5.12\| ☐5.13
Part 6	☒6.1\| ☐6.2\| ☒6.3\| ☐6.4\| ☐6.5\| ☒6.6\| ☐ 6.7\| ☐6.8\| ☐6.9

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

(a) The proposed development is defined in the LEP 2014 Dictionary as Dwelling house:

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

(d) Regard is had for the R2 Zone Objectives as follows:

Zone Objective

Consideration

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

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

Concerns the density of the proposed development is excessive for the subject lot.

The above checked 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. The proposed development complies with all clauses of LEP 2014 (in some cases subject to conditions and/or to the satisfaction of other assessing officers), except as follows:

Clause 4.6 request for variation to Clause 4.4 of Byron LEP 2014

The maximum floor space ratio for the subject site is 0.5:1 in accordance with Clause 4.4 (2A) and the Floor Space Ratio Map. The dwelling house approved in accordance with DA 10.2015.175.1 has a total floor plan area of 126m². The proposed additional 25m² associated with the use of the garage for a bedroom will result in a total floor area of 151m², based on the site area of 258m² this will result in a floor space ratio of 0.58:1. This exceeds the permitted 0.5:1 and a variation is sought having regard to Clause 4.6 Exceptions to Development Standards.

The Applicant has submitted a written clause 4.6 variation request which is assessed as follows:

1. Introduction – Summary of proposed development

The development application proposes Use of existing garage as a bedroom with ensuite and wet bar, construction of new parking space and driveway.

2. Clause 4.6 Exceptions to Development Standards

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

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

Council must be satisfied that the Applicant’s written request has adequately addressed the matters required to be demonstrated and that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone (noting that the concurrence of the Secretary is not required to be obtained in this instance).

3. The Development Standard to be varied

The development standard to be varied is the maximum Floor Space Ratio of 0.50:1 applicable to this site under LEP 2014 clause 4.1 as described above.

The maximum floor space ratio planning control is a development standard in accordance with the applicable definition in Section 4 of the Environmental Planning and Assessment Act 1979 because it is a provision of an environmental planning instrument in relation to the carrying out of development, being a provision by or under which requirements are specified or standards are fixed in respect of any aspect of that development, being the floor space ratio.

4. Extent of Variation to the Development Standard

The extent of the proposed variation is 17.5% of the maximum permissible Floor Space Ratio for the subject site.

5. Objective of the Development Standard

The objectives of the development standard, as outlined in subclause 4.4(1) are:

(a) to ensure that new buildings are appropriate in relation to the character, amenity and environment of the locality,

(b) to enable a diversity of housing types by encouraging low scale medium density housing in suitable locations,

(d) to regulate density of development and generation of vehicular and pedestrian traffic,

(e) to set out maximum floor space ratios for dual occupancy in certain areas.

6. Objectives of the Zone

The objectives of the R2 Low Density Residential Zone are stated and have been addressed in this section above.

7. Assessment – the specific questions to be addressed:

(a) Clause 4.6(3)(a) – Is compliance with the development standard unreasonable or unnecessary in the circumstances of the case?

The clause 4.6 written request submitted in support of the DA advises as follows in this regard:

· In the circumstances of this particular case it is submitted that the

strict application of the Development Standard is unreasonable. The subject site has an area of 259m².

Existing buildings on the site have a total area of 151m². Whilst the garage is presently not included in the calculation of Floor Space Ratio, the proposed use of this building for the purpose of a bedroom does not change the overall area of built form on the site, nor will it change the character, bulk, scale or appearance of site development.

The use of the existing garage in conjunction with the existing dwelling house will retain a modest building with a floor area of 151m² which is considered to be low density. The external appearance of the built form as viewed from Milton Street and Shirley Lane will not alter at all. Council has accepted similar variations on small sized allotments.

The objectives of Clause 4.4 include ensuring that new buildings are appropriate in relation to the character and amenity and environment of the locality, The proposal does not provide for the construction of any new buildings and the existing buildings remain appropriate in relation to the character and amenity and environment of the locality. The single storey structures are compatible with existing surrounding development. It is submitted that the objectives of the development standard and the R2 Low Density Residential Zone are maintained, notwithstanding the proposed variation.

Requiring compliance with the development standard would result in the proposed development being consistent with the maximum floor space ratio for the site. The proposed development does involve physical change to the subject site with the creation of a single parking space within the existing outdoor private open space, this will visually add to the overdevelopment of the site and reduce the residential amenity of the site.

Requiring compliance with the development standard would not be unreasonable and unnecessary in the circumstances of the case. The applicant has not provided any evidence of matters specific to this site which may warrant a variation to the maximum floor space ratio.

(b) Clause 4.6(3)(b) – Are there sufficient environmental planning grounds to justify contravening the development standard?

The clause 4.6 written request submitted in support of the DA advises only provides the comments detailed in point ‘a’ above.

There are considered to be insufficient environmental planning grounds which are individually particular to the site to justify contravening the development standard.

(c) Clause 4.6(4)(a)(ii) – Is the proposed development in the public interest? Is it consistent with the objectives of the standard and the zone as set out above?

The clause 4.6 written request submitted in support of the DA notes the existing development and approvals over the subject land.

The proposal is inconsistent with the objectives of the development standard and the zone, which state as follows:

1. Objectives of the Standard

(a) to ensure that new buildings are appropriate in relation to the character, amenity and environment of the locality,

(b) to enable a diversity of housing types by encouraging low scale medium density housing in suitable locations,

(d) to regulate density of development and generation of vehicular and pedestrian traffic,

(e) to set out maximum floor space ratios for dual occupancy in certain areas.

2. Objectives of the R2 Zone

· The proposed Strata Title subdivision supports the development to provide for the housing needs of the community within a low density residential environment.

· The proposal is not a land use other than housing, and would not hinder but would instead support any other land use that provides facilities or services to meet the day to day needs of residents.

The proposal is not considered to produce a better planning outcome than one that strictly complies with the development standard, with the loss of a garage and further loss of private open space on the site reducing the overall amenity of the site. The new vehicle cross over is also not considered a beneficial aspect of the proposal particularly with the location of an existing electricity pole. The Applicant’s variation request is not supported in this instance.

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

Draft SEPP (Coastal Management) 2016

· coastal wetlands and littoral rainforests area

· coastal environment area;

· coastal use area; and

· coastal vulnerability area.

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

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

These checked Parts/Chapters have been taken into consideration in the assessment of the subject development application in accordance with subsection 79C(1) of the EP&A Act. The proposed development is demonstrated to meet the relevant Objectives of all relevant Parts/Chapters (in some cases subject to conditions and/or to the satisfaction of other assessing officers).

Section D1.2.1 Building Height Plane

The existing structure encroaches within the Building Height Plane adjacent to the northern and western boundaries of the site.

Section B4.2.5 Car Parking Requirements

Table B4.1 within DCP 2014 specifies dwelling houses are to have two (2) parking spaces. An existing development consent, 10.2003.389.1, approved a variation to car parking allowing the provision of only one (1) car space. The car space lost by the conversion of the garage to a bedroom is proposed to be replaced by a new open car space. However, the additional demand for car parking created by the additional bedroom on-site warrants the provision of a second parking space in accordance with Section B4.2.5. The proposal fails to provide two (2) on-site parking spaces in accordance with the DCP.

Section D1.3.2 Landscaping

Objectives

1. To enhance the visual quality of residential areas and to improve the residential amenity of the Shire.

2. To limit stormwater runoff from residential areas.

Performance Criteria

To enhance the visual quality and improve the residential amenity of the Shire, Council encourages the landscaping of dwelling house allotments in accordance with the principles contained in Chapter B9 Landscaping.

Prescriptive Measures

2. At least 25% of the site must consist of deep soil areas. The deep soil area must not include any areas used for the management of on-site sewage effluent.

Less than 25% of the subject site consists of deep soil area. ‘Deep soil area’ means a specified area of the development site, not covered by an impervious surface, that allows water on the site to infiltrate naturally to the groundwater and allows for the future provision of mature vegetation.

Section D1.3.3 Expanded House

Contrary to Section D1.3.3 the proposed outbuilding contains facilities (e.g. kitchen, sink or the like) that would enable the preparation of food.

4.5 Any Planning Agreement or Draft Planning Agreement?

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

4.6 Environmental Planning & Assessment Regulation 2000 Considerations

The proposed development is considered to satisfy the relevant provisions of the Regulations.

4.7 Any coastal zone management plan?

Satisfactory

Unsatisfactory

Not applicable

Is there any applicable coastal zone management plan?

☐

☒

Consideration: CZMP not adopted at the time of this report.

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	It is considered the proposal will have an adverse impact on the built environment of the locality. The proposal will reduce the residential amenity of the subject site with the loss of limited private open space on an already under sized lot.
Social Environment	No. The proposal will not have a significant social impact on the locality.
Economic impact	No. The proposal will not have a significant economic impact on the locality.

4.9 The suitability of the site for the development

The site is a serviced property constrained by Flooding, Bush Fire and Class 3 Acid Sulfate Soils. The proposal is considered to represent an overdevelopment of an under sized allotment.

4.10 Submissions made in accordance with this Act or the regulations

The development application was not publicly notified.

4.11 Public interest

The proposed development is considered to be contrary to the public interest as it involves significant departures from development standards which have been adopted following extensive public consultation.

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 because the proposed development does not involve the removal of any significant vegetation.

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

Should the application have been supported it would have been referred to Council’s ET Engineers for assessment.

5.2 Section 94 Contributions

No Section 94 Contributions will be required.

6. CONCLUSION

The proposal also involves non-compliances with Council’s DCP 2014 controls relating to car parking, landscaping and expanded houses.

The proposed development is considered to lack planning merit is and is recommended for refusal.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.24

Report No. 13.24 Update - Resolution 17-184 Brunswick Heads Holiday Parks and Resolution 17-523 Heritage and Environmental Assessment Reports - Coastal cypress Pines at Terrace Reserve Brunswick Heads

Directorate: Sustainable Environment and Economy

Report Author: Shannon Burt, Director Sustainable Environment and Economy

File No: I2018/652

Theme: Ecology

Development and Approvals

Summary:

The purpose of this report is to provide Council with an update on the status of:

· Resolution 17- 418 Update on Resolution 17-184 – Brunswick Heads Holiday Parks; and

· Resolution 17-523 Heritage and Environmental Assessment Reports – Coastal Cypress Pines at Terrace Reserve Brunswick Heads

It is also to seek Council support for a way forward for the Approval to Operate (ATO) with Council for the Terrace Reserve Holiday Park.

RECOMMENDATION:

1. That Council support the progression by staff under delegation the Approval to Operate application for the Terrace Reserve Holiday Park with specific conditions inter alia taken from the Arboricultural Impact Assessment prepared by Arborsafe 2018 (Attachment 1 E2018/30243) to meet resolution 17-418 and in particular (a) and (b) below:

a) Southern Cypress Pine Precinct is to be restricted to short-term camping sites with no permanent residents or cabins to be relocated to the area.

b) Camping practices in Southern Cypress Pine Precinct will observe and protect structural root zones of the Cypress Pines as part of an ongoing monitoring program.

2. That Council:

a) impose a condition on any Approval to Operate issued in respect of the application for Terrace Reserve Holiday Park that the operation of the caravan park/camping ground and any building or work associated with its operation must comply with all applicable standards imposed by the Local Government (Manufacture Home Estates, Caravan Parks, Camping Grounds and Movable Dwellings) Regulation 2005, and;

b) where there is any non-compliance with the Local Government (Manufacture Home Estates, Caravan Parks, Camping Grounds and Movable Dwellings) Regulation 2005, NSWCHPT commit to doing all acts and things necessary to resolve the non-compliance issues as part of the development and works programme for the Terrace Reserve Holiday Park in accordance with the timing schedule and staging plan known as Schedule of Compliance Works and Activities which will form part of the Approval to Operate dated 6 November 2017.

3. That in order to enable the development and works program to be completed to comply with the requirements in 2 (a) and 2 (b) above, any Approval to Operate issued be for a period of three years.

Attachments:

1 Arboricultural Impact Assessment prepared by Arborsafe, E2018/30243 ⇨

2 Ecological considerations of vegetation management Terrace Holiday Park: Southern Precinct, E2018/32644 ⇨

Report

Resolution 17-418

Council at its Ordinary Meeting on 21 September 2017, considered a report which provided an update on an earlier resolution (17-184) on the Brunswick Heads Holiday Parks. Link below:

http://byron.infocouncil.biz/Open/2017/09/OC_21092017_AGN_610.PDF

Council at the meeting resolved as follows with regard to the Terrace Reserve.

17-418 Resolved:

4. That Council notes the following Concept Parameters as shown in Attachment 1 (#E2017/86763) and detailed below for the purposes of amending the Plans of Management for Terrace Reserve for the purposes of public exhibition of the Crown Reserves Plan of Management:

a) Southern Cypress Pine Precinct is to be restricted to short-term camping sites with no permanent residents or cabins to be relocated to the area.

b) Camping practices in Southern Cypress Pine Precinct will observe and protect structural root zones of the Cypress Pines as part of an ongoing monitoring program.

c) The Trust will negotiate to form a consolidated central permanent residents’ precinct which will be made to comply with the 3m set back from top of bank to any structure as a minimum. The Trust will make endeavours to achieve 10m set back from top of bank to any structure wherever feasible.

d) Remaining permanent residents will be relocated to north western precinct.

e) With the exception of the central permanent residents’ precinct addressed in item 1c, Terrace Reserve operational boundary will be established to achieve 7m set back from top of bank to any short-term camp sites and 10m set back from top of bank to any dwelling sites in providing a continuous foreshore walkway.

f) the Southern Cypress Pine Precinct is acknowledged as a place of reflection and remembrance.

g) Any areas of Indigenous cultural significance be recognised and protected.

2. That Council supports NSWCHPT in seeking Ministerial approval to exhibit the proposed changes to the PoM for Terrace Reserve as per the parameters above.

5. That:

a) Council impose a condition on any Approval to Operate issued by Council in respect of the applications for Terrace Reserve that the operation of the caravan park/camping ground and any building or work associated with its operation must comply with all applicable standards imposed by the Local Government (Manufacture Home Estates, Caravan Parks, Camping Grounds and Movable Dwellings) Regulation 2005, and;

b) where there is any non-compliance with the Local Government (Manufacture Home Estates, Caravan Parks, Camping Grounds and Movable Dwellings) Regulation 2005, NSWCHPT commit to doing all acts and things necessary to resolve the non-compliance issues as part of the development and works programme of the relevant Holiday Park in accordance with the timing schedule and staging plan known as Schedule of Compliance Works and Activities which will form part of the Approval to Operate.

4. That in order to enable the development and works program set out in the Schedule of Compliance Works and Activities as per 3b and included as a condition in any Approval to Operate, the Approval to Operate be issued for a period of three years.

Approval to Operate (ATO) applications were lodged on 6 November 2017, for each of the three Brunswick Holiday Parks (Ferry Reserve, Massey Green and Terrace Reserve). Each application had regard to the applicable resolutions of Council at that time.

At the Ordinary Meeting 14 December 2017, Council considered reports on Ferry Reserve and Massey Green Holiday Parks and resolved to grant an ATO to each subject to conditions. Link to Council agenda and minutes below:

Ferry Reserve and Massey Green reports

http://byron.infocouncil.biz/Open/2017/12/OC_14122017_AGN_613.PDF

Minutes

http://byron.infocouncil.biz/Open/2017/12/OC_14122017_MIN_613.PDF

Notwithstanding the above, and Resolution 17-418 being clear in its terms of issuing an ATO for the Terrace Reserve Holiday Park, the ATO for this Holiday Park remains undetermined. Consideration of Resolution 17-523 from 26 October 2017 Ordinary Meeting is critical in this regard, and is discussed below in items 4 & 5.

Resolution 17-523

Council considered a report at the Ordinary Meeting 26 October 2017, on the heritage and ecological significance of the Coastal Cypress Pines on the Terrace Reserve Holiday Park. This report was in response to an earlier Resolution 14-658 of Council, and ongoing community concern about the operation of the Terrace Reserve Holiday Park southern camping precinct not respecting the significance of the Coastal Cypress Pines on site.

Council at the meeting resolved as follows with regard to the Terrace Reserve.

17-523 Resolved:

1. The area of Coastal Cypress Pines within the 2014 approved POM for the Terrace Holiday Park be listed on Byron Shire Council's LEP Schedule 5 under Environmental Heritage.

2. Council pursue the listing of the significant area in the southern part of the Terrace Holiday Park under section 25 (2) of the NSW Heritage Act 1977.

3. Council pursue a nomination to the Heritage Division of the Office of Environment and Heritage (OEH) for listing of the significant area on the State Heritage Register.

4. Council acknowledge the findings in the ecologist's report advising that preservation and conversation of the Coastal Cypress Pines in the southern area of the Terrace Holiday Park is best managed by removing all existing infrastructure and use of the area and restricting all activities to the northern area. Council formally advises NSW Crown Holiday Parks of these findings.

5. Council formally advises NSW Crown Holiday Parks Trust of the ecologist's recommended tree management strategies and works with them to achieve this.

6. That Council note the pressing issue of the Aboriginal cultural heritage issues raised in the recommendation of the Arakwal Memorandum of Understanding Advisory Committee meeting of Friday, 22 September 2017:

"That Council write to Crown Lands as a matter of urgency with regards to requesting that a barrier be erected to protect the aboriginal cultural heritage site in the precinct (maps to be provided) with letters of support sought from Brunswick Valley Landcare, Tweed-Byron Land Council and the Arakwal Corporation.”

1. Items 1-3

Staff have prepared a draft planning proposal to amend the LEP as per the resolution. Discussions with the Heritage Division of the Office of Environment and Heritage (OEH) and Department of Planning and Environment are still to occur. New South Wales Crown Holiday Parks Trust (NSWCHPT) are aware of the resolution and the work of staff in this regard. Further consultation with NSWCHPT will occur about the draft planning proposal subsequent to this report to Council.

2. Items 4 & 5

Resolution 17-523 provided a potential conflict with Resolution 17-418 in relation to the future use of the southern area of the Terrace Reserve.

In response to items 4 & 5, discussions have ensured with NSWCHPT since last year.

NSWCHPT have now submitted an Arboricultural Impact Assessment prepared by Arborsafe for the southern precinct of the Terrace Reserve to address the concerns raised in the resolution. An ecologist report has also been prepared.

At the time of writing this report only the Arborsafe report had been submitted to Council, and is attached to the report. Should the ecology report become available in time it will also be presented to Council by way of a late submission.

In summary, the Arborsafe report recommends an inspection, designated site use, regeneration and management regime for this section of the Park to provide for short term camping to continue as per Resolution 17-418.

This report takes into account the previous ecological report prepared by Dr Robert Kooyman (August 2017) as presented to Council including its recommendations. It proposes a compromise put forward by the Kooyman report to enable a coexistence and enhancement of the Coastal Cypress Pines (a known Endangered Ecological Community) and retention of the southern precinct as a camping area. Relevant extracts from the Arborsafe report are provided below:

Extract page 12

Extract page 13

Extract Page 14

Extract page 17

In the circumstances, and based on the assessment provided by Arborsafe, it is reasonable now for Council to support the progression by staff of the ATO application for the Terrace Reserve Holiday Park with conditions included to meet resolution 17-418 (a) and (b) below.

a) Southern Cypress Pine Precinct is to be restricted to short-term camping sites with no permanent residents or cabins to be relocated to the area.

b) Camping practices in Southern Cypress Pine Precinct will observe and protect structural root zones of the Cypress Pines as part of an ongoing monitoring program.

It is envisaged that the recommendation put forward now for the Terrace Reserve Holiday Park will provide for an appropriate and ongoing level of protection of the Coastal Cypress Pines. It will also provide an approval regime consistent to all three holiday parks in Brunswick Heads with regard to legislative requirements for planning and caravan park regulation.

3. Item 6

Correspondence sent.

Financial Implications

N/A

Statutory and Policy Compliance Implications

Local Government Act 1993

Section 68 Approval to Operate

The operation of caravan parks and camping grounds require Approval to Operate (ATO) under

Section 68 (Part F2) of the Local Government Act 1993. Applications are lodged by the land owner

to continue the operation of caravan park and camping ground activities and application fees are paid in accordance with Councils’ adopted fees and charges.

The process of assessing and determining ATO applications is regulated under Chapter 7 Part 1 of

the Local Government Act 1993. Part of the consideration of such applications involves the

auditing of compliance with the Local Government (Manufactured Home Estates, Caravan Parks,

Camping Grounds and Moveable Dwellings) Regulation 2005 (“the Regulation”).

Once it has been determined that the application represents the actual site activities, and satisfies

the requirements of the Regulation, then an ATO approval is granted. Once an approval has been

issued Council may determine to extend or renew an approval (but without changing the terms of

the approval) if satisfied there is good cause for doing so.

Section 105 Circumstances in which approval is taken to have been refused

(1) If the council has not determined an application:

(a) within the period of 40 days after the application is lodged with it, except as provided by paragraph (b), or

(b) within the period of 80 days after the application is lodged with it in the case of an application for which the concurrence of a person or authority is required by or under this Act,

the council is, for the purposes only of section 176, taken to have determined the application by refusing approval on the date on which that period expires.

(2) Nothing in subsection (1) prevents the council from determining an application after the expiration of the 40-day or 80-day period, whether on a review under section 100 or otherwise.

(3) A determination under subsection (2) does not prejudice or affect the continuance or determination of an appeal made under section 176 in respect of a determination that is taken under subsection (1) to have been made, subject to subsection (4).

(4) Where a determination under subsection (2) is made by granting approval, the council is entitled, with the consent of the applicant and without prejudice to costs, to have an appeal made under section 176 in respect of a determination that is taken by subsection (1) to have been made, withdrawn at any time before the appeal is determined.

Section 72 Determination of applications by the Crown

(1) A council, in respect of an application for approval made by the Crown or a person prescribed by the regulations, must not:

(a) refuse to grant approval, except with the written consent of the Minister, or

(b) impose a condition of an approval, except with the written consent of the Minister or the applicant.

(2) If the council proposes to refuse to grant approval or to impose a condition of approval, it must immediately notify the applicant.

(3) After the applicant is so notified, the council must submit to the Minister:

(a) a copy of the application for approval, and

(b) details of its proposed determination of the application, and

(d) any relevant reports of another public authority.

(4) The applicant may refer the application to the Minister whether or not the council complies with subsection (3).

(5) After receiving the application from the council or the applicant, the Minister must notify the council and the applicant of:

(a) the Minister’s consent to the refusal of approval, or

(b) the Minister’s consent to the imposition of the council’s proposed conditions, or

(c) the Minister’s intention not to agree with the council’s proposed refusal and the period within which the council may submit any conditions it wishes to impose as conditions of approval, or

(d) the Minister’s refusal to agree with the council’s proposed conditions and any conditions to which the Minister’s consent may be assumed.

(6) At the end of the period specified in subsection (5) (c), the Minister must notify the council and the applicant:

(a) whether the Minister consents to the imposition of any of the conditions submitted by the council during that period and, if so, which conditions, or

(b) of the conditions to which the Minister’s consent may be assumed.

(7) The Minister must notify the council and the applicant of the reasons for a decision under subsection (5) or (6).

(8) If the council does not determine the application within the period notified by the Minister for the purpose, the council is taken, on the expiration of that period, to have determined the application in accordance with the Minister’s consent.

Section 73 Effect of council’s failure to determine Crown application

(1) If the council does not determine an application to which section 72 applies within the relevant period specified in section 105, the council is taken, on the expiration of that period, to have refused the application.

(2) If the application is taken to have been refused, the applicant may refer the application to the Minister for determination.

(3) The Minister may determine an application so referred to the Minister.

(4) The Minister’s determination has effect as if it were a determination of the council.

BYRON SHIRE COUNCIL

Staff Reports - Infrastructure Services 13.26

Report No. 13.26 All Abilities Access Report

Directorate: Infrastructure Services

Report Author: Pattie Ruck, Open Space Facilities Coordinator

File No: I2018/459

Theme: Community Infrastructure

Open Space and Recreation

Summary: To provide a report on the below resolution.

Council resolved on 24 April 2017 to:-

1. Provide a report on:

a) The different options for providing beach access to all Byron Shire beaches, including temporary options such as Mobility Matting

b) Costs of providing all ability beach access on all Byron Shire’s beaches

c) A preferred priority list of locations to ensure at least all ability access point at each beach

d) Possible funding sources

2. Liaise with relevant stakeholders, including Marine Parks Authority, the Arakwal Corporation, Access Consultative Working Group (ACWG), NPWS and Disabled Surfers Association, Far North Coast to provide information on matters arising from point 1.

3. Ensure this report informs Councils current Disability Inclusion Action Planning (DIAP) which is required by the NSW Disability Inclusion Act 2014 (The Act).

4. Write to local State and Federal Members and relevant Ministers seeking support in providing this essential infrastructure

RECOMMENDATION:

1. That Council note the report.

2. That the three (3) main priority areas for All Abilities Access be included for consideration within the 2018/19 draft budget.

3. That further consultation with relevant stakeholders continues throughout the detailed design phase.

Attachments:

1 Clarkes Beach Access Options Report
Principal Coastal Engineer, Water Research Laboratory School of Civil and Environmental Engineering UNSW Sydney, E2017/102314 ⇨

2 ACWG Feedback All, E2018/29889 ⇨

3 Cape Byron at DPI Feedback, E2018/29891 ⇨

4 NPWS Feedback, E2018/29892 ⇨

5 Quotation on matts and mobi chairs, E2018/29893 ⇨

Report

Preferred priority list of four locations to ensure at least all ability access point at each beach.

Please note this priority list is based on relative usage, geographical equity, Council’s resources distributed to maximise access for the greatest number of people in the community, Council staff researching possible locations for all abilities access and liaising with relevant stakeholders.

Currently, two Sandcruiser Beach Wheelchairs are available to use in Byron Shire.

One of the wheelchairs is located at the Byron Surf Club at Main Beach and the other at the Brunswick Valley Community Centre opposite the Brunswick Heads Surf Life Saving Club.

The Sandcruiser Beach Wheelchairs are available for free public use, ensuring access to the beach for everyone.

These wheelchairs have been gratefully received by wheelchair user groups.

Applicable Australian Standards for All Abilities Access – AS 1428

For wheelchair access, Australian Standard 1428 Design for access and mobility requires that ramps have a maximum slope of 1V:14H, with flat landings (1200 mm long) provided every 9 m, giving an overall slope of approximately 1V:16H for long ramps.

While GeoCortex (Council’s GIS System) could be used to calculate initial contours at the preferred locations a detailed survey and concept design would be required to ensure standards are feasible for the locations outlined.

Priority One – Clarkes Beach All Abilities Access

This access location already exists.

This all abilities access at Clarkes Beach is currently under repair due to recent erosion at Clarkes Beach.

The alternatives for this location are currently being investigated by The Team Leader for Open Space and outlined in Attachment 1 (E2017/102314).

This ongoing process will determine any costs of providing and maintaining this particular location. It does not appear that the Clarkes ramp was constructed to standard, the installed path differing from the actual design. The new concept designs will take this into consideration and be amended to provide an all abilities access. The feedback from Stakeholders has suggested this location as a strong option as the water is fairly protected from swell.

Priority Two – Main Beach

There are two possible locations at Main Beach.

Option 1 - The existing ramp for the Surf Life Saving vehicles could be utilised as an access path and mobile matting on the sand for access to the water.

From initial Geocortex investigations ramp modification may be necessary as the ramp measurements are outside of the Australian Standard of flat landings (1200 mm long) provided every 9 m.

The ramp is currently longer than the 9 m requirement; however the slope of the ramp is also calculated outside of the slope tolerances for 1V:16V.

This location would require both ramp modification of length and slope to remain inside of the AS 1428. The mobile matting could be stored at the Surf Life Saving Club.

Currently one of the Sandcruiser wheelchairs is housed at the Surf Club.

There are lifesaving services seasonally available at this location. The feedback from Stakeholders have suggested this location as a strong option as the water is fairly protected from swell. Proximity to Surf Club is ideal for additional personal safety when swimming.

Costing for providing beach access at Byron Main Beach Surf Ramp

Initial - $ 29,900.00

Breakdown - $ 13,200 +GST for max on low tide 36 metres mobile matting

- $ 6,200 + GST for one 50 meter Mobi-Roll N Stow devices

- $ 4,000 + GST for Survey, Concept Design and Detailed Design of ramp/slope

-$ 4,500 + GST Review of Environmental Factors (REF)

- $ 2,000 + GST Signage Upgraded

Ongoing – $ 8,600.00 + GST p.a.

Breakdown - $ 1,000 + GST training of life savers p.a

- $ 2,600 + GST storage at SLS rent

- $ 5,000 + GST maintenance and administration p.a

Option 2 - The red line below outlines another possible area that could be re-designed for a ramp or boardwalk for all abilities access. This feasibility would be depending on a survey result and possible concept designs available for this pathway.

From initial Geocortex investigations the slope of this particular area would require a new ramp to provide a slope within the AS 1428 standard. The mobile matting could be stored at the Surf Life Saving Club. Currently one of the Sandcruiser wheelchairs is housed at the Surf Club.

There are lifesaving services available during busy season at this location. This location would require a REF and Design Concepts. The additional ramp at this location would prevent any traffic conflicts on the existing ramp used by the SLS.

Costing for providing beach access at Byron Main Beach Other Ramp

Initial - $ 27,626.00

Breakdown - $ 10,926 +GST for max on low tide 30 metres mobile matting

- $ 6,200 + GST for one 50 meter Mobi-Roll N Stow devices

- $ 4,000 + GST for Survey, Concept Design and Detailed Design of ramp/slope

- $ 4,500 + GST Review of Environmental Factors (REF)

- $ 2,000 + GST Signage Upgraded

Ongoing – $ 8,600.00

Breakdown - $ 1,000 + GST training of life savers p.a

- $ 2,600 + GST storage at SLS rent

- $ 5,000 + GST maintenance and administration p.a

Priority Three – Brunswick Heads

Currently the Sandcruiser Beach Wheelchair is located at the Brunswick Valley Community Centre. After stakeholders consultation access at Torakina Beach would be the preferred location in Brunswick Heads. This location provides parking close by and the water access is calm and safe.

From initial GeoCortex investigations the slope of this particular area would require a new slope adjustment to fall within the AS 1428 standard. This location would require a REF and Design Concepts.

Torakina does not provide any life saving facilities and storage would need to be supplied for the mobi matts and mobi chair at this location. This location would require remote accessibility as the Life Saving Services are 500 m away.

Costing for providing beach access at Brunswick Heads Torakina

Initial - $ 32,805

Breakdown - $ 9,105 +GST for max on low tide 25 metres mobile matti

- $ 6,200 + GST for one 50 meter Mobi-Roll N Stow devices

- $ 7,000 + GST storage options

- $ 4,000 + GST for Survey, Concept Design and Detailed Design of ramp/slope

- $ 4,500 + GST Review of Environmental Factors (REF)

- $ 2,000 + GST Signage Upgraded

Ongoing – $ 10,000.00

Breakdown - $ 5,000 + GST storage at Storage at remote site.

- $ 5,000 + GST maintenance and administration p.a

Priority Four – South Golden Beach

Southern beach access is preferred as the car park is established and life savers are present at certain time of the year. The initial gradient calculated via GeoCortex calculates the steepest slope at this location as approximately 1V:13H. Mobile matting could be rolled up and stored at the life saving building. After stakeholders consultation this location is agreed to be on the bottom of the priority list due to remoteness and possible usage.

Costing for providing beach access at SGB

Initial - $ 77,766.00

Breakdown - $ 51,716.00 +GST for 142 metres mobile matting

- $ 18,600 + GST for three 50 metre Mobi-Roll N Stow devices

- $ 5,450 + GST for Mobi-Chair Floating Wheelchair

- $ 2,000 + GST Signage Upgraded

Ongoing – $ 8,600.00

Breakdown - $ 1,000 + GST training of life savers p.a

- $ 2,600 + GST storage at SLS rent

- $ 5,000 + GST maintenance and administration p.a

All Abilities Beach Access Products

Mobi-Chair Floating Beach Wheelchair

Mobi-Mat Beach Access Matting

Mobi-Roll N Stow

Other Access Points Considered

Suffolk Park Access – Alcorn Clifford Street car park access.

Negative aspects - the slope of this particular area would require a new slope adjustment and major engineering works to fall within the AS 1428 standard. There are no onsite storage alternatives. This location would require a REF and Design Concepts. There are lifesaving services available during busy season at this location only. The water entry is rough and unsafe. Stakeholder consultation considered this locations water access as rough and unsafe.

Broken Head – Carpark near Caravan Park.

Negative aspects - the slope of this particular area would require a new slope adjustment and major engineering works to fall within the AS 1428 standard. The distance between the carpark and water is in excess of 70m. There are no onsite storage alternatives. This location would require a REF and Design Concepts. The water entry can be rough, unsafe and rips are often present. Stakeholder consultation considered this locations water access as rough and unsafe.

Brunswick Heads – Community Centre – Location Map below.

Initially this was the preferred location in Brunswick Heads, however after consultation with stakeholders Torakina was highlighted as the preferred access point.

Currently the Sandcruiser Beach Wheelchair is located at the Brunswick Valley Community Centre. From initial GeoCortex investigations the slope of this particular area would require a new slope adjustment to fall within the AS 1428 standard.

This location would require a REF and Design Concepts. There are lifesaving services available during busy season at this location. There is car parking available close by. Mobile matting could be stored at the community centre or the Surf Lifesaving Club.

Relevant Stakeholder Consultation

Marine Park Authority contacted directly and asked for feedback on possible locations and their involvement. Supportive response received and noted the all abilities access points to be consistent with the objectives of the Marine Estate Management Act 2014.

Access Consultative Working Group (ACWG) contacted and consulted by Community Development Team in Council. Feedback on locations from ACWG received. The timing of the consultation was well received; location considerations need to factor in access to calm water, proximity to Surf Clubs and lifesavers. Torakina, Main Beach and Clarkes Beach were highlighted as the preferred option by the stakeholders.

Arakwal Corporation will be contacted and consulted as due process through the Request for Environmental Factors (REF) report on the individual locations.

NPWS contacted for comment or feedback on possible locations. The North Coast branch of NPWS responded to the preferred locations and stated their support for the provision of all abilities access on Council’s beaches and have noted the locations do not include NPWS estate.

Disabled Surfers Association contacted for input and feedback on locations outlined. Unfortunately we have not received any feedback from this association on several contact attempts.

Ensure this report informs Councils current Disability Inclusion Action Planning (DIAP) which is required by the NSW Disability Inclusion Act 2014 (The Act).

The DIAP is incorporated in the Integrated Planning and Reporting Framework, including the Community Strategic Plan (CSP), Delivery Program (DP) and yearly Operational Plan (OP). The requested report fits under the DP and OP. DP: “CI3.4.1 Ensure Council’s public spaces will be accessible and inclusive for all” and OP: “Review all current public spaces and map key access and inclusion barriers to develop priority schedule of works”.

Possible and appropriate Funding Sources

Upcoming grant availabilities to be informed by Council’s Grant Officer. Local, State and Federal requests for support and funding opportunities. Presently there are a number of grant schemes that could fund these projects – either individually, or as a whole. Most grants will require Council to match any funds 1:1.

· The Liquor and Gaming - Infrastructure Grants - Sports and Recreation (NSW) up to $200K

· Building Better Regions Fund round 3 Community Investments stream (Commonwealth) up to $1M

· Stronger Country Communities round 2 (NSW) up to $250K

· Community Development Grants (Commonwealth) up to $50K

There may also be an opportunity to develop these works as part of a larger project about dune regeneration and protection through one of the commonwealth or state environment agencies.

Council contribution to either a) Fully fund or b) contribute to a grant opportunity is from Crown Reserve that is available for the particular reserve.

Write to local State and Federal Members and relevant Ministers seeking support in providing this essential infrastructure

A letter has been sent to the Member for Ballina, MP Tamara Smith, State Member for Canterbury, MP Sophie Cotsis, Minister for Social Services The Hon Dan Tehan MP and Assistant Minister for Social Services and Disability Services The Hon Jane Prentice MP seeking support in providing this essential infrastructure. Currently waiting for responses.

Financial Implications

Grant funding sources opportunities identified as outlined in report. Grant process to be actioned upon detailed costings after REF and design concepts completed. Additional staff time allocation required for this specific project. Initially a budget of $ 30,000.00 required for REF and Survey, Concept Design and Detailed Design of ramp/slope for both Main Beach and Torakina Access points as the highest priority locations. This budget includes staff time of 7 hours a week for 12 weeks at $40 per hour. Financial implications for stage two of this project will need to be assessed upon receiving concept designs and associated quotes.

Statutory and Policy Compliance Implications

REF completion for the access points will ensure consideration of environmental factors and consultation with the Arakwal Corporation. DPI consultation will ensure the Marine Estate Management Act 2014 is adhered to. Consultation with Council staff and relevant stakeholders to ensure the concept designs take into consideration AS 1428 – Australia Standard for All Abilities Access.

BYRON SHIRE COUNCIL

Reports of Committees - Infrastructure Services 14.3

Reports of Committees - Infrastructure Services

Report No. 14.3 Report of the Local Traffic Committee Meeting held on 20 March 2018

Directorate: Infrastructure Services

Report Author: Stephanie Tucker, Traffic and Transport Assistant

File No: I2018/425

Theme: Community Infrastructure

Roads and Maritime Services

Summary:

This report contains the recommendations of the Local Traffic Committee from the meeting held on the 20 March 2018.

RECOMMENDATION:

1. That Council note the minutes of the Local Traffic Committee Meeting held on 20 March 2018.

2. That Council adopt the following Committee Recommendation(s):

Report No. 6.1 Regulatory Signage - No Stopping Signage - Gulgan Road opposite entrance road to Mevlana Community

File No: I2018/43

Committee Recommendation 6.1.1

That Council:-

1. Note the content of the correspondence from Melaleuca Properties.

2. Install a no stopping zone at the intersection, defined by a yellow line initially and if non compliance is an issue, install signs.

3. That Council adopt the following Committee Recommendation(s):

Report No. 6.2 RMS Recommendation to extend 60km/h speed zone at Ewingsdale McGettigans Lane Intersection

File No: I2018/67

Committee Recommendation 6.2.1

That Council note the speed review and the extension of the 60kph speed zone being implemented.

4. That Council adopt the following Committee Recommendation(s):

Report No. 6.3 Pocket Road - Petition - Speed Zone Review and Regulatory Signage

File No: I2018/204

Committee Recommendation 6.3.1

That Council:

1. Approve the use of intersection signage and line marking at the Pocket Road, Moffatts Road and Middle Pocket Road intersections as warranted.

2. Approve “Caution: Driveways” signs to be implemented along the Pocket Road as warranted.

3. Consider the allocation of $4,000 to carry out the works in the 2018/19 Capital Works Budget.

4. Refer the application for a speed zone review to the RMS.

5. That Council adopt the following Committee Recommendation(s):

Report No. 6.4 Events - Anzac Day 2018 - Road Closures in Byron, Mullumbimby, Brunswick Heads, Bangalow

File No: I2018/374

Committee Recommendation 6.4.1

1. That Council endorse the ANZAC Day Parades for 25 April 2018 for the Return Services League sub branches of Byron Bay, Mullumbimby, Bangalow and Brunswick Heads / Billinudgel.

2. That the endorsement provided in Part 1 is subject to:

a) implementation of the approved Traffic Management Plan and Traffic Control Plan, including the use of signed detours, as designed and implemented by those with appropriate accreditation;

b) that the impact of the event be advertised via a notice in the local weekly paper a minimum of one week prior to the operational impacts taking effect, noting it must include the event name, specifics of any traffic impacts or road closures and times, alternative route arrangements, event organiser, a personal contact name and a telephone number for all event related enquiries or complaints.

c) the event be notified on Council’s webpage.

d) the event organiser:

i. undertake consultation with community and affected businesses including adequate response/action to any raised concerns.

ii. undertake consultation with emergency services and any identified issues addressed.

iii. holding $20m public liability insurance cover which is valid for the event.

3. That Council:

a) assists where requested with implementing the necessary temporary road closures and detours; and

b) placing of public notice advertisements in a local weekly newspaper which is circulated prior to the event and a copy of which is placed on Council’s website.

6. That Council adopt the following Committee Recommendation(s):

Report No. 6.5 Events - Ballina to Byron Bay Coastal Charity Walk for Westpac Rescue Helicopter - 27 May 2018

File No: I2018/394

Committee Recommendation 6.5.1

1. That Council adopt the Traffic Control Plan for the Westpac Life Saver Rescue Helicopter fundraiser, Ballina to Byron Coastal Charity Walk, to be held Sunday 27 May 2018.

2. That the approval provided in Part 1 is subject to:

a. Receipt of a satisfactory Traffic Control Plan and Traffic Management Plan.

b. implementation of the approved Traffic Management Plan and Traffic Control Plan, including the use of signed detours, as designed and implemented by those with appropriate accreditation.

c. that the impact of the event be advertised via a notice in the local weekly paper a minimum of one week prior to the operational impacts taking effect, noting it must include the event name, specifics of any traffic impacts or road closures and times, alternative route arrangements, event organiser, a personal contact name and a telephone number for all event related enquiries or complaints.

d. the event be notified on Council’s webpage.

e. the event organiser:

i. undertake consultation with community and affected businesses including adequate response/action to any raised concerns.

ii. undertake consultation with emergency services and any identified issues addressed.

iii. holding $20m public liability insurance cover which is valid for the event.

iv. paying Council’s Road Event Application Fee prior to the event.

f. the use of marshals along Marine Parade who, for the purpose of aiding and forming participants into walking groups, are to undertake their duties in accordance with a pre-event risk assessment and management plan, a copy of which is to be provided to Council prior to the event

g. attainment (by the event proponent) of NPWS written acceptance of the event

3. That the approval in Part 1 is also subject to the following in regard to the use of Seven Mile Beach Road, that is:

a. signage, which specifies the date, hours and nature of the event, be positioned at the entrance and exit of Seven Mile Beach Road one week prior to the event;

b. on the day of the event, at 500m intervals, and facing both directions of travel, signs advising of “ Special Event - Charity Walk Ahead” (or similar) are installed prior, and removed after, the event occurs; and

c. a safety induction for participants advising of hazards be provided.

7. That Council adopt the following Committee Recommendation(s):

Report No. 6.6 CRM 2343/2018 Broken Head Reserve Road - Regulatory Signage

File No: I2018/421

Committee Recommendation 6.6.1

That Council prepare a plan and install “No Stopping” signs and line marking to control inappropriate car parking and to improve pedestrian safety along Broken Head Reserve Road, Broken Head where considered necessary.

8. That Council adopt the following Committee and Management Recommendation(s):

Report No. 7.1 Events - Byron Bay Triathlon 2018 - Traffic Management

File No: I2017/637

Committee Recommendation 7.1.1

That Council:-

1. Adopt the Traffic Control Plan for the 2018 Byron Bay Triathlon, subject to:

a. implementation of the approved Traffic Management Plan and Traffic Control Plan, including the use of signed detours, as designed and implemented by those with appropriate accreditation.

b. that the impact of the event be advertised via a notice in the local weekly paper a minimum of one week prior to the operational impacts taking effect, noting it must include the event name, specifics of any traffic impacts or road closures and times, alternative route arrangements, event organiser, a personal contact name and a telephone number for all event related enquiries or complaints.

c. the event be notified on Council’s webpage.

d. the event organiser:

i. undertake consultation with community and affected businesses including adequate response/action to any raised concerns.

ii. undertake consultation with emergency services and any identified issues addressed.

iii. holding $20m public liability insurance cover which is valid for the event.

iv. paying Council’s Road Event Application Fee prior to the event.

9. That Council adopt the following Committee Recommendation(s):

Report No. 7.2 Events - Bangalow Billy Cart Derby 2018- Byron St Road Closure

File No: I2018/234

Committee Recommendation 7.2.1

1. That Council endorse the Bangalow Billy Cart Derby to be held on Sunday 20 May 2018, that includes the temporary road closure below:

a. Byron Street, Bangalow between Ashton Street and Granuaille Road, between 6am and 4pm on Sunday 20 May 2018.

2. That the approval provided in Part 1 is subject to:

a. implementation of the approved Traffic Management Plan and Traffic Control Plan, including the use of signed detours, as designed and implemented by those with appropriate accreditation;

d. the event be notified on Council’s webpage.

e. the event organiser:

i. undertake consultation with community and affected businesses including adequate response/action to any raised concerns.

ii. undertake consultation with emergency services and any identified issues addressed.

iii. holding $20m public liability insurance cover which is valid for the event.

iv. paying Council’s Road Event Application Fee prior to the event.

10. That Council adopt the following Committee Recommendation(s):

Report No. 7.3 Kendall St Rail Crossing - Train and Vehicle Incidents

File No: I2018/405

Committee Recommendation 7.3.1

That Council:-

1. Note the content of the correspondence from Byron Bay Railroad Company Ltd.

2. Investigate, in conjunction with the Byron Bay Railroad Company, the issues raised.

3. Research level crossing safety and undertake risk assessment and refer back to the LTC if required.

11. That Council adopt the following Committee Recommendation(s):

Report No. 8.1 DA 10.2017.510.1 - Commercial Residential Development
Cnr Jonson and Browning Streets Byron Bay
Additional comments for JRPP Submission

File No: I2018/247

Committee Recommendation 8.1.1

That the committee comments be provided to Council’s Planners.

12. That Council adopt the following Committee Recommendation(s):

Report No. 8.2 Development Application 10.2013.128.3 - s96 Application to permit paid parking during Bluesfest 2018

File No: I2018/399

Committee Recommendation 8.2.1

That the committee’s comments be provided to Council’s Planners.

13. That Council adopt the following Committee Recommendation(s):

Report No. 8.3 Events - 2018 Splendour in the Grass Music Festival 20-22/7/

File No: I2018/401

Committee Recommendation 8.3.1

1. That Council approve the Splendour in the Grass 2018 TMP to be held on Friday 20 July 2018 to Sunday 22 July 2018, that includes the including the installation and enforcement of No Camping and No Stopping signs between 6am and 6pm, subject to conditions at Tweed Valley Way, Brunswick Valley Way and Yelgun Road.

2. That the approval provided in Part 1 is subject to:

a. separate approvals by NSW Police and RMS being obtained, noting that the event is on a state road or may impact the state road network;

b. implementation of the approved Traffic Management Plan and Traffic Control Plan, including the use of signed detours, as designed and implemented by those with appropriate accreditation;

d. the event be notified on Council’s webpage.

e. the event organiser:

i. undertake consultation with community and affected businesses including adequate response/action to any raised concerns.

ii. undertake consultation with emergency services and any identified issues addressed.

iii. holding $20m public liability insurance cover which is valid for the event.

iv. paying Council’s Road Event Application Fee prior to the event.

v. the holding of an event debrief within a month following the festival which includes but not limited to Council, RMS and Police.

3. That Council’s Parking Enforcement be invited to assist the event in compliance of no stopping areas within the Road Reserve..

Attachments:

1 Minutes 20/03/2018 Local Traffic Committee, I2018/441 ⇨

Report

The attachment to this report provides the minutes of the Local Traffic Committee Meeting of 20 March 2018 for determination by Council. The agenda for this meeting can be located on Council’s website at:

http://byron.infocouncil.biz/Open/2018/03/LTC_20032018_AGN_886_AT.PDF

The committee recommendations are supported by management and are provided in the attachment to this report.

Financial Implications

As per the Reports listed within the Local Traffic Committee Meeting of 20 March 2018.

Statutory and Policy Compliance Implications

As per the Reports listed within the Local Traffic Committee Meeting of 20 March 2018.

BYRON SHIRE COUNCIL

Questions With Notice 15.5

Question with Notice No. 15.5 Agglomerated Data on Dwelling Supply in Byron Shire

File No: I2018/620

Cr Coorey asks the following question:

In view of the upcoming Residential Strategy and to assist in considering future planning decisions, can councillors and the community be advised of changes in residential approvals over the last two terms of Council (and since the operation of the Byron LEP 2014).

Can staff please provide figures for the number of new dwellings, rural tourist accommodation rooms and new lots approved as complying development, council approved development and JRPP approved development in the 2012, 2013, 2014, 2015, 2016 and 2017 calendar years. Can these figures be divided into:

In rural areas all approvals, including:

· primary dwellings

· dual occupancies

· secondary dwellings

· workers dwellings

· studios

· Rural tourist cabins, farm stay accommodation or eco tourism accommodation (total bedrooms)

In urban areas all approvals including:

· detached dwellings

· secondary dwellings

· dual occupancies approved as strata title or freehold developments

· multi dwelling housing approved as strata title or freehold developments

· studios

· Shop top housing dwellings

and

· Ancillary caretaker dwellings/Ancillary managers and staff dwellings.

· Ancillary dwellings in industrial and business zones

· New lots under 800m2 with dwelling entitlements

· New lots under 1000m2 with dwelling entitlements

· New lots over 10002 with dwelling entitlements

NB please count total dwellings, total rooms and total lots, not total approvals as often multiple dwellings are included in a single approval such as multi dwelling housing, dual occupancies or a new house and secondary dwelling.

Rural includes RU1, RU2, RU5, R5 and environmental zones.

Urban includes all Residential, Business and Industrial Zones.

Response Director Sustainable Environment and Economy:

The tables below break down the Development (DA) and Complying Development (CDC) applications approved during the calendar years from 2012 to 2017.

It is not possible to provide the level of detail requested in the question above as information collected and collated by Council does not necessary correlate. As such the breakdown in the response provided below is based on that information that is readily able to be accessed and presented by staff from Council records or other sources.

Dwellings

The figures show number of dwelling (or studios) approved during these periods, not the number of applications. It should be noted that bedroom numbers are not recorded on Council’s electronic register and therefore have not been included in the data. To capture this information each application would need to be individually reviewed by a staff member, a task that is not resourced to be done.

The Census includes a question on the number of bedrooms per household which may be of use in this regard. A link to the Byron Community profile web follows: https://profile.id.com.au/byron

2017		No. of Dwellings
Rural		128
Dual Occupancy		26
Dwelling		47
Secondary Dwelling		37
Studio		4
Tourist Facility		14
Urban		276
Dual Occupancy		23
Dwelling		65
Medium density development		70
Residential Units		3
Secondary Dwelling		113
Studio		2
Grand Total		404
2016	No. of Dwellings
Rural	150
Cabin - Rural Tourist	3
Dual Occupancy	22
Dwelling	56
Secondary Dwelling	46
Studio	10
Tourist Facility	19
Urban	282
Dual Occupancy	22
Dwelling	103
Medium density development	15
Residential Units	17
Secondary Dwelling	115
Studio	4
Tourist Facility	6
Grand Total	432

2015		No. of Dwellings
Rural		119
Aged Care Units		4
Cabin - Rural Tourist		2
Dual Occupancy		14
Dwelling		52
Secondary Dwelling		27
Studio		13
Tourist Facility		7
Urban		287
Dual Occupancy		39
Dwelling		99
Medium density development		18
Residential Units		19
Secondary Dwelling		102
Studio		3
Tourist Facility		7
Grand Total		406
2014	No. of Dwellings
Rural	106
Dual Occupancy	11
Dwelling	57
Secondary Dwelling	22
Studio	13
Tourist Facility	3
Urban	235
Dual Occupancy	34
Dwelling	99
Residential Units	17
Secondary Dwelling	79
Studio	6
Grand Total	341
2013	No. of Dwellings
Rural	74
Dwelling	44
Dual Occupancy	6
Studio	6
Tourist Facility	7
Secondary Dwelling	11
Urban	155
Dwelling	58
Dual Occupancy	32
Studio	1
Medium Density Development	5
Secondary Dwelling	59
Grand Total	229

2012	No. of Dwellings
Rural	76
Dwelling	46
Dual Occupancy	3
Studio	8
Secondary Dwelling	7
Tourist Facility	12
Urban	240
Dwelling	67
Dual Occupancy	26
Residential Unit	15
Studio	4
Medium Density Development	72
Secondary Dwelling	56
Grand Total	316

Subdivisions

It should be noted that lot sizes are not recorded on Council’s electronic register and therefore have not been included in the data in Table 1. To capture this information each application would need to be individually reviewed by a staff member, a task that is not resourced to be done.

Table 1 below shows the number of lots approved between 2012-2017.

Table 1	Rural	Urban	Total
2017	32	38	70
2016	53	50	103
2015	36	17	53
2014	55	42	97
2013	20	394 *	414
2012	122	140	262

Source: Authority

Notes:

Does not include strata subdivision

Does not distinguish between properties created with or without dwelling entitlements

* State Government approvals and concept approval for Bayside Brunswick Heads

Table 2 shows the breakdown of lots registered (i.e. constructed) between 2012 and 2017 including lot sizes (derived from Council’s GIS software). These lots do not indicate if there is a dwelling entitlement as that data is not available on Council’s GIS software.

Table 2	<800	>800 and <1000	>1000	Total
2017	39	14	110	163
2016	34	20	110	164
2015	87	25	105	217
2014	32	12	90	134
2013	49	22	59	130
2012	31	9	66	106

Source: Geocortex

Notes:

Does not include strata subdivision

Does not distinguish between properties created with or without dwelling entitlements

Does not does not break down if the subdivision was a boundary adjustment or torrens (i.e. additional lot/s)

Requested funds from funding bodies	18,933,875
Council cash contribution	10,393,699
Council in-kind Contribution	365,158
Other contributions	17,324,960
Funding applications submitted and awaiting notification (total project value)	47,017,692

Wellbeing framework pillars	IP&R QBL themes	Draft Byron CSP objectives
Society & culture	Society and culture	We celebrate our lifestyle, culture and sense of community
Environment	Environment	We protect and enhance our natural environment
Environment	Environment	We have infrastructure, transport and services which meet our expectations
Economy	Economy	We manage growth and change responsibly
Civic leadership	Governance/civic leadership	We have community led decision making which is open and inclusive

SOCIAL AND CULTURAL	ENVIRONMENTAL
Housing affordability Relative socioeconomic equality Community services and facilities Self reported health Life satisfaction Safety Community connectedness Social support Cultural diversity Cultural participation Recreation Public art	Responsibility for environmental sustainability Greenhouse gas emissions Energy use Waste minimisation Healthy waterways Biodiversity Open space Road safety Active and public transport
ECONOMIC	CIVIC LEADERSHIP
Economic diversity and resilience Early childhood education and care access Innovation Work-life balance Growth and development	Trust Political participation Council performance