Agenda of Ordinary Meeting

BYRON SHIRE COUNCIL

Staff Reports - General Manager 13.1

Staff Reports - General Manager

Report No. 13.1 Northern Rivers Joint Organisation

Directorate: General Manager

Report Author: Mark Arnold, Acting General Manager

File No: I2018/1300

Theme: General Manager

General Manager

Summary:

This report has been prepared to provide Council with information relating to the establishment of the Northern Rivers Joint Organisation (NRJO) and to allow Council to consider and provide comment to the NRJO on the draft Northern Rivers Joint Organisation Charter (Attachment 1), the draft Northern Rivers Joint Organisation Code of Meeting Practice (Attachment 2) and the draft Northern Rivers Joint Organisation Expenses and Facilities Policy (Attachment 3) for consideration by the NRJO at its next meeting scheduled for 6 August 2018 at Ballina.

A copy of the Draft minutes of the inaugural meeting of the NRJO held on 22 June 2018, have been included at Attachment 4 for the information of Councillors.

RECOMMENDATION:

That Council:

1. Receives and notes the report on the Northern Rivers Joint Organisation.

2. Endorses the;

a) draft Northern Rivers Joint Organisation Charter (Attachment 1 E2018/57477)

b) draft Northern Rivers Joint Organisation Code of Meeting Practice (Attachment 2 E2018/57478)

c) draft Northern Rivers Joint Organisation Expenses and Facilities Policy (Attachment 3 E2018/57479)

3. Appoints the Deputy Mayor as the alternate voting delegate to the Northern Rivers Joint Organisation.

Attachments:

1 Northern Rivers Joint Organisation draft Charter from June 2018 Meeting for 02 August 2018 Council Meeting, E2018/57477 ⇨

2 Northern Rivers Joint Organisation draft Code of Meeting Practice from June 2018 Meeting for 02 August 2018 Council Meeting, E2018/57478 ⇨

3 Northern Rivers Joint Organisation draft Expenses and Facilities Policy from June 2018 Meeting for 02 August 2018 Council Meeting, E2018/57479 ⇨

4 Draft NRJO minutes 2018 06 22 for Council Report 02 August Meeting, E2018/57476 ⇨

Report

Background Information

The Northern Rivers Joint Organisation (NRJO) was proclaimed on Monday 14 May 2018. The following are 'member councils' of the NRJO:

• Tweed Shire Council

• Byron Shire Council

• Ballina Shire Council

• Lismore City Council

• Richmond Valley Council

• Kyogle Council

The following organisations are proposed as non-voting or associate members of the NRJO:

• the NSW Government, as represented by a nominee of the Secretary of the Department of Premier and Cabinet, currently the Department of Premier and Cabinet, Director North Coast Region

• Rous County Council

• Clarence Valley Council

• Tenterfield Shire Council

• Gold Coast City Council

• Scenic Rim Regional Council

• RDA Northern Rivers

Previous Council Consideration

Council at its Ordinary Meeting held on 22 March 2018 resolved (via Resolution 18-183) as follows;

“Resolved that, in accordance with Part 7 of Chapter 12 of the Local Government Act 1993

(Act), Council:

1. lnform the Minister for Local Government (Minister) of the Council's endorsement of

the Minister recommending to the Governor the establishment of a Joint Organisation

in accordance with this resolution.

2. Approve the inclusion of the Council's area in the Joint Organisation's area

3. Request that the Joint Organisation be established to cover the Council's area and any

one or more of the following council areas:

a) Richmond Valley

b) Lismore City

c) Ballina Shire

d) Kyogle

e) Tweed Shire

4. Authorises the General Manager to provide the Minister with a copy of this resolution

including the date on which Council made this resolution before 23 March 2018.

5. Authorises the General Manager to, on the expiry of a period of 28 days from the making of this resolution, inform the Minister that this resolution has not been rescinded.

6. Write a letter of support for the inclusion of Rous County Council as an associate

member (non-voting representative) of the Northern Rivers Joint Organisation be sent

to the Northern Rivers Joint Organisation on formation.”

Report

The NRJO held its inaugural meeting on June 22, 2018. A copy of the unconfirmed minutes from this meeting are included in the attachments to this report (Attachment 4 E2018/57476). At this meeting the NRJO;

1. Elected Cr Danielle Mulholland as Chair unopposed

2. Adopted a draft Charter for consultation with the member Councils

3. Appointed Mr Tim Williamson, Director of Regional Development with RDA Northern Rivers as their interim Executive Officer and provided the necessary delegations

4. Adopted a Code of Conduct and procedures for its administration

5. Agreed to transfer the NOROC Code of Conduct Panel of Conduct Reviewers

6. Adopted a draft Code of Meeting Practice for consultation with the member Councils

7. Adopted a draft Expenses and Facilities Policy for consultation with the member Councils

8. Set down there meeting dates for the next 18 months

9. Requested the new Executive Officer to seek proposals for an external consultant to assist with the development of a Statement of Strategic Regional priorities based on the 10 Regional Priorities adopted by NOROC.

The next meeting of the NRJO is set down for 6 August 2018 at Ballina.

The last meeting of NOROC was also held the same day where it was agreed to wind up NOROC and transfer all its assets and commitments across to the NRJO.

The draft Charter adopted by the NRJO provides for;

• One voting representative per member council (the Mayors)

• Allows for an alternate voting delegate in the absence of the Mayor, as determined by the member Council

• That decisions are made through a majority (4/6) voting model

• That the annual membership fees for the NRJO are apportioned to the member Councils with 50% of costs being split in equal amounts and 50% of costs apportioned by population, with any financial contributions over and above the annual membership fees to be referred to the member councils to resolve.

• The following non-voting or associate members of the NRJO:

o Rous County Council

o Clarence Valley Council

o Tenterfield Shire Council

o Gold Coast City Council

o Scenic Rim Regional Council

o RDA Northern Rivers

Financial Implications

The current proposal is for the financial arrangements that were used for NOROC to be used initially for the NRJO until such time as a more detailed assessment of cost sharing options has been developed based on the NRJO budget.

Council has included an estimate of $15,400 in the 2018/19 Budget for its contribution towards the operation of NRJO. Based on the preliminary work undertaken to develop a budget for the NRJO for the 2018/19 Financial Year, the contribution to be levied on Council will be within this budget allocation.

It is anticipated that the contributions for the following four years will be increased but this increase will be capped at no more then 25% per annum. This would see the contribution increase from $15,067 to approximately $37,600 for the 2022/2023 Financial Year.

The current year projections for NOROC are that there will be at least $220,000 remaining in the NOROC bank account at the end of the 2017/18 financial year period. At present, it is proposed that NOROC be wound up and these funds transferred to the NRJO. The Office of Local Government has also advised that it will be providing $300,000 to the NRJO in its first year. Given this, it is unlikely that there would be any budget issues for Council for the first year of the NRJO, with any funding implications to be reviewed during future budget processes.

Statutory and Policy Compliance Implications

The Northern Rivers Joint Organisation (NRJO) was proclaimed on Monday 14 May 2018.

Council through Resolution 18-183 resolved to form the Joint Organisation with the following Councils:-

1. Richmond Valley

2. Lismore City

3. Ballina Shire

4. Kyogle

5. Tweed Shire

BYRON SHIRE COUNCIL

Staff Reports - Corporate and Community Services 13.7

Report No. 13.7 BSC ats Ardill Payne & Partners - 33 Kallaroo Circuit - Land and Environment Court Proceedings

Directorate: Corporate and Community Services

Report Author: Ralph James, Legal Counsel

Patricia Docherty, Planner

File No: I2018/1261

Theme: Corporate Management

Corporate Services

Summary:

On 13 November 2017, Development Application No.10.2017.639.1 (DA) was received by Council for the construction of a new dwelling house to create a dual occupancy (detached), alterations and additions to an existing dwelling house and a two (2) lot Strata subdivision of land at 33 Kallaroo Circuit, Ocean Shores.

On 1 February 2018 the applicant commenced proceedings (application) in Class 1 of the Land and Environment Court's jurisdiction against Councils deemed refusal of the DA.

On 22 February 2018 Council refused the DA.

The application is fixed for s 34AA conciliation and hearing on 6 and 7 August 2018.

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

RECOMMENDATION:

That the General Manager be authorised to enter into consent orders or a s34 Conciliation Agreement approving Development Application 10.2017.639.1, subject to appropriate conditions to be finalised under delegation.

Attachments:

1 Amended Plans Proposed development 26.06.2018.pdf, E2018/57859 ⇨

2 Amended - Clause 4.6 variation (June 2018).pdf, E2018/57860 ⇨

3 Without Prejudice Conditions of Consent 10.2017.639.1 Ardill ~ 33 Kallaroo Circuit, Ocean Shores.pdf, E2018/57865 ⇨

Report

The DA was publically notified to adjoining and nearby residents between 30 November 2017 and 13 December 2017. Council received one (1) submission.

The DA proposes integrated development that requires a Bushfire Safety Authority under section 1008 of the Rural Fires Act 1997.

On 22 December 2017, Council sent the following correspondence to advise the Applicant that they had the option to withdraw the DA or it will proceed to be recommended for refusal:

A similar application for development of the site has previously been refused (Development Application No. 10.2016.844.1). Whilst Development Application No. 10.2017.639.1 partly addresses some of the reasons for refusal in relation to landscaping and private open space, it is considered that it does not address all reasons for refusal.

The application does not adequately justify variation to a development standard for minimum lot size and the development has not been redesigned to address (or] reduce the overall layout and footprint of the dwelling resulting in overdevelopment of the site and stacked parking and insufficient driveway access.

It is recommended that Development Application No.10.2017.639.1 be withdrawn by the Applicant in the next 28 days;

Council will proceed to refuse Development Application No. 10.2017.639 pursuant to Section 80 the Environmental Planning & Assessment Act 1979.

Please note that the refund amount for a withdrawal reduces with time taken to advise Council that you are withdrawing the application.

The Applicant responded on 9 January 2018 to advise that they would not withdraw the DA.

The DA was recommended for refusal by Council Officers. The DA was reported to Council on 22 February 2018 where Council resolved to refuse the development application.

Resolved that pursuant to Section 80 of the Environmental Planning & Assessment Act 1979, development application .10.2017.639.1 for construction of a new dwelling house to create a dual occupancy (detached), alterations and additions to existing dwelling house and two (2) lot strata subdivision of land, be Refused for 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 4.1E of Byron Local Environmental Plan 2014, which sets an 800m² minimum lot size for dual occupancies (detached) in the R2 Low Density Residential Zone.

b) Pursuant to Section 79C (1)(a)(i) of the Environmental Planning and Assessment Act 1979, the proposed development does not comply with clause 4.1of Byron Local Environmental Plan 2014, which sets a 600m² minimum lot size for new lots.

c) 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 development standards is unreasonable or unnecessary or that there are sufficient environmental planning grounds to justify contravening the standard’ or that proposed development is in the public interest.

d) 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 driveway width for the rear dwelling does not meet obstruction clearance requirements in accordance with Australian Standards AS2890.1.

e) Pursuant to Section 79C (1) (a) (iii) of the Environmental Planning and Assessment Act 1979, the proposed development does not comply with Chapter B9 Landscaping of Byron Development Control Plan 2014. The proposal does not comply with the objectives of Part B9.5 Dual Occupancies and Semi Detached Dwellings. Landscape principles to provide a pleasant environment for enjoyment of occupants of each dwelling – lack of deep soil planting in rear yard for use by existing property.

f) Pursuant to Section 79C (1)(a)(iii) of the Environmental Planning and Assessment Act 1979, the proposed development does not comply with Chapter D1 Residential Accommodation in Urban, Village and Special Purpose Zones of Byron Development Control Plan 2014. Private open space for the existing dwelling comprises a minimal sized fenced area (34 m²) bound by a driveway on two sides. Insufficient information has been provided to demonstrate how the proposed development can meet the objectives of Part D1.5.4 Private Open Space, privacy fence on a front boundary cannot be supported under Part D.1.2.5; and Part D1.5.2 DCP Character principles – does not provide adequate private open space – conflicts with proposed rear privacy fence, driveway width and interface with vehicles.

g) Pursuant to Section 79C (1)(a)(iii) of the Environmental Planning and Assessment Act 1979, the proposed development does not comply with Chapter B4 Traffic Planning, Vehicle Parking, Circulation and Access of Byron Development Control Plan 2014 in relation to the provision of stacked car parking for both dwellings. Fails to demonstrate it will not adversely affect the use of private open space and width of driveway not meeting obstruction clearance requirements in accordance with Australian Standards AS2890.1.

h) 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 three bedroom dwelling and associated vehicle access, resulting in an overdevelopment of the site.

i) 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. Options for an alternative design may exist to achieve better outcomes in relation to private open space, landscaping, fencing vehicle access, and car parking.

The Notice of Determination was issued on 27 February 2018.

The proposal

The proposal involves the construction of a new dwelling house and alterations and additions to an existing dwelling house on the site to create a dual occupancy (detached) and two lot strata subdivision resulting in two (2) dwelling houses on separate lots.

Specifically, the proposal involves the following work:

· Alterations and additions to an existing single storey dwelling house:

o Partial demolition of an attached double garage involving relocation of the garage wall for the purposes of creating a 3,010 mm wide vehicular driveway to the rear of the lot;

o A clearance width of not more than 2,500 mm between the eaves of the dwelling house and the eastern boundary fence; and

o Enclosure of the existing outdoor patio area approximately 34 m² with 1,800 mm privacy fencing on two (2) sides east and north, immediately adjoining vehicle access driveway and maneuvering areas for the proposed single story detached dwelling house.

• Erection of a single storey detached dwelling house with a gross floor area of 126.66 m² comprising the following:

o Three (3) bedrooms, two (2) bathrooms, lounge, dining and kitchen area and a laundry;

o Rear at grade car-port and car space in stacked parking arrangement behind the existing single storey dwelling house; and

o Vehicular access to the rear of the lot via 3,010 mm wide vehicular driveway from Kallaroo Circuit with a maximum clearance of 2,500 mm between the eves of the existing dwelling house and boundary fence.

The site

The subject site is a 760.7 m² residential allotment, legally described as Lot 2083 DP 808462, known as 33 Kallaroo Circuit, Ocean Shores.

The subject site is rectangular in shape, with a width of 20m and a maximum depth of 38.31 m. The level of the site generally falls to the street from 4.7 m on the rear boundary to 4.1 m on the street frontage.

The site has a street frontage and a driveway cross over to the local road to Kallaroo Circuit. There is no vehicular access immediately from the rear.

Existing on the site is a single storey dwelling house with attached two (2) car garage and driveway access from Kallaroo Circuit.

Figure 1: Aerial image from Council’s GIS (2015)

Figure 2: Existing dwelling looking north from Kallaroo Circuit (centre frame). The double garage to be reduced to a single garage with a new driveway down the eastern boundary.

The locality

Located immediately to the north of the proposed development is a Council owned reserve, being Lot 19 in DP 872205.

Both adjoining lots to the east and west contain residential dwellings.

The east of the site adjoins the side boundary of a residential allotment with a site area of 884.1 m², legally described as Lot 2082 in DP 808462.

The west of the site adjoins the side boundary of a residential allotment with a site area of 771.7 m², legally described as Lot 2084 in DP 808462.

The south of the site has frontage onto the local road, Kallaroo Circuit, and is directly opposite the intersection with Kanda Court, a cul-de-sac that provides access to eleven (11) residential allotments, legally described as Lots 2091-2101 in DP 808462.

In summary, the site is located in an established low density residential area in the suburb of Ocean Shores. Surrounding properties comprise of single dwellings with the exception of the adjoining Council reserve located immediately to the north of the site.

Land and Environment Court proceedings

On 1 February 2018 the applicant made application to the court Class 1 of each jurisdiction appealing against Councils deemed refusal of the DA.

The application is a residential development appeal as it concerns detached single dwellings and dual occupancies (including subdivision), or alterations or additions to such dwellings or dual occupancies.

Residential development appeals are required to be dealt with by a special, streamlined conciliation and adjudication process under s 34AA of the Land and Environment Court Act. This involves the usual conciliation process (see below) but with two important differences.

First, the Court must arrange a conciliation conference for residential development appeals.

Second, if the parties are not able to agree about the substantive outcome at the conciliation conference, the conciliation commissioner or registrar must terminate the conciliation conference and immediately proceed to adjudicate and dispose of the proceedings, either after a hearing held immediately or, if the parties consent, on the basis of what has occurred at the conciliation conference. The parties do not have the option of having the proceedings return to the Court to be heard by a different commissioner or judge.

The application is fixed for a s 34AA conciliation and hearing on Monday 6 and Tuesday 7 August 2018.

On 23 March 2018 Council filed its Contentions in respect of the application. Council contended that the DA should be refused on the following grounds:

Minimum subdivision lot size

The proposed development does not comply with the minimum lot size for subdivision in Clause 4.1 of BLEP 2014.

Minimum lot size for dual occupancy development

The proposed development does not comply with the minimum lot size for dual occupancy development in Clause 4.1 E of BLEP 2014.

Essential services - vehicular access and stacked parking

The proposed development does not comply with Clause 6.6 Essential Services of BLEP 2014, which provides that development consent must not be granted to a development unless suitable vehicular access has been provided.

Stormwater drainage

Insufficient information has been provided to demonstrate that the new residence can drain to the street.

Landscape principles

The proposed development does not provide adequate landscaping and does not comply with BDCP 2014 Chapter 89, Landscaping, Part 89.5 Dual Occupancies and Semi Detached Dwellings.

Character

The proposed development is inconsistent with the character of the locality.

Private open space

The private open space to be provided by the proposed development is inadequate and does not does not comply with BOCP 2014, Chapter 01 Residential Accommodation in Urban, Village and Special Purpose Zones with regards to private open space principles.

Over development of the site

The site is not considered suitable for the development as proposed.

Precedent

The proposed development contravenes Council's adopted development standards and development controls without sufficient justification and the approval of the proposed development will set a precedent for similarly inappropriate development on land zoned low density residential.

Public interest

The proposed development is not in the public interest having regard to the contentions raised above and the submission received in relation to the proposed development.

Joint conferencing of experts

As part of its Case Management processes the Court gave directions for conferencing between Council’s and the applicant’s experts in the town planning, access engineering and drainage engineering.

The amended proposal

Following multiple iterations and revisions through mediation between the applicant’s and Council’s nominated expert witnesses in relation to engineering and planning matters Council has received the attached revised plans and Clause 4.6 Variation Request. The applicant has agreed to the following amendments:

1. The proposed development plans have been amended, as follows:

a. Removal of strata subdivision boundaries

b. Removal of stacked parking

c. Driveway and manoeuvring areas improved by increasing the turning areas and ensuring that no vertical obstructions will be constructed to the side of the realigned garage wall

d. Roof and windows amended to improve solar access to the dwelling to be constructed at the rear

e. Increased building separation addresses solar access, privacy and general amenity for both dwellings

f. Front garage door relocated and on-site parking, driveway arrangements improved with space for landscape screening in the front set back

g. Landscaping and private open space for both dwellings improved with suitable courtyard areas accessible from living areas and improved distribution of deep soil planting

2. The description of the proposal now seeks consent for 'Alterations and additions to existing dwelling house and construction of a dwelling house to create dual occupancy (detached)' meaning that strata subdivision no longer forms part of the application.

Note. As a result of withdrawing the strata subdivision, the amended description of the development will affect the bushfire assessment, originally applied for as integrated development. 100B special fire purpose approval was granted by RFS due to the proposed subdivision. Any determination would need to be granted in accordance with Section 79BA of the Act.

3. The applicant has prepared an amended application pursuant to Clause 4.6 to vary the Clause 4.1E development standard, which now satisfactorily addresses the matters Council is required to consider under its delegations by the Secretary. The applicant has submitted a variation should be granted for the following reasons:

The particular environmental planning grounds to justify contravening the minimum lot size development standard:

· is not contrary to the objects of the EP & A Act 1979 (per Section 1.3)

· is not contrary to the aims of the BLEP 2014 (per Clause 1.2)

· is permitted with consent in and is consistent with the objectives of the R2 zone

· is not contrary to the objective of Clause 4.1E of the BLEP 2014

· is such that will attain the principles of affordable housing, in that dual occupancies are considered to comprise and provide affordable housing stock

· is not contrary to the best public interest

It is considered that there are sufficient environmental planning grounds to justify contravening the minimum lot size development standard for the following additional reasons, particular to the proposal and the site:

· The proposal is for a single storey dwelling that will result in 2 x single storey dwellings being located on the property

· The proposed Floor Space Ratio is only 0.3:1

· The proposed dwelling effectively fronts a public reserve to the rear

· The proposal does not result in any amenity impacts for surrounding properties in terms of privacy, overshadowing and bulk and scale.

· The proposal provides greater deep soil areas then required by the DCP (190m² required where 280m² is proposed). Additionally, considering that the minimum lot size for a Dual Occupancy in the R2 zone is 800m², it would reasonable to require that the minimum amount of deep soil should in fact be 200m² which this proposal is in full compliance with.

· The proposal provides greater private open space then what is required by the DCP for both dwellings (30m² required where 44m² proposed for dwelling 1 and 60+m² for proposed dwelling 2).

The proposal demonstrates the environmental planning grounds to justify a variation to the Clause 4.1E development standard of 800 m².

Council’s contentions in the proceedings

It is considered that the documents and amended proposal satisfactorily address all contentions and reasons for refusal of DA 10.2017.639.1, subject to recommended conditions of consent, attached.

1. Non Compliance with Clause 4.1 of Byron LEP 2014

As a result of subsequent amendments to Byron LEP 2014 by the Department of Planning in relation to Minimum lot sizes for strata subdivision, Councils contentions and reasons for refusal in the first instance fall away, as follows:

Byron LEP 2014 was amended by the Department of Planning with a statewide amendment to the Standard instrument on 20 April 2018. The Clause now states:

Byron Local Environmental Plan 2014

4.1 Minimum subdivision lot size

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

(a) to ensure that lot sizes are compatible with local environmental values and constraints,

(b) to facilitate efficient use of land resources for residential and other human purposes.

(2) This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Plan.

(3) The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land.

(4) This clause does not apply in relation to the subdivision of any land:

(a) by the registration of a strata plan or strata plan of subdivision under the Strata Schemes Development Act 2015, or

(b) by any kind of subdivision under the Community Land Development Act 1989.

In this regard sub-clause 4 excludes compliance with the minimum lot size map provisions of 600 m² in relation to strata subdivision whether sought as part of a development application or not. . It is the intention of the applicant to pursue strata subdivision after the building is constructed under exempt development provisions. This contention therefore no longer exists.

2. Minimum lot size for dual occupancy development

The proposed development does not comply with the minimum lot size for dual occupancy development in Clause 4.1 E of BLEP 2014.

The applicant has prepared an amended Clause 4.6 Variation request that satisfactorily address the 4.9% variation to the minimum lot size required for dual occupancies that is justifiable in relation to the amended plans and documents received and agreed through mediation. It is considered that there are sufficient environmental planning grounds to justify contravening the minimum lot size development standard for the additional reasons, particular to the proposal and the site.

3. Essential services - vehicular access and stacked parking

The amended development proposal now complies with Clause 6.6 Essential Services of BLEP 2014, which provides that development must provide suitable vehicular access has been provided. All stacked parking has been removed.

4. Stormwater drainage

Sufficient information has now been provided to the satisfaction of Councils engineer to demonstrate that the new residence can drain stormwater to the street.

5. Landscape principles

The amended layout now provides adequate landscaping for both dwellings in accordance with BDCP 2014 Chapter B9, Landscaping, Part B9.5 Dual Occupancies and Semi Detached Dwellings.

6. Character

The amended development layout provides for access, landscaping and open space that is more consistent with the character of the locality.

7. Private open space

The quality and functionality of private open space to be provided by the proposed development is significantly improved to comply with BDCP 2014, Chapter D1 Residential Accommodation in Urban, Village and Special Purpose Zones with regards to private open space principles.

8. Over development of the site

The amendments to the layout are considered to reduce the impacts of the development through improved building separation, solar access, privacy and general amenity for both dwellings. The site is considered suitable for the development as amended.

Financial Implications

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

As Council’s experts in the proceedings are internal staff there will be no expert witness fees.

Statutory and Policy Compliance Implications

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

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

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

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

Conciliation Agreement/Consent Orders

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

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

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

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

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

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

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

BYRON SHIRE COUNCIL

Staff Reports - Corporate and Community Services 13.8

Report No. 13.8 Council Investments June 2018

Directorate: Corporate and Community Services

Report Author: James Brickley, Manager Finance

File No: I2018/1282

Theme: Corporate Management

Financial Services

Summary:

This report includes a list of investments and identifies Council’s overall cash position for the month of June 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 30 June 2018 be noted.

Report:

In relation to the investment portfolio for the month of June 2018, Council has continued to maintain a diversified portfolio of investments. At 30 June 2018, the average 90 day bank bill rate (BBSW) for the month of June was 2.07%. Council’s performance to 30 June 2018 is 2.60% Council’s performance is again higher than the benchmark. This is largely due to the active ongoing management of the investment portfolio, maximising investment returns through secure term deposits and purchasing floating rate notes with attractive interest rates.

The table below identifies the investments held by Council as at 30 June 2018:

Schedule of Investments held as at 30 June 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%	655,144.56
24/03/17	1,000,000	NAB Social Bond (Gender Equality)	P	AA-	24/03/22	N	B	3.25%	1,017,387.17
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
02/01/18	2,000,000	ME Bank	P	BBB	04/07/18	Y	TD	2.55%	2,000,000.00
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
06/02/18	1,000,000	Gateway Credit Union	P	NR	07/08/18	Y	TD	2.55%	1,000,000.00
08/02/18	1,000,000	AMP	N	A	08/08/18	N	TD	2.60%	1,000,000.00
15/02/18	1,000,000	Police Credit Union Limited (SA)	P	NR	15/08/18	Y	TD	2.61%	1,000,000.00
01/03/18	1,000,000	Defence Bank	P	BBB	01/08/18	U	TD	2.50%	1,000,000.00
06/03/18	2,000,000	My State Bank	P	BBB	06/09/18	Y	TD	2.65%	2,000,000.00
06/03/18	1,000,000	Bananacoast Credit Union	P	NR	06/09/18	Y	TD	2.60%	1,000,000.00
07/03/18	1,000,000	Beyond Bank	P	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	P	AA-	16/07/18	N	TD	2.58%	1,000,000.00
16/03/18	1,000,000	The Capricornian Credit Union	P	NR	17/09/18	U	TD	2.80%	1,000,000.00
04/04/18	2,000,000	Police Credit Union Limited (SA)	N	NR	03/10/18	Y	TD	2.86%	2,000,000.00
04/04/18	1,000,000	NAB	N	AA-	04/07/18	N	TD	2.57%	1,000,000.00
04/04/18	1,000,000	NAB	N	AA-	04/10//18	N	TD	2.60%	1,000,000.00
05/04/18	1,000,000	AMP Bank	N	A	02/10/18	N	TD	2.60%	1,000,000.00
05/04/18	1,000,000	NAB	N	AA-	05/07/18	N	TD	2.57%	1,000,000.00
05/04/18	1,000,000	Police Credit Union Limited (SA)	N	NR	02/10/18	Y	TD	2.85%	1,000,000.00
06/04/18	1,000,000	Hunter United Employees Credit Union	P	NR	05/07/18	U	TD	2.55%	1,000,000.00
10/04/18	1,000,000	Bankwest	P	AA-	09/07/18	N	TD	2.60%	1,000,000.00
12/04/18	1,000,000	Bankwest	N	AA-	12/07/18	N	TD	2.60%	1,000,000.00
16/04/18	1,000,000	The Capricornian Credit Union	N	NR	17/09/18	U	TD	2.74%	1,000,000.00
17/04/18	1,000,000	Police Credit Union Limited (SA)	N	NR	17/10/18	Y	TD	2.94%	1,000,000.00
23/04/18	1,000,000	NAB	N	AA-	23/07/18	N	TD	2.57%	1,000,000.00
24/04/18	1,000,000	Bankwest	N	AA-	23/07/18	N	TD	2.65%	1,000,000.00
30/04/18	2,000,000	NAB	N	AA-	30/08/18	N	TD	2.64%	2,000,000.00
02/05/18	2,000,000	Police Credit Union Limited (SA)	N	NR	30/10/18	Y	TD	2.83%	2,000,000.00
02/05/18	1,000,000	Maitland Mutual Building Society	P	NR	29/10/18	Y	TD	2.83%	1,000,000.00
07/05/18	2,000,000	NAB	N	AA-	06/08/18	N	TD	2.64%	2,000,000.00
08/05/18	2,000,000	ME Bank	N	BBB	07/08/18	Y	TD	2.60%	2,000,000.00
09/05/18	1,000,000	Coastline Credit Union	P	NR	07/08/18	U	TD	2.80%	1,000,000.00
15/05/18	1,000,000	Maitland Mutual Building Society	N	NR	15/08/18	Y	TD	2.85%	1,000,000.00
15/05/18	1,000,000	Maitland Mutual Building Society	N	NR	15/10/18	Y	TD	2.85%	1,000,000.00
17/05/18	1,000,000	Hunter United Employees Credit Union	N	NR	17/09/18	U	TD	2.80%	1,000,000.00
23/05/18	1,000,000	The Capricornian Credit Union	N	NR	23/11/18	U	TD	2.85%	1,000,000.00
24/05/18	1,000,000	ME Bank	N	BBB	21/09/18	Y	TD	2.60%	1,000,000.00
28/05/18	1,000,000	B & E Ltd (Bank of Us)	P	NR	28/11/18	U	TD	2.85%	1,000,000.00
28/05/18	1,000,000	ME Bank	N	BBB	27/08/18	Y	TD	2.60%	1,000,000.00
30/05/18	1,000,000	Maitland Mutual Building Society	N	NR	20/08/18	Y	TD	2.80%	1,000,000.00
30/05/18	1,000,000	Maitland Mutual Building Society	N	NR	11/09/18	Y	TD	2.80%	1,000,000.00
30/05/18	1,000,000	AMP Bank	N	A	25/02/19	N	TD	2.80%	1,000,000.00
31/05/18	1,000,000	Maitland Mutual Building Society	N	NR	20/08/18	Y	TD	2.80%	1,000,000.00
01/06/18	1,000,000	Suncorp	Y	A	30/08/18	Y	TD	2.65%	1,000,000.00
01/06/18	1,000,000	Police Credit Union Limited (SA)	N	NR	21/09/18	Y	TD	2.82%	1,000,000.00
05/06/18	1,000,000	NAB	N	AA-	03/10/18	N	TD	2.70%	1,000,000.00
08/06/18	2,000,000	ME Bank	N	BBB	07/12/18	Y	TD	2.84%	2,000,000.00
08/06/18	1,000,000	Suncorp	N	A	09/10/18	Y	TD	2.82%	1,000,000.00
12/06/18	1,000,000	Bankwest	N	AA-	12/09/18	N	TD	2.70%	1,000,000.00
14/06/18	2,000,000	Suncorp	N	A	12/09/18	Y	TD	2.75%	2,000,000.00
15/06/18	1,000,000	Suncorp	N	A	15/10/18	Y	TD	2.80%	1,000,000.00
18/06/18	2,000,000	Beyond Bank	N	BBB	18/12/18	Y	TD	2.75%	2,000,000.00
18/06/18	1,000,000	Gateway Credit Union	N	NR	18/12/18	Y	TD	2.90%	1,000,000.00
26/06/18	1,000,000	Bankwest	N	AA-	24/06/18	N	TD	2.80%	1,000,000.00
N/A	3,075,625	CBA Business Online Saver	N	A	N/A	N	CALL	1.40%	3,075,625.12
12/01/18	1,008,820	NSW Treasury Corp	N	AAA	N/A	Y	CALL	1.60%	1,008,820.41
Total	76,484,445						AVG	2.60%	76,506,977.26

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 Council’s website via the following link:

https://www.byron.nsw.gov.au/Council/Your-right-to-Council-information/Policies?dlv_OC%20CL%20Public%20DocLib%20Relative=(pageindex=6)

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 June 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 30 June 2018

Principal Value ($)	Investment Linked to:-	Current Market Value ($)	Cumulative Unrealised Gain/(Loss) ($)
69,000,000.00	Term Deposits	69,000,000.00	0.00
2,400,000.00	Floating Rate Note	2,405,144.56	5,144.56
3,075,625.12	Business On-Line Saver (At Call)	3,075,625.12	0.00
1,008,820.41	NSW Treasury Corp (T Corp)	1,008,820.41	0.00
1,000,000.00	Bonds	1,017,387.17	17,387.17
76,484,445.53		76,506,977.26	22,531.73

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

The table below provides a reconciliation of investment purchases and maturities for month of June 2018 on a current market value basis.

Movement in Investment Portfolio – 30 June 2018

Item	Current Market Value (at end of month) $
Opening Balance at 1 June 2018	75,997,698.45
Add: New Investments Purchased	14,000,000.00
Add: Call Account Additions	2,500,000.00
Add: Interest from Call Account	0.00
Less: Investments Matured	16,000,000.00
Add: T Corp Additions	0.00
Add: Interest from T Corp	1,490.14
Less: Call Account Redemption	0.00
Add: Fair Value Movement for period	7,788.67
Closing Balance at 30 June 2018	76,506,977.26

Investments Maturities and Returns – June 2018

Principal Value ($)	Description	Type	Maturity Date	Number of Days Invested	Interest Rate Per Annum	Interest Paid on Maturity $
1,000,000	NAB	TD	05/06/18	92	2.54%	6,402.20
2,000,000	ME Bank	TD	08/06/18	182	2.55%	25,430.14
2,000,000	My State Bank	TD	08/06/18	182	2.65%	26,427.40
1,000,000	Bank of Queensland	TD	12/06/18	151	2.55%	10,549.32
1,000,000	Bankwest	TD	12/06/18	151	2.55%	10,549.32
1,000,000	Bankwest	TD	15/06/18	120	2.50%	8,219.18
1,000,000	Auswide Bank	TD	15/06/18	92	2.51%	6,326.58
1,000,000	The Capricornian	TD	15/06/18	92	2.55%	6,427.40
2,000,000	Beyond Bank Australia	TD	18/06/18	131	2.50%	18,082.19
1,000,000	Gateway Credit Union	TD	18/06/18	122	2.45%	8,189.04
2,000,000	Credit Union Australia	TD	19/06/18	182	2.60%	25,928.77
1,000,000	Bankwest	TD	26/06/18	90	2.50%	6,164.38
16,000,000						158,695.92

The overall ‘cash position’ of Council is not only measured by what funds Council has invested but also by what funds Council has retained in its consolidated fund or bank account as well for operational purposes. In this regard, for the month of June 2018 the table below identifies the overall cash position of Council as follows:

Dissection of Council Cash Position as at 30 June 2018

Item	Principal Value ($)	Current Market Value ($)	Cumulative Unrealised Gain/(Loss) ($)
Investments Portfolio
Term Deposits	69,000,000.00	69,000,000.00	0.00
Floating Rate Note	2,400,000.00	2,405,144.56	5,144.56
Business On-Line Saver (At Call)	3,075,625.12	3,075,625.12	0.00
NSW Treasury Corp (T Corp)	1,008,820.41	1,008,820.41	0.00
Bonds	1,000,000.00	1,017,387.17	17,387.17
Total Investment Portfolio	76,484,445.53	76,506,977.26	22,531.73

Cash at Bank
Consolidated Fund	1,781,201.56	1,781,201.56	0.00
Total Cash at Bank	1,781,201.56	1,781,201.56	0.00

Total Cash Position	78,265,647.09	78,288,178.82	22,531.73

Financial Implications

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

Statutory and Policy Compliance Implications

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

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

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

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

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

BYRON SHIRE COUNCIL

Staff Reports - Corporate and Community Services 13.10

Report No. 13.10 Amendment of General Managers Delegation in respect of Legal Proceedings

Directorate: Corporate and Community Services

Report Author: Ralph James, Legal Counsel

File No: I2018/1287

Theme: Corporate Management

Corporate Services

Summary:

This report has been prepared to allow Council to consider and confirm the Instrument of Delegation from Council to the General Manager.

It is considered that the limit of authority delegated to the General Manager, concerning legal proceedings, ought be consistent irrespective of whether Council’s involvement is as the commencing or defending party.

RECOMMENDATION:

That Council revoke its previous delegations to the General Manager and adopt Instrument of Delegation to the General Manager as per attachment 1 (E2018/56586)

Attachments:

1 Instrument of Delegation to the General Manager , E2018/56586 ⇨

Report

Power to delegate

All Councils delegate a large number of powers and duties to their General Manager in order

to carry out all the Council’s functions and powers.

Many of the powers and functions require responsiveness within statutory time frames as

well as practical expectations. For this reason, the system of delegations and authorisations

provides for the officers of Council to execute the powers and functions of Council within a

clearly defined framework of authority. Conditions may be placed upon any of the powers

being delegated.

Section 377 of the Local Government Act provides that a council may, by resolution, delegate to the general manager or any other person or body (not including another employee of the council) any of the functions of the council under this or any other Act, other than specific matters which are set out in the section.

Section 378 of the Local Government Act provides that the general manager may delegate any of the functions of the general manager, other than this power of delegation and may sub-delegate a function delegated to the general manager by the council to any person or body (including another employee of the council).

By an Instrument of delegation Council authorises the exercise of specific powers, authorities, duties and functions. These are set out in the Schedule to the Instrument of delegation.

Where the authority to exercise powers, authorities, duties and functions is to be amended in any way the appropriate course is to revoke previous delegations of powers, authorities, duties and functions and to adopt a fresh Instrument of delegation.

Council’s Legal Services Team

Council sources all of its legal advices and conducts all of its legal proceedings, other than those involving staff personnel matters, through its internal Legal Services Team.

Council’s Legal Services Team has been operational since 2 February 2015. The team was created as part of an organisational restructure, and comprises the Legal Counsel, the Solicitor (both of whom are admitted to practice in New South Wales) and the Legal Services Support Officer.

The team sits within Council’s Corporate and Community Services Directorate.

Between 2 February 2015 and 21 July 2016 the team reported to the General Manager through the Manager Governance (now Corporate) Services. Since 22 July 2016 the team has reported to the General Manager directly through the Director Corporate and Community Services.

The work of the team includes the provision of professional advice across Council, court appearances and instructing Council’s external solicitors.

On 22 February 2018 Council resolved to award Tender 2017-0054 for Provision of Legal Services to the following tenderers:

· HWL Ebsworth Lawyers

· Marsdens Law Group

· McCabes Lawyers

· Swaab Attorneys

Delegated authority concerning legal proceedings

Since (at least) 2008 until November 2017 the authority delegated by Council to the General Manager in respect of legal proceedings was in the following terms:

(c) to take such actions and do such acts and things (not inconsistent with the Act or any Act, ordnance, regulation, or by law conferring powers or imposing duties on the Council or with any resolution or minute which has been passed or adopted by the Council) as he deems necessary to generally manage, control and administer the affairs of the Council including exercise of the powers and discretions of the Council and performance of its duties.

Without limiting the generality of the provisions of the aforesaid, to lay Informations and initiate and prosecute legal actions in relation to any breach of any Act, ordinance, regulation or by-law administered in whole or in part by Council and to authorise at his/her discretion specific persons to lay Informations before a court of law and to obtain legal advice (within the sums voted by Council for that purpose) as and when the General Manager deems it necessary so to do.

At its Ordinary Meeting on 21 September 2017 Council received a report concerning delegations.

Council resolved as follows concerning the General Manager’s delegation in respect of legal proceedings:

Commencement of legal proceedings

Delegation to commence legal proceedings is limited to those proceedings in which Council’s solicitors estimate, in writing, that the legal costs for the proceedings will be less than $50,000.

Settlement of legal proceedings

The delegations do not include:

· Power to settle legal proceedings for payment of less than 50% of Council’s original or amended claim.

· Power to enter into consent orders in the Land and Environment Court in relation to development for which the General Manager would not otherwise be able to grant consent under delegation.

Council’s delegated authority was not implemented until November 2017 when the Instrument of delegation was signed by both the Mayor and the General Manager.

There is consistency between the pre-and post 21 September 2017 delegations concerning legal proceedings, in that, any limitation on the General Manager’s delegated authority applies only the commencement of legal proceedings.

Commencement of action is the formal procedure by which legal proceedings are initiated.

Legal proceedings are usually commenced by the filing of a summons, statement of claim or an application. These are called the originating process.

Parties who commence proceedings are required to serve a copy of the originating process on all the defendants. If served with originating process a Defendant must file a defence.

Commencement of proceedings and defence of proceedings once commenced, are separate and distinct phases of legal proceedings.

Reporting of legal proceedings

All legal proceedings, whether commenced or defended by Council, are reported to both the Executive Team and the Councillors, on a monthly basis via the Legal Services Status Report.

That report sets out the nature and status (at the time of the report) of the proceedings together with the costs expended in respect of the proceedings up to the date of the report.

Some legal proceedings are also reported to both the Executive Team and the Councillors by Memorandum outside of the Legal Services Status Report framework.

The following table sets out the proceedings instituted or defended by Council since November 2017 (the date on which the 21 September 2017 delegations were implemented), the date on which they were reported to Councillors, the original cost estimate and the current costs expenditure.

Proceedings instituted by Council

Local Court
Matter	Reported to Councillors	Costs Estimate	Actual Costs
Lewis	January 2018, February 2018	Internal	Nil
Davies	February 2018, March 2018	Internal	Nil
Nabors	February 2018, March 2018, April 2018, May 2018, June 2018	$3,500 (Counsel instructed by the Legal Services team)	$3,800
Main Street Burger Bar	April 2018, May 2018	$500 (Counsel instructed by the Legal Services team)	$500
Muchada	May 2018, June 2018, July 2018	Internal	Ongoing. Nil costs anticipated.
Greenbank Properties Pty Ltd	May 2018, June 2018, July 2018	Internal	Ongoing. Nil costs anticipated.
Land and Environment Court
Nil
Supreme Court
Dansar Pty Ltd	May 2018, June 2018	Nil. Matter run on behalf of Council’s insurer.	$12,373.50

Proceedings defended by Council

Local Court
23 Court elected Penalty Notices in respect of parking infringements. All dealt with by the Legal Services team with nil costs incurred.
Land and Environment Court
Matter	Reported to Councillors	Costs Estimate	Actual Costs
Koresoft Pty Ltd	November 2017, December 2017, January 2018, February 2018, March 2018, April 2018	$15,000	$9,696.53
Gordon Highlands Pty Ltd	December 2017, January 2018, February 2018, March 2018, April 2018, May 2018, June 2018, July 2018	$22,000 - $25,000	$13,890.40
Ardill Payne – 541 Friday Hut Road	January 2018, February 2018, March 2018, April 2018, May 2018, June 2018, July 2018	$22,000 - $25,000	$15,494.82
Ardill Payne – 33 Kallaroo Circuit	February 2018, March 2018, April 2018, May 2018, June 2018, July 2018	$22,000 - $25,000	$1,367.85
Meineke	February 2018, March 2018, April 2018
Dromore Properties Pty Ltd	March 2018, April 2018, May 2018, June 2018, July 2018	$10,780	$4,151.40
Ardill Payne – 4 Marvel Street	March 2018, April 2018, May 2018, June 2018, July 2018	$10,780	$1,884.30
Joe Davidson Town Planning	May 2018, June 2018, July 2018	$14,000	Nil
Supreme Court
Nil

Amendment to delegated authority concerning legal proceedings

Following the appointment on 2 July 2018 of the General Manager, it was considered appropriate that there be a form of restriction or guidance concerning legal proceedings in which Council is a party and that the limit of authority delegated to the General Manager concerning legal proceedings ought be consistent irrespective of whether Council’s involvement is as the commencing or defending party.

An amendment to the General Managers delegations concerning legal proceedings is therefore proposed and recommended.

The only amendment in the Instrument of delegation (attachment 1) recommended for adoption by Council is to the General Manager’s delegation concerning legal proceedings. The recommended amendment provides as follows:

Commencing or defending legal proceedings:

· Delegation to commence or defend legal proceedings is limited to those proceedings in which Council's external solicitors (if engaged) estimate, in writing, that the professional legal costs for the proceedings will be less than $50,000 unless commencement or defence of legal proceedings has otherwise been authorised by Council resolution. Where Councils external solicitors are not engaged delegation to commence or defend legal proceedings is limited to those proceedings in which Council’s internal solicitors estimate, in writing, that the disbursements for the proceedings will be less than $50,000 unless commencement or defence of legal proceedings has otherwise been authorised by Council resolution.

· Exercise of delegation is subject to Councillors being informed by memorandum of its exercise and the progress of the proceedings, together with current cost expenditure, being reported to Councillors monthly.

Financial Implications

External legal services are funded out of the General Fund – Legal expenses 20001.010.

Statutory and Policy Compliance Implications

Local Government Act

377 General power of the council to delegate

(1) A council may, by resolution, delegate to the general manager or any other person or body (not including another employee of the council) any of the functions of the council under this or any other Act, other than the following:

(a) the appointment of a general manager,

(b) the making of a rate,

(d) the making of a charge,

(e) the fixing of a fee,

(f) the borrowing of money,

(g) the voting of money for expenditure on its works, services or operations,

(h) the compulsory acquisition, purchase, sale, exchange or surrender of any land or other property (but not including the sale of items of plant or equipment),

(i) the acceptance of tenders to provide services currently provided by members of staff of the council,

(j) the adoption of an operational plan under section 405,

(k) the adoption of a financial statement included in an annual financial report,

(l) a decision to classify or reclassify public land under Division 1 of Part 2 of Chapter 6,

(m) the fixing of an amount or rate for the carrying out by the council of work on private land,

(n) the decision to carry out work on private land for an amount that is less than the amount or rate fixed by the council for the carrying out of any such work,

(o) the review of a determination made by the council, and not by a delegate of the council, of an application for approval or an application that may be reviewed under section 82A of the Environmental Planning and Assessment Act 1979,

(p) the power of the council to authorise the use of reasonable force for the purpose of gaining entry to premises under section 194,

(q) a decision under section 356 to contribute money or otherwise grant financial assistance to persons,

(r) a decision under section 234 to grant leave of absence to the holder of a civic office,

(s) the making of an application, or the giving of a notice, to the Governor or Minister,

(t) this power of delegation,

(u) any function under this or any other Act that is expressly required to be exercised by resolution of the council.

378 Delegations by the general manager

(1) The general manager may delegate any of the functions of the general manager, other than this power of delegation.

(2) The general manager may sub-delegate a function delegated to the general manager by the council to any person or body (including another employee of the council).

(3) Subsection (2) extends to a function sub-delegated to the general manager by the council under section 377 (2).

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.12

Staff Reports - Sustainable Environment and Economy

Report No. 13.12 PLANNING - Development Application 10.2017.742.1 - Alterations and Additions to Existing Dwelling House, New Dwelling House to Create a Dual Occupancy (detached) and Two (2) Studios at 219 Saddle Road Brunswick Heads

Directorate: Sustainable Environment and Economy

Report Author: Dylan Johnstone, Planner

File No: I2018/682

Theme: Ecology

Development and Approvals

Proposal:

DA No:	10.2017.742.1
Proposal description:	Alterations and Additions to Existing Dwelling House, New Dwelling House to Create a Dual Occupancy (detached) and Two (2) Studios
Property description:	LOT: 4 DP: 810118
Property description:	219 The Saddle Road BRUNSWICK HEADS
Parcel No/s:	137160
Applicant:	Greg Alderson & Associates Pty Ltd
Owner:	Koresoft Pty Ltd
Zoning:	RU2 Rural Landscape
Date received:	27 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: 18/1/18 to 31/1/18 - One submission was received.
Delegation to determination:	Council
Issues:	· Clause 4.6 request to vary 100m separation distance between Dual Occupancy (detached) dwellings required by Clause 4.2D of LEP 2014 · Chapter D2.7.1 of DCP 2014 - studios

Summary:

This application seeks development consent for alterations and additions to an existing dwelling house, construction of a new house to create a dual occupancy (detached), and construction of two (2) studios (one associated with each dwelling).

The application proposes the new dwelling house to be located at a distance of 365m from the existing house, which does not comply with the maximum separation distance of 100m required by the development standards of Clause 4.2D of LEP 2014.

The application does not provide sufficient grounds to vary the standard pursuant to Clause 4.6, as it is considered that there are suitable dwelling sites within 100m of the existing dwelling that would meet the standard.

Given the circumstances, it is recommended that consent be refused for the reasons provided in the report and recommendation.

Notwithstanding the above, the applicant was given the opportunity to remove the Dual Occupancy component from the Development Application, to enable granting of consent to be recommended for the alterations and additions to the existing dwelling and one (1) studio associated with that dwelling. However, the applicant has requested that Council proceed with determination of the application as a whole, as submitted.

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 & Assessment Act 1979, development application no. 10.2017.742.1 be refused for the following reasons:

1. Pursuant to Section 79C(1)(a)(i), the proposed development is inconsistent with Clause 4.2D of Byron Local Environmental Plan 2014. The application proposes a dual occupancy (detached) with a new dwelling house to be located 365m from the existing dwelling house, which does not comply with Clause 4.2D(2)(c).

2. Pursuant to Section 79C(1)(a)(i), the proposed development does not satisfy the provisions of Clause 4.6 of Byron Local Environmental Plan 2014. The application has not adequately demonstrated that compliance with the development standard of Clause 4.2D(2)(c) is unreasonable or unnecessary in the circumstances of the case or that there are sufficient environmental planning grounds to justify contravening the development standard.

3. Pursuant to Section 79C(1)(e), the proposed development is not in the public interest. Approval of the proposed 265% variation would create an undesirable precedent for rural lands.

4. Pursuant to Section 79C(1)(a)(i), the proposed development is inconsistent with Clause 10(3) of State Environmental Planning Policy (Rural lands) 2008, in that the proposed new dwelling, in the location shown, is likely to have a significant impact on land uses preferred in the vicinity, given the mapping of that area as Regionally Significant Farmland.

5. Pursuant to Section 79C(1)(a)(i), the proposed development is inconsistent with the objectives of the RU2 Rural Landscape Zone in that it:

· would not maintain or enhance the natural resource base as the location of the new dwelling and associated studio has the potential to sterilise a significant area of Regionally Significant Farmland; and

· would not maintain the rural landscape character of the land; and

· would not provide compatible land uses, given the preferred land use of adjoining land.

Attachments:

1 Attachment 1 Plans 10.2017.742.1, E2018/59018 ⇨

2 Attachment 2 Submission received, E2018/59022 ⇨

Assessment:

1. INTRODUCTION

1.1. History/Background

5.1991.123.1 – Dwelling House and Carport – approved 08/05/91

Borrodales basalt quarry was operated by the NSW Department of Public Works under a series of non-exclusive licence agreements in 1959, 1963 and 1969.

1.2. Description of the proposed development

This application seeks approval for alterations and additions to an existing dwelling, construction of a new dwelling, to create a dual occupancy (detached), and construction of two (2) studios, one associated with each of the dwellings.

The layout of the proposed development on the site is shown below.

Figure 1 Site Layout & Analysis Plan (Greg Alderson & Associates)

Existing Dwelling

The proposed alterations and additions to the existing dwelling house include:

· New covered balcony

· New enclosed verandah with indoor swimming pool

· New carport, undercover driveway and storage

· New deck with spa

· New bedroom, study, gym and rumpus room

· Convert existing garage to underfloor storage and workshop area

Dual Occupancy (detached)

It is proposed to construct a new three-bedroom, single-storey dwelling, located 365m east of the existing dwelling, as indicated in Figure 1 above.

Studios

Two non-habitable studios are proposed to be constructed in conjunction with each of the dwellings. The studio associated with the existing dwelling is proposed for use as a home occupation, for the production of naturopathic remedies. The studio associated with the new dwelling is proposed to be used for the purposes of private exercise (yoga and pilates).

1.3. Description of the site

Land is legally described as	LOT: 4 DP: 810118
Property address is	219 The Saddle Road BRUNSWICK HEADS
Land is zoned:	RU2 Rural Landscape
Land area is:	19.32ha
Property is constrained by:	Acid Sulfate Soils Class 3 (very small area in SE corner – not affected by development)
	Bush Fire Prone Land (proposed development outside of mapped areas)
	High Environmental Value Vegetation
	Koala Habitat (potential)
	Regionally Significant farmland (non-contiguous)

Area identified as “Horticultural Netting” in Figure 2 (Looking NW)

Location of proposed studio associated with existing Dwelling House (Looking NE)

Location of proposed new Dwelling House (Looking E)

Location of proposed studio associated with new Dwelling House (existing Dwelling in background – Looking W)

Existing Dwelling House (Looking E)

The application includes a plan of a “share farming” arrangement on the land that has been used by the applicant as a means to justify the location of the proposed development.

Figure 2 Site Layout (Greg Alderson & Associates)

2. SUMMARY OF REFERRALS

Referral	Issue
Environmental Health Officer	There is sufficient land area for disposal of wastewater on the site
Development Engineer	No objections to the proposal subject to conditions.
S64 / Systems Planning Officer	No objections to the proposal subject to conditions.
S94 / Contributions Officer	Section 94 contributions applicable for dual occupancy development
Essential Energy	No objections to the proposal subject to advisory comments.
Department of Primary Industries – Office of Water	Comments not received.
Tweed Byron Land Council	The application was referred to TBLALC who recommended that, if approved, they undertake a site visit and report to further investigate significant aboriginal cultural heritage thought to be located in the area. A site visit was undertaken by TBLALC on 21/06/18. Subsequently a Cultural Heritage Sites Inspection Report was prepared by TBLALC dated 21/06/18 and submitted to Council on 23/07/18. The report concluded that “there is nothing at this stage to halt or delay the proposed work on this site”. The report recommended that the Due Diligence Code of Practice for the Protection of Aboriginal Objects in NSW, published by the DECCW OEH, be applied. Procedures to be applied in the case of unexpected finds (including even suspected ACH objects) were also 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 lot is mapped as containing bushfire prone land. However, the proposed development site within the lot is not bush fire prone land.

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

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

4.1 State Environmental Planning Instruments

	Satisfactory	Unsatisfactory
State Environmental Planning Policy No 44—Koala Habitat Protection	☒	☐
Consideration: Part of the land is mapped as containing Tertiary Habitat. However, the application does not propose development within this area and no vegetation removal is proposed on the site.
State Environmental Planning Policy No 55—Remediation of Land	☒	☐
Consideration: A preliminary contaminated land investigation was undertaken by the applicant in accordance with Section 7. A site history review was conducted for the investigation area (being the entire site). The history review found that there is no evidence that the investigation area was subject to cropping or plantations or that any other contaminating activities had occurred. It is considered that the land is suitable for residential use.
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004	☒	☐

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008	☒	☐
Consideration: Plans have been submitted with the application indicating a number of structures to be undertaken as exempt development including a windmill and wind turbines. Note: The applicant has acknowledged that some of these structures may not be undertaken as exempt development and a future Development Application is to be lodged separate to this application.
State Environmental Planning Policy (Infrastructure) 2007	☒	☐
Consideration: Clause 101 requires that Council must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that, where practicable, vehicular access to the land is provided by a road other than the classified road (Gulgan Rd). The application proposes that vehicular access to each dwelling will be provided by a single access point to The Saddle Rd.
State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007	☒	☐
Consideration: Borrodales basalt quarry was operated by the NSW Department of Public Works under a series of non-exclusive licence agreements in 1959, 1963 and 1969. Any use rights of previous extractive activity on the site have since been abandoned.
State Environmental Planning Policy (Rural Lands) 2008	☐	☒
Consideration: Clause 7 identifies the following Rural Planning Principles: (a) the promotion and protection of opportunities for current and potential productive and sustainable economic activities in rural areas, (b) recognition of the importance of rural lands and agriculture and the changing nature of agriculture and of trends, demands and issues in agriculture in the area, region or State, (c) recognition of the significance of rural land uses to the State and rural communities, including the social and economic benefits of rural land use and development, (d) in planning for rural lands, to balance the social, economic and environmental interests of the community, (e) the identification and protection of natural resources, having regard to maintaining biodiversity, the protection of native vegetation, the importance of water resources and avoiding constrained land, (f) the provision of opportunities for rural lifestyle, settlement and housing that contribute to the social and economic welfare of rural communities, (g) the consideration of impacts on services and infrastructure and appropriate location when providing for rural housing, (h) ensuring consistency with any applicable regional strategy of the Department of Planning or any applicable local strategy endorsed by the Director-General. Clause 10(3) of the SEPP establishes the following matters to be considered in determining development applications for rural dwellings: (a) the existing uses and approved uses of land in the vicinity of the development, (b) whether or not the development is likely to have a significant impact on land uses that, in the opinion of the consent authority, are likely to be preferred and the predominant land uses in the vicinity of the development, (c) whether or not the development is likely to be incompatible with a use referred to in paragraph (a) or (b), (d) if the land is not situated within a rural residential zone, whether or not the development is likely to be incompatible with a use on land within an adjoining rural residential zone, (e) any measures proposed by the applicant to avoid or minimise any incompatibility referred to in paragraph (c) or (d). The proposed new dwelling is located 12m from the northern property boundary. The adjoining lot to the north is mapped entirely as Regionally Significant Farmland. Chapter B6 of DCP 2014 (Buffers and Minimising Land Use Conflict) recommends a 200m buffer between rural dwellings and cropping/horticulture, which is a common use of Regionally Significant Farmland. While the adjoining land is not currently used for this purpose, the proposed dwelling, given its close proximity to the northern boundary, has the potential to sterilize a significant area of adjoining agricultural land from being utilised for cropping/horticulture. A dwelling in this location would also create the potential for a land use conflict with land to the north in the event that farming activities return to that property. A more appropriate location for the proposed dwelling would be closer to the Saddle Road frontage of the land, to the north of the existing dwelling. Locating the proposed dwelling in a cluster with the existing dwelling and surrounding dwellings in the locality would minimise any potential land use conflict issues with adjoining land and protect Regionally Significant Farmland.

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 following LEP 2014 clauses are of relevance to the proposed development:

Land Use Table:

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). Studios are not separately defined in the LEP, and are considered to be ancillary to the dwellings houses that make up the dual occupancy.

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

(c) Dual occupancies are permitted with consent. As outlined above, the studios are considered ancillary to the dwellings, and are therefore permissible with consent.

(d) The development as proposed is considered to be inconsistent with the Zone Objectives, for the reasons as outlined below:

Zone Objective	Consideration
To encourage sustainable primary industry production by maintaining and enhancing the natural resource base	The proposed 12m setback of the new dwelling to the northern boundary has the potential to sterilise a significant area of Regionally Significant Farmland on the adjoining lot. The proposed new dwelling and associated studio are also located within the area mapped as Regionally Significant Farmland. The proposal would have some impact on the agricultural potential of the property by alienating the land that would be occupied by the new dwelling, studio and associated curtilage. The extent of this alienation is exhibited in the applicant’s plan shown above as Figure 2, which illustrates a substantial curtilage around the proposed buildings. While there would potentially be some alienation of Regionally Significant Farmland associated with a compliant location for a detached dual occupancy (i.e. within 100m of the existing dwelling), the impacts would be significantly less as the area impacted would include that already within the curtilage of existing structures and/or within close proximity to site boundaries.
To maintain the rural landscape character of the land	Existing dwelling houses in the locality are generally clustered within close proximity to Saddle Rd. The proposal to locate the new dwelling approximately 400m from Saddle Rd creates potential land use conflict and does not maintain the rural landscape character of the land. The establishment of a 100m maximum separation distance between dwellings in a detached dual occupancy (cl. 4.2D – see below), is intended as a measure to ensure the clustering of buildings and therefore the protection and maintenance of an ‘open’ rural landscape character. Contravention of this development standard will negatively impact on the existing rural character.
To provide for a range of compatible land uses, including extensive agriculture.	The proposed 12m setback of the new dwelling to the northern boundary has the potential to sterilise a significant area of Regionally Significant Farmland on the adjoining lot.
To enable the provision of tourist accommodation, facilities and other small-scale rural tourism uses associated with primary production and environmental conservation consistent with the rural character of the locality.	The application proposes residential use only.
To protect significant scenic landscapes and to minimise impacts on the scenic quality of the locality.	The proposal does not have a significant impact on the scenic quality of the locality

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

The property has an area of 19.32 hectares, which satisfies the requirement for a minimum lot size of 4,000m² for a Dual Occupancy (detached) in the RU2 zone.

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

The land contains an existing dwelling, approved by Council consent 5.1991.123.1. A dual occupancy is permitted on the land with Council consent.

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

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

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

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

(a) to provide alternative accommodation for rural families and workers,

(b) to ensure that development is of a scale and nature that is compatible with the primary production potential, rural character and environmental capabilities of the land,

(c) to set out consent considerations for development of dual occupancies (detached) and secondary dwellings to address matters such as access, siting, land suitability and potential impacts.

(2) Development consent must not be granted to development for the purpose of a dual occupancy (detached) or secondary dwelling on land in Zone RU1 Primary Production or Zone RU2 Rural Landscape unless the consent authority is satisfied that:

(a) the development will not impair the use of the land for agriculture or rural industries, and

(b) each dwelling will use the same vehicular access to and from a public road, and

(c) any dwellings will be situated within 100 metres of each other, and

(d) the land is physically suitable for the development, and

(e) the land is capable of accommodating the on-site disposal and management of sewage for the development, and

(f) the development will not have an adverse impact on the scenic amenity or character of the rural environment.

The proposal does not comply with the objectives in that its scale and nature is not compatible with the rural character of the land (see comments above).

The development also contravenes the development standard within Clause 4.2D(2)(c), which requires each dwelling to be situated within 100 metres of each other.

A Clause 4.6 variation has been submitted by the applicant and is discussed below.

Clause 4.3 Height of Buildings

The maximum height of proposed alterations and additions to the existing dwelling are approximately 8m. The maximum height of the proposed new dwelling is approximately 4m and the proposed studios have a building height of 4.0m. All proposed buildings comply with the permitted 9.0m maximum building height.

Clause 4.6 Exceptions to Development Standards

The clause 4.6 variation request has been submitted because the proposed development contravenes the development standard outlined within Clause 4.2D(2)(c), which requires each dwelling to be situated within 100 metres of each other. The applicant’s variation request has been considered with reference to relevant matters as follows:

1. Introduction – Summary of proposed development

The development application seeks consent for Alterations and Additions to an existing Dwelling House, New Dwelling House to create a Dual Occupancy (detached) and Two (2) Studios.

2. Clause 4.6 Exceptions to Development Standards

Clause 4.6 of Byron LEP 2014 is accessible via: http://www.legislation.nsw.gov.au/fragview/inforce/epi+297+2014+pt.4-cl.4.6+0+N?tocnav=y

3. The Development Standard to be varied

The development standard to be varied is contained in LEP 2014 subclause 4.2D(2)(c), which is accessible via: http://www.legislation.nsw.gov.au/fragview/inforce/epi+297+2014+pt.4-cl.4.2d+0+N?tocnav=y

The 100m maximum separation distance 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.

4. Extent of Variation to the Development Standard

The application proposes to locate a new dwelling, to create a dual occupancy (detached), with a separation distance of 365m from the existing dwelling, which does not comply with the maximum 100m separation distance permitted.

The extent of the variation is 265%.

5. Objective of the Development Standard

The objectives of the development standard are outlined in LEP 2014 subclause 4.2D(1), which states:

(a) to provide alternative accommodation for rural families and workers,

(b) to ensure that development is of a scale and nature that is compatible with the primary production potential, rural character and environmental capabilities of the land,

(c) to set out consent considerations for development of dual occupancies (detached) and secondary dwellings to address matters such as access, siting, land suitability and potential impacts

6. Objectives of the Zone

The objectives of the RU2 Rural Landscape Zone which applies to the location of the proposed dual occupancy (detached) are stated in the Land Use Table to LEP Part 2:

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

· To maintain the rural landscape character of the land.

· To provide for a range of compatible land uses, including extensive agriculture.

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

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

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 application has not sufficiently demonstrated that it is unreasonable or unnecessary to comply with the development standard in the circumstances of the case.

The reasons presented by the applicant for non compliance with the 100m maximum separation distance standard are that “all of the land within 100 metres of the existing dwelling is physically constrained and unsuitable for a new dwelling due to existing agricultural use, future forestry and horticultural uses, the presence of an old quarry, steep slopes, drainage lines, overhead power lines and farm dams”.

The applicant has not demonstrated that constraints referred to could not be adequately addressed by appropriate site and building design and that, in that case, the impacts of the development on farming potential and rural character would not be less than those associated with the proposal as submitted.

In particular, siting of the new dwelling much closer to the curtilage of the existing dwelling would minimise the built footprint and associated alienation/ fragmentation of land mapped as Regionally Significant Farmland and significantly reduce the potential for future land use conflict associated with likely future farming uses on adjoining land.

Siting of the new dwelling and studio much closer to the existing cluster of structures on Saddle Road would also minimise the impacts of the development on the rural character of the land.

It is considered that the reasons put forward to support the contravention of the development standard are insufficient and that there are indeed alternative sites for the new dwelling within 100m of the existing dwelling that have not been adequately explored by the applicant.

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

The application has not adequately demonstrated that there are sufficient environmental planning grounds to justify the contravention of the development standard.

The applicant has argued that existing and proposed agricultural use of the land prevents the new dwelling from being located within 100m of the existing dwelling. However, it is considered that there are suitable sites within 100m of the existing dwelling. For example, the area in the northwest of the site, identified as “horticultural netting” on the submitted plan titled “Site Layout” and dated 01/12/17, is considered suitable for a dwelling site and would comply with the development standard. The horticultural use of this area can reasonably be relocated elsewhere on the site to accommodate a dwelling house. Further, the applicant has determined that the location within 20 metres of the existing dwelling house is suitable for the proposed studio. If this location is suitable for a studio then it is considered that this location is also suitable for a dwelling house.

Further information supplied by the applicant included following plan as justification that there are not any suitable alternative sites on the land for the proposed new dwelling.

Figure 3 Alternative Dwelling Site Location Map (Greg Alderson & Associates)

Sites A, B, C and H are among those sites that are identified by the applicant as being unsuitable for the new dwelling. However, it is considered that these sites are suitable. It is noted that some of these sites are located greater than 100m from the existing dwelling, however they would represent a far lesser variation than the one proposed.

The reasons presented for these sites being unsuitable are considered insufficient. Areas identified for share farming and forestry can reasonably be modified to accommodate a new dwelling rather than requiring a large variation to accommodate a dwelling around such activities. Other reasons given by the applicant for these sites being unsuitable include buffers to stormwater drainage lines, buffers to dams, compliance with the building setback to Saddle Rd, buffers to water bores, buffers to overhead power lines, buffers to mature vegetation etc.

It is considered that all of these reasons can be addressed through appropriate design so that sites A, B, C and H can either achieve compliance with the maximum 100m separation distance or require a far lesser variation than the one proposed. These locations are considered to achieve the objectives of both the RU2 zone and Clause 4.2D by minimising land use conflict and maintaining the rural character of the locality. These locations will also prevent significant eroding of 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 proposed development is not considered to be in the public interest. The application has not adequately demonstrated consistency with the objectives of Clause 4.2D and the objectives of Zone RU2. Approval of the 265% variation would create an undesirable precedent.

The proposed development is inconsistent with the objectives of the RU2 zone.

The proposed dwelling is located 12m from the northern boundary. The adjoining lot to the north is mapped entirely as Regionally Significant Farmland. Chapter B6 of DCP 2014 (Buffers and Minimising Land Use Conflict) recommends a 200m buffer between rural dwellings and cropping/horticulture, which is a common use of such lands. Given its close proximity to the northern boundary, the proposed dwelling has the potential to sterilise a significant area of adjoining agricultural land from being utilised for cropping/horticulture. Therefore the proposal does not comply with the objective of Zone RU2 to maintain and enhance the natural resource base.

Also, existing dwelling houses in the locality are generally clustered within close proximity to Saddle Rd. The proposal to locate the new dwelling approximately 400m from Saddle Rd creates potential land use conflict and does not maintain the rural landscape character of the land.

For the above reasons, the proposal also does not comply with the objective of Clause 4.2D, which requires development to be of a nature that is compatible with the primary production potential and rural character of the land.

The applicant has referred to application 10.2016.357.1, which was approved by Council staff under delegated authority on 11/10/16. That consent permitted a dual occupancy (detached) with a maximum separation distance of 450 metres between the two dwellings. There were significant environmental planning grounds to approve that application. The location of the new dwelling was the only area on the site cleared of vegetation, thereby avoiding any significant impacts on High Environmental Value (HEV) vegetation mapped on the site. Also, compliance with the development standard in that instance would have required large areas of HEV vegetation to be removed in order to upgrade the existing site access to comply with Planning for Bushfire Protection 2006.

The applicant also references six other detached Dual Occupancies (detached) in rural zones that have been approved with Clause 4.6 variations. Three of these six approvals relate to variations to the 100m separation distance:

· 10.2016.425.1 – The two structures were already existing on the site and a variation was granted to permit a Dual Occupancy (detached) with a separation distance of 136m representing a variation of 36%.

· 10.2017.245.1 – The new dwelling was approved to be located 110m from the existing dwelling representing a variation of 10%. Permitting a slightly greater separation allowed the new dwelling to be located clear of a gully, resulting in a better environmental outcome and a more practical use of the land.

· 10.2016.752.1 – The building proposed to be used as a dwelling was approved to be located 115m from the existing dwelling representing a variation of 15%.

The variation was granted to formalise the use of an existing structure that could not be readily relocated.

Each of the above referenced variations to the maximum 100m separation distance had demonstrated that compliance with the development standard is unreasonable based on environmental planning grounds.

(d) Clause 4.6(4)(b) – Has the concurrence of the Secretary been obtained?

The NSW Department of Planning and Environment Planning Circular PS18-003 provides that the Secretary’s concurrence may not be assumed by a delegate of council if the development contravenes a numerical standard by greater than 10%.

The application proposes to locate a new dwelling to create a dual occupancy (detached) with a separation distance of 365m from the existing dwelling which does not comply with the maximum 100m separation distance permitted. The extent of the variation is 265%. In accordance with PS18-003 the application must be determined by the elected Councillors.

The Applicant’s variation request in the circumstances is not supported and the development application is recommended for refusal.

Clause 5.10 Heritage Conservation

The application was referred to the Tweed Byron Local Aboriginal Land Council (TBLALC) to consider the potential impacts of the proposed development on Aboriginal objects and/or Aboriginal places of heritage significance.

A site visit was undertaken by TBLALC on 21/06/18. Subsequently a Cultural Heritage Sites Inspection Report was prepared by TBLALC dated 21/06/18 and submitted to Council on 23/07/18. The report concluded that “there is nothing at this stage to halt or delay the proposed work on this site”. The report recommended that the Due Diligence Code of Practice for the Protection of Aboriginal Objects in NSW, published by the DECCW OEH, be applied. Procedures to be applied in the case of unexpected finds (including even suspected ACH objects) were also recommended.

Clause 6.1 Acid Sulfate Soils

The south eastern corner of the site is subject to potential Acid Sulfate Soils Class 3. However, all works are proposed on portions of the site with an elevation of approximately 40-50m AHD. Therefore no further assessment is required.

Clause 6.2 Earthworks

The proposal does not require significant earthworks therefore no further assessment required.

Clause 6.6 Essential Services

Potable water is proposed to supply the development through rainwater tanks located at each dwelling with backup supplies in the form of an existing water bore and mains connection to Rous water supply.

Electricity is proposed to be supplied to the new dwelling and studio by 20KV of solar panels mounted on the new dwelling and farm buildings along with 2 x 10KV wind turbines and a Lithium battery bank. It is also proposed to install Three Phase power for back up and to feed renewable wind and solar energy back into the grid.

There is sufficient land area for disposal of wastewater on the site and roof water will be collected in rainwater tanks with an overflow dispersion trench.

Vehicular access is achieved via an existing driveway crossing to Saddle Rd. Existing access to Gulgan Rd does not appear to have Council approval.

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 subject site is mapped within the ‘coastal use 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 Divisions No.2, 4 & 5. The proposed development is not in a wetland, littoral rainforest, or coastal environment area.

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 following DCP 2014 chapters are of relevance to the proposed development:

A14 Public Notification and Exhibition of Development Applications

The application was advertised in accordance with Level 1 Notification. Adjoining landowners were notified with one submission received during the notification period. This submission is addressed in section 4.10 of this report.

B3 Services

The application has demonstrated that the proposed development will be adequately serviced including the provision of an onsite sewage management system.

B6 Buffers and Minimising Land Use Conflict

The proposed new dwelling house is located 12m from the northern boundary of the site. The adjoining land to the north appears to be used for grazing cattle. There is no recommended minimum buffer distance between a rural dwelling and grazing of stock.

However, the adjoining lot to the north is mapped entirely as Regionally Significant Farmland. Chapter B6 – Buffers and Minimising Land Use Conflict of DCP 2014 recommends a 200m buffer between rural dwellings and cropping/horticulture which is a common use of such lands. Given its close proximity to the northern boundary, the proposed dwelling has the potential to sterilise a significant area of adjoining agricultural land from being utilised for cropping/horticulture or other intensive plant agriculture.

An appropriate location for the proposed dwelling would be along Saddle Rd to the north of the existing dwelling. Locating the proposed dwelling in a cluster with the existing dwelling and surrounding dwellings in the locality would minimise any potential land use conflict issues with adjoining land and protect Regionally Significant Farm Land.

B14 Excavation and Fill

The proposal does not require significant earthworks therefore no further assessment required.

D2.5 Dual Occupancies and Secondary Dwellings

The proposal has the potential to create land use conflict issues as outlined above.

D2.7.1 Studios

The application proposes two new studios: one for the existing dwelling and one for the proposed dwelling. Studios are not permitted to contain internal partitions, other than those necessary for ablution facilities or demonstrably required for the use of the studio (e.g. photography darkroom). The studio floor plans indicate a number of partitioned rooms including an “air conditioned preservation room”, toilet and bathroom with shower.

The studio plans also contain a kitchen sink, which is not permitted by the DCP.

Given that the plans also include a carport and 60m² of verandah area, it would appear that these buildings could be easily inhabited as separate dwellings. In order to recommend approval of such studios the bathroom, kitchen and carport would be required to be removed and the verandah areas significantly reduced.

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	No	N/A	N/A
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	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
Development Policy	In accordance with this policy the application has been assessed with consideration for the relevant legislation, environmental plans, development codes and the public interest.
Management of Contaminated Land Policy	A SEPP55 contaminated land assessment submitted by the applicant has concluded that the land is suitable for residential use.
Water and Sewer Equivalent Tenement Policy	The Subject lot is not serviced by Council reticulated water or sewer. Rous Water supplies bulk water. Equivalent Tenements applicable to the development to be determined by Rous Water.

4.9 The suitability of the site for the development

The land is a serviced, unconstrained property. However, as discussed elsewhere in the report the proposed location of the new dwelling house has not been adequately justified.

4.10 Submissions made in accordance with this Act or the regulations

The development application was publicly exhibited.

There was one submission made on the development application:

Issue	Comment
No landowners consent contained in exhibition material	Landowners consent has been provided from the directors of Koresoft Pty Ltd to Greg Alderson & Associates to lodge the application.
DCP requirements for studios have not been addressed	Additional information has been received that addresses the requirements of Chapter D2.7.1 of DCP2014.
Concern that studios will be of commercial use and not ancillary to residential use given reference of wastewater assessment to staff	The wastewater report makes reference to staff in relation to farm worker’s amenities, not in relation to studios.
Use of one of the studios for naturopathy is prohibited development	The use of the studio for naturopathy would only be for the production of naturopathic remedies and not as a medical centre or health services facility as there will be no patients coming to the site.
The studio for pilates and exercise is unwarranted given the amount of space in the associated dwelling.	The applicant has argued that the studio for yoga/pilates use requires a quiet and peaceful environment that will not be available within the proposed house.
Proposed studios appear to be small dwellings	The studio floor plans indicate a number of partitioned rooms including an “air conditioned preservation room”, toilet and bathroom with shower. The studio plans also contain a kitchen sink which is not permitted by the DCP. Given that the plans also include a carport and 60m² of verandah area it would appear that these buildings could be easily inhabited as separate dwellings. In order to approve such studios the bathroom, kitchen and carport would be required to be removed and the verandah areas significantly reduced.
Windmills shown on plans cannot be undertaken as exempt development	A development application for the windmill and other proposed agricultural structures which require Council consent is being prepared, and will be submitted to Council as soon as possible.
Separation distance between dwellings	This issue has been addressed above.
Impact of the proposal on the agricultural potential of the land	The applicant has argued that “the dwelling has been strategically located between two of the agricultural areas which are part of a share farming licence agreement”. Further, “this will ensure that the residents of the proposed dual occupancy can easily manage the horticultural activities and provide security to the farming activities and equipment through passive surveillance”. The proposal would have some impact on the agricultural potential of the land by alienating the land that would be occupied by the new dwelling, studio and associated curtilage.
Only one wind turbine is permitted as exempt development	Plans submitted with the application indicate two wind turbines to be erected as exempt development. However only one of these is permitted as exempt development and the other will require development consent under a separate application.
Potential impacts on aboriginal heritage	TBLALC have recommended a site visit and report to further investigate significant aboriginal cultural heritage thought to be located in the area. A site visit was undertaken by TBLALC on 21/06/18. Subsequently a Cultural Heritage Sites Inspection Report was prepared by TBLALC dated 21/06/18 and submitted to Council on 23/07/18. The report concluded that “there is nothing at this stage to halt or delay the proposed work on this site”. The report recommended that the Due Diligence Code of Practice for the Protection of Aboriginal Objects in NSW, published by the DECCW OEH, be applied. Procedures to be applied in the case of unexpected finds (including even suspected ACH objects) were also recommended.

4.11 Public interest

The proposed development is not in the public interest and will create an 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 of its location within cleared agricultural land.

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

Should the application be approved contributions and water and sewer charges would apply.

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

7. CONCLUSION

This application seeks development consent for alterations and additions to an existing dwelling house, construction of a new dwelling house, creating a dual occupancy (detached), and construction of two (2) studios.

The proposed development does not comply with the development standards of Clause 4.2D of LEP 2014 in that the dwellings will be well in excess of 100m distance from each other. The application has does not provide sufficient environmental planning justification for the contravention of the standard, pursuant to Clause 4.6 of the LEP.

It is considered that the proposal is inconsistent with the land use objectives of the RU2 Rural Landscape zone, in that the proposed new structures would detrimentally impact on the existing rural character of the property and locality and impact on the potential for sustainable farming on both the property itself and in relation to land adjoining to the north.

The proposal is also inconsistent with SEPP (Rural Lands) 2008, in that the proposed new dwelling, in the location shown, is likely to have a significant impact on land uses preferred in the vicinity, given the mapping of that area as Regionally Significant Farmland.

It is recommended that consent be refused for the reasons provided in the report and the recommendation.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.13

Report No. 13.13 Updates - Audit of secondary dwelling conditions of consent; Short Term Holiday Let enforcement action and State Government position on Short Term Holiday Let.

Directorate: Sustainable Environment and Economy

Report Author: Shannon Burt, Director Sustainable Environment and Economy

Sarah Nagel, Community Enforcement Officer

File No: I2018/974

Theme: Ecology

Development and Approvals

Summary:

The purpose of this report is to update Council on:

· a recent audit of secondary dwellings conditions of consent;

· the status of short term holiday let enforcement action commenced/current; and

· the State Government short term holiday let policy announcement in June.

RECOMMENDATION:

That Council note the updates regarding secondary dwelling conditions of consent and short term holiday letting provided in the report.

Report

Council considered reports in October and November 2017 on secondary dwellings conditions of consent and short term holiday let enforcement options.

October https://byron.infocouncil.biz/Open/2017/10/OC_26102017_AGN_611_WEB.htm

Report No. 13.21 Update Council Resolution 17-191 Secondary Dwelling Conditions

Report No. 13.22 Update on Resolution 17-263 Short Term Rental Accommodation Enforcement Options

November https://byron.infocouncil.biz/Open/2017/11/OC_23112017_AGN_612_WEB.htm

Report No. 13.25 Further update on Resolution 17-191 Secondary Dwelling Conditions

A report on Council’s submission to the Short Term Holiday Let Options Paper prepared by the Department of Planning was also on the October agenda. https://byron.infocouncil.biz/Open/2017/10/OC_26102017_AGN_611_WEB.htm

Report No. 13.20 Response to DPE Short Term Holiday Letting Options Paper

Various resolutions ensued and have since been actioned by staff.

The purpose of this report is to update Council on the status of these matters.

1. Secondary dwellings and conditions of consent

As requested by Council at the Ordinary Meeting 26 October 2017, a further update on item 2 of Resolution 17-191 was provided at the November Ordinary meeting. Resolution extract for context below:

… 2. That Council responds to concerns and compliance issues by:

a) contacting all property owners with a secondary dwelling (granny flat) approved since the passage of Council Resolution 11-268 and seek property owners’ confirmation that they are complying with their approval and/or conditions of consent with the regard to the Environmental Planning Assessment Act and to Byron Shire Council Resolution 11-268.

b) developing a form that seeks the owners signature regarding compliance with consent and Resolution 11-268 for inclusion with the correspondence to be returned to council within 30 days.

Letters and the form were sent to 598 property owners on 13 September 2017. Only 143 had been returned as of 6 November 2017. Copy of letter and form link below:

http://byron.infocouncil.biz/Open/2017/10/OC_26102017_ATT_611_WEB.htm

A second letter was then sent to those properties (end 2017) that had not responded to provide a further, brief, opportunity to do so. The aggregated results of both mail outs follow:

Complies / Response
Yes	311
No	2
No longer owns property	2
Not signed	7
Previously holiday let	1
Principle dwelling used holiday let	1
Returned to sender	6
Acknowledgement not returned	259
Application surrendered or changed	9
	598

For those properties where no acknowledgement was received, a memo is to be placed on the property to alert Council staff of any future non-compliance/complaints re holiday letting.

Evidence via section 9.22 of the Environmental Planning and Assessment Act is a tool which Council officers may employ in circumstances where a reasonable suspicion of unauthorised short-term holiday letting exists. Enforcement proceedings for the offence of development not in accordance with development consent may result for some properties.

The reasonable suspicion must be held by the investigating officer who is to commence proceedings. The investigating officer must be able to form that view in the circumstances of the particular matter. Each case must be dealt with on its merits.

2. Short Term Rental Accommodation - Enforcement Options

Council considered Report No. 13.17 Short Term Rental Accommodation - Enforcement Options at the Ordinary Meeting 22 June 2017 and resolved as follows:

17-263 Resolved that Council:

1. Note the report.

2. Authorise the General Manager, in cases where a reasonable suspicion of unauthorised short term rental accommodation and unauthorised tourist and visitor accommodation is taking place, to issue Notices to the following to provide information and answer questions about property use:

·Real Estate agents

·Letting Agents

·Website Hosts

·Tenants

3. That Council confirms that:

a) in order to preserve the availability of long-term letting in the shire for long-term residents that the moratorium on prosecutions has been lifted.

b) it now intends to prosecute in the most effective manner where merit exists any and all instances of unauthorised short term rental accommodation occurring in the shire.

4. That a media release be shared on this resolution.

5. Compile a confidential list of properties against which it may commence legal proceedings based on the establishment of a prima-facie case of unauthorised short term rental accommodation and unauthorised tourist and visitor accommodation, and that this list is compiled as soon as possible.

All parts of this resolution have been actioned to date.

1. Report noted.

2. Letters to ‘Real Estate agents, Letting Agents, Website Hosts, Tenants’ have been sent twice. An initial letter was sent to 19 real estate agencies in September 2017 as part of our mail out to Secondary Dwelling owners. A second letter was sent out to 25 Real Estates in May 2018.

3. Council had previously commenced proceedings against a number of short term holiday let properties/operators. The details of which are subject to legal proceedings and as such will not be provided in this report. However, since the announcement of a state government position and policy on short term holiday let on 5 June 2018, Council has not commenced any new enforcement proceedings and currently awaits further clarification from the state government of planning and regulation changes for short term holiday let to inform what if any action can occur at the local level.

4. Media releases continue to be periodically issued.

5. Community enforcement staff now manages a list of properties against which it may commence enforcement proceedings based on the establishment of a prima-facie case of unauthorised short term holiday let and unauthorised tourist and visitor accommodation. This is relevant to point 2 above.

Further, in April 2018, 114 letters were sent to the owners of properties that Council has received complaints about to advise them Council has reason to believe that the abovementioned premises are being advertised/used as short term holiday let.

The letter also advised of the relevant Council Resolutions and to the fact that the obtaining of evidence via section 9.22 of the Environmental Planning and Assessment Act is a tool which Council officers may employ in circumstances where a reasonable suspicion of unauthorised short term holiday let activity exists.

Council’s web page has also been updated to provide various avenues for complaints to be registered by the community on short term holiday let activity, including airbnb and other online platform sites:

As stated above, Council has not commenced any new enforcement proceedings and currently awaits further clarification from the state government of planning and regulation changes for short term holiday let to inform what if any action can occur at the local level.

https://www.byron.nsw.gov.au/Services/Building-development/Planning-in-progress/Short-term-rental-accomodation

3. State Government response to Byron Shire council submission on DPE Short Term Holiday Letting Options Paper

The NSW Government announced a new regulatory framework to govern the short-term holiday letting industry on 5 June 2018.

A Notice of Motion was presented to Council at the Ordinary Meeting 21 June 2018 on same.

https://byron.infocouncil.biz/Open/2018/06/OC_21062018_AGN_776_WEB.htm

The new framework is to include new planning laws, an industry Code of Conduct and new provisions for strata scheme by-laws.

The announcement is in response to the short term holiday letting option paper exhibited by the Department of Planning and Environment last year.

Council made a submission to this paper advocating strongly for the ability to locally respond to short term holiday let activity through planning regulation, registration and compliance mechanisms.

The early indication from the consultation being held was that this would be the case.

There was no further direct engagement with local government (and in particular Byron Council) subsequent to the consultation close in October 2017 and the Government announcement.

In reviewing the limited details on the proposed new state-wide planning controls, it would seem short-term holiday letting is to be enabled under certain conditions.

If the host is present, a property owner can use their home for short-term holiday letting all year round as exempt development. That is, they do not need to submit a development application to local council.

If the host is not present, that residence can be used for short-term holiday letting up to 180 days per year in Greater Sydney, with 365 days allowed in all other areas of New South Wales. Councils outside Greater Sydney will have the power to decrease the 365 day limit to no less than 180 days per year. There will also be additional conditions for bushfire prone land to ensure visitor safety.

Council acknowledges the divergent views on the impacts of short term holiday let in councils across NSW. However, Byron Shire has experienced rapid growth in the last few years in online holiday rental listing and activity in the Shire. This has resulted in significant adverse impacts on the community in terms of amenity and character, and has reduced the available and affordable rental accommodation for residents and key workers that are needed to support the local tourist economy.

As such Council does not consider a blanket approach to planning regulation via a state policy as appropriate. NOTE: As Council has not seen the details of the state-wide policy a formal position on it has not been able to be made at this time.

Current situation

The Fair Trading (Short Term Rental Accommodation) Act and Strata Act amendments have now been enacted without the new-state wide planning policy. These amendments include the introduction of a mandatory Code of Conduct that will apply to anyone involved in providing or using short-term holiday letting including hosts, guests, online platforms, and letting agents. And amendments to the strata scheme management laws to clarify that by-laws can prohibit short-term holiday letting, but only for lots that are not a host’s principal place of residence.

Council has written to the Minister for Planning to seek a deferral of Byron Shire from the new state-wide planning policy (pause to implementation) to enable a full consideration of the impact of the changes to short term holiday let in Byron Shire in terms of environmental, social and economic impacts; and also to enable Council to tailor a local response to planning and regulation through either the state-wide policy or Byron local environmental plan provisions.

The Minister has been advised that Council already permits one bedroom short term holiday lets with host as exempt development. As such the requested pause on implementation to the state-wide policy would only be to short term holiday lets where no host is present.

This Council considers to be a reasonable and equitable position for the state government to take for Byron Shire given the need to ensure that what is imposed on the community is both fair and balanced for the community as a whole not just one part.

An urgent meeting with the Planning Minister has also been sought. While no response has been received from the Minister, Council staff received an email 11 July from the Department of Planning staff for a meeting to discuss the proposed planning framework for short term holiday let. Dialogue is to occur during July. Further updates will be provided to Council as available.

Financial Implications

Staff resourcing and any enforcement proceedings need to be managed within the existing budget allocation. Costs are dependant on and specific to the enforcement proceedings.

The impacts of the new state-wide planning framework for short term holiday let on Byron Shire have not been able to be assessed as yet.

Statutory and Policy Compliance Implications

Environmental Planning and Assessment Act 1979; Local Government Act and related Acts and regulations.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.16

Report No. 13.16 PLANNING - S96 10.2013.128.3 - Delete Condition 59 and Permit Paid Parking 30 Tanner Lane Tyagarah

Directorate: Sustainable Environment and Economy

Report Author: Chris Larkin, Manager Sustainable Development

File No: I2018/1290

Theme: Sustainable Environment and Economy

Development and Certification

Proposal:

Section 96(1A) Application No:	10.2013.128.3
Proposed modification:	S96 to amend Condition 59 to Permit Paid Parking
Original Development:	Operate a Place of Assembly (Blues Festival), incorporating an annual five-day music festival over the Easter Holiday period, with associated temporary infrastructure (i.e. marquees, camping, food stalls, restaurants, market stalls, fencing and car park
Property description:	LOT: 103 DP: 1023126, LOT: 105 DP: 1023126, LOT: 104 DP: 1023126
Property description:	30 Tanner Lane TYAGARAH, 35 Yarun Road TYAGARAH, 2 Tanner Lane TYAGARAH
Parcel No/s:	235000, 268701, 235020, 268703, 235010, 268702
Applicant:	Newton Denny Chapelle
Owner:	East Coast Blues & Roots Music Festival Pty Ltd
Zoning:	RU2 Rural Landscape / PART DM Deferred Matter
Public notification or exhibition:	- Level 2 advertising under DCP 2014 Part A14 – Public Notification and Exhibition of Development Applications - Exhibition period: 01/03/2018 - 14/03/2018 - One Submission was received
Delegation to determination:	Council
Issues:	· Impacts on traffic on the highway and local road network

Summary:

The applicant is seeking approval to amend Condition No.59 of the consent in relation to a prohibition on charging for parking at Bluesfest Events. The condition states:-

59. No Car Parking Fees

The entry for the event shall include free car parking within the site to discourage on-street car parking on roads within the vicinity.

The purpose of the condition is to:-

a) discourage parking in the surrounding road network by making parking freely available for patrons within the Bluesfest Car Park; and

b) to enable traffic to enter the site unencumbered without the need to pay a fee at the entrance to the site in terms of traffic management. This is of importance having regards to the means of entrance to the site via the Pacific Hwy Off ramps with a 110 km speed environment.

The applicant has advised of the need to charge for parking for financial reasons. They have proposed that drivers will not be charged until they have parked their vehicles and patrons will be then approached for payment. A media campaign would advise patrons of the charges associated with parking at Bluesfest, whilst staff would be employed to monitor any queuing issues that may arise on the Pacific Hwy, with traffic management taking priority over any collection of car parking fees. The applicant has provided details on other events that charge for parking including Splendour in the Grass and Falls Festival at Yelgun. The matter was originally reported to the Local Traffic Committee (LTC) on the 20 March 2018 whereby the request for paid parking was not supported.

The applicant has provided further information in relation to the management of traffic and believes that the provision of paid parking can be appropriately managed through:

· pre purchase of parking tickets

· the use of dedicated staff to collect parking fees after cars have parked

· The use of smart technology such as tap and go wireless eftpos machines to enable quick and easy cashless payment on the spot

· Suspension of paid parking in the event that traffic was starting to queue on the highway

In discussions with the applicant the point has been made that a price on parking is also desirable to make other forms of transport more attractive such as local buses and kiss and ride by family and friends. It is also noted this will provide a “Plan B” for patrons as they will not be tempted to drink and drive if they have utilised other forms of transport to access the event.

The matter was reported back to the LTC on the 26 June 2018 whereby the following recommendation was made:

1. That Paid parking at Bluesfest:

a) Be supported for Bluesfest 2019 with a review following the event within 2 months of the event;

b) If no issues are raised by either the RMS, Police or Council that paid parking be permitted as a permanent arrangement.

2. The committee advises the proponent to incorporate these changes into future TMP/ TCP’s and that these be lodged with Council at least 4 months prior to the event.

It is recommended that the consent be amended to enable paid parking for the 2019 event and to reflect the recommendations of the Local Traffic Committee.

NOTE TO COUNCILLORS:

RECOMMENDATION:

1. That pursuant to Section 96 of the Environmental Planning & Assessment Act 1979, that Application No. 10.2013.128.3 be approved by modifying development consent Number 59 to read

59. Car Parking Fees and Traffic Management Plans

Paid parking is permitted for the Bluesfest 2019 Event. The applicant to prepare a Traffic and Parking Report following the event to be submitted to Council within 2 months of the 2019 event for review by the Local Traffic Committee. The report to address functionality of paid parking, any delays on the Pacific Highway and surrounding roads, illegal parking and camping and any traffic incidents.

If no issues are raised by the RMS, the NSW Police Force or Council in terms of paid parking at the LTC, paid parking can continue as a permanent arrangement.

Should this not be supported post the 2019 event, the entry for further Bluesfest Events shall include free car parking within the site to discourage on-street car parking on roads within the vicinity. Bluesfest to be advised of the outcome of this review.

The parking arrangements to be incorporated into future Traffic Management / Traffic Control Plans for the even. (Note: These plans to be submitted to Council a minimum of four months prior to the annual Bluesfest Event.)

Attachments:

1 Attachment 1 - submission received, E2018/58877 ⇨

Report

1.1. History/Background

DA10.2013.128.1 – Approved 7/5/14

DA10.2018.128.2 – Approved 11/12/14

1.2. Description of the proposed development

This application seeks approval to amend Condition 59 to enable Paid Parking. The condition currently reads:

59. No Car Parking Fees

The entry for the event shall include free car parking within the site to discourage on-street car parking on roads within the vicinity.

Bluesfest Site

1.3 Is the modification substantially the same as the development granted?

The proposed section 96 application is considered to result in a development which is substantially the same development for which consent was originally granted. The proposal can be considered under S96(1A) as a minor amendment.

2.0

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.

2.1 State/Regional Planning Policies, Instruments, EPA Regulations 2000

The proposed amendments raise no issues under the relevant SEPPS, Policies or clauses of the EPA Regulations 2000

2.2 Byron Local Environmental Plan 2014

The proposed amendments raise no issues under the LEP.

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

No draft EPIs affect the proposal.

2.4 Development Control Plans

Proposed amendments do not generate any additional issues that have not been previously considered.

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

The proposal has been referred to the Local Traffic Committee on the 26 June 2018, whereby it is recommended that the paid parking be permitted for the Bluesfest 2019 event as follows:

1. That Paid parking at Bluesfest:

a) Be supported for Bluesfest 2019 with a review following the event within 2 months of the event;

b) If no issues are raised by either the RMS, Police or Council that paid parking be permitted as a permanent arrangement.

2. The committee advises the proponent to incorporate these changes into future TMP/ TCP’s and that these be lodged with Council at least 4 months prior to the event.

It is recommended that the consent be amended to enable paid parking for the 2019 event and to reflect the recommendations of the Local Traffic Committee.

Provided that paid parking is successful and there are no issues or impacts on traffic flow on the highway for the 2019 event, or on the surrounding road network, paid parking can become a permanent arrangement for Bluesfest.

2.6 The suitability of the site for the development

The proposed amendments do not raise any issues in relation to the sites suitability.

2.7 Submissions made in accordance with this Act or the regulations

One submission was received objecting to the amendment. The following comments are provided for Councils consideration

Issues	Staff Comment
Condition 59 is required to prevent people parking on the local roads as they would object to paid parking	Approval is supported for the 2019 event which will be reviewed as required by the Local traffic Committee. Should paid parking cause issues for through traffic on the highway or result in patrons parking on local roads surrounding the site, then paid parking may not be permitted in the future following that review
Local roads need security during events to stop parking in Fox Lane, Grays Lane etc. Also to prevent camping, illegal rubbish dumping the like.	Condition 29(k) of the consent requires regular security guard surveillance for Grays and Fox Lane. It is in the interest of Bluesfest to ensure compliance with that condition.
Unable to gain access to exhibited documentation	Copy of documentation emailed to objector who was invited to make submission by the Planner

2.8 Public interest

The proposed amendments are unlikely to prejudice or compromise the public interest.

2.9 DEVELOPER CONTRIBUTIONS/ WATER AND SEWER CHARGES

There is no nexus to levy additional contributions.

3.0 CONCLUSION

The proposed development is considered to be substantially the same development as approved and satisfies the provisions under Section 96 of the EPA Act 1979. Having regards to the amendment to enable paid parking this is supported for the 2019 Bluesfest Event, which will be reviewed following the event, as recommended by the Local traffic Committee. Provided no issues arise, paid parking can become a permanent arrangement provided this is supported by Council, the RMS and the NSW Police Force. The application is recommended for approval subject to Condition 59 being amended.

4.0 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

5.0 STATEMENT OF REASONS

Note: From July 1 2018, Council’s are required to give and publicly notify reasons for a range of planning decisions where they are deciding if development should proceed to help community members to see how their views have been taken into account and improve accountability to stakeholders. A statement of reasons for the determination of this application is provided below.

S.96	The proposed modification is minor and substantially the same as the original development approval with no likely detrimental impacts on the built or natural environment the result of the change to the relevant condition.

How community views were addressed

The DA was advertised in accordance with Development Control Plan 2014. The submission received was considered on merit and addressed during assessment of the application as discussed above.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.17

Report No. 13.17 PLANNING - Development Application No. 10.2018.86.1 - Installation of 30m high telecommunications facility and associated ancillary equipment at Lot 339 DP 755692 Old Pacific Highway Brunswick Heads

Directorate: Sustainable Environment and Economy

Report Author: Greg Smith, Team Leader Planning Services

File No: I2018/1301

Theme: Sustainable Environment and Economy

Development and Certification

Proposal:

Proposal description:	Installation of 30m High Telecommunications Facility and Associated Ancillary Equipment
Property description:	LOT: 339 DP: 755692
Property description:	Old Pacific Highway BRUNSWICK HEADS
Parcel No/s:	164530
Applicant:	Aurecon
Owner:	Brunswick Heads Bowling Club
Zoning:	RE2 Private Recreation
Date received:	27 February 2018
Integrated Development:	No
Public notification or exhibition:	- Level 2 advertising under DCP 2014 Part A14 – Public Notification and Exhibition of Development Applications - Exhibition period: 22 March 2018 to 4 April 2018 - Submissions received: 1
Delegation to determination:	Council
Issues:	· Building height under LEP 2014 clause 4.3, with clause 4.6 request for variation (development standard is 9m, total height is approximately 31.5m) · Bush fire prone land · Acid sulfate soils - class 4 · Public submission (1)

Summary:

The DA proposes installation of a 30m high telecommunications facility and associated ancillary equipment. The location is part of the site of the Brunswick Heads Bowling Club.

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 the height provisions under Clause 4.3 of BLEP 2014. The tower has a proposed maximum height of approximately 31.5m which exceeds the 9m maximum development standard.

The DA is supported by a written request for a variation pursuant to clause 4.6 of LEP 2014. It is considered that strict compliance with the development standard is not warranted in this instance. In particular a phone tower would be ineffective at 9 metres in height. It is noted the tower is located at the southern entrance to Brunswick Heads adjacent to the Bowls Club and next to an existing shed. The area is in part vegetated with a mixture of eucalypts and other coastal species helping to screen the tower as it is approached from Brunswick Heads to the north and from the Pacific Highway to the south. Further landscaping is also recommended by way of a condition of consent to soften the visual impact of the tower compound. The proposal is unlikely to have a significant impact on the visual amenity of the locality.

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 discussed in this report. In this regard numerous sites were considered in the Brunswick Heads area, with the bowling club site selected as the preferred property for the phone tower.

The proposed tower will provide improved mobile telecommunication for residents, businesses, tourists and other visitors to the area. The application is recommended for approval subject to conditions of consent.

NOTE TO COUNCILLORS:

RECOMMENDATION:

Pursuant to Section 80 of the Environmental Planning & Assessment Act 1979, Development Application No. 10.2018.86.1 for Installation of 30m high telecommunications facility and associated ancillary equipment, be approved subject to conditions listed in Attachment 2 #E2018/57739.

Attachments:

1 Attachment 1 Proposed Plans, E2018/57738 ⇨

2 Attachment 2 Recommended conditions of consent, E2018/58444 ⇨

3 Attachment 3 Submission received, E2018/58445 ⇨

Report

Assessment:

1. INTRODUCTION

1.1. History/Background

The Brunswick Heads Bowling Club is located at the site, which has been the subject of various development applications over the years.

1.2. Description of the proposed development

This application seeks approval for Installation of 30m High Telecommunications Facility and Associated Ancillary Equipment.

1.3. Description of the site

Land is legally described as	LOT: 339 DP: 755692
Property address is	Old Pacific Highway BRUNSWICK HEADS
Land is zoned:	RE2 Private Recreation
Property is constrained by:	Bush fire prone land, Acid Sulfate Soils Class 4

The above arrows show the approximate location of the proposed development (looking north and looking south, respectively).

2. SUMMARY OF REFERRALS

Referral	Issue
Environmental Health Officer	No objections subject to conditions. Refer to Doc #A2018/7372.
Development Engineer	No objections subject to conditions. Refer to Doc #A2018/7388.
S64 / Systems Planning Officer	No objections, no conditions. Refer to Doc #A2018/7409.
S94 / Contributions Officer	Conditions recommended in relation to the payment of section 94A contributions.

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

3. SECTION 79BA – BUSH FIRE PRONE LAND

Under section 4.14 of the Act, Council must be satisfied prior to making a determination for development on bush fire prone land, which the development complies with the document Planning for Bush Fire Protection 2006. The site is bush fire prone land.

The Applicant advises that: “The proposed facility would be unmanned and all equipment constructed of either steel or aluminium materials. Therefore, a bush fire would not present a significant danger to the facility. Telecommunications infrastructure is generally deemed as important infrastructure, during emergency events, such as a bushfire.”

Planning for Bush Fire Protection 2006 states that class 10b buildings in bush fire prone areas should be non-combustible and on the basis of the Applicant’s advice, the proposal complies with this requirement. It is also noted that the direction of the bush fire hazard is to the west, on the opposite side of the Old Pacific Highway, providing a defendable space between the proposal and the hazard.

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: Council’s Environmental Health Officer advises as follows: “Due to the non-habitable nature of the proposed development, soil contamination assessment is not considered necessary in this instance. Note that this is consistent with Council’s approach to other similar developments”.
State Environmental Planning Policy No 71—Coastal Protection	☒	☐
Consideration: The proposal will not have a significant impact with respect to the matters for consideration under the former SEPP 71.
State Environmental Planning Policy (Infrastructure) 2007	☒	☐
Consideration: The proposed telecommunications facilitiy is permitted with consent pursuant to clause 115 of the Infrastructure SEPP.
State Environmental Planning Policy (Coastal Management) 2018	☒	☐
Consideration: The proposed development is considered to be satisfactory having regard to the provisions of the Coastal Management SEPP, noting that the site is within the Coastal Use Area only.

4.2A Byron Local Environmental Plan 2014 (LEP 2014)

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

(a) The proposed development is defined in the Infrastructure SEPP as a telecommunications facility;

(b) The land is within the RE2 Private 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 private open space or recreational purposes.	The proposal does not prevent the use of the land for private open space or recreational purposes.
• To provide a range of recreational settings and activities and compatible land uses.	The proposal does not prevent the provision of a range of recreational settings and activities and compatible land uses.
• To protect and enhance the natural environment for recreational purposes.	The proposal appropriately protects and enhances 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 of these clauses (in some cases subject to conditions and/or to the satisfaction of other assessing officers), except in relation to clause 4.3 which is addressed as follows:

4.3 Height of buildings

Clause 4.3 is as follows:

(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,

(c) to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development.

(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.

The Height of Buildings Map shows a 9m maximum height of building for the location of the proposed development. The proposed height is approximately 31.5m.

The Applicant has submitted a written request for variation under clause 4.6 of LEP 2014. 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 installation of a 30m high telecommunications facility and associated ancillary equipment, although the total height is closer to 31.5m.

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 maximum height of building planning control of 9m applicable to this site under LEP 2014 clause 4.3 as described above.

The maximum height of building planning control is a development standard in accordance with the applicable definition in section 1.4 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 height of a building.

4. Extent of Variation to the Development Standard

The extent of the variation is approximately 250%.

5. Objective of the Development Standard

The objectives of the development standard, as outlined in subclause 4.3(1) are:

(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,

6. Objectives of the Zone

The objectives of the RE2 Private Recreation 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:

“Telstra believes that compliance with the development standard is unreasonable given the nature of telecommunications facilities”.

Requiring compliance with the development standard would result in a telecommunications facility of such a size that would not allow appropriate servicing of the local area in accordance with it’s intended purpose. Requiring compliance with the development standard would be unreasonable in the circumstances of the case.

(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 height of the facility is necessary as the nature of telecommunications facilities is that they are high enough to protrude above surrounding vegetation and structures. This is how the network operates, by establishing a ‘line of sight’ for antennas. There is surrounding mature vegetation that exceeds 9m and as such, the tower is unable to comply with the maximum height limit prescribed in Council’s LEP. The proposed height of the facility allows coverage to the Brunswick Heads area, without the facility needing to be in the middle of a residential locality.

The height is required to allow adequate provision of mobile voice and data service to the residential area south of the proposed facility and the main residential, commercial and tourist areas of Brunswick Heads to the north. Furthermore, if the 9m height restriction was enforced in all localities as identified in Council’s LEP, it is unlikely there would be sufficient telecommunications coverage. Typically, telecommunications base stations exceed these height limits”.

The environmental planning grounds are particular to the site and sufficient to justify contravening the development standard. These include that the building is located so as to maintain an appropriate distance to nearby residential properties, minimise environmental and visual impacts, and use of existing space with minimal environmental constraints. The proposal will be visually softened to some extent by existing trees and vegetation, particularly from the southern approach. The photo below is taken from the road, residential properties are located even further to the south and it is unlikely that the proposed structure will be excessively visible from the nearest residential properties (particularly due to intervening vegetation). Refer for example the photo below which was included in the Applicant’s Statement of Environmental Effects. The proposed variation does not create any significantly adverse social, environmental or economic impacts in the locality.

(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:

“With respect to Clause 4.6(4)(a)(ii), Telstra believes that the proposal is consistent with the zone objectives of RE2 Private Recreation. The facility will provide a reliable mobile network service that is essential for residential, commercial and recreational purposes; meeting the day to day mobile needs of residents, businesses and visitors to the area”.

The proposal is consistent with the objectives of the development standard and the zone for site specific reasons as follows:

(a) Objectives of the Standard

· whilst the proposal exceeds the specified maximum height, the proposed height is justified in the location and having regard to the minimal environmental impact of the proposal,

· the proposed height does not significantly detract from the streetscape and character of the area, and

· the proposal will not have a significant impact in terms of visual, views, loss of privacy and loss of solar access.

(b) Objectives of the RE2 Zone

· The proposal does not prevent the use of the land for private open space or recreational purposes.

· The proposal does not prevent the provision of a range of recreational settings and activities and compatible land uses.

· The proposal appropriately protects and enhances the natural environment for recreational purposes.

The proposal produces a better planning outcome than one that strictly complies with the development standard because requiring strict compliance would result in a mobile phone tower that is not able to serve the intended purpose. The proposed development is in the broader public interest. The circumstances of the case warrant a more flexible approach to application of the building height development standard, the Applicant’s variation request is supported and the development application is recommended for approval despite the non-compliance.

6.1 Acid sulfate soils

The location of the proposed development is class 4 acid sulfate soils, which relates to works exceeding a depth of 2m below the natural ground surface. However the Applicant confirms that there will be no works beyond 2m below the natural ground surface. The Applicant acknowledges that should acid sulfate soils be discovered during excavation, then works would cease in order to resolve the potential for impacts.

6.2 Earthworks

The development involves earthworks for which development consent is required. The extent of proposed earthworks is minimal at this relatively flat topographical location.

6.6 Essential services

The proposed development has access to all necessary services, including for example stormwater and power.

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

There are no draft environmental planning instruments of significant influence in relation to the proposal.

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

Chapter B2 Preservation of trees and other vegetation

The proposed development is located in a grassed position and does not require the removal of any significant trees.

Chapter B3 Services

The location of the proposed development has access to all necessary services, including for example stormwater, access and power.

Chapter B4 Traffic Planning, Vehicle Parking, Circulation and Access

The proposed access is satisfactory having regard to the assessment provided by Council’s Development Engineer.

Chapter B8 Waste Minimisation and Management

A pre-construction certificate condition is recommended requiring appropriate waste minimisation and management procedures to be put in place for all works.

Chapter B9 Landscaping

A landscape plan is required by way of a recommended condition so as to visually soften the compound of the tower.

Chapter B14 Excavation and Fill

The plans provide an indication that the extent of excavation and fill does not exceed a depth of 1m.

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

The DA is supported by a visual impact analysis. The nature of telecommunications base stations is that they need to be tall enough to protrude above surrounding infrastructure and vegetation, in order to provide a line of sight to devices and other base stations. It is impractical to completely screen a new structure.

To the west of the proposed site, on the other side of Old Pacific Highway, is densely vegetated unused land. Directly to the north is the Brunswick Bowling Club and beyond the clubhouse to the north is dense tall vegetation. Considering the tall and dense nature of these trees, the proposed facility would not be visible to persons traversing Old Pacific Highway (by either vehicle or pedestrian form) from the north, towards the south, until approximately 180m from the site. Existing vegetation provides visual softening from the northerly direction.

To the south east of the site are sporting ovals and Council's water treatment plant. The closest residential property is approximately 150m to the south, separated by reasonably tall vegetation, another sports oval and a skate park. It is predicted the main view corridor of the proposed facility, would be for pedestrians and vehicular traffic travelling north along the Old Pacific Highway, Due to the shape of the road corridor, it would be expected a view of the facility would be obtained from approximately 160m from the site.

There are surrounding tall trees that would provide intermittent screening of the facility and the immediate surrounding vegetation would screen the lower half of the pole. Whilst it is appreciated there will be an intermittent visual presence of the facility, particularly when facing northwards and from the Bowling Club and sporting ovals, this location offers the greatest amount of natural screening and separation from residential properties, compared to other locations identified within the Brunswick Heads area. Conditions of consent are recommended in relation to general landscaping around the compound.

Chapter E4 Brunswick Heads

The DCP shows an existing footpath / cycleway crossing the site, however there is no existing footpath / cycleway in the exact location of the proposed development.

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 proposal raises no issues relevant clauses for consideration under the EPA Regulations 2000.

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.

Standard conditions of consent are recommended in relation to construction activity, hours of work, builders waste and the like

4.9 The suitability of the site for the development

The Applicant advises that Telstra and its consultants have been investigating an appropriate location for a new Telstra base station facility for over seven years in the Brunswick Heads area. Brunswick Heads requires a dedicated mobile phone base station to effectively provide reception to residents, businesses and visitors to the area.

The Applicant advises that it has been difficult to find a suitable location, due to the residential and scenic nature of the area, but that Telstra is of the opinion the Brunswick Heads Bowling Club offers the most appropriate location for a new facility. Twelve candidate sites were investigated by Telstra.

The reasons provided by the Applicant as to why other candidates were not selected are as follows:

· An agreement with the landowner could not be reached or property negotiations failed.

· The proposal would have resulted in a high degree of visual impact on the surrounding residential area.

· Proximity to residential properties or less separation from residential properties.

· An Aboriginal Land Claim (ALC) was lodged, prohibiting development from occurring.

Upon assessment of all candidates, Telstra selected the proposed location as ultimately deemed the most appropriate location as the site offers reasonable distance from the closest residential properties, existing surrounding tall vegetation, a willing landowner and the location would meet radio frequency objectives.

It is considered the site is suitable for the proposed telecommunication tower.

4.10 Submissions made in accordance with this Act or the regulations

The development application was publicly exhibited. There was one submission made on the development application which raised the following issues:

9m height limit. Maintenance of Brunswick Heads lifestyle and the prevention of Gold Coast type developments. Views form the breakwater of tree and sky with hills behind and no building in sight. Every other Telco will want one as their coverage is no better than Telstra and generally worse. A mobile phone tower is ugly. A developer could put forward a sound argument that an architecturally designed 30m block of units would be more attractive. Council must consult widely with the Community. I only, by chance, picked up the Byron News as it is not delivered to us.

Comment: The height of the proposed development has been considered above with reference to the provisions of clauses 4.3 and 4.6 of Byron LEP 2014 and is considered to be justified. The Applicant has selected a location that does not adjoin dwellings and is not topographically elevated or highly visually prominent. The proposed height is not likely to be a trigger for applications proposing blocks of units that exceed the height limit. Any subsequent application for a telecommunications facility would be considered on its merits. The application was notified in a local newspaper in accordance with Council policy.

The application indicates a pressing need for the tower based on current call failure rates and future demand. Even though we live on the edge of the coverage there has never been a time when a call has failed or dropped out. Delays in receiving messages during the Splendour or Falls Festivals. These are massive extra numbers of mobile phone users that should be mandatorily catered for by mobile towers at the site. There is no Telstra coverage near the Gulgan Rd / Mullumbimby Rd junctions. Any tower should be on the Mullumbimby side of the Motorway.

Extra numbers of people and higher data won’t happen as Brunswick is full at Xmas and Easter and there is no way of being overfull. With the NBN, many people who currently use mobiles may switch to VOIP with their internet thus reducing the demand on mobile services.

Comment: The Applicant provides the following justification relating to the need for the proposed development:

“Telstra regularly undertakes detailed assessments of the performance and coverage of its digital mobile telephone and broadband internet networks to ensure its systems are reliable and achieving the required objectives. The customers demand for mobile broadband, voice and video services is driving existing facilities towards full capacity.

Since the introduction of smartphone's and tablet devices, together with wireless internet and social networking applications, Telstra is experiencing a doubling every year of wireless demand. Reference to customer demand in the Brunswick Heads area has identified diminishing radio frequency coverage in the area for over seven years. This will further deteriorate in the future. In order to improve coverage in the area, a dedicated site to cover the Brunswick Heads area is essential; and Telstra has identified the proposed location at Brunswick Heads Bowling Club as the preferred location for a new mobile phone base station.

Telstra considers that the location selected for the new base station best meets the radio frequency objectives, including:

· the ability to reduce the work load (referred to as 'traffic') currently being experienced by the surrounding network sites, specifically the existing site known as Billinudgei, and

· offering the opportunity to provide enhanced coverage by locating the new base station as centrally as possible, whilst avoiding residential properties as much as possible, within the area of customer demand”.

The Applicant is considered to have provided sufficient justification for the purposes of DA assessment, for the proposed development with reference to demand.

No one wanted their tower, having investigated and had rejected a number of alternatives. The entry statement to Brunswick Heads from the most popular South will be the top of the mobile phone tower – not a good look. The applicant has provided some depictions of the tower from two positions on Old Pacific Highway, but where else can it be seen from? As the applicant requires the 30m for line of sight to the relevant mobile phones, so also will there be line of sight back to the tower. Will it be visible from the pedestrian bridge over Simpsons Creek or the Breakwater perhaps?

Comment: The Applicant investigated a number of alternative locations and settled on the proposed location, which is considered satisfactory having regard to visual impact for the reasons given above.

The applicant states “there is no substantial evidence that exposure to low level radiofrequency EME causes adverse health effects”. This is not the same as saying there cannot be any effects and in any case of uncertainty “precautionary principles” should apply. These demand that any siting of a mobile phone tower should be at a site that minimises exposure. The Industry Code also has the objective of “avoiding community sensitive locations”. The skate park and playing fields are community sensitive locations. One site near the Brunswick Heads Primary School was rejected on being too close to the school, but they want to put a tower close to where hundreds of children play regularly on the skate park or at sports on the adjoining ovals. The playing fields are also used by the Rescue Helicopter. They also should be advised of this proposal given the height of the tower.

Comment: Council’s Environmental Health Officer advises that telecommunication facilities which radiate electromagnetic energy (EME) into the surrounding environment must comply with safety limits imposed by the Australian Communications and Media Authority (ACMA).

The limits are given in the Radiocommunications (Electromagnetic Radiation — Human Exposure) Standard 2003. These limits are based on the ARPANSA Radiation Protection Standard - Maximum Exposure Levels to Radiofrequency Fields - 3kHz to 300GHz. ACMA also requires compliance with industry codes of practice including the Australian Communications Industry Forum (ACIF) C564:2004 Industry Code – Deployment of Mobile Phone Network Infrastructure.

Appendix B of the Statement of Environmental Effects provides a summary of estimated RF EME Levels around the proposed mobile base station in accordance with Australian Radiation Protection And Nuclear Safety Agency (ARPANSA) Prediction Methodology and presents a report in an approved ARPANSA Environmental EME Report format. The maximum predicted EME levels for the proposed systems at this site is 4.36V/m; equivalent to 48.21 mW/m2 or 0.86% of the ARPANSA public exposure limits (at 179.22 m from the antenna). Note: The public exposure limit is 100%, so 0.86% is well within safety limits.

The Telecommunications Code of Practice requires that telecommunications providers co-locate facilities with the existing facilities of other carriers or public utilities, or utilise public easements. Co-location can assist in minimising visibility, reducing visual impacts and protecting public amenity. Information contained in the SEE demonstrates that 12 sites (‘candidates A to L’) were investigated. However, these areas were discounted due to a variety of issues. Page 8 of the SEE states that: Upon assessment of all candidates, this location (Location ‘L’) was ultimately deemed the most appropriate location as the site offers reasonable distance from the closest residential properties, existing surrounding tall vegetation, a willing landowner and the location would meet radio frequency objectives.

The proposed development complies with the mandatory standards required by ARPANSA.

Council’s Environmental Health Officer stated the following in her assessment of DA 10.2010.404.1:

“Non-support of the development based on health grounds would be impossible to defend in court due to the lack of clear scientific evidence that exposure to low level radiofrequency EME causes adverse health effects. The Land and Environmental Court have upheld an appeal by Hutchison Telecommunication (Australia) against Ku-ring-gai Municipal Council for the refusal a telecommunications tower located at Kissing Point Road, Turramurra. To view the case in visit http://www.austlii.edu.au”

Koala habitat

Comment: The location of the proposed structure is a grassed area with no significant trees. There is koala habitat in the vicinity, however the specific location of the proposed development is not koala habitat.

The most obvious place to put a mobile phone tower would be in the carpark adjacent to the off ramp of the motorway on the Mullumbimby side or the Council owned land occupied by the Brunswick Volunteer Rescue in Byron St where there is currently a radio aerial for VHF communication. If this was replaced by a short mobile phone tower, then most of the tower would be hidden by the truck shed and its location backing onto the reserve would limit the visual impact.

Comment: Council is required to assess the location as proposed by the development application.

4.11 Public interest

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

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

Section 94 Contributions will be payable at construction certificate stage.

6. CONCLUSION

The DA proposes Installation of 30m high telecommunications facility and associated ancillary equipment. The building has a proposed maximum height of approximately 31.5m which exceeds the 9m maximum development standard (approximately a 250% variation). The DA is supported by a written request for a variation pursuant to clause 4.6 of LEP 2014. The circumstances of the case warrant a more flexible approach to the application of the minimum lot size development standard, the Applicant’s variation request is supported and the development application is recommended for approval despite the non-compliance subject to conditions.

7. REASONS FOR DECISION, HOW COMMUNITY VIEWS WERE ADDRESSED

The proposed development will not have significant adverse impact on the natural, built or social environment or economic impacts on the locality.

The proposed development is considered suitable for the proposed site.

How community views were addressed

The DA was advertised in accordance with Development Control Plan 2014. The submissions received were considered on merit and addressed during assessment of the application.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.18

Report No. 13.18 PLANNING - Development Application 10.2017.516.1 Subdivision to create four (4) lots, removal of trees, earthworks and associated infrastructure - 8 Coomburra Crescent, Ocean Shores

Directorate: Sustainable Environment and Economy

Report Author: Paul Mills, Senior Planner

File No: I2018/1304

Theme: Sustainable Environment and Economy

Development and Certification

Proposal:

DA No:	10.2017.516.1
Proposal description:	Subdivision to create four (4) Lots
Property description:	LOT: 1577 DP: 243995
Property description:	8 Coomburra Crescent OCEAN SHORES
Parcel No/s:	14500
Applicant:	Ardill Payne & Partners
Owner:	Mr A L Mangleson
Zoning:	R2 Low Density Residential
Date received:	19 September 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: 28/09/17 to 11/10/17 - Submissions received: Ten (10)
Planning Review Committee:	Application was considered at the PRC Meeting held 19 October 2017 where it was decided that the application would be determined at a Meeting of Council.
Delegation to determination:	Meeting of Council
Issues:	· Traffic noise and disturbance and vehicle sight distances when accessing Coomburra Crescent. · Slope stability and geotechnical assessment. · Stormwater management.

Summary:

The application seeks development consent for the subdivision of a large existing residential lot into four (4) new lots. Access to proposed Lot’s 1, 2, 3 and 4, is via a 6.0m wide access handle from Coomburra Crescent. The proposal is considered to satisfy the provisions of Byron LEP 2014 and other relevant Environmental Planning Instruments, and is satisfactory form of infill development ranging in size from 800m² to 1675 m² in area.

The proposal is also considered to satisfy the provisions of Byron DCP 2014 apart from a numeric non-compliance with the 1.0m maximum depth of excavation control. The proposed retaining wall associated with the construction of the new driveway reaches a maximum height of approximately 1.50 metres. The proposed earthworks are considered to achieve the objective of control to maintain the character of the area subject to conditions.

A total of ten (10) submissions were received in response to the community consultation process. The matters raised in the submissions include concerns regarding the safety of driveway access to Coomburra Crescent, vehicle noise, earthworks – slope stability, retaining walls, stormwater management, removal of trees, loss of privacy, vehicle safety, loss of amenity for the adjoining properties, and future development potential. The matters raised in the submissions have been addressed in this report.

Following the exhibition of the application, the applicant submitted amended plans making minor modifications to the proposed lot layout to allow more room for the proposed access driveway. Conditions have been included to require a 2.5 metre high screen fencing adjacent to the access handle driveway for privacy and to limit vehicle noise from cars entering and leaving the four proposed lots.

The application is considered to have sufficient merit to warrant approval subject to conditions.

NOTE TO COUNCILLORS:

RECOMMENDATION:

That pursuant to Section 80 of the Environmental Planning & Assessment Act 1979, development application no. 10.2017.516.1 for subdivision to create four (4) lots, be granted consent subject to conditions detailed in Attachment 2 #E2018/58889.

Attachments:

1 Attachment 1 - Proposed Plans prepared by Ardill Payne , E2018/58888 ⇨

2 Attachment 2 - Conditions of consent, E2018/58889 ⇨

3 Attachment 3 - Submissions received, E2018/58997 ⇨

Assessment:

1. INTRODUCTION

1.1. History/Background

Lot 1577 in DP 293995 was registered on 16 October 1973 as part of a larger residential subdivision for Ocean Shores.

1.2. Description of the proposed development

This application seeks approval for Subdivision of Lot 1577 DP 243995 to create four (4) Lots. The proposal also includes:

· construction of a new access driveway connecting each of the proposed lots with Coomburra Crescent with associated earthworks and retaining walls;

· removal of fifteen (15) existing trees;

· bulk earthworks to address slope stability (geotech) issues for a future dwelling pad on proposed lot three (3), and

· other associated infrastructure works.

The configuration of the proposed Lots is shown in Figure 1. The proposed lots vary in area as follows:

Proposed Lot	Area in m²
Lot 1	971
Lot 2	800
Lot 3	800
Lot 4	1675

Figure 1 – Proposed Plan of Subdivision

1.3. Description of the site

Land is legally described as	Lot: 1577 DP: 243995
Property address is	8 Coomburra Crescent, OCEAN SHORES
Land is zoned:	R2 Low Density Residential
Land area is:	4243 m²
Property is constrained by:	High Environmental Value Vegetation

2. SUMMARY OF REFERRALS

Referral	Issues
Environmental Health Officer*	SEPP No.55 Contaminated Land assessment provided, site considered to be suitable for proposed subdivision by Council’s Environmental Officer. No objection to the proposal subject to conditions.
Development Engineer*	Stormwater management, vehicular access, slope stability (geotechnical hazard). No objection to the proposal subject to conditions.
S64 / Systems Planning Officer*	Water and sewer charges are applicable. No objection to the proposal subject to conditions.
S94 / Contributions Officer*	Section 94 (7.11) contributions are applicable.
Ecologist*	No objection to the proposal subject to conditions.

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

3. SECTION 79BA – BUSH FIRE PRONE LAND

Under section 4.14 of the Act, Council must be satisfied prior to making a determination for development on bush fire prone land, that the development complies with the document Planning for Bush Fire Protection 2006. The site is not bush fire prone land.

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

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

4.1 State Environmental Planning Instruments

	Satisfactory	Unsatisfactory
State Environmental Planning Policy No 44 - Koala Habitat Protection	☒	☐
Consideration: The subject Lot has an area of less than 1 hectare and therefore SEPP No.44 is not applicable in this instance.
State Environmental Planning Policy No 55 - Remediation of Land	☒	☐
Consideration: Council’s Environmental Officer has reviewed a Preliminary Contaminated Site Investigation prepared by Ardill Payne & Partners (dated May 2018) and is satisfied that the subject land is suitable for the proposed subdivision.
State Environmental Planning Policy No 71 - Coastal Protection	☒	☐
Consideration: No issues identified.
State Environmental Planning Policy (Infrastructure) 2007	☒	☐

4.2A Byron Local Environmental Plan 2014 (LEP 2014)

Zone: R2 Low Density Residential Zone

Definition: Subdivision

LEP Summary of Requirement

Proposed

Zone R2 Low Density Residential

Objectives of zone

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

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

The proposed subdivision is considered to be consistent with the Objectives of the R2 Low Density Residential Zone.

Each of the proposed Lots will have a suitable area to construct a dwelling house.

Clause 4.1 Minimum subdivision lot size

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

(a) to ensure that lot sizes are compatible with local environmental values and constraints,

(b) to facilitate efficient use of land resources for residential and other human purposes.

(2) This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Plan.

(3) The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land.

The subject site is identified as having a minimum lot size of 600m². Each of the proposed lots significantly exceeds the area specified on the minimum Lot Size Map.

5.5 Development within the coastal zone

The objectives of this clause are as follows:

(a) to provide for the protection of the coastal environment of the State for the benefit of both present and future generations through promoting the principles of ecologically sustainable development,

(b) to implement the principles in the NSW Coastal Policy,

The site is located within the coastal zone, foreshore access, effluent disposal and stormwater are to be connected to existing infrastructure.

5.9: Preservation of trees or vegetation

Summary of standard

Must not remove or otherwise injure any vegetation prescribed by Chapter B2 of DCP 2014, without development consent.

The application seeks development consent for the removal of trees for the provision of infrastructure and to establish dwelling sites. An assessment of the vegetation impacts has been completed in accordance with Council’s DCP Chapter B2.

6.1 Acid sulfate soils

Development consent is required for the carrying out of works described in the table to this subclause on land shown on the Acid Sulfate Soils Map as being of the class specified for those works.

The subject site is not mapped as containing acid sulfate soils.

6.2 Earthworks

(3) In deciding whether to grant development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the following matters:

(a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development,

(b) the effect of the development on the likely future use or redevelopment of the land,

(d) the effect of the development on the existing and likely amenity of adjoining properties,

(e) the source of any fill material and the destination of any excavated material,

(f) the likelihood of disturbing relics,

(g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,

(h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

Earthworks as required for internal road construction and to address slope stability for proposed Lot 3. These earthworks are considered to satisfy the provisions of Clause 6.2.

6.6 Essential services

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,

(d) stormwater drainage or on-site conservation,

(e) suitable vehicular access.

The subject allotments are capable of being provided with the essential services required by Clause 6.6. Reticulated water, sewerage and electricity services available. Adequate vehicle access is also proposed.

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

No relevant Draft Environmental Planning Instruments have been identified.

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

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).

Chapter B2 - Preservation of Trees and Other Vegetation

The development proposes removal of (15) trees to facilitate the driveway and stormwater infrastructure. Trees proposed for removal include:

Council’s Ecology Planner has recommended compensatory planting for the removal of the native trees. Appropriate conditions of consent have been recommended in this regard including the preparation of a Vegetation Management Plan.

Chapter B3 – Services

Having regard to Chapter B3 Council’s Development Engineer has assessed the proposed subdivision is able to be provided with essential urban services subject to conditions of consent.

Chapter B14 - Excavation and fill

Section B14.2 Excavation and Fill in all Zones specifies that filling must be limited to a depth of 1 metre. The proposed excavation/retaining wall associated with the construction of the new driveway to Coomburra Crescent reaches a maximum height of approximately 1.5 metres.

The applicant has submitted engineering drawing of the proposed retaining wall adjacent to the rear of the property at 4 Coomburra Crescent. The wall at this point is setback approximately 900mm from the property boundary. In view of the sloping topography of the site the proposed non-compliance with the prescriptive measure is acceptable in this instance as the depth of cut satisfies the objectives of the control which seek to maintain the current and future character of the area. The applicant has submitted a geotech report for the site addressing landslip issues. It is considered the site can be developed for residential purposes.

Chapter D6 - Subdivision

1. Lot Size and shape

Lot sizes enable dwellings and driveways to be sited to protect natural or cultural features, and must respond to site constraints including topography, bushland, soil erosion, drainage, and bushfire risk.

To provide adequate useable areas each of the proposed lots have a total area significantly exceeding the minimum lot size of 600m². This additional area provides for more flexible design options for dwellings and access arrangements that assist to compensate for the steep topography. Building envelopes consistent with Councils minimum requirements (12x15m) can be sited on each allotment

2. Vegetation removal

Subdivision road layout must be designed around significant stands of trees. These may be located within reserves or accommodated within the subdivision layout such that dwelling construction may be achieved without causing any undue interference with existing trees.

The proposal involves the removal of scattered exotic and native trees. Appropriate conditions of consent are recommended for compensatory plantings.

3. Stormwater Management

Development applications must demonstrate compliance with Chapter B3 Services, the Northern Rivers Local Government Development Design and Construction Manuals, Byron Shire Council Comprehensive Guidelines for Stormwater Management and relevant Australian Standards.

Council’s Development Engineer has indicated the proposal complies with DCP 2014 Section D6.2.1 Subdivision Design Guidelines relating to stormwater management subject to conditions.

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 proposal should not raise any issues regarding compliance with the matters within the Regulation.

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.

During Construction

Conditions have been included to minimise the impacts of the proposed development during construction, including conditions relating to construction noise and times, sediment and erosion control measures, waste management and measures to protect trees that are to be retained.

4.9 The suitability of the site for the development

Issue	Comment
Services - Water/ Sewer/ Stormwater - Ph/ power - Access	All essential urban services are available for the subject land including.
Hazards - Flooding - ASS - Bushfire - Landslip	The applicant has submitted a ‘Geotechnical Stability Assessment’ prepared by Shaw:Urquart Consulting Geotechnical Services. To address slope stability issues the applicant submitted on 21 June 2018 a concept earthworks plan for slope adjustment required for proposed Lot 3. The subject site is not mapped as being subject to any of the other hazards noted in the adjacent column.
Land Use conflicts and future development potential	The subject land is within the R2 Low Density Residential Zone and located centrally within the Ocean Shores urban area. In view of the nature of the proposed subdivision, the low density residential character of the area and the proposed access arrangements, conditions have been included to limit each proposed lot to a maximum of one dwelling. In this regard the lots are suitable for single dwelling house purposes only. It is proposed that a covenant be placed on the proposed lot that restricts each lot to a maximum of one dwelling.

4.10 Submissions made in accordance with this Act or the regulations

The development application was publicly exhibited in accordance with the Level 2 provisions of DCP 2014. During the exhibition period Council’s records indicate there were ten (10) submissions received in response to the development application. Following the exhibition period a further seven (7) letters were received. Following is a summary of the planning matters raised.

Summary of issue

Comment

Concerns regarding the sight distances available for vehicles entering and exiting the proposed driveway and the safety of motorists and pedestrians using this steep and busy section of Coomburra Crescent. Cars are frequently parked on the verge in front of No.10 further reducing sight distances.

The driveway has a line-of-sight of approximately 45 metres to the west. Taking into account the slope leading up to the driveway 45 metres satisfies the minimum requirements under Austroads Guide to Road Design. Given that Coomburra Crescent is a 50km/ph the 45 metre line-of-sight is sufficient.

During times of rain stormwater flows through this block from all the blocks along Coomburra Crescent, Warrambool Road and the high side of Orana Road. There is a service (drainage) easement inside the northern boundary of the site. During the rainy season the site is a complete bog with evidence of creek flows and water springs. The increased concrete areas will increase stormwater runoff and the proposal has not considered the impact on the surrounding properties or the proposed lots.

A driveway drainage system is to be incorporated in to the driveway design. Concept plans are to be submitted to Council showing the location of driveway grated pits, pipes, and any easements required to discharge driveway runoff in a controlled manner. The driveway design must account for the runoff from the properties at 2-6 Coomburra Crescent.

The proposed removal of trees at this stage is completely unnecessary at this stage and could contribute to serious erosion in the event of heavy rain. The large trees to the north (red gums) are significant and notable landmarks. Removing them affects the privacy of the lots on No.8 plus along Orana Road and Coomburra Crescent.

Revised plans and an addendum to the Flora and Fauna Assessment report were submitted to Council on 17 April 2018.

The number of trees proposed to be removed has been reduced from 23 to 15 with the most important species and areas now protected. It is considered that biodiversity offset requirements can be achieved on the site with a Vegetation Management Plan, building envelopes and a covenant on Title required as conditions of consent.

The proposal will result in a loss of privacy for existing residential properties located adjacent to the site.

The proposal does not seek consent for the erection of dwelling/s on the proposed allotments. The potential for overlooking and privacy impacts will be a matter for consideration when considering future development of the proposed lots.

Concerns regarding the proposed size of the allotments being 800sqm or greater therefore allowing 2 dwelling per block. Increased traffic with the potential for 8 dwellings will result in 80 or more car movements daily along the driveway between No.6 and No.10 Coomburra Crescent. The gradient of the driveway will result in increased engine revving, noise, fumes, headlight impacts and loss of privacy for neighbours. The proposal does not include an acoustic report or any proposal for acoustic barriers. A minimum 2.5 metre high fence is requested to be erected on the common boundary with No.10 Coomburra Crescent.

Reduced pedestrian safety, for those walking along the grass verge with the number of vehicles using the new driveway.

Traffic volumes generated by the subsequent development of the proposed lots are not expected to be beyond the capacity of the local road network. Condition to require a Title restriction which limits each proposed lot to a maximum of one dwelling.

Concerns regarding amenity impacts from the use of the proposed new driveway are acknowledged. Conditions have been included to require the erection of 2.5 metre high boundary fencing along either side of the access handle, as requested by an adjoining landholder. The increased height of the barrier is also to reduce privacy and amenity impacts on neighbouring residents.

The road reserve of Coomburra Crescent does not contain a pedestrian footpath.

No landscape plantings are proposed within the driveway access handle for the proposed Lots.

It is acknowledged that the access handle is not proposed to include landscape plantings. The access handle has a width of 6.0 metres and is only to include a concrete surface to provide sufficient width for two cars to pass.

Major earthworks and retaining walls need to be built along the proposed driveway. These retaining walls extend around the back of the lots fronting Coomburra Crescent but there has been no proper geotechnical (slope stability) and stormwater assessment of the risk to stability of those adjacent residential blocks. The lack of geotechnical report is irresponsible given the gradient, clay soil, the signs of water springs, the creek flows during wet weather.

No details have been provided of the approximately 2.0 metre high retaining wall on the western side of the driveway adjacent the property boundary.

Following exhibition of the proposal the applicant has submitted a Geotechnical Stability Assessment, prepared by Shaw:Urquhart, dated 17 May 2018. Council’s Development Engineer has raised no objection to the proposal having regard to the driveway design, earthworks and slope stability subject to conditions of consent.

Access issues and driveway design. It is not clear from the proposed plans how large trucks – like building and removalists and fire engines will be able to access the proposed blocks.

The proposed driveway is narrow, has a gradient of 26% - 30% and includes a 90⁰ turn. The design is not able to meet the requirements of the ‘Northern Rivers Development and Design Manual’.

The applicant submitted revised driveway design drawings following the public exhibition of the proposal (including gradient cross sections details, swept paths, and layout). The proposed driveway design is considered satisfactory.

Garbage trucks will not use the proposed steep driveway. No space is available at the frontage of No.8 for bin storage prior to collection, meaning bins will sit somewhere along driveways and the verge for No.6 and No.10.

The verge within the Coomburra Crescent road reserve is capable of accommodating temporary bin storage prior to collection. It is acknowledged the location of the bins is likely to be on the public road reserve in front of neighbouring residential lots, However with a proposed restriction on title limiting the future development of the four lots to one house only, the use of the road reserve for garbage bin collection purposes is considered acceptable.

The proposed replacement plantings to compensate for the loss of trees and vegetation are considered to be inadequate. There are many species of wildlife being sustained and living in this area.

The proposal involves the removal of a large forest red gum which is unnecessary given its location close to the north-east boundary. Older trees such as this are important for wildlife habitat.

Council’s Ecologist noted that proposed Lot 4 has been made larger in order to accommodate the Tree Protection Zone for the Forest Red Gum.

Each of the proposed four (4) lots satisfy the minimum lot size for a dual occupancy, possibly allowing a total of eight (8) dwellings on this site, this considered to be contrary to the character of the area and the objectives of a ‘low density’ residential area.

The subject land is located within the R2 Low Density Residential Zone, the minimum lot size in Byron LEP 2014 for the subject land is 600sqm. Each of the proposed lots significantly exceed the minimum lot size. The subject lots are of a size which is similar to that of existing residential lots in the area. Not withstanding a restriction on title is proposed limiting each lot to a single dwelling house only.

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 – 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 will be payable. A condition of consent is included to require the payment of water and sewer charges.

5.2 Section 94 Contributions

This development will generate a demand for additional public facilities. A condition of consent is included to require the payment of contributions.

6. CONCLUSION

The proposed development is consistent with relevant environmental planning instruments and planning controls applicable to the site. The site is considered to be suitable for the proposed subdivision subject to conditions of consent.

7. 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

8. REASONS FOR DECISION, HOW COMMUNITY VIEWS WERE ADDRESSED

The proposed development will not have significant adverse impact on the natural, built or social environment or economic impacts on the locality.

The proposed development is considered suitable for the proposed site and represents a viable use of urban land for low density residential purposes.

How community views were addressed

The DA was advertised in accordance with Development Control Plan 2014. The submissions received were considered on merit and addressed during assessment of the application.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.19

Report No. 13.19 Draft Pest Animal Management Plan

Directorate: Sustainable Environment and Economy

Report Author: Clare Manning, Biodiversity Officer

File No: I2018/1312

Theme: Sustainable Environment and Economy

Planning Policy and Natural Environment

Summary:

Council has reviewed its Pest Animal Management Plan to enable Council to meet its statutory requirements under the NSW Biosecurity Act 2015 and Local Land Services Act 2013.

The draft Byron Shire Pest Animal Management Plan (Plan) is recommended for public exhibition for a period of 6-week from 9 August to 21 September 2018.

The draft Plan identifies the problem of pest animals and desired outcomes, objectives and actions to address and manage the impacts of pest animals on Council-managed land particularly in the areas of prevention, eradication, containment, and asset protection.

In recent years, Council has undertaken pest animal management on private land. Since 2011, Council commenced a trapping program targeting wild dogs, foxes and feral cats on private land. Much of that work was part funded by Council, government grants and in-kind contributions from private landowners. This allowed Council to do more than it would normally be able to.

Current funds will enable Council to meet its statutory requirements for managing wild dogs, foxes, feral cats, European rabbit, Indian myna and cane toads on Council managed land but will limit Council’s capacity to continue undertaking wild dogs, foxes and feral cats on private land.

However, through our public consultation phase we learnt there is some coordination and collaboration among private land managers to manage pest animals, particularly wild dogs, foxes and feral cats. Thus there is scope for Council to strengthen these private initiatives by supporting land managers to fulfill their obligation to manage pest animals and encourage a collaborative approach by offering technical advice and support, and acting as a conduit between private and public land manager such as the Local Land Service.

Additionally, other sources of external funding and / or support and assistance have been identified to assist private land managers to manage pest animals, particularly wild dogs, foxes and feral cats. For example, the Department of Primary Industries Vertebrate Pest Research Unit is about to launch a landscape scale research and on-ground management project targeting wild dog, fox and feral cat in the North East of NSW. Partners include North Coast Local Land Services, National Parks and Wildlife Service, NSW Forestry Corporation, University of New England and University of Southern Queensland. There is scope for Byron Shire Council and private land managers to participate in this program to better understand how predators interact with the landscape and reduce the impacts of pest animals. It is understood that the program is well funded and extends over a long time frame.

Funding commitment is required annually and long term beyond the five year life of the draft Plan to ensure the impacts of pest animals on environmental, economic, social and cultural values in Byron Shire are reduced.

RECOMMENDATION:

That Council:

1. Note the report on the draft Pest Animal Management Plan

2. Endorse the draft Pest Animal Management Plan at Attachment 1 (E2018/61028) for public exhibition for a period of 6-weeks from 9 August to 21 September 2018.

3. Note current funds enable Council to meet its statutory requirements for managing identified pest animals on Council managed land but will limit Council’s capacity to continue undertaking wild dogs, foxes and feral cats on private land.

Attachments:

1 Draft Pest Animal Management Plan for public exhibition (Report to OC 2 Aug 18), E2018/61028 ⇨

Report

Background

Pest animals are recognised as a significant threat to biodiversity and agricultural productivity and have the ability to interfere with human health e.g. acute and chronic distress, depression and anxiety, and lifestyle. Effective management of pests requires a clear and strong commitment from the State Government, Council and the community. The cost to manage pest animals is significant and growing annually. The most cost-effective method of managing pest animals is to prevent further invasions.

The NSW Biosecurity Act 2015 came into effect on 1 July 2017 and replaces all or part of 14 Acts. The Biosecurity Act 2015 together with the Local Land Services Act 2013 (LLS Act) identifies that all land managers, regardless of whether on private or public land, have the same responsibilities to manage pest animals.

Our Plan has been prepared to help Council meet its statutory requirement under the NSW Biosecurity Act 2015 and the LLS Act.

Consultation

There are a range of stakeholders who are directly or indirectly affected by pest animals or who are interested in pest animal management, all of whom were invited to share their thoughts and provide advice and input in the development of the Plan (Table 1). Extensive effort was made to engage with the community and other stakeholders in development of the Plan. Methods included a number of workshops for public land managers, Traditional Owners, private land managers and the broader Byron Shire community, as well as an online survey.

Table 1 Stakeholders invited to assist in development of the Plan

Stakeholders
Bangalow Koala	Northern Rivers Regional Organisation of Councils
Byron Bird Buddies	Byron Shire Council including Councillors and staff
Landcare and Dunecare	Biodiversity Advisory Committee
WIRES – Northern Rivers	Arakwal MOU Advisory Committee
Northern Rivers Wildlife Carers	Tweed Shire Council
Friends of Koala	Ballina Shire Council
Private and volunteer trappers	Lismore City Council
NSW Farmers Association	North Coast Local Land Services
Australian Macadamia Society	Department of Primary Industries
Bundjalung of Byron Bay Aboriginal Corporation	National Parks & Wildlife Service
Jali Local Aboriginal Land Council	Office of Environment & Heritage
Tweed-Byron Local Aboriginal Land Council	Private land managers
Ngulingah Local Aboriginal Land Council	Community members

The types of engagement that have been undertaken include:

· promotion of contact details of responsible officers (through social media, media releases, workshops and Council’s website)

· telephone conversations to record concerns, issues and complaints. Since 2016, a record of each telephone conversation is kept and followed up until the matter is resolved

· informal face-to-face meetings, emails and telephone calls with all land managers

· media (radio, print, social media)

· website pages and links (www.byron.nsw.gov.au/Services/Environment ) regularly reviewed and updated accordingly (if required)

· online survey: an online stakeholder engagement survey was used as a mechanism for stakeholders to report pest animals and rank how they were affected by pest animals, identify what control options land managers were undertaking, and who should be responsible for control programs. The results were then analysed which allows Council to make informed decisions with consideration of stakeholder concerns and preferences. This online survey was open from 5 March until 9 April 2018.

· public land managers and Traditional Owner workshop: one (1) public land managers and Traditional Owner workshops were presented by Byron Shire Council staff and Ecosure ecologist and wildlife biologists on Tuesday 27 March 2018:

· private land manager workshops: two (2) private land manager workshops were presented by Byron Shire Council staff and Ecosure ecologist and wildlife biologists on Wednesday 28 March 2018.

· attend meetings with Council’s Biodiversity Advisory Committee 12 March 2018 and 14 June 2018 and Arakwal MOU Advisory Committee on 31 May 2018

· attend Strategic Planning Workshop with Councillors on 7 June 2018

The process used was consultative, with representatives for key stakeholders involved at all stages of the development of the Plan.

The draft Plan has been prepared and ready for public exhibition proposed for a period of 6 weeks from 9 August to 21 September 2018 (Attachment 1 E2018/61028).

Prior to public exhibition, a copy of the draft Plan will be electronically circulated to the Biodiversity Advisory Committee and Arakwal MOU Advisory Committee members, inviting members to provide feedback, ideas or thoughts about the proposed management options by 21 September 2018.

This earlier release of the draft Plan is part due to the scheduling of meetings in 2018 and a high level request for committee feedback on multiple Council initiatives.

Financial Implications

Financial considerations have been raised with Manger of Finance.

On 30 October 2017, Council resolved (Resolution 17-500):

1. That Council reinstates the Feral Animal Management Program by allocating $10,000 to assist meeting the costs of a trapper from January to June 2018 and a further $20,000 be allocated in the 2018-19 and subsequent financial years.

2. That the program commence after consultation between Council and landholders, Landcare, Local Land Services, NPWS and other relevant agencies to quantify the numbers and areas of feral animals and wild dogs to develop a targeted approach to controls; and that this consultation be completed prior to March 2018.

Infrastructure Services – Utilities have also agreed to direct $6,000 in the 2018-19FY and subsequent financial years until 2022-23 for meeting the costs of a trapper targeting wild dogs, foxes and feral cats on Council managed land at Byron Bay, Bangalow, Brunswick Valley (Mullumbimby) and Ocean Shores Treatment Plants. These funds were already allocated for a trapper but will consolidate and streamline the Pest Animal Program targeting wild dogs, foxes and feral cats on Council managed land.

Current funds of $26,000 enable Council to meet its statutory requirements for managing wild dogs, foxes, feral cats, European rabbit, Indian myna and cane toads on Council managed land but will limit Council’s capacity to continue undertaking wild dogs, foxes and feral cats on private land.

Should Council wish to fund the cost of a trapper targeting wild dogs, foxes and feral cats on private land then Council will need to consider an additional funding commitment of $20,000 annually and long term beyond the five year life of the Plan.

Alternative, sources of external funding and / or support and assistance for private land managers are outlined below.

Environmental Trust

Environmental Restoration and Rehabilitation Grants of up to $100,000 with a total of $2,000,000 for community organisations and $2,000,000 for government entities are available.

Council and/or private land managers should be interested in making an application to better understand how predators interact with the landscape and reduce the impacts of pest animals, especially where there is community-led action by increasing the capacity of individuals and communities to take collective action for pest animal management.

DPI Vertebrate Pest Research Unit

The research unit is undertaking a major long scale research and management project on wild dog, fox and feral cat in the North East of NSW. Partners include North Coast Local Land Services, National Parks and Wildlife Service, NSW Forestry Corporation, University of New England and University of Southern Queensland.

Council and private land managers should be interested in participating in this research program to better understand how predators interact with the landscape and reduce the impacts of pest animals. It is understood that the program is well funded and extends over a long time frame It is understood that the program is well funded and extends over a long time frame.

North Coast Local Land Services

Local Land Services assists land managers with on-ground detection and control across all land tenures and runs a number targeted workshops on major pest species on the North Coast. This service provides skills and resources for private managers to undertake pest animal control on the land on which they own or occupy.

Statutory and Policy Compliance Implications

The Plan enables Council to meet its statutory requirements under the NSW Biosecurity Act 2015 and Local Land Services Act 2013.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.20

Report No. 13.20 PLANNING - Development Application 10.2017.577.1 - Change of Use From Light Industry to Light Industry Including an Industrial Retail Outlet at 99 Lismore Road, Bangalow

Directorate: Sustainable Environment and Economy

Report Author: Ben Grant, Planner

File No: I2018/1330

Theme: Sustainable Environment and Economy

Development and Certification

Proposal:

DA No:	10.2017.577.1
Proposal description:	Change of use from light industry to light industry including an industrial retail outlet
Property description:	LOT: 1 DP: 852928
Property description:	99 Lismore Road BANGALOW
Parcel No/s:	205130
Applicant:	Mr A Mitchell
Owner:	Ms G M Rosati
Zoning:	RU1 Primary Production / PART DM Deferred Matter
Date received:	16 October 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: 26/10/2017 to 8/11/2017 - Submissions received: Nil
Delegation to determination:	Council
Issues:	· Prohibited land use under Byron LEP 2014; · Inadequate on-site sewage management system to cater for the proposed development; · Unauthorised development (extensive); · Extensive building upgrades required to achieve conformity with the BCA; · Proximity to Byron Creek and drinking water catchment; · Multiple vehicular access points to a classified road; · Unauthorised and non-conforming signage.

Summary:

Council is in receipt of a development application for a change of use from a light industry to a light industry including an industrial retail outlet.

The site was formerly used for the manufacture and transportation of wooden palettes. This land use ceased at some point in the past ten years and the site has since been transformed into a group of artist’s studios known as the Arts Yard. The site accommodates a range of different studios where artists and artisans create different products such as paintings, sculptures, photography, pottery, ceramics, furniture, home wares, clothing and the like.

As part of the transformation, extensive alterations and additions to the main industrial shed have been undertaken and numerous studio outbuildings have been constructed without development consent.

Following an investigation by Council’s enforcement staff, an Order was issued on 17 July 2017 requiring the land owner to cease the use of the factory shed and railway carriage and to reinstate the premises to its former use/condition, amongst other things. This development application has been lodged in an attempt to regularise the current use and rectify the unauthorised building works on site.

The proposed change of use includes the following elements:

· Changing the use of the main industrial shed from its former use for the manufacture of wooden palettes to a light industry. This will include the approval for the use of any unauthorised alterations and additions, and use of the new studio outbuildings.

· Changing the use of one of the rooms in the main industrial shed to an industrial retail outlet. The room will be used for the display and sale of various items made on-site.

· Use of an existing building that has been constructed at the rear of the site as a non-habitable garden gazebo.

· Use of the existing train carriage at the front of the site as an ancillary communal office.

There are two main issues with the proposal.

Firstly, the applicant has not provided adequate information to demonstrate that the primary land use is permissible in the RU1 Primary Production zone. Permissibility was discussed with applicant at length during the assessment period, including the possibility of relying on existing use rights. Insufficient information has been provided to date to demonstrate how this can be achieved under the relevant legislation, whilst it is highly likely the initial use approved for the site under Byron IDO No.1 was defined as a “rural industry” not light industry.

Secondly, the proposed on-site sewage management system is not considered to be adequate to cater for the new uses. The site is highly constrained due to its proximity to Byron Creek and this limits the area of land available for wastewater disposal. Council’s Environmental Health Officer commented that the development as it is currently proposed cannot be supported unless it connects to reticulated services, and this would be subject to an approval from Council’s Water and Sewer Area and Council via a policy change.

Given these circumstances the development application is recommended for refusal.

Notwithstanding the above, there are some aspects of the proposal that do have planning merit. In particular, the proposal seeks to enable the adaptive re-use of “abandoned” sheds and provide additional studio space for artists and artisans in the Bangalow area.

As such, Part 2 of the staff recommendation invites the applicant/landowner to submit a Planning Proposal (for a merit assessment) that would seek to amend Byron LEP 2014 to facilitate the properties use as the “Arts Yard” consisting of multiple artisan studios and workspaces with ancillary retailing activities as proposed in this DA; and also seek approval to connect to reticulated sewer to minimise environmental impacts to the adjacent waterway.

Part 2 of the staff recommendation provides for a clear and legal process for the applicant/landowner to address the planning and environmental non compliances currently on site as required under the relevant planning and environmental legislation.

NOTE TO COUNCILLORS:

RECOMMENDATION:

1. That pursuant to Section 80 of the Environmental Planning & Assessment Act 1979, development application no. 10.2017.577.1 be refused for the following reasons:

a) Pursuant to the provisions of Section 4.15 (1)(a)(i) of the Environmental Planning and Assessment Act 1979, the proposed development is a prohibited land use in the RU1 Primary Production zone under Byron Local Environmental Plan 2014.

b) Pursuant to the provisions of Section 4.15 (1)(a)(i) of the Environmental Planning and Assessment Act 1979, the proposed development is unsatisfactory in relation to clause 6.6 of Byron Local Environmental Plan 2014 because it fails to demonstrate that essential services can be adequately provided to the proposed development.

c) Pursuant to the provisions of Section 4.15 (1)(a)(i) of the Environmental Planning and Assessment Act 1979, the proposed development is unsatisfactory in relation to clause 6.5 of Byron Local Environmental Plan 2014 because it fails to demonstrate that the proposed on-site sewage management system will not have adverse impact on the Wilsons River drinking water catchment.

d) Pursuant to the provisions of Section 4.15 (1)(a)(iii) of the Environmental Planning and Assessment Act 1979, the proposed development fails to meet the prescriptive measures and objectives of Part B3.2.2 of Byron Development Control Plan 2014 in relation to on-site sewage management.

f) Pursuant to the provisions of Section 4.15 (1)(a)(iii) of the Environmental Planning and Assessment Act 1979, the proposed development fails to meet the prescriptive measures and objectives of Parts C4.2.1 and C4.2.3 of Byron Development Control Plan 2014 in relation to the suitability of the proposed on-site sewage management system for the development given its proximity to the Wilsons River drinking water catchment.

g) Pursuant to the provisions of Section 4.15 (1)(a)(iii) of the Environmental Planning and Assessment Act 1979, the proposed development fails to meet the objectives, standards and guidelines of section 3.4.2 in Chapter 15 of Byron Development Control Plan 2010 because the site is not connected to mains sewer.

h) Pursuant to the provisions of Section 4.15 (1)(c) of the Environmental Planning and Assessment Act 1979 the subject site is not considered to be suitable because there is insufficient land area available to provide an on-site sewage management system which can adequately cater for the proposed development.

2. That subject to 1 above, the applicant/landowner be invited to submit a Planning Proposal (for a merit assessment) that would seek to amend Byron LEP 2014 to facilitate the site/property use as an “Arts Yard” consisting of multiple artisan studios and workspaces with ancillary retailing activities as proposed in this DA.

Attachments:

1 Attachment 1 - Plans 10.2017.577.1, E2018/59244, E2018/59244 ⇨

1. INTRODUCTION

1.1. History/Background

Wooden pallet manufacturing

On 28 September 1987, Council granted consent to development application no. 87/413 for the ‘manufacture of wooden products’ on the subject site. A pallet manufacturing business operated out of a shed on the property from the late 1980’s until some point in the past 10 years. The business involved the manufacturing and transportation of wooden pallets. It is highly likely this was approved as a rural Industry under the applicable planning controls being Byron IDO No.1

Previous determinations

Record no.	Description	Determination	Date
DA 87/413	Manufacture Wooden Products	Approved	28/09/1987
6.1988.2451.1	Dwelling	Finalised	25/08/1998
5.1992.209.1	Subdivision – Special Purpose	Approved	12/11/1992
5.1995.94.1	Commercial Development	Approved	11/07/1995
10.2000.245.1	Fibreglass Pool	Approved	25/05/2000
10.2017.283.1	Change of Use of Pallet Factory to Industrial Retail Outlet and Gazebo	Rejected	07/06/2017

Background to enforcement action

Council received complaints about multiple dwellings, events and unauthorised construction at the property on 30 September 2016. During a subsequent investigation by Council officers, numerous unauthorised building works and uses were identified. The property was seen to be occupied by several commercial tenants.

An Order was issued on 17 July 2017, ordering the land owner to cease the use of the factory shed and railway carriage, provide a certificate of compliance for electrical work, and other such things as are necessary to reinstate the premises to its former condition. The land owner subsequently engaged the services of a consultant and lodged this development application to regularise the existing buildings and uses on 16 October 2017.

1.2. Description of the site

Land is legally described as:	LOT: 1 DP: 852928
Property address is:	99 Lismore Road BANGALOW
Land is zoned:	RU1 Primary Production / PART DM Deferred Matter
Land area is:	6792 m²
Property is constrained by:	Flood Liable Land, High Conservation Value Vegetation, Drinking Water Catchment

Site and Surrounds

The subject site is located approximately 1km south-west of Bangalow on the southern side of Lismore Road. The property has a road frontage of 88 metres and is bounded by Byron Creek to the south. The site has an irregular shape and a total area of 6792m².

The bulk of the site is within the RU1 Primary Production zone under LEP 2014, however a strip of land along the banks of Byron Creek is a deferred matter and reverts to the 1(a) (General Rural Zone) under LEP 1988.

The site contains a dwelling house, a large steel frame shed, railway carriage, and a number of outbuildings. A sealed on-site car park is available that can accommodate up to 15 vehicles.

Surrounding development is a mix of dwelling houses and low lying agricultural land that is primarily used for grazing. The site is within a drinking water catchment and is partially subject to flooding. A 7m wide right of carriage way runs along the southern boundary which provides legal access to the adjoining property to the east on the opposite side of Byron Creek. An aerial image and site photos are shown in figures 1-3 below.

Figure 1: Aerial image of the subject site (2014).

Figure 2: Entrance to the site off Lismore Road, looking south east.

Figure 3: View towards the main shed, looking north east.

1.3. Description of the proposed development

The statement of environmental effects describes the proposed development as follows:

“It is proposed to change the use of the former rural industrial factory that with Council’s consent was used for manufacturing timber pallets, to be used for an arts and rural industrial development incorporating an industrial retail outlet”.

Following further discussions with the applicant, a submission was received on 13 June 2018 requesting the description of the development be amended as follows:

“Council is now requested to process the subject DA as a change of use from light industry to light industry”.

Specifically, the following is proposed:

1) Change of use to main shed and use of unauthorised buildings

Change the use of the main industrial shed from its former use for the manufacture of wooden palettes to a light industry. This will include the use of the unauthorised alterations and additions, and use of the new studio outbuildings.

2) Industrial retail outlet

Change the use of one of the rooms in the main industrial shed to an industrial retail outlet with a total floor area of 49.5m². The room will be used for the display and sale of various items made on-site.

3) Use of garden gazebo

Use of an existing building that has been constructed at the rear of the site as a non-habitable garden gazebo.

4) Use of train carriage as an office

Use of the existing train carriage at the front of the site as an ancillary communal office.

The table below depicts the buildings which are intended to be incorporated into the proposed development. The enumerated uses correspond to numbering used on the site plan.

Garden gazebo (use ‘1’) Single storey building proposed to be used as a garden gazebo. The building is constructed of recycled timber with a thatched roof. It is located near the banks of Byron Creek and has been constructed without development consent.
Existing factory shed including additions and alterations (uses ‘2’, ‘3’ and ‘8’) An existing factory shed is located on the centre of the site that was previously used for the manufacture of wooden pallets. Extensive unauthorised alterations and additions have been undertaken to the interior and exterior of the building using a mixture of recycled timber and corrugated iron. The shed will contain two art studios and the proposed industrial retail outlet.
Wooden workshop building with corrugated iron roof (use ‘4’) A workshop has been constructed near the train carriage at the front of the site without development consent. The building is constructed with recycled timber and has a corrugated iron roof. The site plan identifies the building as a ceramic production workshop.
Shipping container (use ‘5’) A yellow shipping container has been placed on the land without development consent. The site plan identifies the building as an art and sculpture production studio.
Workshop building with external cladding and roof in corrugated iron (use ‘6’) A workshop building is located in the southern part of the site which has been constructed without development consent. The external walls and roof of the building are clad in corrugated iron. The site plan identifies the building as a small scale steel fabrication studio.
Sheet metal building and awning attached to existing factory shed (use ‘7’) A small wood and sheet metal building is attached to the existing factory shed. The building is identified as a clothes manufacturing studio and has been constructed without development consent.
Main communal office (use ‘9’) A converted train carriage is located at the front of the site which is intended to be used as the main communal office for the site. The building has been approved for use as an office by way development consent 95/094.

2. Summary of Referrals

Internal Referrals

The development application was referred to the following Council officers for comment:

Environmental Health Officer

Council’s Environmental Health Officer raised concerns in relation to wastewater disposal, and made the following comment in regards to the suitability of the proposed on-site sewage management system (OSMS):

“the applicant has not demonstrated that the proposed upgrade on-site sewage management facility can service the wastewater load from visitors. Therefore in terms of the provision of services I cannot support the ‘industrial outlet’ (shop) aspect of the proposed development”.

The possibility of connecting the site to the reticulated sewer system was investigated, however Council’s System Planning Officer indicated this was not practical and made the following comment:

“This lot is designated as Rural and therefore connection to the sewer network is against Council policy. I would also note that even if the above were not true - given the lack of Council infrastructure in the area (requirement to cross Lismore Road) and the likely requirement for pumping (due to topography) this option would also be prohibitively expensive”.

As such, the proposed development is not supported on environmental health grounds. It is noted that the existing OSMS is failing and poses an immediate risk to the environment due to its proximity to Byron Creek which feeds into the Wilsons River drinking water catchment. An upgrade of the existing system has been approved separately to this application and is suitable only for the existing dwelling and approved industrial building.

Development Engineer

Council’s Development Engineer raised concerns in relation to stormwater, car parking and vehicular access off Lismore Road. The proposal is able to be supported from an engineering point of view subject to conditions of consent requiring an amended car parking layout and comprehensive stormwater management plan. The vehicular access to Lismore Road will need to be consolidated and upgraded to meet RMS requirements and Austroads Guide to Road Design Part 4A: Unsignalised and Signalised Intersections.

Building Certifier

Council’s Building Certifier raised concerns in relation to the extensive amount of unauthorised building works across the property and noted that numerous non-compliances have not been satisfied or addressed by the applicant. While it appears that the significant rectification measures required to achieve conformity with the Building Code of Australia (BCA) are achievable, the applicant has not demonstrated this on plans or in a report. Specific concerns were raised in relation to the setback between the dwelling and adjacent commercial structures, and the unauthorised structures achieving compliance with sections C, D and E of the BCA.

Should any approval be considered for the current proposal, it is recommended that a further report with plans and specifications is submitted to the principal certifying authority prior to the issue of the construction certificate for new works for approved structures only, such as kitchenettes, modifications to WC and other non-life safety health and amenity issues.

In addition, all unauthorised works and structures should be subject to Building Information Certificates prior to activation of the consent. Upgrade works to make the building structurally adequate and fit for use must be undertaken.

Systems Planning Officer

Council’s Systems Planning Officer commented that should the application be approved, section 64 levies for water and sewer levies are payable. Calculations are shown in section 5.1 of this report.

External referrals

The development application was referred to the following agencies:

NSW Roads & Maritime Services

The development application was referred to NSW Roads and Maritime Authority (RMS) which provided a response on 5 May 2018 with the following advice:

“Roads and Maritime has reviewed the referred information and provides the following comments to assist the consent authority in making a determination;

1. A Traffic Impact Assessment (TIA) has not been provided with the application. Council should be satisfied that the impact of through and turning traffic has been adequately addressed.

2. Access should be rationalised and consolidated to a single location where practicable to reduce conflict points and improve road safety.

3. Access should be designed and constructed in accordance with Austroads Guidelines, Australian Standards and Roads and Maritime Supplements. It is recommended that swept path analysis be undertaken to ensure the largest design vehicle can safely enter and exit the site in a forward manner.

4. Detailed plans of the access, including swept path analysis, should be submitted to Council in accordance with Section 138 of the Roads Act 1993 and Council shall refer the application to Roads and Maritime for concurrence.

5. Construction of the access is to be undertaken in accordance with the RTA Traffic Control at Worksites Manual and a Road Occupancy Licence (ROL) must be obtained from Roads and Maritime prior to the implementation of any traffic control on this road.

6. It is the land owner’s responsibility to maintain any access driveways to the development to improve safety and efficiency of access and to minimise the generation of dust and/or tracking of material onto the public road.

7. Consideration should be given to connectivity for public transport facilities and active transport modes such as walking and cycling”.

3. Section 79BA – Consultation and development consent—certain bush fire prone land

The site is not designated 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

State Environmental Planning Policy No 55—Remediation of Land

Clause 7 of SEPP 55 provides that a consent authority must not consent to the carrying out of development on any 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.

A desktop search of Council aerial photos revealed no evidence of past contaminating activities and the land is not included on Council’s contaminated lands register. Council’s Environmental Health Officer commented that contamination of site soils from use of the former pallet factory is unlikely given the subject development footprint is predominately hard stand cover. Based on all the available information, the site is unlikely to be contaminated and can be considered suitable for the proposed light industrial use.

State Environmental Planning Policy (Infrastructure) 2007

The site has a direct frontage to Lismore Road, which is a classified State road. Accordingly, Council must consider the following provisions of State Environmental Planning Policy (Infrastructure) 2007:

Clause 101 Development with frontage to classified road

Clause 101 provides that a consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied of the following matters:

(a) where practicable, vehicular access to the land is provided by a road other than the classified road, and

(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of:

(i) the design of the vehicular access to the land, or

(ii) the emission of smoke or dust from the development, or

(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

The existing vehicular access to the site involves the provision of multiple driveways and does not comply with the relevant engineering standards. Should any approval be considered for the current proposal, conditions of consent requiring the driveways to be consolidated to provide one driveway for the dwelling house and one driveway for the rural arts facility and industrial retail outlet would be required.

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 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	☒1.1AA\| ☒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 4	☒4.3\|☒4.4 \|☒4.5
Part 5	☒5.4
Part 6	☒6.2\| ☒6.3\| ☒6.4\| ☒6.5\| ☒6.6

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

(a) The proposed development is defined in the LEP 2014 Dictionary as light industry, industrial retail outlet;

(b) The land is within the RU1 Primary Production zone according to the Land Zoning Map;

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

RU 1 Primary Production Zone

Zone Objective	Consideration
To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.	The proposal is not incompatible with the zone objectives; however light industries are prohibited in the RU1 zone.
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.
To protect significant scenic landscapes and to minimise impacts on the scenic quality of the locality.

Clauses 2.1–2.3 and Land Use Table

Characterisation and permissibility

During the assessment period there was on-going discussion with the applicant as to how the proposal should be characterised and whether it was a permissible land use. The statement of environmental effects describes the proposal as an “arts and rural industrial development”, however a submission was later provided on the 13^th June 2018 requesting the development be processed as a “change of use from light industry to light industry”.

The main use primarily involves artists and artisans creating different products such as artworks, sculptures, photography, pottery, furniture, home wares, clothing and the like. Such a use is properly characterised as a type of industrial activity, which is defined in Byron LEP 2014 as follows:

industrial activity means the manufacturing, production, assembling, altering, formulating, repairing, renovating, ornamenting, finishing, cleaning, washing, dismantling, transforming, processing, recycling, adapting or servicing of, or the research and development of, any goods, substances, food, products or articles for commercial purposes, and includes any storage or transportation associated with any such activity.

The proposed development is unlikely to significantly interfere with the amenity of the area and is therefore considered to be a type of light industry. Light industries are defined in Byron LEP 2014 as:

light industry means a building or place used to carry out an industrial activity that does not interfere with the amenity of the neighbourhood by reason of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil, or otherwise, and includes any of the following:

(a) high technology industry,

(b) home industry.

The RU1 Primary Production zone is a ‘closed zone’, which means that any land use that is not explicitly permitted with or without consent, is prohibited by default. Light industries are not listed as being permitted with consent and are therefore prohibited.

The industrial retail outlet is permissible with consent however such a use can only be established in conjunction with a lawfully operating industry or rural industry on the site. In the absence of such an industry, this component of the proposed development is also not permitted.

Existing use rights

One potential pathway to overcome the prohibition is by relying on existing use rights to undertake a change of use from a light industry to another light industry. This avenue was discussed at length with the applicant, however insufficient information has been provided to demonstrate how this can be achieved in accordance with the relevant legislation.

Specifically, the applicant has failed to demonstrate that existing use rights can be relied upon for the following reasons:

1) Inadequate information has been provided to demonstrate that the former palette factory is in fact an existing use as defined in Section 4.65 of the Environmental Planning and Assessment Act 1979 (the Act). The applicant’s most recent submission put forward a view that the approved use was a type of rural industry and was therefore not an existing use.

2) Insufficient information has been provided to demonstrate that the former palette factory was a type of light industrial use.

3) Insufficient information has been provided to demonstrate that the proposed development complies with clause 41 of the Environmental Planning and Assessment Regulations 2000 (the Regulations) which stipulates that a change of use from a light industry to another light industry can only occur if it that change:

(a) involves only alterations or additions that are minor in nature, and

(b) does not involve an increase of more than 10% in the floor space of the premises associated with the existing use, and

(c) does not involve the rebuilding of the premises associated with the existing use, and

(d) does not involve a significant intensification of that existing use.

The proposed light industrial use includes multiple new buildings and additions which are not minor in nature and have a floor area which likely exceeds 10% of the floor space associated with the former palette factory. In the absence of adequate supporting information, Council cannot be satisfied that the proposed change from an existing light industrial use to a new light industrial use complies with the requirements of the Act or Regulations.

Given these circumstances the development application is recommended for refusal.

Clause 6.3 Flood planning

Council’s mapping indicates that the site is affected by flooding. Subclause (3) provides that development consent must not be granted on land to which this clause applies unless the consent authority is satisfied that the development:

(a) is compatible with the flood hazard of the land, and

(b) will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and

(c) incorporates appropriate measures to manage risk to life from flood, and

(d) will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and

(e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.

Council’s Development Engineer has calculated a 2050 flood planning level (FPL) of 43.41m AHD for the site. In relation to the existing and future flood risk, the proposed development is considered to be suitable for the flood hazard of the land and is satisfactory having regard to the above mentioned matters. Should any approval be considered for the proposal, existing buildings below the FPL would need to conditioned to be retro-fitted with flood compatible materials.

Clause 6.5 Drinking water catchments

The allotment is bounded to the south east by Byron Creek, which feeds into the Wilsons River drinking water catchment. In deciding whether to grant consent to a development application for development on land to which this clause applies, the consent authority must consider the following:

(a) whether or not the development is likely to have any adverse impact on the quality and quantity of water entering the drinking water storage, having regard to the following:

(i) the distance between the development and any waterway that feeds into the drinking water storage,

(ii) the on-site use, storage and disposal of any chemicals on the land,

(iii) the treatment, storage and disposal of waste water and solid waste generated or used by the development,

(b) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

Additionally, development consent must not be granted unless the consent authority is satisfied of the following matters:

(a) the development is designed, sited and will be managed to avoid any significant adverse impact on water quality and flows, or

(b) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

(c) if that impact cannot be minimised—the development will be managed to mitigate that impact.

As explained in clause 6.6 below, the application has not demonstrated that the proposed on-site sewage management system has sufficient capacity to cater for the proposed light industrial use and the industrial retail outlet. Due to the sites close proximity to Byron Creek, any overloading of the system is likely have an adverse impact on the quality of water entering the drinking water catchment.

Given these circumstances the development application is recommended for refusal.

Clause 6.6 Essential services

Clause 6.6 provides 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.

In relation to the disposal and management of sewage, the proposed on-site sewage management system is considered to be inadequate to cater for the development. The site is highly constrained due to its proximity to Byron Creek and this limits the area of land available for wastewater disposal.

Council’s Environmental Health Officer commented that the development as it is currently proposed cannot be supported unless it connects to reticulated services, and this would be subject to an approval from Councils Water and Sewer Area and Councillors.

Given these circumstances the development application is recommended for refusal.

4.2B 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. The LEP 1988 clauses that are checked below are of relevance to the proposed development:

Note. Approximately 30% of the site is within the 1 (a)—(General Rural Zone) under Byron LEP 1988. This area roughly corresponds to a 20m wide strip of land which follows the banks of Byron Creek.

Part 1	☒1\| ☒2\| ☒2A\| ☒3\| ☒4\| ☒5\| ☒LEP 1988 Dictionary\| ☒7
Part 2	☒8\| ☒9
Part 3	☒15\| ☒24\| ☒25\| ☒27\| ☒38\| ☒40\| ☒42\| ☒45\| ☒49\| ☒52\| ☒60\| ☒64

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

(a) The proposed development is defined in the LEP 1988 Dictionary as light industry;

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

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

1(a) (General Rural Zone)

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

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

Clause 9 Zone objectives and development control table

Light industries using less than 100 square metres of floor area are permissible with consent in the 1(a) (General Rural Zone). It is difficult to provide an exact calculation of the floor area within the 1(a) zone because the zone boundaries were not shown on the applicant’s site plan. Based on the available information, it is considered likely that the proposed development has less than 100m² in the 1(a) zone and is therefore permissible within that portion of the site.

Note: This is contingent on the garden gazebo not being included in the floor area calculation.

Clause 24 Development of flood liable land

Council’s mapping indicates that the site is affected by flooding. Clause 24 of LEP 1988 provides that the Council shall not consent to the erection of a building or the carrying out of a work on flood liable land unless:

(a) the council is satisfied that:

(i) the development would not restrict the flow characteristics of flood waters,

(ii) the development would not increase the level of flooding on other land in the vicinity,

(iii) the structural characteristics of any building or work the subject of the application are capable of withstanding flooding, and

(iv) the building is adequately flood proofed, and

(b) satisfactory arrangements are made for access to the building or work during a flood.

In relation to the existing and future flood risk, the proposed development is considered to be suitable for the flood hazard of the land. Council’s Development Engineer commented that if the application is to be approved, the existing buildings below the FPL of 43.41m AHD should be retro-fitted with flood compatible materials.

Clause 27 Building lines along arterial roads

The site has a frontage to an arterial road. Clause 27 provides that a person shall not erect a building for any purpose closer than 55m from the boundary of an arterial road. Notwithstanding this requirement, a person may, with the consent of the council, erect a building closer than 55 metres from the boundary of an arterial road as designated on the map, provided the council is satisfied that:

(a) the allotment of land is totally contained within 55 metres of the boundary of the road, or

(b) there is no alternative suitable building site due to levels, steepness, instability, flooding or other physical barrier, or

(c) the amenity of the immediate environment would be adversely affected by requiring the 55 metre setback to be maintained.

The location of the existing approved and unapproved buildings on the site is considered to be acceptable, despite not meeting the minimum 55m setback from an arterial road. This is because the bulk of the site is within 55 metres from the boundary of the road, and the remaining portion is unsuitable due to flooding and proximity to the banks of Byron Creek.

Clause 38 Development within Zone No 1 (a) shown hatched on the map

Clause 38 provides that the Council shall not consent to the carrying out of development for any purpose on land to which this clause applies unless the council has made an assessment of the susceptibility of the land and the proposed development to flooding, landslip, bushfire hazard, soil erosion and the like.

Part of the site near to the banks of Byron Creek is within the 1(a)-(General Rural) ‘hatched’ zone. The land in this location is susceptible to flooding, but is otherwise acceptable for the proposed development having regard to bush fire, erosion, landslip and other environmental constraints.

Clause 45 Provision of services

Clause 45 provides that the Council shall not consent to the carrying out of development on any land to which this plan applies unless it is satisfied that prior adequate arrangements have been made for the provision of sewerage, drainage and water services to the land.

For reasons explained elsewhere in this report, the proposed on-site sewage management system is considered to be inadequate to cater for the development. Given these circumstances the development application is recommended for refusal.

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

There are no proposed instruments that are of relevance to the subject development application.

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

DCP 2014 is an applicable matter for consideration in the assessment of the subject development application in accordance with subsection 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	☒ Preliminary
Part B Chapters:	☒B2\| ☒B3\| ☒B4\| ☒B8\| ☒B9\| ☒B10\|☒B14
Part C Chapters:	☒C2\| ☒C3\| ☒C4
Part D Chapters	☒D5

These checked Parts/Chapters have been taken into consideration in the assessment of the subject development application in accordance with subsection 4.15(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.

B3.2.2 On-site Sewage Management

Prescriptive Measures

(1) Residential, commercial and industrial development that produces sewage and is not to be connected to the urban sewage system must comply with the Council’s Design Guidelines for On-Site Sewage Management for Single Households.

No. The proposed on-site waste water system does not comply with Council’s Design Guidelines for On-Site Sewage Management for Single Households, and does not meet the following objectives of Part B3.2.2:

1. To ensure on-site sewage management systems that service or are required for industrial, commercial and rural industries are appropriately designed.

2. To ensure that on-site sewage management systems are designed and operated to ensure protection of ground and surface water, including drinking water supplies;

There are no performance criteria.

C4.2.1 On-Site Sewage Management and Potentially High Impact Land Uses

Prescriptive Measures

1) All Development Applications seeking consent for development that will include an on-site sewage management system must demonstrate consistency with the requirements of Chapter B3 Services and B6 Buffers and Minimising Land Use Conflict.

No. The proposal does not comply with Chapter B3 service and is therefore does not meet the following objectives:

3. To protect the integrity of the drinking water catchments from risks arising from inadequate sewage management.

There are no performance criteria.

C4.2.3 Catchment Impact Assessment

Prescriptive Measures

1) A catchment impact assessment is required for any development that proposes to locate an on-site sewage management system (OSMS) less than 100 metres from the top of the bank of any watercourse

No. The proposed on-site Sewage management system is inadequate to cater for the development and is located in close proximity to Byron Creek. The proposal does not meet the following objectives:

4. To ensure that proposed development would not compromise the quality and quantity of raw water in drinking water catchment.

There are no performance criteria.

D5.2.1 Building Lines

Prescriptive Measures

2) All buildings must be set back to the primary building line. However, buildings may encroach forward of the primary building line to the secondary building line to achieve a "stepped" front elevation. This encroachment must not exceed more than half of the width of the building at the primary building line.

Yes. There is a minor encroachment of the 10m building line setback, however the visual impact is not significant. Studio building 4 is not clearly visible from Lismore Road.

Yes. The train carriage and building 4 does not strictly comply with the 10m minimum building line. However, there is no adverse visual impact and they buildings do not affect adjoining development.

D5.2.3 Water and Sewer Services

Prescriptive Measures

2) All development must discharge wastewater to mains sewer.

No. The proposed light industrial development does not have access to reticulated sewer services. The proposal does not meet the following objectives:

5. To ensure adequate provision of water and sewer services and infrastructure to cater for industrial development.

No. The proposal is not consistent with the provisions of chapter B3 Services.

The proposed development appears to meet the relevant Objectives of DCP 2014.

Chapter B8 Waste Minimisation and Management

B8.4.5 Industrial Development

The proposed use may generate both liquid and solid wastes as a result of activities on the site. If the application is to be approved, a detailed site waste management plan should be required as a condition of consent. Specific attention should be paid to the disposal of paints, solvents or other chemicals to ensure such wastes to not enter the drinking water catchment.

Chapter B10 Signage

B10.3.3 Signage in Business and Industrial Zones and on Commercial or Industrial Development in other Zones

The following three (3) signs have been erected at the entrance to the site:

1) A business identification sign comprising a wooden signboard approximately 1.3m x 1m in area, supported by two wooden posts approximately 3m in height. The sign contains the words ‘Arts Yard’, and is located adjacent to the main driveway.

2) A business identification sign comprising two multi-coloured flags of approximately 2m in height. The flags have been cemented into the ground and appear to be located in the public road reserve. The flags contain the words ‘Arts Yard’.

3) A black, V-shaped signboard comprising two sign boards, each with four smaller white plaques, detailing the business names and phone numbers of the various artists operating out of the site. The sign appears to have dimensions of approximately 1.2m by 2.4m for each panel and is supported by three wooden posts of approximately 2.6m in height.

No approval could be found for the signs, each of which would have required development consent. The statement of environmental effects notes that no signage is proposed and these structures have therefore not been considered in the assessment. Should any approval be considered for the current proposal, a note should be added clarifying that signage does not form part of the development consent.

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

DCP 2010 is an applicable matter for consideration in the assessment of the subject development application in accordance with subsection 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. The DCP 2010 Chapters/Parts that are checked below are of relevance to the proposed development:

Chapter 1 Parts:

☒A| ☒F| ☒G| ☒H| ☒K| ☒L| ☒ N

These checked Chapters/Parts have been taken into consideration in the assessment of the subject development application in accordance with subsection 4.15(1) of the EP&A Act. The proposed development complies with all sections of these Chapters/Parts (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 2010 Section A4 “How does this DCP work?” alternative assessment procedure) as follows:

What Section and prescriptive measure does the development not meet?

Does the proposed development meet the Element Objectives of this Section? Address.

Does the proposed development meet the Performance Criteria of this Section? Address.

Chapter 15: Industrial Development

3.4.2 Standards & Guidelines

b) Sewer: Developments are required to connect to mains sewer.

No. The proposed light industrial development does not have access to reticulated sewer services. The proposal does not meet the following objectives:

6. To ensure adequate provision of services and infrastructure to cater for industrial development.

There are no performance criteria.

4.5 Any Planning Agreement or Draft Planning Agreement?

Yes

Is there any applicable planning agreement or draft planning agreement?

☐

☒

Consideration:

4.6 Environmental Planning & Assessment Regulation 2000 Considerations

Clause 92(1)(b) application for demolition

No demolition of buildings is proposed, although some upgrades will be required to comply with the BCA. If the development application is to be approved, a condition should be imposed to require compliance with AS2601-The demolition of structures.

Clause 93 Fire safety and other considerations

The buildings may require substantial upgrades to achieve conformity with Parts C, D and E of the BCA. Should any approval be considered for the current proposal, conditions should be imposed requiring such matters to be addressed.

Clause 94 Consent authority may require buildings to be upgraded

Not applicable. The application does not propose the rebuilding, alteration, enlargement or extension of an existing building.

Clause 94A Fire safety and other considerations applying to erection of temporary structures

Not applicable. No temporary structures are proposed.

4.7 Any coastal zone management plan?

Not applicable. There are no Coastal Zone Management Plans which apply to the site.

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

Natural environment

There is a potential risk to the natural environment due to inadequate on-site sewage management facilities to cater for the development. If the proposed system were to be overloaded, this may have an adverse impact on Byron Creek and the drinking water catchment.

Built environment

The current vehicular access and driveway arrangement is undesirable and requires upgrading to meet the relevant engineering standards. Should any approval be considered for the current proposal, the driveways and access to Lismore Road should be consolidated and upgraded in accordance with the Development Engineers recommendations.

Social environment

The proposal does not raise any significant issues in relation social impact on the locality.

Economic impact

The proposal does not raise any significant issues in relation economic impact on the locality.

4.9 The suitability of the site for the development

The site is constrained due to its proximity to Byron Creek and the Wilsons River drinking water catchment. The site is not considered to be suitable, because there is insufficient land available to provide an on-site sewage management system which can adequately cater for the development as proposed. Should the site be connected to reticulated sewer this constraint can be overcome subject to detailed engineering design and payment of appropriate water and sewer headwork’s charges.

4.10 Submissions made in accordance with this Act or the regulations

In accordance with Part A14 of Byron DCP 2014, the proposed development was notified and advertised for a period of 14 days between 26/10/2017 and 8/11/2017. There were no public submissions made on the application during this time.

4.11 Public interest

The proposal does not raise any significant issues in relation to the public interest.

4.12 Section 5AA of the EP&A Act – Application of Part 7 of Biodiversity Conservation Act 2016 and Part 7A of Fisheries Management Act 1994

Having regard to Part 7 of the and Part 7A of the Fisheries Management Act 1994, 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.

The proposed development is not in a declared area of outstanding biodiversity value and is not captured by the Biodiversity Offsets Scheme.

5. DEVELOPER CONTRIBUTIONS

5.1 Water & Sewer Levies

Should the development application be approved, levies will be payable under the Water Management Act 2000 as the site is connected to reticulated water. Further, if the development is connected to reticulated sewer this will also incur sewer levies in addition to the developer’s costs of installing any necessary infrastructure to extend sewer mains and the like.

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

7. CONCLUSION

Insufficient information has been provided to demonstrate the proposal is a permitted land use in the RU1 Primary Production zone, or that a change of use is permissible by relying on existing use rights. Additionally, the proposed on-site sewage management system is not considered to be adequate for the development. Given these circumstances the development application is recommended for refusal.

Notwithstanding the above, some aspects of the proposal do have planning merit. In particular, the proposal will enable the adaptive re-use of an abandoned industrial building and will provide additional studio space for artists and artisans in the Bangalow area.

8. STATEMENT OF REASONS

The proposed development does not comply with Clauses 6.5 and 6.6 of Byron Local Environmental Plan 2014 and is a prohibited land use in the RU1 Primary Production zone.

The proposed development does not comply with the prescriptive measures and objectives of parts B3.2.2, C4.2.1 and C4.2.3 of Byron Development Control Plan 2014.

The proposed development does not comply with the objectives, standards and guidelines of section 3.4.2 in Chapter 15 of Byron Development Control Plan 2010.

The subject site is not considered to be suitable because there is insufficient land area available to provide an on-site sewage management system which can adequately cater for the proposed development.

How community views were addressed

The DA was advertised in accordance with Development Control Plan 2014. No submissions from the public were received.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.21

Report No. 13.21 Submissions Report on the Draft Integrated Pest Management Policy

Directorate: Sustainable Environment and Economy

Report Author: Clare Manning, Biodiversity Officer

File No: I2018/1333

Theme: Sustainable Environment and Economy

Planning Policy and Natural Environment

Summary:

This report presents the public exhibition outcomes of the draft Integrated Pest Management Policy (Policy) (Attachment 1 E2018/58361). Specifically, it is proposed to adopt the Policy with changes to better reflect an integrated pest management approach.

The Policy is consistent with Council Resolution (13-621) and with the Operational Plan 2018-19.

The Policy will facilitate the development of an Integrated Pest Management Strategy.

At its most basic, the Policy provides a principle of action, that if adopted by Council, state what is to be done by Council in adopting an integrated pest management.

RECOMMENDATION:

That Council:-

1. Note the report on the draft Integrated Pest Management Policy.

2. Adopt the Integrated Pest Management Policy at Attachment 1 (#E2018/58361) that includes changes following public exhibition as outlined in Table 1 of this report.

3. Note an allocation of $50,000 in the 2018-2019 budget to develop an Integrated Pest Management Strategy is provided from the Infrastructure Services Carryover Reserve.

Attachments:

1 Draft Integrated Pest Management Policy recommended for adoption, E2018/58361 ⇨

2 Confidential - Submissions - draft Integrated Pest Management Policy, E2018/60202

Report

Information/Background

Council resolved (Resolution 13-621) to develop an Integrated Pest Management Policy and Strategy for Council owned and managed lands.

At the 24 April 2018 Council meeting, Council considered a Report on the progression of Resolution 13-621 and the draft Policy and resolved (Resolution 18-215) to

1. Place the draft Integrated Pest Management Policy on public exhibition for a period of six weeks and that the exhibition of the Policy be accompanied by the Directions Document.

2. Consider an allocation of $50,000 in 2018-19 budgets to complete the development of the Integrated Pest Management Strategy.

Consultation

The draft Policy was exhibited for a period of 6-weeks from 26 April to7 June 2018.

Over the exhibition period, 32 submissions were received including from other Local Government Areas (Attachment 2 E2018/60202)

Submissions

Lismore City Council

Lismore City Council provided general feedback and recommendations on the draft Policy. There was overall support for the Policy goals and objectives, they recommended to care when developing a definition of ‘high use public areas’ to inform the Pesticide Exclusion Zone mapping. Lismore City Council also recommended that in developing an Integrated Pest Management Strategy, a full cost analysis is presented with further consideration given to the environmental costs associated with increased carbon emissions when using steam as a management tool.

Public Submissions

Over the exhibition period, Council recorded 410 total visits in response to the draft Policy via Council’s website. The majority of visitor traffic to the Council website was direct via Facebook (67%). A total of 2,726 individuals were reached via Facebook in which 90 Facebook postings of mixed response to the Policy were captured. Postings ranged from advocating a pesticide free approach to supporting a fully integrated pest management approach. Two Facebook events (adverts) were also created, in which a total of 1,172 individual were reached.

Additionally, whilst 27 individuals registered to attend a community workshop during the public exhibition phase, 36 individuals attended and participated in the community workshop. In total the draft Policy was downloaded 134 times while the supporting Directions Document was downloaded 25 times.

This means approximately 18% of the Policy downloads were downloaded by the accompanying Directions Document, which had informed and underpinned the draft Policy. Some of the submissions reflected that only the Policy had been reviewed.

Key matters raised by the submissions have been considered and a summary of the matters and Council staff response are summarised below (Table 1). Where applicable, Council staff have applied the below changes to the draft Policy.

Table 1. Summary of all submissions and Council staff response.

No.	Issues Raised	Staff Recommendation	Staff Comment
	General
	Undertake public consultation	Media release, website updates, adverts, newsletters, emails, factsheets social media, and a World Café were methods used to engage, consult, involve and collaborate with community. Staff acknowledges that the World Café style may have been a new experience for many participates. In developing the IPM Strategy, a Community Engagement Plan will be developed prior to seeking approval via Council’s Communication Panel.	Noted, no change to draft Policy
	The Directions Document is not an IPM Strategy	Broadly, a strategy is a plan of action designed to achieve a long-term aim. The purpose of the Directions Document was to summarise Council’s progresses, challenges over the last 5-years in implementing Res 13-621 and offer recommendations in order to facilitate the development of the Policy, which in turn will facilitate the development of an IPM Strategy.	Noted, no change to draft Policy
	Policy Title
	Re-name the policy to Pesticide Use Policy	Greater detail on the Integrated Pest Management approach is outlined under Section 1, placing the Policy into improved context. Maintain the title of Integrated Pest Management Policy.	Noted, no change to draft Policy
	Section 1 introduction
	State the justification and reasoning for Council to have the Policy	Globally, there has been an increased concern about pesticide use, but particularly highly hazardous pesticides, and its impacts upon human health and the environment. Local community concern lead, in part, to Council resolution (13-621) and the request to develop an Integrated Pest Management Policy and Strategy. A Policy will establish boundaries for an IMP Strategy to careful consider all available pest control techniques and subsequent integration of appropriate measures that discourage the development of pest populations and keep pesticides and other interventions to levels that are economically justified and reduce or minimize risks to human health and the environment. The draft Policy offers clear communication to staff and community as to its position with respect to pest management.	Accept recommendation by stating the justification and reasoning for Council to have the Policy under Section 1
	Provide a cost analysis to justify Council’s position and demonstrate financial responsibility	At its most basic, a policy is a course or principle of action, adopted or proposed by a government, party, business or individual. Features common to policy are it states matters of principle; it is focused on action, stating what is to be done and by whom (e.g. Council); it is an authoritative statement, made by a person or body (e.g. Council) with power to do so. Above all, policy is a tool which makes administration easier, and allows people to get on with the organisation’s core business more efficiently and effectively. A complete cost analysis is not appropriate within the policy. Further due to Commercial in Confidence whereby information that, if disclosed, may result in damage to a party's commercial interests, intellectual property or trade secrets, Council must not disclose any information marked 'Commercial in Confidence' without permission from the party who supplied it. Council currently contract some pest control activities. A full and transparent cost analysis needs to be cautiously re-examined and permission sought from Council contractors to help present a cost analysis of various pest control techniques. This will be investigated during the development of an IPM Strategy.	Noted, no change to draft Policy
	Define Integrated Pest Management Principals	Defining Integrated Pest Management and its principals has been strengthen and include how Integrated Pest Management can contribute importantly to pesticide risk reduction.	Accept recommendation by defining Integrated Pest Management Principals under Section 1
	Summaries the principals underpinning the Policy	Risk reduction through distinguishing between hazard and risk has been outlined. Together, defining continuous improvement has been improved	Accept recommendation by the principals underpinning the Policy under Section 1
	Section 2 Goal
	Policy goal should seek outcomes for the integrated management of pest on Council land, and apply to all pesticide use not just glyphosate	The goal has been reviewed to take greater account of an integrated pest management approach, and will aim to “provide a policy framework for the effective and efficient control of pests on Council-managed land through an integrated pest management approach that uses a range of appropriate prevention and control methods while minimising the use of pesticides on a continuous improvement basis”	Accept recommendation by reviewing goal to seek an integrated pest management approach under Section 2
	Section 3 Objectives
	Objective should reflect the integrated management of pests on Council land	Reframe Objective 1 to provide guidance for the development of an Integrated Pest Management Strategy (IPM Strategy) that will optimise efficient and effective resolution of pest problems while minimising adverse impacts upon human heath and the environment	Accept recommendation under Section 3
	Objective should strengthen its message about improving council employee and contractors improving their skill and knowledge of all pest control methods available	Reframe Objective 3 to provide impetus for Council to build, improve and maintain employee and contractor knowledge and skills for selecting the least hazardous methodologies, including non-pesticide methods, for attaining the desired pest management outcome on Council-managed land.	Accept recommendation under Section 3
	Include an objective that state water quality will be monitored monthly by regularly testing all of beaches, rivers, creeks, lakes and water conduits for pesticides.	An objective describes how a goal will be sought. An activity/task is an action taken to deliver on the objective, normally describe in a strategy or action plan. Several recommendations and suggestions were submitted for inclusion in the IPM Strategy and all will be carefully considered by staff in the development of an IPM Strategy.	Noted, no change to draft Policy
	Section 4 Scope
	The Policy scope should improve the boundaries that define the extent of a Policy. Scope what is and not in scope.	The Policy applies to pest management on Council owned or managed land and seeks to support a transition from a reliance of pesticides wherever practicable. It does not provide details about when and where an authorised person undertakes pest management activities or uses a pesticide as these details will either be provided in Council’s Integrated Pest Management Strategy or will be determined on a case-by-case basis subject to the principles outlined in this Policy.	Accept recommendation under Section 4
	Section 5 Definition
	No comment	No comment	Noted, no change to draft Policy
	Section 6 Statement
	No comment	No comment	Noted, no change to draft Policy
	Section 7 Legislative and strategic context
	Place into Commonwealth and NSW government context	It is noted that many Commonwealth and NSW government agencies, as well as other organisations including local government agencies, manage pesticides.	Accept recommendation under Section 7
	Provide further information on the Australian Pesticides and Veterinary Medicines Authority (APVMA)	Under 7.1 Reference to the Australian Pesticides and Veterinary Medicines Authority (APVMA) and its role is provided.	Accept recommendation under Section 7
	Correct and provide further information on the NSW Pesticides Act 1999 and NSW Pesticide Regulation 2017. Include Council’s Pesticide Use Notification Plan	Under 7.2 The role of the NSW Pesticides Act 1999 and NSW Pesticide Regulation 2017, and Council’s Pesticide Use Notification Plan included.
	Under Section 8 Sustainability
	In section 8.1 Social include requirements under the NSW Pesticides Act & Regulations as well as public and health and safety obligations.	The NSW Pesticides Act & Regulations as well as public and health and safety obligations are covered under Section 7 Legislative and Strategic Context	Noted, no change to draft Policy
	In section 8.1 Social discussion needed around state of science with respect to conflicting pesticide impacts and those challenges to Council	A fact is a statement that can be proven true or false. An opinion is an expression of a person's feelings that cannot be proven. It is important Council remains up to date on latest research findings and views of individuals, noting author's purpose and choice of language to guide decision-making but may not necessarily apply to a Policy position.	Noted, no change to draft Policy
	Under section 8.1 state how council intends to be leaders in the transition away from the use and reliance of pesticides.	The Policy supports the adoption of an integrated pest management approach that seeks to carefully consider all available pest control techniques and subsequent integration of appropriate measures that discourage the development of pest populations and keep pesticides and other interventions to levels that are economically justified and reduce or minimize risks to human health and the environment on a continuous improvement basis.	Accept recommendation under Section 8
	Under 8.1 include details of Council’s Chemical Sensitive Residents and Organic Growers	Under 8.1.1 details of Council’s Chemical Sensitive Residents and Organic Growers are outlined.	Accept recommendation under Section 8

Public Consultation – World Café

It is helpful to note that among the public submissions there was mixed views on the World Café process that Council staff undertook in line with Council’s Community Engagement Policy.

The broader reasons for using the World Café process, beyond seeing it as solely to brainstorm and capture ideas was to enabled people from different parts of a community to meet and get to know each other and deepen their understanding of other concerns and issues, to establish relationships and build trust, and provide opportunity for Council to present its challenges in ceasing or minimising its use of pesticides that might not have considered by community.

Additional comments and feedback

In addition to feedback on the draft Policy, Council also received constructive feedback which will be considered in developing the IPM Strategy. Examples include:

· Improve public consultation and seek more involvement to help inform and advise Council on alternative non-pesticide methods and how to apply using Council resources

· Outline how IPM applies to pest management in urban and rural areas

· Present cost analysis of Council’s pest control techniques

· Promote the role and importance of bush regeneration best practice and how it supports the principals of pesticide minimisation

· Identify the pest problem

· Include a vision and mission statements and include quantitative objectives, targets, measures and timetables to reduce risks and impacts of pesticides

· Outline all available pest control techniques and evaluate their effectiveness

· Consider selected pest control techniques e.g. steam weeding with development of the Zero Emissions Strategy

· Seek strategies to improve, build and maintain respectful views within the community; minimise highly toxic pesticides; increase transparency around Council’s storage, use and application of pesticides to public.

· Define thresholds and action levels for all management actions

Communicate

Legal Services, Governance and Council staff from across the organisation have been consulted.

Financial Implications

Following the finalisation of the 2018-2019 budget, part 2 of resolution 18-215 required that Council consider an allocation of $50,000 in the 2018-2019 budget for the development of the Integrated Pest Management Strategy but this was overlooked.

It is expected that out of the outcome of the 2017-2018 financial year results, there may be the ability to transfer $50,000 to the Infrastructure Services Carryover Reserve that Council can then call upon in the 2018-2019 financial year to fund the IPM Strategy should Council wish to proceed with its development. If this funding scenario cannot be achieved by the time the 2017-2018 financial year results are finalised then an alternate funding scenario will be presented back to Council as part of the 30 September 2018 Quarter Budget Review.

Statutory and Policy Compliance Implications

The Policy is consistent with Council Resolution (13-621) and with the Operational Plan 2018-19. The Policy will facilitate the development of an Integrated Pest Management Strategy

All planning documents:

· Byron Shire’s Community Engagement Policy

· Byron Shire’s Community Strategic Plan 2022

· NSW Biosecurity Act

· 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

Reports of Committees - Infrastructure Services 14.5

Report No. 14.5 Report of the Local Traffic Committee Meeting held on 26 June 2018

Directorate: Infrastructure Services

Report Author: Evan Elford, Team Leader Infrastructure Planning

Stephanie Tucker, Traffic and Transport Assistant

File No: I2018/1339

Theme: Infrastructure Services

Local Roads and Drainage

Summary:

This report contains the recommendations of the Local Traffic Committee from the meeting held on the 26 June 2018.

Council’s action on the LTC advice will be:

a) If Council is in agreement with the LTC unanimous support then the proposal may be approved. In these cases there is no conflict between Council and the advice of the LTC, consequently there is no need for Council to inform the RMS or the NSW Police representatives of the decision.

b) If Council is in agreement with the LTC unanimous support, but no longer wants to proceed, the proposal may still be rejected.

c) If Council is in agreement with the LTC unanimous decline then the proposal may be rejected. Again there is no conflict between Council and the advice of the LTC. Consequently there is no need for Council to inform the RMS or the NSW Police representatives of the decision.

d) If Council decides to proceed with a proposal where the advice of the LTC is not unanimous support, then the Council must first advise the RMS and the NSW Police representatives in writing of their intention to approve the proposal. The RMS or the NSW Police may then lodge an appeal to the Regional Traffic Committee (RTC).

e) If Council decides to proceed with a proposal where the advice of the LTC is a unanimous decline, then the Council must first advise the RMS and NSW Police representatives in writing of their intention to approve the proposal. The RMS or the NSW Police may then lodge an appeal to the RTC.

Due to the fact that the RMS and the NSW Police have the power to appeal certain decisions of the Council, the LTC cannot provide its advice to Council until both the RMS and the NSW Police have provided their vote on the issue.

RECOMMENDATION:

1. That Council note the minutes of the Local Traffic Committee Meeting held on 26 June 2018.

2. That Council adopt the following Committee Recommendation(s):

Report No. 6.1 Request for one way signage - Ruskin Lane Byron Bay

File No: I2018/904

Committee Recommendation 6.1.1

That Council note the comments provided by the committee in relation to this request and that further advice be provided to the committee as the DA 10.2017.510.1 process continues.

3. That Council adopt the following Committee Recommendation(s):

Report No. 6.2 Draft Constitution for Local Traffic Committee

File No: I2018/905

Committee Recommendation 6.2.1

That the draft constitution attached to this report be reviewed by members and the committee comments be presented at the next committee meeting for adoption.

4. That Council adopt the following Committee Recommendation(s):

Report No. 6.3 Koala interactions and speed advisory sign options for Granuaille Road Bangalow

File No: I2018/970

Committee Recommendation 6.3.1

That the committee note the actions and recommendations from the Transport and Infrastructure Advisory Committee in relation to wildlife signage and request the RMS undertake a speed zone review on Granuaille Road.

5. That Council adopt the following Committee Recommendation(s):

Report No. 6.4 Bayshore & Sunrise Roundabouts Linemarking & Signage

File No: I2018/1097

Committee Recommendation 6.4.1

That the Local Traffic Committee endorse the Pavement Marking and Signage Plans for the Ewingsdale Road roundabouts, including the additional changes at Sunrise Roundabout as detailed below:-

a) Bayshore Drive Pavement Marking and Signage Plan as amended by RMS as per Attachment 2 (#E2018/49110); and

b) Sunrise Boulevard Pavement Marking and Signage Plan as amended by RMS and incorporating additional comments as per Attachment 3 (#E2018/49111).

6. That Council note the Committee Comments and adopt the following Committee Recommendation(s):

Report No. 6.5 Interim Actions to Manage Traffic and Parking at Byron Bay Arts and Industrial Estates

File No: I2018/1143

Committee Comments

We note Council’s intention to undertake Master plan planning process and ongoing transport corridor studies.

Encourage business owners to better manage their on-road parking and encourage businesses to have more on-site parking.

Committee Recommendation 6.5.1

1. That LTC support Council’s action to implement short term traffic and parking solutions within the Byron Arts and Industrial Estate through appropriate signage and line marking.

2. That Council consider funding and undertaking a movement and access study for the Arts and Industrial Estate and adjacent industrial precincts.

7. That Council note the Committee Comments and adopt the following Committee Recommendation(s):

Report No. 7.1 Events - INGENUITY Sculpturefest Mullumbimby - Brunswick Terrace Road Closure

File No: I2018/1131

Committee Comments

Detour down Gordon Street preferred. Traffic Control Services to modify the TCP accordingly.

Committee Recommendation 7.1.1

1. That Council endorse the Creative Mullumbimby Inc. event, “ INGENUITY Sculpturefest 2018”, to be held between 8:00am Monday 12 November 2018 and 5:30pm Monday 19 November 2018, that requires temporary road closures and actions to control traffic on Mullumbimby roads, subject to conditions at Brunswick Terrace from Burringbar Street to Tincogan Street.

2. That the approval provided in Part 1 is subject to:-

a) submission to Council and implementation of an appropriate Traffic Management Plan, incorporating a modified Traffic Control Plan prepared by Traffic Control Services Pty Ltd to extend the extent of the road closure to the intersection of Burringbar and Gordon Streets, including the use of signed detours, 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. hold $20m public liability insurance cover which is valid for the event;

iv. pay Council’s Road Event Application Fee prior to the event; and

v. provide a debrief of the event to Council’s Traffic Engineer within two weeks of the conclusion of the event.

8. That Council note the Committee Comments and adopt the following Committee Recommendation(s):

Report No. 7.2 Events - Billinudgel Open For Business - Wilfred Street Road Closure

File No: I2018/1142

Committee Comments

Concerns about emergency vehicle access, also issue of east/west through traffic access, noting the lack of an alternate route. Consider closing one side of the street or a temporary shared zone. Also issue of not using qualified traffic controllers.

Signage for northbound motorway traffic be incorporated at the Brunswick Heads exit ramp.

Committee Recommendation 7.2.1

1. That Council endorse the Billinudgel Open for Business Festival to be held on 22 September 2018, that includes the temporary road closure below of Wilfred Street Billinudgel from 12pm to 6pm.

2. That the approval provided in Part 1 is subject to:

a) submission to Council and implementation of a Traffic Management Plan incorporating actions required by committee comments and Traffic Control Plans prepared by Traffic Management Training Pty Ltd, including the use of signed detours, as designed and implemented by those with appropriate accreditation. To legally control traffic each RFS volunteer traffic controller will require a RMS issued ‘Traffic Control’ ticket. The RFS volunteer traffic controller supervisor must have a RMS issued ‘Implement Traffic Control Zone’ ticket to set out signage as per the Traffic Control Plan.

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. 7.3 Event - Chincogan Charge, Mullumbimby - 8 September 2018

File No: I2018/676

Committee Recommendation 7.3.1

1. That Council endorse the Chincogan Charge 2018 to be held on Saturday 8 September 2108 that requires temporary road closures and actions to control traffic on Mullumbimby roads between 8:00am and 5:30pm, subject to conditions at:

a) Dalley Street - Burringbar Street to Tincogan Street

b) Tincogan Street - Dalley Street to Brunswick Terrace

c) Murwillumbah Road - Brunswick Terrace to Coolamon Scenic Drive

d) Coolamon Scenic Drive – House 1913 to Murwillumbah Road

2. That the approval provided in Part 1 is subject to:

a) submission to Council and implementation of an appropriate Traffic Management Plan, incorporating the Traffic Control Plan dated 9 April 2018 prepared by Spinifex Recruiting, including provision for access for emergency services, the use of signed detours, designed and implemented by those with appropriate accreditation. To legally control traffic each RFS volunteer traffic controller will require a RMS issued ‘Traffic Control’ ticket. The RFS volunteer traffic controller supervisor must have a RMS issued ‘Implement Traffic Control Zone’ ticket to set out signage as per the Traffic Control Plan.

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. must undertake consultation with emergency services and any identified issues addressed including event notification to emergency services one week prior to the event.

iii. hold $20m public liability insurance cover which is valid for the event

iv. pay Council’s Road Event Application Fee prior to the event

v. provide a debrief of the event to Council’s Traffic Engineer within two weeks of the conclusion of the event.

10. That Council note the Committee Comments and Management Comments and NOT adopt the following Committee Recommendation(s):

Report No. 7.4 Traffic Calming on Broken Head Road

File No: I2018/1144

Committee Comments

The committee noted the issues, no further action to be taken at this time. Investigate which Council area owns the road section

Council to conduct speed counts (outside the coffee plantation and along the long straight from the 2^nd coffee plantation).

The Council consider a road safety audit and explore funding opportunities with RMS to improve road safety.

Management Comments

The area in question was subsequently investigated by staff and found to be located within the Ballina Shire LGA.

As a consequence RMS have been notified that Council will not be proceeding with any of the matters associated with this item.

Accordingly, Management recommend, Council not adopt the Committee Recommendation.

Committee Recommendation 7.4.1

That Council consider a road safety audit and explore funding opportunities with RMS to improve road safety at Broken Head Road, Newrybar.

11. That Council note the Committee Comments and adopt the following Committee Recommendation(s):

Report No. 8.1 Bluesfest 2019 - Paid Parking

File No: I2018/1082

Committee Comments

The committee recommends traffic management plans be submitted 4 months prior to the event.

Concerns about potential traffic impacts on the motorway for future events and considers that a review of the TMP and TCP be undertaken. The review to incorporate contingency plans to rectify motorway congestion in the event such should occur.

Committee Recommendation 8.1.1

1. That paid parking at Bluesfest:-

a) Be supported for Bluesfest 2019, with a review following the event within 2 months of the event.

b) If no issues are raised by either the RMS, Police or Council that paid parking be permitted as a permanent arrangement.

2. The committee advises the proponent to incorporate these changes into future TMP/TCPs and that these be lodged with Council at least 4 months prior to the event.

12. That Council adopt the following Committee Recommendation(s):

Report No. 8.2 Beer and Cider Festival

File No: I2018/1081

Committee Recommendation 8.2.1

That Council note the committee comments.

Attachments:

1 Minutes 26/06/2018 Local Traffic Committee, I2018/1154 ⇨

Report

The attachment to this report provides the minutes of the Local Traffic Committee Meeting of 26 June 2018 for determination by Council. The agenda for this meeting can be located on Council’s website at:

https://byron.infocouncil.biz/Open/2018/06/LTC_26062018_AGN_905_AT.PDF

Committee Recommendation

As per items listed above

Management Comments

Generally In accordance with the Committee Recommendation, apart from item 10 as noted in Management comments for that item due to subsequent investigations determining that the location of the matter being reported was not within Council’s LGA. The RMS have been notified of the situation.

The remainder of 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 26 June 2018.

Statutory and Policy Compliance Implications

As per the Reports listed within the Local Traffic Committee Meeting of 26 June 2018.

Requested funds from funding bodies	17,594,050
Council cash contribution	9,495,944
Council in-kind Contribution	306,158
Other contributions	17,040,000
Funding applications submitted and awaiting notification (total project value)	44,436,152

Mayor	$43,200
Councillors	$178,100
Total	$221,300