Agenda of Planning Meeting - 21 February 2019

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 6.2

Report No. 6.2 26.2015.7.1 - 268 Ewingsdale Road Rezoning Planning Proposal (Ex-Sunnybrand Site)

Directorate: Sustainable Environment and Economy

Report Author: Steve Daniels, Project Officer - Planning Reforms

File No: I2018/2407

Theme: Sustainable Environment and Economy

Planning Policy and Natural Environment

Summary:

In August 2016 Council considered a Planning Proposal to rezone 268 Ewingsdale Road, described as part Lot 181 in DP 755695 from RU2 Rural Landscape to IN2 Light Industrial zone, a site plan is provided in Figure 1. Council resolved (16-474) to forward the Planning Proposal to the NSW Department of Planning and Environment for a Gateway determination. Support for the planning proposal was based primarily on the need for additional industrial zoned land within the Shire and the close proximity of the site to the existing arts and industry estate and the adjacent industrial zoned area (West Byron), however support was conditional on technical studies being prepared to determine if the site is suitable for the proposed industrial use.

The NSW Department of Planning & Environment issued a Gateway determination to proceed with the planning proposal on the merits noted above, and provided a list of technical studies that would need to be prepared prior to public exhibition of the Planning Proposal.

In accordance with the Gateway determination, the proponent has now provided Council with a number of studies analysing the suitability of the site for industrial uses. The studies have been reviewed by the relevant Council officers and each has raised concerns, noting that further work is required. The concerns are mainly based on issues relating to:

· Flooding and stormwater drainage

· Impact on the Belongil Creek

· Traffic

· Groundwater

· Acid Sulfate Soils.

Council’s engineers and environmental officers have requested further information before they are able to provide accurate advice on whether the site, in its entirety or in portion, is suitable for industrial uses. The proponent has expressed willingness to complete the additional studies and is prepared to reconsider the development footprint if necessary.

This report presents three options for Council’s consideration as to how the planning proposal is to proceed. The recommended option is to place the Planning Proposal on hold until the development applications for West Byron have been determined. The West Byron urban release area adjoins the subject site.

Whilst it is noted that the determination of this Planning Proposal must not be based solely on the details of the development applications for West Byron, it would be beneficial for the determination of the West Byron applications to be known before making decisions on the future of this site due to the similar environmental challenges, site constraints and external impacts.

NOTE TO COUNCILLORS:

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

RECOMMENDATION:

1. That future work on the Planning Proposal be put on hold until the adjacent development applications relating to West Byron, particularly the portion relating to industrial zoned land, have been determined.

2. That following the determination of development applications relating to West Byron, Council receive a further report to consider options for this Planning Proposal.

Attachments:

1 Attachment 1 - 26.2015.7.1 Planning Proposal for 268 Ewingsdale Road, Byron Bay - Gateway Version (Revised for DPE additional information request), E2016/92541

2 Attachment 2 - 26.2015.7.1 Market report Byron Industrial lands 280616 - Ex Sunnybrand site, E2016/63614

3 Attachment 3 - 26.2015.7.1 Gateway determination for PP_2016_BYRON_007_00 - 268 Ewingsdale Road (16/2/2016), E2017/11916

4 Form of Special Disclosure of Pecuniary Interest, E2012/2815

REPORT

Background

In 2016 a Planning Proposal was submitted to Council for the rezoning of 268 Ewingsdale Road, described as Lot 181/755695 (Figure 1) from RU2 Rural Landscape to IN2 Light Industrial zone. The Planning Proposal is appended to this report as Attachment 1.

The previous land use was a poultry production and processing facility with 8 large sheds for poultry storage orientated east-west on the western portion of the site. The north-east corner of the site contained the processing facilities, and to the south of the processing area a wastewater oxidation pond.

Presently, there are two large sheds (formerly chicken storage) on the north-west corner of the site

that are used for vehicle storage and a number of warehouses and sheds on the north-western

corner of the site that are used for a variety of business including a gym and food distributors.

The site is bounded by Ewingsdale Road and the Byron Regional Sports and Cultural Centre to the

north and land gazetted under the Coastal Management SEPP occurs immediately south of the site. The Island Quarry and the wetland are located to the west and the proposed West Byron Urban Land Release area adjoins the site to the east.

The Planning Proposal also affects a Crown Land drainage reserve that traverses the site north east / south west and is described as part lot 7022 DP 1113424.

The Planning Proposal initially submitted to the NSW Department of Planning & Environment for a Gateway determination was not yet supported by the necessary technical studies relevant to the site and the proposed land use. Staff support for the Planning Proposal to go to a Gateway determination was conditional on the applicant undertaking site specific studies. The merits for Council staff support are summarised below:

· There is a need for industrial land in the Shire - industrial lands assessment appended as Attachment 2

· It will add to the stock of zoned industrial land which is limited, yet in demand. It will assist Council to match zoned industrial land with the needs of its growing economy

· The subject land is immediately adjacent to a zoned industrial area (West Byron) and across the road from the zoned Byron Arts and Industry Estate

· It is a logical extension to an existing urban area and not a freestanding new area

· It will not cause oversupply problems that will affect other zoned employment lands

· It will be a step towards planning for industrial needs as a local response to the loss of a significant local employer (the chicken processing factory) in 2014.

At the ordinary meeting of August 25 2016 Council considered the Planning Proposal and resolved (16-474) that Council:

a) Forward the Planning Proposal to amend Byron LEP 2014 (Attachment 1) to the NSW Department of Planning and Environment for a Gateway Determination, conditional on the applicant:

i) as part of the planning proposal, formally entering into a voluntary planning agreement to upgrade the Cavanbah roundabout to a ‘dual lane, concrete roundabout’ with a fourth leg to the south required to service the proposed industrial development of the subject land; and

ii) completing site specific studies on flooding impacts (including filling and drainage), traffic, water and sewerage, bushfire hazard, acid sulfate soils, ecology, Aboriginal heritage and land contamination from past use. These studies must be prepared to Council’s satisfaction prior to public exhibition of the Planning Proposal; and

b) Request the Department of Planning and Environment retain delegated authority to make the LEP Amendment, as the subject land is not identified as a future urban release area and is outside the Town and Village Growth boundary for Byron Bay in the Far North Coast Regional Strategy.

A Gateway determination was received in February 2017 (Attachment 3) and was conditional on the applicant undertaking site specific studies on:

· Flora and fauna

· Flooding impact

· Acid sulfate soils

· Aboriginal cultural heritage

· Potential site contamination

· Bushfire

· Traffic impacts

· Infrastructure and services provision

· Stormwater management to and from the site

· Impacts on the adjoining SEPP 14 wetlands of the proposed future industrial use of the site.

The applicant completed and submitted these studies. Council staff have since reviewed the studies and recommend that further studies are needed before it can be decided if continued support can be given for the proposed rezoning.

The additional studies required include:

· Detailed acid sulfate soils assessment in context of a hydrological assessment,

· Hydrological assessment and water management plan,

· SEPP55 groundwater investigations,

· A revised Flora and Fauna/threatened species assessment,

· A tree/vegetation survey,

· Pre and post development flow assessment of the Belongil Creek ICOLL,

· Revised engineering assessment,

· Revised stormwater assessment,

· Revised flood impact study,

· Revised traffic analysis.

Key issues that must be addressed are outlined below.

Key issues

Flooding

The issues and contributing factors for flooding on this site raise concern. The site has areas of high hazard flooding in the current climate 100 year flood event. Those areas will be inappropriate for development unless filled. These areas are mainly the Coastal wetland to the southern end of the site and it is recommended by the flood engineer that these areas do not get rezoned.

The proposed flood planning level (FPL) considers the 2050 FPL. It is the request of the flood engineer that flood investigation considers fill levels that meet the 2100 FPL. This revised study must show no or minimal off site flood impact if the rezoning is to be supported.

Belongil Creek and Wetlands

There is a significant risk that Impacts from earthworks, filling and draining are likely to occur on adjacent coastal wetlands and the Belongil estuary. The site is constrained by mapping under the Coastal Management SEPP which maps both ‘Coastal Wetlands’ and ‘Proximity Area to Coastal Wetlands’ on the site. Any clearing, earthworks (including the depositing of material on land), constructing a levee, draining the land or environmental protection works within the mapped wetlands requires an Environmental Impact Statement. This poses concern for future development applications post rezoning. Rezoning of land for industrial purposes within 100 metres of a coastal wetland needs to be carefully considered. At this stage Council staff have suggested that potential impacts could be reduced by rezoning a smaller development area towards the north of the site.

The combination of this proposal and all the other development proposals in the catchment could change the system from an intermittently closed and open lake/lagoon (ICOLL) to a permanently open mouth. This is an off-site impact that is not acceptable. It is noted that a pre and post development flow assessment should also consider total volumes leaving the site because volume rather than flow is likely to create more of an issue to the ICOLL.

It is vitally important that any development clearly demonstrate that no off-site impacts will occur to the adjacent wetland of very high conservation value. This will require additional studies. Council’s ecologist recommends that the full 100m buffer to the contiguous adjoining wetlands be retained and not rezoned to industrial use to protect and avoid impacts to Coastal Wetlands and their habitat.

Stormwater

Due to the flat nature of the site it has not been proven to Councils satisfaction that the site has sufficient grade for all the proposed water sensitive urban design (WSUD) ideas presented in the stormwater assessment. This would get resolved during the detailed design at development application stage (post rezoning), however the capacity for the site to achieve WSUD outcomes needs to be demonstrated in the Planning Proposal if the rezoning is to be supported. Results of the additional groundwater study will determine whether the proposed infiltration is achievable.

Space will also need to be available to satisfactorily treat stormwater run-off from the site before it enters the Coastal Wetland area.

Council’s flood engineer has recommended that a revised engineering assessment be prepared that aligns with Council’s Climate Change Policy and provides details of the grade of the catchment diversion system to prove self-clearing is achievable.

Flora and Fauna

The site contains freshwater wetlands and Swamp Sclerophyll Forest with a rainforest understorey. The applicant has provided a fauna assessment of likely threatened species however little emphasis has been placed on species known to occur in very close proximity to the site. Therefore, further studies are required, including survey data that shows record of the Wallum Sedge Frog if present.

The southern portion of the site is important to improve wetland connectivity, retain existing habitat and provide vegetated buffers to mapped Coastal Wetlands. A 100m buffer is mapped around the Coastal Wetland to the south, west and east of the property and covers some two-thirds of the site. Any works in this buffer would require Clause 10 and 11 of the Coastal Management SEPP to be addressed at the development application stage, or alternatively, excluded from the area proposed to be rezoned to IN2.

Under Clause 11 of the SEPP, development can be permitted within the buffer zone however the consent authority would need be satisfied that there will be no significant impact. Further studies are required into the groundwater and hydrology of the site to determine the flow on impact to the wetlands.

Acid Sulphate Soils

The site is constrained by acid sulphate soils and potential contamination in both soil and groundwater. Extensive earthworks will be required on this site to remove peat, treat soft soils and then fill the site with clean material - this poses concern to Council staff. There are no local sites from which fill can be sourced, and it should be noted that this site will likely compete with West Byron for clean fill. This will increase truck movements to get material on and off site and must be considered.

The study prepared by the proponent concludes that an Acid Sulphate Soil Management Plan would be required to prevent the risk of acid sulphate soil exposure. However, due to the high water table further studies are required to assess mobilisation of contamination in groundwater.

Groundwater

The land is constrained by an extremely high water table. The groundwater is highest at the Southern end of the site, closest to the Coastal Wetland, but is noted to be close to the surface for most of the year. The study completed by the proponent recommends water sensitive urban design to avoid significant changes in groundwater and the ecosystems they support. Further studies will need to be carried out to determine the potential impacts of any industrial development on the groundwater and hereafter on the ecosystems of the wetlands.

Traffic

It is noted that the rezoning of the site has the potential to noticeably increase the volume of heavy vehicles along Ewingsdale Rd and increase turning movements at the Cavanbah Centre Roundabout – which would become the main entrance to the site with the current entrance being closed. A voluntary planning agreement (VPA) to upgrade the roundabout is required by the Gateway determination.

Council’s traffic engineer has requested a revised traffic analysis before further recommendations can be given, noting issues in the methodology used to determine traffic generation figures. It is stated that expected traffic generation resulting from the West Byron urban release area must also be included in the assessment, as the timeline for development would likely see the West Byron urban release area developed prior to the proposed industrial park for this site (should the current development applications be approved). Council would also need the chance to review the original traffic survey data, and not just extractions of the traffic survey the applicant undertook in May 2017.

Options going forward

1. Place the Planning Proposal on hold until the West Byron Development Applications have been determined (recommended option)

The site is located adjacent to the area of land known as West Byron which is currently awaiting determination of two development applications. From these applications, it is understood by Council that the West Byron urban release area has complex issues similar to those faced by this planning proposal. It is important that Council recognises these challenges and takes them into consideration when deciding to move forward with a rezoning in the same vicinity.

While some of the site issues relating to West Byron may not be solved by the current development applications, it cannot be said that any future development application lodged on this site would follow suit. Sensitive design in accordance with the specifications of the site could lead to a development application with suitable solutions. The Planning Proposal must be assessed on its own merits and on the premise of whether the site is suitable for industrial uses.

That being said, it is critical that Council understands the site in context of its proximity to West Byron and the potential cumulative impact of development in this area on the adjoining wetland and Belongil catchment. It would therefore be beneficial for Council to know the determinations of development applications for adjoining lands currently being assessed by the Joint regional Planning Panel (JRPP) prior to making any rushed decisions on the Planning Proposal at hand.

2. Move forward with the planning proposal, requesting additional studies from the applicant, with the potential to rezone a reduced section of the parcel to IN2 and work on revising the concept plan for a smaller footprint

Based on the information received thus far, rezoning a portion of the site to the north, while leaving the southern part site as RU2 or applying an environmental zone, may help address some of the site issues. This is due to site constraints becoming more pronounced as the land slopes away to the south, as well as the proximity of the southern portion of the site to the adjoining wetland.

The environmental health officer, ecologist and flood engineer have so far suggested that rezoning a smaller portion of the site, with focus on the northern extent, could lead to an acceptable outcome. Of course, further studies will be needed before accurate recommendations can be given.

3. Cease work on the Planning Proposal and withdraw support

Due to the concerns raised by the initial studies, primarily groundwater, flood, stormwater and traffic, one option would be to withdraw Council support and leave the site to remain zoned RU2.

Withdrawing support at this time and ceasing work on the Planning Proposal would save the applicant the time and cost of the additional studies if in the future Council’s political support for the project is going to be lacking nevertheless. However, the applicant would like the opportunity to produce the additional studies and work with Council on finding the best solution for the Shire. The applicant is also aware that depending on the review of these additional studies Council may subsequently withdraw support if further negative impacts, with no solutions, are revealed.

It must also be noted that, should Council withdraw support at this point in time, the applicant could take on ownership of the Planning Proposal and seek a review by the NSW Department of Planning & Environment. It is unknown what the outcome would be under this scenario and all options must be taken into consideration. The DPE could allow this Planning Proposal to proceed to public exhibition without the additional studies if they believe the current studies are sufficient.

STRATEGIC CONSIDERATIONS

Community Strategic Plan and Operational Plan

CSP Objective	L2	CSP Strategy	L3	DP Action	L4	OP Activity
Community Objective 4: We manage growth and change responsibly	4.3	Promote and support local business development, education and employment opportunities

Legal/Statutory/Policy Considerations

The relevant legal/statutory/policy considerations have been noted above.

Financial Considerations

Being an applicant funded Planning Proposal, all costs associated with the proposed rezoning will be borne by the applicant.

Consultation and Engagement

If Council proceeds with the Planning Proposal, consultation with the community and relevant government agencies will take place during the public exhibition period and in accordance with the Gateway determination.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 6.3

Report No. 6.3 Council's Climate Change Adaptation Processes - Update Report

Directorate: Sustainable Environment and Economy

Report Author: Hayley Briggs, Sustainability and Emissions Reduction Officer

File No: I2019/25

Theme: Sustainable Environment and Economy

Planning Policy and Natural Environment

Summary:

This report provides an update on Council’s climate change adaptation processes as requested by Council at the 13 December 2018 meeting (Res 18-841).

Climate change adaptation processes in Byron Shire currently occur at Council and at the regional level through Rous County Council and the New South Wales Government. Byron Shire Council supports Rous County Council who is planning for a reduced water supply in the region, and participates in regional adaption measures coordinated by the New South Wales Office of Environment and Heritage.

Council itself has been active in the climate change adaptation space for some time, but delivery of actions has been piecemeal. In 2008, Byron and Tweed Shire Councils were jointly awarded federal government funding to engage a consultant to undertake a comprehensive risk assessment of the potential impacts of climate change on Council services and activities, and to recommend possible adaptation planning processes. From this work, Council resolved to adopt a Climate Change Adaptation Implementation Schedule (which included additional actions separately identified by Council). While the Schedule was not resourced, Council has still been somewhat proactive in the adaptation space with some actions being delivered through other projects on an ad hoc basis. Council’s most comprehensive current climate change adaptation document, the Climate Change Strategic Planning Policy, provides guidance on future flood, coastline management and biodiversity planning.

Due to the age of the Climate Change Adaptation Implementation Schedule and the fact that it was not resourced or implemented in a consistent manner, it is recommended that Council develop an updated Climate Change Adaptation Implementation Plan.

RECOMMENDATION:

That Council consider the development of an updated Climate Change Adaptation Implementation Plan for Council operations in the preparation of the draft 2019/20 Operational Plan and an allocation of $80,000 in the preparation of the draft 2019/20 Budget.

Attachments:

1 Byron and Tweed Shire Councils Climate Change Risk Assessment Final Report, May 2009, DM862857

2 Byron and Tweed Shire Councils Climate Change Adaptation Action Plan, June 2009, DM877053

3 Byron Shire Climate Change Adaptation Implementation Schedule - with recommended amendments from Res 10-408, DM977169

REPORT

At the ordinary Council Meeting of 13 December 2018, Council passed Resolution 18-841 requesting staff provide an update report to the next available meeting on Council’s climate change adaptation processes for rising temperatures, emergencies, asset maintenance, and water resources in a changing environment.

Background

There are two main policy responses to climate change: mitigation and adaptation.

Mitigation addresses the root causes of climate change by reducing greenhouse gas emissions. Council has been conducting work in the mitigation space since 2004 and continues to do so with its goals of net zero emissions for Council operations by 2025 and 100% renewable energy by 2027.

Adaptation is the process by which strategies to moderate, cope with and take advantage of the consequences of climatic events, are enhanced, developed, and implemented (United Nations Development Programme, 2005). Adaptation can be either a planned, proactive response to climate change or a reactive adjustment to climate change impacts after they have occurred.

Proactive adaptation processes in Byron Shire are currently occurring here at Council as well as at the regional level through Rous County Council and the New South Wales (NSW) Government. Given that climate change is a global phenomenon that will not affect Byron Shire in isolation, coordinated regional approaches often deliver the most effective outcomes.

Council strategies and policies

Council has been engaged in climate change adaptation work for over a decade. In May 2008 Byron Shire Council and Tweed Shire Council were jointly awarded funds from the Australian Department of Climate Change for the joint project ‘Assessing Climate Change Risks and Adaptation Strategy Development in the NSW Northern Rivers Region’ under the Local Adaptation Pathways Program (LAPP). The Program was overseen by Council’s then Sustainability Officer and facilitated by way of consultancy with input from a cross-section of Council staff during a series of workshops held in both Local Government Areas.

The LAPP project was based on the understanding that the level of uncertainty of climate change projections compounds the ability of local government to prioritise adaptation responses to unavoidable climate change. The project aimed to identify strategies to minimise potential adverse impacts on Council services and assets caused by climate change, develop and implement robust adaptation responses and integrate priority actions into Council’s management, operations and strategic planning framework.

In August 2008, GHD were successful in being awarded the tender for the project and subsequently engaged to deliver the following process:

1. Establish the context of climate change risk management for Byron / Tweed Shires.

2. Deliver a Contextual Workshop for selected Council staff.

3. Deliver a Risk Assessment Workshop for selected Council staff.

4. Prepare a Risk Assessment Report for council operations and responsibilities.

5. Deliver an Adaptation Workshop for selected Council staff.

6. Prepare an Adaptation Action Plan for council operations and responsibilities.

The Risk Assessment and Adaptation Action Plan reports (Attachments 1 & 2) provided background, contextual information used in the preparation of the Byron Shire Climate Change Adaptation Implementation Schedule (Attachment 3). At the 27 May 2010 meeting, Council adopted the Implementation Schedule (Res-10-408). The Implementation Schedule included GHD’s suggested adaptation actions for a number of the hazards identified in the reports, as well as four further adaptation actions identified independently by Council (being action items 2.6, 4.4, 8.1 and 8.2 in the Implementation Schedule). The LAPP project concluded on 31August 2009.

Complementing Council’s work with GHD around this time was the development of the Climate Change Strategic Planning Policy, which was adopted by Council on 12 November 2009 (Res-09-968). This policy is aimed mainly at future flood planning, but also incorporates coastline management planning and biodiversity planning. It was updated on 26 June 2014 (Res 14-315) and is scheduled for review again in 2019. Its three objectives are:

· to set out Council’s accepted climate change parameters to inform the decision making process for strategic, infrastructure and operational planning;

· to mitigate impacts associated with climate change on future generations through commitment to the precautionary principle; and

· to review climate change parameters as further information becomes available from leading government organisations.

Delivery of actions

Whilst the 2010 Implementation Schedule was not resourced and therefore not implemented in a systematic manner, in the intervening years Council has delivered some (or part of some) of the actions through other mechanisms. Examples include:

· Hazard 2: Increased Flood Level and Frequency – Adaptation Action 2.1: Review

infrastructure design standards for public works (including ensuring Council’s existing Climate Change Strategic Planning Policy is integrated with the Shire-wide Development Control Plan [DCP]).

- All adopted flood studies and management plans post-2009 have incorporated climate change considerations e.g. see the Tallow Creek Floodplain Risk Management Study and Plan. Further, Council has since incorporated the Climate Change Strategic Planning Policy into Chapter C2 (clause C2.16) of DCP 2014 and the flood planning provisions in that Chapter were developed having regard to the overall framework of that policy.

· Hazard 3: Introduction and Proliferation of Exotic Species – Adaptation Action 3.3 Develop Pest Species Management Plan.

- Council’s current Feral Animal Management Plan is being reviewed. A new Pest Animal Management Plan is being prepared in accordance with the NSW Biosecurity Act 2015 and Local Land Services Act 2013 and consultation with the community, to manage pest animals in the Shire. The draft plan was available for public comment for 6 weeks from 9 August to 21 September 2018. Submissions have been assessed and are being reported to the Biodiversity Advisory Committee in February 2019.

· Hazard 6: Coastal Erosion and Impacts of Coastal Development – Adaptation Action 6.2 Finalise and implement Coastal Zone Management Plan.

- Council’s existing coastal management activities and previous Coastal Zone Management Plans (CZMPs) are currently being revised under the coastal planning process in accordance with the Coastal Management Act 2018. Council has commenced preparing a Coastal Management Program for the area from Cape Byron to South Golden Beach with Stage One of the process (Scoping Study) due to be completed by May 2019.

- The new Coastal Management Program will focus on coastal hazards. Two areas of concern where property and/or infrastructure are at risk are Belongil Beach and New Brighton Beach, and the review will concentrate on these zones. Community consultation was held in late 2018 with public agency and Council engagement planned for February 2019.

While adaptation actions for waste management, infrastructure and processes were not included in the Implementation Schedule, the Resource Recovery Team has been working for a number of years to manage risks. Examples include:

· continual upgrades to the Byron Resource Recovery Centre to improve environmental performance in extreme weather events;

· production of compost to assist in local soil health and resistance to long drought periods;

· cessation of landfilling operations in the Shire which reduces the environmental risks associated with an operational landfill during such events; and

· disaster management planning to enable Council to better manage waste after extreme weather events.

Asset management in relation to flooding is included in the Implementation Schedule, however general asset management in relation to increased temperatures, etc. is not explicitly mentioned. Currently, Council’s Asset Management Policy and draft Transport Asset Management Plan do not specifically reference climate change adaptation measures. The Asset Management Team will soon be introducing a climate change factor into its Predictive Modelling for future asset capital works programs, but have advised that the factor is quite low so the impact may be negligible. Whether this factor will apply to new work only or to the renewal of existing infrastructure as well is yet to be confirmed. In relation to undertaking infrastructure works under increased temperature conditions, the Asset Management Team advised that the timing of works may be scheduled for early morning, late afternoon or overnight to ensure worker safety.

Regional adaptation measures

In addition to the above measures, Council participates in regional adaption measures coordinated by Rous County Council and the NSW Office of Environment and Heritage.

Rous County Council

Byron Shire Council supports Rous County Council (RCC) who is planning for a reduced water supply in the region. RCC performs three main functions for local councils in the NSW Far North Coast region: delivery of the bulk water supply, flood mitigation (not emergency response to flooding) and weed biosecurity. The second two functions are not relevant to climate change adaptation processes in Byron Shire.

The North Coast Region’s existing water sources can comfortably meet demand for water in the short to medium term; however the availability of water for North Coast LGAs in the future is much less certain. To maintain a sustainable water supply for the region in the face of a changing climate and increased population, RCC has developed a suit of three policy documents: Future Water Strategy, Drought Management Plan and Regional Demand Management Plan. The Future Water Strategy projects future water needs and provides a framework for long-term water planning and infrastructure development in the Region. The Drought Management Plan aims to ensure continued water supply during drought conditions in order to meet water user, public health and firefighting needs. The Regional Demand Management Plan describes the water supply demand management initiatives to be implemented in the local government areas of Ballina, Byron, Lismore and Richmond Valley over the next four years (2019 – 2022). As a constituent council, Byron Shire Council is directly affected by, and has actively participated in the development of all three documents.

NSW Office of Environment and Heritage

The NSW Office of Environment and Heritage (OEH) manages the state’s approach to climate change adaptation. At the information dissemination level, OEH administers the Adapt NSW website (https://climatechange.environment.nsw.gov.au/), the central information hub for understanding and adapting to climate change in NSW.

At the policy level, OEH developed a process to enable regional adaptation and planning by working with local government, agencies and other local stakeholders to identify and understand regional climate vulnerabilities. NSW local government areas were grouped into seven regional zones for assessment, and in 2014 the North Coast’s vulnerability to climate change was examined in the North Coast Integrated Regional Vulnerability Assessment (IRVA). Council staff participated in the workshops along with representatives from human services, landscapes and ecosystems, industries, settlements and infrastructure, and emergency management sectors in order to understand the vulnerability of the region to the forecast effects of climate change. The local knowledge was incorporated into two reports:

· North Coast IRVA Volume 1: identifies regional climate change vulnerabilities and canvasses action to reduce them through a coordinated response.

· North Coast IRVA Volume 2: presents the detailed results of the sector workshops.

The North Coast Enabling Regional Adaptation (ERA) project is the follow-on to the IRVA process. In 2018, representatives from Council again attended workshops held across the North Coast to revise the initial vulnerability assessment and identify and develop adaptation models for the following key regional systems:

· energy;

· settlements;

· tourism;

· biodiversity;

· food and agricultural;

· emergency management;

· infrastructure and water; and

· communities.

The North Coast ERA report is currently being drafted. It will go to the Department of Premier and Cabinet’s Regional Leadership Executive for endorsement in the first half of 2019 before publication later this year. Examples of key projects likely to be included are as follows:

· Climate resilient energy infrastructure and pricing project

· Northern Rivers 100% Renewable Energy transition to 2050

· North Coast Electric Vehicle Network

· Climate Adaption into Business Management Practices

· Social Licence to Support Sustainable Agriculture

· Cross Dependency Risk Analysis of Critical Infrastructure

· Investment Generation Innovation Hub

· Mapping High Risk Assets to Identify Infrastructure Hot Spots

· Person-Centred Emergency Preparedness

· Sharing Knowledge Projects with Aboriginal and Torres Strait Islander Communities

· Sustainable Housing Project

· Urban Environment Intelligence

· Sustainable Events Project.

Community led climate change

Council at the 31 October 2018 meeting resolved (18-680) to seek the Sustainability and Emission Reduction Advisory Committee’s (SERAC) input to convene a community-led Climate Emergency Guidance Group. The Guidance Group’s purpose is to develop a Shire-wide Community Climate Emergency Plan to further enhance resilience and reduce climate impacts.

Acknowledging that Council was not resourced to undertake the work, SERAC recommended amongst other things (Resolution 18-737) that Council support the guidance group through facilitation of the initial meeting. The first meeting of the Community Climate Change Emergency Plan was held on 7 December 2018 and successive meetings have been held since.

The work of the community led Guidance Group is focused on community adaptation to climate change impacts and will complement the work recommended to update the Climate Change Adaptation Implementation Plan for Council Operations.

Options

Council does not currently have a single overarching climate change adaptation document. The 2010 Byron Shire Climate Change Adaptation Implementation Schedule was not resourced and climate change adaptation processes have been incorporated into some Council policies, plans and strategies on an ad hoc basis since then. Given the amount of time that has passed since the adoption of the Implementation Schedule, a review would be necessary before considering implementing any more of the suggested adaptation actions. A review and update of the 2009 Risk Assessment and Adaptation Action Plan reports would be required to provide the background information necessary for updating the Implementation Schedule.

Council has two options going forward:

1) Business as usual. Council can continue to incorporate climate change adaptation processes into its plans and policies on an ad hoc basis and as guided by the regional approach.

2) Develop an updated Climate Change Adaptation Implementation Plan for Council Operations

This would include reviewing the existing Byron Tweed Climate Change Risk Assessment (Attachment 1) and Climate Change Adaptation Action Plan (Attachment 2) reports and the 2010 Byron Shire Climate Change Adaptation Implementation Schedule (Attachment 3). Costs would be in the order of $80,000. Funding to implement individual projects would be determined on a case by case basis and require separate funding support.

It is recommended that Council proceed with option 2.

References

United Nations Development Programme (2005). Adaptation Policy Frameworks for Climate Change. Developing Strategies, Policies and Measures, Ed. Bo Lim, Erika Spanger-Siegfried, Co-authors Ian Burton, Elizabeth Malone, and Saleemul Huq.

STRATEGIC CONSIDERATIONS

Community Strategic Plan and Operational Plan

CSP Objective	L2	CSP Strategy	L3	DP Action	L4	OP Activity
Community Objective 3: We protect and enhance our natural environment	3.3	Partner to protect and enhance the health of the Shire’s coastlines, estuaries, waterways and catchments	3.3.1	Implement Coastal Management Program	3.3.1.1		Finalise and implement Coastal Zone Management Plan Eastern Precincts Byron Bay Embayment
Community Objective 3: We protect and enhance our natural environment	3.3	Partner to protect and enhance the health of the Shire’s coastlines, estuaries, waterways and catchments	3.3.1	Implement Coastal Management Program	3.3.1.2		Prepare Coastal Management Program scoping study for New Brighton and Byron Bay Embayment Western Precincts

Legal/Statutory/Policy Considerations

Byron Shire Council Climate Change Strategic Planning Policy

Financial Considerations

The costs to develop an updated Climate Change Adaptation Implementation Schedule will be considered in the preparation of the draft 2019/20 Operational Plan and budget.

Consultation and Engagement

Council staff

Coastal & Biodiversity Coordinator, Sustainable Environment & Economy

Manager Works, Infrastructure Services

Team Leader Infrastructure Planning, Infrastructure Services

Asset Management Coordinator, Infrastructure Services

Team Leader Resource Recovery and Quarry, Infrastructure Services

Development Engineering Supervisor, Infrastructure Services

Flood and Drainage Engineer, Infrastructure Services

External to Council

Senior Team Leader, Regional Preparedness, NSW Office of Environment and Heritage

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 6.5

Report No. 6.5 PLANNING - Submissions Report on the draft Bangalow Village Plan

Directorate: Sustainable Environment and Economy

Report Author: Luke Munro, Planner

Jamie Van Iersel, Planner - Place Planner

File No: I2019/85

Summary:

In 2016 Council resolved (16-623) to prepare a masterplan for the village of Bangalow through a participative planning process by establishing the Bangalow Guidance Group.

A draft Plan, The Bangalow Village Plan - Visions and Initiatives, was subsequently developed. The draft Plan presents the synthesis of visions and initiatives and outlines a recommended framework to guide the future of Bangalow. It is a strategic plan that aims to document the visions for Bangalow and lists a range of initiatives that would contribute to the visions being achieved. The intent of the Bangalow Village Plan is to guide future development and evolution of the village by clearly articulating the future desired character. Having an adopted Village Plan will support grant applications and guide amendments to planning controls in the near future.

At the ordinary meeting of 18 October 2018 Council resolved (18-683) to exhibit the draft Bangalow Village Plan – Vision and Ideas for a 6 week period. The exhibition period ran between 5 November 2018 and 17 December 2018. Council received valuable and constructive feedback during this period from the community.

During this time Council spoke with 211 community members and received 99 written comments. From all of the feedback, the majority related to the initiatives and no comments were received on the visions. Feedback indicated support for the creation of a network of walk and cycle paths throughout Bangalow. The activation of the rail corridor as a pedestrian/cycle pathway from Rifle Range Road to the sportsfields received a notable amount of support.

Attachment 2 to this report shows further detail of the submissions and comments received. More commentary on the submissions is contained in the body of this report.

The report also tables the changes that have been made to the draft Bangalow Village Plan since the exhibition period.

It is recommended that Council adopt the revised Bangalow Village Plan following community feedback (Attachment 1)

Following the endorsement of the Bangalow Village Plan: Visions and Initiatives, the preparation of the Bangalow Village Plan – Implementation Plan will follow. The implementation plan will prioritise the project ideas and initiatives according to community feedback received during the exhibition period and available funding.

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 Council:

1. Adopt the Bangalow Village Plan: visions and initiatives – Attachment 1 (#E2019/8581) with any necessary amendments to the Plan required for the purposes of proof reading and formatting edits.

2. Note following adoption of the Bangalow Village Plan: Visions and Initiatives, the preparation of an Implementation Plan will commence to prioritise the community priority projects identified during exhibition and the Implementation Plan will be considered in future budget processes.

3. Recommence work on preparing a Development Control Plan (DCP) for Bangalow town centre (started in accordance with Resolution 14-315), which acknowledges the initiatives from the Bangalow Village Plan and community priorities to prepare a structure plan to inform the future DCP amendments for Station Street and the area known as ‘The Triangle’, and consider a budget allocation to enable this work in the 2019/20 budget process.

Attachments:

1 Attachment 1 - 20190204 - Bangalow Village Plan - Ideas and Initiatives, E2019/8581

2 Attachment 2 - 20190204 - 2018 - BVP Consultation Comments, E2019/8583

3 Attachment 3 - 20190204 - Changes Made to draft Bangalow Village Plan, E2019/8582

REPORT

Background

In 2016 Council resolved (16-623) to prepare a masterplan for the village of Bangalow through a participative planning process with the Bangalow Guidance Group.

Key outcomes that Council and the community are seeking from the plan and the process include:

· greater involvement of Bangalow residents in Council decision-making about their town;

· a shared vision for the future – to get everyone ‘rowing’ in the same direction (including Council, community groups and private developers);

· better integration, coordination and sequencing of activities in Bangalow, including the delivery of infrastructure by Council;

· to inspire and drive change by trialling some new ideas, temporary events and creative initiatives in the public domain; and

· to ensure that the things people love about Bangalow – such as its small town feel, heritage character, rural setting and natural environment – are conserved.

The process commenced in late 2015 with a community survey, which received 300 responses. Results of the survey are included in the appendix to the draft Bangalow Village Plan (Attachment 2).

A two-day Place Creation Workshop followed in March 2016, attended by 31 representatives from Bangalow community groups, the Mayor, Councillors and Council staff. Workshop participants were invited to continue their involvement by becoming members of a community Guidance Group.

The Bangalow Guidance Group was formed in June 2016, comprising 19 community members and 3 Councillors. It has met regularly since then and, through a series of participative workshops, assisted Council staff in developing the draft Village Plan.

A draft Plan was subsequently developed. The draft Plan presents the synthesis of visions and initiatives and outlines a recommended framework to guide the future of Bangalow. It is a strategic plan that aims to document the visions and values for Bangalow. The intent of the Bangalow Village Plan is to guide future development and evolution of the village by clearly articulating the future desired character. Having an adopted Village Plan will support grant applications and guide amendments to planning controls in the near future.

At Council’s 18October 2018 meeting Council resolved (18-683) to exhibit the draft Bangalow Village Plan: visions and initiatives for a 6 week period. The exhibition period ran between November 5 2018 and December 17 2018. Council received valuable and constructive feedback during this period from the community.

Outcomes of Public Exhibition

The results from the public engagement process have allowed for the finalisation of the draft Plan and will now enable the development of a detailed Implementation Plan/ program and future governance structure to assist in project delivery, consistent with Council’s Community Strategic Plan, Operational and Delivery Plans.

Full details of the responses received have been included in Attachment 2.

Overall, from all the feedback received relating to the Plan Council received overwhelming support for the rail corridor to be activated as a pedestrian/cycle pathway. Support was received for the rail way to connect pedestrians/cyclists all the way from Bangalow to Byron, however the community expressed satisfaction with the linkage being between Rifle Range Road and the sports fields as a first stage.

The mention of pedestrian and cyclist connectivity came up a lot throughout the exhibition period, whether it be requests for additional linkages or repair of current pathways.

Other themes that came up were:

· Review of the DCP to address building design, heritage, landscaping and advertising controls (including structure plan for ‘The Triangle’).

· The roads need fixing as a safety matter on the entrance to Bangalow from both sides,

· The speed limits need addressing on the entrance roads and the main street of Bangalow,

· Prioritising and improving the pedestrian experience within the Bangalow Village centre,

· More needs to be done for social inclusion and community services ie pool, library, youth support etc.

Since the close of the public exhibition, the Bangalow Village Plan has been amended in accordance with submissions received (Attachment 1). The Plan requires some formatting and minor edits before finalising.

Changes made to the Plan

Changes made to the draft Bangalow Village Plan – Vision and Ideas are identified in Attachment 3

Moving Forward – Implementation Plan

Following the adoption of the Bangalow Village Plan – Vision and Ideas and subject to resolution from Council the Guidance Group will proceed with the development of the Bangalow Village Plan – Implementation Plan to prioritise the initiatives contained within the Bangalow village Plan.

The members of the Guidance Group will be asked if they wish to continue to help develop the Implementation Plan and to agree on the preferred method in the preparation of the Implementation Plan.

Prioritisation of the initiatives will be generally in accordance in Councils forward planning and operational budget and the feedback received during the public exhibition of the draft Bangalow Village Plan – Vision and Ideas which identified the highest priority issues for residents and visitors to Bangalow.

The priority projects as identified through community feedback include:

· Creating a network of walk and cycle paths throughout Bangalow with the most important link being the creation of a combined walk and cycle pathway in the rail corridor extending from Rifle Range Road to the Sports fields.

· Reviewing the existing planning controls to protect the heritage character of the village and village centre with the focus on the creation of a structure plan to inform future Development Control Plan amendments for Station Street and the area known as ‘The Triangle’.

· Improving the pedestrian experience within the village centre through improved shade, street trees, seating, shared pedestrian zones and periphery car parks.

· Reducing the speed limits on the entrance roads and main street of Bangalow.

· Improved community services and social inclusion.

Consultation and Engagement

As the document has been drafted in collaboration with the Guidance Group, it was important to Council that the wider community had the opportunity to review and make comment on the Plan. Council sought to ensure that the exhibition period was open to all and wide reaching.

The draft Bangalow Village Plan was on public exhibition from November 5 until December 17 2018. To publicise the exhibition, and inform the community on how to make comment, the following actions were undertaken:

· Letterbox drop to the urban Bangalow residents (excluding ‘no junk mail’),

· Advertisement in the Echo,

· Advertisements in Bangalow and Coorabell primary school newsletters,

· Advertisement in the Bangalow Herald – a local monthly magazine,

· Videos/posts on social media,

· Radio interviews (BayFM and ABC),

Feedback was welcomed via:

· Face-to-face discussions/written notes at a marquee stall in Bangalow (211 attendees)

· Online survey (57 responses)

· Online pinning of ideas on a map (8 contributors with 25 contributions)

· Email or letter (17 submissions)

· In person with Council staff through one-on-one meetings for those who could not attend a stall.

Throughout the exhibition, staff set up a marquee on three separate occasions from 10am – 4pm in Fire Station Park on Byron Street, Bangalow. Staff also set up a marquee at the Bangalow Farmers Markets from 8am – 11am on two occasions.

The intention of these stalls was to have a visual and physical presence in the village to ensure that awareness of the Bangalow Village Plan and its exhibition could be widespread. The marquee was established in a way that community members could sit down with staff to discuss the project, read the draft Plan, fill in a survey or leave additional comments. On all five occasions staff received both great quantity and quality of community feedback. It is believed that having a presence in the village was successful and aided the relationship between Council and the community, not just on this project.

Additionally, an online platform was available for the public to take part in a survey or pin their additional ideas on a map of the village.

STRATEGIC CONSIDERATIONS

Community Strategic Plan and Operational Plan

CSP Objective	L2	CSP Strategy		L3		DP Action		L4		OP Activity
Community Objective 4: We manage growth and change responsibly	4.1		Support the visions and aspirations of local communities through place-based planning and management		4.1.1		Develop, implement and update Place Plans that promote place-based forward planning strategies and actions		4.1.1.3		Finalise Bangalow Village Plan

Legal/Statutory/Policy Considerations

N/A

Financial Considerations

Funds have been allocated in the 2018/19 budget to finalise the development of the Bangalow Village Plan.

Funding for implementing priority projects such as development of a structure plan to inform future Development Control Plan amendments for Station Street and the area known as ‘The Triangle’, will be included in Council’s 2019/20 budget process for consideration.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 6.6

Report No. 6.6 PLANNING - 10.2017.678.1 Demolition of existing buildings and construction of two (2) residential flat buildings, containing 17x3 bedrooms and 2 x 4 bedroom dwellings including swimming pool, landscaping, basement car parking and strata subdivision

Directorate: Sustainable Environment and Economy

Report Author: Patricia Docherty, Planner

Noreen Scott, EA Sustainable Environment and Economy

File No: I2019/87

Proposal:

DA No:	10.2017.678.1
Proposal description:	Demolition of existing buildings and construction of two (2) residential flat buildings, containing 17x3 bedrooms and 2 x 4 bedroom dwellings including swimming pool, landscaping, basement car parking and strata subdivision.
Property description:	LOT: 1 DP: 1098133, LOT: 3 SEC: 52 DP: 758207
	19-21 Shirley Street BYRON BAY, 17 Shirley Street BYRON BAY
Parcel No/s:	239941, 122220; Part 268566
Applicant:	Mr M Scott
Owner:	Wollongbar Motel
Zoning:	R3 Medium Density Residential (LEP 2014); 7(f2) Coastal Lands (LEP 1988
Date received:	29 November 2017
Integrated / Designated Development:	☒ Integrated	☐ Designated	☐ Not applicable
Concurrence required	Rural Fire Service – Section 100B of Rural Fires Act
Public notification or exhibition:	- Level 2 advertising under DCP 2014 Part A14 – Public Notification and Exhibition of Development Applications - Exhibition period: 21/12/2017 - 10/01/2018 - Submissions received: Five (5)
Planning Review Committee:	Not applicable
Concurrent approvals (S68/138):	Not applicable
Variation request	☒ Clause 4.6	☐ SEPP 1	☐ Not applicable
Delegation to determination:	Council
Issues:	· Clause 4.6 Variation - Height · Bushfire Safety Authority · Crown Development Approval boundary adjustment · Part 7 (f2) Coastal Erosion Zone Hazard Area LEP 2014 & LEP 1988 – no construction. · SEPP 65 Apartment Design – Principle 8 · Public submissions

Summary:

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

NOTE TO COUNCILLORS:

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

RECOMMENDATION:

That pursuant to Section 4.16 of the Environmental Planning & Assessment Act 1979, development application no. 10.2017.678.1 for demolition of existing buildings and construction of two (2) residential flat buildings, containing 17x3 bedrooms and 2 x 4 bedroom dwellings including swimming pool, landscaping, basement car parking and strata subdivision, be granted Deferred Commencement (deferral period 12 months).

Attachments:

1 10.2017.678.1 _Consolidated Drawings, E2019/7412

2 18082-1A DRAFT DEPOSITED PLAN.pdf, E2019/7415

3 RECOMMENDED CONDITIONS OF DEFERRED COMMENCEMENT CONSENT 10.2017.678.1, E2019/7408

4 submissions received, E2019/8726

REPORT

Assessment:

1. INTRODUCTION

1.1. History/Background

Council records of previous approvals:

5.1987.95.1 approved the construction of a motel and manager’s residence. The approved plans indicated a total of 4 x 2 bedroom and 8 x 1 bedroom units. Bed numbers were not specified in the consent.

5.1998.215.1 approved Motel Additions and limited the operation of the motel to a total of 40 persons, including the manager’s residence

10.2000.476.1 approved Motel additions (new office).

10.2000.648.1, as modified, approved Motel additions - construction of a first floor addition for an additional 5 motel rooms (i.e. 10 single beds or 5 double beds) - to the rear of the existing motel, additional car parking and tree removal.

10.2004.346.1 approved Change of use – existing motel to hostel (50 beds). Alterations that were within the scope of this consent – e.g. change of use of manager’s residence to lower floor common eating area and upper floor communal area – have not been undertaken. Council’s Authority data base records no Construction Certificate issued for DA 10.2004.346.1

10.2006.689.1 approved an amended car parking arrangement to increase the on-site parking provision by 19 spaces. This application was initially refused and, following amendment, approved via a S82A Review. The new parking arrangement has not been constructed.

10.2010.196.1 refused change of use motel to hostel of 73 rooms 208 beds in a 2 x 3 storey buildings with basement parking, bar kitchen dining area & pool.

10.2013.595.1 DA withdrawn for use of an existing motel up to 26 days a year for weddings.

The following two (2) development approvals are of particular relevance to the proposal:

10.2016.55.1 Development Application for Demolition of existing buildings and construction of two (2) Residential Flat Buildings, Including Swimming Pool, Landscaping and Strata Subdivision, consent granted 15 December 2016.

10.2018.73.1 Crown Development Application for Boundary Adjustment (land subdivision), consent granted 13 June 2018.

1.2. Description of the proposed development

The development description is detailed below:

1. The demolition of the existing Wollongbar Motel and adjoining dwelling, and limited tree removal;

2. The erection of 2 buildings comprising;

· No. 1 (north) containing 8 residential flats across 3 levels

· No. 2 (south) containing 11 residential flats across 3 levels

· Basement car parking for 43 cars;

· Provision of ancillary communal facilities, landscaping,17 bicycle spaces, storage and infrastructure; and

· Strata subdivision

The DA is similar to previously approved DA10.2016.55.1 and proposes to increase the total number of units by 2 apartments by changing configuration and reducing apartments (three (3) to two (2)) on upper level of building no 1 and provision of additional level on building no 2 to provide three (3) apartments. The north building is not changing location from that approved by the DA10.2016.55.1. The proposed materials are the same as that approved for both buildings.

The proposal seeks a deferred commencement for registration of a subdivision of land that

was approved 13 June 2018 under DA10.2018.73.

The proposed total floor space ratio is 0.6:1 and the maximum height of building 1 is 9.77m above existing ground level and building 2 is 9.88m above existing ground level. The applicant has submitted a variation request under Clause 4.6 of Byron LEP 2014 to justify the variation to the 9 metre maximum height. The proposed non-compliance with the building height can be largely attributed to the existing variation in the level of the land.

The subject site contains trees associated with Littoral Rainforest which is identified as an Endangered Ecological Community (EEC). The proposed development is not considered likely to have a significant impact on the Littoral Rainforest EEC subject to conditions requiring:

· A detailed tree protection plan to be prepared prior to construction and implemented throughout the construction phase;

· provision of a buffer between any tree protection zone and proposed Building No.1;and

· relocate the proposed decking/path passing through the EEC area to the western side of Building No.1.

The proposal is considered to satisfy the provisions of State Environmental Planning Policy No.65 Design Quality of Residential Apartment Development. However, it is noted that the development does not provide for any one or two bedroom dwellings in terms of housing diversity or choice.

The proposed three and four bedroom dwellings are able to provide for family accommodation which is a desirable form of apartment size in the context of existing housing stock and recent approvals of smaller dwellings in this area.

There is a minor encroachment of the Building Height Plane (BHP) adjacent to the eastern boundary for Building No.2. The proposal also involves a minor encroachment within the specified 9 metre front setback to Shirley Street. These encroachments are considered acceptable for the reasons detailed in this report.

The subject site adjoins the north coast rail corridor to the north. Conditions have been included to address potential noise and vibration issues, and to protect the rail asset.

The application was notified in accordance with the Level 2 provisions of Council’s DCP 2014. Five submissions were received and have been considered in this assessment.

Part of the site is currently zoned under LEP 1988 and it is considered that the proposal avoids any construction on land zoned under Zone

It is considered the proposed development satisfies the applicable planning controls including Byron LEP 2014 and Byron DCP 2014. The proposed development has sufficient planning merit to warrant approval subject to conditions of deferred commencement consent.

1.3. Description of the site

Land is legally described as	LOT: 1 DP: 1098133, LOT: 3 SEC: 52 DP: 758207, Part LOT 4730 DP 1228112
Property address is	19-21 Shirley Street BYRON BAY, 17 Shirley Street BYRON BAY
Land is zoned:	R3 Medium Density Residential
Land area is:	4,542.1m² (comprising 3,149 m² + 781.7m² + 611.4m²)
Property is constrained by:	Bushfire prone land Acid Sulfate Soils Class 5 High Environmental Value – Littoral Rainforests & Coastal Vine Thickets

Existing land use on Lot 1 is a Motel comprising; 23 rooms, 51 beds, reception and services area including laundry, 3 bedroom managers accommodation, swimming pool and entertainment / event area, landscaping and car parking for 26 vehicles.

Existing land use on Lot 3 is a Dwelling erected approximately 1930-40’s timber framed clad in fibre cement/asbestos sheeting with iron roof. The dwelling contains 3 bedrooms, kitchen, lounge/dining area and has a floor area of approx. 180m². A garage and 2 other outbuildings clad in fibre cement / asbestos sheeting are also on the land.

Surrounding land uses in the Shirley Street locality (particularly along the northern side) comprises predominately 2 and 3 storey buildings used for residential and short term tourist accommodation. The buildings along the northern side comprise a mix of older single storey dwellings (used for a range of service uses) and recently erected or renovated 2 and 3 storey buildings used for residential and short term tourist accommodation.

The site includes 611.4m² of land adjoining Lot 1 DP 1098133 along the northern boundary, approximately 10 m metres from the centreline of the existing rail tracks. A Crown development application for the boundary adjustment was approved in 2018. This portion of rail land will be consolidated with that owned by Wollongbar Property Pty Ltd. The functionality of the rail corridor will not be affected - this land is not required for the purposes of public rail transport. It is noted that similar subdivisions have occurred in the rail corridor west of Byron Bay in the past where part of the land is surplus to rail infrastructure requirements.

The land is approximately 150m to the beach via the existing walking track and 340m from the Byron Bay central business district via Shirley Street.

2. SUMMARY OF REFERRALS

Referral	Issue
Development Engineer*	No objections subject to conditions. Refer to Doc # A2017/31858 and # E2019/6768
Building Surveyor	No objections. Refer to Doc # A2017/31587
S64 / Systems Planning Officer*	No objections subject to conditions. Refer to Doc # A2018/23558
S94 / Contributions Officer*	No objections subject to conditions. Refer to Doc # E2018/70999
Rural Fire Service (100B)*	No objections subject to conditions. Refer to Doc # E2018/67699
John Holland Rail	No specific response to referral. Delegate of the owner consent lodged with the DA documentation. Refer to Doc # E2017/110735 (pg. 11-12 of 251)
Transport for NSW	Owners consent granted and lodged with the DA Documentation. Refer to Doc # E2017/110735 (pg. 10 of 251)

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

3. SECTION 4.14 – 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 bush fire prone land. The development application was referred to the NSW Rural Fire Service, which provided conditions which are reflected in the Recommendation of this Report below.

EFFECT OF 10/50 RULE ON SIGNIFICANT VEGETATION

The parcel of land is located in a designated 10/50 vegetation entitlement clearing area. However, the online tool has identified that the land parcel may exclude or otherwise restrict your clearing under the 10/50 Code. No clearing is permitted for the purposes of the 10/50 rule based on the presence of High Environmental Value – Littoral Rainforests & Coastal Vine Thickets.

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

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

4.1 State Environmental Planning Instruments

	Satisfactory	Unsatisfactory
State Environmental Planning Policy No 55—Remediation of Land	☒	☐
Consideration: The site is suitable for the proposed development with consideration for whether the land is contaminated and that the land can be made suitable for the proposed use: Preliminary Contaminated Land Assessment No. 16117_SEPP 55.docx prepared by Greg Alderson & Associates dated 10^th December 2015. The report finds that results from soil sampling undertaken revealed that concentrations of heavy metals are within reporting guidelines set out in Table 1A(1) of NEPM 1999 (2013) under Residential A, using ‘adjusted acceptable levels,’ while EILs were calculated for the site using the urban/residential sensitivity levels. The report found that The concentration of lead in Composite Sample 2 was above the adjusted acceptable limit of 75mg/kg triggering analysis of the individual samples of the composite. The results of the analysis provided that the concentration in the individual samples, although elevated, were below the conservative HIL for Residential A. It is recommended that waste soils be removed from the site and disposed at a licenced waste facility. A condition has been imposed. The subject site is likely to have contained fibro buildings prior to the construction of the current motel. To ensure that any buried rubbish or contaminated materials uncovered following demolition are managed in accordance with statutory requirements, it is further recommended that the applicant provide to Council an Unexpected Findings Protocol prepared by a suitably qualified professional. Conditions have been recommended to ensure that demolition, construction and building works are in accordance with the UFP. In accordance with the assessment of DA 10.2016.55.1 it is recommended that waste soils be removed form the site and disposed at a licenced waste facility. A condition has been imposed. To ensure that any buried rubbish or contaminated materials uncovered following demolition are managed in accordance with statutory requirements, it is further recommended that the applicant provide to Council an Unexpected Findings Protocol (UFP) prepared by a suitably qualified professional. Conditions have been recommended to ensure that demolition, construction and building works are in accordance with the UFP. The site is considered to be clear from radioactivity / radioactive sands according to Byron Bay Radiation Maps from DECC Radiation Unit - Refer to CM Doc # DM742313 and 742315. The nearest dip site is located over 900 metres to the north west in the vicinity of Kendall Street. No further investigation is required at this stage.
State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development	☒	☐
Consideration: *See a summary assessment of the proposal having regard to SEPP No.65 immediately following this table.
State Environmental Planning Policy No 71 – Coastal Protection	☒	☐
SEPP 71 was repealed on 3 April 2018, however still applies under Clause 21 of SEPP (Coastal Management) 2018. The development application was lodged prior to the commencement of SEPP (Coastal Management) 2018. Council must have regard for the matters of consideration under Parts 2 and 4 of SEPP No. 71 when assessing development within the coastal zone. These matters include: · retention of existing public access to the coastal foreshore · impact of effluent disposal on water quality · development must not discharge untreated stormwater into a coastal water body Consideration: · The proposal has no impact on public access to the coastal foreshore. · No effluent is proposed to be disposed other than to Council’s sewerage system. · Stormwater – A condition has been included to require separate approval of the stormwater management plan including details of the method of treating stormwater runoff.
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004	☒	☐
Consideration: A Basix Certificate was submitted with the application.
State Environmental Planning Policy (Infrastructure) 2007	☒	☐
Consideration: The application was referred to the relevant NSW rail authority. Issues raised relate to depth of excavation and proximity of the rail corridor, geotechnical details, noise and vibration. Conditions have been included to address these issues. Beach access across rail corridor shown requires separate approval from NSW Government. The proposed development has frontage to a classified road. The proposed development is considered acceptable having regard to the matters in Clause 101. The application for a construction certificate must include plans and specifications that demonstrate the inclusion of acoustic treatments recommended in Section 7 of report entitled Wollongbar Property PTY 17-21 Shirley Street Byron Bay Acoustic Assessment for Development’ prepared by GHD dated December 2015.

State Environmental Planning Policy No.65 - Design Quality of Residential Apartment Development

Clause 28 Determination of Development Applications

(2) In determining a development application for consent to carry out development to which this Policy applies, a consent authority is to take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration):

(a) the advice (if any) obtained from the design review panel, and

(b) the design quality of the development when evaluated in accordance with the design quality principles, and

(c) the Apartment Design Guide.

Assessment:

The Minister has not formed a Design Review Panel for the Byron Shire Local Government Area accordingly no advice has been received.

The applicant has submitted a Statement prepared by a Registered Architect specifically addressing each of the nine (9) design quality principles of Context and neighbourhood character, Built form and scale, Density, Sustainability, Landscape, Amenity, Safety, Housing diversity and social interaction and Aesthetics.

It is considered the proposed design has adequately addressed each of the design quality principles apart from Principle 8: Housing Diversity and Social Interaction which states:

Principle 8: Housing Diversity and Social Interaction

Good design achieves a mix of apartment sizes, providing housing choice for different demographics, living needs and household budgets.

Well designed apartment developments respond to social context by providing housing and facilities to suit the existing and future social mix. Good design involves practical and flexible features, including different types of communal spaces for a broad range of people, providing opportunities for social interaction amongst residents.

All of the proposed dwellings contain three and (2x) four bedrooms with relatively larger apartment floor areas. This proposal does not provide for any single or two bedroom dwellings and it may be considered that the proposal does not provide for housing diversity or housing choice.

This matter was considered in detail under DA 10.2016.55.1 report to Council (Doc No # I2016/1170)

Notwithstanding the above, the proposed development is considered to add to housing diversity and choice within the Byron Bay township for the following reasons:

· Council has approved in excess of 500 secondary dwellings over the past 5 years, consisting of one or two bedrooms. One hundred and twenty one of these dwellings are located in Byron Bay, and a further sixty nine in Suffolk Park.

· Generally, the proposed three bedroom apartments are a less common apartment type in Byron Bay with single and two bedroom apartments being more commonplace;

· The three bedroom apartments are able to provide for family accommodation (including families comprising two adults with two or more children), whilst the design also lends itself to home office/ working arrangements ;

· Currently under construction and in close proximity (at the corner of Kendall Street and Ewingsdale Road) is a multi dwelling housing development comprising 12 single bedroom dwellings.

It is considered the three and four bedroom dwellings are an appropriate response to the site and economic factors currently driving the residential market.

The applicant has submitted a statement prepared by a Registered Architect specifically addressing Part 3 Siting the Development and Part 4 Designing the Building. The proposed development is considered to be a satisfactory response to the Design Guide.

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 4.15(1) of the EP&A Act because it applies to the subject land and the proposed development.

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 Residential flat building;

(b) The land is within the R3 Medium Density Residential according to the Land Zoning Map;

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

Zone Objective

Consideration

· To provide for the housing needs of the community within a medium density residential environment.

· To provide a variety of housing types within a medium density residential environment.

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

It is considered that the proposed development of 19 residential apartments is satisfactory with regards to the objectives of the zone.

The relevant clauses 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 of these clauses (in some cases subject to conditions and/or to the satisfaction of other assessing officers), except in relation to which considered further as follows:

Clause 4.6 – Request to vary building height

1. Non-compliance with Clause 4.3 Height of buildings (Clause 4.6 assessment)

Clause 4.6(3) specifies:

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

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

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

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

(a) the consent authority is satisfied that:

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

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

(b) the concurrence of the Secretary has been obtained.

Assessment: A written request has been submitted by the applicant seeking to justify a building height variation. The maximum height of the proposed building is calculated to 9 metres.

The max height of roofs of the buildings is:

Building No. 1 - 9.77m (8.6% variation)

Building No. 2 - 9.88m (9.8% variation)

The written request indicates that a small section of the roof parapet safety rail of Building No. 2 will have a height of 9.99m (11% variation) above existing ground level.

The applicant has provided matters to justify the proposed contravention; the relevant matters are assessed as follows:

- The proposed 0.88m height variation is considered minor in nature. The level of the site varies by across the proposed footprint of both buildings and the proposed non-compliance with the building height can be largely attributed the existing variation in the level of the land.

- The height of the adjacent building at No.9 Shirley Street is higher than the proposed height of Building No.1 (RL14.64). The proposed increase in height and bulk of the building is considered to be compatible with the existing streetscape.

Building No. 1 approved in DA No. 10.2016.55.1 in part exceeded 9m from existing ground level.

There was previously only 1 point on Building No. 2 that exceeded 9m from existing ground level by more than 10% and that was located at the roof parapet / safety rail of Building No. 2. Building parapet design levels / heights have been reviewed to ensure development does not exceed 9m by more than 10%.

The sections in the clause 4.6 report show the ‘height control – building envelope’ plan shows those parts of the roof and parapet that exceed 9m from existing ground level in perspective diagrams.

The isometric models of the approved development shown in grey over the red plane are parts of the approved buildings that exceed 9m above existing ground level:

The isometric models of the proposed development shown in grey over the green plane are parts of the proposed buildings that exceed 9m above existing ground level:

The plans of the building elevations show the height relative to existing ground level. The difference and irregular existing levels across the site gives rise to the proposed departure from strict compliance with the 9m building height. The variation is reasonable.

The development is visually different to development on adjoining land. It is compatible in height, bulk and scale and will sit in the existing streetscape as shown in the streetscape elevation:

Council can be satisfied that the three storey buildings are consistent with character of the Shirley Street locality and will minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development.

The proposed building provides for generous side setbacks and, at the upper level, the side setbacks are increased further again. The maximum height of the proposed buildings is comparable to the maximum height of the ridgelines of the pitched roofs of adjacent properties, and also with the ridgeline of the motel which it is replacing.

The established trees to the front setback are to be retained, and supplemented with new planting. A comparison of the current, approved and proposed elevations demonstrate that the frontage can be considered to complement the streetscape and character of the north Shirley Street area:

Current and approved

Proposed

It is considered that the development standard (height of buildings) has been demonstrated to be unreasonable or unnecessary in the circumstances of this case.

It is considered that the applicant’s written request has adequately addressed the matters required to be demonstrated in subclause 3.

The objectives of Clause 4.3 (height of buildings) 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.

It is considered the proposed height of the building satisfies the objectives of Clause 4.3. The proposed building height is not considered to be excessive in the immediate streetscape and should not detract from the character of the area.

The proposed portion of Building No.1 exceeding the height limit should not result in any unacceptable overshadowing of neighbouring properties. Subject to conditions relating to privacy screens the proposed development should not result in any unacceptable loss of privacy to any neighbouring property.

No written objection has been received relating to the loss of views. The proposal is not considered likely to result in any significant loss of views by neighbouring properties.

The proposed development is considered to be generally consistent with the objectives of the R3 Medium Density Residential Zone as these objectives do not refer to built form.

The concurrence of the Secretary has been obtained. Concurrence of the Secretary is able to be assumed for non-compliances with Clauses 4.6 (pursuant to NSW Planning System Circular PS 18-003).

Note. the assessing officer has confirmed that the calculation of gross floor plan area and floor space ratio (FSR) is consistent with the definition for gross floor area in the Byron LEP 2014. There is no variation required to the FSR development standards.

Acid Sulfate Soils

Acid Sulfate Soils was considered in the assessment of DA10.2016.55.1 and all relevant conditions of consent have been repeated in the recommended conditions of consent below:

Preliminary Acid Sulfate Soil Assessment No. 16117_SEPP 55.docx prepared by Greg Alderson & Associates dated 10^th December 2015 indicates that potential acid soil is likely to be located at 0.0m AHD at approximately 4m below the natural ground level. Works for the development including excavation required for the basement car parks and stormwater detention tank are not likely to intercept these soils. Notwithstanding the lowest excavation is at approximately 1.2AHD with the water table depth being recorded at around 1.6-1.7AHD. dewatering is likely to be required. The applicant is required to submit a Dewatering Management Plan and Groundwater Contingency Plan for approval prior to issue of a Construction Certificate. Information provided by the applicant dated 24/5/16 (#2016/7607) confirms that no infrastructure will be installed below the basement.

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 4.15(1) of the EP&A Act because it applies to the subject land and the proposed development.

The relevant clauses 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 part of the site subject to Byron LEP 1988 clauses will not include any building or structures and it is therefore considered to be of limited relevance to the proposed development. The proposed development complies with LEP 1988 (in some cases subject to conditions and/or to the satisfaction of other assessing officers).

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

State Environmental Planning Policy (Coastal Management) 2018

State Environmental Planning Policy (Coastal Management) 2018 (the Coastal management SEPP) commenced on 3 April 2018. The SEPP forms part of a suite of legislative changes which included the introduction of the Coastal Management Act 2016 and the repeal of SEPP 14—Coastal Wetlands, SEPP 26—Littoral Rainforests and SEPP 71—Coastal Protection.

Clause 21 of the SEPP provides that the former planning provisions continue to apply (and the SEPP does not apply) to a development application lodged, but not finally determined, immediately before the commencement of the policy. ‘Former planning provisions’ is defined in clause 21 as follows:

former planning provisions means:

(a) the provisions of each of the following Policies as in force immediately before the Policy’s repeal:

(i) State Environmental Planning Policy No 14—Coastal Wetlands,

(ii) State Environmental Planning Policy No 26—Littoral Rainforests,

(iii) State Environmental Planning Policy No 71—Coastal Protection, and

(b) the provisions of State Environmental Planning Policy (Infrastructure) 2007 that would be in force if that Policy had not been amended by this Policy.

The subject application was lodged prior to the introduction of the Coastal Management SEPP.2018. Accordingly, the development application has been assessed in accordance with applicable former planning provisions.

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 4.15(1) of the EP& A Act because it applies to the land to which LEP 2014 applies.

The relevant 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 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).

Issues:

Building height plane and front set back encroachments were assessed under DA 10.2016.55.1. The proposed development reduces the encroachment on the building height plane previously approved and the set backs are generally consistent with those assessed and approved under DA 10.2016.55.1.

1. Building height plane encroachments

Section D1.2.1 Building Height Plane specifies, in part:

1. The building height plane in combination with boundary setbacks prescribed in this DCP, and building height prescribed in the Byron LEP 2014, form the maximum building envelope for all residential development other than for shop top housing and ancillary dwellings in Zones IN1, IN2 and B7.

2. An exemption from the building height plane may be considered in relation to one or more boundaries in the following circumstances:

- where the floor level is required to be above ground level to comply with Council’s requirements for flood protection; or

- for the zero lot line boundaries of semi-detached dwellings and attached dwellings; or

- in circumstances referred to in Prescriptive Measure 2. of Section D1.2.2 (see following).

2. Minimum Side and Rear Boundary Setbacks

a) Side and rear setbacks are to be a minimum 900mm, with all dwellings also complying with the requirements of the building height plane.

b) In urban residential areas, Council may consent to the construction of one or more building walls set back less than 900mm from a side or rear boundary, such that the building/s cannot comply with the building height plane, where:

i) such wall or walls contain no openings; and

ii) it is demonstrated to Council's satisfaction that the development, if carried out, would improve the siting or orientation of the dwelling/s or the provision of private open space; and would not significantly:

· increase the overshadowing of adjoining properties; or

reduce the level of privacy enjoyed by adjoining properties.

Assessment: The proposed development encroaches the BHP adjacent to the eastern side boundary. The proposed encroachments are considered acceptable in this instance as it would not significantly increase the level overshadowing of adjoining properties and would not reduce the level of privacy enjoyed by adjoining properties.

The applicant has submitted shadow diagrams which identify the existing two-storey Outrigger Bay Resort development on the adjoining allotment to the east (No.9-13 Shirley Street). The shadow diagrams illustrate that the shadows cast from the proposed buildings result in limited overshadowing of the neighbouring property at the winter solstice. The proposal is considered acceptable having regards to the minimum setbacks to the side boundary and the performance criteria and objectives underpinning this design element in the DCP.

The Clause 4.6 objection lodged with the DA to vary the 9m building height was submitted with building height plane drawings from existing ground levels.

Building 1 Building Height Plane- Proposed

Building 2 – Building Height Plane

3. Front setback encroachment

Objectives

1. To achieve varied and interesting streets that complement and harmonise with existing and planned streetscapes and development in the locality.

2. To achieve good orientation and spacing of residential developments that achieve high quality living environments relative to sunlight, shade, wind and weather protection, residential amenity and proximity of neighbouring development.

3. To achieve effective use of allotments to create useable and liveable private open space and courtyards.

4. To provide flexibility in siting and design of dwelling house development in urban residential areas.

Performance Criteria (extracts only)

The setback from a street frontage for a building that is part of a residential development will be determined on its merits, having regard to:

a) the Objectives;

b) any provisions of this DCP applying to the specific location;

c) the position of any existing buildings in the locality;

d) the size and shape of the allotment;

e) the effect on vehicular safety and visibility, particularly on corner sites;

f) the orientation of the allotment and the proposed dwelling with regard to the sun and prevailing winds;

g) the proposed location of any private open space, courtyard or landscaped areas;

h) the facade of the proposed building or buildings which will face the street and the proposed landscape treatment of that part of the allotment which is visible from the street;

i) the location and treatment of any car parking areas or car parking structures on the site.

When considering applications for variations to minimum setbacks nominated below in the Prescriptive Measures, Council will have regard to:

a) the Objectives;

b) compliance with the Performance Criteria;

c) the visual impact of the variation on the streetscape;

d) the impact of the variation on the amenity, privacy, views and access of surrounding properties;

e) the existing and future status of the road;

f) potential traffic impacts and required sight lines as per AS2890; and

g) compliance with the Building Code of Australia.

Assessment:

Section D1.2.2 Setbacks from Boundaries specifies a minimum setback of 9.0 metres from the primary front boundary to a classified road. Having regard to the Objectives and Performance Criteria of Section D1.2.2 it is considered that the proposed front setback is acceptable in view of the following matters:

· the main building line is setback 8.3m with a portion of the building being 7.3m (the proposed main building encroaches 1.7m and 2.7m forward of the minimum setback);

· the proposed variation to the front setback will not detract from the amenity, views or access of surrounding properties;

· existing buildings on adjoining allotments have a similar front setback (adjacent building at 9-13 Shirley Street (Outrigger Bay Resort) has a front setback of 5.81m, 23-25 Shirley Street has a front setback of 8.83m and 27 Shirley Street has a front setback of 6.07m);

· the proposed development is considered to be compatible with the streetscape,

· the proposed development is capable of compliance with the Building Code of Australia and sight lines as per AS2890.

Having regard to the performance criteria and objectives underpinning this design element a variation to the numerical standard is supported in this instance.

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 4.15(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 part of the site subject to Byron DCP 2010 will not include any building or structures and it is therefore considered to be of limited relevance to the proposed development. The relevant 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 is demonstrated to meet the relevant Objectives of DCP 2010 (in some cases subject to conditions and/or to the satisfaction of other assessing officers).

4.5 Any Planning Agreement or Draft Planning Agreement?

Not applicable

4.6 Environmental Planning & Assessment Regulation 2000 Considerations

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

* Non-compliances and any other significant issues discussed below

Clause 97 Modification or surrender of development consent or existing use right

(cf clause 68 of EP&A Regulation 1994)

A condition of consent is recommended that the applicant surrender DA 10.2016.55.1 and also to surrender existing use rights for tourist accommodation on the site prior to issue of a construction certificate.

4.7 Any Coastal Zone Management Plan?

	Satisfactory	Unsatisfactory	Not applicable
Is there any applicable coastal zone management plan?	☐	☐	☒
Consideration: There is no coastal zone management plan in force at this time.

Satisfactory

Unsatisfactory

Not applicable

Is there any applicable coastal zone management plan?

☐

☒

Consideration: There is no coastal zone management plan in force at this time.

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.

The proposed development is considered to be compatible with the built form of existing medium density development within the immediate area. The proposal is compatible with the natural environment and unlikely to result in any unacceptable impacts.

The proposal will provide for positive economic impacts during the construction phase in terms of employment and building suppliers and associated multiplier effects are expected through the local economy, whilst socially the development will deliver additional housing.

The proposed development has been assessed in accordance with Council Policies that are applicable to the proposed development.

4.9 The suitability of the site for the development

Having regard to the site constraints of bush fire prone land, coastal erosion and acid sulphate soils, the site is considered to be suitable for the proposed development subject to the conditions included in the recommendation.

The subject site adjoins the north coast rail corridor to the north. Conditions have been included to address potential noise and vibration issues.

4.10 Submissions made in accordance with this Act or the regulations

The development application was publicly exhibited. There were 5 submissions made against the development application. The issues raised in the submissions are considered further as follows:

Issue – use of railway land

Response: The site includes 611.4m² of land adjoining Lot 1 DP 1098133 along the northern boundary, approximately 10 m metres from the centreline of the existing rail tracks. A Crown development application for the boundary adjustment was approved in 2018. This portion of rail land will be consolidated with that owned by Wollongbar Property Pty Ltd. The functionality of the rail corridor will not be affected - this land is not required for the purposes of public rail transport. It is noted that similar subdivisions have occurred in the rail corridor west of Byron Bay in the past where part of the land is surplus to rail infrastructure requirements.

Issue – increase in bulk and scale

Response: Bulk and scale was considered in the assessment of DA No. 10.2016.55.1 and further in this assessment with a minor change to what is approved.

The width of both buildings remains as approved in DA No. 10.2016.55.1. The height of Building No. 2 will increase, though the difference is considered justifiable with consideration for the provisions of Clause 4.6 in Byron LEP 2018.

Issue – traffic generation

Response: Council development engineers have assessed the additional 2 residential flats and it is considered:

DA 102017.55.1 estimated 110 DVT’s based on 6.5 DVT’s per 3 bedroom unit. Increasing the development by 2 * 4 bedroom units is not expected to be a concern in regards to traffic. Given the sites proximity to the main centre the actual traffic volume will be somewhat lower than 133 DVT’s.

Issue – ensuring use of residential flats preventing use for tourists

Response: The land use zone is R3-medium density residential, which permits residential flat buildings. The existing motel is an ‘existing use’ as motels are a prohibited development in the R3 zone.

A condition of consent requiring the surrender of the previous DA 10.20165.55.1 and also to surrender existing use rights for the purposes of tourist and visitor accommodation is included in the recommendation.

4.11 Public interest

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

5. DEVELOPER CONTRIBUTIONS

5.1 Water & Sewer Levies

Section 64 levies will be payable.

5.2 Section 7.11 Contributions

Section 7.11 Contributions will be payable.

This development will result in an increased demand for public facilities and it is appropriate to impose a condition of consent requiring the payment of contributions.

The credit for the site is calculated as follows:

Development Type	Standard Unit	Quantity	ET Rate (ET/unit)
Development Type	Standard Unit	Quantity	1993 & 2001 S94 Plans
Managers Residence (3 Bedrooms)	Dwelling	1	1	1.00
No. One Bedroom Motel rooms	Room	19	0.25	4.75
No. Two Bedroom Motel rooms	Room	8	0.5	4
Total				9.75

6. CONCLUSION

7. REASONS FOR DECISION, HOW COMMUNITY VIEWS WERE ADDRESSED

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.

Statement of Reasons

The proposed development complies with the provisions of Byron Local Environmental Plan 1988.

The proposed development complies with the provisions of Byron Local Environmental Plan 2014.

The proposed development complies with relevant State Environmental Planning Policies

The proposed development complies with relevant provisions of Development Control Plan 2014

The proposed development complies with relevant provisions of Development Control Plan 2010

The proposed development complies with Environmental Planning & Assessment Regulation 2000 considerations.

The proposed development complies with the Coastal Zone Management Plan.

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.

The development application was notified/advertised in accordance with Development Control Plan 2014. Issues raised in the submissions have been addressed during assessment of the application.

The proposed development is unlikely to prejudice or compromise the public interest.

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.

To view the considerations, please contact Council to view a copy of the assessment report relating to this DA.

8. DISCLOSURE OF POLITICAL DONATIONS AND GIFTS

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

Provide Disclosure Statement register details here: Not applicable

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 6.7

Report No. 6.7 26.2018.2.1 - Planning Proposal for an amendment to Byron LEP 2014 and Byron LEP 1988 to permit Community Title subdivision and dwellings at Lot 1 DP 1031848, Broken Head Road, Broken Head (The Linnaues Estate)

Directorate: Sustainable Environment and Economy

Report Author: Steve Daniels, Project Officer - Planning Reforms

File No: I2019/103

Summary:

Council has received a planning proposal to amend Byron LEP 2014 and Byron LEP 1988. The planning proposal is to include Lot 1 DP 1031848 (The Linnaeus Estate, Broken Head) in Schedule 1 of BLEP 2014 and Schedule 8 of BLEP 1988 to permit the Community Title subdivision of the land to create 33 small lots, with the balance in a single community lot. The use of the small lots for dwellings is foreshadowed subject to future development consent. The planning proposal is consistent with the Byron Rural Land Use Strategy 2017 and the North Coast Regional Plan.

It is recommended that Council proceed with the planning proposal as submitted and forward it to the Department of Planning and Environment for a Gateway Determination.

RECOMMENDATION:

That Council:

1. Request the NSW Department of Planning and Environment to issue a Gateway determination for the planning proposal, as included at Attachment 1 (E2018/87474) which proposes to include Lot 1 DP 1031848 (The Linnaeus Estate, Broken Head) in Schedule 1 of BLEP 2014 and Schedule 8 of BLEP 1988 to permit the Community Title subdivision of the land to create 33 small lots, with the balance in a single community lot.

2. Obtain any further studies from the applicant if required by the Gateway determination. Then undertake public exhibition of the planning proposal and government agency consultation based on the Gateway determination; and

3. Receive a further report post-exhibition about issues raised in public and/or government agency submissions received (if any).

Attachments:

1 26.2018.2.1 - Planning Proposal for Amendment of Byron LEP 2014 and Byron LEP 1988 – Lot 1 DP 1031848, The Coast Road, Broken Head - Version 1 (Gateway), E2018/87474

REPORT

Subject Land

The subject land is described as Lot 1 DP 1031848, The Coast Road, Broken Head (The Linnaeus Estate). It is an area of 111 hectares with a 1500 metre beach frontage and a 530 metres frontage to The Coast Road. It is located on the boundary with Ballina Shire immediately south of Broken Head. It has a series of approvals relating to its use as a private education facility. These approvals include 33 accommodation units of which 20 have been built.

Subject site (in part) showing existing structures

The Planning Proposal

The planning proposal (Attachment 1) will permit:

§ A subdivision using a neighbourhood community title scheme creating a total of 33 neighbourhood lots with a minimum size of 250m² each. Each lot can be privately owned. It will also include one lot comprising the residue of the land that will be in shared ownership.

§ Each privately owned lot to contain only one dwelling.

The proponent has lodged the planning proposal because the amendment will permit the subdivision of the existing and approved accommodation units allowing clear title to each of them. Community Title will replace the complex trust/lease/deed arrangement currently in place. Each accommodation unit can be used as a dwelling if the owners obtain Council consent.

Past Council Resolutions on this Planning Proposal

On 2 February 2015 Council considered a draft Planning Proposal for an amendment to the Byron LEP 2014 to rezone land and permit Community Title at Lot 1 DP 1031848, The Coast Road, Broken Head (The Linnaeus Estate). The planning proposal was unsolicited and submitted by the landowners. Council resolved as follows:

15-029 Resolved:

1. That Council decline to proceed with the attached planning proposal to amend Byron LEP 2014.

2. That Council investigate the suitability of the site for Community Title subdivision during preparation of the Byron Urban and Rural Housing Strategy.

3. That Council defer any new zonings on the site until after release of the final E zone review report.

4. That, at the next general update of Byron LEP 2014, Council agree to amend the SP1 zone on Lot 1 DP 1031848 to refer to a private education facility and amend Schedule 1 to define private education facility and specifically permit it as a use on the subject land.

In July 2018 the NSW Department of Planning and Environment agreed to the Byron Rural Land Use Strategy. This Strategy now includes the subject land.

New zones on the subject land are still being considered as part of the E zone review and this is subject to a separate planning proposal.

Council has amended the current SPI zone (as part of the LEP housekeeping amendments gazetted in 2017) to refer to “Mixed Use Development”. Mixed use development means a building or place comprising 2 or more different land uses. Additionally, the amendment identified the SP1 zoned land as “Area D” on the Additional Permitted Uses Map and is subject to clause ‘8’ in Schedule 1 of Byron LEP 2014. The additional permitted use is as follows:

8 Use of certain land at Coast Road, Broken Head

(1) This clause applies to land at The Coast Road, Broken Head (known as the Linnaeus Estate) being part of Lot 1, DP 1031848, and identified as “Area D” on the Additional Permitted Uses Map.

(2) Development for the purposes of mixed use development that includes tourist or visitor accommodation is permitted with development consent.

(3) Development consent may only be granted under this clause if the consent authority is satisfied that the proposed development:

(a) is ancillary to a lawful existing land use, and

(b) is for the purpose of providing education or training for professional and personal development through a variety of academic, cultural and vocational programs.

Council has previously considered the draft Planning Proposal at the 22 November 2018 meeting and resolved (18-760) to defer decision on the Planning Proposal for further consideration at a Strategic Planning Workshop and a site visit for councillors. The matter was considered at the 7 February 2019 Strategic Planning Workshop and the site visit has been scheduled for the 21 February 2019 prior to the council meeting.

Key Issues

Byron Rural Land Use Strategy

Byron Rural Land Use Strategy 2017 has identified the subject land as a “priority site for future rural lifestyle living opportunities”. The subject land is identified for “Community Title conversion of approved accommodation units only (i.e. no additional dwelling yield)”. This strategy was endorsed by the NSW Department of Planning and Environment (DPE) in July 2018.

North Coast Regional Plan

As it is now in the Byron Rural Land Use Strategy 2017, it is consistent with the North Coast Regional Plan 2036 which states: “New rural residential housing will not be permitted in the coastal strip, unless the land is already zoned for this purpose, or is identified in a Department endorsed current or future local growth management strategy (or rural residential land release strategy).”

Amending Two LEPs

The subject land is currently zoned under both Byron LEP 1988 (BLEP88) and Byron LEP 2014 (BLEP14). It is a complex mix of land use zones. The approved 33 accommodation structures are located partly in the SP1 Mixed Use zone under BLEP 2014 and partly within the 5A Special Uses, 7D Scenic Escarpment, and 7F1 Coastal Lands zones under BLEP 1988. If only one of the LEPs is amended then only part of the site can be subdivided under community title. A development consent issued under one LEP cannot apply to land to which a different LEP applies. Preliminary contact with DPE officers indicated it would consider amending both BLEP 2014 and BLEP 1988 in these circumstances.

Coastal Erosion

Part of the subject land is affected by coastal erosion both in the immediate and long term (100 year projection). A map showing the projected erosion lines as mapped in Byron DCP 2010 Part J is included in the Planning Proposal. As many as 15 of the 33 approved accommodation structures may be affected by coastal processes over the long term. The structures are all approved and 20 have been built already. With the prospective subdivision and dwelling consent process Council has the ability to impose conditions requiring dwellings to be removed when the erosion threat is imminent. These conditions have been imposed on past approvals for accommodation on this site.

SEPP Coastal Management

The subject land is partly affected by coastal environment area, coastal use area, coastal wetlands and littoral rainforest mapping under SEPP (Coastal Management) 2018. The accuracy of this mapping is disputed by the landowner and Council staff agrees that not all of it is accurate, however this will need to be resolved as a separate process. The provisions of the SEPP will apply to the subject land as per the maps that prevail at the time a development application is being assessed. This is not a matter that should delay this planning proposal.

S. 9.1 Ministerial Directions (previously s. 117)

The planning proposal is justifiably inconsistent with certain Section 9.1 directions because it:

· has not yet been referred to RFS for bushfire consideration (Direction 4.4)

· introduces site specific provisions (Direction 6.3)

· enables increased development on land identified as being affected by current or future coastal hazard (Direction 2.2)

· restricts the potential development of resources on the site (Direction 1.3)

These justifiable inconsistencies are all discussed in more detail in the planning proposal.

Past DAs

Linnaeus Estate has two substantive approvals being DA 98/0146 which was issued by the Land and Environment Court in 1998 (and amended by consent orders in 2001, 2002, and 2004) and DA 10.2013.600.1.

DA 98/0146 issued in 1998 permitted a private education facility which included 30 buildings of which 24 were accommodation units (inclusive of 2 staff residences and disabled accommodation) with self-contained facilities for sleeping and cooking meals. No laundries were permitted in the accommodation units. There was also a camping ground and community buildings.

A subsequent amendment in 2001 increased accommodation unit floor areas from 110 sq metres to 123 sq metres (Type A units) and from 106 sq metres to 118 sq metres (Type B units). External decking was also added to accommodation units.

In 2002 an amendment was sought to the main communal building. This amendment expanded the approved disabled accommodation unit (attached to the communal building) from 1 unit to 4 detached units, bringing the total number of approved accommodation units to 27.

In 2003 two further modifications were lodged to increase daily sewage disposal from 6000 litres per day to 16,800 litres per day; increase maximum number of persons on site from 72 to 112; permit laundry facilities in the accommodation units; and provide additional areas for treated wastewater to be dispersed. These were agreed to by the Court in 2004.

DA 10.2013.600.1 was approved in 2014 by Council and permitted the reconfiguration of the private education accommodation by deletion of the camping sites and replacement with six additional accommodation units. The use of these buildings must cease if the erosion escarpment comes within 50 metres of the buildings the subject of this consent.

In total, 33 accommodation units (inclusive of 2 staff residences) are approved for the site and indicated on the proposed lot layout in Appendix 1 to the planning proposal (Attachment A).

Options to Move Forward

1. Proceed with the planning proposal and request DPE to proceed to issue a Gateway determination for the planning proposal as attached to this report

2. Don’t proceed with the planning proposal and provide reasons to the applicant

Conclusion

Council has anticipated this planning proposal in response to the subject land being identified in the Byron Rural Land Use Strategy 2017. There is sufficient information to support the planning proposal as submitted and forward it to the Department of Planning and Environment for a Gateway Determination. This forms the basis of the report recommendation.

STRATEGIC CONSIDERATIONS

Community Strategic Plan and Operational Plan

CSP Objective

CSP Strategy

DP Action

OP Activity

Community Objective 4: We manage growth and change responsibly

4.2

Support housing diversity in appropriate locations across the Shire

4.2.1

Establish planning mechanisms to support housing that meets the needs of our community

Legal/Statutory/Policy Considerations

The relevant legal/statutory/policy considerations have been noted above.

Financial Considerations

If Council chooses to proceed with the planning proposal, it will be at the proponent’s expense as a landowner initiated planning proposal. Full cost recovery of the remaining stages will be required by Council. If the applicant chooses not to pay then the planning proposal will not proceed.

If Council chooses not to proceed then the matter does not incur any additional costs.

Consultation and Engagement

If Council chooses to proceed with the planning proposal, it will be forwarded to the NSW Department of Planning & Environment for a Gateway determination.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 6.8

Report No. 6.8 PLANNING - 10.2018.372.1 Use of Dwelling House to Create Dual Occupancy (detached) at 361 Huonbrook Road Huonbrook

Directorate: Sustainable Environment and Economy

Report Author: Dylan Johnstone, Planner

File No: I2019/116

Proposal:

DA No:	10.2018.372.1
Proposal description:	Use of Dwelling House to Create Dual Occupancy (detached)
Property description:	LOT: 2 DP: 860652
Property description:	361 Huonbrook Road HUONBROOK
Parcel No/s:	210910
Applicant:	Mr S Toneguzzo
Owner:	E-Synergies.Com Pty Ltd
Zoning:	RU2 Rural Landscape / PART DM Deferred Matter (1a General Rural Zone)
Date received:	27 July 2018
Integrated Development:	No
Public notification or exhibition:	- Level 1 advertising under DCP 2014 Part A14 – Public Notification and Exhibition of Development Applications - Exhibition period: 10/08/2018 to 23/08/2018 - Submissions received: One
Planning Review Committee:	Not applicable
Other approvals (S68/138):	Not applicable
Delegation to determination:	Council
Issues:	· Clause 4.6 variation · Deferred Commencement Building Information Certificate required · Bush fire prone land · Cattle Dip Buffer

Summary:

This application seeks development consent for use of Dwelling House to Create Dual Occupancy (detached) at 361 Huonbrook Road Huonbrook. The property is partly zoned RU2 Rural Landscape and 1(a) General Rural under Byron LEP 2014 and LEP 1988, respectively. The subject property has an area of 10.68 ha and contains an existing approved dwelling house, a restaurant and a number of shed structures.

The proposal is generally consistent with Council’s planning controls other than the separation distance provisions under Byron LEP 2014.

The proposed separation distance between the existing approved dwelling and the subject building is 120m which does not comply with the maximum permitted separation distance between detached dual occupancy dwellings of 100m as required by Clause 4.2D of Byron LEP 2014. A Clause 4.6 variation request was submitted by the applicant. In this regard the subject building has existed for at least 20 years and strict compliance with the development standard would require either the demolition of the existing building, and construction of a new dwelling, or the relocation of the existing building. Either of these scenarios would come at a significant cost to the landowner and it is considered a more efficient use of resources to utilise the existing building. There is a gully located immediately to the east of the building therefore it is not practical to either relocate the dwelling or construct an expanded dwelling module to reduce the separation distance between dual occupancy dwellings. It is considered that strict compliance with the 100m maximum separation distance between detached dual occupancy dwellings is unreasonable and unnecessary in this circumstance.

The existing building (the subject of the application) to date has not generated detrimental impacts upon the built or natural environment and is able to be recommended for approval subject to conditions of consent.

NOTE TO COUNCILLORS:

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

RECOMMENDATION:

That pursuant to Section 4.16 of the Environmental Planning & Assessment Act 1979, development application 10.2018.372.1 for use of dwelling house to create dual occupancy (detached), be granted consent subject to conditions in Attachment 3 #E2019/8091.

Attachments:

1 Proposed Plans 361 Huonbrook Rd, Huonbrook, E2019/8049

2 submission received 10.2018.372.1, E2018/73095

3 Deferred Conditions of consent, E2019/8091

Assessment:

1. INTRODUCTION

1.1. History/Background

BA239/76 – Dwelling and Shed – approved 01/11/76

10.2005.225.1 – Conversion of unauthorised dwelling into a farm shed – approved 18/05/05

10.2007.423.1 – Alterations and Additions to existing dwelling – approved 03/01/08

10.2007.423.2 – S96 for modifications to roof area – approved 29/05/08

10.2007.775.1 – Swimming pool – approved 20/02/08

10.2015.102.1 – Rural Industry – approved 06/07/15

10.2016.11.1 – Restaurant – approved 12/04/16

10.2016.11.2 – S96 to create alternate dining area – approved 13/11/17

The existing building subject to this application has been located on the site for an extended period. No approval for the construction of the subject building could be located. At some time prior to April 2005 the subject building was constructed and was being used as a residence. Development Application 10.2005.225.1 was lodged and consent granted on 17 May 2005 for Conversion of unauthorised dwelling into a farm shed. Since this consent was granted the building has been reinstated as a residence without approval. The subject application seeks to obtain consent for the lawful use of this building as a dwelling house to create a dual occupancy (detached).

1.2. Description of the proposed development

This application seeks approval for Use of Dwelling House to Create Dual Occupancy (detached). The existing building contains three (3) bedrooms, is constructed of timber with a raised floor due to the slope of the land and has a colourbond roof. The proposed/existing separation distance between the two dwellings forming the dual occupancy (detached) is approximately 120m.

1.3. Description of the site

Land is legally described as	LOT: 2 DP: 860652
Property address is	361 Huonbrook Road HUONBROOK
Land is zoned:	RU2 Rural Landscape / PART DM Deferred Matter
Land area is:	10.88 m2
Property is constrained by:	Bushfire prone land High Conservation Value Dip Site Cattle Dip Buffer

Existing dwelling to create dual occupancy looking SW

Access to existing dwelling showing gully located between the two existing dwellings looking W

2. SUMMARY OF REFERRALS

Referral	Issue
Environmental Health Officer	No objections to the proposal subject to conditions.
Development Engineer	No objections to the proposal subject to conditions.
Building Surveyor	No objections to the proposal subject to conditions.
S7.11 / Contributions Officer	No objections to the proposal subject to condition.
Rural Fire Service (4.14)	No objections to the proposal subject to conditions.

3. SECTION 4.14 – BUSH FIRE PRONE LAND

EFFECT OF 10/50 RULE ON SIGNIFICANT VEGETATION

The site is a designated 10/50 vegetation clearing entitlement area. The only vegetation to be potentially impacted is camphor laurel therefore no further investigation is required.

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

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

4.1 State Environmental Planning Instruments

	Satisfactory	Unsatisfactory
State Environmental Planning Policy No 55—Remediation of Land	☒	☐
Consideration: Assessing Environmental Health Officer commented “The proposed dwelling has been used informally as a residence for many years. While it is located in a rural area the site has been utilised for residential use for an extended period in conjunction with an adjoining restaurant/café on the subject site. No further investigation is warranted.”
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004	☒	☐
Consideration: BASIX Certificate required for: • New dwellings • Alterations > $50,000.00 • Pools > 40,000 kl BASIX certificate has been provided.
State Environmental Planning Policy (Rural Lands) 2008	☒	☐
Consideration: Clause 7 identifies Rural Planning Principles to be considered for development. The Rural Planning Principles are as follows: (a) the promotion and protection of opportunities for current and potential productive and sustainable economic activities in rural areas, (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. The proposal is consistent with these principles.

4.2A Byron Local Environmental Plan 2014 (LEP 2014)

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);

(b) The land is within the RU2 Rural Landscape / PART DM Deferred Matter (1a General Rural Zone) according to the Land Zoning Map (the existing building is located entirely on land zoned RU2);

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

Zone Objective	Consideration
To encourage sustainable primary industry production by maintaining and enhancing the natural resource base	The proposal will not impact on the agricultural viability of the land or adjoining lands
To maintain the rural landscape character of the land	The proposed dual occupancy (detached) is consistent with the existing character of the locality
To provide for a range of compatible land uses, including extensive agriculture.	The proposal is compatible with adjoining land uses
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 proposal is associated with residential purposes only
To protect significant scenic landscapes and to minimise impacts on the scenic quality of the locality.	The proposed dual occupancy (detached) is located to ensure the minimisation of impacts on the environment and scenic qualities in the locality.

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

The property has an area of 10.68 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 BA239/76. 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

The application proposes a separation distance of 120m between the two dwellings which does not comply with the permitted 100m maximum separation distance – see below.

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

(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.

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

Clause 4.3 Height of Buildings

The proposed new dwelling complies 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 Use of Dwelling House to Create Dual Occupancy (detached).

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 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.

4. Extent of Variation to the Development Standard

The application seeks consent for the use of an existing dwelling, to create a dual occupancy (detached), with a separation distance of 120m from the existing approved dwelling, which does not comply with the maximum 100m separation distance permitted.

The extent of the variation is 20%.

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 applicant has argued that it is unreasonable and unnecessary to comply with the 100m maximum separation distance as the building is unable to be relocated and has remained in this location for at least twenty years without adverse impact on the environment.

Requiring compliance with the development standard would essentially require either the demolition of the existing building, and construction of a new dwelling, or the relocation of the existing building. Either of these scenarios would come at a significant cost to the landowner and it is considered a more efficient use of resources to utilise the existing building. Demolition or relocation of the existing building could create privacy/ amenity issues with the existing approved dwelling if the proposed dual occupancy dwelling was located to comply with the development standard and avoid potential impacts on vegetation having a high ecological value.

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

The land contains a certified organic farm which will not be significantly impacted There is no loss of agricultural productivity on the land as the building has existed for at least 20 years. The proposed use of the building will not present any land use conflict issues with adjoining land which consists of small rural lifestyle lots and hobby farms. There is a gully located immediately to the east of the building therefore it is not practical to either relocate the dwelling or construct an expanded dwelling module to reduce the separation distance between dual occupancy dwellings.

The use of the two buildings as a dual occupancy (detached) contributes to provision of rural housing whilst not significantly affecting the existing character, amenity or landscape of the locality. The proposed variation does not create any significantly adverse social, environmental or economic impacts in the locality. There are sufficient environmental planning grounds to justify contravening the development standard.

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

The proposal provides an opportunity for a dual occupancy (detached) in an area that is identified as appropriate through zoning provisions. The proposal contributes to the provision of residential housing in a rural setting whilst preserving, and minimising impacts on, environmentally sensitive locations and scenic quality. The proposal is compatible with the agricultural potential, rural character and environmental capabilities of the land. The proposal does not result in any significant conflict between land uses within the applicable zone and land uses within adjoining zones. The proposal is consistent with the objectives of the development standard and the zone. The proposed development is not significantly contrary to the public interest because it will not adversely affect the welfare and wellbeing of the broader public.

The proposed development would produce a better planning outcome than one that strictly complies with the development standard because compliance with the 100m maximum separation distance between dwellings would result in a number of potential issues. Such issues include the demolition of an existing structure, removal of vegetation identified as having high ecological value, and amenity issues with the existing approved dwelling if the proposed dual occupancy dwelling was located to avoid the area of high ecological value vegetation.

There would be no benefit in relation to the natural or built environment, or with respect to social and economic impacts on the locality in requiring strict compliance with the 100m maximum separation distance between dwellings. The circumstances of the case warrant a more flexible approach to application of the separation distance development standard. The Applicant’s variation request is supported and the development application is recommended for approval despite the non-compliance.

(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 the use of an existing structure as a Dwelling House to Create Dual Occupancy (detached) with a separation distance of 120m from the existing dwelling which does not comply with the maximum 100m separation distance permitted. The extent of the variation is 20%. In accordance with PS18-003 the application must be determined by the elected Councillors.

The Applicant’s variation request is supported and the development application is recommended for approval despite the non-compliance.

Clause 6.6 Essential Services

Potable water is proposed to supply the development through rainwater tanks. Electricity and telephone services are available to the land and can reasonably be extended to service the dwelling subject to this application. The application has demonstrated that the disposal of wastewater via an on-site sewage management system can be achieved on the site. The site is accessed by a single driveway to Huonbrook Road.

4.2B Byron Local Environmental Plan 1988 (LEP 1988)

The existing building is located entirely on land zoned RU2 under LEP 2014 however existing internal vehicular access traverses an area zoned 1(a) under LEP 1988.

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

(a) The proposed development is defined in the LEP 1988 Dictionary as Dual Occupancy;

(b) The land is within the 1 (a) General Rural Zone according to the map under LEP 1988;

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

Zone Objective	Consideration
(a) 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 existing access is proposed to service an existing building to be used as a dwelling house and is of a scale and character that complements the existing natural environment and does will not adversely affect the existing amenity of the area
(b) 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,
(c) 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,
(d) 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,
(e) 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,
(f) to restrict the establishment of inappropriate traffic generating uses along main road frontages other than in road side service areas,
(g) 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,
(h) 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
(i) to permit the development of limited light industries which do not pose any adverse environmental impact, (eg software manufacture and film processing), and
(j) 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.

Clause 52 Tree Preservation

An area mapped as High Ecological Value vegetation (subtropical rainforest) exists within close proximity to the existing internal driveway servicing the existing building proposed to be used as a dual occupancy dwelling. Any vegetation removal required to upgrade internal access will be limited to camphor laurel therefore no further assessment required.

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

Not applicable

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

B2 Preservation of Trees and other Vegetation

RFS conditions require a 9m Asset Protection Zone to be provided to the east of the existing structure proposed to be used as a dual occupancy dwelling. This is adjacent to an area mapped as High Ecological Value vegetation (subtropical rainforest) The only vegetation to be potentially impacted is camphor laurel therefore no further investigation is required.

B3 Services

The application has demonstrated that the proposed development will be adequately serviced including the provision of an onsite sewage management system. A recommended condition of consent will require the provision of a 40,000L rainwater tank.

B6 Buffers and Minimising Land Use Conflict

The proposed new dwelling house is located adjacent to small rural holdings that are not utilised for any significant primary production purposes. Therefore the proposal is unlikely to present any significant land use conflict issues.

D2.2.3 Character and Visual Impact

The existing building proposed to be used as a dual occupancy dwelling has been constructed to complement the contours of the land and minimise the visual impact on the surrounding area. The land slopes to the south from Huonbrook Rd and the existing building is largely screened from the road by vegetation surrounding the building. The land is bounded to the south by Coopers Creek and riparian vegetation along the creek largely screens the existing building from adjoining and surrounding land.

D2.5 Dual Occupancies and Secondary Dwellings

D2.5.1 On-site Car Parking

There are abundant areas on the site to provide car parking, behind the front building setback, to service each of the dwellings of the proposed dual occupancy (detached).

D2.5.2 Character and Siting of Dwellings

The proposed dual occupancy (detached) is located 120m apart which does not comply with the maximum permitted separation distance of 100m. A clause 4.6 variation was submitted in accordance with LEP 2014 and is discussed in section 4.2A of this report.

D2.5.5 Adjoining and Nearby Development

The land contains a certified organic farm which will not be significantly impacted. The proposed use of the building will not present any land use conflict issues with adjoining land which consists of small rural lifestyle lots and hobby farms.

The proposal does not present any significant impacts on privacy or existing views from neighboring dwellings.

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 4.15(1) of the EP& A Act because it applies to the land to which LEP 1988 applies. The following DCP 2010 chapters are of relevance to the proposed development:

Chapter 1: Part G Vehicular Circulation and Parking

The application proposes the utilisation of an existing internal driveway that traverses an area zoned 1(a) (General Rural Zone) under LEP 1988 and is therefore subject to the provisions of DCP 2010.

Internal driveway access will require regrading with sealed pavement required for grades greater than 12% - a condition of consent is recommended. The access way to the existing building proposed for use as a dwelling is in poor condition. This access is required to be upgraded to provide a minimum 3m wide 150mm gravel pavement - a condition of consent is recommended.

There is adequate room on site to allow vehicles to enter and exit in a forward direction.

4.5 Any Planning Agreement or Draft Planning Agreement?

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

Yes

Is there any applicable planning agreement or draft planning agreement?

☐

☒

Consideration:

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?	☐	☐	☒
Consideration:

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

Impact on:	Likely significant impact/s?
Natural environment	No. The proposal will not have a significantly adverse impact on the natural environment of the locality.
Built environment	No. The proposal will not have a significantly adverse impact on the built environment of the locality.
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?

The proposed development complies with Council’s development-related policies (in some cases subject to conditions and/or to the satisfaction of other assessing officers).

4.9 The suitability of the site for the development

The site is a serviced, unconstrained property and is suitable for the proposed development.

4.10 Submissions made in accordance with this Act or the regulations

The development application was publicly exhibited .

There was one submission made on the development application:

Issue	Comment
The land already contains 2 dwellings	The land contains an existing approved dwelling house and the subject application seeks consent for the use of an existing building as a dwelling to create a dual occupancy (detached). The land also contains an approved restaurant and a number of sheds. During site inspection by Council staff there was no evidence that any of these sheds are being used for habitable purposes.
Cars associated with the existing restaurant on the land are parking on the public road	The application has demonstrated suitable car parking for each of the dwellings.
Suitability of Huonbrook Road to accommodate additional traffic	The proposal will not have a significant traffic impact on Huonbrook Road.
Impact on biodiversity values	The land contains areas mapped as having high ecological value however, as the building subject to this application is existing, the proposal will not have a significant impact on these areas.
Impacts of water extraction licence	This is a matter for Water NSW and not relevant to this application.
Rainwater tanks should be provided to reduce stormwater runoff to Coopers Creek	A condition of consent is recommended to require a 40,000L rainwater tank

4.11 Public interest

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

5. DEVELOPER CONTRIBUTIONS

5.1 Water & Sewer Levies

No Section 64 levies will be required.

5.2 Section 7.11 Contributions

Section 7.11 Contributions will be payable.

6. DISCLOSURE OF POLITICAL DONATIONS AND GIFTS

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

Provide Disclosure Statement register details here: Not applicable

7. CONCLUSION

8. REASONS FOR DECISION, HOW COMMUNITY VIEWS WERE ADDRESSED

Statement of Reasons

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

The proposed development is considered suitable for the proposed site.

The proposed development is unlikely to prejudice or compromise the public interest.

How community views were addressed

The DA was advertised in accordance with Level 1 notification as per Development Control Plan 2014. All issues raised within submissions have been taken into consideration in determininq this application.

9. RECOMMENDATION

It is recommended that pursuant to Section 4.16 of the Environmental Planning & Assessment Act 1979, development application no. 10.2018.372.1 for Use of Dwelling House to Create Dual Occupancy (detached), be granted Deferred Commencement (deferral period 2 years) subject to conditions listed in Attachment 3 # E2019/8091.